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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 


BRICK  WOOD'S 
SACKETT 

ON 

INSTRUCTIONS 
TO  JURIES 

CONTAINING   A    TREATISE    ON 

Jury  Trials  and  Appeals 

WITH 

FORMS    OF   APPROVED    INSTRUCTIONS    AND    CHARGES 

ANNOTATED 

ALSO  ERRONEOUS   INSTRUCTIONS  WITH  COMMENT  OF 

THE  COURT  IN  CONDEMNING  THEM 


THREE  VOLUMES 
VOL.  I 


THIRD  EDITION" 


BY 

ALBERT    W.    BRICK  WOOD.   LL.  B. 

OF  THE  CHICAGO  BAR 


CHICAGO 

CALLAGHAN  &  COMPANY 
19 


COPYRIGHT  1888 

BY 

CALLAGHAN  &  COMPANY 

COPYRIGHT  1908 

BY 

CALLAGHAN  &  COMPANY 


T 
190& 


TO  THE 

TRIAL    LAWYER, 

in  the  hope  that  it  may  lessen  his  labob 

and  keep  him  fbom  ebbob 
this  bevision  is  bespectfully  dedicated. 

By  the  Revisee. 


Ill 


PREFACE  TO  THE  THIRD  EDITION. 


In  presenting  this  edition  of  Sackett's  Instructions  to 
Juries,  it  is  proper  to  explain  the  scope  and  aim  of  the  work. 

At  the  outset,  it  is  apparent  that  a  work  of  this  kind  should 
contain  a  brief  treatise  on  trials  by  jury,  which  should  em- 
brace the  empaneling  of  the  jury,  the  opening  statement  of 
counsel,  the  examination  of  witnesses,  the  arguments  of  the 
attorneys  and  the  instructions  by  the  court.  It  should  also 
cover  the  preparation  of  bills  of  exception,  the  record  for  ap- 
peal, abstracts  and  briefs  in  the  appellate  courts.  In  other 
words,  it  should  take  the  trial  lawyer  from  the  opening  of  the 
trial  to  the  end  of  the  proceedings  in  the  court  of  last  resort. 

This  manifestly  would  have  no  reference  to  the  pleadings 
in  the  case  and  would  only  incidentally  bear  upon  rules  of  evi- 
dence. It  would  not  supersede  the  excellent  works  on  trials 
already  published  suitable  for  students,  but  would  aim  to  supply 
the  busy  trial  lawyer  with  an  epitome  of  the  subject  in  a  com- 
prehensive but  concise  form. 

The  forms  of  instructions  seem  to  be  the  great  stumbling 
block  of  both  bench  and  bar.  This  is  not  so  much  from  the  lack 
of  precedents,  for  the  reported  cases  abound  in  them,  as  from 
the  want  of  books  of  precedents,  pointing  out  not  only  what  the 
reviewing  courts  have  approved  or  disapproved,  but  where  such 
j  decisions  may  be  found.  An  instruction,  after  it  has  been  sub- 
1  mitted  to  the  jury  in  a  given  case,  may  be  assailed  upon  a 
motion  for  new  trial  with  all  the  skill  and  ingenuity  that  oppos- 
ing counsel,  who  have  studied  it  for  days  or  even  weeks,  can 
command.  Defects  more  apparent  than  real  are  magnified  to 
such  an  extent  that  even  the  supporting  counsel  and  the  court, 
having  had  no  previous  notice  of  the  grounds  upon  which  error 
would  be  assigned,  are  taken  by  surprise,  and  being  without 
precedents  to  sustain  it,  they  are  ready  to  concede  error  without 
a  contest,  and  the  fruits  of  a  well  earned  verdict,  in  a  meritor- 
ious cause,  are  lost.  Whereas,  if  such  a  book  were  at  hand,  it 
might  be  a  matter  of  but  a  few  moments  to  turn  to  cases  where 

v 


Vi  PREFACE   TO   THE   THIRD   EDITION 

similar  instructions  in  parallel  cases  had  been  approved.  Coun- 
sel could  then  come  prepared  to  cite  authorities  supporting  all 
instructions  asked  and  given,  and  sustaining  the  court  in  re- 
fusing erroneous  instructions.  With  such  a  book,  an  attorney 
could  easily  turn  to  authorities  holding  a  given  instruction 
erroneous  if  such  it  proved  to  be. 

A  book  of  this  kind  should  give  not  only  the  forms  of  instruc- 
tions but  wherever  practicable  the  comment  of  the  court  in  ap- 
proving  or  condemning  them.  With  these  forms  and  comments 
before  him,  a  careful  trial  lawyer  after  preparing  his  instruc- 
tions in  a  case  mi  trial,  could  quickly  compare  them  and  elimi- 
nate all  doubtful  and  questionable  ones  and  thereby  avoid 
error. 

While  in  this  work  many  forms  of  approved  instructions  are 
Bet  forth,  it  does  not  follow  that  every  instruction  is  recom- 
mended as  a  form  or  precedent  to  be  given  to  the  jury.  Many 
are  given  as  precedents  and  contain  valuable  principles  and 
comments  by  the  court,  which  the  skillful  lawyer  can  readily 
adapt  t"  the  facts  in  a  particular  case,  not  only  in  preparing 
lii-  instructions  but  in  support  of  those  which  the  court  may 
have  already  given.  It  will  be  equally  apparent  that  many  of 
these  instructions  held  erroneous  would  have  been  approved  by 
a  Blighl  modification  in  the  manner  pointed  out  by  the  courts 
of  appeal.  These  erroneous  instructions  have  been  set  out  in 
full  with  the  comment  of  the  court  applicable  thereto,  thus  en- 
abling counsel  mere,  readily  to  understand  in  what  respect 
they  were  objectionable.  Much  error  will  be  prevented  by  com- 
paring  instructions  proposed  to  be  given,  no  matter  where  ob- 
tained,  with  those  in  the  third  volume  held  erroneous. 

The  approved  instructions  have  been  grouped  so  far  as  prac- 
ticable under  various  appropriate  chapter  heads,  with  section 
headings.  The  instructions  which  have  been  held  erroneous 
have  been  placed  under  corresponding  chapter  and  section  head- 
.  for  convenience  in  making  comparison.  The  sectional 
contents  at  the  head  of  each  chapter  will  serve  as  a  guide  to  the 
chapter  contents.  The  index  has  been  prepared  with  great  care 
and  it  i.~  believed  will  be  a  guide  to  the  work. 

In  this  connection  it  will  not  bo  out  of  place  to  say  that 
attorneys  Bhould  bear  in  mind  that,  no  instruction  is  proper  to  be 
given  the  jury  unless  there  is  evidence  in  the  case  to  support 


PREFACE   TO  THE   THIRD  EDITION  vii 

it,  no  matter  how  accurately  it  states  well  known  principles 
of  law. 

In  the  preparation  of  this  work  and  in  the  collection  of 
forms  and  citations,  it  would  be  superfluous  for  the  writer  to 
say  that  much  labor  extending  over  a  period  of  many  years, 
has  been  expended.  How  well  he  has  succeeded  in  meeting 
the  requisites  herein  outlined,  must  be  determined  by  the  trial 
lawyer. 

June,  1908.  A.  W.  Brickwood. 


PREFACE  TO  THE  FIRST  EDITION. 


In  offering  this  work  to  the  profession,  it  may  not  be  improp- 
er to  state  the  considerations  which  induced  its  undertaking, 
and  the  objects  sought  to  be  accomplished  by  it.  No  attempt  has 
been  made  to  write  a  formal  treatise  on  the  law  of  instructions, 
or  the  practice  of  instructing  juries;  the  design  has  been  rather 
to  furnish  the  profession  in  those  States  where  instructions 
are  required  to  be  in  writing,  a  work  of  practical  utility,  by 
collecting  together,  in  a  somewhat  connected  form,  the  decisions 
of  the  higher  courts  regarding  the  general  form  and  essential 
requisites  of  written  instructions,  to  be  given  by  the  court  to 
the  jury;  and  also,  by  furnishing  carefully  prepared  general 
instructions  upon  many  of  the  more  common  and  intricate 
questions  likely  to  arise  in  a  general  practice. 

There  is,  perhaps,  no  ether  branch  of  the  practice  in  which 
a  young  practitioni  r  feels  the  need  of  assistance  so  much  as 
in  the  preparation  of  his  instructions,  and  requests  for  instruc- 
tion- to  the  jury.  He  generally  commences  the  practice  of  his 
profession  nol  only  without  experience,  but  without  even  a 
theoretical  knowledge  of  the  subject,  and,  in  the  absence  of 
some  work  of  this  kind,  without  any  means  of  acquiring  such 
knowledge.  If  he  refers  to  his  usual  text-books,  he  will  find 
stated  i he  genera]  principle  of  law  which  he  seeks,  together  with 
an  accounl  of  its  origin,  history,  imitations,  contrary  holdings 
and  the  reasons  upon  which  it  is  based,  with  illustrations  drawn 
from  othi  f  jurisprudence,  while  its  exceptions,  qual- 

ions  and  limitation-  are  treated  of  in  another  chapter;  all 
of  which  may  he  proper  enough  for  a  learner,  but  it  is  of 
little  assistance  in  the  attempl  to  give  a  concise  and  exact 
trient  of  the  whole  of  the  law  upon  the  point  in  question. 

It    not    infrequently  happens  that,    for  greater  certainty,  he 

quotes,  in  his  instructions,  verbatim,  from  an  opinion  given  by 

the  higher  courts  in  n  similar  case,  and  ultimately  finds,  to  his 

surprise,  that  while  the  language  used  by  the  court  was  proper 

h.  taken   in  connection  with  the  facts  in  the  case  under 

viii 


PREFACE   TO   THE   FIRST   EDITION  IX 

consideration,  it  was  not  intended  to  announce  a  principle  of 
universal  application,  and  that,  as  applied  to  his  own  case,  his 
instructions  are  erroneous,  although  stated  "in  the  very  lan- 
guage of  the  Supreme  Court  itself." 

Judging  from  the  number  of  new  trials  granted  and  cases 
reversed,  on  the  ground  of  technical  and  formal  errors  in  the 
instructions  given,  it  would  seem  that  the  case  is  not  much 
better  with  many  of  the  older  members  of  the  profession.  The 
truth  is,  very  few  lawyers  are  able  to  write  an  elaborate  set  of 
instructions  upon  intricate  points  of  law  amidst  the  distractions 
of  a  hotly  contested  trial,  without  committing  formal  errors, 
which  cannot  be  detected  by  the  judge  who  tries  the  case 
in  the  time  usually  allowed  for  that  purpose.  The  general 
rule  of  law  applicable  to  the  case  may  be  recalled  readily 
enough ;  but  its  exceptions  and  qualifications  are  apt  to  be 
overlooked  under  such  circumstances,  and  the  practical  result 
is,  that  more  new  trials  are  granted,  and  more  cases  reversed, 
on  the  ground  of  informality  and  technical  errors  in  the  in- 
structions, than  there  are  for  the  reason  that  either  the  counsel 
or  the  court  really  mistook  the  principle  of  the  law  in  the 
case.  In  view  of  these  facts  it  would  seem  that  a  work  of 
this  kind  is  almost  indispensable  to  the  young  practitioner,  and 
that  to  the  experienced  lawyer  it  may  be  of  some  assistance, 
to  say  the  least. 

While  one  instruction  need  not  embody  all  the  law  of  the 
case,  each  instruction  should,  in  itself,  in  a  clear  and  concise 
manner,  correctly  state  the  principle  of  law  which  it  purports 
to  announce,  with  all  its  necessary  exceptions  and  limitations, 
without  reference  to  the  other  instructions  in  the  case.  In  the 
following  pages  are  contained  over  two  thousand  general  in- 
structions, complying  with  the  above  requisites,  which  cover 
most  of  the  more  difficult  points  which  are  likely  to  arise  in  a 
general  practice.  It  is,  of  course,  impossible  to  anticipate  the 
ever-varying  facts  of  different  cases,  but  it  is  believed  that  but 
few  cases  will  present  themselves,  involving  difficult  proposi- 
tions of  law,  for  which  the  necessary  general  instructions  can 
not  be  found  in  this  work,  or  instructions  embracing  the  prin- 
ciples desired  to  be  enunciated  which  can,  by  very  slight 
verbal  alterations,  be  adapted  to  the  case  in  point,  or  at  least 
serve  as  a  guide   in  drawing  others  adapted  to  the  peculiar 


X  PREFACE    TO    THE   FIRST    EDITION 

facts  of  the  case  on  trial.  With  any  amount  of  aid  from 
others  there  will  always  be  abundant  opportunities  for  the  ex- 
ercise of  learning  and  skill  in  drawing  special  instructions  to 
meet  the  facts  of  each  particular  case. 

Upon  some  subjects  the  local  statutes  and  decisions  of  the 
courts  of  the  several  States  differ  greatly,  and  it  is  manifestly 
impracticable  to  adapt  all  the  instructions  here  given  to  these 
local  laws  and  decisions;  but  as  they  are  mostly  of  a  general 
nature,  each  practitioner,  by  slight  alterations,  can  make  them 
conform  to  the  statutes  and  practice  of  his  own  State.  It 
must  be  constantly  borne  in  mind  that  the  object  of  this  work 
is  not  so  much  to  teach  the  law,  as  it  is  to  assist  in  a  correct 
statement  of  it;  and  it  has  been  assumed  that  each  lawyer 
knows  the  laws  peculiar  to  his  own  State. 

When  an  instruction  embodies  a  familiar  principle  of  law, 
it  has  not  been  deemed  necessary  to  cite  authorities  in  support 
of  it,  but  in  all  other  cases  one  or  more  authorities  are  given. 

It  may  not  be  safe  to  assume  that  no  mistakes  have  been 
made  in  attempting  to  state  so  many  distinct  propositions  of 
law,  and  upon  so  great  a  variety  of  subjects  as  are  contained 
in  the  following  pages;  but  no  pains  or  labor  have  been  spared 
to  avoid  errors,  and  it  is  confidently  believed  that  not  many 
will  be  found. 

F.  Sackett. 

Chicago,  December,  1880. 


PREFACE  TO  THE  SECOND  EDITION 


The  general  favor  with  which  the  first  edition  of  this  work 
has  been  received,  has  induced  the  publishers  to  issue  a  second 
and  revised  edition,  in  which  such  errors  as  have  been  discov- 
ered are  corrected,  and  such  improvements  as  have  suggested 
themselves,  or  been  suggested  by  others,  friends  of  the  work,  are 
made.  It  is  hoped  that  these  improvements  will  render  the  work 
of  still  greater  service  to  the  profession,  and  still  more  deserving 
of  credit. 

An  eminent  jurist  has  said  that  instructions  should  be  few  and 
those  plain  and  simple  as  language  can  make  them.  (Walker,  J., 
in  Springdale  Cem.  Asso.  v.  Smith,  24  111.,  480.)  But  when  we 
consider  that,  as  a  general  rule,  they  are  written  by  lawyers  in 
the  bustle  and  hurry  of  the  trial,  during  the  arguments  of  op- 
posing counsel,  often  when  the  mind  is  tired,  and  without 
previous  study,  it  is  not  surprising  that  many  of  them,  as  found 
in  the  reports,  are  not  plain  and  simple  as  language  can  make 
them. 

In  this  edition,  where  it  has  been  possible  to  do  so  without 
changing  the  legal  effect,  all  unnecessary  and  surplus  words 
have  been  stricken  out,  at  all  times  keeping  in  view  the  object 
of  the  instruction  to  convey  to  the  minds  of  the  jurors  the 
correct  principles  of  the  law  to  be  applied  by  them  to  the  evi- 
dence in  making  up  their  verdict. 

The  form  of  the  instructions  given  have  been  held  to  state 

the  law  correctly  in  the  cases  where  given,  and  may  be  easily 

modified  so  as  to  make  them  applicable  to  other  cases,  bearing 

in  mind  that  an  instruction  is  never  proper  unless  based  upon 

the  evidence  in  the  case. 

Martin  L.  Newell. 
Minonk,  Illinois,  May,  1888. 


XI 


TABLE  OF  CONTENTS 


VOLUME    I. 

PART  I. 

TRIALS   BY  JURY,  NEW  TRIALS,   WRITS  OF  ERROR 
AND  APPEALS. 

CHAPTER  SECTION 

I.   Trials  in  General Bt£i  1-15 

II.  Impaneling  the  Jury 16-37 

III.  Impaneling  the  Jury — Continued 38-56 

IV.  Impaneling  the  Jury — Continued 57-62 

V.  Publicity  of  Trial  and  Proceedings.  ..  63-69 

VI.  Opening  Statements 70-82 

VII.  Powers  and  Duties  of  the  Court  dur- 
ing Trial  83-101 

VIII.  Examination  of  Witnesses  and  Intro- 
duction of  Evidence .. .     102-128 

IX.  Objections  to  Evidence — Cross-Exami- 
nation  —  Impeachment  —  Attor- 
neys, Parties  and  Judges  as  Wit- 
nesses    ... 129-145 

X.  View  and  Inspection  by  the  Jury 146-152 

XI.  Instructions  in  General — Forms  and 
Requisites — Statutory    Provisions 

of  the  Various  States 153-219 

XII.  Argument  of  Counsel  to  the  Jury — 
Time  for  Argument  Limited  by  the 
Court — Freedom  of  Speech — Im- 
proper References  in  Argument.  .     220-246 

XIII.  Motion  to  Direct  a  Verdict 247-263 

XIV.  Unanimous    or    Majority    Verdicts — 

Special  Findings  and  Verdicts  in 

General  ^. 264-280 

XV.  Appeals  and  Writs  of  Error 281-326 

xiii 


XIV 


TABLE  OF  CONTENTS. 


PART  II. 


APPROVED  FORMS  OF  INSTRUCTIONS. 

CHAPTER  SECTION 

XVI.  Credibility  in  General 327-340 

XVII.  Credibility — Swearing  Falsely 341-350 

XVIII.  Preponderance  of  Evidence  and  Burden 

of  Proof   351-362 

XIX.  Testimony  of  Parties 363-372 

XX.  Impeachment  in  General,  General 
Reputation,  Contradictory  State- 
ments     ^. . .  373-380 

XXL  Admissions  as  Affecting  Credibility  . .  381-390 

XXII.  Expert  Testimony  391-397 

XXIII.  Jury — Duties  and  Powers t._ 398-414 

X  XIV.  Account  Stated 415-429 

XXV.  Adverse  Possession 430-461 

XXVI.  Agency  462-494 

XXVII.  Alienation     of     Affection — Criminal 

Conversation — Seduction   495-503 

XXVIII.   Alteration  of  Written  Instruments.  .  504-510 

XXIX.  Architects 511-517 

X  XX.  Assault— Civil 518-534 

X  XXI.  Attachment    535-546 

XXXII.  Attorneys 547-553 

X  X  X I II.  Bailments  and  Warehousemen 554-566 

XXXIV.  Banks  and  Banking 567-576 

XXXV.  Boundaries   ^ 577-589 

X  X  X  V I .   Bri  >kkrs 590-610 

XXXVII.   Contracts    611-682 

X'x  X  V I II.   Contracts— Building   683-691 

XXXIX.    Contracts   of   Marriage,   Breach   of — 

Marriage,  Proof  of 692-705 

XL.   Contracts,  of  Service 706-732 

XLI.   Damages,  .Measure  of 733-839 

g  733-738.     In  General. 
739-743.     Attachment — Garnishment. 
744-764.     <  lontracts  and  Sales. 
765-7<;7.     Contracts  of  Marriage — Breach  of. 
768-772.     Conversion. 


TABLE  OF  CONTENTS.  XV 

CHAPTER  SECTION 

§773-777.  Criminal  Conversation — Seduction. 

778-781.  Intoxicating  Liquors. 

782-785.  Live  Stock — Injuries  to. 

786-789.  Malicious  Prosecution — False  Imprison- 
ment. 

792-794.  Nuisances. 

795-801.  Personal    Property    Generally — Injuries 
to. 

802-806.  Eeal  Estate  Generally — Injuries  to. 

807-809.  Eeversionary  Interest — Sheriffs. 

810-820.  Slander  and  Libel. 

821-826.  Trespass. 

827.  Vicious  Animals. 

828-839.  Miscellaneous. 

XLII.  Damages,    Measure    of — Eminent    Do- 
main      840-881 

XLIIL  Damages,    Measure    of — Personal    In- 
jury       882-969 

§  963-969.     Civil  Assault. 

XLIV.  Damages,    Measure    of  —  Negligence 

Causing  Death 970-991 

XLV.  Deeds    992-1000 

XLVI.  Divorce    1001-1012 

§  1001-1005.     Desertion. 
1006-1009.     Cruelty. 

1010-1012.     Drunkenness  —  Adultery  —  Condona- 
tion. 

XLVII.   Domestic  Relations   1013-1027 

§  1013-1016.     Husband  and  Wife. 
1017-1021.     Parent  and  Child. 
1022-1027.     Married  Women. 

XLVIII.  Domicil  and  Residence 1028-1033 

XLIX.   Ejectment    1034-1045 

L.  Forcible  Entry  and  Detainer 1046-1053 

LI.  Fraud  against  Creditors 1054-1094 

LII.  Fraud,  False  Representations,  etc.  . .  .1095-1135 

LIII.  Highways 1136-1154 

LIV.  Insurance: — Fire    1155-1186 

L V.  Insurance — Life    1187-1216 

§  1206-1216.     Fraternal  and  Benefit  Societies. 

LVI.  Intoxicating  Liquors — Civil 1217-1226 

LVII.  Landlord  and  Tenant ^ 1227-1247 

LVIII.  Limitations — Statute  of 1248-1258 


xvi  TABLE  OF  CONTENTS. 

CHAPTER  SECTION 

LIX.  Malicious  Prosecution 1259-1288 

§  1285-1288.     False  Imprisonment. 

LX.  Malpractice 1289-1303 

LXI.   Mortgages  and  Liens 1304-1335 

§  1304-1323.     Mortgages. 
1324-1335.     Liens. 


VOLUME   II. 

LXII.   Negligence— In  General 1336-1369 

LXIII.  Negligence — Master  and  Servant 1370-1494 

§  1370-1375.  Liability  of  Master  for  Acts  of  Serv- 
ant. 

1376-1389.  Liability  of  Master  to  Servants  in 
General. 

1390-1405.     Eeasonably  Safe  Place  for  Work. 

1406-1427.     Safe  and  Suitable  Appliances. 

1428-1443.     Fellow    Servants. 

1444-1471.     Assumption   of  Eisk 

1472-1488.     Contributory  Negligence. 

1493.  Insurance. 

1494.  Eeleases. 

LXIV.  Negligence  —  Master    and    Servant — 

Railway  Companies 1495-1608 

§  1495-1496.  In  General. 

1497-1499.  Appliances. 

1500-1515.  Eolling  Stock. 

1516-1528.  Track  and  Eoad-Bed. 

1529-1547.  Operation  and  Management  of  Trains 

and  Cars. 

1548-1553.  Eules  and  Eegulationst 

1554-1560.  Fellow  Servants. 

1561-1583.  Assumption  of  Eisk. 

1584-1608.  Contributory  Negligence. 

LXV.  Negligence — Municipal  Corporations.  .1609-1677 

LXVI.   Negligence— Public  Highways 1678-1689 

LXVII.  Negligence   -Common  Carriers 1690-1746 

§  1690  L691.  Who  is  a  Common  Carrier. 

L692-1695.  Delivery  to  the  Carrier. 

1696  1699.  Bill  of  Lading. 

1700-1705.  Connecting  Carriers. 


TABLE  OF  CONTENTS.  XVll 

CHAPTER  SECTION 

§1710-1721.     Limitation  of  Carrier's  Liability  by 
Contract. 
1722-1738.     As  to  Transportation  of  Goods. 
1739-1745.     Delivery  by  Carriers. 
1746.     Eights  of  the  Carrier. 

LXVIII.  Negligence  —  Railroads  —  Passenger 

Carriers 1747-1842 

§  1747-1751.  In  General. 

1752-1753.  Trespassers  and  Persons  not  Passen- 
gers. 

1754-1756.  The  Passenger  Eelation. 

1757-1758.  Station  Facilities. 

1759-1761.  Roadbed  and  Track. 

1762-1767.  Cars  and  Appliances. 

1768-1769.  Servants. 

1770-1798.  Management  and   Operation   of  Cars 
and    Vehicles. 

1799.  Protection  of  Passenger  by  Carrier. 

1800-1818.  Contributory  Negligence. 

1819-1821.  Bules  and  Eegulations  of  Carrier. 

1822-1825.  Tickets. 

1826.  Limitation  of  Liability. 

1827-1831.  Ejection  of  Passengers. 

1832-1836.  Baggage. 

1837-1838.  Sleeping  Oar  Companies. 

1839-1841.  Burden  of  Proof. 

1842.  Elevators. 

LXIX.  Negligence — Railroads 1843-2011 

§  1843-1845.  Machinery  and  Appliances. 

1846-1847.  Track  and  Boad  Bed. 

1848-1855.  Operation  and  Management  of  Trains. 

1856-1859.  Trespassers. 

1860-1861.  Licensees. 

1862-1938.  Injuries  at  Highway  Crossings. 

1939-1942.  Duty  of  Shippers  and  Consignees. 

1943-1944.  Rules   and   Regulations. 

1945-1961.  Contributory   Negligence.      (See    also 

Injuries  at  Highway  Crossings.) 

1962-1969.  Fencing  Track — Live  Stock. 

1970.  Fencing  Track — Children. 

1971-1987.  Actions  for  Killing  Live  Stock. 

1988-2004.  Injuries  by  Fire. 

2005.  Obstructing  Highways. 

2006.  Dedication  of  Lands. 
2007-2011.  Switches  and  Farm  Crossings. 


CHAPTER 

LXX. 


xviii  TABLE  OF  CONTENTS. 

SECTION 

Negligence — Street  Railroads 2012-2113 

§  2012-2019.     In  General. 
2020-2076.     Liability  for  Negligence  as  Carriers 

of  Passengers. 
2077-2113.     Liability  for  Injuries  to  Persons  other 

than  Passengers  or  Employes. 

LXXI.  Negligence — Telegraph  Companies.  ...2114-2123 

LXXII.  Negligence— Miscellaneous  2124-2133 

LXXIII.   Negotiable  Instruments 2134-2193 

§  2183-2193.     Guarantors  and  Sureties. 

LXXIV.  Nuisances 2194-2198 

LXXV.  Partnership 2199-2216 

LXXVI.  Real  Estate— Miscellaneous 2217-2234 

LXXVII.  Replevin 2235-2245 

LXXVIIL  Sales 2246-2278 

§  2270-2278.     Warranty. 

LXXIX.  Slander  and  Libel 2279-2297 

LXXX.  Trespass 2298-2325 

§  2298-2302.     To  Personal  Property. 
2303-2319.     To  Eeal  Estate. 
2320-2325.     By  Animals. 

LXXXI.  Trover 2326-2345 

LXXXII.  Vicious  Animals 2346-2350 

LXXXIII.  Watercourses  2351-2363 

LXXXIV.  Wills    2364-2416 

§2364-2366.     Nature  of  Wills  and  General  Requi- 
sites for  Exercising  Testamentary 
Power. 
2367-2392.     Capacity  to  Make  Wills. 
2393-2416.     Undue  Influence. 

LXXXV.  Miscellaneous — Civil   2417-2433 


PART  III. 

FORMS  OF  INSTRUCTIONS— CRIMINAL. 
LXXXVT.    Criminal — In  General 2434-2464 

§  2434-2445.  Alibi. 

2446-2448.  Identity  of  Accused. 

2449-2455.  Arrest. 

2456-2464.  Attempt  to  Escape— Flight. 


TABLE  OF  CONTENTS.  Xlx 

CHAPTER  SECTION 

LXXXVIL   Criminal 2465^2512 

§  2465-2475.     Burden  of  Proof. 
2476-2490.     Character  Evidence. 
2491-2512.     Circumstantial  Evidence. 

LXXXVIII.   Criminal— Confessions     l#. 2513-2568 

§  2533-2565.     Defendant 's  Testimony — Eule  in  Va- 
rious States. 
2566-2568.     Indictment. 

LXXXIX.    Criminal— Insanity    ..2569-2633 

§  2606-2619.     Intoxication. 
2620-2625.     Jury  Judges  of  Law  and  Fact  in  Some 

States. 
2626-2633.     Malice. 

XC.   Criminal — Presumption   op   Innocence 

—Reasonable  Doubt 2634-2722 

XCI.   Criminal — Principals  and  Accessories 

—Miscellaneous    2723-2781 

XCII.  Criminal  —  Abduction  —  Abortion  — 
—  Adultery  —  Bastardy  —  Big- 
amy— Disorderly   House — Incest — 

Rape— Seduction   2782-2837 

XCIII.   Criminal— Assault  and  Battery 2838-2871 

XCI V.  Criminal— Burglary— Robbery   2872-2902 

XCV.  Criminal— Conspiracy    2903-2920 

XCVI.   Criminal  —   Embezzlement   —   False 

Pretenses   2921-2952 

XCVII.   Criminal— Homicide   2953-3046 

XCVIII.  Criminal — Homicide — Elements  of 3047-3100 

§  3047-3058.  Intent. 

3059-3066.  Malice. 

3067-3075.  Deadly  Weapon. 

3076-3079.  Motive. 

3080-3085.  Premeditation. 

3086-3096.  Provocation. 

3097-3100.  Dying  Declarations. 

XCIX.   Criminal — Homicide  —  Self-Defense  .  .3101-3183 

C.   Criminal. — Intoxicating   Liquor 3184-3209 

CI.  Criminal — Larceny 3210-3255 

CH.  Criminal— Perjury    3256-3267 

CHI.  Criminal  —  Arson  —  Bribery  —  Con- 
cealed Weapons — Game  and  Gamb- 
ling— Malicious  Mischief — Miscel- 
laneous Prosecutions 3268-3299 


xx  TABLE  OF  CONTENTS. 

VOLUME   III. 
PART  IV. 

ERRONEOUS  INSTRUCTIONS 

CHAPTER 


SECTION 

CIV.   Credibility  in  General.  . . . . 3300-3322 

CV.  Credibility — Swearing   Falsely 3323-3331 

CV1.  Preponderance  of  Evidence  and  Bur- 
den op  Proof 3332-3348 

CVII.  Testimony  of  Parties 3349-3352 

CVII1.  Impeachment  in  General — General 
Reputation — 'Contradictory  State- 
ments   . 3353-3360 

CIX.  Admissions  Affecting  Credibility 3361-3371 

CX.   Experv  Testimony 3372-3379 

CXI.  Jury — Duties  and  Powers 3380-3397 

CXII.  Account  Stated 3398-3402 

CXIII.  Adverse  Possession 3403-3410 

CXIV.  Agency  3411-3426 

CXV.  Alienation     of     Affection — Criminal 

Conversation — Seduction    3427-3432 

CXVT.  Alteration  of  Written  Instruments.  .3433-3434 

CXVII.  Architects   3435-3437 

CXVIII.  Assault— Civil 3438-3443 

CXIX.  Attachment   3444-3449 

CXX.  Attorneys   3450-3453 

CXXI.  Banks  and  Banking 3454-3458 

CXXII.  Boundaries  3459-3462 

CXXIII.  Brokers    3463-3475 

CXXIV.  Contracts    ,  .  .3476-3489 

CXXV.  Contracts— Building   3490-3494 

CXXVI.   Contracts   of  Marriage,   Breach   of — 

Marrriage,  Proof  of 3495-3496 

CXXVII.  Contracts  of  Service 3497-3501 

CXXVIIL  Damages— Measure  of 3502-3542 

§  3502.  Alienation  of  Affection. 

3503-3504.     Attachment — Sequestration. 
3505-3519.     Contracts  and  Sales. 


TABLE  OF  CONTENTS.  XXI 

CHAPTER  SECTION 

§  3520-3521.  Conversion. 

3522-3524.  Fraud — Deceit — Misrepresentation. 

3525.  Injunctions. 

3526-3527.  Insurance. 

3528-3530.  Intoxicating  Liquors. 

3531-3532.  Malicious  Prosecution — False  Impris- 
onment. 

3533-3537.  Injuries  to  Property. 

3538.  Sheriffs. 

3539-3540.  Slander  and  Libel. 

3541-3542.  Trespass: 

CXXIX.  Damages,    Measure    of — Eminent    Do- 
main    3543-3566 

CXXX.  Damages — Measure    of — Personal    In- 

jury   3567-3608 

CXXXI.  Damages,     Measure     of  —  Negligence 

Causing  Death 3609-3618 

CXXXII.  Deeds   3619-3621 

CXXXIIL  Divorce 3622-3624 

CXXXIV.  Domestic  Relations 3625-3628 

CXXXV.  Fraud  Against  Creditors 3629-3636 

CXXXVI.  Fraud,  False  Representations,  etc  ....  3637-3658 

CXXXVII.  Insurance— Fire    3659-3671 

CXXXVIII.  Insurance— Life    3672-3684 

CXXXIX.  Intoxicating  Liquors— Civil 3685-3691 

CXL.  Landlord  and  Tenant 3692-3704 

CXLI.  Limitations — Statute  of 3705-3708 

CXLII.  Malicious   Prosecution 3709-3720 

CXLIII.  Malpractice    3721-3726 

CXLIV.  Mortgages  and  Liens 3727-3736 

CXLV.  Negligence — In  General 3737-3754 

CXL VI.  Negligence — Master  and  Servant 3755-3838 

§  3755-3757.  Liability  of  Master  for  Servants. 

3758-3768.  Liability   of   Master   to    Servant— In 

General. 

3769-37S3.  Seasonably  Safe  Place  for  Work. 

3784-379S.  Safe  and  Suitable  Appliances. 

3799-3812.  Fellow  Servants. 

3813-3828.  Assumption  of  Risk. 

3829-3S36.  Contributory  Negligence. 

3837.  Comparative  Negligence. 

3838.  Releases. 


CXli  TABLE  OF  CONTENTS. 

CHAPTER  SECTION 

CXLVII.   Negligence — Master     and     'Servant — 

Railway  Companies 3839-3914 

§  3839-3842.  In  General. 

3843-3844.  Appliances. 

3845-3850.  Soiling  Stock. 

3851-3856.  Track  and  Eoad  Bed. 

3857-3868.  Operation  and  Management  of  Trains 

and  Cars. 

3869-3874.  Eules  and  Eegulations. 

3875-3880.  Fellow  Servants. 

3881-3900.  Assumption   of  Eisk. 

3901-3914.  Contributory  Negligence. 

CXLVIII.  Negligence — Municipal   Corporations.. 3915-3948 

CXLTX.  Negligence — Public  Highways 3949-3955 

CL.  Negligence — Common  Carriers 3956-3964 

CLI.  Negligence  —  Railroads  —  Passenger 

Carriers  3965-4009 

§  3965-3970.     In  General. 
3971-3972.     Trespassers  and  Persons  not  Passen- 
gers. 
3973-3975.     The  Passenger  Eelation. 
3976-3977.     Stational  Facilities. 
3978-3979.     Cars  and  Appliances. 
3980-3990.     Management   and  Operation   of   Cars 

and  Vehicles. 
3991-3997.     Contributory  Negligence. 

3998.     Tickets. 
3999-4002.     Ejection  of  Passengers. 
4003-4006.     Sleeping  Car  Companies. 
4007-4008.     Burden  of  Proof. 
4009.     Elevators. 
CLII.   Negligence — Railroads 4010-4116 

§  4010-4016.     Operation  and  Management  of  Trains. 
4017-4021.     Trespassers. 
4022-4023.     Licensees. 

4024-4065.     Injuries  at  Highway  Crossings. 
4066-4080.     Contributory   Negligence.      (See   also 

Injuries  at  Highway  Crossings.) 
4081-4086.     Fencing  Track. 
4087-4095.     Actions  for  Killing  Live  Stock — Care 

Due  in  Operation  of  Trains. 
4096-4113.     Injuries  by  Fire. 
4114-4116.     Switches  and  Farm  Crossings. 

CLIII.  Negligence — Street  Railroads 4117-4182 

§4117-4120.     In  General. 


TABLE  OF  CONTENTS.  xxili 

CHAPTER  SECTION 

§  4121-4156.     Liability  for   Negligence  as  to   Car- 
riers of  Passengers. 
4157-4182.     Liability  for  Injuries  to  Persons  other 
than  Passengers  or  Employes. 

CLIY.  Negligence — Telegraph  Companies 4183-4186 

CLV.  Negligence — Miscellaneous 4187-4192 

CLVI.  Negotiable  Instruments 4193-4220 

CLVII.  Partnership  4221-4230 

CLVIII.  Real  Estate— Miscellaneous 4231-4236 

CLIX.  Replevin    .._ 4237-4245 

CLX.  Sales 4246-4256 

CLXI  Slander  and  Libel 4257-4269 

CLXII.  Trespass  4270-4276 

CLXIII.  Vicious  Animals 4277-4278 

CLXIV.  Water  Courses 4279-4284 

CLXV.  Wills 4285-4310 

§  4285-4288.     Nature  of  Wills  and  G-eneral  Eequi- 
sites  for  Exercising  Testamentary 
Power. 
4289-4300.     Capacity  to  Make  Wills— Insanity. 
4301-4309.     Undue  Influence. 
4310.     Spoliation  of  Willa. 

CLXVI.  Miscellaneous— Civil  4311-4315 


PART  V. 

ERRONEOUS  INSTRUCTIONS— CRIMINAL 

CLXYII.   Criminal — In  General.     Alibi — Arrest 

— Attempt  to  Escape: — Flight.  . .  .4316-4328 

§  4316-4322.     Alibi. 
4323-4325.     Arrest. 
4326-4328.     Attempt  to  Escape— Flight. 

CLXVIIL  Criminal — Burden  of  Proof — Charac- 
ter Evidence — Circumstantial  Evi- 
dence    4329-4361 

§  4329-4333.     Burden  of  Proof. 
4334-4348.     Character  Evidence. 
4349-4361.     Circumstantial  Evidence. 


xxiv  TABLE  OF  CONTENTS. 

CHAPTER  SECTION 

CLXIX.   Criminal  —   Confessions   —   Defend- 
ant's Testimony — Indictment 4362-4393 

§  4362-4375.     Confessions. 
4376-4391.     Defendant's  Testimony — Eule  in  Va- 
rious States. 
4392-4393.     Indictment. 

CLXX.   Criminal — Insanity — Intoxication  ....  4394-4419 

§  4394-4409.     Insanity. 
4410-4419.     Intoxication. 

CLXXI.   Criminal — Presumption   of   Innocence 

— Reasonable  Doubt 4420-4473 

§  4420-4429.     Presumption  of  Innocence. 
4430-4473.     Seasonable  Doubt. 

CLXXII.   Criminal — Principal  and  Accessories — 

Miscellaneous  4474-4504 

CLXXIII.  Criminal  —  Abduction  —  Abortion  — 
Adultery  —  Bastardy  —  Bigamy — 
Disorderly  House — Incest — Rape — 

Seduction    4505-4536 

CLXXIV.   Criminal — Assault  and  Battery 4537-4559 

CLXXV.  Criminal — Burglary — Robbery   4560-4577 

CLXXVT.  Criminal — Conspiracy    4578-4590 

CLXXVII.  Criminal  —  Embezzlement — False  Pre- 
tenses— Forgery 4591-4606 

CLXXVIII.  Homicide   4607-4659 

CLXXIX.   Criminal — Homicide,  Elements  of 4660-4690 

§  4660-4663.  Intent. 

4663-4666.  Malice, 

4667-4668.  Deadly  Weapon. 

4669-4671.  Motive. 

4672-4676.  Premeditation. 

4677-4685.  Provocation. 

4686-4690.  Dying  Declarations. 

CLXXX.  Criminal — Homicide^Self  Defense.  .  .4691-4766 

CLXXXI.  Criminal — Intoxicating  Liquors 4767-4776 

CLXXXII.   Criminal, — Larceny    4777-4792 

CL XXXI II.  Criminal— Perjury 4793-4795 

CLXXX IV.  Criminal  —  Arson  —  Bribery  —  Con- 
cealed Weapons — Game  and  Gam- 
bling— Physicians  and  Surgeons — 
Trespass — Miscellaneous  Prosecu- 
tions   4796-4819 


ABBREVIATIONS. 


Am.  Cr.  Rep American  Criminal  Reports. 

aff'd Affirmed. 

aff'g Affirming. 

Com Commonwealth. 

e Erroneous. 

Ins Insurance. 

p Page. 

R.  or  R.R Railroad. 

Ry Railway. 

rev'd Reversed. 

rev'g Reversing. 

unof. Unofficial. 


xxv 


TABLE   OF   CASES   CITED 


[references  are  to  sections.] 


Aarnes   v.    Windham,    691. 

Abbey  v.   Dego,   1024. 

Abbitt  v.   L.   E.   &  W.   R.   Co,  4544. 

V.  St.   L.   T.,   2020,   2040. 
Abbott    v.   Abbott,   2220. 

v.  Commonwealth,   2569,   257S. 

V.  Kimball,   524. 

v.  Mobile,   3929,  4775. 

v.  Rose,    508. 

v.  Stiff,   1323. 
Abingdon  v.   McGrew,   3940. 
Abercrombie   v.    Windham,   3542. 
Abel   v.    State,    3288. 
Abend   v.    T.    H.    &   I.    R.    R.,    4052, 

4066. 
Abeel   v.    McDonnell,   1228,    3692. 
Abel  v.  Downey,  1279. 
Abernethy  v.  Van  Buren  Tp.,  1685. 
Abilene   C.   O.    Co.   v.   Briscoe,  167S, 

3949. 
Abram  v.   State,  4712. 
Abrams  v.   State,  2777. 
Acers  v.   United   States,   3067. 
Ackerson   v.    Dennison,   1376. 

v.  People,   2443. 
Acklen    v.    Hickman,    352. 
Acton  v.   Coffman,   1279. 
Adair  v.    Mette,   4514. 
Adam  v.  Olive,  58. 
Adams  v.  Adams,  728,  731. 

v.  Eddy,    357,    2374. 

v.  Elseffer,    498. 

v.  Goddard,    2218. 

V.  Long-,    4230. 

v.  Michael,    792. 

v.  Mo.   K.    &  T.   Ry.   of  Texas, 
946. 

v.  People,  47    111.    376,    190,    3126, 
3133. 

v.  People,  109   111.   444,  4425. 

v.  People,  179  111.   633,  2808. 

v.  Reeves,    294. 

V.  Smith,   201,   210,   3309. 

v.  State,  Ala.,  2707,  2720. 

v.  State,  28  Fla.  511,  2444,  3070. 

v.  State,    34    Fla.    185,   2652,    4317, 
4322,   4446,   4487,  4630. 

v.  State,  Ind.,  4558. 

v.  State,  Ohio,  3034. 

v.  State,  Tex.   App.,  4. 

v.  State,  Tex.   Cr.  App.,  2634. 

v.   Town  of  Chicopee,  3932. 

V.  Waggoner,  526,  3438. 


Adams  Express  v.  Aldridge,   339. 

v.  Haynes    Co.,    1715. 
Addis   v.   State,  2760. 
Addison  v.   People,   2816-4338. 

v.  State,  378. 
Adler  v.   State,   3195. 
Aetna  Ins.   v.   Meyers,   1165. 

v.  N.  W.   I.   Co.,  486. 

v.  Resh.,   1171. 

v.  Wheeler,    1705. 
Aetna  Life  Ins.   Co.   v.   Ward.  395, 

1199. 
A.     F.     Shapleigh     Hdwe.     Co.     v. 

Hamilton,    1132,    3630. 
Agnew   v.    United   States,    573,   2925. 
Ainsfield  Co.  v.  Rasmussen,   360. 
Ala.   C.    C.   &  C.   Co.   v.   Pitts,   3590, 

3835. 
Ala.  Gr.   So.  R.  v.  Boyd,  1981. 

v.  Burgess,  4775. 

v.  Davis,   3900. 

v.  Fraziers,    345,    742,    3585. 

v.  Hall,    985. 

v.  Hill,    90   Ala.    71,   151. 

v.  Hill,    93    Ala.    514,    743,    3372, 
4097. 

V.  Sellers,  3585. 

v.  Siniard,  903,  1773. 
Ala.   Mid.   Ry.   v.   Guilford,  3745. 
Ala.  Min.  R.  v.  Jones,  332,  985,  3614. 

v.  Marcus,  3835. 
Ala.  &  Tenn.  Rd.  Co,  v.  Kidd,  1741. 
Ala.   &  V.  Ry.*  Co.   v.   Hayne,   3956. 

v.  Odeneal,    2008. 
Ala.  &  W.   P.  R.  R.  v.  Smith,  4154. 
Alabaster  Co.    v.    Lonergan,   3776. 
Albers  V.   San  A.   R.  R.  Co.,  48. 
Alberts  v.   Vernon,   1636. 
Albin  v.  State,  2571,  4321,   4322. 
Albrecht  v.  Walker,  49,  3528. 
Albrittian   v.    Huntsville,    1630. 
Albritton  v.  State,  Ala.  2441,  4317. 

v.  State,   Fla.   4477. 
Aldenhoven  v.   State,  3286,  4809. 
Alderman   v.   People,   2903,    2911. 
Alderson    v.    Commonwealth,    2694, 

2985. 
Alderton   v.   Williams,   754. 
Adone  v.    Spencer,   1085. 
Aldous    v.    Olverson,    1058,    1086. 
Aldrich  v.    People,   4791. 
Alexander   v.    Alexander,    307,    3620. 

v.  Central  L.   &  M.  Co.,  1412. 


XXV11 


XXV111 


TABLE  OP  CASES  CITED. 


[REFERENCES  are  to  sections.] 


Alexander  v.  Hutchison,  741. 

v.  Irwin,    317. 

v.  People,  96  111.   96,  4331,  4755. 

v.  People,    134    111.    438,    4740. 

v.  State,    Ga.    4389. 

v.  State,  27  Tex.  App.   533,  4S05. 

v.  State,    40   Tex.    Cr.   App.    395, 
4712. 
Alexandria  V.  Painter,  275. 
Alfred  v.  Bray,  2735. 
Alt't  v.  Clintonville,  336. 
Alger  v.   Lowell,  1356. 
Allemania  F.  Ins.  Co.  v.  Peck,  1183. 
Allen  v.   Ames  College,  84. 

v.  Carr,    1063. 

v.  Cod  man,    1263. 

V.  Frost,     3409. 

v.  Hall,    3496. 

v.  Hari,    1009. 

v.  Kirk,    4362. 

v.  Lizer,    269. 

v.  McLendon,    288. 

v.  Murray,    3324,    3325. 

v.  Richmond    College,    3424. 

v.  Smith,  1066. 

v.  St.  L.  T.,  315,  2057,  4123,  4141. 

v.  State,  40  Ala.  334,  4562. 

v.  State,  87  Ala.  107,  4378. 

V.  State,  Ark.  2642,  3097. 

v.  State,  Miss.,  90. 

v.  State,  Tenn.,  2913. 

v.  State,  24  Tex.  App.  224,  4719. 

v.  State,  Tex.  Cr.  App.  66  S.  W. 
671,  4607,  4762. 

v.  Stingel,  107::. 

v.  Tobias.  1046. 

v.  U.  S.,  157  U.  S.  675,  3033,  4719. 

V.  U.  S.,  164  U.  S.  492,  2458,  2563, 
3024,  3048,  3050,  3051. 

v.  Woodson,   93. 
Allan-West    C.    Co.    v.    Hudgins    & 

Bros.,    352,    356. 
Allend  v.   Spokane  Falls  &  N.  Ry., 

1376. 
Allgeyer   v.    Rutherford,    763. 
Allison  v.  Jack,  1097,  3640. 

v.  Chi.  &  X.  W.  Ry.,  188. 

v.  So.    R.   R.,  1479,  1559. 
Allmendinger  v.  McHie,  3983. 
Alloway  v.  Nashville,  860. 
Alltrecht  v.  Gies,  427. 
Allyn    v.    R.    R.,    1902. 
Almon  v.  Nugent,  1290,  3721. 
Alt  v.  Graff,  3474. 
Altgelt  v.  1204. 

A  It  man  &  T.    Co.    V.    Webber,   477. 
Alton    v.    Dooley,   277. 

v.  Hope,   1616. 
;    L.   &  T.   v.  (  Uler,  356,  2025. 
Alvarez  v.   State,   I'l  ...  4329. 

v.    State,    Tex.    Cr.    App.,    2S54, 

Ambiv    v.    Weishaar,   2365 

v.  Raley,  4 r.4 . 
Ambrosiua    v.    O'Farrell,   4265. 


Amer.  Bible  Soc.  v.  Price,  195,  2384, 

4294. 
Amer.   B.  W.  v.  Pereira,  57. 
Amer.  Cent.  Ins.  Co.  v.  Rothschild, 

178. 
Amer.    Emigrant   Co.   v.    Long,   293. 
Amer.     Express     Co.     v.     Jennings, 
1725,  3511. 

v.  Risley,  4062. 

v.  Smith,  1728. 

v.  Spellman,  146. 
Amer.    Furniture    Co.    v.    Town    of 

Batesville,    3565. 
Amer.  Harrow   Co.   v.   Dolvin,  4197. 
Amer.    Ins.    Co.    v.    Butler,   251,   631. 

v.  Capps,  1105. 

V.  Craford,  3866. 

v.  Gallatin,    1174. 

v.  Neiberger,    3667. 
Amer.    L.    Ins.    Co.    v.    Isett,    1207. 
Amer.   M.   Co.   v.  Lelivelt,  237. 
Amer.    Merchants'    U.    Ex.    Co.    v. 
Milk,  1743. 

V.  Wolf,  1743. 
Amer.    Oak    Extract    Co.    v.    Ryan, 

2255. 
Amer.  S.  Co.  v.  Chi.   &    A.     R.     R., 
3768,    4099. 

v.  U.  S.,  216. 
Ames   v.    Blades,   2382. 

v.  Snider,  1259,  1261. 

v.  Transit   Co.,    1936. 

v.  Williams,    326. 
Amherst  Academy  v.    Cowls,   681. 
Amidown    v.    Osgood,    2211. 
Amis   v.    Cameron,    3340. 
Amos  v.  State,  83  Ala.  1,  4475,  4590. 

v.  State,   123   Ala.    50,   2637,   4351, 
4356,    4370,   4423,   4436,   4468. 
Amperse  v.   Flickenstein,  240,  243. 
Anacosta  T.  of  Redmen  v.  Murbach, 

1215. 
Anchor  Line  v.   Dater,  1715. 
Ancient   O.   U.  W.  v.   Cressey,   3681. 
Anderson     v.     Citizens',     etc.,     Ry. 
Co.,    4121. 

v.  Commonwealth,    2502. 

v.  Frind,   1279. 

v.  Hulet,    279. 

v.  Kramer,    309. 

v.  McCormick,    3700. 

v.  McDonald,   751. 

v.  Moberly,    326. 

v.  Oregon  R.   Co.,  1995,  4099. 

v.  Patterson,    1322. 

v.  Pennie,   1. 

v.  Roberts,    3493. 

v.  St.  Cloud,  1663. 

v.  Stager,   295. 

v.  State,  45  Ga.  11,  2573. 

v.  State,  117  Ga.  255,  3099. 

v.  State,  104  Ind.  472,  243,  335, 
467,  2456.  2540,  2548,  2624,  2644, 
2655,  2807,  2809,  4166. 

v.  State,    147  Ind.   451,   2154. 


TABLE  OF  CASES  CITED. 


XXIX 


[EEFERENCES   ABE   TO    SECTIONS.] 


Anderson  v.  State,   Miss.,  4521. 
v.  State,    Ohio,    3192,    3195. 
v.  State,    Tex.,   180. 
v.  State,    Wis.,  4443,   4444. 
v.  Walter,  173,   177. 
v.  Wilmington,    1627. 
Anderson   Tr.    Co.    v.    Fullen,   107. 
Andrews  v.  Boidecker,  980. 
v.  Matshall,   4204. 
v.  Tucker,  655,  34S0. 
Andryczka  v.   Towarzstwo,   1178. 
Angel   v.    Hanna,    720. 
Angell  v.  Hornbeck,  3553. 
Angle   v.    N.   W.   Mutual   Life  Ins. 

Co.,  508. 
Angley  v.    State,   2913. 
Anglo-Am.    Packing    Co.    v.    Baier, 

88. 
Angus  v.   Lee,   1393. 
Anniston     City    Land    Co.    v.     Ed- 

mondson,   450,   1037,   1044. 
Anniston     Lime     &     Coal     Co.     v. 

Lewis,   3513. 
Anson  v.  Dwight,  36. 
Anstill  v.  Heironymus,  3735. 
Antcliff  v.  June,  1263. 
Anthony  v.   Day,   419. 
Anthony  Ittner  Brick  Co.   v.   Ash- 
by,  3819. 
Antle  v.   Sexton,  1100. 
Appeal    of    Kimberly,    4294. 
Applebee  v.  Perry,  1184. 
Appleton  v.   Donaldson,   3659. 

v.  People,  4331. 
Archer  v.  Board  of  Levee  Insp.,  14. 
v.  Sinclair,   157,   3116. 
v.  State,   64   Ind.   56,   3047. 
v.  State,    106    Ind.    426,    2905. 
Ar.chey  v.    Knight,    1048. 

v.  State,    2626,    2987,    3034. 
Argabright    v.    State,    49    Neb.    760, 
352,    3306,    3331. 
V.  State,   62  Neb.  402,  3110. 
Argo  v.   Coffin,   2371. 

v.  People,   103. 
Argotsinger    v.    Vines,    3560. 
Arkadelphia    Lumber    Co.    v.    As- 
man,  2421. 
v.  Posey,    1493. 
Arkansas    &    La.    Ry.    v.    Stroude, 

35S6. 
Arkansas    Ry.   v.    Powell,   295. 
Arkley  v.   Union   Sugar  Co.,  1245. 
Armour  v.  Brazeau,  1478,  2132,  3789. 
Armstrong  v.   Commonwealth,  2913. 
v.  Hagerstown,   299. 
v.  High,  299. 
V.  Karshner,    681. 
v.  Mock,    303. 
v.  M.   N.   Bank,  677. 
v.  Pierson,    8   Clarke    (Iowa)    29, 

814. 
v.  Pierson,  15  la.  476,  277. 
Armstead   v.   State,  Tex.   Cr.   App., 
4474. 


Armstead  v.  State,  22  Tex.  App.  51, 

1283. 
Arndt  v.   Hosford,   395. 
Arneson  v.   Spawn,   3460. 
Arnold   v.   Burgdorf,   4225. 
v.  Chamberlain,    316. 
v.  Coleman,  4244. 
v.  Crowder,    1241. 
v.  Jewett,   4258. 
v.  Kilchmann,    277. 
v.  Producers'    Fruit   Co.,   796. 
v.  Pucher,  3349. 
Arthbutnot   v.   State,   3298. 
Artz  v.  Chi.,  R.  I.  &  P.  R.  R.,  1877, 

4090,  4143,   4151. 
Asbury   v.    Ry.    Company,    4470. 
Ash  v.  Marlow,  1279. 
Ashbach  v.   R.   R.  Co.,  3861. 
Ashbaugh  v.   Ashbaugh,    1030. 
Ashby  v.  Elsberry  &  N.  H.  G    R 

8S3,   949,   3739. 
Ashford    v.    State,    4560. 
Ashland    Lime,    Salt    and    Cement 

Co.  v.  Shores,  3479. 
Ashley  v.    Fort   Huron,   1654. 

v.  State,    4307. 
Association  v.    Brockman,   3672. 
Aston  v.  Newton,  3918. 
Astor  v.  Wells,  475. 
Aszman    v.    State,    2571,    2619,    3174, 

4392. 
Atchinson  v.   Pease,   3462. 
Atchison  v.   Mahood,  3918. 
Atchison,  Topeka  &  S.  F.  R.  R.  v. 
Chance,  3580. 
v.  Click,    3598. 
v.  Elder,    4084. 
v.  Feehan,  3303,  4036,  4080. 
v.  Hague,  4090. 
v.  Henry,    3885. 
v.  Lloyd,    3786. 
v.  Parry,    1427. 
v.  Thul,    126,   3372. 
v.  Walton,    4081. 
Atherton  v.  Tacoma  Ry.  &  P.  Co., 
4163,   4177. 
v.  Village    of    Bancroft,    1621. 
Atkins  v.   Gladwish,  344,   518. 
v.  Nicholson,    199. 
v.  State,  43. 
Atkinson  v.   Smith,  445,  1036. 
Atlanta    &    B.    R.    v.    Rabinowitz, 

323. 
Atlanta  Coast  L.   R.   R.   v.   Baker, 

2327. 
Atlanta  Con.   Ry.   v.   Bagwell,   1344. 
Atlanta    Cons.    St.    Ry.    v.    Bates, 
2045,   2065. 
v.  Keeny,    2076,    4154. 
Atlanta  &  D.   R.   Co.   v.   Reiger,  51. 
Atlanta   K.   &   N.   Ry.    v.    Gardner, 

957,  1359. 
Atlanta  News  Co.   v.   Medlock,  231. 
Atlanta  St.  R.  R.  v.  Jacobs,  882. 


XXX 


TABLE  OF  CASES  CITED. 


[BEFEEENCES    ABE   TO    SECTIONS.] 


Atlanta  &  W.  P.  R.  Co.   v.   Smith, 

1384,    3580,   3766. 
Atlas  Mining  Co.   v.   Johnson,  42. 
Attaway  v.  State,  4721. 
Attorney  General  v.   Barber,   294. 
Auckland   v.   Laurence,   309,   318. 
Augusta  Co.   v.   Andrews,  296. 
Augusta    &    S.    R.    Co.    v.    Randal, 

238. 
Aulger  v.    Smith,   117. 
Aultman  &  Co.  v.  Wykle,  2276. 
Aurora  v.   Gillett,   1652. 

v.  Hillman,    1640. 

v.  Pulfer,   1341. 

v.  Reed,    1654. 
Aurora    Branch    R.    R.    v.    Grimes, 

4151. 
Aurora   F.    &   M.    Ins.    v.    Kranich, 

1158,    1164. 
Austill   v.    Heironymus,   1327. 
Austin      v.      Commonwealth,      3104, 
4694,    4746. 

v.  Holland,    2215. 

v.  People,   2556. 

v.  Ritz,  1336. 

v.  Rust,    455. 

V.  St.   L.   Transit  Co.,   1369. 

v.  State,    4611. 
Austin   N.   W.   Ry.   v.   Beatty,  1336. 
Austine  v.  People,  3383,   3744. 
Averill  v.  Williams,  524. 
Avery  v.   Chapman,   1097. 

v.  Perry   Store,   248. 

v.  State,   2657,  4434. 
Ayers  v.  Bristol,   526. 

v.  Richards,  1252. 

v.  State,    3168. 
Aylesworth  v.  Herrington,  2320. 
Ayrcault  v.  Chamberland,  79,  81. 
Ayre  v.  New  England  Mut.  L.  Ins., 

1168. 
Ayres  v.  Hartford  Ins.,  1157. 

Bab  v.   State,  288. 
Babbit  v.  Babbit,  1030. 
v.  Bumpus,    552. 
Babcock  v.  Case,  1129. 

v.  Merchants'    Exchange,    789. 

v.  People,  4740,  4755. 
Bachert  v.   Lehigh  C.   &  N.,  2198. 
Bacon  v.    Bacon,   1277. 

v.  Boston,   1644. 

v.  Brown,    1228. 

v.  Frisbee,   1103. 

v.  Green,    3068. 

v.  State,   2751. 
Bader  v.  Zeise,   585. 
Badger  v.  Batavia  Paper  Co.,  2338. 
Badgley  v.   St.   Louis,   3599. 
Baggett    v.    Savannah,    Ft.    W.    R., 

309. 
Bagley  v.  Bowe,  250. 
Bailey  v.   Bailey.  4286. 

v.  Bensley,  417. 


Bailey   v.    Centerville,   911,   3573. 
v.  Chapman,   596. 
V.  Chi.,  M.   &  St.   P.   Ry.,   736. 
v.   Commonwealth,  4543,  4547. 
v.  Godfrey,   180. 
v.  Manchester    Ry.,    1374. 
v.  State,  26  lnd.  422,  2611. 
v.  State,  52  lnd.  462,  4788. 
Bain  v.  State,  2648,  2697,  4454. 
Baines   v.    Ullmann.    4007. 
Baird  v.   Pettit,    3759. 
Baisenbacker  v.  Society  Concordia, 

964. 
Baker  v.  Ashe,  4201. 
v.  Borello,  384. 
v.  Com.,    4746. 
v.   Gowland,   309. 
v.  Hancock,  3721. 
v.  Hornick,  790,  1284. 
v.  Independence,  315,  3926. 
v.  Irish,    3571. 
v.  Johnson   Co.,   611. 
v.  Kelly,    3365. 
v.  Morton,  2151. 
v.  Prendergast,  1681,  4058. 
v.  Robinson,    3356. 
v.  Russell,   4056. 
v.  State,   30  Ala.   521,   2804. 
v.  State,  81  Ala.  38,  4728. 
v.  State,    Neb.,    4258. 
v.  State,   Ohio,  3215. 
v.  State,   69  Wis.   32,    81. 
v.  State,  80  Wis.  421,  2636. 
v.  Steamboat   Milwaukee,  23. 
v.  Summers,    169. 
V.  Thompson,  274. 
v.  Young,  812,   2280,  4264. 
Balance  v.  Frisby,  294. 
Baldwin  v.  Dunton,  615. 
v.  Foss,   316. 

v.  Lincoln  County,  3382,  3943. 
v.  R.    R.    Co.,   50   Iowa   680,    1504. 
v.  R.   R.   Co.,  63   Iowa  210,   1671. 
v.  St.   Louis,   K.   &  N.   W.    Ry., 

102. 
v.  State,  Ala.,  2708. 
v.  State,    Fla.,    2723,    3252,    4462, 

4479. 
v.  State,  Mo.,  2645. 
v.  State,  Neb.,  4775. 
v.  Walker,    741. 
Bales  v.   State,   2610. 
Ball  v.   Commonwealth,  2569. 
v.  Dolan,    315. 
v.  Mabry,    900. 

v.  Marquis,    300,    500,    773,    3336, 
3337. 
Ballantine   v.   Proudfoot,   4294. 
Ballard  v.  State,    Fla.,    4711. 

v.  State,    Neb.,    2717,    4274,    4316r 

4509,  4564. 

Ballman  v.  Heron,  118. 

Ballou  v.   Chicago,  326. 

Ballou    Admr.    v.    C,    M.    &    St.    P. 

Ry.,    3846. 


TABLE  OF  CASES  CITED. 


XXXl 


[references  are  to  sections.] 


Bait  v.  Budwig,  812. 

Bait.    B.    &    S.    Mfg.   Co.    v.    Jamar, 

1396. 
Bait.,  C.  &  A.  Ry.  v.  Kirby,  3999. 
Bait.  &  Ohio  R.   R.  v.  Few's  Exr., 
1358. 

v.  Kemp,    3588. 

v.  Lafferty,    3365. 

v.  Mackey,    912. 

v.  McDonnell,  1354. 

v.  Noell's  Admr.,  986. 

v.  Owings,  4056. 

v.  Schultz,    208. 

v.  Stanley,    1933. 

v.  Stewart,   746. 

v.  Sulphur   Springs   Ind.    School 
Dist.,  1660. 

v.  Wheeling,   P.   &  C.   Tr.,  1486. 

v.  Wightman,    974. 
Bait.  &  O.  S.  W.   Ry.  v.  Connoyer, 
1925. 

v.  Faith,  1136,  4025. 

v.  Keck,   2009. 

v.  Kleespies,   1937. 

v.  Pletz,    4079. 

v.  Ross,    1717. 

v.  Spaulding,  1379,   1496. 

v.  Then,  937,  983,  3612. 

v.  Young,    1351. 
Baltimore  &  Potomac  R.  R.  v.  Est. 
of     Landrigan,      1918,      1921, 
1954    4052. 

v.  5th  Bap.    Church,   850,   2197. 
Baltrip  v.   State,  4744. 
Banberg  v.   J.   C.   Rd.   Co.,  1730. 
Bank  v.  Bartlett,   303,  1086. 

v.  Berry,   4219. 

v.  Leonhart,    4219. 

v.  Lowery,  3712,  4274,  4775. 

v.  Neal,   508. 

v.  Reed,    3456. 

v.  Ruhl,    4219. 

v.  Smith,  1081. 

v.  Watkins,   2255. 

v.  Weston,  250,  257. 
Bank    of    Commerce    v.     Franklin, 

for  use  of,  545. 
Bank   of  Gunterville  v.   Webb,    572. 
Bank  of  Oil  City  v.  Guardian  Mut. 

L.    Ins.   Co.,   1207. 
Bank  of  U.  S.  v.  Davis,  2422. 
Bankhead   v.    State,   3072,   4340. 
Banks  v.   Lighting  Co.,  369. 

v.  State,  4349,  4351. 
Banning  v.  Chi.,  R.  I.  &  P.,  4143. 
Bannon  v.   Warfield,  486. 
Bante  v.   Savage,  1102. 
Bantz  v.  Basnett,  3365 
Barbee  v.  State,  3052. 
Barber  v.  Railroad  Co.,  4078. 

v.  State,  4324. 
Barbour  v.  State,  4693. 

v.  White,    1317. 
Barchard  v.   Kohn,  3728. 
Bard  v.   Yohm,   4276. 


Barden  v.  Felch,  525. 
Bardin    v.    State,   2697. 
Bardwell  v.  Stubbut,  2235. 
Barger  v.  Hoobs,  449,  1038. 
Barhight  v.  Tammany,  1263,  3710. 
Barker  v.   Bushnell,   389. 

v.  Commonwealth,      2832,      2833, 
2837. 

v.  Paulsen,    3772. 

v.  Perry,  123,  146. 

v.  State,  Ala.,  4803. 

v.  State,  Fla.,  4462. 

v.  State,   Ind.,   4548,  4788. 

v.  State,  Neb.,  55. 
Barkley      v.       Barkley      Cemetery 
Assn.,    2401. 

v.  Renssalaer,    etc.,    Co.,    474. 

v.  Tarrant  Co.,  3604,  4132. 
Barklow  v.   Avery,  2347. 
Barkman   v.   State,  3101. 
Barnaby  v.  Wood,  4772. 
Barnard  v.  Backhaus,  608,   3475. 

v.  State,  2753,  4533. 
Barnes  v.   Barnes,  Me.,  2395. 

v.  Barnes,  Vt.,  2218. 

v.  Commonwealth,     22     Ky.     L. 
1802,  4748. 

v.  Com.,  24  Ky.  1143,  26. 

v.  Ennenga,  2303. 

v.  Md.   Dist.,  285. 

v.  Means,  1290. 

v.  Perine,  681. 

v.  State,  Ala.,  4340. 

v.  State,  Conn.,  3201. 

v.  State,  Ga.,  2552. 

v.  State,    Neb.,    2928,    3210,    4560. 
4592,  4775. 

v.  State,  Tex.,  4373. 

v.  Town  of  Marcus,   1671. 

v.  Town    of   Newton,    39,   1623. 
Barnett  v.  Blackmar,     2201. 

v.  Long,  30. 

v.  People,   117,   118. 
Barnewall  v.    Murrell,    4286. 
Barney  v.  People,  62. 

v.  State,   2444,   2705. 
Barnhart  v.   Boyce,   3695. 
Barnum  v.  Grand  Trunk  W.  R.  Ry. 

Co.,   4011. 
Barr  v.    Hack,    3427. 

v.  People,    2437. 

v.  R.   R.,   2100,   4177. 

v.  State,   45   Neb.   458,  4316,  4509, 
4775. 

v.  State,    46   Neb.    647,   3712. 
Barren  v.   Eldridge,  1692. 
Barrie  v.  King,  3481. 
Barron  v.   Boston  Ferry,  4125. 

v.  Burke,     118,     361,     671,     102S, 
3309. 

v.  Cady,    2186. 
Barry  v.  Bur.  Ry.  &  L.  Co.,  4069. 

v.  R.  R.  Co.,  4090. 

v.  State,  227. 

v.  Truax,  20. 


XXX11 


TABLE  OF  CASES  CITED. 


[BEFEBENCES    ABE    TO    SECTIONS.] 


Barsen   v.    Huntington,   2174. 
Bartay  v.   State,  2960. 
Bartelott  v.  International  Bank,  249. 
Barth  v.   Kraiuth,  228. 
Bartholomew    v.    H.    School    Trus- 
tees, 285. 

v.  Jackson,   709. 
Bartlett  v.  Bangor,  1146,  1148. 

v.  Blaine,   1108. 

v.  Board  of  Education,  854. 
Bartlett,    C.    &    M.    Co.    v.    Roach, 

1398 
Bartley  v. 'state,   2637,   2646,   2705. 
Bartling  v.    Berrends,   1151. 
Barton  v.  Barton,  3429. 

V.  Gray,   129.  157,   ISO. 

v.  McKay,   1055. 

v.  R.    R.    Co.,   4172. 

v.  State,  4485. 

v.  Thompson,  2289. 
Bascom  v.  Smith,  299. 
Bass  v.   Cantor,   555. 

v.  Chi.  &  N.  W.  Rd.,  1820. 

v.  Chi.,    etc.,    Rd.,    1371. 

v.  Irwin,  Ga.,  280. 

v.  Irwin,    Wis.,    3586. 
Bassett    v.    State,    2640,    2682,    3026, 

3126,   3128,   3135,   4711. 
Bastress    v.    Chickering,    3636. 
Batchelor  v.  Union  Stock  Yards  & 

Transit  Co.,  3890. 
Bates  v.  Ball,  159,  618. 

v.  Bates,   4294. 

v.  Davis,  738,  778,  3528. 
Bates  County  v.   Winters,  681. 
Bath  Bridge  T.  P.  Co.  v.  Magoun, 

289. 
Batman  v.  Snoddy,  1089. 
Batten  v.  State,  4544. 

v.  Transit    Co.,    2040. 
Batterson  v.   Railway  Co.,  3951. 
Battishill  v.    Humphrey,    1849,   1891. 
Baty   v.   Elrod,   431. 
Baucht  v.   Graves,  May  Co.,  3474. 
Bauchwitz  v.  Tyman,  3473. 
Bauer  v.  City  of  Dubuque,  3926. 

v.  Lodge,   1215. 
Baugan  v.  Mann,  1144. 
Baum   v.   Palmer,   108. 
Bauman  v.  Grubbs,  1255. 
Baxter  v.   People,  280. 

v.  Ray,  83,  84. 

v.  Roberts,  1376,  3765. 

v.  Rollins,  293. 

v.  St.   L.    T.,   955. 
Bay   City   G.    L.    Co.    v.    Industrial, 

etc.,   582. 
Bay  City  Iron  Co.  v.   Emery,  1254. 
Bayett  v.   State,   3027. 
Bayles  v.  Daugherty,  3404. 
Bays  v.  Hunt,  86. 

Beadle  v.   Chenango  Mut.  Ins.  Co., 
1168. 

v.  Paine,    1296. 
Beal  v.  By.  Co.,  2068,  2293. 


Beall  v.  Township  of  Athens,  1665. 
Beals   v.    Cone,    3389. 
Bean  v.   Green,   309. 

v.  People,  2810. 

v.  State,  2865. 
Beard  v.  Ryan,  451. 

v.  State,  2900. 

v.  U.    S.,    3160,    4740,    4744,    4746, 
4848. 
Bearden  v.   State,  Ark.,  114. 

v.  State,    44   Tex.    Cr.    Rep.    578, 
3165. 

V.  State,   46   Tex.    Cr.    Rep.    144, 
4558. 
Beardstown  v.  Clark,  268. 

v.  Smith,    152,    1650,     3753,     3939, 
4080. 
Beasley   v.  State,  50  Ala.  149,   2606, 
2€13. 

v.  State,    59   Ala.    20,   1101. 
Beattie  v.  Detroit,    911,    1615. 

v.  Hill,   194. 
Beatty  v.   Bulger,   466. 
Beaudrot  V.    So.   R.,   943. 
Beauvais  v.   St.   Louis,  1641. 
Beaver  v.  Porter,    3401. 

v.  Taylor,    4751. 
Beavers  v.  State,  2497. 
Beazley  v.   Denson,  940,  1391. 
Beck  v.  People,  2794. 

v.  State,   4316,  4317. 
Becker  v.   Becker,  187. 

v.  Crow,    4309. 

v.  Dupree,  821,  2301. 

v.  Koch,   390. 
Becknell   v.    Hosier,    3721. 
Bedenbaugh    v.    Southern    Ry.,    355. 
Bedford  v.   Penney,  228,  1073. 
Beebe  v.  Knapp,  139,  1109,  1110. 

v.  Smith,    3399. 

v.  Stutsman,   3841. 
Beedle  v.  People,  3356. 
Beels  v.  Flynn,   1060. 
Beem  v.  I.  &  T.  El.   R.  R.,  1936. 
Beeson  v.  G.  M.  Co.,  976. 
Behen  v.  St.  L.  T.,  2072. 
Behrens  v.   State,   3298. 
Behrman    et    al.    v.    Newton,    352, 

3647. 
Behymer  v.    State,  4430. 
Beidler  v.  King,  315,  899,  1352,  2224. 
Beisiegel  v.   R.   R.  Co.,  4090. 
Belcher  v.  Mo.  Ry.,  314. 
Belden  v.  Woodmansee,  629. 
Belford    v.    Canada    Shipping    Co., 

3759. 
Belk  v.  People,  4751. 
Belken   v.   Iowa  Palls,  1642. 
Bell  v.  Denson,  451. 

v.  Graham,  1262. 

v.  Prewitt,  134. 

v.  Spokane,  936. 

v.  State,  Ala.,  4473. 

v.  State,  69  Ark.  149,  4733. 

v.  State,  81  Ark.  16,  4431. 


TABLE  OF  CASES  CITED. 


XXX111 


[BEFEBENCES    ABE    TO    SECTIONS.] 


Bell  v.  State,   Miss.,  4686. 

v.  State,  17  Tex.  App.  552,  3049. 

v.  State,    39   Tex.    Cr.    App.    677, 
4485,    4488. 
Bellamy   v.    State,   4811. 
Bellefontaine  R.   v.   Hunter,  1902. 

v.  Snyder,   4056. 
Beller  v.  Beller,  1002. 
Belleville  S.  Co.  v.  Comben,  1411. 
Belleville   P.   &   S.    Works  v.   Ben- 
der,  189,   37S4. 
Belote   v.    State,  4570. 
Belser  v.  Young-blood,  3734. 
Belson   v.   Fend,   269. 
Belt  v.   People,   36. 
Belt   Ry.   v.   Banicky,   1374. 
Belt   R.    R.    &   Stock   Yards  Co.    v. 

Mann,    4173. 
Bemis  v.  Ward,  1251. 
Bendetson  v.  Moody,  79. 
Benedick  v.  Potts,  4008. 
Benge  v.   Commonwealth,  2658. 
Benger  v.  Eppard,  285. 
Benjamin  v.  H.   St.  Ry.,  4168. 
Benne  v.   Miller  et  al.,  2233. 
Bennett  v.   Gibbons,  964. 

v.  Keene,  294. 

v.  Maryland   Ins.,    1161. 

v.  M.   K.   &  T.   Ry.,  4110,  4112. 

v.  State,  Ga„  238. 

v.  State,  Tex.,  4317. 

v.  Susser,   374. 
Bensley   v.   Brockway,    3445. 
Benoist  v.    Murrin,   2416. 
Benson   v.   Bacon,   3711. 

v.  Becker,   270. 

v.  Maxwell,   314. 

v.  New   York,    N.   H.    &   H.   R., 
3889. 

v.  State,   156. 
Benton  v.  Board  of  Sups.,  478. 

v.  Cent.  Rd.,  1910. 

v.  Railroad   Co.,    3617. 

v.  State,  30  Ark.  349,   690. 

v.  State,   78  Ark.   284,   2677,   2704. 
Beoger  v.  Langenberg,  3709. 
Berberet  v.   Berberet,  2416. 
Berea  S.  Co.  v.   Kraft,  1500. 
Bergen  v.   People,   117,   2804. 

v.  Riggs,   1060,   1065. 
Bergeron   v.    State,    4560,    4561,   4592. 
Bergin  v.   State,   4407. 
Bering    Mfg.    Co.    v.    Femelat,    169, 
360,    402,   1384,   3604.    3S09. 

v.  Peterson,  1510. 
Berker  v.    State,  4784. 
Berks  Co.   v.   Jones,  326. 
Bernhardt  v.  StEfte,  2617,  4410. 
Berry  v.  Campbell,   3534. 

v.  Driver,    2229. 

V.  State.    23^,    241. 
Berson  v.  Huntington,  117. 
Bertenstein   v.    Schrack,    315. 
Bertha  Zinc  Co.  v.  Martin's  Adrar., 
4161. 


Bertwhistle  v.  Goodrich,  2323. 
Besel  v.  N  .Y.,  etc.,  Rd.  Co.,  1557. 
Best  v.   Best's  Ex'r,  4299. 
Best  Brewing  Co.   v.   Dunlevy,  924. 
Bethman  v.   Old   Colony   R.,   1757. 
Bettes  v.  Chi.,  R.  I.  &  P.  Ry.,  241. 
Betting  v.   Hobbett,  202,  971,  1468. 
Betts  v.  City  of  Glenwood,  318. 
Betz    v.    K.    C.    H.    Telephone    Co., 

803. 
Beulna  v.   Ryan,  309. 
Bevelot  v.   Lestrade,   349,  2398. 
Bever  v.    Spangler,   3558,   4291,   4296, 

4300. 
Bevier  v.  Galloway,  1015. 
Bibb   Co.   v.   Ham,   733,  1664. 
Bibby  v.   State,  4655. 
Bickel   v.   Martin,   4284. 
Bickory  v.  U.   S.,  4350. 
Biegler  v.   Supreme  Council,  3684. 
Bierbach    v.     Goodyear,    etc.,    Co., 

355,  3340. 
Biering  v.   Ry.,   1998. 
Biff  v.    Mo.   R,  300 
Bigelow     v.     Berkshire    Life    Ins., 
1207. 

v.  Railway,  827. 

v.  Sickles,    1263. 

v.  W.  W.  Rd.,  841. 
Biggen  v.   Bird,   999. 
Bild  v.  Fuller,  236. 
Billings  v.   State,  3300. 

v.  Worcester,    3932. 
Billmeyer  v.  St.  Louis  Transit  Co., 

48. 
Bingham  v.  Lipman,  Wolfe  &  Co., 
823,    1287. 

v.  Spruill,   550. 

v.  Stage,    1089. 
Bingon  v.   State,  327. 
Binns    v.    State,    46    Ind.    311,    4558, 
4686. 

v.  State,  66  Ind.  428,  3034. 
Binyon  v.   United   States,  4407. 
Birch  v.   Charleston  Light,  Heat  & 
Power  Co.,   258. 

v.  Hartung,   290. 
Bird  v.  Potter,  307. 

v.  State,  Fla.,  2497. 

v.  State,    Ga.,    3086. 

v.  State,   Ind.,   2625,   3319,   4380. 

v.  State,  Wis.,  3119. 

v.  Thompson,  699. 

v.  U.  S.,  2462. 
Birdsall  v.  Carter,  3513. 
Birdsong  v.    State,   39. 
Birmingham    Belt    R.    Co.    v.    Ger- 

ganous,    1347. 
Birmingham  F.  Ins.  Co.   v.  Pulver, 

205. 
Birmingham    Mineral    R.    v.    Tenn. 
C.   I.   &  R.   Co.,   769,   3411. 

v.  Wilmer,    1579. 
Birmingham  P.  &  R.  v.  Crampton, 
2343. 


XXXIV 


TABLE  OF  CASES  CITED. 


[BEFEBENCES    ABE   TO    SECTIONS.] 


Birmingham  Ry.  L.  &  P.  v.  Brant- 
ley, 2109. 

v.  Hinton,  4109. 

v.  Lindsey,    4135. 

v.  Mullen,  2054. 
Birmingham  Ry.   v.   Smith,  4016. 
Birmingham  R.  &  E.  v.  City  S.  Co., 
2088 

v.  Ellard,  355,  4133. 

V.  Jackson,    4170. 

v.  Pinkiard,  4169. 

v.  Ward,  3578. 

v.  Wildman,    2015,    2043. 
Bishop  v.  Busse,  355. 

v.  Journal   Newspaper   Co.,   820, 
2293. 

v.  State,   3119,  3392. 
Bissell   v.    Price,   1696,   1699,   1746. 

v.  Ryan,    39. 
Bissott  v.   State,  2997. 
Bitter  v.    Saatloff,   3326. 
Bitting  v.   Ten  Eyeck,  1262,  3709. 
Bixby  v.  Omaha  C.  B.  R.,  128. 
Bjork  v.  I.  C.  R.,  248. 
Black  v.  Black,  1007. 

v.  Bowman,    3434. 

v.  Rocky     Mt.     Bell     Tel.     Co., 
1405. 

v.  State,    3323. 
Blackburn  v.   Com.,  390. 

v.  Southern  Pac.   Co.,  4055. 
Blades  v.  Board  of  Water  Com'rs, 
805. 

v.  Robbins,  309. 
Blaeser   v.    Milwaukee    M.    M.    Ins. 

Co.,  1054,  2289,  3656. 
Blair  v.  State,  Ark.,  2534. 

v.  State,   Neb.,  4750. 

v.  Territory,   3236. 
Blake  v.   Blake,  1011. 

v.  Damon,    3347. 

v.  LoweJl,  3932. 

v.  Midland,  etc.,  Ry.  Co.,  991. 

v.  Rourke,   2389,   4291,   4296. 
Blaker  v.  Sands,  4224. 

v.  State,  2624,  4570,  4788. 
Blalock  v.    Randall,   1274. 

v.  State,  2467,  2468,  2469. 
Blanchard   v.    L.    S.    &   M.    S.   Ry., 
4151. 

v.  Pratt,   449. 

v.  Young,   4009. 
Blane  v.  Tharp,  739. 
Blasingame  v.  State,  4769. 
Blesch  v.  Chi.  &  N.  W.  R.  R.,  854, 

861,   870. 
Bliss  v.   Whitney,  1241. 
Blitt  v.  Heinrich,  3327. 
Blizzard  v.  Applegate,  3300. 
Block    v.    Milwaukee    St.    Ry.,   3576. 

v.  State,    2497. 
Bio   ker  v.   Schoff,  2292. 
Blood  v.   Barnes,  1024. 

v.  Enos,  718. 
Bloom  v.  State,  3323. 


Bloor  v.  Town  of  Delafield,  3939. 
Bloomington  v.   Brokaw,  1652,  1654. 

v.  Pollock,  873. 
Bloomington     &     Norman    Ry.     v. 

Gabbart,  412. 
Bloomington    Elec.     Light    Co.     V. 

Rodburn,   653. 
Blossom  v.   Dodd,   1711. 
Blotcky  v.   Caplan,  376,  3325. 
Blough    v.    Parry,    126,    2368,    4293, 

4300. 
Blue  v.  Aberdeen  &  W.  E.  R.,  2000, 

4106. 
Blume  v.  State,  243,  2593,  3059,  3078, 

4399. 
Blumenthal  v.   State,  188. 
Bluntzer  v.  Dewees  &  Hinkle,  4007. 
Board    of    Comm'rs    v.    Legg,    1640. 
Board  of  Sups.   v.  Davenport,  1028, 

1031. 
Boardman  v.   Adams,  2206. 
Bob   v.    State,   4368. 
Boddie  v.  State,  163. 
Bode  v.  State,  3109. 
Bodie  v.   Charleston  &  W.   C.   Ry., 

1336,    1407,    3898. 
Bodine  v.  State,  4376,  4455. 
Bodley  v.  Denmead,  3735. 
Bodwell  v.  Manufacturing  Co.,  3899. 
Boecker  v.   Naperville,   3556. 
Boehmer  v.  Poval,  640. 
Boersh  v.  State,  2670. 
Boelter   v.    Ross    Lumber   Co.,   149, 

3576. 
Boettler  v.  Tumlinson,  1391. 
Boggs  v.  Price,  1333. 
Bogle  v.    Kreitzer,  199. 
Bohannon  v.  Com.,  4744,  4746,  4748. 
v.  Hammond,   1695. 
v.  State,   2533,    2648,   2708,   4436. 
Bohm  v.  Met.  El.  Ry.,  3563. 
Boice  v.  Palmer,  623. 
Bolan  v.  People,  109. 
Boldenwick  v.   Cahill,  648. 
Boldt   V.    Budwig,    2280,   2288,   2293, 
Boldwain  v.  St.  Louis  Ry.,  117. 
Bolen   v.    P.,    113. 
Boles  v.   Henney,  1072. 

v.  State,   3269. 
Bolinbroke       v.       Swindon       Local 

Board,  1374. 
Boling  v.  Boling,  4286. 
Bolles  Wooden  Ware  v.  U.  S.,  769. 
Boiling  v.  Tate,  3452. 
Bollman  v.  Lucas,  1060. 
Boltx  v.  Miller,  1227. 
Bomar  v.   Resser,   2154. 
Bond  v.  People,  163. 

v.  State,  Fla.,  2538,  4731. 
v.  State,    Ohio,   4407. 
Bondurant  v.  State,  2692,  2772,  2986, 

3072,  3086,  3106,  4747,  4749.  4756. 
Bone  v.  State,  2443,  2653. 
Bones  v.  State,  2697,  2708,  444L.  4467, 
Bonesteel  v.  Bonesteel,  1285. 


TABLE  OF  CASES  CITED. 


XXXV 


[REFERENCES  are  to  sections.] 


Bongard  v.  Core,  1023. 
Bonner    v.    State,    Ala.,    4420,    4442, 
4451,  4671. 

v.  State,   Ga.,  273. 
Bonnet  v.  Gal.  H.  &  S.  A.  Ry.  Co., 

1517,   1566,   3S72. 
Bonnie   v.   Earll,   346. 
Bonniss   v.   Felsing,   200. 
Bonte  v.   Postel,  4276. 
Boogher  V.   Life  Assn.,  789. 
Bookrum  v.  Ry.  Co.,  1566. 
Boom  Co.  V.  Patterson,  860. 
Booming  Co.  v.   Speechly,  2357. 
Boon  v.  Bliss'  Estate,  3317. 
Boone  v.  Oakland  T.  Co.,  2064. 

v.  People,   2913. 

v.  Ritchie,   2369,  4294. 
Boos  v.   State,   270. 
Booth  v.  Merriam,  3696. 

v.  Territory  of  Ariz.,  59. 
Borchers  v.  Meade,  3409. 
Borchsenius   v.   Canutson,    628. 
Bordeaux  v.  Hartman  P.  &  C.  Co., 

3728. 
Borden    v.    Clark,    2167. 
Boreham  v.  Byrne,  226. 
Boren  v.  Bartelson,  526. 
Bosell  v.  Doran,  2424. 
Boske  v.  Collopy,  206. 
Bosley  v.   Nat.  Co.,  306. 
Bosman  v.  Akerly,  2178. 
Bosse  v.  Thomas,  1062. 
Boston  V.   State,   2444. 
Boswell    v.    Gates,    2303. 

v.  State,  4400. 
Botsch   v.   State,   2839. 
Bott  v.   Pratt,    2081. 
Boucher  v.   New  Haven,  1627. 
Boulden    v.    State,    2626,    2680,    2683, 
3002,  3126,  3166,  4443,  4558,  4728. 
Boulter  v.   Lumber  Co.,  3737. 
Bovee  v.  Town  of  Danville,  47S7. 
Bowden   v.    Bowden,   3633. 
Bowe    v.    Hunking,    3696. 
Bowen  v.  Buck,  2152. 

v.  Fenner,  2327. 

v.  Schuler,   1112. 

v.  State,  2497,  4351. 
Bower  v.  Bower,  269. 
Bowers  v.  People,  342,  343,  346,  3325. 

v.   State,    3254. 
Bowie  v.  Birmingham  Ry.  &  Elec, 
2058. 

v.  Spaids,    4592,    4775. 
Bowles  v.   State,  2461,  2973. 
Bowlin  v.  Nye,  2336. 
Bowling  v.   Bowling,  4286. 
Bowling  Green  Stone   v.   Capshaw, 

3833. 
Bowman  v.   Carithers,   1115. 

v.  Millison,    2171.    ■ 

V.  Simpson,    322. 

v.  Ware,   307. 

v.  West.    Fur.   Mfg.    Co.,  124. 
Bown   v.    Owen,   2342. 


Bowser  v.  Mick,  3467,  3469. 
Bowsher  v.  Chi.,  B.  &  Q.  R.,  339. 
Boyce  v.   Palmer,    3306. 

v.  People,    2833. 

v.  Snow,    269. 

v.  Tallerman,    249. 
Boyd  v.  Bank,  2164. 

v.  Blue  R.   Ry.  Co.,  944. 

v.  Cross,    1272. 

v.  Desmond,    2429. 

v.  Starbuck,  732. 

v.  State,    3049. 

v.  U.    S.,    4795. 

v.  Watt,    1220. 
Boye  v.  City  of  Albert  Lea,  2363. 
Boyer  v.   Barr,    779. 
Boyett    v.    State,    4426,   4505. 
Boykin    v.    People,    2536,    2636,    4379, 
4740,    4755. 

v.   State,  Fla.,  2318,  4814. 

v.  State,  Miss.,  3116,  3168. 
Boyle  v.  State,  2564,  3023,  3066,  3070. 

v.  Union  Pac.  Ry.   Co.,  3782. 
Boyse   v.    Rossborough,    2395. 
Brabbits  v.  Chi.  R.,  309. 
Brabek  v.    Grand   Lodge,   3643. 
Brace  v.   Black,  2364. 
Bracken  v.  State,  4653,  4707. 
Bradburn  v.   U.   S.,   4729. 
Bradbury  v.   Gilford,  2320. 
Bradfield   et  al  v.   Patterson,  493. 
Bradford  v.   Downs,  930. 
Bradham  v.    State,   4758. 
Bradley  v.  Cole,  1248. 

v.  Cramer,    3396. 

v.  Gorham,    3354. 

v.  Gorman,  369. 

v.  Keene,  1017,  3400,  3625. 

v.  Richardson,  419. 

v.  State,  Ga.,  188. 

v.  State,  Ind.,  4430. 

v.  West,    454,    1052. 
Bradshaw   v.    Buchanan,    964. 

v.  Mayfield,    3604,    4132. 

v.  People,  2783. 

v.  State,   2677,   4353. 

v.  Warner,    2250. 

v.  Yates,    2401. 
Brady  v.   Ervin,   1263. 

v.  Finn,   108. 

v.  Georgia  Home  Ins.  Co.,  1280. 

v.  Mangle,  3334. 

v.  State,    4707. 
Bragg    v.    Geddes,    4362. 
Braham  v.    State,  2571. 
Bramel  v.   Bramel,  2369. 
Bramwell  v.  Hart,  2235. 
Branch  v.   Dawson,   60,   426. 
Brand  v.  Hinchman,  1263. 
Brandes  v.  Brandes,  3861. 
Brandon  v.  L.  S.  &  M.  S.  Ry.,  133. 

v.  State,   3121. 
Brann  v.   R.    R.   Co.,   3792. 
Brannock   v.    Elmore,    1397. 
Branson  v.  Commonwealth,  4569. 


XXX  VI 


TABLE  OF  CASES  CITED. 


[BEFEEENCES   ABE   TO    SECTIONS.] 


Brant  v.   Barnett,  2137. 

v.  Higgins,   3709. 
Brantigan  v.  White,  780,  3528. 
Brantley  v.   State,  4732. 
Brashberg    v.    Mil.,    etc.,    Rd.    Co., 

1342. 
Brasington    v.    So.    Bound    R.,    913, 

1879,    1934. 
Brassell    v.    Minneapolis,    St.    P.    & 

S.    S.    M.    Ry.,    4001. 
Brasted  v.  Farmer's  L.   &  T.,  1207. 
Bratt  v.  Swift,  3224,  3327. 
Bray   v.    Ely,    1081. 

v.  State,    Ala.    13. 

v.  State,   Tex.    4779. 
Brecher  v.   Chicago  June.  Ry.  Co., 

1938,   4024. 
Breckenridge   V.    McAfee,   2256. 
Bredlan  v.  Town  of  York,  3937. 
Breed  V.  Cent.   City  Bk.,  484. 
Breen    v.    R.    R.,    2031. 

v.  T.  &  P.  Rd.,  1944. 
Breig  v.  C.  &  W.  M.  Ry.  Co.,  1575. 
Brekenfelder  v.   R.   R.   Co.,  4011. 
Bremmerman   v.   Jennings,   1089. 
Brenan  v.  El.  Instal.  Co.,  4760. 

v.  People,  2735,  3323. 

v.  Town   of  Friendship,   3951. 

v.  Tracy,    1265,    1282. 
Brenton   v.    Territory,    2820. 
Bressler  v.   People,   2533,   2539,   2550, 
2654,   2676,   2678,   4437. 

v.  Schwertferger,  3789. 
Brewer  v.  Knapp,  1238. 

v.  State,   52. 
Brewer    &    Hoffman    Brg.    Co.    v. 

Hermann,  278. 
Brezinski  v.   Swift  &  Co.,  248. 
Brick  v.    Brick,   2395. 
Brickell   v.    Railroad   Co.,   3948. 
Brickman  v.  S.  C.  Rd.,  1499. 
Bridendolph    v.    Zeller,    326. 
Bridger  v.  A.  &  S.  R.  Co.,  921. 
Bridwell  V   Swank,  2401. 
Briggs  v.  Downing,  2182. 

v.  People,  4317. 

V.  Spaulding,   3456. 

v.  Taylor,    1747. 
Brigham   v.   Clark,  374. 
Bright   v.    Miller,    2242. 
Brill  v.   Meek,  326. 
Brink  v.   Fay,  724. 

v.  Stratton,    69. 
Brinkley  v.   State,  2573. 
Brink's   Exp.   v.    Herron,   3528,   3600. 
Brinsley  v.   Schulz,  1279. 
Brinson  v.  Exley,  3314,  3423. 

I    v.    I ;  r.i  id  wood,   1102,   1107. 
Brit.-Am.    Mort.    v.    Smith,   1205. 
Britton    v.    St.    Ry.    Co.,    of    Grand 
Rapids,    4121,    4136,   4139. 

v.  Turner,    719. 
Broadstreel    v.  Hall,  3599. 
Brock  v.   St.  L.  T.,  2037. 
Brod  v.   St.  Louis  T.,  2030,  2075. 


Broderick  v.    Higginson,   386. 
Brodhead  v.  Wiktse,  128. 
Brodie    v.    Carolina    M.     Ry.     Co., 
1788. 

v.  Watkins,   660. 
Brokaw  v.   C.   of  H.,  3555. 
Bromage  v.   Proser,  3063. 
Bromley  v.  R.  R.,  985. 
Bronson   v.    Dunn,   4772. 

v.  Schulter,  302. 
Brook   v.    Bruyn,    39. 
Brooker    v.     Town     of    Covington, 

3927. 
Brooks   v.    Barrett,   2369. 

v.  Commonwealth,    2988. 

v.  Cook,   3690. 

v.  Jennings    Agri.    Joint    Stock 
Assn.,    39. 

v.  O'Boyle,    3702. 

v.  People,  4755. 

v.  State,  Ga.,  4565. 

v.  State,  Ohio,  3215,  3216. 

v.  State,   Tex.,   4634. 

v.  Stephans,  278. 

v.  Thatcher,   4787. 
Brookside     C.     M.     Co.     v.     Dolph, 

3762. 
Broughton    v.    Smart,    709. 
Brown  v.  Anderson,   1255. 

v.  Burris,   138. 

v.  Byam,    316. 

v.  Calumet  R.  Ry.  Co.,  843,  844. 

v.  Commonwealth,    21    Ky.    245, 
4761. 

v.  Commonwealth,  14  Bush,  Ky. 
1400,   2569,   2583. 

v.  Hannibal,  etc.  Rd.,  1371,  1947. 

v.  H.  St.  J.  R.,  900. 

v.  Kiefer,    1321. 

v.  Lathrop,  288. 

v.  McNair,    44. 

v.  Owen,    3277. 

v.  People,   4  Gilm,  439,  154,  4196. 

v.  People,  65  111.  App.  58,  411. 

v.  People,  Mich.,  2808. 

v.  Russell,    947. 

v.  St.    L.    Tr.    Co.,    315. 

v.  Sloan,    1060. 

v.  Smith,    1272. 

v.  Spafford,    326. 

v.  State,  108   Ala.    18,    2708,    4468, 
4511. 

v.  State,  US  Ala.  Ill,  2711,  2888, 
4457. 

v.  State,  124  Ala.   76,   4368. 

v.  State,  Ark.    3152,    4733. 

v.  State,  29   Fla.    494,    302. 

v.  State,  42  Fla.  184,  2804,  4486. 

v.  State,  46  Fla.  159,  2652. 

v.  State,  51  Ga.  502,  3066. 

v.  State,  105  Ga.  640,  399. 

v.  State,  Ind.  4430,  4434. 

v.  State,  32  Miss.  435,  4365,  4686. 

v.  State,  72  Miss.  95,  2752,  4445, 
4447,  4460. 


TABLE  OF  CASES  CITED. 


XXXVll 


[references  are  to  sections.] 


Brown  v.  State.    72    Miss.    997,   2S11. 
v.  State,  75  Miss.  842,  328. 
v.  Stale,  Miss.,  38  So.  316,  26. 
v.   State,  Neb.,  4622. 
v.  State,    N.   J.,   3060,   3095,    3122, 

3156. 
v.  State,   Ohio,  3283. 
V.  State,  4  Tex.  App.  275,  3020. 
v.  State,  23  Tex.  195,  4350. 
v.  State,  45    Tex.    Cr.    App.    139, 

3044. 
v.  Swineford,    22S,    532,    823,    964. 
v.  Vittur,    1263. 
v.  Ward,   4294,   429S. 
v.  Weaver,   4654. 
v.  Wood,   3358. 
Browne    v.    Siegel,    Cooper   &    Co., 

4278. 
Brownell  v  Fuller,  1241. 
Brownfield   v.   Bronfield,  301. 

v.  Union  Pae.   Ry.,  4082,  4085. 
Browning-  v.  Wabash  Western  Rail- 
way, 699,  949,  1426. 
Brownlee  v.    Reiner,  307. 

v.   State,    4712. 
Brown  rigg    v.    Massengale,    552. 
Brownwell  v.  Dixon,  1024,  1027. 
Broyhill   v.   Norton,   693. 
Bruce  v.  Koch,  3632. 

v.  State,  3157. 
Brumagim  v.   Bradshaw,   578. 
Brummell    v.    Harris,    3462. 
Brundage  v.   Camp,   3636. 

v.  Cheneworth,   1086. 
Bruner  v.  Dyball,  2239. 
v.  State,  3027. 
v.      U.    S.,    2961. 
v.  Wade,  2144. 
Brunet    v.    State,    4641.  ' 
Brunson  v.  State,  4671. 
Brunswick      B.      C.      v.      Northern 

Assur.   Co.,  1157. 
Brunswick    &    W.    R.    Co.    V.    Wig- 
gins, 3753. 
Brusberg    v.     Milwaukee,     etc.     R. 

Co.,  1987. 
Brush  v.  Smith,  395,  2133. 
Brush  E.  L.  &  P.  v.  Simonshon,  882. 
Brushaber  v.  Stagemann,  1285. 
Bryan  v.   Int'l  &  G.  N.  R.,  1463. 
v.  Lamson,    269. 
v.  Railway,    3336,    3337. 
v.  State,  Fla.,  4477. 
v.  State,  Ga.,  28. 
Bryant  v.  Everly,  806. 
V.  Rich,   1370. 
v.  State,  Ala.     2637,     2641,     2677, 

2698,    4376,    4426. 
v.  State,   Fla.,   2652. 
Bryson    v.    Chi.,    B.    &    Q.    R.    R., 

4069. 
Brzozowski    v.    National    Box    Co., 

241. 
Buchanan  v.   Log  Co.,  2357. 
V.  State,  Ala.,  4349. 


Buchanan  v.  State,   Tex.,   2S16. 
Buchholtz    v.    Town    of    Radcliffe, 

373,  1673. 
Buck   v.    Colbath,   541. 

v.  Maddock,    102. 
Buckalew    V.    Quincy,    O.    &    K.    C. 

Ry.,  396,   3372. 
Buckler  v.  Kneezell,  Tex.  Civ.  App. 
515,    517. 
v.  City  of  Newman,  3948. 
Buckley    v.    Acme    Food    Co.,    3476, 
3651,    3657. 
v.  Great   W.   Ry.,   268. 
v.  State,   3304. 
v.  Taggart,   453. 
v.  Wells,    1024. 
Buckrice  v.   People,  20. 
Buddee  v.   Spangler,   43. 
Buddenberg  v.   Trans.   Co.,   3940. 
Buehner  Chair  Co.  v.  Fuelnin,  309. 
Buel  v.  State,  2646,  4443. 
Buell  v.  Irwin  1034. 

v.  N.   Y.   C.   R.   R.,   1812. 
Buesthner   v.    Creamery   Co.,    321. 
Buetzier  v.   Jones,   315. 
Buford  v.   State,   4590. 
Buggins  v.  Bennett,  290. 
Bull   v.    Bliss,    217S. 
Bullard   v.   Boston,  238. 

v.  Smith.    4213. 
Bulliner  v.   People,   2539. 
Bulliss    v.    Chi.,    M.    &    St.    P.   Ry., 

134. 
Bullock  v.  Koon,  3262. 
Bumpus  v.   Bumpus,   1099. 
Bundy  v.  McKnight,  2385. 
Bunfill   v.   People,   4516. 
Bunker  Hill   v.    Pearson,   197. 
Bunnell    v.    Commonwealth,    2988. 
Bunson  v.   State,  4478. 
Bunting  v.  Mick,  4219. 
Burch  v.  Woodworth,  1249. 
Burden  v.  People,  39. 
Burdick   v.    Chi.,   M.   &  St.   P.   Ry., 

802. 
Burdsall   v.    Waggoner,   1020. 
Burger  v.   Ry.   Co.,   4166. 

v.  State,  4316,    4783,   4797. 
Burgess    v.    Merc.    G.    Mut.    Ins., 

1158. 
Burghardt  v.  Van  Beusen,  216. 
Burhans  v.   Sanford,   1263. 
Burk  v.  Simonson,  3553. 
Burke  v.   Citizens'   St.  Ry.,  4117. 
v.  Elli*,   299. 
v.  Hulett,    1232. 
v.  Melvin,    532. 
v.  Mitchell,  451. 
v.  State,   88. 
Burkhardt    v.    Gladish,    4294. 
Burks  v.  Hubbard,  769. 
Burley  v.   McGough,   614. 
Burling  v.  111.   Cent.,  190. 
Burlington    &    M.    R.    v.    Westover, 
1991,  2000. 


XXXV111 


TABLE  OF  CASES  CITED. 


[BEFEBENCES   ABE   TO    SECTIONS.] 


Burnett    v.     Great    Northern    Ry. 
Co.,    4280. 

v.  People,   2515. 

v.  Simpkins,  766. 

v.  Burkhead,   3429. 

v.  State,  Ark.,  2733. 

v.  State,  Tex.  Cr.  App.  3192. 
Burnham  v.  Allen,  4009. 
Burney  v.   Torrey,   2393. 
Burnley  v.   Mullins,  4233. 
Burns  v.  Campbell,  3719. 

v.  Met.    St.   Ry.,  2094,  2104,  4179. 

v.  Pinney,    294. 

v.  Ry.   Co.,   2068. 
Burr  v.  Plymouth,  945. 

v.  Wilson,  2289. 
Burrows  v.   Whitaker,  2253. 
Burst    v.    Wayne,    301. 
Burt  v.  People's  Mut.  F.  Ins.,  1174. 

v.  State,  4445,  4447,  4460. 
Burton  v.    St.   Paul   M.    &   M.   Ry., 
1282. 

V.  State,  107  Ala.   108,  2497,  270S, 
3076,   4368,   4447,   4635. 

V.  State,  141  Ala.   32,  4440. 

v.  State,  Tex.,  4416. 

v.  U.   S.,   575. 
Burwell  v.   Orr  et  al.,  3434. 
Busby  v.  Railroad  Co.,  3405. 
Busch   v.    Pollock,    637. 
Bush  v.   Holmes,   74S. 

v.  Rochester  City  Bank,  295. 

v.  Sprague,  4311. 

v.  State,   Ala.,   4549,  4556,   4559. 

v.  State,   Tex..  3101,  3122,  4720. 
Byas   v.    State,   2821. 
Byer  v.  Herman,  313. 
Byers  v.   Chapin,   658. 
Bynon  v.   State,  2796. 
Byrd  v.   State,  4449. 

v.  State,   Ark.,  2831. 
Butler  v.  Bangor,  1625. 

v.  Carnes,  2147. 

v.  Det.  Y.  &  A.  A.  Ry.,  3316. 

v.  Feeder,  540. 

V.  Hildreth,  483. 

V.  Ricketts,  147. 

v.  State,  Fla.,  3253,  3255. 

v.  State,   Ind.,  2571. 

V.  State,    Wis.,    2578,    2657,    4441, 
4443,   4444. 
Butolph  v.  Blust,  4324. 

v.  Saathoff,  3335. 
Butterfield  v.  Forrester,  1685. 
Butters    v.    Haughwout,    1079,    1118, 

2239. 
Button  v.  Metcalf,  355. 
Butts  v.  Atl.  &  N.  C.  R.,  4038. 
Buzzell  v.  Laconia  etc.,  Co.,  1376. 


Cabell  v.   Menczer,   357,   2374. 

Cable  v.   Grier,  187. 

Caddell  v.   State,  2905,  4434,  4475. 


Cadillac    State    Bank   v.    Wexford, 

303. 
Cadwallader  v.  Harris,  59. 

v.  West,    2401. 
Cafferatta  v.   Cafferatta,  3300. 
Caffey  v.  State,  Ala.  4317. 

v.  State,   Miss.  4406. 
Cahill  v.  Baird,    551. 

v.  Cantwell,    326. 
Cahn  v.    Ladd,   378. 

v.  Mich.    Cent.    R.   R.   Co.,   1742. 
Cain  v.    State,    3061. 
Cairo   Rd.   v.    Murray,   1965. 
Caldwell  v.  Henry,  1109. 

v.  N.   J.   Steamboat  Co.,   912. 

v.  State,  Ark.,  2S31. 

v.  State,  Tex.,  52. 

v.  Stephens,  165. 
Caledonian  Insurance  Co.  v.  Traub, 

3999. 
Calef    v.    Thomas,    176,    1279,    1282, 

3742. 
Calhoun  v.  Hannan,  743,  4097. 

v.  Ry.   Co.,  3869. 

v.  State,   51. 
Callaghan  v.   Myers,   531. 
Callahan  v.  Warne,  4172. 
Callan  v.   Hanson,  3336,   3337. 
Callender  v.  Marsh,  1652. 
Calumet    Dock    Co.    v.    Morawetz, 

1228. 
Calumet  Electric  St.  Ry.  v.   Chris- 
tenson,  261. 

v.  Grosse,  4162. 
Calumet   I.   &  S.   Works  v.  Martin, 

3753,   3837,   4151. 
Calumet   River  Ry.   v.   Moore,    864, 

3543. 
Calumet   St.   Ry.   v.   Van  Pelt,   970. 
Calvert  v.  State,  4. 
Cameron  v.   Calkins,  294. 

v.  Wentworth,   346,   3324. 
Cameron   Mill   &  Elev.   Co.   v.  An- 
derson, 956. 
Camp  v.   Phillips,   194. 

v.  Wabash  R.  R.,  925,  1900,  3599. 
Campbell   v.   Beckett,   211. 

v.  Burns,   3297. 

v.  Campbell,   111.,  117,   237,  2365. 

v.  Campbell,  Wis.,  2130. 

v.  Coonradt,   1051. 

v.  Ellsworth,    3986. 

v.  Goodwin,    1999. 

v.  Holland,    379,    S07,    1061,    1075, 
1094,  1151. 

V.  Kalamazoo,    74,    232. 

v.  Los  Angeles  T.   Co.,  914. 

v.  Ormsby,  103,  109. 

v.  People,  16   111.    1,   2448,    4699. 

v.  People,  109   111.   566,   4462. 

v.  St.    L.    &   S.    Ry.,    4180. 

v.  City  of  Stanberry,   3741. 

v.  State,  Ala.,  4734,  4756. 

v.  State,  Ga..  2646,  4502. 

v.  State,  Ohio,  2929. 


TABLE  OF  CASES  CITED. 


XXXIX 


[BEFEBENCES    ABE   TO    SECTIONS.] 


Campbell  v.  Trimble,       3855,       3S69, 
4048. 

v.  Whitson,   1057. 

v.  Williams,  2235. 
Camp    Point    Mfg.    Co.    v.    Ballou, 

1377,   1998,   3845,   3846. 
Campos  v.  State,  2614. 
Canada  v.  Curry,  2540. 
Canal  Co.  v.  Murphy,  2113. 
Canceme  v.  People,  2480,  4335. 
Canfore   Houst  v.    State,   4379. 
Canifax  v.  Chapman,  2735. 
Cannon  v.   Polsom,   748. 

v.  Home  Ins.,  1191. 

v.  Iowa  City,  109. 

v.  Lewis,   2196. 

v.  State,  2590. 
Cannon's  Case,  4724. 
Cantrell  v.  State,  2444. 
Capaul   v.    Ry.,   281,    282,   295. 
Cape  G.  Rd.  v.  Kimmet,  418. 
Capen  v.   DeSteiger  Glass  Co.,  797. 
Capitol  Bank  v.  Armstrong,  4220. 
Cappell  v.   Hall,   2152. 
Card  v.  Fowler,   340. 
Cardinal  v.  Smith,  1274. 
Carey  v.  Railway  Co.,  4772. 

v.  Sheets,  1259. 
Carl   v.   GobeQ,   2401. 

v.  State,  87  Ala.  17,  4215. 

v.  State,  125  Ala.  89,  4775,  4781. 

Carle  v.  People,  2955,  3110. 

Carleton  v.  State,  180,  2546,  2660, 

2664,  2717,  2986,  2987,  3080, 

3081,  3111,  3125,  3142,  4372, 

4383. 

Carleton  Min.  &  Mill.  Co.  v.  Ryan, 

1433     3808 
Carlton   v.' People,   2507,   4320,   4352. 

v.  Townsend,  2307. 
Carlisle  v.   State,  2596. 

v.  Wishart,  2171. 
Carman   v.    Ross,   270. 
Carmichael  In  re,  615. 
Carmody   v.    Boston    Gaslight    Co., 

2124. 
Carnall  v.  Crawford  County,  291. 
Carney  v.   Baldwin,  294. 

v.  Newberry,    748. 
Carnwright   v.    Gray,    314. 
Carpenter    v.     Calvert,    2368,     2371, 
4292,    4299. 

V.  Jones,  2219. 

v.  Plagge,  1250. 

v.  State,  Ark.,  3119. 

v.  State,  Ind.,  156. 

v.  Washington    &    G.     R.    Co., 
2060. 
Carr  v.   Boone,   296. 

v.  Hibernia  F.  Ins.,  1175. 

v.  Miner,  295. 

v.  State,    Ala.,    2390,    2397,    2933, 
4710. 

V.  State,    Neb.    2619,    2652,    2657, 
2660,  2990,  3059,  3458,  4434. 


Carr  v.  State,    Tex.,    4660. 
Carrall  v.   State,   3210. 
Carroll's   Will,   2404. 
Carroll    v.    Chi.,    St.    P.    &    O.    Ry., 
3558. 

v.  Holmes,   3475. 

v.  Little,    306. 

v.  State,  2697. 
Carrow  v.  People,  49. 
Carson  v.   Harris,   1699. 

v.  Porter,    352. 

v.  Singleton,  3598. 

v.  Smith,   2425. 

v.  So.    R.    Co.,    1365,    1406,    1551, 
1573. 

v.  State,  69  Ala.  236,   4215. 

v.  State,  87  Ala.  17,  4215. 

v.  Stevens,   1086,  3712,   3629,   4274, 
4775. 
Carstens  v.   Earles,   630,   652,  2345. 
Carter  v.  Carter,  111.,  1005. 

v.  Carter,   Ind.,  243. 

v.  Chambers,  3951. 

v.  Feland,    2425. 

v.  Fulgham,    4270. 

v.  Phila.  Coal  Co.,  637. 

v.  State,  82  Ala.  13,  4745. 

v.  State,  103   Ala.    93,    2689,    4787. 

v.  State,  12  Tex.  500,  2610. 

v.  State,  18  Tex.   App.   573,   3298. 

v.  State,  37   Tex.    Cr.    App.    403, 
4712. 

v.  State,  44   Tex.    Cr.    App.    312, 
4523. 

v.  State,  45  Tex.   Cr.   App.   430, 
33. 
Carterville  Coal  Co.  v.  Abbott,  1398, 

3829. 
Cartier   v.    Troy   Lumber   Co.,    240, 

3303,    3366. 
Cartlidge  v.   Sloan,  326. 
Cartmel  v.   Newton,  947. 
Cartright  v.  Phoenix,  1066. 
Cartwright  v.  Bamberger,  540. 

v.  Clopton,    221. 

v.  McGown,   704. 
Cartwright's  Case,  4712. 
Carvin  v.  Hower  &  Higbee,  15. 
Cary  v.  Kennedy  Nat.  Bank,  291. 
Cary    Hardware    Co.    v.    McCarty, 

3735. 
Casady  v.  Woodbury  Co.,  1304. 
Case  v.   Ayers,   3642,  3643,  3645. 

v.  Chi.,  M.  &  St.  P.  Ry.,  270. 

v.  Hulsebush,  1372,  3755. 
Casey  v.   Ballou  B.   Co.,   308. 

v.  State,    Neb.,    4316,    4317,    4321, 
4322,  4567. 

v.  State,  Tex.,  4638. 
Cash  v.    Lust,   2416. 
Casner  v.   State,  4704,  4748. 
Casnova  v.    Kreusch,    326. 
Casperson  v.   Sproule,   1272. 
Cassel  v.  First  Nat.  Bk.,  70. 
Castle  v.  State,  2646. 


xl 


TABLE  OP  CASES  CITED. 


[references  are  to  sections.] 


Castleman  v.  S.  M.  Ins.  Co.,  637. 

v.  Sherry,  4363. 
Castner  v.  Chi.,  B.  &  O.,  3361. 
Castro   v.   lilies,   1088. 
Cataline  v.  N.  B.  &  M.  Co.,  298. 
Cater  v.   Collins,   1062. 
Catholic  O.  of  P.  v.  Fitz,  272. 
Catlet  v.  Young,  990,  1398,  2126. 
Catlin  v.  Insurance  Co.,  127. 

v.  Railroad   Co.,  3690. 
Catlin    Consolidated    Canal    Co.    v. 

Euster,   824. 
Catron  v.   State,   2444. 
Cattano  v.  Met.   St.  R.  Co.,  2066. 
Cavaness  v.  State,  126,  3318,  4593. 
Cavender  v.   Waddingham,   618. 
Cavitt   v.   State,   27. 
Caywoods  Will,   318. 
Cayzer  v.  Taylor,   3782. 
Center   v.    Spring,    1272. 
Center  Creek  Min.  Co.  v.  Franken- 
stein, 3701. 
Centerville  v.  Woods,  1612,   1623. 
Central     Branch      U.      P.      Rd.      v. 
Andrews,  30  Kas.  590,  3549. 
v.  Andrews,  41  Kas.  370,  143. 
v.  Twine,  870. 
Central  Bridge  Corporation  v.  But- 
ler, 4009. 
Central  City  v.  Engle,  951. 
Cent.   C.   &  C.  v.   Good,  491. 
Centralia  v.  Krouse,  1619. 
Cent.    Mills    Co.    v.   Hart,   1227. 
Central  of  Georgia  Ry.  v.   Crosby, 
3885. 
v.  Dorsey,    3983. 
v.  Dumas,   4091,   4092. 
v.  Edmondson,   1978. 
v.  Foshee,  4051. 
v.  Goodwin,    3S71. 
v.  Grady,    892. 
v.  McKinney,  1344. 
v.  Mosely,  3580. 
v.  Partridge,   4077. 
Central  P.   Ry.  v.   Chatterson,  2079. 

v.  Kuhn,    3598. 
Central  Ry.  v.  Ankiewicz,  414. 

v.  Bannister,    173,   327,   352,   1345. 
v.  Cobb,    3506. 
v.  Kenney,    1564. 
v.  Mehlenbeck,  249. 
v.  Mitchell,  45. 
v.  Moore,    843. 
v.  Newman,    3593. 
v.  Phillips,    1068. 
v.    Nash,    106. 
v.  Sehnert,  3595. 
v.  Smalley,  4055. 
Central    Railroad    &    Banking    Co 

v.  Phinazee,  3355. 
Central   Sav.   Bk.  v.   Garrison,  2252 
Central  Tex.,  etc.,  R.  v.  Gibson,  314 
Central    Tex.     &     N.     W.     Ry.     v 
Luther,  906. 


Central  Warehouse  Co.  v.  Sargeant, 

3303,  3310. 
Chacon  v.  Territory,  241,  245. 
Chaffee  v.  United  States,  4668,  4779. 
Chamber  v.  Milner  Coal  &  R.  Co., 

309. 
Chamberlain  v.  Leslie,  320. 
Chambers  v.  People,  2539,  3470,  4379. 
Chamblee   v.   Tarbox,   1391. 
Chambless  v.   State,  2853. 
Champagne  v.  LaCrosse  C.  R.,  2072. 
Champaign  v.  Forrester,  645. 
Champion  v.  Woods,  1105. 
Chandler  v.  Allison,  136. 
v.  Barrett,  395. 
v.  Foss,  316. 
v.  Jost,   442. 
Channon  v.   Kerber,  3435. 
Chapin  v.  Clapp,  316. 
Chaplin  v.  Lee,  4591. 
Chapman  v.  Chapman,  111.,  1028. 
v.  Chapman,    Tex.,  704. 
V.  Cooks,  584. 
v.  Salfisberg,    211. 
v.  State,  4480,   4710. 
Chappell  v.   Clapp,   10S8. 
Chariton     Plow     Co.     v.     Davidson, 

2272. 
Charles  v.   Lesher,   4241. 
Chase  v.  Blodgett  Milling  Co.,  3485. 
v.  Chase,  910. 
v.  Iron   Works,   3331. 
v.  Nelson,  1301,  3725. 
v.  Ralston,   1066. 
v.  W.  U.  Tel.,  921. 
v.  Vogel,   40. 
Chastang  v.  Chastang,  1042,  3406. 
Chate  v.  Chittenden,  286. 
Chateaugay  Co.,  petitioner,  301,  302. 
Chatham   v.   State,   4802. 
Chattanooga     So.     Ry.     v.     Wilson, 

1976. 
Cheatham  v.  Hawkins,  1322. 

v.  State,   4365. 
Cheboygan    Lumber    Co.    v.    Delta 

Transp.   Co.,  3045. 
Cheek  v.   State,   217. 
Cheever  v.  Ladd,  1652. 
Chesepeak  &  O.   Ry.  v.  Clans,  1817. 
v.  Gunter,   4025,   4046,    4055. 
v.  Holloway,   1568. 
v.  Jordan,    1750. 
v.  Rogers,  2080. 
v.  Smith,    44. 
v.  Steele,  4052. 
Chesney  v.   Meadows,  176. 
Chesser  v.   Baughman,  3409. 
Chessman  v.   Hale,  300. 
Chestnut   v.    Chestnut,   1011. 
Chevallier  v.   Straham,   1708. 
Chezem   v.   State,   370,  4369. 
Chicago  v.  Apel,  3938. 
v.  Bixby,   1619,    3866. 
v.  Brophy,  1621. 
v.  Dale,  1630,  3930. 


TABLE  OF  CASES  CITED. 


xli 


[references  are  to  sections.] 


Chicago  v.  Gilfoil,    3572,    3605. 
v.  Gillett,  1640. 
v.  Harper,    316. 
v.  Keefe,  154,  414,  983,  1337,  1354, 

3612,   3835. 
v.  Major,  937,  979,  986. 
v.  McGiven,  33,  1611. 
v.  McLean,  918,  1667. 
v.  Moore,  208,  209. 
v.  O'Malley,   3919. 
v.  Robbins,   1644. 
v.  Rogers,    279. 
v.  Schmidt,  376$* 
v.   Scholten,   983,  3612. 
v.  Sexton,  3516. 
v.  Sheehan,    893. 
v.  Spoor,   322,   849,  874. 
v.  Stearns,  1629. 
v.  Union  Bldg.  Ass'n,  3549. 
v.  Walter,   1361. 
v.  Witt,  2228. 
v.  Wright,  1145. 
Chicago  &   Alton   R.   Co.  v.   Adler, 

56  111.  344,  32. 
v.  Adler,  Il9  111.  335,  3944. 
v.    Anderson,    55    111.    App.    649, 

3902. 
v.  Anderson,    166,    111.    572,    1345, 

1855,  1899,  1935. 
v.  Arnot,  2039,   3965. 
v.  Becker,      Admr.,     1354,     3903, 

3847,  3903. 
v.  Becker,    1987. 
v.  Bell,  316. 
v.  Buckmaster,  885. 
v.  Byrum,  1747,  3983,  4009. 
v.  Carey,  2508. 
v.  Clampit,   1989. 
v.  Davis,  -802. 
v.  Dubois,  3850. 
v.  Engle,  1987. 
V.  Eselin,  1347. 
v.  Esten,   157. 
V.  Fisher,    32,    327,    355,    893,    1338, 

1345,  1413,  1800,  1816,  1866,  206S. 
v.  Glenney,  118  111.  487,  2352. 
v.  Glenney,  175  111.  238,  127. 
v.  Gore,  1345. 

v.  Harrington,    1345,    1604,    414S. 
v.  Howell,  1465. 
v.  Hoyt,   1428. 
v.  Jacobs,   1945. 
v.  Jennings,  3754. 
v.  Keegan,  458,  1035,  3410. 
V.  Kelly,  1S2  111.  267,  974. 
v.  Kelly,  210  111.  449,  349. 
v.  Kelly,  75  111.  App.  490,  3753. 
v.  Kerr,  3845,  3851,  4009. 
v.  Kirkland,  205. 
V.  Logue,    1931. 
y.  Martin,  3598. 
v.  Matthews,   3873. 
V.  May,  3811. 
V.  McDonell,  405,  3567. 


Chicago  &  Alton  R.   Co.   v.   Merri- 

man,  86  111.   App.  454,  3888. 
v.  Merriman,     95    111.    App.    628 

1554. 
v.  Mock,  171,  39S4. 
v.  Munroe,  1664. 

v.  Murray,  62  111.  326,  1871,  37S9. 
v.  Murray,  71  111.  601,  1354. 
V.  Myers,    3871. 
v.  Nelson,  153  111.  89,  1679. 
v.  Nelson,   59  111.   App.   308,  4032. 
v.  O'Brien,   1429,   1554. 
v.  O'Neil,  3753. 
v.  Pearson,   1951. 
v.  Pelligreen,  3303. 
v.  Pennell,   1998. 
v.  Quaintance,  1988,   1989,   1998. 
v.  Rayburn,  3984,  4009. 
v.  Redmond,  127. 
v.  Robinson,  163,  3303,  3810. 
v.  Sanders,   1889,  4045,  4061,  4126. 
v.  Scott,  1739,  1745. 
v.  Scranton,  4062. 
v.  Shannon,  981. 
v.  Smith,   4062. 
v.  Staley,  3559. 
v.  Tracy,    311. 
v,  Umphenour,  1964. 
v.  Utley,   179,  4094,   4244. 
v.  Walters,   173,   1505. 
v.  Wilson,  2039. 
v.  Winters,  329,  355. 
Chicago    &   Eastern    Ind.    R.    R.    v. 

Beaver,  2508. 
V.  Blair,  4084. 
v.  Boggs,  1883. 
V.  Burridge,    145,     364,    401,    930, 

1940. 
v.  Casazza,    1830. 
V.  Coggins,  1950. 
V.  Crose,  1987,  4036. 
V.  Filler,  25S,  352,  3345. 
V.  Finnan,  141,  3843. 
v.  Garner,  234,  236. 
v.  Geary,  1428,  4278. 
v.  Goyette,  1989. 
v.  Hedges,   1914,   4018. 
v.  Heerey,  3976. 
v.  Hildebrand,  et  al.,  3558- 
v.  Hines,  1429,  4062. 
v.  Holland,   129,  893. 
v.  Hopkins,  842. 
v.  Johnson,   4032. 
v.  Jones,  309. 
v.  Klmmel,  1429. 
v.  Knapp,  3S88,  3890. 
v.  Kneirim,  1428,  3753. 
v.  Lane,  4046. 
v.  Linn,  993. 
v.  Mochell,  228. 
v.  O'Conner,  4134. 
v.  Patterson,    362. 
v.  Rains,  331. 
v.  Stonecipher,  1772. 
v.  Storment,  1911,  1912. 


xlii 


TABLE  OP  CASES  CITED. 


[BEFEBENCES   ABE   TO    SECTIONS.] 


Chicago    &   Eastern   Ind.    R.    R.    v. 

Zapp,    1905,    1953. 
Chicago    &    Erie    R.    v.    Binkopski, 
234. 
v.  Blake,  864. 
v.  Cleminger,   941. 
v.  Jacobs,  845. 
v.  La  Porte,  1961. 
v.  Meech,  931.  3582. 
v.  Rain,    309. 
Chicago    &    Grand    T.    Ry.    Co.    v. 
Kinnare,     76     111.     App.     394 
1580,  3903. 
v.  Kinnare,     115    111.     App.     132, 

982. 
v.  Murray,  863. 
v.  Smith,   154,  155. 
v.  Spurney,     335,     364,     380,     918, 
3574. 
Chicago    &    G.    W.    Ry.    v.    Arm- 
strong., 3846. 
v.  Bailey,   4052. 
v.  Mohan,  260. 
v.  Wedel,  854. 
Chicago  &  la.   R.  R.  v.  Lane,  1891, 

3944,    4134. 
Chicago,  I.  &  E.  Ry.  v.  Patterson, 

3565. 
Chicago   &  I.    C.   Ry.   v.   Hall,   3565. 

v.  Hunter,  321. 
Chicago  &  J.   Elec.   Ry.   v.   Patton, 

1345. 
Chicago  &  Mil.  El.  Ry.  v.  Bowman, 
3563. 
v.  Diver,    861,    866. 
v.  Krempel,    3600. 
v.  Mawman,    3559. 
v.  Ullrich,  882. 
Chicago     &     Miss.     R.     R.     Co.     v. 

Patchin,   4151. 
Chicago    &    N.    E.    Ry.    v.    Miller, 

1929. 
Chicago    &    N.    W.    Ry.    v.    Barrie, 
1973. 
v.  Bayfield,  978. 
'    v.  Bouck,  4175. 
v.  Bunker,  4087. 
v.  Calumet    Stock    Farm,    785. 
v.  Chi.  &  E.  R.  R.,  2230. 
v.  Chisholm,  199. 
v.  Cicero,   3544,  3545. 
v.  Clark,   4046. 
v.  Delaney,  261. 
v.  Dickinson,    800. 
v.  Dimnick,    4063. 
v.  Dunleavy,    249,    254,    264,    270, 

438,    3303,   4056. 
v.  Goebel,   1581. 
v.  Hansen,   3944. 
v.  Harris,   1964. 
v.  Hatch,   1902. 
v.  Jackson,    1563. 
v.  Jamieson,   1848,   1948. 
v.  Moranda,  93  111.   302,  1428. 
v.  Moranda,  108  111.  576,  3983. 


Chicago  &  N.  W.  Ry.  v.  N.  Line  P. 

Co.,  1702. 
v.  N.  W.  U.  P.  Co.,  1746. 
v.  Ryan,  2018. 
v.  Simonson,    2001. 
v.  Smedley,  245. 
v.  Snyder,  1428. 
v.  Stube,    3310. 
v.  Swett,  3612. 
v.  Taylor,    1437,   1495. 
v.  Trayes,    3303,    4175. 
v.  Williams,  1820. 
Chicago  &  Pac.  R.  R.  Co.  v.  Hilde- 

brand,  3561. 
Chicago  &  State  Line  Ry.  v.  Mines, 

3543. 
Chicago  &  W.  I.   R.  R.  v.  Bingen- 

heimer,  194. 
v.  Doan,   1365,   1775. 
v.  Flynn,    3762. 
v.  Ketchem,   4019. 
v.  Ptacek,    3609. 
v.  Roath,  1858,  3952. 
v.  Zerbe,   4036. 
Chicago    Ath.    Assn.    v.    Eddy,    210, 

3768. 
Chicago,    B.    &    D.    Ry.    v.    Keely, 

3583. 
Chicago,   B.   &  N.  Ry.  v.   Bowman, 

3558,    3563. 
Chicago,   B.   &  Q.   R.   R.   v.  Appell, 

172,  315,  1361,  4036. 
v.  Camper,  1444,   1575,   1911,  4148. 
v.  Cauffman,  3303. 
v.  Casey,  1374. 
v.  Colwell,   4046. 
v.  Curtis,  3813. 

v.  Dickson,    199,    1468,    1844,    4028. 
v.  Dunn,    3965. 
v.  George,  1300,  1795. 
v.  Goldman,  3958,  3959. 
v.  Greenfield,     3743,     3380,     3753, 

4169. 
v.  Griffin,    1828,    3557. 
v.  Gunderson,   4134. 
v.  Haggerty,  990,  1987. 
v.  Hale,   3590. 
v.  Harwood,  981,  40S9. 
v.  Hines,    918,    3574. 
v.  Johnsen,   3738,   3753,   3837. 
v.  Kellogg,  3787. 
v.  Lee,  1870,  1910,  1922,  3303. 
v.  Levy,   3965,   4009,  4080. 
v.  Martin,  882. 
v.  McGinnis.   3813. 
v.  McLallen,   1943. 
v.  Mehlsack,    3970,    3971. 
v.  Murowski,  260,  4070. 
v.  Naperville,    3544. 
v.  O'Neil,   1895. 
v.  Oyster,   1241,  3787. 
v.  Payne,  972,  980,   988. 
v.  Pollock,  334. 
v.  Schaeffer,    2358. 
v.  Sykes,   3612. 


TABLE  OF  CASES  CITED. 


xliii 


[references  are  to  sections.] 


Chicago,  B.  &  Q.  R.  R.  v.  Warner, 
123    111.    38,    1511,    1578. 

v.  Warner,   108  111.   538,  898,   899. 

v.  White,  4020. 

v.  Yorty,  1874. 
Chicago  City  Ry.  v.  Allan,  734,  901, 
3330. 

v.  Anderson,     182    111.    198,     898, 
3603. 

v.  Anderson,  193  111.  12,  84,  85. 

V.  Bannister,  360. 

v.  Bucholz,  269. 

V.  Bundy,   355,   358,  402,   1747. 

v.  Canevin,   2072,   3603,   4151. 

v.  Carroll,   360,  1347. 

v.  Catin,  2028. 

v.  Cauffman,  1974. 

v.  Cooney,   272. 

V.  Dinsmore,  4134,  4169,  4181. 

v.  Fennimore,   1347,   4177. 

V.  Fetzer,   58. 

V.  Hastings,   352. 

V.  Hyndshaw,  262. 

V.  Jones  Fur.  T.  Co.,  126. 

v.  Keenan,  3309,  3342. 

V.  Lowitz,  4134,  4151. 

V.  McLaughlin,  88. 

V.  Mager,    364. 

V.  Math,  2028,  4148. 

V.  Mattheson,    314. 

V.  Mauger,  360,  2092,  3345,  4169. 

V.  Mead,    402,   898. 

V.  Meinheit,    2092. 

V.  Mumford,   2039. 

V.  Nelson,   932,  1347. 

V.  O'Donnell,      513,      1337,      1911, 
2073. 

V.  Olis,   348,   350,   364. 

v.  Osborne,  234,  366,  734. 

v.  Pelletier,    2056. 

v.  Pural,  1747. 

v.  Roach,    3380. 

v.  Robinson  Admx.,  4079. 

v.  Rohe,  2092,  3310,  3605. 

v.  Rood,  2028. 

v.  Saxby,  362,  2013. 

v.  Schmidt,   2069,  4128. 

v.  Schuler,  676,  2100. 

v.  Shaw, .  343,    350. 

V.  Smith,    69    111.    App.    71,    126, 
4062. 

V.  Smith,    54    111.    App.   415,    4175. 

v.  Taylor,    883. 

v.  Tuohey,  338,  364,  367,  1354. 

v.  Wall,    96,   224,   3948. 

v.  Wilcox,    1354. 
Chicago    Con.    T.    Co.    v.    Gervens, 

3322. 
Chicago   Elec.   Tr.   Co.   v.   Kinnare, 

314. 
Chicago,  E.  &  L.  S.  R.  R.  v.  Cath. 

B.,   2230. 
Chicago  Forge  &  B.  Co.  v.  Hedges, 
794. 

V.  Sanche,  793. 


Chicago  Gen.  Ry.  v.  Carroll.  4171. 
v.  Gitchell,    797. 
v.  Novaeck,  248,   3380. 
Chicago    Heights    L.    A.    v.    Butler, 

709. 
Chicago    House    Wrk.    Co.    v.    Du- 

rand,   4251. 
Chicago  I.  &  L.  Ry.  v.  Glover,  3856. 
v.  Salem,  297. 
v.  Thrasher,  3599,  4023. 
v.  Turner,   1961. 
v.  Wicker,   3347. 
Chicago    Iron    &    Steel    v.    Martin, 

4080. 
Chicago  L.  S.  Co.  v.  Fox,  300. 
Chicago,  M.  &  St.  P.  Ry.  v.  Darke. 
858,   4116. 
v.  Dowd,  972,   980,  988. 
v.  Hall,  879,  855. 
v.  Halsey,    1866,    3595,    4046,    4052, 

4066,    4169. 
v.  O'Sullivan,    179,    194,    980,    988, 

1902,   3768. 
v.  Staff,   1349. 
v.  West,  1374. 
Chicago  N.  S.   Ry.  v.  Hebson,  3380. 
Chicago  N.  S.  St.  Ry.  v.  McCarthy, 

3384. 
Chicago  P.  &  P.  Co.  v.  Tilton,  196. 
Chicago  P.  Co.  v.   Rohan,  3775- 
Chicago    P.    B.    Co.    v.    Sibkowiak, 

160. 
Chicago,  P.  &  St.  L.  Ry.  v.  Blume, 
861. 
v.  Greiney,  867. 
v.  Lewis,  937,  1747. 
v.  Nix,    3548. 
v.  Wolf,   859. 
v.  Woolridge,  3612. 
Chicago,   R.  I.   &  P.   Ry.  v.  Armes, 
1781. 
V.  Austin,     980,     989,     1925,    3598, 

3612,   3983,  4061. 
v.  Boyce,   1836. 
v.  Brackman,  4019. 
v.  Clark,  3845. 

v.  Cleveland,    360,    3345,    3768. 
v.  Clough,  1906,  4049. 
v.  Fairclough,  1744. 
v.  Givens,  3310. 
v.  Houston,  1869. 
v.  Kinnare,  1572. 
v.  Leisy    B.    Co.,    843,    846,    852, 

869. 
v.  Lonergan,      3769,     3784,      3845, 

3851. 
v.  Long,  1497. 
v.  Moffitt,  2358. 
v.  Morris,   981. 
v.  Otto,  883,  3605. 
v.  Parks,    1874. 
v.  Rathburn.   138. 
v.  Shaw,  4279. 
v.  Smith,  861. 
v.  Williams,  3838. 


xliv 


TABLE  OF  CASES  CITED. 


[EEFEKENCES  are  to  sections.] 


Chicago,  R.  I.  &  P.  Ry.  v.  Young, 
288. 

v.  Zernecke,  974,  3611. 
Chicago,    St.    L.    &    N.    O.    Co.    v. 

Scurr,  960. 
Chicago,   St.   L.   &  P.  Ry.  v.   Bills, 
1089. 

v.  Fry,  3856. 

v.  Hutchinson,  1906,  3435,  3944. 

v.  Spilker,  1352. 
Chicago,  St.  P.  M.  &  O.  R.  v.  Peli- 

tier,   3340. 
Chicago,  Sante  Fe  &  California  Ry. 

v.   Bentz,  4063. 
Chicago  So.  Ry.  v.  Nolin,  3559. 
Chicago  Telephone    Co.    v.    Hiller, 

1365. 
Chicago  T.  R.  R.  v.  Gruse,  882. 

v.  Schmelling,  258,  362,  1806,  3344, 
3384. 
Chicago  T.  &  T.  Co.  v.  Ward,  4202. 
Chicago  Training  School  v.  Davies, 

3516. 
Chicago  U.  T.  v.  Browdy,  883,  916, 
3745. 

v.  Chugren,   2100. 

v.  Dyborg,  644. 

v.  Fortier,  1347. 

v.  Grommes,    39S4. 

v.  Jacobson,  314,   4177. 

v.  Kalberg,  2020. 

v.  Lawrence,  1345. 

v.  Leach,  314,  513,  2100. 

v.  May,    361. 

v.  Mee,  1347,  1361,  2028. 

v.  Miller,    899. 

v.  Mommsen,  364,  367. 

v.  Newmiller,  2033,  2075. 

v.  Obrien,     313,     401,     2020,     2021, 
2071,  3320,  3966,  4122. 

v.  Sawusch,   3S02. 

v.  Shedd,  3349. 

v.  Strand,  3380. 

v.  Yarus,  353,  4121. 
Chicago  Virden  Coal  Co.  v.  Rucker, 

4191. 
Chicago  W.  Div.  Ry.  v.  Bert,  2092, 
3309,  4169. 

v.  Hair,  3952. 

v.  Mills,    2039. 
Childers  v.  San  Jose  Mercury,  4266. 
Childress  v.  State,  4497. 
Childs  v.   Derrick,  1091. 

v.  Jones,    1324. 

v.  Merrill,   1133. 

v.  State,  58  Ala.  349,  4635. 

v.  State,  76  Ala.  93,  345. 
Chilton  v.   Ry.,  984. 
China  v.   City  of  Sumter,  4010. 
Chipley  v.  Atkinson,  762. 
Chism  v.  State,   Fla.,  4529. 

v.  State,  Tex.,   3093. 
Chitister  v.  State,  2497. 
Chittenden  v.   Evans,   3323. 
Choate  v.  Spencer,  299. 


Choctaw   O.   &  G.  Ry.  v.  McDave, 

1465. 
Chose  v.  Buhl  Iron  Works,  176. 
Christensen  v.   Lambert,   3315. 
Christy   v.    Elliott,    339,    3954. 
Church  v.   Beach,   945. 
Churchill  v.  Thompson  El.  Co.,  2418. 
Chytraus  v.  Chicago,  105. 
Cicero    &   P.    St.    R.    R.    v.    Brown, 
349,    401,    402,    882,    883. 

v.  Meixner,   4150,  4151. 

v.  Richer,   3598. 

v.  Rollins,  335,  367. 

v.  Woodruff,  348. 
Cichowitcz  v.  I.   P.  Co.,  4278. 
Cincinnati  v.   Penny,  1653. 
Cincinnati,   etc.,   R.   v.    Eaton,   401S. 
Cincinnati  H  &  D.  R.  v.  McMullin, 

1574. 
Cincinnati  H.   &  I.  Ry.  v.  Clifford, 

316. 
Cincinnati    H.    &   J.    R.    v.    Carper, 

2068. 
Cincinnati  I.,  St.  L.  &  C.  V.  Roesch, 

130. 
Cincinnati  N.  O.  &  T.   P.  R.    R.   v. 
Farra,  4180. 

v.  Russell,   4083. 
Cincinnati  &  S.   Ry.  v.  Longworth, 

876. 
Cincinnati  &  Z.   R.   v.    Smith,   1873, 

1963. 
Citizens'  Bank  &  S.  Co.  v.  Spencer, 

307. 
Citizens'  Ins.  Co.  v.   Hoffman,  3679. 
Citizens'   Ry.  v.   Jolly,  4121,   4123. 

v.  Sinclair,  4121. 
Citizens'  St.  R.  v.  Ballard,  2014. 

v.  Dan,  2081. 

V.  Ford,   2104. 

v.  Gossett,  2083. 

v.  Hobbs,  928,  930. 

v.  Hoffbauer,   882,   2020,   4137. 

v.  Howard,  4169. 

v.  Merl,  2063. 

v.  Shepherd,  2081,  2092. 

v.  Spahr,  4151. 

v.  Willoeby,  2055. 
City  Bank  v.  Kent,  94,  333,  371,  378. 
City   of   Bloomington   v.    Bay,   1638. 
City  Council  v.  Wring,  1644. 
City  Ry.  v.  Findley,  1344. 
Clackner  v.  State,  4788. 
Clampit  v.  Chi.,  St.  P.  &  K.  C.  Ry., 

4069. 
Clancy  v.   Byrne,  3696. 
Clapp  v.  Engledon,  299. 

v.  Noble,   1228. 
Clapper  v.  Mendell,  688. 
Clardy  et  ux.   v.  Wilson,  1086. 
Clare  v.   People,  2677,  4437. 
Clarey  v.  State,  2839,  3067. 
Clark  v.  Campaw,  582. 

v.  Clark,    1040. 

v.  Cleveland,  1274. 


TABLE  OF  CASES  CITED. 


xlv 


[REFERENCES  ABE  TO  SECTIONS.] 


Clark  v.  Commonwealth,   2658,   2720, 
2785,    3043,    3063,   4506. 

V.  Cox,  1013. 

v.  Elizabeth,   1148. 

v.  Ellsworth,  318. 

v.  Fisher,  4293. 

v.  Forlker,    1270,    3711. 

v.  Hills,  4009. 

v.  Johnson,  2174. 

v.  Lamb,  278. 

v.  Lee,   1063. 

v.  Lewis,  2239,  4237. 

v.  O'Rourke,  73. 

v.  Pearson,  311. 

v.  P.   Ry.   Co.,  2031,  2032,   4130. 

v.  Raymond,  308. 

v.  Rosier,  2S6. 

v.  Scanlan,  3516. 

v.  State,  Ala.,  2986,  3072. 

v.  State,  Ind.,  4558. 

v.  State,  28  Tex.  App.  189,   2913. 

v.  State,    45    Tex.    Cr.   App.    479, 
3143. 

v.  State,    38    Tex.    Cr.    App.    30, 
4327. 

v.  Syracuse  &  U.  R.,  4151. 
Clarke  v.  State,  3019,  4609. 

v.  Van  Court,  510,  756,  2278. 
Clary   v.   Sarrancy,  2172. 
Clasen  v.  Pruhs,  529. 
Claudius   v.   West   End   H.   A.   Co., 

1465. 
Clausen  v.   Ry.  Co.,  123. 
Clawson  v.  State,  1283. 
Clay  F.   &  M.   Ins.   Co.  v.  Wuster- 

hausen,  3674. 
Clayton  v.   State,  4374. 
Cleage  v.  Hyden,  46. 
Clear  C.  S.   Co.  v.  Dearmin,  1417. 
Clearfield  Park  v.   Olin,  308. 
Clearwater  v.    Kimler,   614. 
Cleary  v.  Mun,  El.  L.  Co.,  3754. 
Cleghorn  v.   Barstow  Irr.  Co.,  3512. 
Cleland  v.  Huey,  117. 
Clemens    v.    Hannibal    &   St.   J.   R. 
R.,   897. 

v.  State,  3022,  3068,   3070,  4667. 
Clements  v.  Hays,  451. 
Cleveland  v.  Gray,  120. 

v.  Newson,  1374. 

v.  State,   2986,   3072,   4628. 
Cleveland     &     E.     Electric     R.     v. 

Hawkins,  71. 
Cleveland  C.  C.  &  St.  L.  v.  Alfred, 
314. 

v.  Baddeley,  248,   979,   3837,   4080. 

v.  Baker,   1868. 

v.  Best,  3974. 

v.  Butler,   3837. 

v.  Coffman,  1961. 

v.  Dixon,  3847. 

v.  Elliott,  4  Ohio  St.  474,  1881. 

v.  Elliott,   28   Ohio  St.   340,   1486, 
1910,  1928. 

V.  Hall,  3805,  3812. 


Cleveland,    C.   C.    &   St.    L.  v.  Har- 
rington, 1883. 

v.  Jenkins,   3598,  3612,  3983. 

v.  Keenan,   974. 

v.  Mansou,  1354,  1363. 

v.  Maxwell,    3980,    4050,    4080. 

v.  Miller,   912. 

v.  Monaghan,  173. 

v.  Parker,  3821. 

v.  Ricker,   1857. 

v.  Schneider,   4056,  4058. 

v.  Scott,  3965. 

v.  Selsor,   3837,   3845. 

v.  Strong,   132. 

v.  Terry,  1867. 

v.  Walter,  Adm'r,  1528,  3854. 

v.  Williams,  239. 
Clewis  v.  Malone,  4244. 
Clews  v.  Bank,  73. 
Clifford  v.  Minneapolis,  St.  P.  &  S. 
S.  M.   R.,   1990. 

v.  State,  2617,  3106,  3119. 
Clifton  v.  State,    Ala.,    4671. 

v.  State,   Tex.,  4518. 
Cline   v.   Lindsey,    3300,   3304,   3331. 

v.  State,  4554. 
Clingan  v.  Dixon  County,  3955. 
Clisby  v.  Mobile  &  O.  R.  Co.,  1996, 

4102. 
Close  v.  Cooper,  526,  3142. 
Closson  v.   Staples,  1263. 
Clough  v.  State,  277,  3076,  3081,  4670. 
Coal  Co.  v.  Estievenard,  1486. 

v.  Hoodlet,   356. 

v.  Richards,  4276. 
Coale    v.    Hannibal,    etc.,    R.    Co., 

1997. 
Coates  v.  People,  2726. 
Coats  v.  Coats,   307. 
Cobb  v.   Malone,   447. 

v.  State,  188. 
Cobbath  v.  State,  2606. 
Cochran  v.  State,  Ga.,  338,  2443,  2766. 

v.  State,  Tex.,  3123. 

v.  Stewart.   1114,   1117,    1128. 

v.  U.   S.,  2634,  4422. 
Cochrane  v.  Ripley,  2252. 
Cockrell  v.  Thompson,  590. 
Codeau  v.  Blood,  2350. 
Coe  v.  Wager,  709. 
Coffelt  v.  State,  4576. 
Coffin  v.  Brown,  2290. 

v.  United  States,  2636,  2645,  4366, 
44^7,  4792. 
Coffman  et  al.   v.   Campbell  &  Co., 

637. 
Cogan  v.  Ry.,  4120. 
Coghill  v.  Boring,  1116,  1129. 

v.  Kennedy,      2396,      4302,      4303, 
4775. 

v.  State,    3059. 
Cohen  v.  Cohen,  2221. 

v.  P.  &  R.  R.  R.,  1882. 

v.  State,  3355. 
Cohn  v.  People,  4791. 


xlvi 


TABLE  OF  CASES  CITED. 


[REFERENCES  are  to  sections.] 


Cohn  v.  Saidel,   1268. 
Coil  v.  State,  3113,  3137. 
Coit  v.  Churchill,  3337. 
Colbert  v.  State,  349,  2494,  2500. 
Colburn   v.    Brummel,    84. 

v.  Morrill,  1246. 
Colby  v.  Meservey,  3525. 
Cole  v.  Brown,  1086. 

v.  Central   Ry.,   4171. 

v.  High.   3486,  3522,   3641. 

v.  L.  S.  &  M.   S.  Ry.,  144. 

v.  Miller,   1108. 

v.  Seattle,  R.  &  S.  Ry.  Co.,  902, 
907,   920. 

v.  St.  L.  T.,  1426. 

v.  State,    2756. 
Coleman  v."  Adair,  3375. 

v.  State,   4451. 

v.  Vollmer,    704. 
Coley  v.  City  of  Statesville,  3724. 
Collector  v.   Halley,   3707. 
Collier    v.    Gavin,    601. 

v.  Shoe  Co.,  540. 

v.  Vanentine,    1660. 
Collins  v.  Canty,  3489. 

v.  Commonwealth,    116. 

v.  Godefrey,  622. 

v.  Hayte,  1260. 

v.  City    of    Janesville,    99    Wis. 
464,  3576. 

v.  City    of    Janesville,    107    Wis. 
436,    3927. 

v.  City    of    Janesville,    111    Wis. 
348,   1650,   1671,   3927. 

v.  Johnson,  435. 

v.  Mack,  1919. 

v.  People,    139   111.    233,    3224. 

v.  People,  194  111.  506,  123. 

v.  Prosser,   3488. 

v.  R.  R.  Co.,  4102. 

v.  The  City,  etc.,  922. 

v.  State,  Ala.,  2708. 

v.  State,  Tex.,  582. 

v.  State,  Wis.,  2616,  4410. 
Colorado   Canal   Co.   v.   McFarland, 

666. 
Colorado    Cons.,    L.    &    W.    Co.    v. 

Hartman,  824,  3541. 
Colorado  Springs   v.   May,   3934. 
Colt  v.  Railroad  Co.,  250. 
Columbus   v.   Anglin,   1609. 

v.  Sims,    905,   913,   1661. 
Columbus,     C.     &     I.     C.     Ry.     v. 

Troesch,   171,  1437. 
Columbus  Ins.  v.  Lawrence,  1157. 
Colwell  v.  Keystone  Iron  Co.,  2251. 
Combs  v.  State,  223. 
Comer  v.  Heidelbach,  540. 

v.  Huston,   2426. 
Comfort   v.    Ballingal,   3680. 
Commercial      Bank      v.      Chatfield, 

3455. 
Commercial  Nat.  Bk.  v.  Pirie,  1100. 
Commissioners  v.  Wise,  3800. 
Commonwealth  v.  Adams,  2721. 


Commonwealth  v.  Bezek,   4326. 
v.  Boutwell,  3189. 
v.  Briant,    3190. 
v.  Brown,   146. 
v.  Carter,  2962. 
v.  Certain  Intoxicating  Liquors, 

86. 
v.  Choate,    2443. 
v.  Clifford,   2788. 
v.  Coe,  2939. 
v.  Combs,   2987. 
v.  Costley,  2634,  2656. 
v.  Crowninshield,   2911. 
v.  Drum,  4747. 
v.  Eastman,  106. 
v.  Eckerd,  2483. 
v.  Eddy,    4395. 
v.  Emmons,  3196. 
v.  Evans,  59. 
v.  Finnegan,   3196. 
v.  Fireback,  4401. 
v.  Fisher,  15. 
v.  Follansbee,  66. 
v.  Galligan,  4363. 
v.  Goodwin,  2497. 
v.  Gould,    4774. 
v.  Grant,   3263. 
v.  Hackett,  2974. 
v.  Hagenlock,  4415. 
v.  Harmon,   2483. 
v.  Harris,   406. 
v.  Hart,    3674. 
v.  Hayes,  3190. 
v.  Hill,    128. 
v.  Hollinger,   2576. 
v.  Holmes,   3079. 
v.  Houle,  3190. 
v.  Hull,    223. 
v.  Hurd,    3211. 
v.  Joslin,   4774. 
v.  Kimball,  2636. 
v.  Lee,  2939. 
v.  Marsh,   2798. 
v.  Mason,  3230. 
v.  McGowan,   2612,   2707,   3039. 
v.  McKie,   4395,   4613,  4779. 
v.  McPike,   4477. 
v.  Parker,   4609. 
v.  Pipes,  4385. 
v.  Power,  1820. 
v.  Putnam,   3192. 
v.  Ralph,    288. 
v.  Randall,    4569. 
v.  Rogers,   2573,   2586. 
v.  Scamal,   4529. 
v.  Shedd,  2876. 
v.  Stone,   2939. 
v.  Sugland,  4529. 
v.  Turnpike   Co.,    771. 
v.  Wagner,   270. 
v.  Walsh,    89. 
v.  Webster,  2480,  2508,  2571,  2634, 

2652,     2660,     2664,     2867,     3025, 

3059,  4405,   4434. 
v.  Whitney,  1010. 


TABLE  OF  CASES  CITED. 


xlvii 


[references  are  to  sections.] 


Commonwealth  v.  Wireback,    2597. 
v.  Wong   Chung,    38. 
v.  York   2867,    3069. 
Commonwealth    El.    Co.     v.     Rose, 

1353,    1465,    2122. 
Commonwealth    Ins.    Co.    v.    Mon- 

ninger,   3679. 
Compher  v.   Browning,  2395. 
Compton    v.    State,    2707,   2720,    30S6, 

4746,  4749,  4756. 
Comstock  v.  Hannah,  2167,  2176. 
Conant  v.   Griffin,   981. 
Conany  v.  Jones,  315. 
Conde  v.   State,  2913. 
Condiff  v.    Ry.    Co.,   38S5. 
Conductors'  Ben.  Ass'n  v.  Loomis, 
3527. 
v.  Tucker,   3527. 
Cone  v.  McKie,  2595. 
Conger  v.  Dingeman,  322. 
Congregational      Society,      etc.      v. 

Perry,  678. 
Congswell    v.    W.    S.    &    N.    E.    E., 

2069. 
Conkling  v.   Olmstead,  4220. 
Conkwright  v.  People,   3244. 
Conn.  L.  Ins.  Co.  v.  U.  Tr.,  1190. 
Connell  v.  W.  U.  Tel.,  921. 
Connelly   v.    Sullivan,    50   111.   App. 
629     3337. 
v.  Sullivan,'  119    111.     App.    469, 
2145,  4203. 
Conners   v.   Bur.   C.   R.    &   N.   Ry., 

3870,    3896. 
Conness  v.  Ind.  &  I.  R.  R.,  3559. 
Connett  v.   Chicago,  486. 
Connor     v.      Commonwealth,     2646, 
2675,    2706,    3027,    3161,    4650. 
v.  Johnson,    438,     441,     443,    444, 
579,    584,    588,    882,    996,    1041, 
2305. 
v.  Ry.  Co.,  4151. 
v.  State,  2515. 
Connors  v.   Chingren,  1103. 
v.  People,    4562. 
v.  State,   2525. 
Conrad  v.   Cleveland  R.,  315. 
v.  Kinzie,  2158. 
v.  State,  373,  2444,  2564. 
Conrow  v.  Schloss,  281,  284. 
Conroy  v.  Chi.,  etc.,  Ry.,  270. 
Consolidated   Coal   Co.   v.   Bokamp, 
1444. 
v.  Fleshbein,   3802. 
v.  Haenni,    198,    1395,    1580,    1856, 

3524. 
v.  Scheiber,  1345. 
Consolidated  K.  C.  Co.  v.  Tinchert, 

888. 
Consolidated   Stone  Co.  v.  Morgan, 
Adm'r.  1417. 
v.  Staggs,  323. 
v.  Summit,   3821. 
Consolidated  Traction  Co.  v.  Cheno- 
with,  2095. 


Constantine  v.  Fresh,  326. 
Construction  Co.  v.   Wabash  R.  R. 

Co.,   517. 
Continental     Imp.     Co.     v.     Stead, 

1961,  4030,  4180. 
Continental  Ins.  Co.  v.  Horton,  314. 

v.  Kyle,  1164. 
Continental  Life  Ins.  Co.  v.  Rogers, 

3681. 
Converse    v.    Norwich    Trans.    Co., 

1700. 
Convey's  Will,  2387,  4294. 
Conway  v.   State,  127. 
Cook  v.  Brown,  209,  4504. 

v.  Cooper,  281. 

v.  Doud,  242. 

v.  Helms,  2134,   2171,  2173. 

v.  Hopper,   2300. 

v.  Ins.,    1164. 

v.  Malone,  668. 

v.  Morea,  2321. 

v.  Murphy,  707. 

v.  People,  3287. 

v.  Robinson,  185,  190. 

v.  State,    Fla.,    2618,    2689,    2986, 
3056,    3085,   4462,   4640. 

v.  State,  Ga.,  2804,  4365. 

v.  State,    Miss.,    4350,    4668. 

v.  Wierman,  4216. 
Cook  B.  Co.  v.  Ryan,  224. 
Cook  Co.  v.  Harms,  513,  4248. 
Cooke  v.  Lantz,  4255. 
Cook  Mfg.  Co.  v.   Randall,  103,  109. 
Cooksie  v.  State,   234. 
Cooley  v.  P.  R.  Co.,  295,  305. 
Coolman  v.  State,  3072. 
Coombs  v.  Cordage  Co.,  1383. 
Coon  v.  People,  3470. 
Cooper  v.  Cent.  R.,  1947. 

v.  Fleming,   1279. 

v.  Francis,  105. 

v.  Hare,  1024. 

v.  Humes,  3452. 

v.  Johnson,  111.,  3506. 

v.  Johnson,   Mo.,  2735. 

v.  Nisbet,  2429. 

v.  Ry.  Co.,  4066. 

v.  Schlesinger,  1110. 

v.  State,  3122,  4684. 
Copeland  v.  State,  4402. 

v.  Wabash  R.  Co.,  884,  917,  1337, 
1527,    1571. 
Copenhaver  v.    State,   4400. 
Copley  v.  U.  Pac.  Ry.,  1039. 
Corbett  v.  Ore.  Short.  R.,  984,  4026, 

4079. 
Corbit  v.  Smith,   4296. 

v.  Underwood,  606. 
Corbley  v.  Wilson,   2289. 
Corcoran   v.   Concord   &   M.    R.   R. 
Co.,  4002,  4019. 
v.  Detroit,  1636. 
v.  Ry.   Co.,  4168,  4172. 
Cordill  v.  Moore,  3409. 
J  Corkings   v.    Meier,    3691. 


xlviii 


TABLE  OF  CASES  CITED. 


[BEEEBENCES   ABE  TO   SECTIONS.] 


Corley  v.  State,  3355. 
Corlin  v.  Ry.  Co.,  4151. 
Corneby  v.   Gibbons,  4286. 
Cornelius  V.  Hultman,  36S9. 
Cornell  v.  Central  Elec.  Co.,  628. 
Cornish  v.  Territory,  4352. 
Corrigan  v.   Conn.  F.  Ins.   Co.,   309. 
Cortelyou  v.  Hiatt,  70. 
v.  McCarthy,  3797. 
Cortez   v.    State,    43  Tex.    Cr.   App. 
375    2449. 
v.  State,   44   Tex.    Cr.   App.    169, 

4325. 
v.  State,    8    Tex.     Ct.     Rep.     27, 
4593. 
Cosgriff    v.'    Miller,    822,    2304,    2320, 

4273. 
Cosgrove  v.  Burton,  394. 
v.  Leonard,  394,  552. 
V.  N.    Y.    R.,   247. 
Costa    v.    Pacific    Coast    Co.,    1430, 

1436. 
Costello  v.   Landwehr,   972. 
Costley  v.  Railway  Co.,  4009. 
Coston  v.   Paige,   537. 
Cotant  v.  Boone  S.  Ry.,  905. 
Cothran  v.  Ellis,  608. 
Cotton  v.  Cotton,  2255. 

v.  Holliday,    468. 
Cotton    State    Bldg.    Co.    v.    Jones, 
1391. 
v.  Ulmer,    617,   2368,   4294. 
Cottrell  v.  Cottrell,  3712. 

v.  Richmond,   1272. 
Cottrill  v.  Ry.  Co.,  3885. 
Couch  v.  Couch,  4286. 

v.  Watson   Coal  Co.,   637. 
Coughlin  v.  People,  18  111.  266,  4751. 

v.  People,    144    111.    140,    29,    54. 
Counselman  &  Day  v.  Collins,  3486. 
Counts   v.    State,   4391. 
Court  of  Honor  v.  Dinger,  1211. 
Cousins  v.   Jackson,  4362. 
Covington    Transfer    Co.    v.    Kelly, 

1363. 
Cowan    v.    State,    Neb.,    2652,    2660, 
4434. 
v.  State,    So.,    4587. 
Coward  v.    Llewellyn,  1145. 
Cowen  v.  Sunderland,   3696. 
Cowin   Glove  Co.  v.   M.   D.   T.   Co., 

209. 
Cowle  v.  City  of  Seattle,  4177. 
Cowley  v.  Train,  285. 
Cox  v.  Allen,  1103. 
v.  Behm,    317. 
V.  Bright,  277. 
V.  Burbidge,  4277. 
v.  Chi.  &  N.  W.  Ry.,  1882. 
v.  Cox,   1002. 
v.  Petterson,    1708. 
v.  State,   Ark.,   2755. 
V.  State,    5  Tex.    App.   49S    3083 
V.  State,    Tex.    Cr.    App.,    69    S 
W.  145,  2523. 


Cox  v.  Taylor's  Admr.,  1263. 

v.  Williams,  143. 
Coyle  v.   Western,  etc.,   Corp.,  1692. 
Coyne   v.   Avery,    78. 
Crabtree  v.   Hagenbaugh,   343,  2539. 
v.  Reed,  3326,  3623. 
v.  State,   3200. 
Craig  v.  Frazier,  160. 
v.  Gilbreth,   2327. 
v.  Hamilton,   1115. 
v.  Harrison  Switzer  Milling  Co., 

4249. 
v.  Perkins,   2178. 
v.  Rohrer,    374. 
v.  Sedalia,  1616,   4172. 
v.  Southard,    162    111.    209,    2368, 

2371. 
v.  Southard,     148     111.     37,     2371, 
4293. 
Craker  v.  Railway  Co.,  3586. 
Cram  v.  City  of  Chi.,  3545. 
Cramer  v.  Burlington,     42     la.     315, 
36,  210. 
v.  Burlington,    49   la.    213,    144. 
Crandall  v.  Dawson,  352. 
Crandell   v.    Classen,    307. 
Crane  v.  Ellis,  105. 
Crane  Co.   v.    Stammers,  224. 

v.  Tierney,   2203,  4223,  4226. 
Cranston  Adm'x  v.  N.   Y.,  C.  &  H. 

R.  R.,  3392. 
Cravens  v.  Rossiter,  3620. 
Crawford  v.  Chi.  G.  W.   Ry.,  4069. 
v.  Cincinnati  H.   &  I.   Rd.,  1819, 

1827. 
v.  Galloway,    430. 
v.  Kirksey,  1073. 
v.  McLeod,    4056. 
v.  Nolan,    808. 
v.  Southern   Rd.    Co.,   1700. 
v.  State,    Ala..    4340,    4356,    4467, 

4723,  4725,  4764. 
v.  State,  Ga.,  3649. 
Crawfordsville  v.  Bond,  4280. 
Crawley  v.  R.  R.  Co.,  4102. 
Crawson  v.  W.  U.  Tel.,  921. 
Creachen  v.  Carpet  Co.,  345. 
Creamery     Package     Mfg.     Co.     V. 

Hotsenpiller,   3856. 
Creech  v.    Ry.  Co.,   1774. 
Creed  v.   People,  4317. 
Cregin  v.  R.  R.  Co.,  3588. 
Crehore  v.   Crehore,   4306. 
Cremer  v.  Portland,  3939. 
Crenshaw  v.  State,  4536. 
Cresler  v.   Ashville,   315,  1649. 
Cressy  v.  Postville,  1673. 
Crete   Mut.   Fire   Ins.   Co.   v.   Patz, 

3501. 
Crews  v.  People,  2714,  3111,  4557. 
Crich  v.  Williamsburh  City  F.  Ins. 

Co.,    277. 
Crilly  v.   State,  2636. 
Criner  v.    State,   4474. 
Crippin  v.  Morrison,  2218. 


TABLE  OF  CASES  CITED. 


xlix 


[BEFEBENCES    ABE   TO    SECTIONS.] 


Crisman  v.   McDonald,  210. 
Crites   v.   New   Richmond,   3927. 
Crittenden  v.  State,  2441,  2749,  2750, 

2522,  4485,  4490,  4492. 
Crocker  v.  Ice  Co.,  3951. 
Crockett  v.   Miller,  1054. 

v.  State,   45   Tex.   Cr.   App.   276, 
3107. 

v.  State,  5  Tex.  App.  526,  3226. 
Croddy  v.  Chi.,  R.  I.  &  P.  R.,  1983. 
Croff  v.  Ballinger,  1047. 
Croft  v.    Ferrall,   351. 

v.  State,  2648,  2697. 
Croker  v.  Pusey  &  J.  Co.,  1425. 
Cromer  v.  State,  1141. 
Cronin  v.   Delavan,  1337. 

v.  Gore,   577,   1035. 
Cronk  v.   Wabash  R.,  1840. 
Crooker  v.  Pac.  Lounge  &  M.   Co., 

1468. 
Crosby  v.  Hungerford,  4313. 

v.  People,  2857,  4411,  4415. 

v.  Ritchey,    2169. 

v.  Tanner,  2168. 

v.  Watkins,    748. 
Cross  v.  Garrett,  190. 

v.  Grant,  774. 

v.  Kennedy,   1329,   3733. 

v.  Plymouth,  851. 

v.  State,   Ind.,   4434,   4439,  4451. 

v.  State,   Wis.,  2617. 
Crossette  v.  Jordan,  2417. 
Crotty  v.   Morrissey,   352. 
Crouch  v.  Denmore,  268. 
Crow  v.  Peters,  86. 
Crowder  v.   St.   L.  S.  W.  Ry.,  1489. 
Crowell   v.    McGoon,   89. 
Crowley  v.  Crowley,  4288. 
Crown  P.  Min.  Co.  v.  Crimson,  2430. 
Croy  v.   State,  34. 
Cruikshank  v.   Cogswell,   2247. 
Crum  v.  Hill,  2218. 
Crumb   &    Co.   v.    Phettiplace,    4199. 
Crump  v.   Davis,   2020,  2040,  4153. 
Crusen  v.  State,  3258. 
Crystal   White    Soap   Co.   v.    Rose- 
boom,  1237. 
Cudahy  Packing  Co.  v.  Roy,  3787. 
Cullen  v.  Higgins,  918,  1352. 
Culliford  v.  Gadd,  326. 
Cullom  v.  Justice,  927. 
Culpepper    v.    Ry.    Co.,    3856,    3905, 

3909.   3993. 
Culver    v.  So.  Haven,  etc.,  Ry.,  3856. 
Cumber  v.  Wane,  624. 
Cumberland  V.  R.  R.  v.  Maugans, 

4056. 
Cumby   v.   Henderson,   704. 
Cummerford  v.  McAvoy,  2284. 
Cumming  v.  Archward,  299. 
Cummings  v.  McGann,  45. 
Cummins  v.  Agricultural  Ins.,  1166. 

v.  City  of  Seymour,  4280. 
Cuneo  v.  Bessoni,  4300. 

v.  De   Cuneo.   704. 


Cunningham  v.  E.  &  T.  H.  R.,  938. 

v.  Hamilton,  1071. 

v.  Nat.  Bank  of  Augusta,  608. 

v.  People,    91,    4578. 

v.  State,    Ala.,    2689,    4462,    4787, 
4797. 

v.  State,  Neb.,  2492,  2494. 
Cupps  v.  State,  327,  2673. 
Curlee  v.  Rose,  788. 
Curley  v.  Tomlinson,  299. 
Curran  v.   Strange  Co.,  3340. 
Currier  v.   McKee,   1221. 

v.  Richardson,   4264. 
Curry  v.  State,  2818. 
Curtis  v.  Chi.  &  N.  W.  R.,  2130. 

v.  Hubbard,   4764. 

v.  Martz,  629. 

v.  McNair,    1379,    3823. 

v.  Railroad,  4038. 

v.  State,   3123,  3148. 
Cushman  v.  Cogswell,  197,  3742. 

v.  U.    S.   L.   Ins.,   1190. 
Cuthbert  v.  City  of  Appleton,  3927. 
Cutler  v.  Callison,  584. 

v.  Smith,  821. 
Cutting  v.   Fanning,  768. 
Czarecki  v.  Seattle  &  S.  F.  Ry.  & 

Nav.   Co.,    1436. 
Czezewzka  v.   Ry.   Co.,   4172. 


Da  Costa  v.  Dibble,  326. 

Dacy  v.  People,  2595,  4403. 

Dady  v.  Condit,    188    111.    234,    3554. 

v.  Condit,   209   111.,   488,   804. 
Daffold  v.  State,  4722. 
Daft  v.    Drew,   275. 
Dahlstrom  v.   Ry.   Co.,   364. 
Dailey  v.   Coons,  2201. 
Dains  v.  State,  4631. 
Dalby  v.  Lauritzen,  624. 
Dale  v.  State,  240. 
Dallas  v.  Beeman,  3935,  3936. 

v.  Moore,  3917. 
Dallas  Cons.   E.   St.   Ry.  v.  Broad- 
hurst,    1747,   2029. 

v.  Ely,    2081. 

v.  English,    2103. 

v.  Ison,    2072. 

v.  McAllister,   4151. 

v.  Langston,  4115. 
Dallas  Cotton  Mills  v.  Ashley,  3340 
Dallas  &  G.   Ry.  v.  Able,  4065. 
Dalton  v.   Milw.   Mech.   Ins.,  1163. 

v.  R.   R.   Co.,  4021. 
Dalzell  v.   State,  2634. 
Dammann  v.  St.  Louis,  1538,  1657. 
Damont  v.  N.  O.,  etc.,  Rd.,  1811. 
Dana  v.  Tucker,  3740. 
Danforth  v.   Simple,  2186. 

v.  State,  3049. 
Daniel  v.  Baca,  1099 

v.  Ft.  Worth  &  R.  G.  Ry.,  4116. 
Daniels    v.    Florida   Cent.    R.,    1824, 
1827. 


TABLE  OF  CASES  CITED. 


[BEFEBENCES    ABE    TO    SECTIONS.] 


Daniels  v.  Knight   Carpet    Co.,    319. 

v.  People,   579,   1137,   1138. 
Dann  v.  Cudney,  309. 
Dantzer  v.  Railway  Co.,  3549. 
Danville  Democrat  Pub.  Co.  v.  Mc- 

Clure,  95. 
Darby  v.   Lastrapes,  417. 
Darden  v.   State,  3668. 
Darling-  v.   Bangor,  1651. 

v.  Banks,   352. 

v.  Williams,  3113. 
Darnell  v.  Lafonte,  295. 

v.  State,   3229,  4778. 
Dart  v.  Hercules,  479. 

v.  Horn,  3435. 
Dassler  v.  Wisley,  155. 
Daubenspeck  v.  Powers,  731. 
Daughdrill  v.   State,  4676. 
Daugherty  v.  Herndon,  428. 
Davenport   v.    D.    &   St.   P.  R.,   281, 

295. 
Davenport   &   L.   C.   v.   Davenport, 

36. 
Davids  v.   People,  138. 
Davidson    v.    Clark,   2268. 

v.  rfackett,   542. 

v.  Kolb,   770. 

v.  People,    38. 

v.  Porter,  611. 

v.  State,  127. 

v.  Waldron,   2302. 
Davidson-Benedict  Co.  v.  Severson, 

3618. 
Davies  v.  Cobb,  3435,  3744. 

v.  Ry.    Co.,    4182. 

v.  State,   3328. 
Davis    v.    Alexander,   295. 

v.  Anchor  Mut.   Ins.   Co.,  30,  35. 

v.  Baker,    548. 

v.  Brown,   314. 

v.  Central  R.   R.,   957. 

v.  Chi.,  R.  I.  &  P.,  1964. 

v.  Clinton    City    Council,    1150. 

v.  Dregne,  3385. 

v.  Factory,  3766. 

v.  Pish,    211. 

v.  Goodenow,  728. 

v.  Guarnieri,   979,  1363,  3726. 

v.  Hardy,  3364,  4363,  4686. 

v.  Heard,  1109. 

v.  Holy  Terror  Mining  Co.,  132. 

v.  Job  Printing  Co.,  561. 

V.  Kleine,   305. 

v.  Kornman,    1420. 

v.  Lambert,  3375. 

v.  Leonard,   638. 

v.  Miller,  1403,  3913. 

v.  Neleigh,   2166. 

v.  N.   Y.   C,  1902. 

v.  People,  19  111.   74.   3074. 

v.  People,    88   111.    350,    3105,    3106. 

v.  People,    114    111.    86,    165,    4557, 
2714. 

V.  Pryor,   697,   767,    3496. 

v.  Ransom,  l: 


Davis  v.  Richardson,    300,    3443. 

v.  Russell,  564,  2252. 

v.  Seeley,  4216. 

v.  Slagle,  767. 

v.  State,  Ala.,  2697,  4462. 

v.  State,  33  Ga.  98,  244. 

v.  State,  91  Ga.  167,  188,  4484. 

v.  State,   94   Ga.   399,   376. 

v.  State,  114  Ga.  104,  2653. 

v.  State,   35  Ind.   496,   101. 

v.  State,   152  Ind.  34,  4544. 

v.  State,  Neb.,  2494,  2507,  2705. 

v.  State,    Ohio,   4462. 

v.  State,  Tenn.,  2444,  4320. 

v.  State,  6  Tex.  App.  196,  90. 

v.  State,  Tex.  Cr.  App.  54  S.  W. 
583,   4361. 

v.  Thompson,   1038. 

v.  U.  S.,  160  U.   S.  469,  2592,  4668. 

v.  U.   S.,  164  U.   S.  373,  2578. 

v.  Weatherly,   3686. 

v.  Webber,    660. 

v.  Willis,   2215. 

v.  Wilson,   84. 
Davison  v.  People,  4666. 
Dawes  v.  Dawes,  2428. 
Dawson    v.    Falls   City   Boat   Club, 
446. 

v.  Hayden,  1034. 

v.  State,  2571,  4321,   4322. 

v.  Transit  Co.,  2040. 
Day  v.  Commonwealth,  3209. 

v.  Crawford,   129. 

v.  Dry  Goods  Co.,  394. 

v.  Holland,  823. 

v.  Mill   Owners'    Mut.   Ins.   Co., 
3427. 

v.  Porter,   592. 

v.  State,   Ga.,   150. 

v.  State,  Tex.,   2670. 

v.  Watson,  1246. 

v.  Woodworth,  3618. 
Dayton  v.   Monroe,   2905. 
Deal  v.   State,  Ala.,   2854,  3160,  4459. 

v.  State,   Ind.,  335,  4166. 
Dean   v.    Archer,   595. 

v.  Negley,    2410. 

v.  Phillips,  4299. 

v.  State,    Ala.,   286. 

v.  State,  Fla.,  4782. 

v.  State,    Ind.,   4780,   4781,   4790. 

v.  State,  Miss.,  2728,  2743. 

v.  State,   Tex.,  3353. 
Dearborn  v.  Union  Nat.  Bk.,  2336. 
De    Arman    v.    State,    71    Ala.    351, 
3138,    4727,    4731,    4747. 

v.  State,  77  Ala.  10,  4745. 
Dearth  v.   Baker,  4277. 
Debney  v.   State,  4414. 
DcCamp    v.    Hamma,    2146. 
Decatur  v.   Besten.  1624. 

v.  Hamilton,   918,   3574,   3921. 

v.  Simpson,    1292. 
Decatur  C.  W.  &  M.  F.  Co.  v.  Me- 
haffey,  3761. 


TABLE  OF  CASES  CITED. 


li 


[references  are  to  sections.] 


Deckard  v.  Wab.  R.,  1379,  1421,  3794. 
Decker  v,  Laws,  36. 
v.  Livingston,  1238. 
v.  McSorley,    4079. 
v.  Railway  Co.,  3549. 
Deere   Plow   Co.    v.    Sullivan,    1060, 

1077. 
Defrieze  v.  I.  C.  R.  R.,  4052. 
DeGroat   v.   People,    2803. 
De  Hart  v.   Board   of  Corars.,   360. 
Dehning  v.   Iron  Works,  3813. 
Dehsoy  v.  Light  Co.,  4118. 
Deilkes  v.  State,  3070,  3102. 
Deisenrieter   v.    Kraus-Merkel    Co., 
3742. 
v.  Malting  Co.,   4118. 
Deitring  v.  St.  L.  T.,  2104,  2109. 
Delaney  v.  Erickson,  4273. 
v.  Salina,   43. 
v.  State,  3105,   3164. 
Delano  v.   Bartlett,  4009. 
Delaware  &  H.  C.  v.  Mitchell,  314. 
Del.,   L.    &  W.   R.   v.   Salmon,   2002. 
De  La  Vergne  Refrig.  Machine  Co. 

v.  Stahl,   1577. 
Delong  v.  Mulcher,  454. 
Delphi  v.  Evans,  1652. 

v.  Lowery,  3553,  3599. 
Delvee  v.   Boardman,  331. 
Demerest  v.  Holdman  Ind.,  295. 
Demis  v.  State,  4723. 
Denecamp  v.  Townsend,   316. 
Denee  v.  McCoy,  15. 
Denham    v.    Wash.    Water    Power 

Co.,  49. 
Denman  v.   Baldwin,  265. 

v.  Johnston,    3951. 
Denmark  v.   State,   158. 
Denning    v.    Butcher,    4304. 
Dennis  v.  People,  2878. 

v.  State,    4359,    4669,    3376,    4442, 
4775. 
Dennison    &    P.    S.    Ry.    v.    Carter, 
4126. 
V.  Freeman,     2020. 
v.  Harlan,   1847. 
v.  O'Maley,   857. 
Denon  v.   Clements,   1148. 
Denslow  v.   Van   Horn,   695,   767. 
Densmore   v.   State,    1122. 
Dent  v.  Davison,  303. 

v.  State,    Ala.,   4351,    4784. 

v.  State,  43    Tex.    Cr.   App.    126, 

4503. 
v.  State,  46    Tex.    Cr.    App.    166, 
4558. 
Denton  v.  Jackson.  606,  607. 
Denver  v.  Hyatt,  3389. 
v.  Stein,    314,    1644. 
v.  Strobridge,   300. 
Denver    Consol.    Tramway    Co.    v. 

Riley,    984. 
Denver    &    R.    G.    R.    v.    Burchard, 
1416. 


Denver  &  R.  G.  R.  v.  lies,  959. 
v.  Maypole,  3837. 
v.  Spencer,    3S37. 
v.  Warring,    1517. 
D.    &  R.    G.    R.    So.    v.   Harris,    823. 
Denver  Township  Mut.  F.  Ins.  Co. 

v.    Resor,    3663. 
Depuy   v.   Schuyler,   2173. 
Dermott  v.  Jones,  718. 
Derry  v.  Peek,   L.   R.,  1109. 
Deschner  v.   R.  R.,  2013. 
Despard  v.  Walbridge,  1230. 
Detroit  v.  Beckman,  1651. 

v.  Jackson,   480. 
Detroit  City  Ry.  v.  Mills,  86. 
Det.  El.  L.  &  P.  Co.  v.  Applebaum, 

3630. 
Detroit     Spring    &     Steele    Co.     v. 

Whitney,  3619,  4246. 
Detroit  T.  &  W.  v.  Dandelen,  3903. 
Det.    &    T.    O.    L.    R.    v.    Hall,    281, 

295. 
Deuber  Watch  Case  Co.  v.  Young, 

539. 
Dever  v.   Capelli,  1651. 
Devine  v.  Chi.,  M.  &  St.  P.  R.,  1787. 
Dew  v.  Clark,  4294. 
v.  McDavitt,  43. 
Dewane  v.  Hansow,  3369. 
Dewees  v.  Bluntzer,  4220. 
Deweese  v.  Mining  Co.,  1426. 
Dewey  v.  Detroit,  1641. 

v.  Dewey,    4286. 
Dewitt  v.  Ithaca,  1148. 

v.  Louisville  &  N.  R.  Co.,   1548, 
1570. 
De  Wolf  v.  City  of  Chicago,  710. 
Dexter  v.  Syracuse,  etc.,  Rd.,  1832. 

v.  Tree,    1149. 
Diamond    Bl.    Co.    v.    Cuthbertson, 

310. 
Dibble   v.    Morris,   942. 
Dick  v.  Marble,  1891,  3371. 
Dickert   v.    Salt   Lake   C.    Ry.    Co., 

3782. 
Dickie  v.   Carter,  2404. 
Dickson   v.    Randal,   2239. 

v.  Ry.    Co.,  4168. 
Diefenthaler  v.  Hall,  3630. 
Diehl  v.  Zanger,  577. 
Diezi  v.  G.  H.   Hammond,  256. 
Diggs  v.   Denney,  1111. 
Dillie  v  Lovell,  70. 

v.  State,  225. 
Dillingham  v.   Whittaker,  1998. 
Dillman    v.    Nadelhoffer,    1102. 
Dillon  v.  McCrea  &  Co.,  609. 
Dilworth  v.    Fee,  1046. 
Dimmach     v.     Wheeling     Traction 

Co.,   31,  47. 
Dimmey  v.  Ry.  Co.,  2062. 
Dimmick  v.   U.    S.,   55. 
Dinsmore  v.   State,  403. 
Disbrow  v.   Winchester,  875. 
Disse  v.   Frank,   320. 


lii 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


District  of  Columbia  v.  Woodbury, 

1627. 
Diterich  v.  Adams,  326. 
Ditmer  v.  State,  3122,  3129. 
Dively  v.  City,  36. 
Diversey  v.  Smith,  4194. 
Dixon  v.   Duke,   3672. 
v.  Hill,   1073. 

v.  New  England  R.  R.,  3998. 
v.  State,  Neb.,  2621,  3306. 
v.  State,  Tex.,  4485. 
Dixon  Natl.  Bk.  v.   Speilman,   4196. 
Dobie   v.   Armstrong-,   4294. 
Dobson  v.  State,  Ind.,  3194. 

v.  State,  46  Neb.   250,  4564,  4783. 
v.  State,  61  Neb.  585,  4592. 
Doekray  v.  Dunn,  620. 
Dodd  v.  Arnold,  3598. 
v.  Bishop,   2201. 
v.  Moore,  91  Ind.  522,  2540,   3304, 

3306. 
V.  Moore,   92   Ind.   397,  43S0. 
v.  State,  49. 
Dodge  v.  McMahan,    322. 
v.  Norlin,  1322. 
v.  Reynolds,   410,   411. 
V.     S.    S.    Co.,  2020. 
Doer  v.  Breen,  3362. 
Dogge  v.  N.  W.  Nat.  Ins.,  1163. 
Doggett  v.   Brown,   653. 
Doherty  v.  Arkansas  &  O.  R.,  300, 

313,   681. 
Dohman    Co.    v.    Niagra    Fire    Ins. 

Co.,  105,   33S1,  3656. 
Dohn    v.     Farmers'    Joint    S.    Ins., 

1159. 
Dolan    v.    Court   G.    Samaritan  No. 
5910   A.   O.   O.   F.(  1215. 
v.  Delaware,  1910. 
v.  Sierra  Ry.  of  Cal.,  3843. 
v.  State,  Ark.,   3119. 
v.  State,   Neb.,  180. 
v.  Thompson,   1263. 
Dolbeare  v.  Coultas,  3499,  3596. 
Dolbeer's    Estate,    397. 
Doll    v.    Equitable    L.    Assur.    Soc, 

1171. 
Dollar  v.  State,  228,  231,  232. 
Dolman    Co.   v.    Niagara   Fire   Ins., 

3325. 
Domestic    Sewing    Machine    Co.    v. 

Anderson,   2254. 
Domingus   v.    State,   4727. 
Dominick  v.  Randolph,  613,  615,  617, 

2368. 
Donahue  v.   McCosh,   316. 
Donaldson    v.    Miss.,    etc.,    Co.,    991, 

4069. 
Dones  v.  State,  3049. 
Donk  Bros.   C.   &  C.  Co.  v.  Peton, 

1682. 
Donley  v.   Dougherty,   358,    367,   5S2, 

1347,   1361,   1468,   3333. 
Donnell  v.   Jones,   309. 


Donnelly  v.   Harris,   526. 

v.  State,  223,   3081. 
Donner  v.  State,  4383. 
Donney  v.    Stout,   3323. 
Donovan  v.  Bromley,   2411. 

v.  Fowler,   4207. 
Donovan-McCormick   Co.   v.    Sparr, 

2420. 
Doolin  V.  Omnibus  Co.,  888,  2092. 
Dooly  v.  Martin,  288. 
Doran  v.   Marsden,  3588. 
Dorden   v.   State,   4434. 
Dore  v.  Babcock,  2125. 

v.  Milwaukee,    1653. 
Doremus  v.  Hennessy,  762,  4311. 
Doering  v.    State,   1288. 
Dority  v.  Dority,   1024. 
Dorman  v.  Ames,  2358. 

v.  State,-  41. 
Dormand  v.  McDonald,  326. 
Dorn  v.  Geuder,  3622. 
Dornbrook  v.  Rumly  Co.,  309. 
Dorr  v.  Simerson,  214,  2353. 
Dorsey  v.    State,   4755. 
Doster  v.  Brown,  240,  243. 
Doty  v.   Burdick,  1039. 

v.  Miller,    596. 

v.  Moore,   299. 
Dougan  v.  Greenwich,  1145. 
Dougherty  v.   Cooper,  1089. 

v.  Mo.   R.,  97  Mo.  647,  2020,  4172. 

v.  Mo.     Pac.    Ry.,    81    Mo.    330, 
2039. 

v.  State,  2454. 
Doughty  v.  Walker,  290. 
Douglas  v.   Hill,  221. 

v.  Matting,    2147. 
Douglass  v.  Hoffman,  3524. 

v.  State,    4499. 
Dover  v.  M.  R.  &  B.  T.  Ry.,  1493. 
Dow  v.  Higgins,  3473. 
Dowd  v.  Ensign,  285. 

v.  Moore,    3319. 
Dowie    v.    Chi.,    W.    &    N.    S.    Ry., 
3543. 

v.  Priddle,  107. 
Downey   v.    Gemini   Min.    Co.,    13S7, 

1456,  3770. 
Downing   v.    State,    2987,    3011,    3059, 

4663. 
Doyle  v.  Hawkins,   1417. 

v.  Riser,  6  Ind.  242,  1835. 

v.  Riser,  12  Ind.  474,  299. 

v.  People,  2539,  2542. 
Drabek  v.   The  Grand  Lodge,  etc., 

3642. 
Drach  v.   Kamberg,  143. 
Drainage   Com.    v.   I.    C.   R.,   3557. 
Drake  v.  Chi.,   R.  I.   &  P.  R.,  2358. 
Drakely  v.  Gregg,  480. 
Draper  v.  Charter  Oak,  11S8. 

v.  Com'rs  of   Pub.   Inst.,   2432. 
Dreesen  v.  State,  4467. 
Dreher  v.  Fitchburg,  2521,  3939. 
Drennan  v.   Saterneld,  3498. 


TABLE  OF  CASES  CITED. 


liii 


[befeeences  are  to  sections.] 


Drew  v.  Continental  L.  D.,  1190. 

v.  Drew,   3707. 
Dreyfus    v.    Aul,    3713. 
Drody   v.   Dist.   Ct.,   12. 
Drowne  v.  Simpson,  286. 
Drumm-Flato  Com.  Co.  v.  Gerlach 

Bank,  567. 
Drummond  v.  Couse,  1074. 
Drum   v.  Connell,   414,  2365. 
Drury  v.  Midland  Rd.  Co.,  842. 
Druse  v.  Wheeler,  165. 
Dry-Goods    Co.    v.    Barton,    639. 
D.  Sinclair  Co.  v.  Waddill,  72. 
Dubbs  v.   R.   R.,  2008. 
Dubois  v.  Canal  Co.,  4248. 
Duchess  Co.  Mut.  Ins.  Co.  v.  Hach- 

field,   2174. 
Duckworth  v.  State,  2992,  3023. 
Duebbe  v.  State,  3084. 
Duerst  v.  St.  L.  Stamping  Co.,  1491. 
Dudley  v.  Abner,  2326. 
Duff  v.  Commonwealth,  4773. 
Duffy  v.   Hickey,  419. 

v.  Kivilin,  3802. 
Dufresne  v.   Weise,    2280,  2293. 
Dugan  v.  Ch.  R.,  236. 

v.  State,  109. 

v.  U.  S.,  2134. 
Duggan  v.   Boom  Co.,  1347. 
Duke  v.  Railroad  Co.,  3598. 
Dulaney  v.  Rogers,  1109. 
Dulin  v.  Pac.  Woods  Co.,  324. 
Dumont  v.  Dufore,  638. 

v.  Kellogg,   2357. 
Dunaway  v.  Smot,  2369. 
Dunbar  v.  U.  S.,  2674. 
Duncan  v.  Johnson,  3515. 

v.  City  of  Grand  Rapids,  264. 

v  People,  202,   990,  16S2,  2470. 

v.  State,    3119. 
Duncombe  v.   Powers,  314. 
Dundas  v.  Lansing,  1636. 
Dungan  v.   Mut.  Ben.  L.  Ins.,  2327. 
Dunham  v.  State,  63. 
Dunham  T.   &  W.  Co.  v.  Dandelin, 

164. 
Dunkman   v.   Ry.   Co.,  16  Mo.  App. 
548,   4168,   4172. 
"  v.  Ry.   Co.,   95  Mo.   232,  4172. 
Dunlap  v.  Berry,  4313. 
Dunlavey  v.  Watson,  3685. 
Dunlop   v.   U.    S.,    332. 
Dunn  v.   Bushnell,  4254. 

v.  Dunn,    498. 

v.  Hall,  3740. 

v.  People,   109  111.  635,  2573,  2574, 
2647,  4462,  2681. 

v.  People,  172  111.  582,  4507. 

v.  Railway,   Mo.,  925. 

v.  State,  Ala.,  23. 

v.  State,   Ga.,  86. 

v.  State,  Neb.,  2702,  2820. 

v.  State,  Ohio,   4526. 

v.  Travis,  1210. 

v.  Trout,   3495. 


Dunn  v.  White,  1109. 

v.  Wilmington  W.   R.   Co.,   58. 
Dunson  v.  N.  Y.,  etc.,  R.  Co.,  1705. 
Dunston  v.   State,  4808. 
Du  Pont  v.  Sanitary  Dist.,  863,  3379. 
Dupree  &  McCutchan  v.  Te*x.  &  P. 

Ry.,  3961,  3964. 
Dupuis   v.    Chi.    &   N.   W.   Ry.,    S45, 

860. 
Duquesbe    Mfg.     Co.    v.    Williams, 

138. 
Durant  v.  Rogers,  331,  3381. 
Durden    v.    People,    84. 
Durham  v  Smith,  4293,  4300,  3319. 
Durose  v.    State,  46S6. 
Durr  v.  Jackson,  741,  743. 

v.  Hervey,    565. 
Durrell  v.  Johnson,  1362,  4277. 
Dush  v.   Fitzhugh,  4177. 
Du  Souchet  v.  Dutcher,  1121. 
Dutch  v.  Anderson,  3672. 
Duthie  v.  Washburn,  210,  1452,  3916, 

3939. 
Dutro  v.  Walter,  718. 
Duval  v.   Davey,  811. 

v.  Hunt,   3615. 
Duvall  v.  Kenton,  3319. 
Dwain  v.  Descaeso,  1282. 
Dwight  v.  Chase,  1109. 
Dwver  v.  St.  Louis,  789. 
Dyas   v.   S.   P.   Co.,   976,   1412. 
Dye   v.   Young,   2386. 
Dyer  v.  Erie  R.  R.,  1929,  1932. 

v.  State,   4570. 
Dykman  v.  Kenney,  3456. 
Dysart-Cook    Mule    Cg.    v.    Reed    & 

Heckenlively,  328,   515. 
Dyson  v.  State,  4439. 


Eadie   v.    Ashbaugh,    480. 
Eads  v.  City  of  Marshall,  3920. 
Eagle  Mfg.  Co.  v.  Welch,  117. 
Eakin  v.  Harrison,  719. 
Eames   v.    Morgan,   1100. 

v.  S.   &  L.   R.,   1965,  1973. 
Eanes  v.   State,  46-1. 
Earle  v.   Rice,   3486. 
Earles  v.   State,  4325. 
Early  v.    Burt,   622. 

v.  State,    3052. 
Earp  v.   Edgington,   3365,  4309. 

v.  Lilly,   1223. 
Eason  v.  State,   55. 
Eastland  v.  Fogo,  114S. 

v.  Summerville,   321. 
Eastin  v.  Bank,  1L63. 
Eastis  v.  Montgomery,  2393. 
Eastman    v.    W.    Chi.    St.    Ry.,    355, 

3309. 
East    St.    L.    Con.    Ry.    v.    Dwyer, 
3767,  3843. 

v.  Eggman,  18S4. 

v.  Eisentraut,   23"2. 

v.  O'Hara,  231,  3320,  3322,  3612. 


liv 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


East  St.  L.  &  St.  L.  El.  St.  Ry.  v. 

Wachel,  4168,  4181. 
East    Tennessee,    V.    &    G.    Ry.    v. 
Hull,  4177. 

v.  McClure,  3580. 
Eastwood    v.    Retsoff    Mining    Co., 

1381. 
Eatman  v.  State,  4683. 
Eaton  v.  Railroad  Co.,  4090. 
Eau    Claire    C.    C.    v.    W.    Br.    Co., 

292. 
Eberhard  v.  State,  103,  4365. 
Eberhardt  v.    Sanger,   3682. 
Eberly  v.   Rupp,  1263. 
Ebert  v.  Ry.  Co.,  4151. 
Ebner  v.  Mackey,  1300. 
Ebsery  v.  Chi.  C.  Ry.,  3753. 
Eckart    v.    State,    2578. 
Eekerd  v.  Railroad  Co.,  3598. 
Eckert  v.   Collot,   3463. 

v.  Flowry,   2410. 

v.  St.   Louis,   etc.,  1370. 
Eckhard  v.   St.   L.    T.,  2104. 
Eckhart  v.  People,  103. 
Eckington  &  Ry  v.  McDevitt,  354S. 
Economy    L.    &    P.    Co.    v.    Hiller, 

1337. 
Eddy  v.  Gray,  94. 

v.  Prentice,    1577. 
Edgerly  v.   Farmers'  Ins.   Co.,  3526. 
Edgeworth  v.   Carson,  1271. 
Edmondson  v.  Anniston  City  Land 

Co.,  442. 
Edmundson  v.  Brie,  2338. 
Edringon  v.  Kiger,  102. 
Edwards  v.  Atl.  Coast  Line  R.,  4036, 
4038. 

V.  Campbell,   4098,  4110,  4112. 

v.  Carey,   175. 

v.  Derrickson,  3735. 

v.  Dettenmaier,    2418. 

V.  Lord,    1747. 

v.  Railroad   Co.,    3696. 

v.  Reid,  1060. 

V.  Roberts,   3639. 

V.  So.  Ry.,  1905,  1909. 

v.  State,  Neb.,  2646. 

V.  State,  Tex.  Cr.  App.  54  S.  W. 
589,   2614. 

V.  State,  Tex.  Cr.  App.  69  S.  W. 
144,  3274. 

v.  State,    38   Tex.    Cr.    App.    386, 
4416. 

v.  State,    36    Tex.    Cr.    App.    387, 
4571. 
Egan  v.  Bowker,  374. 
Egbers  v.   Egbers,  314,   2371. 
Ege  v.  Medlar,  455. 
Eggers  v.  Eggers,  4300. 
Eggert  v.  Allen,  1260,  787,  1268,  1279. 
Eggleston  v.  Mundy,  2326. 

v.  State,  4335,  4340,   4597,  4598. 
Ehrman  v.  Oats,  3734. 
Ehymer  v.   State,  4549. 
Eichengreen  v.  Appell,  3702. 


Eichman   v.    Buchheit,    3742. 
Eichorn  v.  Mo.  Pac.  Ry.  Co.,  394. 
Eikenberry  v.  St.  L.  T.,  2034,  33-3. 
Eiland  v.  State,  381,  2515. 
Eirk's  Adm'r  v.    Ry.   Co.,  2097. 
Elder  v.  State,  Ala.,  4517. 

v.  State,  Ark.,  3179. 
Eldredge  v.  Hubbell,  60. 
Eldridge  v.  Hawley,  2788. 
Elfelt  v.    Snow,  677. 
Elgin  v.   Eaton,  1653. 
Elgin,  A.   &   So.   T.   Co.   v.   Wilson, 

4142. 
Elgin  City  Ry.  v.  Wilson,   239. 
Elgin,  J.  &  E.  Ry.  v.  Bates  Mach. 
Co.,  1702. 

v.  Raymond,    4035. 

v.  Thomas,    973. 
Eli  v.  Tallman,  199. 
Elkins  v.  Metcalf,  313. 
Eiland  v.  State,  4293. 
Ellerbee  v.  State,  4445. 
Elles   v.  Howard,  4276. 
Ellington  v.   Lumber  Co.,   3799. 
Elliott  v.  Kansas  City,  899,  932,  1641, 
3583. 

V.  Van  Buren,  966,  2289. 
Ellis  v.  Andrews,  1102. 

v.  Bronson,   2201. 

v.  Clark  et  al.,  1036,  3620. 

v.  Commonwealth,  4694. 

v.  Kirkpatrick    &    Skiles,    765. 

v.  Petty,   557. 

v.  R.   R.,   N.   C,  2362. 

v.  R.    R.,   N.  Y.,   1474. 

v.  Singletary,  2266. 

v.  State,  2652. 

v.  Valentine,   3632. 

v.  Willard,    1699. 
El  Paso  E.  Ry.   v.  Kendall,   926. 
El  Paso  &  N.  W.  Ry.  v.  McComas. 

1427. 
El    Paso    &    S.    W.    Ry.    v.    Vizard. 

451. 
Elshire  v.   Schuyler,  1218. 
Elston    and    W.     G.    Road    Co.    v. 

People,    3303. 
Elter  v.    Hughes,   275. 
Elwood  v.   Chi.  C.  Ry.,  2028,  4152. 
Ely  v.  Davis,  1263. 
Emanuel   v.   Maryland  Cas.,   1160. 
Embre  v.  Embre,  1006. 
Emerick  v.  Sloan,  23. 
Emerson  v.  Clark,  303. 

v.  Mills,  4007. 
Emery  v.    State,    92   Wis.    146,   2686, 
4443,    4444. 

v.  State,   101  Wis.    627,   386,  2521, 
2550,  2646,  2673,  4388. 

v.  Webster,  3371. 
Emory  v.  Addis,  1217. 
Endowment    Rank   O.    of   K,    P.   v. 

Steele,  1208,  3682. 
Enfield  v.  Permit,  2307. 
Engfor  v.  Roemer,  3399. 


TABLE  OF  CASES  CITED. 


lv 


[references  are  to  sections.] 


England    v.    Fawbush,    2393,    2402. 

2412. 
Englehart  v.  Plow  Co.,  602. 
English  v.   So.   Pac,  1892,  4090. 
Ennis   v.   Dudley,   355. 
Enright  v.   People,  4699. 
Ensley  v.  Det.  U.  R.,  2084. 
Entwistle  v.  Meikle,  2388,  4290. 
Ephland  v  Ry.(  364,   3365. 
Epperson  v.   State,  2936. 
Epps  v.   State,  243,  395,  2995,  3372. 
Eppstein  v.  Mo.  Pac.  Ry.,  1890. 

v.  Thomas,    1391. 
Erie   v.   German- Am.   Ins.,   80. 
Erdman  v.  111.  Steel  Co.,  1468. 
Erie  Rd.  Co.   v.   Wilcox,   1720. 
Erie  &  W.   Tr.   Co.   v.   Dater,   1716. 
Erin   Iron   "Works   v.   Barber,   3522, 

3592. 
Erissman  v.  Erissman,  66. 
Erwin  v.   Clark,  269. 

v.  State,  3102,  4746. 
Eskridge's  Ex'rs  v.  Ry.  Co.,  4090. 
Eslich  v.   Mason  City  &  Ft.  Dodge 

Ry.,  127. 
Espenlaub  v.  Ellis,  1472. 
Esson  v.  Tarbell,  2326. 
Estate  of  Carpenter,  4298. 
Estate  of  Kendrick,  4298. 
Estate  of  Scott,  4298. 
Estep  v.   Fenton,  3744. 
Esterly   v.   Van   Syke,   2272. 
Esterly    Harvesting    Mach.    Co.    v. 

Frolkey,   2272,   3513,   3928. 
Estes  v.  Nell,  3754. 

v.  State,  Ga.,  2612. 

v.  State,  Tex.,  1283. 
Eugene   Glass   Co.   v.   Martin,   3480, 

3487. 
Euler  v.  Sullivan,  792. 
Eureka    Steam    Htg.    Co.    v.    Slote- 

man,  322. 
Evans  v.  Elwood,  522,  969. 

v.  Fisher,  301. 

v.  Fitchburg,      etc.,      Rd.      Co., 
1735. 

V.  Funk,   549. 

v.  George,  197,  3381. 

v.  Graham,   1318. 

v.  Howell,  2213. 

v.  Lipscomb,    411. 

v.  Marden,  2419. 

v.  Morris,  288. 

v.  People,  326. 

v.  Philadelphia  Bourse,  3^32. 

v.  State,    109  Ala.   11,   2739,   4584, 
4579,  4724. 

V.  State,  120  Ala.  268,  3118. 

v.  State,  Miss.,  56. 

v.  Trenton,    236. 
Evans    Laundry   Co.    v.    Crawford, 

1471. 
Evansville  v.   Christy,   1961. 

V.  Schachenn,  312. 


Evansville  &  Crawfordsville  Rd.  v. 

Worlf,    1364,    4018. 
Evansville   &   T.    H.   Ry.   v.   Clem- 
ents, 315,  4057. 

v.  Duel,  3821,  3856. 

v.  Talbot,  1259,  1272. 

v.  Terre  Haute,  295. 
Evens  v.  Thompson,  1272. 
Everett   v.    Collinsville   Z.    Co.,    309. 

v.  People,  2505,  4422. 

v.  Receivers    of    R.    &    D.    R., 
1874. 
Evers  v.  State,  2614. 
Ewell  v.  State,  2804. 
Ewing  v.  Chi.  &  A.  R.,  1965. 

v.  Sanford,  1271. 
Eyser  v.  Weissgerber,  629. 
Ezell  v.  State,  277. 


Faber  v.  Green,  4774. 

Fabian  v.  Traeger,  362. 

Fabri  v.  Bryan,  3693. 

Fager  v.  State,  86,  2820. 

Fagin  v  City  of  Chicago,  59. 

Fagnan  V  Knox,  1260. 

Fahey  v.   The  President,   etc.,  1628. 

Fahnestock   v.    State,   3081. 

Fair  v.  Hoffman,  210. 

Fairbank  Co.  v.  Nickolai,  3558. 

Fairbanks   v.   Haentzsche,   1447. 

v.  Meyers,  947. 
Fairbury  v.  Rogers,  3922. 
Fairchild    v.    Cal.    Stage    Co.,    1747, 

1797. 
Falk  v.  People,  181. 
Falkeneau   v.   Abrahamson,   3789. 
Fannon  v.  Robinson,  170. 
Farber  v.  Mo.  Pac.  R.  R.  Co.,  4002, 

4019. 
Fareira  v.   Gabell,  608. 
Farley  v.  Farley,  4307. 

v.  Chi.,  R.  I.  &  P.  Rd.,  1862. 

v.  State,  127   Ind   419,   2636,  4430. 

v.  State,  57  Ind  331,  212. 
Farmer  v.  Farmer,  2416. 
Farmers'  Bk.  v.  McKee,  2329. 
Farmers',  etc.,  Bank  v.  Lof  tus,  1024. 

v.  Payne,   2422. 
Farmers'  Loan  and  Trust  v.  Mont- 
gomery, 3928. 
Farmers'   and   Merchants'   Bank   v. 
Champlain,    Trans.,   1700. 

v.  Upham,  3928. 
Farmers'  Mutual  Ins.   v.  Grayville. 

1157. 
Farmers'   Mut.   F.   Ins.   v.   Garrett, 

1163. 
Farmington    v.    Co.    Corns.,    288. 
Farnam  v.  Feeley,  1260. 
Farnan  v.   Childs,   2290. 
Farnham  v.  Farnham,  93,  1012. 
Farnsworth  v.  Hemmer,  3466. 
Farquhar  v.  R.  R.  C,  4102. 
Farr  v.  Rouillard,  119. 


lvi 


TABLE  OF  CASES  CITED. 


[EEFEKENCES  ABE  TO   SECTIONS.] 


Farrar  v.   McNair,  2242. 
Farrell  v.  Lovett,  2167. 
Farrer's  case,  3084. 
Farrington  v.   Stone,  1060. 
Farris  v.  Battle,  2225. 
Farro  v.   Flatt,  3487. 
Farwell  v.  Hanchett,  3642,  3643. 

v.  Meyer,  486,   2134. 

V.  Nathanson,  3643. 
Fassinow   v.   State,  4462. 
Fassnacht    v.    Emsing    Gagen    Co., 

4198. 
Fathman  v.  Tumilty,  277. 
Faulker  v.  People,   3195. 
Faulkner  v.   Birch,  3726. 

v.  Gilbert,   4775. 

v.  State,  4710. 

v.  Territory,    346,    2547. 
Faust  v.  Hosford,  469,  487,  3416. 

v.  Huntington,  1141. 
Faut  v.  Mason,  287. 
Favis  v.  State,  127. 
Fawcett  v.  Freshwater,  2180. 
Fay  v.  Oatley,  2152. 
Feary  v.  Met.  St.  Ry.,  145,  364,  382, 
897,   2020,   2031,   4120. 

v.  O'Neill,  997,  1072,  1082. 
Featherstone  v.  People,  91. 
Feder  v.  Abrahams,  1089. 
Federal  St.  &  P.  V.  Ry.  v.  Gibson, 

2028. 
Fee  v.  Taylor,  2369. 
Feibelman  v.  Manchester  Fire  As- 

sur.,  1157. 
Fein  v.  Cov.  Mut.  B.  Assn.,  123. 
Feinberg  v.  P.,  96. 
Feldschueider    v.    C.    M.    &    St.    P. 

Ry.,  3742. 
Felix  v.  State,  3072,  3096. 
Felsch  v.  Babb,  122. 
Felton  v.  Aubrey,  4026. 

v.  Clarkson,  1735. 

v.  State,  2555. 
Fenelon  v.  Butts,  791. 
Fenneman  v.  Holden,  3749. 
Fent  v.  T.,  P.  &  W.  R.  R.,  1342. 
Fen  ton  v.  Clarke,  719. 

v.  Reed,    3496. 
Ferguson  v.  Hirsch,  86. 

v.  Lucas  County,  295. 

v.  Moore,  3618. 

v.  Spear,    1085. 

v.  State,  Ala.,  2742,  4477,  4590. 

v.  State,  Ind.,  229. 

v.  State,    Neb.,    2559,    2664,    2872, 
2882. 

v.  Sutphen,  2136. 
Ferris  v.   McQueen,  3335,  3654. 
Ferry  v.   Nolen,  322. 
Fessenden  v.  Doane,  592. 
Fidelity  &  Cas.  Co.  v.  Oehne,  1347. 

v.  Waterman,  3678. 

v.  Weise,   130.   1204,  3676. 
Fidelity    Mut.    L.    Assn.    v.    Miller, 
1190. 


Fidler   v.    McKliney,    767. 

Field   v.    C.   &  R.    I.   Rd.   Co.,   1714. 

V.  French,   102,   904,   4009. 

V.  R.    R.    Co.,    1994. 

v.  Village,    etc.,    1146. 
Fielder   v.    Ry.    Co.,    4172. 
Fields  v.    State,  4746. 
Figg  v.    Donahue,    496. 
Filke  v.   R.   R.   Co.,   3810. 
Fillingham  v.  St.  L.  T.,  2020. 
Finch    v.     Bergin,    3300,    3319,    3363, 
4363,  4686. 

v.  Ives,   290. 
Fink  v.  Des  Moines,  321. 
Finks    v.    Hollis,    4201. 
Finlayson  v.  State,  2927. 

v.  Utica     Mining     &     Mill     Co., 
38.4. 
Finley  v.  W.  Chi.  St.  Ry.,  249. 
Finn  v.   Barlow,   212. 
Finnegan    v.    Detroit    Free    Press, 

2296,    4267. 
Finnell   v.    Walker,    2279. 
Finney  v.   St.   Louis,  1228. 
Firemens    Insurance    Co.    v.    Coch- 
ran, 483. 
First     Baptist     Church     v.     Rouse, 

369. 
First  Natl.   Bk.  v.   Acme  White  L. 
&  C.  Co..  540. 

v.  Anderson,  2181. 

v.  Carpenter,   2205. 

v.  Carson,    332,    2135,    2144,    2168, 
4L07. 

v.  Holan,  4212. 

v.  Kelsay,    569. 

v.  Lowrey,   4337. 

v.  Oskaloosa  P.  Co.,  608. 

v.  Root,    1089. 

v.  Sanford,  352. 

v.  Sargeant,   2151. 
Fischer  v.   Spang,  3488. 
Fish  v.    Clelland,   1105. 

v.  Glass,  32. 

v.  Nethercut,   3520. 

v.  Ryan,   96. 
Fishback    v.    Brammel,    320. 
Fisher  v.   Beard,   1148. 

v.  Central  Lead  Co.,  3777. 

v.  C.   C.  R.,  323. 

v.  Fisher,   305. 

v.  McDonald,    4221. 

v.  Mellen,    1109. 

v.  People,  3032. 

v.  Philadelphia,  2307. 

v.  R.  R.   Co.,  3803,  3816. 

v.  State,  77  Ind.  46,  329,  2540. 

v.  State,  64  Ind.  435,  2610. 

v.  Stevens,    210. 
Fisk  v.  Town  of  Havana,  1141. 
Fitch  v.  Mason  C.  &  C.  L.  T.,  2112, 
2022,   2024. 

v.  State,  3049. 
Fitzgerald  v.   Benner,  228,   405,   512, 
671,  737. 


TABLE  OF  CASES  CITED. 


lyii 


[references  are  to  sections.] 


Fitzgerald   v.   Hestrom,  270. 

v.  La   Porte,    690. 

v.  Mallony      Construction      Co., 
3444. 

V.  McCarthy,    3S41. 

v.  Meyer,  2717,  4274. 

v.  State,  4691. 

v.  Town  of  Weston,  3940. 

v.  Woburn,   3932. 
Fitzgerrold  v.  Redfleld,  2294. 
Fitzpatrick  v.   Brignan,  992. 

v.  People,    2606. 

V.  State,  3119. 

v.     U.  S.,  2913. 
Fitzsimmons   v.    Braun,    3534. 
Flam   v.    Lee,    1276. 
Flanagan  v.  People,  4403. 
Flannigan  v.   B.   &  O.  R.  R.,  172. 
Flatner  v.    Good,    2326. 
Fleming   v.    Town    of    Shenandoah, 
35S8. 

v.  State,  Ala.,  4550. 

v.  State,   Ind.,  2695. 

v.  Stearns,    668. 
Fleshman  v.  McWhorter,  283,  295. 
Fletcher  v.  Atlantic,  etc.  Rd.,  1910. 

v.  Fletcher,   1231. 

v.  Ingram,   2248. 
Flickinger    v.    Wagner,    1259,    1273, 

1282. 
Flinn   v.    Barlow,   2279. 

v.  Crooks,  310. 

v.  R.    R.    Co.,    4099. 
Flint  &  P.  M.  R.  v.  Lull,  1965. 
Floeck  v.    State,   4503. 
Flohr   v.    Territory,    3217,    3228,    3239, 

3240,    3242,    3251. 
Flood  v.  Growney,  3684. 

v.  Pragoff,   2369. 
Flora  v.  Naney,  1624,  3942. 
Florence     Cotton     &     Iron     Co.     v. 

Field,   625. 
Florey's  Ex'rs  v.  Florey,  4294. 
Florida  Cent.  &  P.  R.  R.  v.  Burney, 
35S0. 

v.  Foxworth,  960,  984. 

v.  Mooney,  40  Fla.  17,  3832. 

v.  Mooney,  45  Fla.  286,  960,  1472, 
1589. 
Fla.   E.   Coast  Rd.   v.  Worley,   1148. 
Fla.  Ry.  &  Navigation  Co.  v.  Web- 
ster, 4786. 
Florsheim  v.  Dullaghan,  2314. 
Flournoy  v.  Andrews,  194. 

v.  Lyon,    743. 
Flower  v.   Brumbach,  3643. 

v.  Farewell,    1112. 
Flowers  v.   Flowers,   23S6,  2413. 
Floyd  v.  Hamilton,  742. 

v.  Paducah  R.   &  L.,  1360. 

v.  State,    2853. 
Fluegel  v.  Henschel,  1057,  1074. 
Flureau  v.   Thornhill,  3514. 
Flynn  v.   Canton   Co.,  2081. 

v.  Fogarty,   971,   1217. 


Flynn  v.   People,  4422. 

v.  San   Francisco  R.,   2000,   2 
Flynt  v.   Railroad  Co.,  3599. 
Foakes  v.   Beer,   L.   R.,   624. 
Fogg  v.   Edwards,  120. 
Foley    v.    Cudahy   Packing   Co.,    57. 

v.  State,  4755. 

v.  Tipton,   108. 
Follansbee    v.    Adams,    607. 
Folliott  v.  Hunt,  717. 
Folmar  v.   Siler,  2157. 
Fonville   v.    State,   4424,    4426, 
Foote  v.  American  P.  Co.,  S86,  1336, 

1355. 
Forbes  v.   How,   2228. 
Force  v.  Gregory,  1_95,  3721. 
Ford  v.  Babcoek,   3707. 

v.  Commonwealth,    2840. 

v.  David,  295. 

v.  Des  Moines,  894,  3573. 

v.  Fargason,  759. 

V.  R.    R.    Co.,    3792. 

v.  State,  Ala.,    4661,    4710,    4747. 

V.  State,     Ga.,    2622,    2770,    2841. 
2846. 

v.  State,  Ind.,  1283. 

v.  State,  Miss.,  3117,  4406,  4711. 

v.  State,  Neb.,    2616,    28-8,    2925, 
3219,    4411,    4414. 

V.  State,  Tex.,  2901. 
Fordyce  v.   Chancey,   1747. 

v.  Jackson,  56  Ark.  594,  918. 

v.  Jackson,  46  Ark.  602,  3403. 

v.  Kozminzki,    508. 

v.  Withers,   1747. 
Foreman  v.  Hunter,  33. 
Forest  v.   Tinkham,   1311. 
Forney  v.  State,  2648. 
Forster,  Waterbury  v.  Peer,  4256. 
Forsyth   v.    Cochran,    241. 
Fort     Dearborn     Lodge     v.     Klein, 

3702. 
Fortenberry  v.    State,   3102. 
Ft.     Wayne,     etc.     v.     Gildersleeve, 

1377,   1504,  1564. 
Ft.     Worth     &    A.     R.     G.     Ry.     v. 
Dial,    4101,    4104,    4107,    4110, 
4112. 

V.    Lindsay,    681,    2002. 
Ft.     Worth    &    Dallas    C.     Ry.     v. 
Gary,  3914. 

v.  Hogsett,    1988. 

v.  Kennedy,  2020. 

v.  Measles,  3603. 

v.  Morrison,    3568,   3610. 

v.  Shanley,  1703. 
Ft.    Worth    &   N.    O.    Ry.    v.    Enos, 
39S9. 

v.  Wallace,  2001. 
Fort  Worth  &  S.  C.  R.  v.  Thomp- 
son, 3869. 
Forth  v.  Pursley,  2328. 
Foss  v.   Foss,  4306. 
Fossdahl  v.   State,  2636. 
Foster  v.    Charles,   3643. 


lviii 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


Foster  v.    Commonwealth,   4529. 

v.  Essex   Bank,    1374. 

v.  Letz,  435. 

v.  MeKeown,   683. 

v.  Pac.   C.   L.,   559,   561. 

v.  Un.  T.,  2062. 

v.  Wadsworth,   258. 

v.  Worthing,    374. 
Fostick  v.  Van  Arsdale,  78. 
Fountain    v.    Draper,    1217. 

v.  State,   4749,   4756. 
Foutch   v.    State,   4711. 
Fowl   v.   Bradley,    50. 
Fowle  v.  State,  3244. 
Fowler  v.   Chichester,    2292. 

v.  Colton,   3656. 

v.  Deakman,   513. 

v.  State,    60. 

v.  Strawberry    Hill,    107. 
Fowlkes    v.    Baker,    1017. 
Fox  v.  Grey,  316. 

v.  Pinney,    3643. 

v.  People,  111.  App.,  4539. 

v.  People,   111..  4326. 

v.  Spears,  435,  452,  2223,  3403. 
Foxwell  v.   State,  156,  160. 
Foxworth    v.    Brown,    120    Ala.    59, 
3734. 

v.  Brown,  114  Ala.  299,  309,  1333. 
Frame    v.    Badger,    166,    3742. 
Francis   v.   D.   &  S.   City  Rd.,  1740. 

v.  State,  3106. 

v.  "Wilkinson,    4299. 

v.  Wood,    759. 
Franey  v.  I.  C.  R.  R.,  4111. 
Frank  v.   Levi,    318. 

v.  McDonald,  3698. 

v.  Marsh,  2178. 

v.  State,  2686,  3110,  3119,  3172. 

v.  Thompson,   669. 
Franklin  v.  Heinsman,  2174. 

v.  M.,  K.  &  T.  Ry.  Co.,  1603. 

v.  Newsome,  433. 

v.  State,  2636,   2646. 
Franklin  Academy  v.  Hall,  288. 
Franklin  F.  Ins.  v.  Updegraff,  1163. 
Franklin    Ins.    Co.    v.    Culver,    1163. 
Franklin  Life  Ins.  v.  Hickson,  1187. 
Franklin     Prtg.     Co.     v.     Behrens, 

1345. 
Franks  v.   Matson,  314. 

v.  State,  4684. 
Frantz  v.   Rose,   199,   3309. 
Fraser    v.    Hagerty,    344,    3331. 
Fiaser    &    Chalmers    v.    Schroeder, 

1439. 
Frazer   v.    Howe,    249. 

v.  Jennison,  2370,  2373,  2391. 
Frazier  v  Caruthers,  1239,   3702. 
v.  State,  Ark.,    3323. 
v.  State,  Ga.,  2858,  3113. 
v.  State,  Ind.,   2913. 
Frear    v.    Drinker,   143. 
Freas   v.    Fruitt,   417. 
Frederick  v.  Kizner,  3629. 


Frederick  v.   Mecosta,   278. 
Freeland  v.  Heron,  418. 
Freeman  v.  Collins  Park  &  B.  Ry., 
1839 

v.  Easley,   373,  2372,   4294,  4299. 

v.  Freeman,  498,  2787. 

v.  Gates,  4235. 

v.  Ins.   Co.,   3674. 

v.  Metropolitan     St.     Ry.,     2020, 
3368,  3587. 

v.  People,  2573. 

v.  Scarlock,   248. 

v.  Slay,  2315. 

v.  State,  Ga.,  3173. 

v.  State,  Tex.,  4655. 

v.  Tinsley,   2288. 
Freeman  Wire  &  Iron  Co.   v.  Col- 
lins,   3605. 
Freeport    v.    Isbell,    3309,    3598,    3983. 
Freiberg   v.   South    Side   El.   R.    R., 

3563. 
French   v.    French,   2398. 

v.  Millard,  411. 

v.  Milwaukee,   1653. 

v.  Sale,  67. 

v.  State,  4322,  4558. 
French     Piano     &     Organ     Co.     v. 

Porter,    3452. 
Frey   v.    Klar,    3417. 
Freymark  v.   St.   L.   T.,  2101. 
Frick  v.   Ry.  Co.,  4166,  4168. 
Fricke    v.    Kabacker,    118. 
Friemarle  v.  Rosenkrans,  231. 
Friend    v.    Dunks,    779. 
Fries  v.  Am.   L.  P.,  3307,  3592,  3765. 

v.  Bettendorf    A.    Co.,    14^4. 
Friess  v.  N.  T.  Cent.  Ry.,  86. 
Fritzeller   v.    State,    241. 
Fritzinger  v.    State,    3340. 
Fromne   v.   Jones,    275. 
Frost  v.  Berkeley,  2362. 

v.  Grizzely     Bluff     Cream     Co., 
307. 

v.  Parker,  318. 
Frout  v.  Hardin,  1233. 
Frudie   v.    State,    2768,   4498. 
Fry  v.   Bennett,   Bosw.,   241,  243. 

v.  Bennett,  Duer.,  812. 

v.  Kaessner,   3713. 

v.  Railroad,  94,  926,  3573. 
Fugate  v.  State,  85  Miss.  94,  32. 

v.  State,  82  Miss.  189,  55. 
Fulbright  v.  Perry  Co.,  2416. 
Fulcher  v.  State,  2541,  2555. 
Fuller  v.   Alden,  1024. 

v.  Kemp,  675. 

v.  N.    Rd.,    1759,    3588. 

v.  Paige,  1310. 

v.  State,   2648,   2708. 

v.  Talbot,  3965. 
Fullerton    v.    Cedar    Rapids    &    M. 
C.    Ry.,    4088,  4093. 
v.  Fordyce,   3587. 
v.  Warrick,   969. 


TABLE  OF  CASES  CITED. 


lix 


[references  are  to  sections.] 


Fulton  Bk.  v.  New  York,  etc.,  2422. 

v.  Stafford,    135. 
Fulton  Iron   Works  v.    North  Cen- 
ter  Creek    Mining   &    Smelt- 
ing Co.,   3735. 
Fulwider  v.   Ingels,   3300,  3319. 
Funderburk  v.  State,  56. 
Funk    v.     Babbitt,    311,    2205,    4222, 
4284. 
v.  Ely,  59. 
v.  Staats,    1316. 
Furham  v.   Huntsville,  91. 
Furnish  v.  Mo.  Pac.  Ry.,  2020,  2031. 


Gaffney   v.    St.    Paul   C.    Ry.,    203S, 

2071. 
Gafford    v.    State,    2994,    3105,    4056, 

4675. 
Gage    v.    Eddy,    354. 

v.  Meyers,    629. 

v.  Railroad    Co.,    3336. 

v.  Sharp,    4216. 
Gager  v.   Dobson,   3336. 
Gagg   v.   Vetter,   2099. 
Gagnier   v.    Fargo,   1672. 
Gaines    v.    State,    3084. 
Gainey  v.    People,   2539,   3133. 
Galena    &    C.    U.    R.    R.    v.    Jacobs, 
3753,  4151. 

v.  Loomis,    4151,   4196. 

v.  Yarwood,     15     111.     468,     1748, 
4151. 

v.  Yarwood,   17  111.    509,   1759. 
Galesburg   &   C.   E.   Ry.   v.    Milroy, 

958 
Galesburg  El.  M.  &  P.  Co.  v.  Bar- 
low, 3749. 
Gallagher  v.  Bowie,   1747,  2020,  2029. 

v.  Button,   3696. 

v.  Hirnilberger,  1227. 

v.  Kammerer,  4276. 

v.  People,  3199. 

v.  State,  2734. 
Gallamore  v.  Olympia,  902. 
Gallery    v.    State,   4548. 
Gallick  v.   Bordeaux,  3629. 
Galligher  v.   Connell,  1051. 
Gallmau   v.   Union  Hardwood   Mfg. 

Co.,    1407. 
Galloway   v.   Burr,  1261,  1266. 

v.  Chi.,  R.  I.  &  P.  Ry.,  1336. 

v.  Galloway,  729. 

v.  State,  Fla.,  4546. 

v.  State,  Tex.,   2497. 
Galpin  v.   Wilson,  1671. 
Galson   v.    State,   4370. 
Galusha  v.  Sherman,  2151. 
Galvin   v.    Bacon,    2239. 
Galveston  C.  Ry.  v.  Chapman,  892, 

2027. 
Galveston     H.     S.     &     A.     Ry.     v. 
Adams,  3869. 

v.  Brown,     33    Tex.     Civ.     App. 
589,   1465. 


Galveston     H.     S.   &     A.     Ry.     v. 
Brown,  95  Tex.  2,  3869. 

v.  Buch,    1508. 

v.  Cherry,    1512,    1553. 

v.  Chittin,     4098. 

v.  Cody,    704. 

v.  Collins,    892. 

v.  Crawford,  3783. 

v.  Croskell,  1530,  3867. 

v.  Currie,  1427. 

v.  Davis,  1498,  1577,  3898. 

v.  De   Castilo,   1806. 

v.  Dehnisch,  3568,  3581,  3867. 

v.  Drew,    3S26. 

v.  English,   3855. 

v.  Fitzpatrick,  1575. 

v.  Fry,    1894. 

v.  Gibson,   1567. 

v.  Gormley,  1497,  1510,  3737,  37S3, 
3869,  4189. 

v.  Hampton,   1418,   3S22. 

v.  Henning,  1474. 

v.  Home,    1767,    1988,    1999,    4099. 

v.  Hubbard,  3993. 

v.  Hughes,    3886. 

v.  Jackson,  3867. 

v.  Jenkins,    1535. 

v.  Johnson.    985,   356S,   3S62. 

v.  Jones,    955. 

v.  Kief,   1933,   3568. 

v.  Kutac,  3961. 

v.  Lynch,    898,    1530,    1537,    4121. 

v.  Manns,   1475. 

v.  Mohrmann,   1489. 

v.  Mortson,    1453,    1519,    3897. 

v.  Nass,    1577,  3898. 

v.  Parrish,    3886. 

v.  Parvin,    1514. 

v.  Pendleton,   1474,   1542,   3895. 

v.  Perry,   3590,   3597. 

v.  Pitts,   1459. 

v.  Puente,   985. 

v.  Renz,  3893. 

v.  Sanches,  1545,  1601. 

v.  Sherwood,    1432. 

v.  Simon,   1875. 

v.  Slinkard,  1566. 

v.  Smith,    Tex.    Civ.    App.,   93   S. 
W.  185,  1473,  3809. 

v.  Smith,  24  Tex.  Civ.  App.  127, 
3886. 

v.  Smith,  59  Tex.  406,  3993. 

v.  Sweeney,  1530,  3869. 

v.  Templeton,  1577. 

v.  Udalle,  1585. 

v.  Vollrath,  1863. 

v.  Waldo,   898,   1767,   2040. 

v.  Williams,    327. 

v.  Worthy,  3610. 
Gammons  v.    State,   50,   55. 
Gandy  v.  Bissell's  Estate,  2143. 
Gannon   v.    People,    2503. 
Gans  v.  St.  Paul  F.   Ins.,  1164. 
Ganson  v.  Madigan,  630. 
Gantling  v.  Rane,  430. 


lx 


TABLE  OF  CASES  CITED. 


[REFERENCES  are  to  sections.] 


Gantling   v.    State,    2497,    2985,    3043, 

3323,   4367,   4373,   4432. 
Garcia  v.  Brown,  307. 

v.  State,  Fla.,  4320. 

v.  Slate,  Tex.,  4570. 
Gardiner  v.  Otis,  1088. 

v.  Slate.   2645,    4462. 
Gardner  v.  Gardner,  2379. 

v.   I'easlee,   307. 

v.  People,   56. 
Garfield   v.   Huls,  715.  727. 

v.  Knight's    Ferry,    268. 

v.  State,   3363,  3364,  4330,  4686. 
Garland   v.    C.    &   N.   W.    Ry.,   4032. 
C.i  rlas  v.   State,  4485,  4536. 
Garlick   v.    Miss.    Valley   Ins.,   1168. 
Garner    v.     State,    2617,    2618,    3056, 
3085. 

v.  Trumbull,   4026. 
Garratl   v.   Lit<  hfield,  293. 
Garret  v.   Rhame,  1091. 
Garrett  v.   Farwell,  260,  269,  278. 

v.  Heflin,   4286. 

v.  Sewell,    772. 
Garretson  v.  Becker,  164. 
Garrick  v.  Chamberlain,   326. 
Garri.^an  v.  Kennedy,  781. 
Garrigue   v.   Keller,   309. 
Garrison  v.   People,  2637,   4337. 

v.   Wilcoxon,    222. 
Garruth   v.   Harris,   3655. 
Garteiser  v.   R.   Co.,   3869. 
Garvik  v.  B.,  C.  R.  &  N.   Ry.,  1768. 
Garvin's  Admr.  v.  Williams,  2401. 
Gary   v.    Woodham,  4056. 
Gaskill   v.    State,    3280. 
Gassenheimer  v.  Kellogg,  540. 
Gasway  v.  Atlanta,  etc.  Rd.,  1371. 
Gater  v.   State,  4618. 
Gates  v.  Fleischer,  1290,  3721. 

v.  Meredith,    813. 

v.  People,  52. 
Cat  t  is  v.    KilgO,   2285,  4265. 
Gauble  v.   Ryman,  731. 
Gavagan    v.    Bryant,    2174. 
Gay    v.    I  :aics. 

le   v.    .Mm.  C.  &  F.,  1524. 
i  .]■  v.    Louisville  &  N.  R.,  4056. 
Geary   v.    Ry.  Co.,  1538. 
Gedney   v.   Gedney,   4200. 
Geer  v.   Church,  2254. 
ChIiI    v.     Milwaukee    Produce    Co., 

3484,    3510. 
Geib     v.    [international     Ins.,     1163, 

MY  I. 

Gelbel  v.  Collins  Co.,  958. 

r  v.   Pain 
Gelselman    v.   Si  ott,    L289,  1299. 

endorffl   v.    Eagles,   1064. 
Geither   v.    Hascall-Richards   S.    G. 

Co., 
Gelzenleuchter  v.   Nelmeyer,  1285. 

on,  3  R9. 
Gentleman   v.  Soule,  1145,  1150. 
Gentry  v.    Robinson,    1074. 


Genz   v.   State,   2585,   4405. 
George  v.  Gobbey,  4772. 

v.  U.    S.,    3214,    3220,    4789. 
Georgia   v.   Kepford,   3210. 
Ga.  Cotton  Oil  Co.  v.  Jackson,  3834. 
Ga.   C.   &   N.Ry.    v.   Watkins,   1354, 

1761. 
Ga.   G.   Ins.  v.   Allen,  1160. 
Ga.   Ins.   v.    Kinner,   1169. 
Ga.,    Marritt    v.    Cotton    States    L. 

Ins.,   1207. 
Ga.  P.  Ry.  v.  Davis,  1503. 

v.  Lee,   1S69,   1960,   4170. 
Ga.  Ry.  Co.  v.  Hart,  41. 
Ga.    S.   &   F.    Ry.   v.   Wisenbacher, 

3350. 
Gerardo  v.  Brush,  3356. 
Geringer  v.   Novak,  3356,   3387,   3540, 

4268. 
Gerke   v.   Fancher,   513. 
German   Am.    Ins.   v.   Brown,    1163, 

1185. 
German    F.    Ins.    v.    Grunert,    1157, 

1191. 
German    Ins.    Co.    v.    C.    &    N.    W. 
Ry.,  1336,   1998. 

v.  Stiner,   309. 
Germania  Ins.  Co.  v.  Klewer,  352. 
Germantown   v.  Goodner,  309. 
Gernon    v.    McCan,    4211. 
Gerold  v.  Guttle,  566,  3730. 
Geroldman  v.  C,  G.  W.  Ry.,  307. 
Gerring   v.    State,   3187. 
Geutig   v.    State,    3372. 
Gharst  v.   St.  L.  T.,  2064. 
Giannone  v.  Fleetwood,  1125. 
Gibbs   v.    Bull,   4245. 

v.  Hayler,   390. 

v.  Linaburg,    2146. 
Giberson    v.    Jolley,    4219. 
Gibony  v.  Insurance  Co.,  3402. 
Gibson  v.  Hutchins.  1205. 

v.  Murray,   1611. 

v.  Nelson,  4287. 

v.  State,  89  Ala.  121,     3072,    3107, 
4747. 

v.  State,  91  Ala.  64,  4728. 

v.  Wild,  711. 
Gice    v.    Crosby,    346. 
Giebell    v.    Collins    Co.,    1384,    1414, 

1482. 
Gifford  v.   People,  3357. 
Gilber    v.     Watts    de    Golyer    Co., 

261. 
Gilbert  v.  Buffalo  Bill's  Wild  West 
Co.,  3538. 

v.  Commonwealth,    4373. 

v.  Emmons.    3715. 

v.  Forrest    City    Furniture    Co.. 
3636. 

v.  Call  up,    4313. 

v.  Hall,   296. 

v.  Insurance  Co.,   3620. 

v.  Saddlery   Co.,   4592,  4775. 

v.   Slate,    4548. 


TABLE  OF  CASES  CITED. 


lxi 


[references  are  to  sections.] 


Gilbert  v.  Vachon,  643. 
Gilchrist   v.    Brande,   2215. 

v.  Moore,  2239. 
Giles  v.    State,   2670. 
Gill   v.    Rd.,   1964. 

v.  Staylor,   730. 
Gillan    v.    Board   of    Regents,    2432. 
Gillen  v.   Riley,   1226. 
Gillespie   v.    Ashford,    721. 
v.  People,  48. 
v.  Planters'    Oil   Mill   Mfg.   Co., 

3665. 
v.  Rump,  291. 
v.  State,  Ark.,   2450. 
v.  State,   Tex.,  4518. 
Gilliam  v.  Ry.  Co.,  3585. 
Gillum     v.     Fire    Ass'n     of    Phila- 
delphia,  3667. 
Gilman   v.  Coutts,  3707. 

v.  Inhabitants  of  Deerfield,  3927. 
v.  Sioux    City    R.    Co.,    24S. 
Gilmer   v.    Ware,    3639. 
Gilmore  v.  Courtney,  3517. 
v.  Matthews,  778. 
v.  People,   238. 
v.  Seattle    &    R.     R.    Co.,    2040, 

2072     3342 
v.  State,  96  Ala.    154,   4351. 
v.  State,  126  Ala.    20,    3172,    4414, 
4615,     4636,     4646,     4693,     4703, 
4708,     4710,     472S,     4732,     4745, 
4747,    4749,   4756. 
Gilson  v.  Cadallae,  899,  1611,  3917. 

v.      Ry     Co.,    2020. 
Gizler  v.  Witzel,  198. 
Glading  v.   Philadelphia,  1669. 
Glasgow  v.  Gillenwaters,  1627,  1667. 

v.  Met.    St.   Ry.,  49. 
Glass  v.   M.   &  C.   R.  R.,  1S69. 
Glaze  v.  Blake.  2S6. 
v.  Keith,   276. 
v.  Whitley,    374. 
Gleason  v.  Goodrich  T.,  1832. 

v.  Hamilton,   4220. 
Glebel    v.    State,    2596. 
Gleeson  v.  Railroad  Co.,  4009. 
Glenn   v.    Augusta   Ry.    &   Electric, 
3327. 
v.  State,  Ark.,   58. 
v.  State,  Tex.,  2734. 
Glens  Palls  Ins.   v.  Michael,   1177. 
Glickauf  v.    Kaufmann,   21S4. 
Glidden  v.   Moore,  4277. 
Globe    Refining    v.    Landa    Cotton 

Co.,  3548. 
Globe  Oil   Co.   v.   Powell,   3797. 
Glover  v.   Gentry,  4220. 
v.  Heath,    289. 
v.  U.    S.,    2436. 
Glucose     Sugar     Refining     Co.      v. 

Flinn,   712. 
Goddard  v.  Foster,  629. 
v.  G.   T.    R.    R.,   1370. 
v.  Monitor  Ins.,  1188. 
Godding  v.  Brackett,  1091. 


Godfrey  v.  St.  L.  T.,  1438. 

Godsell   v.    Taylor,    3790. 

Godwin    v.    State,    2862,    2863,    3107, 

4754. 
Goeing  v.  Outhouse,  349. 
Goetz   v.   Sona,   70. 
Goins  v.  Moberly,  1644. 
Golden  v.  Newbrand,  1374. 

v.  State,   89. 
Goldie  v.   Werner,   2132,   3976. 
Goldsberry  v.   State,   4594. 
Goldsmith    v.    Hand,    684. 

v.  State,  2689,   4340,   4787. 
Goldstein  v.   Reynolds,  3699. 

v.  Smiley,  232. 

v.  State,  89. 

Goldterman  v.    Schiermeyer,  3462. 
Goldthorpe    v.    Clark-Nickerson    L. 

Co.,  1419. 
Golibart    v.    Sullivan,    786,    12S8. 
Gollsbitch   v.    Rainbow,    3635. 
Golson    v.     State,    4420,    4648,     4691, 

4737,  4746. 
Gonzales  v.  Adoue,  1090,  3567. 

v.  Galveston,  1763,  4159. 

v.  State,   52,   4712. 
Good  v.  Dalland,  326. 
Goodall  v.  New  Eng.  Mut.  F.  Ins., 
1174,    117.",. 

v.  State,   4699,    4735. 
Goodbar  v.   Lidikey,   4105. 
Goodhart  v.  Ry.  Co.,  3571. 
Goodheart  v.  Johnson,  1319. 
Goodhue    Farmers'    Warehouse    v. 

Davis,  3415. 
Gooding  v.  IT.  S.  L.  Ins.,  1349,  3674. 
Goodlett  v.   State,  4456,  445S. 
Goodman  v.   Goodman.    1007. 

v.  Harvey,    2167,    4216. 

v.  People,  115. 

v.  Simonds,   2134,   2167. 
Goodnow   v.    Hill,   2788. 
Goodrich    v.    B.,    C.    R    &    N.    Ry., 
4069. 

v.  Cook,    301. 

v.  Van  Landingham,  1052. 
Goodwin  v.  Canal  Co.,  4113. 

v.  Smith,    303. 

v.  State,  Ala.,   4747. 

v.  State,  Ind.,     395,      2589,     2593, 
4300,  4375,  4402.   4462,  4670. 

v.  State,  Miss.,  2854. 
Goodwine    v.    State,    327,    334,    2793, 

4512. 
Gordon  v.  Burris,  2416. 

v.  Chicago,    59. 

V.  Clifford.    4764. 

v.  Highlev,    277. 

v.  State,   Ala.,   4459,  4745. 

v.  State,  Ga„   4529. 
Gore  v.  People,  113. 
Gorell  v.   Payson.   376S. 
Gores  v.   Graff,   333S,   3340. 
Gorgas  v.   Phil.   H.   &   P.   R.,   863. 


lxii 


TABLE  OP  CASES  CITED. 


[BEFEBENCES  ABE  TO  SECTIONS.] 


Gorgo    v.     People,     346,     2654,    4379, 

4438. 
Gorham  v.   K.  C.  &  S.  Ry.,  899. 
Goring   v.   Fraser,  4311. 
Gorman's  Adm'r  v.  Louisville  Ry., 

1336,    1337. 
Gorstz   v.    Pinske,   935. 
Gorton  v.  Brown,  1263. 
Goshen  v.  England,  930,  949. 
Goss  v.  So.  Ry.,  1923. 
Gothard     v.     Ala.     Ga.     So.     R.     R. 

Co.,    1S68. 
Gott  v.  People,  2516. 
Gottfried  Brewing  Co.  v.  Szarkow- 

ski    421. 
Gottlieb   v.    Frost,   317. 

v.  Hartman.    346,    2341. 
Gottrupt   v.    Williamson,    508. 
Gotts   v.    Clark,   1017. 
Gottschalk  v.   R.   R.,  865. 
Gould   v.    Magnolia   Metal   Co.,    724. 

v.    McKenna,    930. 
Gourko  v.    U.    S.,   4719. 
Gov.   St.    Rd.   v.    Hanlon,    1354. 
Grabowski   v.   State,   113,  2485,   2550, 

4339. 
Grace   v.    Adams,    1713. 
v.  Dempsey,  520. 
v.  McArthur,   230. 
v.  McElroy,  641. 
v.  Mosely.  4818. 
v.  Nesbit,  3735 
Gradle  v.   Hoffman,   55. 
Graessle  v.  Carpenter,  826. 
Graf  v  Laev,  515 
Graff  v.   People,   4777. 
Graham    v.    Commonwealth,    2583. 
v.  Fulford,  778. 
v.  Holloway,   3489. 
v.  McNeil,   2066. 
v.  Oxford,   1337. 
v.  Sadler,  176. 
v.  State,   3107. 
Gram  v.  Chicago,  3554. 
Gramm   v.    Boener,    1290,   1299,   3721. 
Granberry  v.    Mussman,   310. 
Grand   v.    Houston,   3689. 
Grand     Island     Mercantile     Co.     v. 

McMeans,    352. 
Grand     Lodge     A.     O.     U.     W.     v. 
Belcham,   1206. 
V.  Lachmann,  1212. 
Grand  Lodge  I.  O.  O.  of  F.  S.  O.  I. 

v.  Onstein,  323. 
Grand  L.   of  B.    of  L.  F.   v.   Orrell, 

1214. 
Grand  Lodge  Bro.   R.  Trainmen  v. 

Randolph,  146. 
Grand     Lodge     I.     O.     M.     A.      v. 

Wieting,  1207,  3676. 
Grand  Rapids  &  Ind.  Rd.  v.  Boyd, 
1748. 
v.  Mnrtin,   3331. 
Grand   Rapids,   etc.,   Rd.   v.   Heisel, 
870,  3549. 


Gr.  Rapids  Booming  Co.  v.  Jarvis, 

25. 
Grand  Pac.  R.  Ry.  v.  Ross,  4016. 
Grand  Tower  Mfg.  Co.  v.   Ullman, 

3384. 
Grand    Trunk    Ry.    v.    Cummings. 
1474. 

v.  Ives,     4036,     4069,     4081,     4090, 
4180. 

v.  Nicol,  248. 

v.  Richardson,  1994. 
Granison  v.  State,  4799. 
Grant  v.  Chamberlain,  289. 

v.  Green,    3588. 

v.  State,   4340,    4353,   4354. 
Grantz  v.  Deadwood,  309,  310. 
Grash  v.  Sater,  3427. 
Grattan  v.   Life  Ins.   Co.,  120. 
Gravely  v.  State,  4316,  4322. 
Graves    v.    Colwell,    176,    3303,    3487, 
3624. 

v.  Kellenberger,  4224. 

v.  People,   4437. 

v.  State,    2999,   4405. 
Gray  v.  Eschen,  314. 

v.  Faris,  1091. 

v.  Farmer,  1151. 

v.  Holdship,   3735. 

v.  Little,  3617,  3724. 

v.  Merrian,  558. 

v.  Reg.,    57. 

v.  St.  John,  1076,  1080. 

y.  Sharpe,  3371. 

v.  State,  3032,  3034,  3172,  4471. 
Graybeal  v.  Gardiner,  2371. 
Graybill    v.    Chi.,    M.    &   St.    P.    R., 
1982. 

v.  DeYoung,   36,    51. 
Grayson     McLeod     Luber     Co.     v. 

Carter,  38^4. 
Gray  Tile  Co.  v.  Clark,  771. 
Great  So.  Rd.  v.  Johnston,  3311. 
Great  W.  Rd.  Co.  v.  Hawkins,  1729. 

v.  McDonald,  1698. 
Green  v.  Bulkley,  288. 

v.  Cochran,   378,   1263. 

v.  Gilbert,  723. 

v.  Green,  498. 

v.  Lancaster  County,  428. 

v.  Lewis,  154. 

v.  Phoenix  Mut.  Life  Co.,  86. 

v.  Railway,  984. 

v.  Southern  States  Lbr.  Co., 
3467. 

v.  State,  Ala.,  4463,  4635. 

v.  State,  Ark.,  2737. 

v.  State,  21  Fla.  403,  2804. 

v.  State,  40  Fla.  191.  4378,  4477. 

v.  State,  Miss.,  3026,  3034. 

v.  State,  Mo.,  3097. 

v.  Tanner,  1079. 
Green,  In  re,  608. 
Greenberg  v.  Stevens,  4237. 
Greene  v.  Louisville  Ry.,  2079,  4169. 


TABLE  OF  CASES  CITED. 


lxiii 


[befebences  aee  to  sections.] 


Greenfield    v.    Chi.    &    N.    W.    Ry., 

802. 
Greening-  v.  Bishop,  251. 
Greenup  v.  Stoker,  40. 
Greenville  v.  O.  D.  S.  S.,  119. 
Greer  v.  L.  &  N.   R.   R.,  3591. 

v.  Merrill,  25. 

v.  State,  43S0,  4548. 
Gregg-  v.  Kommers,  322. 

v.  People,   4603. 

v.  Wells,  1305. 
Gregory   v.    Det.    U.    Ry.,   333,    1636, 
3310. 

v.  Ohio  R.,  232. 

v.  R.  R.  Co.,  256,  4173. 

v.  Wendall,  564,  605,  608. 

v.  Wendell,  608. 
Grenshaw  v.  State,  4485,  44S8. 
Greschia  v.  People,  3183. 
Gresham  v.  Harcourt,  835. 
Gribben  v.  T.  A.  M.   &  M.,  3795. 
Gridley  v.  Bingham,  3633. 
Griel  v.   Marks,   193. 
Griffen  v.  Lamed,  280. 

v.  Lewiston,  78. 
Griffin  v.  Chi.,  R.  I.  &  P.  Ry.,  167. 

v.  Chubb,  1280,  3709. 

v.  State,    3049 

v.  Willow,  3939. 
Griffis  v.  Sellars,  3709. 
Griffith  v.  Smith,  437. 

v.  State,  Ala.,   4441,  4450. 

v.  State,  Ga.,  2464. 
Griffiths   v.    Kellogg,   2146. 
Griggs  v.  State,  3230. 
Grijalva  v.  S.  P.  Co.,  1390. 
Grillingham  v.   Bordman,  2178. 
Grimes  v.  Hilliary,  352. 

v.  Martin,  68. 

v.  State,  63  Ala.  166,  345. 

v.  State,  105   Ala.    87,   2689,    4462. 
Grimm  v.  Warner,  2171. 
Grimmer  v.   Nolen,   1311. 
Grimsinger  v.  State,  2723,  2731,  2733, 

2735,  2744. 
Groendike  v.  Musgrave,  326. 
Grof£  v.  Arkenbrandt,  2358. 

v.  O'Conner,   2218. 
Groom  v.  Kavanagh,  1689. 
Gropp  v.  People,  39. 
Groscop  v.   Rainier,  4772. 
Gross  v.   Schroeder,   3703. 
Grossbaum  C.  A.  Syndicate  v.  Ger- 
man Ins.,  11S6. 
Grotjan  v.  Rice,  385,  3340. 
Grounwater     v.     Town     of    Wash- 
ington, 3576. 
Grover     &     Baker    S.     M.     Co.     v. 

Bulkley,    713. 
Groves  v.  Hines,  286. 

v.  Richmond,  286. 
Grubb  v.   State,  127,  150,  156. 
Grube  v.   Nichols,  1136,   1153,   3742. 
Grund  v.  Van  Vleck,   3704. 
Grymes  v.  Sanders,  1129. 


Guaranty    Cons.     Co.    v.     Broeker, 

1466,    3393. 
Guardian     M.     L.     Ins.     v.     Hogan, 

3674. 
Guertin  v.  Town  of  Hudson,  1356. 
Guetin  v.  State,  63  Ind.  278,  4548. 

v.  State,  66  Ind.  94,  440^. 
Guggenheim  v.  R.   R.   Co.,  4090. 
Guild  v.  Hull,  612,   614,  2371. 
Cuille   v.    Swan,   4158. 
Guinard  v.  Knapp,  Stout,  1390,  1452, 

3338,  3340,  3769. 
Guinney  v.  Southern  E.,  2095. 
Gulf  C.   &  S.   F.   Ry.   v.   Anderson, 
3869,  4031. 

v.  Archambault,  1461. 

v.  Benson,    1999,  4098. 

v.  Booth,  3993. 

v.  Box,    4033,    4034. 

v.  Brown,  2020. 

v.  Bryant,    4151. 

v.  Butcher,  1780. 

v.  Carter,    3541,    3992. 

v.  Condra,    4007. 

v.  Cornell,  3869. 

v.  Cushney,    1703. 

v.  Darby,   3S94. 

v.  Davis,  1515. 

v.  Delaney,  1577. 

v.  Denson,  933,  1818. 

v.  Fox,  236. 

v.  Garren,  3899. 

v.  Gasscamp,   3855,   3869,  4048. 

v.  Godair,  4159. 

v.  Gray,  3914. 

v.  Greenlee,  908. 

v.  Harriett,    3895. 

v.  Hayes,    103,    1336. 

v.  Hayter,  1427. 

v.  Hill,      505,      1489,      1592,      3905, 
3868,   3909,  4151. 

v.  Hodges,   1336. 

v.  Home,   4098. 

v.  Jackson,  3824. 

v.  Jagoe,  2001. 

v.  Johnson,  1992,  1999,  4009,  4098- 

v.  Jones,   2001. 

v.  Jordan,    4103. 

v.  Langford,   3867. 

v.  Manghan,  2072,  3908. 

v.  Matthews,   226. 

v.  McWhirter,  4159. 

v.  Miller,    783,    3530. 

v.  Minter,    1368,    1494. 

v.  Montgomery,   4065. 

v.  Moore,   1474. 

v.  Nelson,  3986. 

v.  Newman,  1382. 

v.  Reagan,  1998,  4099. 

v.  Rowland,   3909,    S993,   4151. 

v.  Shelton,    1798,  3982. 

v.  Shieder,    961,    1800,    1907,    2103, 
3752. 

v.  Shields,  1747. 

v.  Simonton,   3603. 


Ixiv 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


Gulf  C.  &  S.  F.  Ry.  v.  Smith,  1510, 
2029,    3737,    4189. 

v.  Thompson,    3350. 

V.  Rowland,   3905. 

v.  Turner,  3977. 

v.  Waldo,   898. 

v.  Warner,  908,  961. 

v  White,  3773. 
Gulf  W.  P.  &  T.  Ry.  v.  Ryan,  3869. 
Gulick  v.  Connely,   356. 
Gulliher  v.  People.   3323. 
Gulliver  v.   Adams  Ex.,   1693. 
Gumaer  v.  White  Pine  Lumber  Co., 

309. 
Gumberg  v.  Treusch,  3335,  3654. 
Gummers  v.  Pumphrey,   3675. 
Gundlach    v.    Schott,    102,    126,    241, 

4256. 
Gunn  v.  Felston,  4051. 

v.  Gunn,   221. 

v.  Ohio  River  Ry.,  4026. 
Gunter  v.  State,  4400. 
Gunther  v.  Mason,  326. 
Gustafson  v.   Seattle  T.   Co.,  3372. 
Gustin  v.  Barnham,  1040. 
Gutherless  et  al.  v.  Ripley,  3351. 
Gutirrez  v.   State,   2734. 
Guy  v.   Gillilan,  2401. 
Guyer  v.  D.   R.  I.  &  N.  W.,  863. 

v.  Snow,   310. 


Haase,   In  re,   321. 
Habbie  v.  Andrews,  317. 
Haberlau  v.  L  S.  Ry.,  320. 
Hachman  v.  Maguire,  76. 
Hacker  v  Monroe  &  Son,  2217,  2245. 
Hackett  v.  Kendall,  3707. 

v.  Smelsmley,  3524,  3528. 

v.  State,  Ga.,  2980. 

v.  State,   Tex.,  4707. 
Hadden  v.  Thompson,  41. 
Hadley  v.   State,  3072. 
Haecker  v.  Chi.  &  A.  R.,  248. 
Hafner  v.  Herron,  470,  594. 
Ragee,  v.  Grossman,  1115. 
Ragelund  v.  Murphy,  3713. 
Hagestorn  v.  W.  C.  St.  R.  R.,  4156. 
Haggerty  v.  Strong,  892. 
Hahn   et  al.   v.   Fredericks,   2248. 
Haider  v.   Insurance   Co.,   1241. 
Haight  v.   Vallet,   3372. 
Haines  v.  Amerine,  164. 

v.  Corlis,  289. 

v.  I.    C.    R.,   1910. 

v.  Neece,   471,   756. 

v.  Territory,   2548,   2550. 
Hainsworth  v.  State,  4351. 
Haist  v.  Bell,  248. 
Hake  v.  Strubel,  281,  301,  303,  304. 
Hale  v.   Barrett,  1325. 

v.  Danforth,   2164. 

v.  Johnson,    1367. 

v.  Knapp,  355. 


Hale  v.  L.   I.   &  I.  Co.,  105. 

v.  State,     374,     2689,     2885,     3386, 
4459,    4572. 
Hall  v.  Chi.  etc.  Ry.,  480. 

v.  DeCuir,  2058. 
v.  First    Natl.    Bk.    of    Emporia, 
98,  2142. 

v.  Fullerton,  1128. 

v.  Gilman,  294. 

v.  Hall,  Ala.,  42S6. 

v.  Hall,   Ind.,   299. 

v.  Manson,  90  la.  585,  3588. 

v.  Manson,   99  la.   698,  146. 

v.  Nasmith,    3707. 

v.  Powel,   3461. 

v.  Rankin,    3376,    4300. 

v.  State,  40  Ala.  698,  273. 

v.  State,   130  Ala.  45,  3355,  4466. 
4693. 

v.  State,   134   Ala.    90,    2834,   3388, 
4535. 

v.  State,  33  Tex.  Cr.  R.  191,  3084. 

v.  State,    43    Tex.    Cr.    App.    479, 
3123. 

v.  State,  N.  W.,  242. 

v.  Strode,  171. 

v.  Wolf,  83. 
Hallam  v.   Means,  1290. 

v.  Todhunter,    1097. 
Hallard  v.  Cheney,  317. 
Hallentack  v.    Hoskins,  274. 
Halley  v.   Tichenor,  527. 
Halliday  v.  Briggs,  2274. 
Hall-Moody     Institute     v.     Copass, 

2433. 
Halloway  v.  Com.,  11  Bush  344,  329. 

v.  Com.,  12  Bush  334,  329. 
Halsey  v.    Bell,   4204. 

v.  Darling,  309. 
Haltcher  v.   State,  230. 
Halverson  v.   Seattle  El.   Co.,  2026, 

2066. 
Ham  v.   State,  3109. 

v.  W.  I.  &  N.  R.,  161. 
Hambrick  v.  Wilkins,  3507. 
Hamilton  v.  Arnold,  533. 

v.  Beardslee,    2429. 

v.  Boothe,  1023. 

v.  Eno,    812. 

v.  Griffin,  2309. 

v.  Hooper,  507,  3433. 

v.  Iowa  B.    Co.,   109. 

v.  McPherson,  795. 

v.  Marks,   2168. 

v.  Maxwell,    741. 

v.  People,    4462. 

v.  R.  R.,  13S3. 

v.  Spiers,  286. 

v.  State,  Ark.,  2534. 

v.  State,   Ind.,   3296. 

v.  State,  11  Tex.  App.  116,  4571. 

v.  State,    41    Tex.    Cr.    App.    644, 
4552. 

v.  Third  Av.  Rd.  Co.,  488. 


TABLE  OF  CASES  CITED. 


lxv 


[REFERENCES    ABE   TO    SECTIONS.] 


Hamilton  Buggy  Co.  v.  Iowa  Bug- 
gy Co.,   308. 
Hamlin  v.  Abell,   1109. 

v.  Race,   7^4. 
Hammarberg  v.  St.  Paul,  etc.,  Lbr. 

Co.,   1376. 
Hammer  v.  C.  R.  I.  &  P.  Ry.,  3336. 
Hammill  v.    State,   2986. 
Hammond   v.  Bookwalter,  597,  3466. 

v.  Johnson,    3787. 

v.  Mukwa,   3939. 

v.  State,    Miss.,    2662,    2720,    4351, 
4445,  4460. 

v.  State,  Neb.,  2820. 
Hamphill  v.  State,  4445. 
Hampton  v.   Occidental  &  O.   S.   S. 

Co.,   4192. 
Hanchett  v.   Haas,  348,   358. 
Hancock    v.    Meirick,    1004. 

v.  Stout,  6S9. 
Handlin  v.  Law,  140. 
Handy  v.   Canning,  374. 
Hanewalker    v.    Ferman,    3528. 
Haney  v.   Caldwell,   4462. 
Hanger   v.    Evins,    4462. 
Hanheide  v.   St.   L.   T.   Co.,   4171. 
Hanke   v.    Cobisky,   3339. 
HanKey  v.   Downey.   4219. 
Hanlon   v.    Milwaukee  E.    R.   &  L., 

2107. 
Hanna  v.  Sweeny,  945,  964. 
Hannabalson   v.    Sessions,    528. 
Hanners  v.   McClellan,   140. 
Hannibal  &  St.  J.  R.  R.  v.  Martin, 
883,    903,    918,   1345,    1747,    3785. 

v.  Swift,    1832. 
Hannigan  v.    State,   3269. 
Hannon  v.    Engleman,    1250. 

v.  State,    400,    3266. 
Hanrahan  v.  People,  165. 
Hans  v.   State,  4737. 
Hansberger   v.    Railways   Co.,    3323. 
Hansell-Elcock    F.     Co.     v.     Clark, 

1390. 
Hansen   v.    St.    Paul    Gaslight   Co., 

798. 
Hanson  v.  Carblom,  13. 

v.  Eastman,    631. 

v.  State,  Ohio,  2892. 

v.  State,    Tex.,   225. 

v.  Stinehoff,     309. 
Harbison   v.    Schook,  810,  817. 
Harden  v.   Palmer,  3707. 
Hardesty  v.   Hine,   4772. 
Hardin  v.  Commonwealth,  4537. 

v.  Forsythe,   2307. 

v.  Helton,   158. 
Harding  v.  Larkin,  325,  326. 

v.  Sandy,  1239. 

v.  Town  of  Hale,  4025. 
Hardy  v.   Kceler,   2239,  4237. 

v.  Mil.    St.    Ry.,    335,    3340,    3576. 

v.  Moore,  319. 
Hargadine-McKitrick  D.   G.   Co.  v. 
Bradley,  1309. 


Hargis  v.   Inhabitants  etc.,  1255. 

v.  Ry.,  4033,  4034. 
Hargrave  v.  Penrod,  4313. 

v.  Western     U.     Tel.     Co.,     687, 
2114,    4185. 
Hargrove   v.    State,   2888. 
Harkins  v.  Standard,  etc.,  1555. 

v.  State,  452,  1285. 
Harkness  v.    State,    2867,   2953,   3005, 

3072,    3118,   4691. 
Harkrader  v.  Moore,  1271. 
Harlan  v.   Baker,  940. 

v.  St.  Louis  etc.  Rd.,  1360. 
Harman     &     Crockett     v.     Maddy 
Bros.,   3365. 

v.  State,  4804. 
Harmon  v.  Donohoe,  699. 

v.  Old   Colony   R.,   951. 
Harp  v.  The  Grand  Era,  1704. 
Harper  v.  Harper,  1009. 

v.  Moffit,   2241. 

v.  Montgomery,  299. 

v.  State,  4475. 
Harpham  v.  Whitney,  1262,  1267. 
Harrigan  v.  Gilchrist,  13,  295. 
Harriman     v.     Queen's     Ins.,     1158, 

1161,    1172. 
Harrington  v.  Los.  A.  Ry.,  2105. 

v.  McCulloum,    477. 

v.  Priest,  725,  3723. 

v.  Puley,    223. 

v.  Smith,    4253. 

v.  State,  Ohio,  264,  4335. 

v.  State,  Tex.,  3122. 
Harriott  v.  Holmes,  3349,  4499. 
Harris  v.   Alcock,   1091. 

v.  Gulf,    C.    &    S.    F.    Ry.,    1807, 
1809. 

v.  Harris,  2156. 

v.  Hays,    2416. 

v.  Mclntyre,   3499. 

v.  People,   Colo.,  3064,  3072,   3102. 

v.  People,    111.,    273. 

v.  People,  Mich.,  2878. 

v.  Pittsburg,   etc.,   Ry.,   1961. 

v.  Prya,  307. 

v.  Pue,    4286. 

v.  State,  Ala.,  2637,  4423,  4540. 

v.  State,  Ga.,  4548. 

v.  State,  Ind.,  2633,  2690,  2691, 
2718,  3051,  3059,  4430. 

v.  State,  Miss.,  4568. 

v.  State,    Tex.,    2990,    3059,    3061. 

v.  Tenney,   541. 

v.  Wamsley,    613. 
Harris  Lumber  Co.  v.  Morris,  35S6, 

3791. 
Harrison    v.    Adamson,    76    la.    337, 
4273. 

v.  Adamson,    86   la.    693,    825. 

v.  Cachelin,  199. 

v.  Charlton,    117. 

v.  C.  M.  &  St.   P.  Ry.,  318. 

v.  Ely,    51S. 

v.  Harrison,    528. 


lxvi 


TABLE  OP  CASES  CITED. 


[REFERENCES  are  to  sections.] 


Harrison   v.  Jaquess,   277,  1088. 
v.  Kiser,    826. 
v.  Shook,    352. 
v.  State,    2442. 
v.  Sutter   St.    R.    R.,    976. 
v.  Trickett,    3492. 
Harrow  Spring-  Co.  v.  Harrow  Co., 

754. 
Harsha  v.  Babicx,  1379. 
Hart  v.   Carsley  Mfg.   Co.,  683,  686. 
v.  Church,   1117. 
v.  Duddleson,    1221. 
v.  Hess,   728. 

v.  Niagara    Fire    Ins.    Co.,    947. 
v.     R.   R.   Co.,  4090. 
v.  Seattle   R.   &  S.   Ry.,  1757. 
v.  State,  Fla.,  4378,  4731. 
v.  State,    Ind.,   3211. 
v.  State,  Neb.,  4800. 
v.  State,    11   Tex.    Ct.    Rep.    190, 

4536. 
v.  State,    Tex.    Cr.    App.,    82    S. 

W.  652,  4485,  4488. 
v.  Village    of   New   Haven,    385, 
1619. 
Hartford  v.  State,  3319,  43S0. 
Hartford  Dept.   Co.  v.  Calkins,  315, 
795,    2316. 
v.  Sollitt,  255,  1842. 
Hartford  L.  Ins.  Co.  v.  Gray,  3381. 
Hartley  v.  C.  &  A.  R.  R.  Co.,  3802. 
Hartman  v.  Muscatine,  1671. 
Hartrick  v.  Hawes,  3746. 
Hartsell   v.    Masterson,   721. 
Hartshorn   v.   B.   C.   &  N.   Ry.,  854. 

v.  Byrne,  176,  647. 
Hartwig  v.   Gordon,  663,  2271. 
Harty  v.  R.  R.  Co.,  4090. 

v.  Smith,  138. 
Hartzell  v.  Crum-b,  3514. 
Harver  v.   Harver,   2290. 
Harvey  v.   Hamilton,    3506,   3567. 
v.  Rickett,   3740. 
v.  State,   4434. 
v.  Sullens,  2401. 
v.  Tyler,  453. 
Hasbrouck  v.  Milwaukee,  91. 
Hasie  v.  Ala.  &  V.  Ry.,  1343. 
Haskell  v.  Chanion,  507,  3433. 

v.  McCoy,  228. 
Haskins  v.   State,  4783. 
Haskin    Wood    Vulcanizing    Co.    v. 
Cleveland    Shipbuilding   Co., 
3735. 
Hatch   v.   Jordan,   1074. 

v.  Stamper,    3696. 
Hatcher  v.  State,  2748. 
Hatfield   v.   Ry.   Co.,   146,  147,  148. 
Hathaway  v.  Hemingway,  105. 
Hathorn  v.  Richmond,  3721. 
Hathorne  v.  Panama  Park  Co.,  11. 
Hauber  v.   Leibold,   618,   623,   664. 
Hauk  v.   Brownell,  165. 

v.  State,  2593,   2691,  3364. 
Haurahy  v.  N.  C.  Rd.  Co.,  1555. 


Hause  v.  People,  3320. 
Havely  v.   Lowry,  2302. 
Haven     v.     Markstrum,     385,     2521r 
4309. 

v.  Neal,  3639. 
Hawe  v.   State,   4800. 
Hawes  v.  B.   C.  R.   &  N.  Ry.,  3361. 

v.  People,    284. 
Hawk  v.  Chi.,  B.  &  Q.  R.  R.,  3837. 

v.  Harris,  4158. 

v.  Ridgway,    1285,    3524,    3704. 
Hawkes  v.  Pike,  3620. 
Hawkins  v.  Albright,   537. 

v.  Com.,  4654. 

v.  Hudson,  451. 

v.  Lange,    484. 

v.  State,    59. 
Hawkinson  v.  Olson,  2177. 
Hawley  v.    Bibb,  608. 
Haworth  v.  K.  C.   So.  Ry.,  919. 
Hawskins  v.  Long,  420. 
Hawthorne  v.   State,  4406. 
Hawver  v.  Hawver,  4268. 
Hay  v.  Lewis,   288,   317. 
Hayden   v.   Anderson,   809. 

v.  Coleman,   511. 

v.  F.    H.   &   W.   R.,   2087. 

v.  Florence     Swg.     Mach.     Co., 
315. 

v.  Frederickson,   3374,  3375,   3481. 

v.  McClosky,  3459. 

v.  Mfg.    Co.,   1383. 
Hayes    v.    Bush    &    Denslow    Mfg. 
Co.,  1444. 

v.  Hayes,     1029. 

v.  Kelley,  418. 

v.  Mich.   Cent.   Ry.,  2081,  4081. 

v.  R.  R.  Co.,  2091. 

v.  Sease,   532. 

v.  State,    Ga.,   83,    84. 

v.  State,  S.  C,  2845. 

v.  Todd,   3539. 
Hayne   v.    Lettsville,    321. 

v.  State,  2653,   3048,  3091. 
Haynes  v.  Carter,  2215. 

v.  Smith,  1245. 

v.  State,  Miss.,  2509,  2524,  2557. 

v.  State,  Tex.  Cr.  App.,  56  S. 
W.  923,  3277. 

v.  State,  13  Tex.  App.  405,  4439. 
Hays  v.   Johnson,   3357. 

v.  McConnell,  728. 

v.  Paul,  157,   168. 
Haysler  v.   Owen,   3599. 
Hayward    v.    N.    Ins.,    1174. 

v.  Scott,    361. 
Haywood    v.    G.    H.    &    S.    A.    Ry., 

1464,   1545. 
Hazelett  v.   Woodruff,  3514. 
Hazlett  v.  Powell,  1245. 
Hazzard   v.    Loring,   2343 
Head   v.    Becklenberg,   3731. 

v.  Commonwealth,    4547. 

v.  Hargrave,   552,   3377. 

y.  Langworthy,  158. 


TABLE  OF  CASES  CITED. 


lxvii 


[references  are  to  sections.] 


Head  v.  State,  Neb.,  4414. 

v.  State,  Tex.,   2670. 
Heald  v.  W.   U.  Tel.,  3340. 
Healy   v.   Mutual  Acc't  Ass'n,   3678. 

v.  People,   163  111.   372,   3359,   4751. 

v.  People,    177    111.    306,    4614. 
Heaps    v.    Dunham,   2152,    2160. 
Heard  v.   Ewan  et  al.,  4250. 
Hearn   v.    Chicago,   1629. 

v.  Quillen,     3800. 
Hearne  v.  Garrett,   3515. 

v.  Southern   etc.    Rd.,    1910. 

v.  State,    703. 
Heartt  v.  Rhodes,  165. 
Heasley  v.   Nichols,   34. 
Heath   v.    Paul,    3338. 

v.  Silver  thorn   Lead  Min.,  316. 

v.  State,    2648. 
Heaton   v.   Prather,  2228. 
Heazle   v.   T.    B.    &  W.   Ry„   3996. 
Hebard  v.   Mabie,  3952. 

v.   Riegel,    126. 
Hebert   v.    Hebert,   132. 
Hecht  v.   Harrison,   4273. 
Heck   v.   Ledwidge,   1235. 
Hecksher  v.   McCrea,   764. 
Heddles  v.  C.  &  N.  W.  R.  R.,  918. 
Hedin    v.    Institute,   1103. 
Hedman   v.   Anderson,   3331. 
Hedrick  v.   State,   2997. 
Heenan  v.  Howard,  211. 
Heeuey    v.     Sprague,    2081. 
Heer  v.  Asphalt  Paving  Co.,   892. 
Heermance  v.   James,   500. 
Hefron  v.   Broun,   3499. 
Hefter  v.    Cahn,   677. 
Heidbreder    v.    Sup.    In.    Stor.,    295. 
Heidegger  v.  Milling  Co.,  3735. 
Heilman  v.    Com.,  4529. 
Heimoth  v.   Anderson,   3605. 
Heinberg  et  al.  v.  Cannon,  632,  2261. 
Heinemann   v.   Heard,   4009. 
Heinke  V.  Milw.   City  Ry.,  244. 
Heinrichs  v.   Terrell,   3427. 
Heinzle  v.  Met.  St.  Ry.,  911,  2088. 
Heirn  v.   McCaughan,   914. 
Heldmaier   v.    Taman,   3952. 
Heldt   v.    State,   2768,   3331. 

v.  Webster,    3709,    4009. 
Hellard  v.    Commonwealth,   3133. 
Heller  v.   Pulitzer  Pub.   Co.,   4258. 
Hellings    v.    Bankers'    Union,    1196. 
Hellyer  v.  People,  4379,  4388. 
Helm   v.    M.    P.    Ry.,    3667. 
Helms   v.    United    States,    2540. 
Helton  v.  Ala.  M.  R.,  1909. 
Hemingway  v.    State,   701. 
Hempton  v.    State,   2617. 
Hendershott    v.    Ottumwa,    1652. 
Henderson  v.   Alloway,   1145. 

v.  Cummings,    485. 

v.  Dennis,    5S3. 

v.  Det.  Cit.   St.   Ry.,  3314. 

v.  Henderson,    1006,    1008,    3383. 

V.  Miller,  3301,   3385. 


Henderson  v.  Palmer,  639. 
v.  State,   Ala.,  4473. 
v.  State,   Ga.,    2444,   3066. 
v.  State,  Tex.,  2511,  L677. 
Henderson     City    Ry.     v.     Lockett, 

3737. 
Hendon  v.   N.  C.  Ry.,  326. 
Hendricks  v.  State,  Ala.,  3118,  4543, 
4546,   4558. 
v.  State,    Ind.,    3258. 
Henlon   v.   Phol,   316. 
Hennessy  v.  Bingham,  4192. 
Hennies  v.   Vogel,   75,   234. 
Henning   v.    State,    3023. 

v.  Stevenson,    2369,    2393. 
v.  Withers,   921. 
Henry    v.    Huff,    241. 

v.  People,    2539,    3112,    3133,    4177. 
v.  Railway    Co.,    1347. 
v.  State,    Neb.,    4316,    4317,    4321. 
v.  State,  Tex.,   2724. 
V.  Stevens,    1089. 
v.  Stewart,    594. 
Hensell    v.    Errickson,    722. 
Henshaw  et  al.   v.   Wilson,   3422. 
Henson   v.    State,   112   Ala.   41,   2617, 
4755. 
v.  State,  120  Ala.   316,  3118,  4692. 
Henz  v.  Ry.  Co.,  4055. 
Herberger   v.    Herberger,   2787. 
Herdman-Harrison    Milling    Co.    v. 

Spehr,    1354,    3745. 
Herges  v.   State,  4635. 
Herkelrath  v.   Stookey,   167. 
Herman    Berghoff    Brewing    Co.    v. 

Prybylski,    3756. 
Hermann  v.  Amedu,  537. 
Herrick    v.     Gary,    3326,    3337,    3487, 

3624,    4317. 
Herrin  v.   State,   3081. 
Herring  v.  Ervin,  328. 
Herzog  v.  Palatine  Ins.,  1163. 
Hess    v.    Lowery,    145,    3304. 
v.  Peck,    2312. 
v.  Rosenthal,    1395. 
v.  Wilcox,   105. 
Hester  v.   State,  4454. 
Heston  v.   Neathammer,  95. 
Hettinger  v.   Beiler,  71,  221. 
Hewett  v.   Griswold,   4239. 

v.  Johnson,    3742. 
Hewey  v.  Nourse,  309,   2000. 
Hewitt   v.    Canton,   1658. 

v.  Saginaw    Circuit    Ct.    Judge, 
17. 
Heyer  v.  Salsbury,  3769. 
Heyl  v.   State,   231. 
Heyn   v.    O'Hagen,   484. 
Heyne   v.    Blair,   248,   1272. 
H.    Hirschberg   O.   Co.   v.    Michael- 
son,    330. 
Hibbs    v.    Western    Land   Co.,    3525. 
Hibler      v.      Commonwealth,      2707, 

2720. 
Hiblish  v.   Hiblish,  728. 


lxviii 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


Hickey  v.  State,  4707,  4731. 

v.  Welch,    949. 
Hicklin  v.  Territory,  3040. 
Hickman  v.   Kansas   City,   872. 
Hickox  v.   Nangatuck  Rd.,   1694. 
Hicks    v.    Com.,   27. 

v.  Harbison-Walker    Co.,    3476. 

v.  Ry.    Co.,   4168. 

v.  State,  Ala.,  2747,  2648. 

v.  State,    Fla.,   4378. 

v.  Stone,    1074. 

v.  U.    S.,   2551. 
Hickson  v.   Cartville  Lith.  Co.,  316. 
Hidy  v.    Murray,   3709,   3710. 
Hig-bee  v.   State,  4592. 
Higginbotham      v.      Higginbotham, 

4303,   4304. 
Higgins  v.  Eagleton,  250,  257. 

v.  Farmers'  Ins.  Co.,  15. 

v.  Halligan,    1230. 

v.  People,   4526. 

v.  Williams,    1406. 
Highbarger  v.   Milford,  1148. 
Highland   v.    Houston   E.    &   W.   T. 

Ry.,    4108. 
Highland  Av.  &  B.  R.  v.  Robinson, 

1857,    3585. 
Highland  Av.     B.   R.   R.  v.   Samp- 
son,  1869. 
Hightower  v.   Gray,  3783. 
Hildebrand  v.  Marshall,  1483. 
Hildreth  v.   Googins,   1152. 
Hill  v.  Aultman,  170. 

v.  Bowman,  1085. 

v.  Canfield,    199. 

v.  City  of  Glenwood,  1336. 

v.  Commonwealth,  Va„  3020. 

v.  Commonwealth,  Ky.,  4663. 

v.  Glenwood,    1671. 

v.  Graham,  2431. 

v.  Martin,    297. 

v.  Montgomery,  373. 

v.  Nicholld,  313. 

v.  People,  15. 

v.  Ry.     Co.,    49    Mo.    App.     520, 
4176 

v.  Ry.   Co.,  121  Mo.   477,   4176. 

v.  R.  R.  Co.,  109  N.  T.  239,  4130. 

v.  Reifsnider,    1099. 

V.  Sedalia,   949. 

v.  Sprinkle,  363. 

v.  State,  Ga.,  39. 

v.  State,    Neb.,    2467,    2594,    2607, 
2612,    2616,   2819,   4414,   4622. 

v.  State,  Tex.,   2826. 

v.  State,  17  Wis.  675,  3306. 

v.  State,   57  Wis.   377,  2923. 

v.  Watkins,   77. 

v.  Winsor,   1427,   1683. 
Hillebrant  v.  Green,  467. 
Milliard    v.    Binford,   4286. 
Hillje  v.   Hettich,   3826. 
Hillman  v.  Schwenk,  3325. 
Himrod    Coal    Co.    v.    Adack,    141, 
3829. 


Himrod    Coal    Co.    v.    Clingan,    338, 

3301,    3303,     3308,     3584,     3762, 

3769,    3802,    3805,    3810,   3812. 
Hinchman   v.   Pere   Mar.   Ry.,   4067. 
Hinckley  v.  Barnstable,  1683. 
Hinckley  v.   Horazowsky,  3808. 
Hindert  v.  Schneider,  2160. 
Hindman  v.    1st   Nat.    Bk.,    1110. 
Hine  v.   Bay   City   Cons.   Ry.,   87. 
Hiner   v.    People,    1139. 
Hines  Lbr.  Co.  v.  Ligas,  2132. 
Hinkle  v.  State,  346,  2528,  2552,  2907, 

3060. 
Hiukley    v.    Pittsburg    B.     S.    Co., 

746. 
Hinshaw   v.   R.   &  A.   A.   L.    R.    R., 

1479. 
v.  State,    2154,    2655,    2691,    2710, 

2982,   3078. 
Hinton    v.    Cream    City    R.    R.,    336. 
Hintz  v.    Graupner,   81,   105. 

v.  Mich.  Cent.  R.  R.,  333. 
Hipsley  v.   Railroad,  2031. 
Hirsch  v.   Peeney,  1265. 
Hirschman      v.      People,      365,      373, 

2536,   2539. 
Hirst  v.    Eastern  Wis.   R.   &  Light 

Co.,  209. 
Hitchcock  v.  Davis,  3450. 

v.  Gothenburg  W.   P.   &  I.   Co., 

1106. 
Hitesman  v.  State,  3256. 
Hix  v.  Gulley,  108. 

v.  People,    4775,    4785. 
Hoadley  v.    N.   T.   Co.,  1724. 
Hoag  v.   L.  S.   &  M.   S.  R.   R.,  1342. 
Hoar  v.  Hennessey,  314. 
Hobbold    v.    Chicago    Sugar    R'fg. 

Co.,   3S11. 
Hobbs  v.  City  of  Marion,  359S. 

v.  People,    2926. 
Hober  v.  W.  P.  Nelson  Co.,  249. 
Hoberg  v.    State,  211. 
Hodge   v.    State,  2652,   2657,    4434. 

v.  Territory,    2666,    2676. 
Hodges  v.  O'Brien,  3390. 
v.  Percival,  132  111.,  53. 
v.  So.    Pac.   Co.,   3975,   3994,   3997. 
Hodgkins  v.  Montgomery  etc.  Ins., 

1157. 
Hodgman  v.   Thomas,  593. 
Hodsett  v.    State,   4475. 
Hoepper  v.   Hotel  Co.,  4168. 
Hoey   v.   Pierron,    1321. 
Hoffa  v.    Hoffman,   1115. 
Hoffine  v.  Ewing,  430,  444. 
Hoffman    v.    Bloomsburg    &    S.    R. 

Co.,  863. 
v.  Harrington.    1050. 
v.  Hoffman,  42S6. 
v.  Knight,   1307. 
v.  Loud.    3335. 
Hoft  v.  Utah,  114. 
Hogan    v.    Citizens*    Ry.    Co.,    2098, 

4172. 


TABLE  OF  CASES  CITED. 


lxix 


[BEFEBENCES   ABE   TO    SECTIONS.] 


Hogan  v.  dishing,  256. 
v.  Smith,   3771. 
v.  State,    412,    3397. 
Hoge  v.   People,   346,   349,   3323,   3325, 

4317. 
Hogle  v.  N.  Y.  C.  &  H.  R.  R.,  795. 
Hogsett  v.   State,  4365. 
Hogueland   v.   Arts,   293. 
Holbrook   v.    Utica   &    Schenectady 
R.  R.  Co.,  922,  4125. 
v.  Hibbard,    2178. 
Holden  v.   Mo.  R.,  2104,  4166. 
Holder  v.   State,  235. 
Hc-ldom  v.   Chicago,  2231. 
Holland  v.  Howard,  597. 

v.  U.    Co.,    309. 
Hollenbeck  v.  Cook,  2371,  4299. 
Holley  v.  B.  G.  Co.,  1747. 

v.  State,  29S6,  3072. 
Holliday    v.    Sterling,    1271. 
Holliday-Klotz     L.     &     L.     Co.     v. 

Markham,   439,   2309. 
Hollis  v.   State,  2809. 
Holloway  v.    Galloway,   4292. 
v.  People,    4331. 
v.  State,  45  Tex.,  4348. 
Holmes  v.  Clark,  1097. 
v.  Clisby,  4264. 
v.  Holmes,    3524,    3540,    3606. 
v.  Horn,    3339. 
v.  Nooe,    3528. 
v.  Riley,    4107. 
v.   State,    Ala.,     3107,    4546,    4723, 

4747. 
v.  State,    Wis.,    2849,    2S62,    4546. 
Holmstrom   v.    Oldham   Bank,   2094. 
Holnbach  v.  Wilson,   12. 
Hoist  v.   Stewart,  1113. 
Holt   v.    State,   2914. 
Holtgreve    v.    Wintker,    2215. 
Holt  Ice  &  Cold   St.   Co.   v.  Arthur 

Jordan  Co.,  561. 
Holton   v.   Daly,   981,   3612. 

v.  Noble,   1108. 
Holtzman   v.    Douglas,   440. 

v.  Hoy,    1290,    1301. 
Holverson    v.    St.    L.    St.    R.,    2077, 

2093,    2104. 
Home     Fire     Ins.     Co.     v.     Decker, 
1241. 
v.  Dutcher,   325. 
Home  Ins.   v.   Lewis,  1173. 

v.  Marple,   4198. 
Homer  v.   Gersman,   4239. 
Hones   v.    Cline,    141. 
Honey  Grove  v.   Lamaster,  4189. 
Honeywell  v.    State,   3049. 
Honick  v.   Met.  St.  Ry.,  4180. 
Hoobler  v.   Hoobler,   1134. 
Hood  v.   Maxwell,   309. 
v.  Rains,   3515. 
v.  State,    3122,    3147. 
Hook  v.   Richardson,  326. 
Hooker  v.   Newton,  3618. 
Hooks   v.    State,    3096. 


Hooper  v.  Beecher,  295. 

v.  Whitaker,      2210,      2212,      3303, 
3637,    4227. 
Hoots   v.   Graham,   1239,  3702. 
Hoover    v.    Mercantile    Town    Mut. 

Ins.,    1164. 
Hope    v.    West    Chi.    St.    Ry.,    3309, 

3588,    4150. 
Hopkins  v.  Bishop,  1063. 
v.  Hopkins,    326. 
v.  Lee,    3514. 
Hopkinson   v.   People,  4699. 
Hopps  v.  People,   2595,  4403. 
Hopt  v.  Utah,  104  U.   S.  631,  2616. 

v.  Utah,  120  U.  S.  430,  2634,  2686. 
Horbach   v.    Miller,    430. 
Horgan  v.   Brady,  314. 
Horn  v.  So.  Pac.  Co.,  33. 

v.  State,    98    Ala.    23,    3355,    4746. 
v.  State,   102  Ala.  145,  2708,  4376. 
v.  State,    Wyo.,    2497,    2499,    2682, 
2979,  4352. 
Home  v.  Harness,  295. 

v.  State,   4697. 
Hornish   v.    People,   2573,   2575,   2714, 

4557. 
Hornsby    v.    State,    3072,    3101,    3138, 

4615,    4635,    4668,    4671,    4727. 
Horn    Silver   Mining   Co.    v.    Ryan, 

3456. 
Horst  v.   Schuman,  51. 
Horton  v.    Gill,   284. 

v.  Williams,   158,   1314. 
Hosley  v.  Brooks,  816. 
Host  v.   Dalton,   Mich.,  297. 
Hotel   v.    Kountz,    324. 
Hotel    Ass'n    v.    Walters,    927,    1343, 

1352,    1684,    1686. 
Hotema    v.    U.    S.,    2570,    2581,    2588, 

2594,    2612,    2630,    2714. 
Hoth  v.  Peters,  3947. 
Hot    Spr.    St.    R.    v.    Hildreth,    2092, 

2106. 
Hough    v.    Dickinson,    1073. 

v.  R.    R.    Co.,    3810. 
Houghton  v.   Ry.   Co.,  4055. 

v.  Tibbetts,    299. 
Houry  v.   Eppinger,   2168. 
Housatonic   Bk.    v.    Martin,    2422. 
House  v.  House,  731. 
v.  State,    87. 
v.  Wilder,   252,   254. 
Houser  v.    State,   2678. 
Housh    v.     State,     2543,     2546,     2819, 

3059,   3106,   3121,   3331. 
Housk   v.    State,    3119. 
Houston    Biscuit   Co.    v.    Dial,    3788, 
Hous.    C.    S.    Ry.    v.    Artusey,    3773. 

v.  Reichart,    3590,    3597. 
Houston   El.    Co.    v.    Nelson,   4132. 

v.  Robinson,    1459. 
Houston  El.   St.   Ry.   v.   Elvis,   2026. 
Houston   E.    &   W.   Ry.    v.   Adams, 
1  3590. 


lxx 


TABLE  OP  CASES  CITED. 


[BEFEBENCES  ABE  TO  SECTIONS.] 


Houston  E.   &  W.  T.   Co.  v.   Greer, 
4121. 

v.  McCarty,     1758. 

v.  Runnels,  3302. 
Houston  &  G.  N.  R.  R.  v.  Randall, 
50    Tex.    261,    908. 

v.  Randall,    50   Tex.    254,    1336. 
Houston   &   T.    C.    R.    Co.     v.    Bell, 
330,   1942. 

v.  Blan,    1886. 

v.  Boehm,  908. 

v.  Brown,    3737. 

v.  Burns,    3962. 

v.  Carruth,   1898,   4033. 

v.  Dotson,    1780. 

v.  Dunham,    1556.  • 

v.  George,    1747. 

v.  Gilmore,    3964. 

v.  Gorbett,  2029. 

v.  Gray,   1735,   3737. 

v.  Harvin,    1851,    4076. 

v.  Johnson,    3613. 

v.  Jones,   4098. 

v.  Kelly,    3908. 

v.  Kimball,    3598. 

v.  Kothmann,  3737. 

v.  Loeffler,   3613. 

v.  Milam,  1336,  1577,   1599,   1600. 

V.  Moss,    1351. 

v.  Oram,    1336,    37S3. 

v.  Rippetoe,  4013. 

v.  Smith,   Tex.    Civ.   App.,  46   S. 
W.    1046,    3536. 

v.  Smith,   77   Tex.   181,   1336. 

v.  Tierney,    3598. 

v.  Turner,    3610,   3830. 

v.  White,    961. 

v.  Wilson,  4031. 
Houts  v.  St.  L.  T.,  143S. 
Houtz    v.    People,    203. 
Houx   v.    Batteen,    585. 
Hovey  v.  McDonald,  324. 
Howard      v.      Beldenville      Lumber 
Co.,  3576. 

v.  Commonwealth,    3104,    3106. 

v.  Cont.    Ins.,   1168. 

v.  111.    Trust    &    Sav.    Bank,    74. 

v.  Indpls.  St.  R.,  1961. 

v.  Johnson,  275. 

v.  Patrick,    117. 

v.  Railroad  Co.,  2255. 

v.  Schwartz,    1308.. 

v.  State,  108  Ala.  572,  2677. 

v.  State,  110  Ala.  92,  3118,  4543, 
4546. 

v.  State,  Ark.,  1150. 

v.  State,  Ind.,  2442,  2444,  4788. 

v.  State,  Tex.  Cr.  App.,  58  S. 
W.  77,  3065,  3081,  3084. 

v.  State,  25  Tex.  App.  693,  3353. 

v.  Stillwell      &      B.      Mfg.      Co., 
354S. 
Howe   v.    Medaris,    896,    1478,    2132. 

v.  Miller,    600. 

v.  Linder,  474. 


Howe  v.  Rosine,  185. 
Howell  v.  Howell,  60. 

v.  Howell,  813. 

v.  L.   C.   El.    Co.,   3580. 

v.  Snyder,  309. 

v.  State,  Ala.,  3192,  4691. 

v.  State,    Neb.,   4346,   4411. 

v.  State,   Tex.,   3182. 

v.  Stewart,   590. 
Howell    Lumber    Co.    v.    Campbell, 

3306. 
Howes  v.   Axtell,  1103. 

v.  Colburn,    105. 
Howe    S.    Mch.    Co.    v.    O.    Laymen, 

199. 
Howlett   v.    Dilts,   355,   3340. 
Howser  v.  Commonwealth,  7. 

v.  R.  R.   Co.,  3800. 

v.  State,   2730. 
Hoyberg  v.  Henske,   394,  395. 
Hoye   v.    Ry.    Co.,    3947. 
Hoyt  v.   Hasse,  4194. 

v.  Hudson,   1347. 

v.  Jeffers,  2128,  4099. 

v.  Macon,   1263. 

v.  People,   114. 
Hubbard  v.   Belden,  723. 

v.  Kiddo,    437. 

v.  Rankin,    2146. 

v.  Rutledge,    45. 

v.  State,  4546. 

v.  Taylor,    1079. 
Hubbel  v.   Ream,  63,  66,  90,  109. 
Hubbell    v.    Yonkers,    1641. 
Hudson  v.  Bauer  Grocery  Co.,  4312. 

v.  Best,  3308. 

v.  Roberts,    4277. 

v.  St.    Louis,   etc.,   R.,    180. 

v.  Smith,    324. 

v.  State,  Ark.,  2534. 

v.  State,    4    Tex.    Ct.    Rep.    167, 
4593,  4790. 

v.  State,  28  Tex.  App.  324,  4721. 
Huey  v.  Huey,  109. 
Huffman  v.  Ackley,  192. 

v.  Cauble,    86,    4198,    4548. 

v.  State,  268. 
Huftalin   v.    Misner,   1046. 
Huggins    v.    People,    4791. 

v.  State,    2670,    2936. 
Hughes  v.   C.  M.  &  O.  Ry.,  128. 

v.  Ferriman,    3359. 

v.  Meehan,    3395. 

v.  Monty,    166. 

v.  Richter,   126. 

v.  Stanley,  6:;7. 

v.  State,    2634. 
Hulett  v.  Ry.  Co.,  1504. 
Huling  v.    Huling,    3429. 
Hull    v.    Douglas,    898,    965,    964. 

v.  Louth,    296. 

v.  St.    Louis,   394. 

v.  State,     Tex.    Cr.    App.,    2972, 
3228,   3229. 


TABLE  OF  CASES  CITED. 


lxxi 


[references  are  to  sections.] 


Hullehan  v.   Green  Bay,   W.   &  St. 

P.   R.,   896. 
Hume   v.    N.    Y.,   1630. 

v.  Simmons,  1328. 
Humiston,  Keeling  &  Co.  v.  Wheel- 
er,  259,   1235. 
Humphrey   v.    State,  Ark.,   39,  2737. 

v.  State,   Ind.,  3211. 
Humphrey   Hardware    Co.    v.    Her- 

rick,   504. 
Humphreys    v.    Edwards,    1391. 
Humphries  v.  Parker,  817,  819. 

v.  Huffman,  449,  455. 
Hunn  v.   Mich.   Cen.   Ry.,   3614. 
Hunt    v.    Bailey,    1230. 

v.  Bennett,   819. 

v.  D'Orval,   921. 

v.  Hunt,  1030. 

v.  Seymour,    412. 

v.  State,    Ala.,    2692,    2720,    2963, 
2986,  3002. 

v.  State,   Miss.,   4724. 

v.  State,  Tex.,  241. 
Hunter  v.  Harris,  387. 

v.  Parsons,  58. 

v.  R.    R.   Co.,    1993. 

v.  Weston,   3918. 
Huntingburg    v.    First,    1671. 
Huntingdon  &  B.  T.  Rd.  v.  Decker, 

780,   1555. 
Huntington  v.   Asher,   3561. 

v.  Attshill,    4194. 

v.  Burke,    1640,    1647. 
Huntington  L.  &  F.  Co.  v.  Beaver, 

799. 
Hupfer  v.   Distilling  Co.,  3343. 
Hurd  v.   Hubbell,  768. 

v.  State,   2648,  4254. 
Hures   v.    Traultham,    299. 
Hurlbut  v.   Leper,   344. 
Hurley  v.    State,    4176. 
Hurst  v.  Chi.,  R.  I.  &  P.,  127. 

v.  State,   2596. 

v.  Webster  Mfg.,  96. 
Hurt  v.   Ry.   Co.,  4168. 
Hurtado    v.    California,    15. 
Husbrook  v.    Strawser,    2521. 
Huskey  v.   State,  4778. 
Huskhold   v.    St.    L.    Ry.,    245. 
Hussey  v.   State,  3313,  4732. 
Hutcheson  v.   Peck,   3429. 
Hutchings    v.    Corgan,    117. 

v.  Western,   etc.,   R.   R.,   1832. 
Hutchins    v.    Hutchins,    4311. 

v.  Littleton,   1629. 

v.  Masterson,   3735. 

v.  Priestly,    etc.,   Co.,   16S3. 

v.  Roundtree,   3514. 

v.  Weldin,    638,    2423. 
Hutchinson    v.    Gorman,    1109. 
Hutchinson    F.    &    S.    Cons.    Co.    v. 

Lyford,    1096. 
Hutchinson  Nat.  Bk.  v.  Crow,  3337. 
Hutt   v.   City  of  Chicago,   852. 
Hutts  v.   Hutts,   139. 


Hyatt  v.  Clever,  324. 
Hyde   v.    Ry.,   984. 

v.  Shank,  1321,  3388. 
v.  Tracy,    326. 
Hyde  Park  v.  Washington  Ice  Co., 

854. 
Hygienic  P.  I.  Mfg.  Co.  v.  Raleigh 
&  A.   L.   Ry.  Co.,   286. 

Iddings  v.  Pierson,  4224. 
lies  v.   Swank,  2279. 
Ilges  v.   St.   L.  T.,  899,  2020. 
111.   &  St.   L.   Rd.  v.   Cobb,  821. 
I.    C.   R.    R.    v.  Able,   3740. 

v.  Anderson,    1815,    1939. 

V.  Andrews,  413. 

v.  Ashline,  56  111.  App.  475,  4151. 

v.  Ashline,  70  111.  App.  613,  4036. 

v.  Ashline,  171  111.  313,  1987,  4036. 

v.  Baches,   975,  981. 

v.  Bannister,    1S97. 

v.  Beard,    4027,   4080. 

v.  Becker,  3990. 

v.  Beebe,    231. 

v.  Benton,    1885. 

v.  Berry,  172. 

v.  Burke,    3310. 

v.  Chicago,  141   111.    509,   2230. 

v.  Chicago,  156  111.  98,  3545. 

v.  Chi.    T.    &   T.,    210,    2106,    4025. 

v.  Cobb,    1696. 

v.  Cole,    882,    902,    918,    937,    3574. 

v.  Commissioners  of  Highways, 
3545. 

v.  Cozby,  3857. 

v.  Crudup,    3614. 

v.  Farrell,    359S,   3612,   4066,   4052. 

v.  Frelka,  3598. 

v.  Gilbert,   885,  973,  980,  3859. 

v.  Gillis,    1984. 

v.  Godfrey,    4014. 

v.  Grider,   4083. 

v.  Griffin,  1876,  3983,  4053,  4062, 
4134,  4181. 

v.  Hammer,    158. 

v.  Harris,  63  111.  App.  172,  aff'd 
162  111.  200,  360,  1506,  3345, 
3847. 

v.  Harris,   184   111.   57,  249. 

v.  Haskins,    3944. 

v.  Hetherington,    4014. 

v.  Houtchins,   3586. 

v.  Ind.  &  111.  C.  Ry.,  455. 

v.  Jerangan,    169. 

v.  Johnson,   67   111.    312,   3974. 

v.  Johnson,    221    111.   42,    3983. 

v.  Jones,   41S0. 

v.  Kelley,   248. 

v.  Kief,    4066. 

v.  King,   4002,    4014,    4019. 

v.  Kuhn,   1760. 

v.  Larson,    4126. 

v.  Latimer,    965. 

v.  Leggett,    3310. 

v.  Leiner,    1360,    1848,    1856,    1857. 


lxxii 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


I.  C.  R.  R.  v.   McClellan,   1709. 

v.  McManus,  3971. 

v.  Nelson,    3980. 

v.  Noble,    1856,    4087,    4089. 

v.  Nunn,   2000. 

v.  North,   1462. 

v.  O'Connell,    2020. 

v.  O'Keefe,    262. 

v.  People,    2005. 

v.  Prickett,    360,    1340. 

v.  Reardon,   983. 

v.  Reed,   884,   907. 

v.  Sanders,  309,  3753,  3789. 

v.  Schmidgall,  854,  858. 

v.  Slater,    129    111.    91,    983,    1337, 
1354. 

v.  Slater,  139  111.   190,   4061,   4156. 

v.  Smith,    513,    3345,    3769,    3976. 

v.  Smyser,  1694,  1720. 

v.  Souders,   55,  91,  242,  893. 

v.  Sporleder,   1444. 

v.  Stewart,  962. 

v.  Swearingen,    1964. 

v.  Truesdell,    4054. 

v.  Turner,   856,  3564. 

v.  Wall,    1753. 

v.  Weldon,    972,    1866,    3611,    4046. 

v.  Wheeler,   158. 

v.  Whitmore,    1819. 

v.  Wilson,    1355. 

v.  Zang,    3435,    3866. 
111.   Ins.  v.   Littlefleld,   1146. 
111.  Iowa  &  M.  Ry.  v.  Easterbrook, 

3564. 
111.   Iron   &   M.   Co.   v.   Weber,   1355, 

3567,   3750,    3983. 
111.  L.  Ins.  v.  Lindley,  1190. 
111.    Linen   Co.    v.    Hough,   174,   3S71, 

3816. 
111.      Masonic      Orphan      Home      v. 

Gracey,    4288. 
111.   Term.  R.   R.    v.  Thompson,  513. 
111.  Terra  Co.  v.  Hanley,  3745,  3769. 
111.  Steel   Co.    v.    Coffey,    248. 

v.  Hanson,  1439. 

v.  Mann,   170  111.   200,  1467. 

v.  Mann,   197   111.   186,   271. 

v.  McNulty,  1478. 

v.  Novae,    314. 

v.  Ostrowski,    978. 

v.  Ryska,  353,  355. 

v.  Shymanowski,        1395,        1580, 
3889,    3890. 

v.  Trafas,    1379. 

v.  Wagnius,    526. 

v.  Wierzbicky,    355,    1377,    1492. 
111.  Southern  Ry.  v.  Hubbard,  1747. 
Imhoff    v.    Ry.,    3385. 
Independent  Pub.  Co.  v.  Am.  Press 

Assn.,  286. 
Ind.  B.  &  W.  Ry.  v.  Allen,  3565. 

v.  Birney,    885,    897. 

v.  Eberle,    3549. 

v.  Flannigan,   1504. 
Indiana  B.  Coal  Co.  v.  Buffey,  3793. 
Ind.  Car.   Co.  v.   Parker,  1504,  1513. 


Indiana  Clay  Co.  v.  B.  &  0.  S.  W. 

R.,    2002. 
Ind.    Farmers'    L.    S.    Ins.     Co.    v. 
Byrkett,   3679. 

v.  Rundell,   3679. 
Indiana,  I.   &  I.  R.  v.  Bundy,  1458. 

v.  McCoy,  286. 

v.  Otstch,   314. 
Indiana  N.  G.  &  O.  Co.  v.  Vauble, 

3821,    3856. 
Ind.  R.  v.  Shimer,  1965. 
Indpls.   v.   Cauley,   3831. 

v.  Doherty,  1626. 

v.  Gaston,     892,    922,     1619,     1640, 
1644. 

v.  Lawyer,   4280. 

v.  Mullally,    1634,    1675. 

v.  Scott,    882. 
Indpls.    &    C.    &    L.    R.    v.    Harter, 

1965. 
Indpls.   &  C.   Rd.    v.   Lore,   1377. 

v.  McClure,    1947. 
Indpls.    &   E.    Ry.    v.   Bennett,   3340. 
Indpls.  &  G.  R.  T.  v.  Haimes,  2090 
Indpls.   &  St.   L.   Rd.   v.  Blackman, 
1885. 

v.  Estes,  970. 

v.  Hall,  1964. 

v.    Morgenstern,   1431. 

v.  Smith,   1877. 

v.  Stables,    1867. 

v.  Stout,    1863,    1929,    1932. 

v.  Watson,   1468. 
Indpls.    &    V.    Ry.    v.    McLin,    1883, 

1914. 
Indpls.   N.  T.   Co.   v.  Dunn,  3550. 
Indpls.   P.   &  C.   Rd.   v.  Allen,  1720. 

v.  Anthony,   1370. 

v.  Keeley,    1877. 

v.  Truitt,    1964. 

v.  Tyng,    1110. 
Indpls.     St.    Ry.    v.    Hackett,    4121, 
4151. 

v.  Haverstick,    947,    2069. 

v.  Johnson,    355,    2110. 

v.  O'Donnell,    4166. 

v.  Robinson,    157    Ind.    232,    4179. 

v.  Robinson,    157    Ind.    414,    3587. 

v.  Schomberg,     2084,     2102,     2113. 

v.  Taylor,     158     Ind.     274,     3S31, 
4173,   4179. 

v.  Taylor,  164  Ind.  155,  3300. 
Indpls.  Sun  Co.  v.  Horrels,  22S3. 
Indpls.  T.  &  T.  v.  Smith,  2099. 
Industrial    &    Gen'l    Trust    v.    Tod, 

18. 
Industrial  Co.   v.   Shultz,  8303. 
Ingalls  v.  Biels,  1748,  1812. 

v.  Bulkley,    2340. 

v.  Miller,   1098. 

v.  State,    4569. 
Ingersol   v.    McWillie,    704. 
Ingersoll     v.     Stockridge,     etc.,     R. 

Co.,  2000. 
Ingram  v.  Hilton  &  D.  L.  Co.,  3799, 
3803. 


TABLE  OF  CASES  CITED. 


lxxiii 


[references  are  to  sections.] 


Ingram  v.  Maine  Water  Co.,  12. 

v.  Reiman,    353,    2141. 
Inland    Printer    Co.    v.    Economical 

Half-tone    Sup.    Co.,   Iz7. 
Inland    &    Seaboard    Coasting    Co. 

v.   Tolson,   4069,  4172. 
Inman  v.   State,  2P80. 
Insurance    Companies     v.    Weides, 

1163. 
Ins.    Co.    of    N.    A.    v.    Bird,    1155. 

v.  Erickson,   1177. 

v.  Leader,    2104,    3664. 

v.  McDowell,    1174. 
Int.   &   G.   N.   R.   v.  Anchoda,   Tex. 
Civ.   App.,   68  S.  W.   743,  921, 
3567,    3577,    3981. 

v.  Anchonda,  33  Tex.   Civ.  App. 
24,  1351. 

v.  Bearden,    1517. 

v.  Branch,    1901. 

v.  Brice,    1586. 

v.  Butcher,    3590. 

v.  Clark,   35S0. 

v.  Cochrane,    1587. 

v.  Culpepper,  1474. 

v.  Dyer,    4031. 

v.  Emery,    1459. 

v.  Gourley,    3891. 

v.  Haddox,    1846. 

v.  Halloran,  2020,  3989. 

v.  Harris,    1401. 

v.  Hawes,  3849,  3898. 

v.  Hinzie,    3868,   3895. 

v.  Lehman,    3567,    4012. 

v.  Lewis,  3752. 

v.  Martinez,    1435. 

V.  McVey,    3881,   3901. 

v.  Neff,  4074. 

v.  Timmerman,    1988,    1999,    4098, 
4099. 

v.  Tisdale,     36    Tex.    Civ.     App. 
174,   1607,    3597. 

v.  Tisdale,    Tex.    Civ.    App.,    87 
S.   W.   1063,   1547. 

v.  Trump,    1377. 

v.  Vanlandingham,   1489. 

v.  Villareal,    1597,    3858. 

v.  Vinson,    3904. 

v.  Von  Hoesen,   3853. 

v.  Walters,    1449. 

v.  Welch,    1747,    2020,    3989,    4121. 

v.  Williams,    1497. 
International    O.    Tel.    v.    Saunders, 

921. 
Ireland      v.      Commonwealth,     2720, 
3103. 

v.  Elliott,  532. 
Irish  v.  Milwaukee  Rd.  Co.,  1705. 
Iron  Mount.  Bank  v.  Murdock,  171. 
Iron  Mt.  R.  R.  v.  Dies.  4180. 
Iron  R.  R.  v.  Iron  Mowery,  1881. 
Iroquois  Furnace  Co.  v.  Hardware 
Co.,    2259. 

v.  McCrea,  57,  1451. 


Irwin    v.    Williams,    3475. 

Isaac    v.    McLean.    198. 

Isabel   v.   Hannibal,    etc.,    Rd.,   1354, 

1863. 
Isbell   v.    N.   Y.   &   X.    H.    Rd.,   195S. 
Israel   v.   Brooks,   3711. 
Italian-Swiss       Agri.       Colony       v. 

Pease,    377,   473. 
Ittner   Brick   Co.    v.   Ashby,    3819. 

v.  Hughes,    1335. 
Ivy  v.    State,   2956. 
Ivy  Coal  &  Coke  Co.  v.   Long,  422. 


Jackman  v.  State,  3363,  4788. 
Jackson   v.   Adams,   126. 

v.  Claw,  704. 

v.  Germ.    I.   Co.,  269. 

v.  Grand  Av.   Ry.,  2020. 

v.  Harder,   2307. 

v.  Hardin,    3416. 

v.  Hasely,  294. 

v.  K.    C,    Ft.    S.    &   M.    R.,    1880. 

v.  King,    4293. 

v.  Landman,  46. 

v.  Millspaugh,    3452. 

v.  M.  K.  &  T.  Ry.  of  Tex.,  3820. 

v.  People,    2514,    2626,    3062,    3086. 

v.  Powell,   3327. 

v.  R.    R.,    Mo.,   2020,    4130. 

V.  R.    R.,    W.    Va.,    8307. 

v.  Schauber,  2307. 

v.  Smith,    741. 

v.  Smithson,    4277. 

v.  State,    94   Ala.    86,    3101. 

v.  State,  106  Ala.  12,  4710. 

v.  State,  117  Ala.  155,  2441,  4806. 

v.  State,  136  Ala.  22,  2648,  4454, 
4671. 

v.  State,    91    Ga.    271,    3112. 

v.  State,   118  Ga.    780,  2653. 

v.  State,  Tenn.,     3105. 

v.  State,  Tex.,  2913. 

v.  State,  Wis.,  408. 

v.  Thomas,  453. 
Jacksonville    v.    Doan,    759. 

v.  Lambert,  4281. 
Jacksonville    &    St.    Louis    Ry.    v. 

Wilhite,   3558. 
Jacksonville,   N.  W.   &   S.  E.   R.   v. 

Cox,   2352. 
Jacksonville,    S.    E.    Ry.    v.    South- 
worth,    373S. 
Jacobs  v.   Marks,   673. 

v.  Moseley,    3462. 
Jaffe  v.  Harteau,  3696. 
Jaffray  v.  Davis,  624. 

v.  Greenbaum,    1319. 
Jager  v.   Adams,   1393. 

v.  Cal.    Bridge    Co.,   1412. 
Jahnke    v.    State,    55,    2728. 
James  v.   Dexter,    294. 

v.  Johnson,    3605. 

v.  Portage,    3918. 

V.     R.  &  D.  R.  R.,  3590,  3616. 


lxxiv 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


James   v.    State,    2777,    4797. 
Jamieson  v.   Wiimbish,  13. 
Jamison  v.    Parker,    486. 

v.  People,   187,   2594,   2703. 
Jane  v.   Commonwealth,  4443. 
Janch   v.   Janch,   2288. 
Janevvay   v.   Burton,  3521. 
Jansen   v.    Williams,    602. 
Japscott   v.   Cobb,    2307. 
Jardieke   v.    Scropford,   163. 
Jarrel!   v.    State,    4430. 
Jarrett  v.   Ry.   Co.,  1739. 
Jarvis   v.    Bradford,   4094. 

v.  Flint  &  P.   M.  R.  Co.,  1550. 

v.  State,    2470,     2474,    2986,     3071, 
3072,     3096,     3133,     3132,     3166, 
4335,  4684. 
Jayne  v.    Wine,    317. 
Jeff  v.    State,   4726. 
Jefferson  v.   Electric   Co.,   3835. 

v.  State,   4320. 
Jefferson  Co.   v.   Lewis,   47. 
Jefferson  Ice  Co.  v.  Zwickoski,  123. 
Jefferson  Mut.  Ins.  v.  Murray,  1168. 
Jeffersonville,     M.     &     I.     Rd.     v. 
Adams,  1965. 

v.  Bowen,    1364. 

v.  Lyon,   1347. 
Jeffries  v.  State,  4447. 
Jenkins  v.  Crane,  2201. 

v.  State,  2497,  2506,  4443. 

v.  State,    3298. 
Jenks  v.   State,  1. 

Jenney  Electric  Company  v.  Bran- 
ham,  332. 

v.  Murphy,    1504. 
Jennings     v.     Chenango    Mut.     Ins. 
Co.,  1171. 

v.  Johnson,    809. 
Jensen  v.  Halstead,   3712. 

v.  R.    R.    Co.,   3840. 
Jernigan  v  Clark,  2309. 
Jesse  v.   State,  25. 
Jessen  v.  Donahue,  93,  335. 

v.  Wilhite,    1220. 
Jessup  v.   Chi.   R.,  279. 
Jewett  v.   Dringer,   1093. 

v.  Home  Ins.,  1174. 

v.  Petit,   1129. 
Jimmerson  v.  State,  2648,  4695,  4698. 
Joannes   v.   Millerd,   336. 
John  Hancock  Mut.  L.  I.  v.  Daley, 

3679. 
John    Hancock   Ins.    Co.    v.    Moore, 

131,    1207. 
John  Stewart  &  Co.  v.  Andes,  4262. 
Johns  v.   State,  3289. 
Johnson   v.    Anderson  &  Middleton 
Lbr.  Co.,  1468. 

V.  Bellingham     Bay    Imp.     Co., 
1376. 

V.  Bryan,   3627. 

v.  Commonwealth,    2878. 

V.  Culver,   3639. 

V.  Detroit   &  M.   R.,   1967. 


Johnson  v.  Farrell,  2398,  4121. 
v.  Hillstrom,   332. 
v.  Hirshberg,    3448. 
v.  Ins.  Co.,  3474. 
v.  Int'l  &  G.   N.  R.,  3864. 
v.  Jennison,  326. 
v.  Josephs,  70. 
v.  Marshall,  285. 
v.  McCann,    1218. 
v.  McOullough,   296. 
v.  McNiff,    1345. 
v.  Meyer,    1263. 

v.  Miller,  63  Iowa  529,  1283,  2885. 
v.  Miller,  69  Iowa  562,  1279,  3244. 
v.  Moss,    251. 
v.  Park  City,   43. 
v.  People,  94  111.    505,  3257. 
v.  People,  113  111.  99,  2927. 
v.  People,   140  111.   350,   2467,  2539, 

3303,    3339. 
V.  People,    197   111.    48,    3362. 
v.  Phifer,   618. 
v.  Russell,  119. 
v.  Simmonton,  4263. 
v.  St.   L.   &  S.   Ry.,  2012,   2029. 
v.  St.   P.   &  W.  C.  Co.,   3804. 
v.  State,  75  Ala.  7,  4806. 
v.  State,   94  Ala.   35,   4340. 
v.  State,   102  Ala.  1,  4340,  4723. 
v.  State,   133   Ala.   38,   3009,    4457. 
v.  State,   136  Ala.    76,    3132,   4681. 
v.  State,   Ga.,  2883. 
v.  State,   Miss.,   16   So.   494,   4445. 
v.  State,   Miss.,  27   So.  880,   3107, 

4616. 
v.  State,    Miss.,    30    So.    39,   2972, 

4666. 
v.  State,   63  Miss.  228,   3207. 
v.  State,    79   Miss.   42,   3113,   3147. 
v.  State,   34    Neb.    257,    342,    2546, 

4335,    4342. 
v.  State,  53  Neb.  103,  2494. 
v.  State,    3   Tex.    App.    590,   2911. 
v.  State,  10  Tex.  571,  67. 
v.  State,  21  Tex.  App.  368,  4322. 
v.  State,  29  Tex.  App.   150,  4439. 
v.  State,    42   Tex.   Cr.    App.    298, 

4757. 
v.  State,   42    Tex.    Cr.    App.    377, 

3049. 
v.  State,    44    Tex.    Cr.    App.    332, 

51. 
v.  State,  46  Tex.  Cr.  App.,  4653. 
v.  State,    Tex.    Cr.    App.,    55    S. 

W.    968,    2246. 
v.  State,    Tex.    Cr.    App.,    93    S. 

W.   735,   2858. 
v.  Sup.   R.  T.   Ry.,  3360,  3396. 
v.  U.     Pac.    C.     Co.,     1381,     3782, 

8306. 
v.  Von  Kettler,   326. 
v.  Way,  2168. 

v.  Western,   etc.,   Rd.   Co.,   1564. 
v.  Whidden,    331. 


TABLE  OF  CASES  CITED. 


lxxv 


[references  are  to  sections.] 


Johnson    alias    Overton    v.    U.    S., 

2551,  2732,  2743. 
Johnson's  Adm'r  v.   Chi.    &   N.   W. 

Ry.,    1364. 
Johnston  v.  Johnson,  1391. 

v.  Ins.  Co.,  66. 
Joice  v.  Williams,  584. 
Joliet    v.    Henry,    3598. 

v.  Johnson,   4124. 

v.  Shufeldt,    164. 

v.  Verley,   1616. 
Joliet   Aurora    &    Northern    Ry.    v. 

Velie    259. 
Joliet   St.   Ry.   v.   Coll,   152. 

.  v.  McCarthy,   309. 
Joliffe  v.  Baker,  1109. 
Jolley    v.    Rutherford,    2429. 
Jolly   v.    State,    4475. 
Jones  v.  Ala.   M.  R.,  331,  1541,  1602, 
3308,  3907. 

v.  Angell,    3721. 

v.  Baker,  4311. 

v.  Bates,   1218. 

v.  Caslar,    3300,    3303,    3319. 

v.  Cavanaugh,   641. 

v.  Chamberlain,  2236. 

v.  Charleston  &  W.  C.  Ry.  Co., 
4010,    4022,    4066. 

v.  Chi.  &  N.  W.  Ry.,  194. 

v.  Clifton,    1086. 

v.  Durham,    352. 

v.  Easley,    1040. 

v.  Florence  Min.  Co.,   1354. 

v.  G.    H.    &    S.    A.    Ry.,    1545. 

v.  Graves,   22S9. 

v.  Hetherington,    1074. 

v.  Hunter,    3344,    3384. 

v.  Jones,   Iowa,   1021. 

v.  Jones,    Mo.,    176. 

v.  M.   C.   R.,   2000. 

v.  Mutual    Accident    Assn.,    120. 

v.  People,    Colo.,    346,   349. 

V.  People,   111.,  3245. 

v.  R.    R.,   Miss.,    4102. 

v.  R.   R.,    S.   C,   1860. 

v.  St.  Johns  College,  3492. 

v.  Seaboard    A.    L.,    2353,   2362. 

v.  Shay,    1046. 

v.  Shaw,   1577. 

v.  Sheboygan   &   F.    Du.    L.    R., 
1968. 

v.  Spear,  86. 

v.  State,  Ala.,  30S6. 

v.  State,    Ark.,    2534. 

v.  State,  30  Miss  653,  4570. 

v.  State,  84  Miss.  36,  4724. 

v.  State,   3  Tex.    App.    575,    2748. 

v.  State,   17  Tex.  App.  612,  3123. 

v.  State,    29    Tex.    Cr.    App.    20, 
2515. 

v.  State,    44   Tex.    Cr.    App.    405, 
3169. 

v.  State,    44   Tex.    Cr.    App.    557, 
4485,   4488. 


Jones  v.   State,  Tex.  Cr.  App.,  85  S. 
W.   5,   2863. 

v.  State,    Tex.    Cr.    App.,    96    S. 
W.  930,   2997. 

v.  U.   S.   Mut.   Ace.  Assn.,  187. 

v.   Ward,   2239. 

v.  Williams,   Ala.,  447,  461,   3408. 

v.  Williams,   Mo.,  4195. 

v.  Wright,    Tex.,    1043,   4236. 
Joplin  Co.   v.   Joplin,   736. 
Joplin    Cons.    Min.    Co.    v.     Joplin, 

4281. 
Jordan  v.  C.  R.   &   M.   C.   Ry.,    S91. 

v.  Middlesex,  951. 

v.   N.    Y.,    N.    H.    &   H.    R.,    1757. 

v.  Pickett,   1104. 

v.  State,   345. 
Joslin  v.  Grand  Rapids  Ice  &  Coal 

Co.,   127. 
Joslyn  v.  Collinson,  2187. 
Josselyn  v.  McAllister,  1279. 
Jowers  v.   Blandy,  2250. 
Joyce  v.  Chicago,  3915. 

v.  St.   L.    Tr.   Co.,  3358. 

v.  White,    322. 
Joyner  v.  State,  4635. 
Judd  v.  Isentort,  3440,  3607 
Judge  v.  State,  3105. 
Judson   v.    Gookin,   2178. 
Judy  v.   Buck,    132. 

v.  Sterrett,    694. 
Junction  Min.  Co.  v.  Goodwin,  3301. 
Jung  v.  Stevens  Point,  3939. 
Jupiter   Min.    Co.    v.    Bodie   Consol. 

Min.  Co.,  2430. 
Jupitz  v.  People,  146. 
Juvinal  v.  Jamesburg  Dist.,   12. 


Kadgin  v.   Miller,    352S. 

Kaelin   v.    Commonwealth,   2988. 

Kahu  v.  Triest-Rosenberg  Cap.  Co., 

2127. 
Kain  v.  Bare,  4219. 
Kaiser  v.  Latimer,  561. 
v.  Nummedor,  1114. 
v.  South    St.     Louis    Mut.    Life 

Ins.  Co.,  36S0. 
Kaminski  v.   Tudor  I.  W.,   1428. 
Kamp  v.  Cox  Bros.  &  Co.,  S304. 
Kamphouse  v.  Gaffner,  629. 
Kane    v.    Cicero    &    P.    E.    R.    Co., 

249. 
v.  Kinnare,    97. 
v.  N.    Y.,    N.    H.    &    H.    R.    R., 

1919. 
Kankakee   &  S.   R.   v.  Horan,    3372, 

4283. 
Kansas  City  v.  Hill,  126,  4300. 

v.  Smith,   161S,    3927. 
Kansas  City  v.  Street,  552. 
Kan.  C.   Ft.   St.,   etc.,  R.  v.  Eagon, 

3384. 
K.,  C.  M.  &  B.  R.  v.  Henson,  1981, 

4095. 


lxxvi 


TABLE  OF  CASES  CITED. 


[REFERENCES  are  to  sections.] 


Kas.   C.    So.   Ry.   v.   McGinty,   1352. 
Kansas  Loan  &  Trust  Co.  v.  Love, 

599. 
Kansas  Mfg.  Co.  v.  Wagoner,  2272. 
Kansas    Pac.    Ry.    Co.    v.    Cutter, 
780,    991. 

v.  Little,   329. 

v.  Ward,    329. 
Karow  v.  N.  Y.  Cont.  L.  Ins.,  1209. 
Karr  v.   State,  2489,  2633,  2697,  2720, 

3068,   3088,   4727. 
Karrer  v.  Detroit,  1636,  3925. 
Karsen  v.  R.  R.   Co.,  1994. 
Karske  v.   Ridgeville,   3340. 
Karth   v.   Light,   326. 
Kassing  v.    Walter,   109. 
Kastner  v.  State,  2768,  3097. 
Kauffman  v.  Maier,  4300,  4364. 

v.  Robey,  2118. 

v.  State,   4317,  4558. 
Kavanaugh   v.    Wausau,  4388. 
Kay  v.    Noll,    1313,   3727. 
Keady    v.    People,    2857,    2865,    3047, 

3154. 
Kean  v.  Rolling  Mills,  1575. 
Kearn  v.  Pfaff,  3735. 
Kearney  v.   Ferguson,  319. 

v.  Wurdeman,   3735. 

v.  Railway,   1127. 
Keating  v.   State,  2779. 
Keatley  v.  R.  R.,  3840,  3841. 
Kee  v.  Cahill,  628. 
Keefe  v.   Voight,  4264. 
Keeler  v.  State,   (Neb.),  38. 
Keeler  v.  Stuppe,  177. 
Keenan   v.   Commonwealth,   3074. 

v.  Dubuque,  etc.,  2422. 

v.  Mo.  St.  Mutual  Ins.,  1158. 
Kees  v.   State,  4542. 
Kedzie  v.  State,  241. 
Keightlinger    v.    Egan,     3605,     3612, 

3983. 
Kehrig  v.   Peters,   1217,  3690. 
Kehl  v.   Warren,  300. 
Kehler  v.    Schwenk,   3796. 
Keim  v.  Home  Mut.  Ins.,  1167. 
Keiser  v.   Miller,  620. 

v.  Smith,  3072. 

v.  State,    2625. 
Keith    v.    Goldston,    3642,    3643. 

v.  Henkleman,   12. 

v.  State,   3107,  4747. 

v.  Wilson,    68. 
Keithley   v.    Stafford,   2377,  4293. 
Keithsburg    &    Eastern    R.     R.     v. 

Henry,    861. 
Kelch  v.   State,  4396,  4407. 
Kelsh  v.  Dyersville,   265. 
Keller  v.   Hansen,  4121. 
Keller  v.   State,  3288,  4815. 
Kellerman   v.   Arnold,   3528. 
Kelley  v.   Hendricks,  Mich.,  250. 

v.  Hendricks,    Ala.,   1034. 

v.  Highfield,  823. 

v.  Malhart,   1220. 


Kelley  v.  People,  2905. 

v.  Riley,  697. 

v.  State,    3269. 
Kellin  v.  State,  241. 
Kellny  v.   Ry.  Co.,  4168,  4172. 
Kellogg  v.    Chi.    &   N.   W.   R.,   1988, 

2002. 
Kelsey  v.  Barney,  2099. 

v.  Campbell,    326. 

v.  Furman,  1150. 
Kelso  v.   Kuehl,  41. 
Kelsoe  v.    State,   4328,   4362. 
Kelly  v.  Abbot,  1504,  3846. 

v.  Doody,    1685. 

v.  Ford,    2134. 

v.  Southern  Minnesota  Ry.  Co., 
3942 
Kelly    v.    Chi.    &    N.    W.    Ry.    Co., 
3947. 

v.  State,    Fla.,    2726,    2733. 

v.  State,  Ind.,  2973. 

v.  State,  Tex.,   1137,   2860,   3169. 

v.  Troy  Ins.   Co.,   75. 
Kellyville   Coal   Co.   v.    Strine,   1682. 
Kemp  v.  Walker,  1079. 
Kemper  v.  King,   3735. 
Kendall  v.  Albia,  894,  1671. 

v.  Brown,    74    111.    232,    193,    709, 
1297. 

v.  Brown,    86    111.    387,    175,    1298, 
1301. 

v.  State,  3123. 

v.  Young,   654. 
Kennard    v.    Grossman,    1389,    1457, 
1472. 

v.  State,    2643,    3138,    3151. 
Kennedy  v.    Bohannon,   2211. 

v.  Commonwealth,    3109. 

v.  Kennedy,  N.  Y.,  1007. 

v.  Kennedy,  111.,  1012,  1030,  1031. 

v.  Le  Van,  1142,  1146. 

v.  People,   2754. 

v.  Ry.   Co.,  4168. 

v.  Roberts,  2151,  2153. 

v.  Rosier,   182. 

v.  St.  Cloud,  1645. 

V.  So.    Ry.,    900,    1336,    1756,    1757, 
1788. 

v.  State,  Ala.,  3110. 

v.  State,  Tex.,    234. 

v.  State,  Fla.,  2497. 
Kennett  v.  Engle,  2350. 
Kenney  v.  Home  Ins.,  1158. 
Kennon  v.   Gilmer,  900,  921. 
Kent  v.  People,  4755. 
Ky.  C.  R.  R.  v.  Ackley,  3570. 
Kentucky,    etc.,    Co.    v.     Quinkert, 

4121. 
Kenrick  v.   Rogers,  2341. 
Kenyon  v.  Mondovi,  918. 

v.  People,    2833. 
Keokuk,  N.  L.  P.  v.  True,  1348. 
Keplar  v.  Reinhart,  282,  295. 
Kerkow  v.    Nauer,   1218. 
Kern  v.  Bridewell,  151. 


TABLE  OF  CASES  CITED. 


lxxvii 


[BEFEBEJNTCES  ABE  TO  SECTIONS.] 


Kerr  v.  Goetz,   270. 

v.  Hodge,  349,  3323. 

v.  People,  3265. 

v.  Sharp,  486. 
Kerwhaker  v.  R.  R.  Co.,  1486. 
Kerwin  &  Co.  v.   Doran,  590. 
Kesee  v.  Chi.  &  N.  W.  R.,  1988. 
Kessman  v.  St.  Louis,  3918,  3946. 
Kester  v.'W.    U.   Tel.,   921. 
Ketchum  v.  Gilmer,  4261. 

v.  Ebert,   3656. 

v.  Watson,    3636. 
Kew  v.  Trainor,  1239. 
Keyes  v.  Devlin,  532. 
Keys    v.    State,    892. 
Keyser  v.  C.  &  G.  T.  Ry.,  56  Mich. 
559     1970. 

v.    C.    &    G. "  T.     Ry.,     66     Mich. 
390,    1970. 
Kibe  v.  People,  314. 
Kibler  v.  Commonwealth,  4786. 
Kibley  v.  So.  Ry.,  1823. 
Kiekhoefer  v.  Hildershide,  3722. 
Kiernan   v.    Chi.,    S.    Fe.    &   C.    Ry. 

Co.,  843,   863,  3558. 
Kilgore  v.  State,  2441. 

v.  State,    2986,    3072,    3101. 
Kilgour  v.    Gockley,   1040. 
Killian   v.   Eigeman,  4788. 
Kilpatrick   v.   Haley,   3372. 

v.  Richardson,    3928. 
Kimbal    v.    St.    L.    &    S.    R.,    2106, 

2182 
Kimball  v.   Custer,  2312. 

v.  Frind's  Adm'x,  1908. 

v.  Harman,   4311. 
Kimball   Mfg.   Co.   v.   Vroman,   131. 
Kimbrough    v.    State,    4321. 
Kime  v.   Dale,   2340. 
Kimmel  v.   Nagele,  4209. 
King  v.   Faber,  4230. 

v.  Ford  R.    Lbr.    Co.,   1384,  1445, 
1446. 

v.  Hanson,    66,   495,   644. 

v.  Humphreys,   613. 

v.  Kelly,  731. 

v.  Kersey,    765. 

v.  King,   Ala.,  1009. 

v.  King,   111.,   297,   298. 

v.  King,  Ky.,  2369. 

v.  King,   Mo.,   2234. 

v.  Macon,    etc.,    Rd.    Co.,   1722. 

v.  State,  Fla.,  2942. 

v.  State,   Ga.,   2864. 

v.  State,    Miss.,   3105. 

v.  State,    Tenn.,    244. 

v.  State,    Tex.    Cr.    App.,    64,    S. 
W.   245,   4414. 

v.  State,   9   Tex.    App.    515,   2590. 

v.  University,    284. 
Kingman    v.    Hanna    W.    Co.,    744, 

746. 
Kingston   v.   Ft.   W.   &  E.   R.,  1356. 
Kinnah  v.  Kinnah,  2398. 


Kinnare   v.   C,   R.    I.    &   P.    R.   R., 

4151. 
Kinney  v.   Folkerts,  911. 
Kintner  v.   State,  2793,  45*8. 
Kinyon  v.   Chi.   &  N.  W.  Ry.,  3340, 

4090. 
Kintz  v.   Starkey,   221. 
Kipp  v.  Lamoreaux,  3630. 
Kirby  v.   State,  Ala.,  4728. 

v.  State,    Fla.,    2455,    2652,    2639, 
3038,    3102,    3161. 

v.  U.    S.,    4422,   4792. 
Kirby   Lbr.   Co.   v.    Dickerson,   37S3. 
Kirchner  v.  Collins,  357,  3323. 

v.  Det.   C.    Ry.,   2044. 
Kirk  v.   Senzig,  278. 
Kirkham    v.    Wheeler-Osgood    Co., 

3766. 
Kirkland  v.  Benjamin,  639. 

v.  State,    3675. 
Kirkpatrick  v.  Busell,  608. 

v.  Downing,   3514. 

v.  Reeves,   1098. 
Kirksey  v.  Jones,  741. 
Kirkwood  v.  Steel,  285. 
Kirsher  v.   Kirsher,  4296,  4300. 
Kirton  v.   No.  Chi.    St.   R.   R.,  4158. 
Kischman  v.  Scott,  2374. 
Kissel  v.  Mayer,  1228. 
Kistler  v.  State,  2477,  2478,  2484. 
Kitchen    v.    McCloskey,   1079. 
Kittie  v.  Wilson,  2186. 
Kitzberger  v.    Chi.,   R.   I.   &  P.   R., 

1351. 
Kitzinger   v.    Sanborn,   332. 
Kitzman   v.   Kitzman,   307. 
Kizer   v.    Walden,   211. 
Klassen  v.   Reiger,   329. 
Klein  v.  Laudman,  4514. 

v.  People,  2891. 

v.  St.  L.   T.   Co.,  4176. 
Kleinschmidt  v.   McAndrews,  303. 
Kleutsch  v.  Security  Mut.  Life  Ins. 

Co.,  3677. 
Kliegel  v.  Aitkin,  3576. 
Klimpel  v.  Met.  St.  R.  R.,  315. 
Kline  v.  Lindsay,  3319. 
Klipstein  v.  Raschein,  1054. 
Klyce  v.  State,  2657,  4434,  4624,  4643. 
Knapp  v.  Chi.,  K.  &  N.  R.,  3420. 
Knapp  v.   Runals,  4211. 
Knapp   v.    Sioux   C.    &   P.   Ry.   Co., 

1520,    1565,    3792. 
Knappen  v.  Freeman,  1109. 
Knauff  v.  San  Ant.  Trac.  Co.,  Tex., 

940,  2020. 
Knickerbocker  v.  People,  5665. 
Knickerbocker     v.     Worthing,    139, 

498. 
Knickerbocker    L.     Ins.     v.     Trefz, 

1193. 
Kniffen   v.    McConnell,   765. 
Knight  v.  Abnert,  4151. 

v.  Foster,   819. 
v.  Knight,   732,   1253,   3499. 


lxxviii 


TABLE  OF  CASES  CITED. 


[befeeexces  are  to  sections.] 


Knight    v.    Portland.    S.    &    P.    R. 

17.37. 
v.   State.    4430. 
v.  Worsted.    3371. 
K.   P.   Rank  of  O.   v.   Steele,  3336. 
Knights  v.   State.  3270.  4S00. 
Knisley  v.  Hire.  3560. 
Knittel  v.  Schmidt,  898. 
Knobelock  v.  Germania  Sav.  Bank, 

494. 
Knop   v.    Fire    Insurance   Co.,   3630, 

3670. 
Knopke   v.    Germantown    Farmers' 

JIut.  Ins.  Co.,  351. 
Knox  v.  Knox.  2393. 
Knox's  Will,   4305. 
Knoxville  Woolen  Mills  v.  Wallace, 

756. 
Knowles   v.    Scribner,    22S9. 
Knowlton   v.    Bartlett.    3449. 

v.  Patrons'       Androscoggin      F. 

Ins..  1164. 
Kobs   v.    Minneapolis,   1654. 
Koch   v.    Hustis.    293. 
Kocher   v.    Mayberry,    3515. 
Kocourek  v.    Marak,   3620. 
Koenig  v.  U.  D.   Ry..  207S. 
Koerner  v.    State.   308,   917,  4363. 
Kohl   v.   Lindley.   1104. 
Kolb  V.  Jones,  45S.  3405. 
Kolka  v.  Jones.  1263. 
Koons  v.  Vaueonsant,  1252. 
Korf  v.  Lull,  715. 
Kornazewka    v.    West.    Chi.    St.    R. 

R..   2033,  3323,  3356,  4119,  4160, 

4161. 
Kota  v.   People,  68. 
Kotter  v.  People.   4604. 
Kraaiz  v.   Electric  Light  Co.,  127. 
Krai   v.   Lull.   521. 
Kramer    v.     X.    W.    Elevator    Co., 

91. 
v.  So.    Ry.    Co.,   16S0. 
v.  Weinert,    4293. 
Kranz   v.   Thieben.   3567. 
Kratch  v.   Heilman,   1217. 
Kraus  v.   Thieben.  201. 
Kreag   v.  Anthus.   327.   3432. 
Kreder  v.  Trustees,  etc.. 
Kreibohm  v.  Yancey,  2136. 
Krepp   et  al.    v.   St.   Louis   &  S.   F. 

R.,   3514. 
Kreuger  v.    Sylvester  Co.,   309. 
Krider  V.    Milner,   3462. 
Kritzinger  v.    Sanborn,  657,  667. 
Kroer  v.   People.   49. 
Kroll   v.    Ernst.    3732. 
Kronenberger  v.   Bing,  420. 
Krueger  v.  Louisville,  etc.,  Ry.  Co.. 

v.  Sylvester,  309. 
Krug  v.  Ward.  1271.  3711. 
Kruger   v.    Buttelman,    998. 

Krum   v.   Stab  2825. 

Kuhn  v.  DeC,  etc.,  R.,  312. 


Kuhlenbeck  v.   Hotz,  3633. 
Kullman  v.   Greenebaum,   270. 
Kyd  v.  Cook,  623,  740. 


LaBonty  v.   Lundgren,   3301. 

La   Chappelle    V.    Supply    Co.,    3377. 

Laclede    P.    Co.    v.    Nash-Smith    T. 

&    C,    751. 
Lacey  v.   Porter,  247. 

■v.  Wilson,  3659. 
Ladd   v.   Insurance  Co.,  257. 

v.  New  Bedford,  etc.,  Rd.,  1377, 
174s. 

v.  Smith,  1243. 

v.  Witte,    762,   3723,    3377. 
LaFayette,    etc.,    Rd.    v.    Murdock, 

S61. 
Lafayette    Sav.    Bk.    v.    St.    Louis. 

2167. 
Laflin,    etc.,    Co.    v.    Tearney,    360, 

376S. 
Laferiere  v.  Richards,  1028. 
La   Grand   Inv.    Co.    v.    Shaw,   2267, 

2430. 
Laird  v.  Ry.  Co.,  3580. 
Lake   v.    Reed,    4216. 
Lake  E.   &   W.    Ry.   v.   Cloes,   239. 

v.  Dolong,  939,  3602. 

v.  Juday,   2099. 

v.  Middleton,    234,   1431. 

v.  Scott.    840,    853,    858,    880. 

v.  Whitman.    _ 

v.  Wilson,   2132,   3769,  4169. 
Lake   Shore   &   M.   S.   Ry.   v.   Bode- 
mer,  176,  4027. 

v.  Brown,   1^02,  1956. 

v.  Chi.    &   W.    I.    R.    R.    Co.,    861, 
3545. 

V.  Clark.  4051. 

v.  Conway,    361,    924,    1338,    1866, 
3753,  4151. 

v.  Hundt.  882. 

v.  Hutchins.   769. 

v.  Johnson,  1338,  1345,  1866,  1949, 
3.  85. 

v.  May,  3599. 

v.  McCormick.    1417,    1504,   3S56. 

v.  Mcintosh,   912,  4166. 

v.  Miller,   1902,   1932. 

v.  O'Connor,   254. 

v.  Ouska,    1345. 

v.  Parker,  989,  1386. 

v.  Pauly,  4066. 

v.  Rohlfs,   198,  3612. 

v.  Taylor,  1349. 
Lake  St.  El.   R.  R.  Co.  v.  Burgess, 

3965. 
Lamar  v.  Commis,  286. 

v.  State.   2  . 

v.  State,  3116. 
Lamb    v.    Cedar   Rapids,    894. 

v.  Lamb,   2385. 

v.   Ry.    Co..    4166. 

v.  State,   - 


TABLE  OF  CASES  CITED. 


lsxix 


[BEFEBENCES  ABE  TO   SECTIONS.] 


Lambert  v.  Estes,  3514. 

v.  Missiscuoi  Pulp  Co.,  3771. 
Lambeth  v.  State,  46S6,  46S7. 
Lambeth    Rope     Co.     v.    Brigham, 

2262. 
Lampe  v.  Kennedy,  3656. 
Lamphere  v.  State,  3327. 
Lampman  v.   Bruning,   777. 
Lamprey  v.  Hood  &  Sons,  1274. 
Lanan   v.    Hibbard,    221. 
Lanark  v.  Dougherty,  152,  4080. 
Lancashire  Ins.  Co.  v.  Stanley,  337, 

3386. 
Lancaster  v.   Insurance   Co.,  3684. 
Landers  v.   State,   4439. 
Landgraf  v.    Kuh,   24S,   258. 
Landon   v.  The   People,   1S2. 

v.  Chi.  &  G.  T.  Ry.,  4037,  4062. 
Lane  v.   Evans,  151. 

v.  R.    Co.,    151. 

v.  State,  3106. 
Lang  v.  State,  Ala.,  29S6. 

v.  State,    Fla.,    2538. 
Langdon   v.    Doud,    3707. 

v.  People,    164. 
Lange  v.  Schoettler,  976,  984. 

v.  Seiter,   248. 

v.  Wiegand,    4925. 
Langford   v.  Jones,    4300. 

v.  State,  Fla..    4334. 

v.  Stale,  Xeb..  2660,  2664. 
Langhammer  v.   City,  16i3. 
Langley  v.  Commonwealth,  3069. 
Langworthv    v.    N.    T.    &.    H.    Ry. 
Co.,    1691. 

v.  McKelvey,  3525. 
Lankster    v.    State,    3167,    4705. 

v.  State,   407. 
Lanier   v.    State,    4548. 
Lansing  v.    Toolan,    1651. 

v.  Wessell,    523. 
Lanson  v.  Conaway,  1299. 
Lanure's  Case,  46S1. 
Lapeer,    etc.,    Ins.     Co.     v.    Doyle, 

180. 
LaPlante   v.    State,   4166. 
La    Pointe    v.    O'Toole,    360S. 
La  Porte  v.  Wallace.  414. 
Lapp   v.    Pinover,   3636. 

V.   Smith,    675. 
Laredo  El.  &  R.  v.  Hamilton,  20S3. 
Larkin   v.   Beattie,   309. 

v.  Chi.    &   G.    W.    Ry.,   1747.   1766. 
Larkinsville     Min.     Co.     v.     Flippo, 

4231. 
Larney  v.  People.  4245. 
La    Rue   v.    State,    4744. 
La   Salle   v.    Kostka,    329,    360,   1347, 
1455,    3944. 

v:  Porterfield,    3922. 
Lasher  v.    Colton,    3339,    3437. 

v.  N.    W.    Nat.    Ins.,  1173. 
Lasseter   v.    Bussey,    4239. 
Latham  v.   Latham,   1007,  1009. 

v.  Smith,    2147. 


Lathrop  v.   State,  3192. 

Latimer    v.    State,    4337.    4342,    4414. 

Latremouilla    v.    Bennington,    etc., 

Rd.,   3883. 
Laughlin  v.  State,  6S. 
Lauman    v.    Clark.    513,    514. 
Laurance  v.   Goodwil,   173. 
Lavender  v.   Hudgens,    786,    1272. 
Laverenz  v.  Chicago,  etc.,  R.,  1914. 
Laverty    v.    Gray,    43. 

v.  Vanarsdale,    4311. 
Lavin    v.    People,    49. 
Law  v.    State,   2491,  2492. 
Lawhead  v.  State,  2664. 
Lawler    v.    Earle,    96. 

v.  Xorris,    307. 
Lawlor  v.  People.  2717. 
Lawrence   v.    Comba,    2321. 
v.  Goodwin.    434. 
v.  Hagerman,    1S97. 
v.  Maxwell,   331. 
Lawson   v.    State.   230S. 
Layer  v.   Layer.   4294. 
Lazarus  v.  Phelps.  4273. 
Leach  v.   Jones.   325. 
v.  Rain,   1023. 
v.  State,  4593. 
V.  Wilbur,  95. 
Leache  v.   State.  2590. 
Leahy  v.  State.  235. 
Leavell  v.  Leavell.  3429. 
Lebanon  C.  &  M.  Ass'n  v.  Zerwick, 

39S4. 
Le  Beau  v.  Tel.   &  Tel.  Const.  Co.. 

16S5. 
Le  Breton  v.   Swartzell,  321. 
Lee    v.    Campbell,    75. 
v.  Campbell.   268. 
v.  Hammond,    501,    775. 
v.  Minneapolis,   1652. 
v.  Nixon,  I.  A.  &  E.,  34S8. 
v.  Quirk,    212. 

v.  State,  Ark.,     3112,     3323,     4733. 
v.  State.  Miss.,  2771. 
v.  State.  Tex.,  3016. 
v.  State.  Wis.,    3306. 
Leek  Milling  Co.  v.  Langford,  3491. 
Legalle   v.    Blaidsell,    1272. 
Legate   v.    Clark.    4375. 
Leeve    v.    Hammill,    1274. 
Legre  v.   State,   4320.  4321. 
Leggat  v.  Sands,  A.  Co.,  637. 
Lehigh    Valley    Co.    v.    Jones,    1557. 
Lehigh   Valley    Ry.    v.    McFarland, 

1263. 
Lehy  v.   Stone.  297. 
Lehman  v.   McQueen,  2162. 

v.  Press,    4216. 
Leidigh  v.  Keever,  713,  714.  3519. 
Leigh  v.   Omaha  St.    Ry.,   :"7^7. 

v.  People,   2877.   2714.  4353,  4557. 
Leighton   v.    Orr,    2410. 

v.  Sargent.  3721. 
Leighton,    etc.,    Steel    Co.    v.    Snell, 
1443. 


lxxx 


TABLE  OF  CASES  CITED. 


[EEFEBENCES  are  to  sections.] 


Leiter  v.  Day,  3704. 
Lei  to   v.   State,   4558. 
Leland  v.  Kauth,  139. 
Lemon  v.   Chanslor,  1796. 
Lempman  v.  Van  Alstyne,  446. 
Lenandowski   v.    State,   223. 
Lenning  v.  Lenning,  3623. 
Leonard  v.   State,  4784. 

v.  State,  2936. 

v.     Territory,   4437. 
Lepoc  v.  Bank,  3620. 
LeRoy,  etc.,  Ry.  v.  Crum,  322. 
Leslie     v.     State,     2775,     2885,     2886, 
4570,  4788,  4811. 

v.  McMurtry,    2386. 

v.  St.  L.  &  P.  Ry.,  2020. 
Lesser   Cotton   Co.   v.    St.   L.,    etc., 

Ry.  Co.,  4099. 
Lester   v.    Rarnett,    299. 

v.  East,   2247. 

v.  State,    4378. 
Levells  v.   State,  278. 
Leverett  v.  Carlisle,  2399,  4286. 
Leveridge  v.  Evans,  4294. 
Levy  v.   Campbell,    2029,   2927. 
Lewis  v.   Carr,  3477. 

v.  City  of  Raleigh,  3724. 

v.  Chapman,    817. 

v.  Christie,  3300,  3363,  4363,  4686. 

v.  Jones,  41. 

v.  King,    322. 

v.  Lewis,    3354. 

v.  Masters,  2237. 

v.  Montgomery,  4194. 

v.  Newton,  130. 

v.  New  York  &  N.  E.  Ry.,  3899. 

v.  N.    &  W.   Ry.,  1957. 

v.  Payn,  1246. 

v.  Raleigh,   3617. 

v.  Rice,     1073, 

v.  Rountree,   750. 

v.  St.   Louis,  etc.,  Rd.,   1376. 

v.  Smart,  2237. 

v.  Springfield    Water    Co.,    3571. 

v.  State,  96  Ala.    6,  4644. 

v.  State,  121  Ala.    1,   2689. 

v.  State,  Fla.,  4765. 

v.  State,  Tex.,  3163. 

v.  The      Burlington      Ins.      Co., 
3526. 

v.  U.    S.,   114. 
Lewton  v.  Hower,  1262. 
Lexington    v.     Fleharty,    884,    1639, 

1671. 
Lexington   Ry.   v.   Herring,   3605. 
Libby  v.   R.   R.,  2020. 
Libby,    McN.    &    L.    v.    Scherman, 

1395. 
Lichtenberger  v.   Graham,  1025. 
Lichtenstein   v.    Brooks,   763. 
Lick   v.    Owen,   2283. 
Lieber  v.   Com.,  4686. 
Lieberman  v.   Chi.   R.  T.  Ry.,  3543. 
Liese  v.  Meyer,  699. 


Lieserowitz    v.    W.    Chi.     St.    Ry., 

1355,    3356. 
Life   Ins.   v.   Terry,   1207. 
Light    v.    Chi.,    M.    &    St.    P.    Ry. 

Co.,   34,   1595,   3865. 
Lightfoot     v.     Winnebago    T.     Co., 

2093,    2112. 
Lillie  v.  Brotherhood  of  Ry.  Train- 
men,  1215. 
V.  State,   3076. 
Lima  v.  County  Bank,  4235. 
Lime    Co.    v.    Griffin,    360. 
Linam   v.    Reeves,    769. 
Linblom  v.    Sonstelie,    3502. 
Linck  v.  Whipple,   3323. 
Lincoln  Center  v.  Bailey,  2774. 
Lincoln  &  B.  H.  R.  R.  Co.  v.  Suth- 
erland,  4279. 
Lincoln   v.    McLaughlin,   1085. 
v.  Smith,  1151,  3614. 
v.  Walker,    1362. 
Lincoln   St.   Ry.   v.   Cox,   3787. 
Lindberg  v.  Chi.   C.  Ry.,  4144,  4149, 

4181. 
Lindle  v.  Commonwealth,  4323. 
Lindblom   v.    Ramsey,   2299. 
Lindeman  v.  Fry,  3436. 
Linden    Steel    Co.    v.    Rough    Rum 

Mfg.    Co.,    3735. 
Lindsay  v.  Gunning,  3735. 
v.  Lindsay,    616. 
v.  State,    55. 
v.  Kansas  R.  R.,  299. 
Lindsley   v.    Chi.,    M.   &   St.    P.    R. 

Co.,  1721,  1736. 
Line  v.  State,  2571,  4321,  4686. 
Linehan  v.  State,  4546. 
Liner  v.  State,  2697,  2904,  2920,  4459, 

4475. 
Linton    v.    State,    4508. 
Lipperd  v.  Edwards,  1074. 
Lipscomb   v.    Shofner,    1263. 

v.  State,     4351,     4447,    4460,    4686, 
4724,  4544. 
Lister  v.  McKee,  3524,  3606. 
Litchfield   v.   Hutchinson,   1109. 
Litchfield    C.    Co.    v.    Taylor,    1398, 

1947,    2126. 
Liter  v.   Ozokerite   Min.   Co.,   317. 
Little  v.    Keon,  143. 
v.  McGuire,  3841. 
v.  Mimson,   4158. 
v.  Phoenix   Ins.,   1163. 
v.  Ridgeway,  4158. 
v.  Sup.      R.     T.      Ry.,    378,    3323, 

3360,    3385,   4172. 
v.  Tingle,  883. 
v.  Woodworth,  2274. 
Littlejohn  v.  Arbogast,  3323. 
Little  Rock  &  Ft.  S.  Ry.  v.  Blewitt, 
1911. 
v.  Cavaness,    1352. 
v.  Pankhurst,  1352. 
Little   Rock  &   H.    S.   W.    R.    R,   v. 
McQueeney,   1941,   1945. 


TABLE  OF  CASES  CITED. 


lxmrj 


[beferences  are  to  sections.] 


Little   Rock  T.    &  El.   Co.   v.   Mor- 
rison, 4163. 
Little  Rock  T.  &  E.  Ry.  v.  Trainer, 

2059. 
Littleton    v.    State,   2648,    4462. 
Littleton     Sav.     Bank     v.     Osceola 

Land   Co.,   293. 
Litzelman   v.   Howell,  159. 
Livingston    v.    Burroughs,    1270. 
v.  Stevens,  1311,  1312,  1319. 
v.  Strong,  1102. 
v.  Wabash    R.,    1958,    4014. 
Liverpool   &   L.    G.    L.    Ins.   Co.   v. 
Ende,  330. 
v.    Tillis,    1158. 
Lloyd  v.   Matthews,  2418. 
v.  Railroad   Co.,  4075. 
v.  Ry.    Co.,    4172. 
Loan  v.  Hiney,  1225. 
L.   Assn.   of  Am.   v.   Wallar,  1207. 
Locher  v.  Kluga,  3612. 
Locke  v.  Georgia  Home  Ins.,  1174. 
v.  Merchants  Bank,  269. 
v.  St.  Paul,  etc.,  1973. 
Locke  &  Ellison  v.   Lyon  Medicine 

Co.,    3478. 
Lockenour  v.  Sides,  1263. 
Lockett  v.  State,  479S. 
Lockhart  v.  State,  4787. 

v.  Lichtenthaler,   1677. 
Lockport  v.   Licht,   3943. 
Lockwood  v.  Thunder  Bay,  etc.,  1227. 
Lodge  v.  Hampton,  2297. 

v.  State,    2684,    4459. 
Loeffner  v.   State,  4407. 
Lofton   v.    State,  4724. 
Log  Owners  Booming  Co.  v.  Hub- 
bell,  3708. 
Logan  v.   Field,   265. 

v.  Met.    St.    Ry.,    364,    370,    400, 

2012,    2020,    2031,    4127. 
v.  Waytag,  1279. 
Logansport  v.  Dicks,  1625. 
Logg  v.  People,  352. 
Logsdon  v.    Commonwealth,  3133. 
Lombar  v.   East  Tawas,   1636. 
Lombard  v.   Holdman,  307. 

v.  Rd.    Co.,    1554. 
Lomeland    v.    St.    Paul,    M.    &    M. 

Ry.,   3541. 
Lommen    v.    Minn.    Gas   Light   Co., 

60. 
London   G.    &  A.   Co.   v.   Horn,   762. 
Lonerg-an    v.    Stewart,    637. 
Long  v.    Boe,  774. 
v.  Doxey,    360. 
v.  Long,    316. 
v.  Morrison,  3588. 
v.  N.  Y.   C.  R.  Co.,  1713. 
v.  Osborn,  3419. 
v.  P.    Rd.    Co.,    1556. 
v.  State,  11  Pla.  295,  4776. 
v.  State.  42    Fla.    612,    2444,    2637, 

4360,  4378,  4423,  4811,  4812. 
v.  State,  44    Fla.    134,    4770,   4782. 


Long  v.  State,  Ga.,  224. 

v.  State,  56  Ind.  182,  241. 

v.  State,  95    Ind.    481,    2625. 

v.  State,    Neb.,    202,    2637,    3304, 

3321,  4335,  4358,  4491. 
v.  S.    Ry.,    1971. 
Lonabaugh  v.  Ry.  Co.,  1994. 
Longan    v.    Weltmer,   341,    393,  1294. 
Longino  v.  Delta  Bank,  565. 
Longley     v.     Commonwealth,     2472, 
2475,     2494,     2507,     2606,     2613, 
2617,     2671,     2675,     2708,     2710, 
2995,  3020,  3076. 
Loomis  v.    Bass,   285. 

v.  Youle,    2235. 
Looney   v.    People,    97. 
Loose  v.    State,  4499. 
Lopez   v.   State,   2497. 
Loss   v.   Wilkinson,    1074. 
Lord  v.   Defendorf,   536. 
v.  Wormwood,    2321. 
Lorenz  v.   U.   S.,  59. 
Lorts  v.  Wash,  4293. 
Lotz   v.   Briggs,   1040. 
Louchcine  v.  Strouse,  3323. 
Loucks   v.    R.   R.    Co.,   4090. 
Loudy   v.    Clark,   278. 
Loughlin  v.  Brassil,  1469. 
Louisiania  W.  E.  Ry.  v.  McDonald, 

3737. 
Louisville  v.  Bailey,  1648. 

v.  Boland,   294. 

v.  Keher,  771,   1627,   1667. 
Louisville     &     N.     R.     v.     Adams' 
Adm'r.,    3833. 

v.  Allen,     1409. 

v.  Baker,  1503. 

v.  Banks,    3761. 

v.  Board,   103. 

v.  Brinckerhoff,    1978. 

v.  Brooks,    3618. 

v.  Campbell,   1409. 

v.  Dalton,  4099. 

v.  Earl's    Adm'x.,    962. 

v.  Foley,    1521. 

v.  Fowler,    1827,    3999. 

v.  Fox,    3570. 

v.  Hall,  Ala.,  960,  3844,  3851. 

v.  Hall,  24  Ky.  L.  2487,  3598,  3852. 

v.  Hall,  115  Ky.  579,  3605. 

v.  Harrod,   771. 

v.  Hawkins.   1503. 

v.  Hicks,    1417. 

v.  Hiltner,  3594. 

v.  Hiltner,  960,  1336. 

v.  Jones,    3844,    3851,    391L 

v.  Kelly,  2068. 

v.  Kingman,   962. 

v.  Kuhn,    2028. 

v.  Logsdon,  3570,  3605. 

v.  Long,  962. 

v.  Lucas,    1337,    1882. 

v.  Mahn,  1836. 

v.  Malone,    4300. 

v.  Markee,   985,   3907,    4077. 


lxxxii 


TABLE  OF  CASES  CITED. 


[BEFEBENCES   ABE   TO   SECTIONS.] 


Louisville  &  N.  R.  v.  Mason,  3591. 
v.  McCoy,   962. 
V.  Miller,    2000,    4096. 
V.  Mitchell,    962. 
v.  Moore,    962. 
v.  Mothershed,  3871. 
v.  Neafus,  3505. 
v.  Northington,    3617. 
v.  Or,  121    Ala.    489,     4051,    4068, 

4073,  4077. 
v.  Orr,  Ind.,   3856. 
v.  Orr,    91    Ala.    554,    1503,    3590, 

3616. 
v.  Quick,   1778. 
v.  Roberts,    771. 
v.  Reese,  4096. 
v.  Robinson,  4037,  4051. 
v.  Ross,    1521. 
v.  Samuels'    Ex'rs.,   4099. 
v.  Saterwhite,   3618. 
v.  Shumaker's       Adm'x.,       1594, 

3829. 
v.  Smith,    1477,    1579,    1596. 
v.  Sullivan    T.     Co.,    1998,     4097, 

4110. 
v.  Taylor,  3505. 

v.  Thornton,  Ala.,  1854, 1959,  4015. 
v.  Thornton,  Ky.,  4021. 
v.  Tucker's  Adm'r.,  1528. 
v.  Trammell,    985. 
v.  Wade,    3860. 
v.  Whitman,  3585,  3755. 
v.  Williams,  1883. 
v.  Woods,   839,   3863. 
v.  York,   65. 
Louisville,    C.    &   L.    Ry.    v.    Case's 

Adm'r.,  3570,  3598. 
Lou.,  New  A.  &  Chi.  R.  R.  v.  Ader, 

4173. 
v.  Bryant,   4173. 
v.  Falvey,   127,   882,   917,   928,   930, 

4198. 
v.  Grantham,  353.  1962. 
v.  Jones,  915,  917. 
v.  Patchen,   1867,   4038,  4061. 
v.  Red,    259. 
v.  Shires,    3303,    3309. 
v.  Snyder,   2020. 
v.  Stommel,    3948. 
v.  Thompson,    1089. 
v.  Whitesell,  1965. 
v.  Wood,     146,     839,      1342,     1748, 

1768,    1779,    1784. 
Louisville  A.   &  P.  V.  Elec.  Ry.  v. 

Whipps,   3505. 
Louisville   &  C.  Rd.  Co.  v.  Brown- 
lee,   1720. 
Louisville    T.    R.    Co.    v.    Mask,    45. 
Louisville   Ry.   v.  Hoskins,   Adm'r., 

2110. 
v.  Meglemery,    2051,    2074. 
v.  Orr,    2958. 
v.  Whitehead,   126,   3372. 
v.  Wood,    2079. 


Lourance  v.   Goodwin,  1897. 
Loutham  v.   Miller,   3672. 
Love    v.    Anchor    Raisin    Vinyard 
Co.,   2140. 

v.  Hoss,    468. 

v.  Love,    3429. 

v.  Payne,  4224. 

v.  Vining,  2164. 
Lovelace   v.    Suter,  1109. 
Lovell  v.  Iron  Co.,  3835. 
Lovely  v.   Grand  Rapids  &  I.   Ry., 

367. 
Lovett   v.    City   of   Chicago,    897. 

v.  State,    2640,    2652,     3133,    3138, 
4443,    4711. 
Loving   v.    Dixon,    3598. 
Lowden  v.  Morrison,  203. 
Lowder    v.    Lowder,    4293. 
Lowe    v.    State,    2578,    4548. 

v.  State,    2648,    4441. 

v.  Massey,    371. 
Lowery  v.   Rowland,  2309,  3560. 

v.  State,  2912. 
Lowman  v.  Aubrey,  4220. 
Lownsdale,  et  ex.,  v.  Gray's  Habor 

B.  Co.,  869,  2359. 
Lowry  v.   Dillman,  608. 

v.  Megee,  629,   631. 
Lozano    v.    State,   2854. 
Luby   v.    State,   4357,   4365. 
Lucas   v.    State,  48. 

v.  Snyder,   629. 

v.  Taunton,  etc.  Rd.,  1811. 

v.  State,    (Nebr.),   56. 

v.  State,   892. 
Luckinbill  v.  State,  1919. 
Ludlow  v.   Yonkers,  930. 
Ludwick   v.    Com.,   1010. 
Ludwig  v.   Sager,  195,  200,  3966. 
Lueber  v.  State,  160. 
Luke  v.  Bruner,  105. 

v.  State,  4798. 
Lum  v.  Reed,  1040. 
Lumaghi  v.   Gardien,  169,  3744. 
Lumley  v.  Caswell,  1563. 
Lumsden    v.    Chi.    R.    I.    &   P.    Ry., 

1580,   1910. 
Lundvick  v.   Westchester  Fire  Ins. 

Co.,  3526. 
Lundy   v.   Pierson,   190. 
Lunsford  v.  Dietrich,  1271. 
Lundon  v.  Chicago,  3922. 
Lyon    &    Co.      v.      Culbertson,    637, 
3475. 

v.  Green,    286. 

v.  Merrick,  2321. 

v.  People,    68   111.   271,    2448. 

v.  People,    137    111.    602,    3114. 

v.   Red  Wing,   3942. 
Lytle  et  al  v.  Bank  of  Dothan,  483. 
Lytle  v.  Boyer,  157,  168. 
Lurssen  v.   Lloyd,  2194. 
Lusk  v.  Throop,  74,  75,  3369. 
Lycoming   Fire   Ins.    Co.    v.    Ward, 
54. 


TABLE  OF  CASES  CITED. 


lxxxiii 


[befebences  ake  to  sections.] 


Lycoming  Mut.   Ins.   Co.   v.    Sailer, 

3461. 
Lyle  v.  Gray,  3588. 

v.  State,    42. 
Lynch  v.   Bates,  335,  374,  2982,  3394. 

v.  Burns,    Tex.    Civ.    App.,    3504. 

v.  Peabody,  244. 

v.  People,  3088,   4377. 

v.  State,  9  Ind.  541,  2625. 

V.  State,      24      Tex.      App.      350, 
3122. 

v.  State,    41    Tex.    Cr.    App.    510, 
4324. 

v.  Waldwick,    1674. 
Lynde  v.  Williams,  449. 
Lynn    v.    People,    4620,    4738,    4743. 


Mabray  v.  Ross,  324. 
Mabry  v.  State,  3179. 
Maas  v.   Territory,  2574. 
Machader  v.  Williams,  1350. 
Mack  v.  S.  B.  R.  R.,  921. 

v.  State,  3223. 
Macon  Cons.  St.  Ry.  v.  Barnes,  370, 

892,   1759,   1839. 
Macon  Co.  Tel  Co.  v.  West,  1454. 
Macon  D.  &  S.  R.   v.  Moore,  1762. 
Macon  Ry.  &  L.  v.  Barnes,  2104. 
Maconnehey  v.  State,  2610. 
Maddox  v.  Maddox,  2401. 

v.  Morris,   309,   1344. 

v.  State,   2317. 
Madisonville  v.   Pemberton's  Adm., 

3918. 
Magahahy  v.   Magahahy,   1010. 
Magee    v.    North    Pac.    Coast    Ry., 
3912. 

v.  People,  3357. 
Magill  v.   Brown,  304. 
Magness  v.   State,  2450,  3179. 
Magnin  v.  Dinsmore,  1834. 
Magrane   v.    St.   L.    &   S.    Ry.,   3965, 

3988. 
Maguire  v.  Eichmeier,  4220. 

v.  R.  R.  Co.,  1683,  2068. 

V.  St.    L.    T.,    900,    2035. 
Mahaffrey     v.     Beach     Creek     Ry., 

3547. 
Maher  v.  People,  111.,  4699. 

v.  People,   Mich.,  4548. 

v.  Shenhall,   109. 
Maisenbacker  v.  Society  Concordia, 

945. 
Maitland  v.  Zanga,  142. 
Mallen  v.  Waldowski,  1911. 
Mallett  v.   People,  4526. 
Malone   v.   Areuds,   1044. 

v.  Gerth,  547. 

v.  State,    3185. 
Malott  v.   Crow,   980,   3609. 

v.  Hawkins,   1883,   4052. 

v.  Hood,  169,  414,   1522,   3882. 
Malloy  v.   Ry.   Co.,   2032. 


Manchester  Fire   Assur.    v.    Feibel- 

man,  1156,  1182. 
Manhattan  F.  Ins.  v.  Weill,  1173. 
Manhattan    L.    Ins.    v.    Bro-ughton, 

1207. 
Manion  v.  Flynn,   34. 
Manitowoc   Steam  Boiler  Works  v. 

Manitowoc  Glue  Co.,  3479. 
Manker  v.  W.  U.  Tel.,  2120. 
Mann  v.  Roberts,  2342. 

v.  Weiand,  2350. 
Manning    v.    Boston    El.    Ry.    Co., 
40. 

v.  School   District   No.   6   of   Ft. 
Atkinson,  3489. 

v.  State,  3012. 
Mannion  v.  Talbay,  3928. 
Manro   v.   Piatt,    4363. 
Mansfield  v.   Moore,  4151. 
Mansfield    v.    Morgan,    710. 
Mansur   v.    Haughey,    1146. 

v.  State,   1145. 
Mantonya  v.   Reilly,   144,   371. 
Marble    v.    Lypes,   4635. 
Marbourg  v.   Smith,  1263. 
Marbury  v.  Madison,  284. 
March  v.   Met.   L.  Ins.,  1192,   1194. 

v.  Walker,  780. 
Marcott  v.  M.   H.   &  O.  R.,   1970.' 
Marcus  v.  C.  D.  Loane  &  Co.,  1384. 

v.  Leake,  1315. 
Marden  v.  Campbell  P.   Co.,  294. 
Mareck  v.  Chicago,  3922. 
Marek     v.     State,     374. 
Marie  v.   Garrison,   681. 
Marietta  &  C.  Ry.  Co.  v.  Stephen- 
son, 1966. 
Marine  Co.  etc.  v.  Carver,  2213. 
Mariner  v.  Pettibone,  3339. 
Marion  v.  Great  Rep.  Ins.,  1163. 

v.  State,  2678,  4437. 
Marion  St.  R.  v.  Shaffer,  2068,  2069. 
Markey   v.   Louisiana  &  M.    R.    R., 

395,  396. 
Markham  v.  Navigation  Co.,  4159. 
Marlow  v.   State,   3126,  3128,  3135. 
Marks  &  Co.   v.   Hastings,   3715. 
Marq.    etc.    R.    v.    Kirkwood,    367, 

3310. 
Marsh  v.  N.  Y.  &  E.  R.,  4151. 
Marshall  v.  Adams,  118. 

v.  Hubbard,  1108. 

v.  John     Grosse     Clothing     Co., 
248. 

v.  Milwaukee  R.,  326. 

v.  State,  4367. 
Martens    v.    Pittock,    636. 
Martin   v.    Berens,   3371. 

v.  Bonsack,   1040. 

v.  Buffalo,  1087. 

v.  Capital  Ins.  Co.,  106. 

v.  Chambers,  249,  254. 

v.  C.    &   M.    Elect.    Ry.,   220   111., 
97,  309. 

v.  Columbia  G.  R.,  921. 


lxxxiv 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


Martin   v.    Commonwealth,    25   Ky. 
L.   1928,   4642. 
v.    Commonwealth,    93    Ky.    1S9, 

4761. 
V.  Courtney,   1295. 
v.  Curtis,  307. 

v.  Des  Moines  E.  L.  Co.,  3814. 
v.  Duncan,  3646. 
v.  Farmers'    Mut.    Ins.    Co.,    36, 

46. 
V.  Houck,  1285. 
v.    Johnson,   199,   4264. 
v.  Leslie,    3524,    3585,    4311. 
V.  Martin,  96. 
V.  People,   165. 
v.  People,  111.,  3303. 
V.  People,  Wis.,   3086. 
V.  Ray,   2328. 
v.  Ry.,    N.    Y.,    4153. 
v.  Ry.,  Texas,  1336. 
v.   St.   L.,  I.,   M.  &  S.  Ry.,  305. 
v.  St.  L.   S.  W.  Ry.,  3332. 
v.  State,    77    Ala.    1,    2986,    3072, 

3106. 
v.  State,  90  Ala.,  602,  4716. 
v.  State,  119  Ala.  1,  4615,  4646. 
v.    State,    Ga,   223. 
v.  State,  Neb.,  2664. 
'  v.  State,    38    Tex.    Cr.    App.    285, 
2860. 
v.  State,   40   Tex.    Cr.   App.    660, 

4621. 
v.  Town  of  Algona,  384. 
v.  T.  &  P.  Ry.,  4107,  4110. 
v.  W.  U.  R.,  2000. 
Martin  Co.  Min.  Co.  v.  Pel.,  309. 
Martinez  v.  State,  30  Tex.  Cr.  App. 
129,  2865,  2997,  3061. 
v.  State,   35   Tex.    Cr.   App.    386, 
3049. 
Marts  v.  State,  3121. 
Marvin  v.  Bowlby,  307. 
Marx    v.    Kilpatrick,    3335. 

v.  Leinkauff,    4097. 
Maryland-Knickerbocker      L.      Ins. 

Co.  v.  Peters,  1207. 
Mary   Lee   Coal   Co.   v.   Chambliss, 

3580. 
Marzen  v.  People,  2497,  4362,  4666. 
Mash  v.  People,  2802. 
Mashburn    &    Co.    v.    Dannenberg 

Co.,   3520. 
Mask  v.  State,  3116. 
Mason  v.   Alexander,  291. 
v.  Kellog,   118. 
v.   Southern  Ry.,  944. 
v.  State,    Ark.,    3211. 
v.  State,  'Ga.,   2552. 
Masonic    Ben.     Soc.    v.    Winthrop, 

1190. 
Masonic    Temp.    Co.   vs.    Com.,    295, 

326. 
Masterofsky  v.   Hellman,   4198. 
Masterson  v.  Bentley,  1333. 


Masterson   v.    The    Mayor,   etc.,   of 
Brooklyn,  746. 

v.  Transit  Co.,  2088,   4163. 
Matchett   v.    Cinn.   &   W.   Ry.   Co., 

1574. 
Matheny  v.  Stewart,  3514. 
Mather  v.  Butler  Co.,  795. 
Mathers  v.  Carter,  628. 

v.  Morris,  4252. 
Mathews  v.  Cedar  Rapids,  1543. 

v.  Granger,     66     111.     App.     121, 
4243. 

v.  Granger,  71  111.  App.  467. 

v.   Toledo,   4168. 
Mathis  v.  State,  So.,  62. 

V.  State,  Tex.,  3222. 
Mathley     v.     Commonwealth,    2569, 

2609. 
Matkins  v.   State,   Tex.,   587,  3202. 
Matson  v.   Ripley,   4241. 

V.  State,  241. 
Matter  of  Rose,  326. 
Mattheis  v.  Mazet,  775. 
Matthew  v.  Nance,  325. 
Matthews  v.   Cowan,   1126. 

v.  Daley  W.  M.  Co.,  308. 

v.  Granger,  3301. 

V.  Poythress,  2756. 

V.  Reinhardt,  187,  535,  1054,  1072. 
1119. 

V.  State,   Ala.,  4368. 

V.  State,  Neb.,  2920,  4326. 

V.  State,  Tex.,  3101,  4710,  4715. 

V.  Story,  329. 

v.  Warner,  974. 
Mattimore  v.  Erie  City,,  4151. 
Mattoon  Gas  L.  &  C.  Co.  v.  Dolan, 

3816. 
Mattson  v.  Minn.  &  N.  W.  Ry.,  214. 

v.  Qualey  Const.  Co.,  248. 
Mau  v.   Stoner,  281. 
Mauch  v.   Hartford,  1474. 
Mauck  v.  Brown,  281,  292. 

v.  State,  1142. 
Maugher  v.  State,  3009. 
Mauro  v.  Piatt,  384. 
Maxey  v.   State,  2524,  2808,  2828. 
Maxfield  v.   State,  2664,   2819,  4443. 
Maxon  v.   Gates,  295. 
Maxwell  v.   Brown   Shoe   Co.,   1111. 

v.  Durkin,  246. 

v.  Habel,  126,  130. 

v.  Kennedy,   811. 
May  v.  Dyer,  317. 

V.  Elam,  35. 

V.  I.   C.  R.,  256. 

V.  People,  2647,  2654,  4791. 
Maybury  v.  Rogers,  627. 
Maye  v.  Tappan,  4158. 
Mayer  v.  Gersbacher,  562. 

v.  Helland,  317. 

v.  Hornburger,  307. 

v.  Meyer,    3816. 

v.  Nichol,  1653. 


TABLE  OF  CASES  CITED 


lxxxv 


[BEFEBENCES  ABE  TO  SECTIONS.] 


Mayer     v.      Thompson-Hutchinson 
Bldg.  Co.,  4056. 

v.  Walter,  1^63. 

v.  Wilkins,   1059,  1091,  1092,  3631. 
Mayers  v.  Smith,  1222. 
Mayes  v.   Kenton,  3407. 
Maynard     &    Bradford    v.    Vinton, 
2395. 

v.  Richards,   12. 

v.  S.   etc.    Rd.  Co.,  1730. 

v.  Tyler,  2409,  4294,  4298,  4306. 

v.  Vinton,  3373. 
Mayo  v.  James,  290. 

v.  Tudor's  Heirs,  3409. 

v.  Wright,  221. 
Mayor  v.  Dodd,  1612. 

v.  Hill,  1652. 

v.  Mead,  355. 

v.  Sheffield,  1630. 
Mays  v.  Lewis,  275. 
McAdams  v.  People,  326. 
McAdory    v.    L.    &    N.    R.    R.,    985, 

3590. 
McAfee  v.  Dix,  314. 
McAleer   v.    State,    4560,    4591,    4592, 

4775. 
McAlister  v.  State,  4474. 
McAllister  v.  Albany,  1627. 

v.  State,  4443,  4444. 
McAlpine  v.   Hedges,  1251. 

v.  State,  2789,  4509. 
McAmore  v.  Wiley,  3343. 
McAnnally   v.   State,   4635. 
McArthur  v.  Starrett,  299. 
McArthur  Bros.  Co.   v.  Nordstrom, 

3764. 
McAvoy  v.  Wright,  830. 
McBean  v.  State,  9L 
McBee  v.  Bowman,  3336. 
McBeen  v.  Reed,   3643. 
McBride  v.  Banguss,  357,  2374. 

v.  Commonwealth,     Bush,     Ky., 
3228. 

v.  Commonwealth,     Va.,     4356. 

v.  Des   Moines  City  Ry.  4174. 

v.  Wallace,  139. 
McCaa  v.  State,  2858. 
McCaleb    v.    Coon    Run    Drainage 

District,  3562. 
McCall  v.  Phoenix  etc.,  1173. 
McCandless  v.  McWha,  1289. 

v.  R.  R.  Co.,  1993. 

v.  State,  471:'. 
McCann  v.  Tiilinghast,  1374. 
McCarde  v.  Barricklow,  454. 
McCardle  v.  McGinley,  1263. 
McCarm  V.   Aetna  Ins.,   1157. 
McCarthy   v.    Commonwealth,    2583. 

v.  Harris.   2161. 

v.  Kitchen,  1279. 
McCartney  v.  Auer,  1047. 

v.  McMullen,   3742. 
McCarty  v.   Commonwealth,  2583. 

v.  Fremont,   528. 

v.  Kearnan,  612. 


McCarvel  v.  Phoenix  Ins.   Co.,   314. 
McCauley  v.  Weller,  b>6. 
McChesney  v.  Davis,  2223. 
McClalferty  v.  Philip,   1260. 
McClay  v.  Worrall,   1218,  36S9. 
McClellan     v.     State,     129    Ala.     80, 
4692. 

v.  State,  140  Ala.  99,  4335. 
McClennan  v.    Hein,   105,  3689. 

v.  State,  4796 

v.  State,  66,  345,  4433. 
McCleneghan    v.    Omaha   &   R.    V. 

R.,   3529,  4274,  4282. 
McClerkin  v.   State,  329. 
McClintock  v.  Crick,  2288. 
McClung  v.  McClung,  1007. 

v.  Kelley,  2247. 
McClure  v.  Mo.  R.  etc.  R.,  299. 

v.  Williams,   3323. 
McClurg  v.  Fryer,  2178. 
McCoggle  v.  State,  4473. 
McComas    v.    State,    Tex.,    3087. 
McComb  v.  Ins.  Co.,  218. 
McConnell  v.   State,  241. 
McCook  v.   McAdams,  1660. 
McCool  v.  Gr.  Rapids,  1685. 
McCorkle  v.   State,  280. 
McCormack  v.  State,  Ala.,  4775. 
McCormick  v.  State,  Neb.,  2479. 
McCormick    H.    Mach.    Co.    v.    Car- 
penter, 2155. 

v.  Sendzikowski,  2106. 

v.  Volkert,  665. 
McCoubrey    v.     German- Am.     Ins., 

1183. 
McCoy  v.  Able,  304. 

v.  C.   P.    R.,  4081. 

v.  Mayer,  309. 

V.  McCoy,  299. 

v.  Mil.    St.  Ry.,   3340. 

v.  People,   2626,   2641,   3062,   3086. 

v.  R.    &   D.     M.     Rd.     Co.,     1712, 
1730. 

v.  State,    Fla.,    2733,    2739,    2979, 
3003. 

v.  State,    Tex.,    2560,    2885. 
McCracken    v.    Smathers,    834,    1290, 
1291. 

v.  Town  of  Markesan,  3940. 
McCraw  v.   Old  N.    St.   Ins.,   1169. 
McCrea  v.    School   Dist.,  2432. 
McCready  v.  Phillips,  603. 
McCreery  v.  Green,  754. 
McCreerv's  Adm'x  v.  O.  R.  R.  Co., 

1525,  3803,   3816. 
McCrosky  v.  Leach,  542. 
McCue  v.   Commonwealth,    55,   2671. 
McCully  v.   Swackhamer,  1073. 
McCusker  v.    Mitchell,  2304. 
McCutcheon  v.  People,  3196. 
McDaniel  v.   State,  4745. 
McDaniels   v.    Bank,    675. 

v.  C.    &   N.    W.    Rd.   Co.,   1729. 
McDavitt  v.  Boyer,  4265. 
McDeed  v.  McDeed,  3623,  3326,  3335. 


Ixxxvi 


TABLE  OF  CASES  CITED. 


[BEFEBENCES   ABE   TO    SECTIONS.] 


McDermotr  v    Lycoming  Ins.,  1162. 

v  State,  30^9,  3102,  4544. 
McDonald  v.   City  El.  R.,  2072. 

v.  Metropolitan  St.  Ry.,  257. 

v.  Moore,    109. 

v.  Nalle,   505. 

v.  Nugent,  315. 

v.  Ry.,   116   N.   Y.   546,   4153. 

v.  Ry.,   167  N.  Y.   66,   250. 

v.  Ry.,    Tex.,    1336. 

v.  Smith,  1095,  3352. 

V.  Snellin?-,   1769. 

V.  Stark,   129. 

V.  State,  3359. 

V.  Tree,  3698. 
McDonnell   v.   Rifle  Boom  Co.,  S66, 

367. 
McDonough  v.  Gt.  N.  Ry.,  137S. 

v.  Williams,  3639. 
McDuff    v.    Detroit    Evening    Jour- 
nal, 97. 
McDuffee  v.  Bentley,  161. 
McElhanon  v.  McFerron,  4238. 
McElroy   v.   People,    365,    2539,    2934. 

4379. 
McElvaney  v.  Smith,  300. 
McElya  v.  Hill  et  ux:   1119. 
McEntire  v.  Brown,  3675. 
McFadden  v.  Sollitt,  250. 
McFadin  v.  Catron,  2416,  3680. 
McFarland  v.   People,   3339. 
McGarrahan  v.  N.   Y.,  N.   H.  &  H 

Ry.,  6. 
McGatrick  v.  Wason,  1376. 
McGaugh  v.   Holliday,  281,  282,  295 
McGavoch  v.  Woodlief,  596. 
McGee  v.  Bell,  3514. 

v.  Smitherman,  918,  1486,  3403. 

v.  St.  Ry.,  2084. 

v.  Tucker.   326. 

v.  White,  4180. 
McGhee  v.  Wells,  462. 
McGinnis  v.   Kempsey,  2373. 
McGinty  v.  Keokuk,  36,  1671. 
McGlory  v.   Lancaster,   3499. 
McGonn    v,    Campbell,    219. 
McGorrish  v.  Dwyer,  1241. 
McGrath  v.  Kennedy,  641. 
McGraw  v.   Lumber  Co.,    3765. 
McGrea  v.  McGrew,  3520. 
McGregor  v.   Armill,   204. 

v.  Reid,   258. 
McGrews  v.   McGrews,  42S6. 
McGuff  v.   State,   276,  4368. 
McGuire   v.    Hartford    F.    Ins.    Co., 

134. 
McHenry  Coal  Co.  v.   Sneddon,  962. 
McHughes  v.    State,   55. 
Mclntire   v.    Hussey,    43. 
Mcintosh  v.   Mcintosh,  90. 

v.  State,  2540,   3174. 
Mclver  v.   G.   S.   &  F.   R.   R.,  892. 
McKechmey    v.    Columbian    Power 

Co.,  248. 
McKee  v.  State,  1283,  2905. 


McKenna  v.  Noy,  403. 
McKeuzie   v.    Carmen,   1063,    1290. 
v.  City    of   Northneld,    3942. 
v.  Rothschild,   1112. 
McKeon  v.   Chi.,   M.   &  St.   P.   Ry., 

357,  4499. 
McKey   v.    Montana,    etc.,    Co.,    302. 
McKinn   v.    Whelan,    88,    96. 
McKinney  v.   Armstrong,  277. 
v.  Hartman,    3841. 
v.  Springer,  4248. 
v.  State,  2515,  2748. 
McKinstrey   v.    St.    L.    T.,    313,    899, 

3575. 
McKleroy  v.   State,   2648,   2708,   4420. 
McKnight  v.  United   States,   4779. 
McKown  v.   Furgason,   1097. 
McLachlan    v.    McLaughlin,    285. 
McLain  v.  St.  L.  &  S.  R.,  899,  2096, 
3575. 
v.  State,    4316,    4317,    4322. 
McLaney  v.   Co.   of  Marion,  479. 
McLaren  v.  D.  &  C.  R.  Co.,  1723. 

v.  Jones,   3627. 
McLaughlin  v.  Louisville  Elec.  Lgt. 
Co.,   47. 
v.  Philadelphia   T.   Co.,   1633. 
McLaury  v.   McGregor,   1685. 

v.  State,   66. 
McLean  v.    Capper,    270. 
McLean  County  Coal  Co.  v.   Long, 

3521. 
McLendon    v.    Am.    Freehold    Land 

Mortgage    Co.,    708. 
McLeroy   v.    State,    2689,    2692,    3118, 

4459,    4691. 
McLimans   v.    Lancaster,    316. 
McLin   v.    State,    3222,    4575. 
McMahon   v.   Sankey,   3687. 

v.  Supreme    T.    K.    Maccabees, 
1212. 
McManus  v.   Finan,  2321. 
McManus   v.    Swift,   326. 
McMarshall  v.  Chi.,  R.  I.  &  P.  Ry., 

4069. 
McMillan  v.   Bethold,   294. 

v.  Burlington,    etc.,    Rd.,    1354. 
v.  Lee,   1018. 

v.  Michigan,  etc.,  Rd.  Co.,   1695. 
1711. 
McMicken  v.  Safford,  621,  2159. 
McMinn   v.  Whelan,  4300. 
McMullen    v.    State,    4782. 
McNair  v.  Piatt,  179,  2209. 
McNair  v.  State,  4427,  4439. 
McNamara   v.   Harrison,   1215. 
v.  People,  4755. 
v.  Seaton,   585. 
v.  St.   L.   T.  Co.,  925. 
v.  State,   2670. 
McNamee  v.  Minke,  1263. 
McNaught   v.    Dodson,    745. 
MeNaughton    v.    Smith,    3654. 
McNaughton's    Case,   4800. 
McNeill   v.   State,   2958,   3072,   3096. 


TABLE  OF  CASES  CITED. 


lxxxvii 


[BEFEBENCES    ABE    TO    SECTIONS.] 


McNevins   v.    Lowe,    1289. 
McNish    v.    State,    Fla.,  36   So.    176, 
33. 

v.  State,    Fla.,    34    So.    219,    4568. 
McNulta   v.    Jenkins,   4167,    4169. 

v.  Lockridge,     1338,     1345,     1S66, 
1949. 
McPadden   v.    N.   C.   Rd.,   1748. 
McPherrin   v.   Jones,   344,   3323. 
McPherson    et    al.    v.    Commercial 
Natl.  Bnk.,  338. 

v.  Runyon,    1263. 

v.  State,   3119. 
McQueen    v.     State,     103     Ala.     12, 
3009,    4723. 

v.  State,   108  Ala.  54,  4391. 

v.  State,  Ind.,  2484. 
McQuilken   v.   Cent.,  etc.,  Co.,   1347. 
McQuillan  v.   City   of  Seattle,   1347. 
McQuirk  v.   State,  4522. 
McRae  v.   Grand   Rapids  L.  R.  D., 
265. 

v.  Laurence,  355. 
McReynolds   v.   B.    &    O.    Ry.,   3559. 
McVay    v.    State,    Miss.,    2488,    2544. 
McVey   v.    St.    Clair  Co.,   1377,    1385. 
1441,    1472,    3803,    3807,    3816. 

v.  State,  2637,  2646. 
McVicker  v.    Conkle,   4484. 
McWhirter  v.   Crawford,  316. 
McWhorter  v.   Bluenthal,  4215. 
McWilliams  v.  Bragg,  942,  964. 

v.  Hoben,  1262. 
Mead  v.   McGraw,   346,  349. 

v.  Munson,    2147. 

v.  Rutledge,    3515. 

v.  State,    2928,    3210. 

v.  Thompson,   1331. 
Meadows  v.  Hawkeye  Ins.  Co.,  109, 

218. 
Mears  v.   Gage,   Mo.   App.,  1089. 

v.  Humboldt  Ins.  Co.,  3666. 
Meaux  v.   Whitehall,  49. 
Mechanics'    Bank   v.    Bank   of  Co- 
lumbia,  1374. 

v.  Trans.    Co.,    1742. 
Mechanicsburg  v.   Meredith,   1635. 
Mechanics'   Ins.  Co.  v.  Hodge,  1170, 

3660. 
Medlin   v.   Wilkins,   3961. 
Meek  v.  Parker,   3735. 
Meeker  v.  Boylan,  2386. 

v.  Meeker,    614. 

v.  Meeker,   2389. 
Meekins   v.    Norfolk   &  S.   R.,   3617. 
Meeks  v.   State,   Ga.,  65. 
Meerschat  v.    State,  3229. 
Meffert  v.   Medical   Board,  2432. 
Mefford   v.    Sell,   352. 
Mehan  v.   State,   3187. 
Meidel   v.    Anthis,    3524. 
Meikel   v.   Gr.    Sav.   Fund,   295. 
Meiners  v.  St.  Louis,  3918. 
Meinholz    v.    Grodt,    3735. 


Melerup  v.  Travel  Ins.   Co.,  36. 
Mellen  v.  Hamilton  Fire  Ins.,  1174. 
Melton  v.  State,  3225. 
Memphis   &  C.    R.    v.    Martin,   1868, 

1869,   1881,   1960,   4026. 
Memphis   &   C.    R.    Co.   v.    Reeves, 

1691,    1724. 
Memphis   St.   Ry.   v.   Haynes,   2081, 
2100,    2109,    4117,    4163,    4178. 

v.  Newman,  2072. 

v.  Shaw,    2062. 

v.  Wilson,   2100. 
Mendenhall    v.    Stewart,    338,    1098, 

1120. 
Menkins  v.  Lightner,  612,  2371,  2378. 

v.  Watson,    485. 
Melzer  v.  Car  Co.,  1575. 
Mercer    v.    State,    Fla.,    2736,    3133, 
4711. 

v.  State,   Tex.,   2803. 

v.  Wright,    3323,    3324. 
Merchants  D.   T.   Co.   v.  Comforth, 

1726. 
Merchant  &  M.  Trans.  Co.  v.  Story, 

3999. 
Merchants'   &   Planters'   Oil  Co.   v. 
Burns,    3610. 

v.  Burrow,   3413. 
Merchants'     Disp.     Co.     V.     Smith, 

1708. 
Merchants'    Loan    &    Trust   Co.    v. 

Lamson,  568. 
Merchants'   Mut.   Ins.  v.   La  Croix, 

1167. 
Mercher  v.   Ry.,  4151. 
Meredith  v.  People,  84. 

v.  State,   4551. 
Mergentheim  v.   State,  86,  224. 
Meriwether  v.    Smith,   643. 
Merk  v.   Gelzhaenser,  2289. 
Mernin    v.    Cory,    1302. 
Merrell   v.   Dudley,  1271. 
Merrielees  v.  W.    R.,  882. 
Merrill  v.   City  of  St.   L.,   517. 

v.  Dei-ring,    326. 

v.  Hole,   4214. 

v.  Merrill,    3646. 

v.  Nary,  215. 

v.  State,   4686. 
Merritt  v.  Boyden,  504,  508. 

v.  Dewey,    4220. 

V.  Merritt,    4462. 

v.  State,  3372. 
Merwin  v.  Morris,  432.  437,  448,  46C. 
Meserve  v.   Folsom,   218. 
Meshek   case,    2815. 
Messer  v.    State,    3103. 
Messman  v.    Ihlenfeldt,   1280. 
Mester    v.    Wirest,    1354. 
Metcalf  v.   Lowenstein,   300. 

v.  Nystedt,  3769. 
Metcalfe  v.  Branson,  3620. 

v.  Commonwealth,    3038. 

v.  Lowenstein,   998. 
Methard  v.  State,  4564. 


lxxxviii 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


Metropolitan  Acc't   Ass'n   v.    Froi- 

land,   3678. 
Metropolitan    Bank    v.    Merchants' 

Bank,   506. 
Metropolitan   Life   Ins.   Co.   v.   Mc- 

Kenna,    3674. 
Metropolitan    Ry.    Co.    v.    Jackson, 
249. 
v.  Snashall,  2069. 
Met.  St.  Ry.  v.  Agnew,  2104. 

v.  Johnson,    242,    244,    951,    2104. 
v.  Powell,  242. 
v.  Rouch,  2092,  2100,   4164. 
Metropolitan  Supply  Co.  v.  Garden 
City   Banking  Co.,   318,   3457. 
Met.    West    Side    El.    Ry.    v.    Mc- 
Donough,    4118. 
v.  Stickney,   841,   3555,  3562,  3563. 
v.  White,    3563. 
Mettler  v.   People,  3299. 
Metz    v.    State,    180,    661,    2555,    2559, 
2882,     3629,     4775,     4509,     4564, 
4783. 
Metzger  v.    Gochrein,   3658. 

v.  State,   4367. 
Metzler  v.   McKenzie,  1376. 
Mew  v.   C.   &  S.   Ry.,   944. 
Mewhirter  v.   Hatten,   3588. 
Mexican  Cent.  R.  R.  v.  Lauricella, 

2029. 
Meyer   v.   Boepple   B.   Co.,   3774. 
v.  Button   Co.,   3416. 
v.  Cadwalader,  55. 
v.  Hafemeister,  688,  3335. 
v.  Hartman,    628. 
v.  Ins.   Co.,  3668. 
V.  Krohn,  2211. 
v.  Mead,   353,  355. 
V.  M.  E.  Ry.  &  L.  Co.,  364. 

4118,    4499. 
v.  Meyer,   126,  3815. 
v.  Morgan,    484. 
v.  Peck,    1699. 
v.  Reimer,   3634. 

v.  Standard  Tel.,   875,  2311,   3560. 
v.  Yesser,    1115. 
Meyer  Bros.   v.   McMahan,  3358. 
Meyers  v.  Clark,  4245. 
v.  Moore,    4105. 
v.  Ry.    Co.,    4168. 
Michael  v.  Bacon,  590. 
Michaels    v.    N.   Y.    Cent.    Rd.    Co., 

1708. 
Mich.    C.    R.    R.   v.    Carrow,    1835. 
v.  Phillips,   1127,   2330. 
v.  Smithson,  1504. 
Mich.  Mut.  L.  Ins.  v.  Powers,  1168. 
Mich.   So.   &  N.  I.  R.  R.  v.   O'Con- 
nor,   3983. 
v.  Schurtz,   1692. 
Mickle   v.    State,    4307. 
Micoff  v.  Dudley,  4228. 
Middler  v.  Lose,  297. 
Miers  v.   State,  4325. 
Mighell  v.   Stone,  103,  129. 


Miles  v.  James,  1330. 

v.  Lefi,    1305. 

v.  Linnell,   2178. 

v.  State,    Ala.,    4511. 

v.  State,   Ga.,   2444. 

v.  Walker,    1267. 
Miliken  v.  Huber,  287. 
Millard   v.    State,   2852. 
Mill  Co.  v.   Morrissey,  3612. 
Miller  v.   Ballard,  678,   679. 

v.  Balthasser,    331,    352,    2508. 

v.  Board  of,  etc.,  486. 

v.  Boone   County,  9i,6. 

v.  Clay,    2298. 

v.  Craig,   1102. 

v.  Davis  &  McKinney,  3499. 

v.  Ditch    Co.,    4276. 

v.  Dumon,   1347. 

v.  Firney    618. 

v.  Goddard,  722. 

v.  Hampton,   158, 

v.  Hardin,   1035. 

v.  Hartford    Ins.    Co.,    109. 

v.  John,    300,    355. 

v.  Johnson,    2282. 

v.  Jones,    286. 

v.  Kirby,  165,  1074,  1078,  22tf8, 
3709. 

v.  L.   J.   Rd.,  455. 

v.  Larned,   4217. 

v.  Lockwood,   1321. 

v.  Mabon,   278. 

v.  McKinney,   173. 

v.  McLagan,    606. 

v.  McMannis,  706. 

v.  McNair^    542. 

v.  Manis,    646. 

v.  Mariners'    Church,    795. 

v.  Miller,    728. 

v.  People,  342,  373,  2539,  2654, 
2738,    4443. 

v.  Schakleford,   274. 

v.  So.   Ry.,   945,   1770,   1822. 

v.  State,    54    Ala.    155,    442,    3081. 

v.  State,  107  Ala.  40,  2470,  2533, 
2641,  2986,  3072,  3101,  3106, 
4340,  4426,  4546,  4615.  4691, 
4693. 

v.  State,  Ind.,  4746. 

v.  State,     Wis.,     3327. 

v.  Wild   Cat    Gravel   Road   Co., 
47. 
Milligan  v.   Ry.,   352. 
Milliken  v.    Selve,   35S8. 
Milling  Co.   v.  Walsh,  352. 
Millner  v.    Eglin,    3363. 
Mills   v.   Com.,    278. 

V.  Louisville  &  N.  R.,  4109. 

v.  Simmons,  305. 

v.  State,   2938. 
Milmo   v.    Adams,    917. 
Milne  v.   Walker,   1543. 
Milton    v.    Hunter,    2369. 

v.  State,  2990,   3080. 


TABLE  OF  CASES  CITED. 


lxxxix 


[references  are  to  sections.] 


Milw.    &    St.    P.    Ry.    v.    Kellogg, 
1769. 
v.  Smith,  1695,  1702. 
Milwaukee    Har.     Co.    v.    Tysnish, 

309. 
Mimms  v.    State,   2913. 
Mims   v.    State,    Ala.,   2697,   3359. 

v.  State,  Fla.,  4786. 
Minden  v.  Vedene,  122. 
Miner  v.   People,    2789. 
Minich  v.  People,  344,  4443. 
Minneapolis    v.    Wilkin,    282. 
Minthon  v.  Lewis,  86,  88. 
Mirick  v.   Hoppin,  1245. 
Mishler   v.    Baumgardner,    143. 
Mississippi  C.   O.   Co.   v.   Ellis,  1534. 
Missouri    &   I.    C.    Co.    v.    Schwalb, 

1399,    3778. 
Missouri     Furnace    Co.     v.    Abend, 

1582,  3827. 
Missouri,    K.    &    T.    Ry.    v.    Avery, 
1539. 

v.  Avis,    1813. 

v.  Baker,    3842,    3881. 

v.  Blackman,    1498. 

v.  Bodie,  1536,   3869. 

v.  Box,  1510. 

v.  Carter,    1767,   4099. 

v.  Chittim,    782,   1731. 

v.  Cox.   3898. 

v.  Crowder,    1378,    1507,    1577. 

v.  Ever,    4051. 

v.  Flood,   928,   1767,  3569. 

v.  Follin,   3S69,    3887. 

v.  Foster,    1763. 

v.  Garrett,   3529. 

v.  Gordon,  1378. 

v.  Hannig,  1459,  1498,  1562,  3568, 
3590,  3597,  3813,  3820,  3872, 
3886,    3898. 

V.  Harrison,  1763. 

v.  Hawk,   1607. 

v.  Hay,    917. 

v.  Hoskins,  1518. 

v.  Huff,   3973. 

v.  Jones,  1481,  1529. 

v.  Keefe,   1526. 

v.  Kemp,  4007. 

v.  Mayneld,   3869. 

v.  Mazzie,  1703. 

V.  McGlamory,  961,  1800,  1907, 
2103. 

v.  Merrill,    4179. 

v.  Milam,    1509. 

v.  Miller,  1806. 

v.  Mills,    3972. 

v.  Mitchell,   1780,  4099. 

v.  Nesbit,   3590. 

v.  O'Connor,    1533. 

v.  Oslin,    4074. 

v.  Owens,   1531. 

v.  Parrott,    1593. 

v.  Pawkett,   3869. 

v.  Rogers,    1487,   2103,    3908,   4074. 

■"■.  Russell,   4098. 


Missouri,   K.  &  T.  Ry.   v.   Scarbor- 
ough,  1780. 

v.  Schilling,  928,  1570. 

v.  Scofield,    4098. 

v.  Sherrill,    3987. 

v.  Stafford,    4098. 

v.  Stinson,   3910. 

v.  Taff,  4060. 

v.  Vance,    3429. 

v.  Webb,   1972. 

v.  White,  1789. 

v.  Williams,  3773. 

v.  Wolf,  1780,  1791,   3986. 
Missouri   Pac.    R.    v.  Bartlett,    1999. 
4098,    4099. 

v.  Baxter,  3813. 

v.  Bridges,  4065. 

v.  Christman,   3773. 

v.  Fox,    311. 

v.  Hemmingway,    4279. 

V.  Holcbmb,   3969. 

v.  Kimball,   285. 

v.  Lee,  3869,  4031,  4065. 

v.  Lehmberg,   985,   1767,   3S86. 

v.  Lewis,   3787. 

v.  Lyde,    3598. 

v.  McFadden,   1692. 

v.  Somers,    3892. 

v.  Wortham,    1757. 

v.  Williams,  3809. 
Mitchell  v.   Andrews,  828,  1247. 

v.  Chambers,    446. 

v.  Deeds,    1108. 

v.  Ehle,   267. 

v.  Fond  du  Lac,   3383. 

v.  Hindman,  173,  355,  358,  33^0, 
3333,    3335,    3337. 

v.  Kingman,    618. 

v.  Maupin,  326. 

v.  Railroad,   1263. 

v.  Robinson,    1513. 

v.  Scott,    720. 

v.  State,    4615. 

v.  State,  2689,  2754,  3072,  3180, 
4328,  4435,  4459,  4462,  466S, 
4677,    4731. 

v.  Town  of  Fond  du  Lac,  ISO, 
4241. 

v.  U.   S.   Ex.   Co.,   1718. 

v.  Wab.   R.,   1502. 

v.  Zimmerman,    3598. 
Mitchum  v.   State,  3066. 
Mizell  v.   State,  4776. 
Mobile  &  O.  R.  R.  v.  Godfrey,  3S39. 

v.  Healy,    3808,    3866. 

v.  Klein,    3996. 

v.  Seales,    3755. 

v.  Thomas,  1437. 

v.  Tiernam,    4083. 
Mobile  Furniture  Co.  v.  Little,  743, 

3502. 
Mobile   &   M.    Ry.   v.   Smith,   1437. 
Mobile  J.  &  K.  C.  R.  v.  Bromberg, 

1477. 
Mock  v.  Los  A.  T.,  2086. 


xc 


TABLE  OF  CASES  CITED. 


[BEFEEENCES   ABE   TO   SECTIONS.] 


Moehn  v.  Moehn,  105. 
Mohon  v.  Harkreader,  4. 
Mohr   v.    Cochrane,    326. 

v.  Kinnare,   3440,   3441. 
Moline    Wagon    Co.     v.     Rummell, 

2211. 
Molony  v.   Dows,   292. 
Molyneaux  v.   Collier,  624. 
Momence   S.   Co.   v.    Turrell,    1392. 
Monaghan   v.    School   District,    1019. 
Monahan  v.  Keokuk,  etc.,  R.,  1987. 
Monatty  v.   Scott,   308. 
Moncrief  v.   State,  2460,  3247,  3248. 
Monell  v.   Burns,   716. 
Monihan   v.    State,   2997. 
Monogham   v.   Agri.   Fire  Ins.   Co., 

32. 
Monongahela  City  v.  Fischer,  1644, 

4151. 
Monroe  v.  Cannon,  4273. 
v.  Clifford,    3525. 
v.  State,   2720. 
Monroe  Bank  v.  Gifford,  117. 
Monsetts  v.  Can.  Pac.  R.,  315. 
Monson  v.  Lewis,  3347,  3439. 

v.  State,   4805. 
Montague  v.   Com.,   25. 

v.  State,    4477. 
Montgomery      v.      Commonwealth, 
4543. 
v.  Del.  Ins.,  1179,  1180. 
v.  Hickman,    1023. 
v.  Mo.    Pac.    Ry.,    341,    364,    1909, 

1924,   4047. 
v.  State,  Ind.,  4686. 
v.  State,  Ohio,   3261. 
v.  State,    Tex.    Cr.    App.,    65    S. 

W.    537,    4324. 
v.  State,    3    Tex.    Ct.    Rep.    497, 

4607. 
v.  Thomas,  281,  292. 
Montgomery   &   E.   Ry.   v.  Malette, 
92  Ala.   209,   742. 
v.  Stewart,    91   Ala.   421,    2958. 
Montgomery     &     W.     P.     Rd.     v. 
Moore.     51     Ala.     394,     1697, 
1700,    1701. 
Montgomery    C.    Co.    v.    Barringer, 

218    111.    327,    3769. 
Montgomery    St.     Ry.     v.     Shanks, 

139  Ala.  489,  4169. 
Montreal     River     Lumber     Co.     v. 

Mihills,    1109. 
Moody   v.    State,    Ga.,    188. 

v.  State,  Tex.,  3124. 
Moon   v.    Ionia,   1641. 
Mooney  v.    Brinkley,  2$5. 
v.  David,  3352. 
v.  Miller,    1104. 
v.  State,   Ala.,  2861,  4415. 
v.  State,   Tex.,   4324. 
v.  York  Iron  Co.,  720. 
Moore  v.  Barber  Asphalt  Pav.  Co., 
2257. 


Moore  v.   N.  C.  &  St.  L.  Ry.,  1829. 
3311. 
v.  Commonwealth,    2583. 
v.  Dixon,  4228. 
v.  Ellis,    3377. 
v.  Harvey,   1227. 

v.  Heineke,  4110,  4301,  4307,  4775. 
v.  Kalamazoo,    930,    1636. 
v.  Kendall,    4499. 
v.  K.  &  W.  Ry.,  4069. 
v.  Mich.    Rd.,   1708. 
v.  Mo.   K.   &  T.  Ry.   Co.,  1572. 
v.  Moore,   270. 
v.  Murdock,    642. 
v.  Page,    1086. 
v.  Platteville,    1641. 
v.  R.    R.,    4168. 
v.  Richmond,   1685. 
v.  Robinson,    4056. 
v.  St.    L.   T.   Co.,   1404. 
v.  Shields,    1283. 
v.  Spier,   4286. 

v.  State,  12  Ala.  764,  4686,  4687. 
v.  State,   18    Ala.    532,    4556. 
v.  State,   68  Ala.   23,   3355. 
v.  State,   Miss,   2687,   3023. 
v.  State,    39   Tex.    Cr.    App.    266, 

2670. 
v.  State,    44    Tex.    Cr.    App.    45, 

2518,  2913,  2914. 
v.  State,  Tex.  Cr.  App.,  33  S. 

W.  980,  180. 
v.  State,  Tex.  Cr.  App.,  96  S. 

W.    321,    3164. 
v.  Walker,   2326. 
Moorehead   v.    Gilmore,   2168. 
Moorer  v.    State,   2645. 
Moorman  v.  Quick,   2327. 
Moran    Bros.     Co.     v.     Snoqualime 
Falls   Power   Co.,    2275,    4248. 
Moratsky  v.  Wirth,  395. 
Morawitz  v.   State,  4485. 
Morbey    v.    C.    &    N.    W.    Ry.    Co., 

1552,    3874. 
Morehead  v.  State,  2645. 
Morely  v.   Dunbar,   3323. 
Morgan  v.   Arthurs,   3735. 
v.  Bogue,    1073. 
v.  Durfee,    534,    4709,   4757. 
v.  People,    2323. 
v.  Railroad,   1143. 
v.  Roberts,    143. 
v.  Smith,  1243. 
v.  State,   Ga.,   2532. 
v.  State,    Neb.,    2494,    2495,    2664, 

2678,   2720,   2999. 
v.  State,    48    Ohio    St.    371,    2652, 

2657,    4434. 
v.  State,    34    Tex.    Cr.    App.    222, 

4712,    4722. 
v.  State,    43   Tex.    Cr.    App.    543, 

3026. 
v.  Stone,   2792. 
v.  Taylor,  299. 
Morisette   v.    Can.    Pac.    Ry.,    300. 


TABLE  OF  CASES  CITED. 


XCl 


[BEFEBENCES   ABE   TO   SECTIONS.] 


Morley  v.    Carlson,    3424. 

v.  Dunbar,    3324. 

v.  Ins.   Co.,   3630,   3670. 
Morning  v.   Long,   500. 
Morrill    v.    Barnes,    1233. 
Morris   v.   Barnes,   709. 

v.  Chi.,     B.    &    Q.     R.,    907,    922, 
1958. 

v.  C.   U.   T.   Co.,   4124,  4138. 

v.  Coombs,    543. 

v.  Hubbard.    1306. 

v.  Morris,   309. 

v.  Piatt,    156. 

v.  Stanfield,    1386. 

v.  State,    Ala'.,    4351,    4448,    4798. 

v.  State,  101  Ind.  272,  3364,  4363. 

v.  Tillson,   1245. 

v.  Van  Voast,  3538. 
Morrison    v.    B.    C.    R.    &    N.    Ry., 
170,   4085. 

v.  Davis,    1691. 

V.  N.    Y.    El.    Ry.,    295. 

v.  State,  Ala.   4414. 

v.  State,   Pla.,  3106. 

v.  State,  Ind.,  244. 

v.  State,    Tex.,    2995. 

v.  Wilkersen,    1035. 

v.  Yancey,    3599. 
Morrow    v.     Nat.     M.     Ace.     Ass'n, 

395. 
Morse  v.   Chase,  268. 

v.  Morse,    7. 

v.  Sherman,  2247. 
Morton   v.    O'Conner,  3342. 
Mosaic    Tile    Co.    v.    Chiera,    2189. 
Mosby  v.   State,  3279,  3281. 
Mosely   v.    Com.,    20. 
Moses   v.    Allen,    662. 

v.  Arnold,    1227. 

v.  Boston  &   Me.    Rd.    Co.,   1741. 

v.  Loomis,  1232. 

v.  State,    2533. 
Moshier  v.    Kitchell,    201,    3744. 
Mote  v.   C.   &  N.   W.   Rd.   Co.,  1744. 

1836. 
Mott   v.  Dawson,   2289. 
Moulton  v.   Gibbs,  2508. 
Moultrie  v.  Tarpio,  307. 
Mound  City  Ins.  v.  Twining,  1169. 
Mountain    v.    Day,    3523. 
Mt.  Olive  Coal  Co.  v.  Rademacher, 
352,    360,    513,    990,    1345,    1682, 
3345. 
Mowry  v.    Raabe,   4266. 
Moyer   v.    Lederer,    1098,    3644. 
Moynahan    v.    Moore,    3659. 
Moynihan   v.    State,    2999. 
Mozee  v.    State,   4712. 
Muddy    Valley    M.    &    Mfg.    Co.    v. 

Parrish,   781. 
Mudgatt     v.     Texas     Tobacco     Co. 

763. 
Mueller   v.    Kuhn,    1239,    3693,   3702. 

v.  Rebhan,    105. 
Muely  v.   State,   3331,  4378. 


Muir  v.   Miller,   4308. 
Muldada   v.    Brooklyn,    146. 
Muldowney  v.  111.   Cent.  R.  R.,  156. 

v.  R.    R.    Co.,    3598. 
Muldraugh's    Hill,    C.    &    C.    T.    P. 

Co.   v.    Maupin,  3570,  3591. 
Mulhern   v.   Kennedy,   308. 
Muller  v.    S.   S.   P.   Ins.,   1162. 
Mullin  v.   Horseshoe  Co.,   1390. 

v.  St.    John,    3800. 

v.  Spongenberg,    531. 
Mulliner  v.  Bronson,  98. 
Mullinix  v.   The  People,   181,  2623. 
Mullins    v.    Cottrell,    4294.   " 

v.  People,    2436,    2677,    2714,    4320, 
4353. 
Muncie   Pulp   Co.    v.   Hacker,   912. 

v.  Keesling,    3300. 
Munger  v.   City,   1673. 

v.  Waterloo,    1641. 
Munich  v.   People,   346. 
Munro  v.  Pac.  Coast  D.   &  R.,   921, 

984. 
Munroe   v.    Snow,   596,   599. 
Munshower  v.  State,  128. 
Munson  v.   Herzog,   1240,  3697. 

v.  Nurdgett,   292. 
Murch  v.  Wright,   3636. 
Murdock    v.    Stillman,    3404. 
Muren    Coal    &   Ice   Co.    v.    Howell, 
414,    3983,    4278. 

Murphy  v.   Chi.,   etc.,  Rd.  Co.,  1347. 
v.  Curran,   3528. 
v.  Gould,  1218. 
v.  Johnson,    1021. 
v.  Martin,    12S5. 
v.  Murphy,    Ky„   4299. 
v.  Murphy,   S.   D.,   3500. 
v.  Ottenheimer,   111.,  474. 
v.  People,   19  111.   App.   125,  2937. 
v.  People,   37   111.   447,   38. 
v.  People,  90  111.  59,  1010. 
v.  St.   L.   T.,    899,   2054. 
v.  State,  Ala.,  52. 
v.  State,    Fla.,   4320,  4321,   4546. 
v.  State,    Ind.,    3023,    3070. 
v.  State,    Neb.,    2543,    2546,    29S6, 

3219,    3331. 
v.  State,  86  Wis.  626,  2710. 
v.  State,   108  Wis.   Ill,  2646,  2673. 
v.  Swadener,   2302. 
v.  Virgin,  370,   3306. 
v.  Waterhouse,    3337. 
v.  Weil,    270. 
v.  Wilson,    2735. 

Murray   v.    Beckwith,    2168,    2176. 

v.  Brooks,    471. 

v.  Com.,    191,    3109,    3381. 

v.  Lardner,    2174,    4216. 

v.  Mo.    Pac.    Ry.,    1397. 

v.  R.  P.   Smith  &   Sons,  3638. 

v.  Ry.   Co.,   4168,    4172. 
Musick   v.    People.    49. 
Musselman    v.    Williams,    309. 


XC11 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


Musser    v.    State,    2646,    2905,    2913, 

2914. 
Mutual    B.    L.    I.    v.    Martin,    1210, 
3684. 
v.  Simpson,   298. 
Mutual   L.   I.   Co.   v.   Baker,  2348. 
v.  Terry,    1207. 
v.  Thomas,    1161. 
Myatt    v.    Walker,    4290. 
Myer  v.    Hobbs,   1367. 

v.  Moon,    3384. 
Myers  v.  Concord  L.  Co.,  1402. 
v.  First   Nat.   Bk,   2180. 
v.    Gemmell,   1245. 
Myers  v.  Indianapolis  &  St.  L.  By. 
Co.,     3944,     4050,     4062,     4168, 
4181. 
v.  Kinzie,    3633. 
v.  Koening,    1046. 
v.  State,    407,     3506,     2507,    2682, 

2688,   2751,  4462. 
v.  State,    4580. 
Mynning  v.  By.,  4504. 


Nabours  v.  McCord,  2266. 
Nadau  v.  White,  B.  L.  Co.,  3814. 
Nagle  v.  Hake,  2123. 
Nail  v.   B.    B.    Co.,   1513. 
v.  Wabash   By.,   320. 
Napper  v.    Young,   4305. 
Nash  v.    Burns,   78. 
v.  Cooney,    356. 
v.  Norment,    1317. 
v.  State,   4728. 
Nashville   B.    Co.    v.    David,    1724. 
v.  Jones,    1556. 
v.  Norman,    2100,    2104,    4177. 
v.  Stevens,  974. 
Nat.   Bank  of  Boyertown  v.   Schu- 

felt,   36. 
Nat.   Bank   of  Com.  v.  Brunswick, 

1060. 
Natl.     Furnace     Co.     v.     Keystone 

Mfg.    Co.,    472. 
Nat.   Life  &  Trust  v.   Omans,  1201. 
Nat.   Bak.    of   Merrill   v.   111.    &   W. 

L.    Co.,   1131. 
Nat.   Ben.   Ass'n  of  Indianapolis  v. 

Grauman,   3679. 
Nat.   E.   &  S.   Co.   v.   Brady,   1384. 
Nat.     Bk.     of    Bepublic    v.    Young, 

4216. 
Nat.    State  Bank  v.   Delahaye,   644. 
Nat.   Syrup  Co.  v.  Carlson,   659. 
Nat.    T.   W.   v.   Ice   Mach.    Co.,   347, 

760. 
Naugher  v.   State,  105  Ala.  26,  3118, 
3165,    4543,    4546. 
v.  State,  116  Ala.  463,  2716,  4341. 
Nauman  v.  Oberle,  3639. 
Nave   v.    Bailroad,    4016. 
Nazum  v.   State,  2625. 
Neal  v.    Delaware,   27. 
v.  Bandall,   310. 


Nebecker  v.   Cutsinger,   2148. 
Nebraska  L.  &  F.  C.  v.  Trauerman, 

3483. 
Neb.    L.    &   T.    Co.    v.    Lincoln    B. 

Co.,  291. 
Neb.     Merc.    Mut.    Ins.    V.    Myers, 

3341. 
Nebraska  Mut.  Bond  Ass'n  v.  Klee, 

2151. 
Neb.  Nat.  Bk.  v.  Burke,  1126. 
Needham  v.  B.   B.,  1973. 
v.   L.   &  N.   B.,  S852. 
Nedig  v.   Cole,  221. 
Neely   v.    Detroit    S.    Co.,    735,    2357. 
Neely  v.  Feople,  56. 
Neese  v.  Farmers'  Ins.  Co.,  3526. 
Negley  v.  Cowel,  172. 
Nelms    v.    State,     Smedes     &     M.t 
4686. 
v.  State,    Miss.,  4321. 
Nels  v.   State,  156,  4374. 
Nelson  v.   Borchenius,   2294. 
v.  Dickson,    41. 
v.  Dodge,    211. 

v.  Equitable  Life  Insurance  So- 
ciety, 3676. 
v.  Harrington,    3721. 
v.  Jenkins,  1150,  1151. 
v.  L.  S.  &  M.  S.  By.,  911. 
v.  McLennan,    3372. 
v.  Smith,   1088. 
v.  State,   2904. 
v.  Thompson,   1243. 
v.  Woodruff,    1720. 
v.  Vorce,     363,    2533,    2540,     3306, 
3363,    4380. 
Nelson    Mfg.    Co.    v.    Shreve,    2139. 
Merrill  v.   S.  W.  Tel.   &  Telephone, 

2118. 
Nesbitt  v.   McGee,  625. 
Nesbit  v.  Crosby,  1336,  3950. 
Neslie   v.    Second,    etc.,   By.,   4153. 
Neufield  v.   Badiminski,  309. 
Neumeister   v.    Goddard,   2130. 
Neville  v.    State,   2446. 
Nevins  v.   Feoria,   1625. 
Nevling    v.    Commonwealth,    2705. 
New  v.  St.  L.  &  S.  By.,  932. 
New  Albany  G.  L.  Co.  v.  New  Al- 
bany,   322. 
New  Albany  &  S.  Bd.  Co.  v.  Camp- 
bell,   1742. 
Newberry  v.  Getzel,  326. 
v.  State,    Fla.,    89,    3323. 
v.  State,   Tex.,   3237. 
New    B.     Steamboat,    etc.,    Co.    v. 

Tiers,   1660. 
Newburger  v.   Campbell,  222. 
Newbury  v.   Getchell,  etc.,  Co.,  319. 

v.  Mfg.   Co.,  3809. 
Newcomb  v.   Newcomb,  4299. 

v.  N.   Y.    C.    &  H.    B.   B.,  1783. 
v.  Bailroad   Co.,   3429. 
Newell    v.    Bandall,    1099. 
v.  State,   3308. 


TABLE  OF  CASES  CITED. 


XClll 


[references  are  to  sections.] 


New    Harmony    Lodge    v.    R.    Co., 

13. 
New  J.    Ex.   Co.   v.    Nichols,   4151. 
New   J.    Steam    Man.    Co.    v.    Mer- 
chants'   Bk.,    1711. 
Newman  v.  Cincinnati,  299. 

v.  Dodson,   3590. 

V.  Hazelrigg,    3300,    3319,    4363. 

v.  Jenne,   2239. 

v.  McComas,  197. 
Newport  v.   State,  2868,  3070,   4548. 
Newport    N.    &    O.    P.    R.    &   E.    v. 

Bradford,  2083,  4161. 
News   v.    Butler,    134. 
Newson  v.  State,  2637,  2698. 
Newton  v.  Mut.  B.  L.  Ins.  Co.,  1207. 

v.  State,    Neb.,    3020. 

v.  State,  Tex.,  3281. 
N.  J.  Life  Ins.  Co.  v.  Baker,  163. 
N.    Y.    Cent.    Ins.    v.    Watson,    1174. 
N.  T.,  etc.,  Ry.  v.  Best  Ry.,  285. 
N.  Y.  C.  R.  R.,  In  re,  879. 

v.   Lockwood,   1712. 
N.  Y.  C.   &  St.   L.   Ry.   v.  Blumen- 
thal,  104,  4009. 

V.  Kistler,   1881,  4030. 
N.  Y.  &  Erie  R.  v.  Skinner,  4151. 
N.  Y.,  L.   E.   &  W.  R.  R.  v.  Estill, 

732,    783,    801. 
N.    Y.    Life    Ins.    Co.    v.    Clemmit, 
312. 

v.  Rilling,    1203. 
N.  Y.,  P.  &  N.  R.  v.  Thomas,  4543. 
N.  Y.   Store  v.   Thurmond,   298,  316. 
N.    Y.    Sec.    Co.    v.    Saratoga,    etc., 

Co.,  325. 
N.    Y.    V.    Z.    v.    Mut.    B.    L.    Ins., 

1207. 
Neyland  v.  State,  4641. 
Niagara    District     Ins.     v.     Lewis, 

1157. 
Niagara  Fire  Ins.  Co.  v.  Scammon, 

3678. 
Nicewander    v.     Nicewander,     2404, 

4299. 
Nichey  et  al.   v.   Steuder,  3332. 
Nicholas  v.   Kershner,  3365. 

v.  State,  4769. 
Nicholls  v.  Colwell,  258. 
Nicholous  v.   R.  R.   Co.,  3814. 
Nichols  v.  Baltimore,  etc.,  R.,  1961, 
4030,   4033,   4052. 

v.  Brabazon,   917,  964. 

v.  Chi.  G.  W.  R.,  3427. 

v.  Metzger,    84. 

v.  Michael,   1116. 

v.  Nichols,    134    Mo.    187,    3429. 

v.  R.   R.  Co.,  358S,  3598. 

v.  State,  11  Ala.  58,  4806. 

v.  State,  100  Ala.  23,  4448. 

v.  State,   Tex.,   3049. 

v.  Winfrey,   4709,    4757. 
Nicholson  v.  Coghill,  1263. 

v.  Combs,  507,   3433. 

v.  Donald,  236. 


Nicholson  v.  People,  58. 

v.  State,   2459,  2971,  4459. 
Nield  v.   Burton,  483. 
Nieman    y.    Schnitker,    4293,    4299. 
Niemetz    v.    St.    Louis,    etc.,    2333. 
Nightingale   v.    State,    2436. 
Niles  v.  Sprague,  176. 
Nite  v.   State,  327,  2918. 
Noble  v.  Cunningham,  488,  1845. 

v.  Epperly,   6   Ind.  414,   809,   2235. 

v.  State,    4642. 

v.  White,  1261,  1270,  1275. 
Noblett   v.   Bartsch,   3715. 
Noetling  v.   Wright,   1102. 
Nohrden    v.    Northeastern    R.,   4078. 
Nolan  v.  Johns,  295. 

V.  R.   R.   Co.,  2068. 

v.  Shickle,   4168. 
Nolen   v.    Palmer,   299. 
Nollen  v.  Wisner,  171. 
Nordan    v.    State,    20,    26. 
Norfolk  B.  S.  Co.  v.  Hight,  3S13. 
Norfolk  &  W.    Ry.  v.  Ampey,  3825. 

v.  Hoover,   3800. 

v.  Mann,    311,    1588,    3906. 

v.  Spencer's  Adm'x,  1360. 

v.  Wade,   3825. 
Normal   v.    Bright,    203. 
Norman   v.    Gen.    Ky.    Asylum,   316. 
Normile   v.   Wheeling   T.,    953,   2062. 
Norris   v.    Clinkscales,   4010. 

v.  Lichtenfield,  4151. 

v.  State,  2550,  4522. 

v.  Warner,  3598. 

v.  Whyte,    534. 
North  v.   State,  3355. 
North  Ala.  Ry.  v.  Mansell,  3851. 
N.  Alton  v.  Dorsett,  355. 
North  Am.  F.  Ins.  v.  Throop,  1176. 
North  British  Ins.  v.   Stieger,  1170. 
North   British   &   Mer.   Ins.    v.   Ed- 

mundson,  1158. 
North  Chi.  Elec.  Ry.   v.   Moosman, 
38. 

V.  Peusser,  2092,  4169. 
North   Chi.    Rolling   Mills   v.    John- 
son, 1428,   1554,   1581. 

v.  Monka,   128,   3769. 

v.  Morrissey,    3983,    4063. 
North  Chi.  St.   R.  Co.  v.  Anderson, 
232,    355,    380. 

v.  Balhatchett,  129. 

v.  Boyd,   1338. 

v.  Brodie,    360,    981. 

v.  Brown,  890,  2040. 

v.  Cook,  2039,   3598. 

v.  Cossar,  3595. 

V.  Cotton,    227,    232,    2020. 

V.  Dudgeon,    364,   4062. 

v.  Eldridge,  2072,  4117,  4145,  4177, 
4151. 

v.  Fitzgibbons,   343,    937,   3326. 

v.  Gastka,   355,   898,   1374. 

V.  Hutchinson,  413,  882,   3345. 

v.  Irwin,   3611,   3939,   4157,   4165. 


XC1V 


TABLE  OF  CASES  CITED. 


[REFERENCES   ABE   TO    SECTIONS.] 


North   Chi.    St.   R.  Co.  v.   Johnson, 
983. 
v.  Kaspers,  173,  200,  402. 
v.  Lehman,    3603. 
v.  Leonard,   234. 
v.  Miller,     938. 
v.  O'Donnell,   2028. 
v.  Pokley,    352,    1347,    3345,    3965. 

4121. 
v.  Rodert,  2018,  2508. 
v.  Schwartz,    2020. 
v.  Smadraff,      2012,      2092,      2100, 

4169,    4171,    4177. 
V.  Shreve,   350,  899,  903. 
v.  Southwick,   141,   236. 
v.  Welner,  309,  329,  368,  402,  3320. 
v.  Williams,  4168,  4181. 
v.  Wiswell,  4149. 
Northcoat    v.    Bachelder,    1395. 
Northern  Ala.   Ry.  v.  Mansell,  1437. 
Northern  Pac.  R.  R.  v.  Craft,  3940. 

v.  Herbert,  1574,  3810. 
Northern   S.   Co.   v.   Wangard,   3386. 
Northern  Tex.  T.  Co.  v.  Yates,  908. 
Northern      Traction      v.      Jameson, 

3598. 
North  Kankakee  St.  Ry.  v.  Blatch- 

ford,    126. 
North  Noonday  Min.  Co.  v.  Orient 

Min.    Co.,    2430. 
North   Pa.   R.   v.   Adams,   4211. 
N.  Peoria  v.  Rogers,  214. 
North  Texas  Con.  Co.  v.  Bostwick, 

1354. 
North  Vernon  v.  Voegeer,  4280. 
Northwestern     Ins.     v.     Adkinson, 

1157. 
Northwestern   L.    Ins.   Co.   v.   Mus- 
kegon  Bk.,    1198,   1206. 
Northwestern    Mas.    Aid.    Ass'n    v. 

Bodurtha,   3675. 
Northwestern    Mut.    L.    Ins.    Co.    v. 

Hazlett,    3679. 
Norton  v.  Brown,  424S. 

v.  N.  C.   R.,  1347,  1351,  1878,  1882, 

1910,  1911,  1912,  1951. 
v.  Paxton,   2416. 
v.  Railroad,   4036,   4052. 
v.  State,    243. 
v.  Volzke,  937,  1341,  1354. 
Norwich    Ins.    Soc.    v.    Oregon    R., 

1994. 
Norwood   v.    State,    3308,   4500. 
Novack  v.   M.   C.   R.   R.,  87. 
Nowlen  v.    Snow,   1103. 
Noyer   v.    Brand,    2137. 
Noyes   v.   Loving,   1227. 

v.  Smith,   1376. 
Nugent  v.   State,  2591. 
Nuldowney  v.  Ry.  Co.,  4305. 
Nutzel  v.   State,   3220. 
Nye  v.   People,   2626,   2627,  3027. 
Nye    &    Schneider    Co.    v.    Snyder, 
756. 


Oakland  &  Co.  v.   Fielding,  991. 
Oakley    v.    State,    4436,    4462,    4519. 
Oaman   v.   Winters,  823. 
Oates   V.    Bullock,   3719. 

v.  Met.    St.    Ry.,   4168. 
O'Beirne   case,   570. 
Oberdorfer      v.      Newberger,      2372, 

2393. 
Oberne  v.  O'Donnell,  3421,  3445. 
O'Brien   v.    Lacrosse,    149. 

v.  Palmer,    277. 

v.  State,   Ind.,   2793. 

v.  State,    Neb.,   2664,  2708. 

v.  State,    150. 
O'Callahan  v.    Bode,   84. 
Och  v.  Ry.  Co.,  1129,  3754. 
Ochs  v.   People,  4439,  4589. 
O'Connell  v.  Ry.  Co.,  1538. 
O'Connor  v.   Beckwith,   710. 

v.  Guthrie,    211. 

v.  Hartford    Fire    Ins.,    1157. 

V.  Hogan,    2353. 
Odell  v.   Burnham,  1251. 
O'Dell  v.   State,  2653. 
Oder   v.    Commonwealth,    3161. 
Odette  v.  State,  408. 
O'Donnell  v.  Armour,  358,  1347,  3333. 

v.  Lake  Shore  &  M.  S.  Ry.  Co., 
248. 

v.  MacVeagh,  248. 

v.  People,    4585. 

v.  Rodiger,   76  Ala.   222,  2958. 

v.  Rodiger,   76   Ala.  416,  4293. 

v.  Rosenthal,   1242. 

v.  Segar,    158. 

v.  Weiler,    35. 
Oelke   v.   Theis,   2138. 
O'Fallon    Coal    Co.    v.    Laquet,    980, 

3742. 
Offutt    v.    World's    Columbian    Ex- 
position,   248,    249,    3836,    3890. 
Ogden  v.  Claycomb,  526. 

v.  Kirby,  631,  2277. 
Ogdenburg    &   L.    C.    Rd.    v.    Pratt, 

1729. 
Ogletree  v.   State,  2636,  2645,  4556. 
O'Grady  v.  Julian,  743. 
O'Halloran   v.    Kingston,   1217,   1220. 
O'Hare  v.   C.   M.   &  N.   R.   R.   Co., 

57. 
Ohio   Farmers'   Ins.   v.    Vogel,    1160. 
Ohio  &  M.  Ry.  v.  Brown,  1772. 

v.  Crosby,    3588. 

v.  Kerr,    1117. 

v.  McDermott,    865. 

v.  Pearcy,    1574. 

v.  Porter,  178,  352,  360. 

v.  Shanefeet,    2002. 

v.  Stein,    1513. 

v.  Thillman,    2358. 

v.  Wangelin,  23S,  3609,  3612. 
Oinson   v.    Heritage,    1015. 
Olcese   v.   Mobile   F.    &  T.   Co.,   412.- 
Olde   v.    State,  4334. 


TABLE  OF  CASES  CITED. 


XCV 


[references  are  to  sections.] 


Oldenburg   v.    N.   Y.,   N.    H.    &   H. 

R.,  1919. 
Oldershaw  v.  Knoles,  4  111.  App.  63, 
3472. 
v.  Knoles,    6    111.    App.    325,    609. 
Olds  v.  State,   3086,  3096,  3106. 
C'Leary  v.  People,  4808. 

v.  Zindt,   963. 
Oleson  v.  Hendrickson,  254. 
Olive  v.  State,  Fla.,  2538. 

v.  State,   Neb.,   210. 
Oliver  v.   C.   N.   &  L.   R.,  1751. 
v.  Iowa  Cent.   Ry.,  4069. 
V.  Pate,   333. 
v.  State,  Ala.,  4665. 
v.  State,   Neb.,  3306. 
Olivier    v.    Houghton    Co.    St.    Ry. 

Co.,  35S0. 
Olsen    v.    Citizens'    Ry.,    2028,    2031, 
4130. 
v.  Kern,    1024. 
v.  Railway  Co.,  4055. 
Olsen  v.  Upsahl,  3470. 
Olson    v.    Chi.,    M.    &    St.    P.    Ry., 
1747. 
V.  Luck,    2112. 

v.  Oregon  S.   L.   R.,  1864,  1909. 
Olwell  v.   Skobis,  1342. 
Omaha   v.    Richards,   1617,   1656. 
Omaha    Belt     Ry.     v.    McDermott, 

3305,  3306,  3551. 
Omaha    Bottling     Co.     v.     Theiler, 

3787. 
Omaha  F.  &  Ex.  Assn.  v.  Mo.  Pac. 

R.,   2000,   4096. 
Omaha    Southern    Ry.     v.     Beeson, 

877,    2072,    4124,    4131. 
Omaha  St.  R.  Co.  v.  Craig,  44,  2041, 

2072,    3340. 
Omaha   &  Florence   Land   &  Trust 

Co.    v.    Hansen,    437. 
Omaha   &   R.   V.    R.    R.    v.    Brown, 

4282. 
O'Mara  v.  Hudson  R.  R.,  1877. 
Omer  v.    Commonwealth,   2988. 
Omslaer  v.   Traction   Co.,  4055. 
O'Neal  v.  Curry,  668. 

v.  Richardson,   2191. 
O'Neil  v.  Dry  Dock  B.  R.  Co.,  209. 
v.  Johnson,    1263. 
v.  Railway  Co.,  3870. 
O'Neill  v.  Blase,  827,  925,  1350. 

v.  C.  R.  I.  &  P.  R.  Co.,  3787. 
Orchardson  v.  Colfield,  4294. 
Oregon  &  C.  Rd.  v.  Potter,  2160. 
Orleans  v.   Perry,   1667. 
Orman  v.  State,  4653. 
O'Rourke    v.    Lewiston   D.    S.    Pub. 
Co.,  2295. 
v.  O'Rourke,   342. 
Orr  v.  Cedar  Rapids  &  M.  C.   Ry. 
Co.,   4177. 
v.  Farmers'    A.    W.    &    C.    Co., 

2249. 
v.  Gilbert,    3636. 


Orr  &  Lindsley  Shoe  Co.  v.  Frank- 
enthal,  541. 

v.  Skofield,  2294. 

v.  State,  Ala.,  2648. 

v.  State,   Miss.,   4445. 
Ortt  v.  M.  &  St.  L.  R.  Co.,  1701. 
Ortwein  v.   Com.,  4403. 
Osborn  v.  Adams,  2321. 

v.  State,   3355. 
Osborne   v.    Kline,    82. 

v.  Logus,    326. 

v.  McMasters,    2081. 

v.  Ratliffe,   1064. 

v.  State,   3158. 
Osborne  &  Co.   v.   Ringland  &  Co., 

480,   489. 
Osgood  v.  Chi.,  3554. 

v.  Los   Angeles   T.    Co.,   2028. 
O'Shields  v.  State,  212. 
Osner   v.    Zadek,   3784. 
Ostatag  v.   Taylor,  3702. 
Ostrander  v.   Scott,    675. 
Oswald  v.  Hutchinson,  2239. 
Otis  v.  Janesville,  2112. 
Otmer  v.   People,    3323. 
Otsego  Lake  v.    Kersten.  32. 
Ottawa  v.   Yentzer,   1149. 
Ottawa  Gas  L.  Co.  v.  Graham,  937. 
Ottawa,  O.  &  F.  R.   V.   Ry.  v.  Mc- 

Math,   262,   3473. 
Ottens  v.   Krug  Brewing  Co.,    1238. 
Otterbach    v.    Alexandria    Ry.,    325. 
Otto  v.  Braman,  4255. 
Ously  v.   Hardin,  2303. 
Outwrite  v.  Porter,  2171. 
Over  v.    Schiffling,   4512. 
Overton  v.  Rogers,  2540. 
Overtoom  v.  C.  E.  &  I.  R.  R.,  3323, 

4037. 
Oves  v.  Oglesby,  3735. 
Owen  v.  Owen,  155. 

v.  State,   4804. 
Owens   v.    People,   4774. 

v.  Ry.,    2036. 

v.  Weedman,  2326. 
Owensboro  R.   v.   Hill,  2079. 
Oxford  v.  McFarland,  731. 

v.  Peter,   1374. 
Oxley  v.  Cowerthawaite.  4245. 


Pace   v.   Commonwealth,   4748. 

Pace  v.    State,    2913. 

Pacific  Ex.  v.  Lasker  R.    E,    Assn., 

3536. 
Packer  v.   Hinkley,  etc.,  474- 
Packet  v.  Vandergrift,  4172. 
Padden  v.   Clark,  1250. 
Padfield  v.   People,   2536,    2566    4379. 
Padgett    v.    Jacobs,    358. 

v.  State,    310G,    3137,    4329,     4710, 
4711. 
Page    v.    Bettes,    3735. 

v.  Campbell,   2307. 

v.  Cole,   637. 


XCV1 


TABLE  OP  CASES  CITED. 


[REFERENCES  ABE  TO  SECTIONS.] 


Page  v.  Freeman,  524,  2735. 

v.  Parker,   831. 

v.  People,   295. 

v.  State,    4744. 
Pagels  v.   Meyer,  1428. 
Pahlman  v.   Taylor,  2204. 
Painter  v.    Munn,    544. 

v.  People,     544,    2446,    2638,    2654, 
2720. 

v.  State,  2822,  2823,  2872. 
Palmer  v.    Banfleld,  2273. 

v.  Circuit  Judge,   286. 

V.  C.   St.    L.   &   P.   R.,  2055. 

V.  Marshall,    2175. 

v.  Meriden    B.    Co.,    314. 

V.  N.    Y.   C.   &  H.   R.    R.,   1919. 

v.  People,   235. 

V.  Poor,    4219. 

v.  R.   R.  Co.,  4173. 

v.  State,    Neb.,    3244. 

v.  State,   Ohio,    55. 
Palmore   v.    State,    3119,   4733. 
Pancake   v.    State,    4198. 
Pangburn   v.    Bull,   1263. 
Panket   v.    Livermore,   1271. 
Pankey  v.   State,   3261. 
Pannell   v.    Com.,    4300. 
Panton   v.   People,  4620,   4699. 
Pardridge  v.  Cutler,  3471,  3768,  3769, 

4169. 
Paretti  v.  Rebenack,  1109. 
Parfltt  v.  Lawless,  4306. 
Parish   v.    State,    3134. 
Park   v.   O'Brien,   3950. 
Park  v.  School  Dist.,  2432. 
Parke  v.   State,  2861. 
Parker   v.    Amaxon   Ins.,   1163. 

v.  Daughtry,    182. 

v.  Fisher,    198. 

v.  Flag,    1708. 

v.  Huntington,  4311. 

v.  Jenkins,   3591. 

v.  Jones,    2323. 

v.  Piatt,    725. 

v.  Rd.,    1963,    1974. 

v.  State,  Ala.,  4725. 

v.  State,    Miss.,   3109. 

v.  State,   Neb.,   4750. 
Parkersberg    Indl.     Co.     v.    Shulz, 

3816. 
Parkham  v.  Daniel,  725. 
Parkhill  v.  Town  of  Brighton,  1671. 
Parkhurst  v.   Vail,   2185. 
Parkins  v.   Mo.   Pac.   R.,   327. 
Parks    v.     Laurens,    Cotton    Mills, 
1330. 
v.  Hampden,   851. 
v.  Ross,   247. 
v.  Steed,    718. 
Parliman  v.  Young,  179. 
Parlin  v.  Finfrouk,   3349. 
Parmelee  v.  Lowitz,  1690,  1706. 
Parmlee  v.   Adolph,   658. 

v.  Fischer,  1832. 
Parmly  v.  Head,  709. 


Parnell  v.   State,  375. 
Parris  v.  Thompson,  1091. 
Parrish   v.    State,   2598,   4417. 

v.  State,    Neb.,    2986,    310C. 
Parsons  v.   Hardy,  1723. 

V.  Lyman,    1362,    3752. 

v.  Parsons,    307. 

v.  Pendleton,   etc.,  2160. 

V.  People,    2566,    2626,    2646,    2712, 
4424. 

v.  State,   2583,   4400,    4402,    4417. 
Partlow  v.  I.  C.  R.,  1881,  4037,  4070. 
Pate  v.    State,   Ala.,   4340,  4436. 

v.  State,  S.   W.,  4518. 

v.  State,    Tex.,    3298. 
Patnode  v.  Westenhaver,  378. 
Patrick  v.  People,  2464. 

v.  State,  51. 
Patry  v.   Chi.    St.   P.   M.   &  O.   Ry., 

3586. 
Patterson    v.    Commonwealth,    4373. 

v.  O'Hara,   1238. 

v.  Rabb,    1205. 

v.  State,   Ga.,   4548. 

v.  State,    Miss.,   4724. 

v.  Triumph  Ins.,  1158. 
Pattison  v.  Kenkins,  1115. 
Patton  v.   Gates,   1026. 

v.  Navigation  Co.,  3365. 

v.  R.  R.  Co.,  41S0. 

v.  W.  N.  C.  R.  R.,  1479. 
Pauck  v.   St.  L.   Dressed  Beef  Co., 

1426. 
Paul  v.   Berry,  480. 

v.  Chi.,  M.  &  St.  P.  R.  R.,  4086. 

v.  Travelers'    Ins.    Co.,    3678. 
Pawley  v.  Swensen,  1390. 
Paxson  v.   Dean,   31,   829. 
Paxton  v.  Boyer,  526. 

V.  Knox,    327,    2407. 

v.  People,    3323. 

v.  Woodward,   263,   4266. 
Payne  v.    Mathius,  248. 

v.  Rd.    Co.,   389. 

v.  Smith,   1102,   1107. 

v.  Walker,    416. 

v.  Williams,   3429. 
Payntz  v.   Reynolds,  317. 
Pays  v.   State,  2861. 
Peabody  v.  Hord,  465. 
Peagler  v.    State,   4434. 
Peake   v.    Conlan,    643. 
Pearce  v.   Humphreys,  4245. 
Pearsoll  v.    Chapin,   1128. 
Pearson  v.  Davis,  921. 

v.  Herr,    1053. 

v.  Milwaukee,    etc.,    1965. 
Pease  v.   Barkowsky,   225,   241. 

v.  Smith,  3323. 
Peay  v.  W.  U.  T.,  3443. 
Peck  v.  Clark,  995. 

v.  Herrington,   2351. 

v.  Hutchinson,  1289. 

v.  Lusk,  2201. 


TABLE  OF  CASES  CITED. 


XCVli 


[BEFEBENCES    ABE    TO    SECTIONS.] 


Peck  v.  Oregon  Short  Line  R.  Co., 
4055. 

v.  Peck,   Tex.    Civ.    App.,    S3    S. 

W.   257,   321. 
v.  Peck,  Tex.,  87  S.  W.  24S,  3872. 

v.  Ritchey,   163. 
Pecos    Valley     &     N.     W.    Ry.    v. 

Cazier,    40S1. 
Peed  v.  McKee,  639. 
Peel   v.   State,   28. 
Peele  v.  Provident  Fund,  320. 
Peeples  v.   McKee,  1468,  3381. 
Pefferling  v.   State,   2810. 
Peiser   v.   Peticolas,   1322. 
Pelasants  v.  Fant,  249. 
Pelitier   v.    Railway   Co.,    3338. 
Pelley  v.   Wills,  4105,  4772. 
Pells  v.   Snell,   3707. 
Pellum  v.  State,  2441. 
Pelly   v.   Denison,    etc.,   R.,  2072. 
Pence   v.    Chi.,    R.    I.    &   P.    R.    R., 
4043. 

v.  Wabash  R.,  1805,  1808. 
Pendergrast  v.  Peru,  3187. 

v.  U.  R.   Co.,  2069. 
Pendlay  v.  Eaton,  4292. 
Penland's   case,    3106. 
Penn   v.   Trompen,   300. 
Pennington    v.    Meeks,   2283. 
Penn  Mutual  Life  Ins.  Co.  v.  Heiss, 
S4S. 

v.  Wiler,   3672. 
Pennsylvania    Coal    Co.    v.    Kelly, 
3789,  40S0. 

v.  Sauderson,    875. 
Pennsylvania     Com.      L.      Ins.     v. 

Groome,    1207. 
Pennsylvania  Co.  v.  Aspell,  1812. 

v.  Uackes,    1345,   1581,    3944,   414S. 

v.  Beale,   4055. 

v.  Congdon,   3S56. 

v.  Conlan,  3323. 

v.  Cohen,    141. 

v.  Ebaugh,    144    Ind.    6S7,    1504, 
4105. 

v.  Ebaugh,    152    Ind.    531,    3793, 
3S21. 

V.  Files,    3576. 

V.  Frana,    903,    3944,   416S,    41S1. 

v.  Greso,    79    111.    App.    127,    223, 
244. 

v.  Greso,    102   111.    App.    252,   405, 
1793. 

V.  Hensil,   1S80,    1962. 

v.  Horton,    1880,   1902,    1905. 

v.  Hunsley,  802,   3319,   3342. 

v.  Marion,  104  Ind.  239,  1336. 

v.  Marion,  123  Ind.  415,  1758. 

v.  Marshall,    352,     360,    972,    9S0, 
988,   3768,   3805,   3812. 

v.  McCaffrey,  1757,  3944,  4009. 

v.  Miller,   1833. 

v.  Piatt,  4113. 

v.  Rathgab.    1928. 

v.  Reidy,  903,  1338,  1345. 


Pennsylvania  Co.  v.  Rooney,  3885. 
v.  Rudd,   33. 
v.  Rudel,   1914. 
v.  Sinclair,  4018. 
v.  Smith,  Ala.,  2257. 
v.  Smith,   Ind.,  4173. 
v.  Stegemeier,   1880. 
v.  Versten,   3303,   3349. 
v.  Whitcomb,  3856. 
Pennsylvania  R.   R.  v.  Beale,   1902. 
v.  Benz,    1722. 
v.  Fries,    1719. 
v.  Goodman,    3600. 
v.  Heileman,  1867. 
v.  MacKinney,   4008. 
v.  McCloskey,  1720. 
v.  Ogler,    1914. 
v.  Peters,    1882. 
v.  Snyder,   1881. 
v.  White,  1S82. 
Pensoneau  v.  Bertke,  1052. 
People  v.  Abbott,  2821. 

v.  Ah   Sing,   51  Cal.  372,  4443. 
v.  Ah  Sing,  59  Cal.  401,  4300. 
v.  Ah  Yek,  4529. 
v.  Aikin,  2678. 
v.  Albers,   39,  48,  2661,  4444. 
v.  Allender,    4405. 
v.  Andrews,    286. 
v.  Anthony,   284,   304. 
v.  Arlington,  345,  4496. 
v.  Arnold,    2905. 
v.  Bacon,  282,  284. 
People  v.  Balkwell,  2512,  3007. 
People  v.  Barker,  2652,  2665. 
v.  Barnes,   2S03. 
v.  Barnhart,  230. 
v.  Beckwith,  25. 

v.  Beilfus,    87. 

v.  Bemmerly,   4443. 

v.  Bennett,    4699. 
v.  Bernard,    2864. 

v.  Biddlecome,  202. 

v.  Blake,    2613. 

v.  Blanchard,  338,  2902. 

v.  B.    of   Education,   2432. 

v.  Boggiano,    2717. 

v.  Bonds,    96. 

v.  Bonier,    2480. 

v.  Bonney,   4364. 

v.  Borgetto,    2626,    3032,    3094. 

v.  Bowkus,  3206. 

v.  Brown,   127. 

v.  Bruggy,  912. 

v.  Buckley,    4364. 

v.  Bumberger,    2571. 

v.  Carbone,    4687. 

v.  Carpenter,  4403. 

v.  Cebulla,   53. 

v.  Chadwick,    2952. 

v.  Chalmers,  74. 

v.  Chapleau,  3323. 

v.  Christensen,    4300. 

v.  Clark,    Cal.,   2709. 


XCV1U 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


People  v.  Clark,  Mich.,  2829,  4532. 
v.  Clark,  N.  Y.,  4673. 
v.  Clarke,  2526. 
v.  Cleveland,  Cal.,  173. 
v.  Cleveland,   Mich.,   2913. 
v.  Glover,    2628. 
v.  Coffman,    2573. 
v.  Colvin,    2548. 
v.  Cook,    2973. 
v.  Core,    4245. 
v.  Corey,  4687. 

Coughlin,    3106. 

County  Judge,  286. 

Cowan,    2917. 

Cowgill,    4462. 

Cronin,   2535,   2548. 

Cummins,   180,   2784. 

Cunningham,  4467. 

Curtis,   2690,   2720,   4462. 

Damar,  25. 

Davis,   64  Cal.   440,  4352. 

Davis,  135  Cal.  162,  2650. 

Decker,  4673. 

Dennis,    2571. 

Detroit   &   S.    Plank   R.    Co. 
1154. 


v. 

V. 

v. 
v. 

V. 


v. 

V. 

V. 


V. 
I  V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 


Devine,  117. 
Dobbins,    347. 
Dohreng,  7. 

Don  Ian,    2571,    2572,    2600. 
Donnelly,  284. 
Dorthy,    140. 
Durrant,   346. 
Easton,   2459. 
Edwards,  Cal.,  2814. 
Elliott,  2480,   2698. 
Ellsworth,  74. 
Engle,  407,  3392. 
Evans,    3323. 
Feliz,   2434. 
Fellows,    2606,    2613. 
Ferris,  Cal.,  2613. 
Ferris,   (N.  T.),  299. 
Finley,    2654. 
Fisher,  3287. 


V.  Fitzgerald,     Cal.,     345,     2642, 

2650,  3153. 
V.  Fitzgerald,   20  App.   Div.    (N. 

Y.)   139,  2555. 
V.  Fitzgerald,     156   N.      Y.      253, 

4467. 
v.  Flynn,  2555. 
v.  Foley,   392,   2498,   4442. 
v.  Ford,    4402. 
v.  Foy,    4402. 
v.  Franklin,    2613. 
v.  Gallanar,    2965. 
v.  Galland,    2923. 
v.  Garbutt,       2480,      4335,      4342, 

4343. 
v.  Gar   Soi,    32. 
v.  Gastro,    4515. 
v.  Gilmore,   Cal.,  2641,  2877. 
V.  Glaze,   4671. 


People  v.  Gleason,  74. 
v.  Glover,   3181. 
v.  Gordon,   4564. 
v.  Gorsline,    3273. 
v.  Graney,  2645,  2979. 
v.  Grant,  295. 
v.  Greenwall,   2999. 
v.  Guidici,   2652,   2657,   2668,   2720, 

4434. 
v.  Hamilton,   2596. 
v.  Hannon,   4564. 
v.  Harriden,  2804. 
v.  Harrison,  102. 
v.  Hawes,    406. 
v.  Hayes,   88,   2555. 
v.  Hein,    4403. 
v.  Hero,  241. 
v.  Hill,    Cal.,    385,    2535. 
v.  Hill,  111.,  12. 
v.  Hilliard,    3189. 
v.  Hinshaw,    3293. 
v.  Hoffman,    2940. 
v.  Horr,    3282. 
v.  Howard,  2806. 
v.  Hubbard,    Mich.,    2836. 
v.  Hubbard,    N.    Y.,    4764. 
v.  Hughes,    2843. 
v.  Hughson,    2480,    2481. 
v.  Hulbert,    2357. 
v.  Hull,    2989,    3120. 
v.  Huntington,    4464. 
v.  Husband,    2923. 
v.  Hurst,  2921. 
v.  Hyndman,    3079. 
v.  Jackson,  2480. 
v.  Jassino,  2484,  2839. 
v.  Jenkins,   277. 
v.  Jenness,    2804,   3327,   4486. 
v.  Jones,  2613. 
v.  Justices,   291. 
v.  Kaiser,    2803. 
v.  Keefer,    43. 
v.  Keenan,  225. 
v.  Keith,  2810,  2820. 
v.  Kelly,  Cal.,  347. 
v.  Kelly,    N.    Y.,   4321. 
v.  Kief,    2914. 
v.  Knapp,    4378. 
v.  Knowles,    286. 
v.  Kraft,    4687. 
v.  Laird,   2484. 
v.  Lambert,  2810. 
v.  Lancoste,   86. 
v.  Lang,   104   Cal.   363,   4378. 
v.  Lang,  142  Cal.  482,   2444,  2885. 
v.  Larned,   146. 
v.  Larrabee,    2571. 
v.  Lawrence,   2746. 
v.  Lebodie,  225. 
v.  Lenon,  2645. 
v.  LeRoy,   4371. 
v.  Lewis,    2613. 
v.  Lonnen,   4496. 
v.  Lynch,    2822,   2824. 
v.  Macard,  2636,  3141,   3160,  4504. 


TABLE  OF  CASES  CITED. 


XC1X 


[REFERENCES  ABE  TO   SECTIONS.] 


People  v.   Macham,   90. 
v.  Madison  Co.,  17. 
v.  Malone,  4673. 
v.  Manahan,  2814. 
v.  Manning,    2650,    2720,   2776. 
v.  Marks,  4345. 
v.  Mathai,    2466. 
v.  Mather,   2910. 
v.  Maughs,  4429. 
v.  Mayor  of  Alton,   3383. 
v.  Mayor  of  Chicago,  284,  290. 
v.  McArron,      2529,      2543,      2678, 

S041. 
v.  McCarthy,  66. 
v.  McCoy,    151. 
v.  McWhorter,  4427. 
v.  Mendenhall,   2629,   2856. 
v.  Miles,   93,  2638. 
v.  Millard,    4427. 
v.  Miller,  Mich.,  2821. 
v.  Miller,   N.   Y.   Cr.,    55. 
v.  Milner,    2466. 
v.  Minter,    3206. 
v.  Moett,  344. 
v.  Mol,  39,  48. 
v.  Mooney,   2999. 
v.  Moran,  2719,  2720. 
V.  Morine,   3028. 
v.  Morrow,   4350. 
v.  Murphy,  2805,  2821. 
v.  Murray,   14   Cal.    159,    2464. 
v.  Murray,    85    Cal.    350,    26. 
v.  Murray,    Mich.,    180. 
v.  Newcomer,  4744. 
v.  Nichol,    2999. 
v.  O'Brien,  96  Cal.  171,  4378. 
v.  O'Brien,  130  Cal.  1,  4300,  4350. 
v.  Ochoa,   3020. 
v.  Olsen,  2650,  2699,  2720,  4453. 
v.  Padillia,    2501. 
v.  Parke,   322. 
v.  Parker,   1283. 
v.  Parton,   4371. 
v.  Patterson,    4496. 
v.  Pearsall,    2444. 
v.  Pease,    223. 
v.  Pearson,    303. 
v.  Phelan,  2S67. 
v.  Pico,    2571. 
v.  Piper,   3121. 
v.  Plyler,    347. 
v.  Portenga,    2440. 
V.  Potter,  2636,  2645. 
v.  Powell,    20. 
v.  Prather,   3235. 
v.  Prendergast,  284. 
v.  Price,   4196. 
v.  Provost,  2555. 
v.  Quimbv,    2594,  2603,   2604. 
v.  Ry.    Co.,    295. 
v.  Randolph,   4529. 
v.  Reavey,    140. 
v.  Resh,  2444,    2542,   2543,   2839. 
V.  Rich,     2467,     2518,     2661,     2678, 
2761. 


People  v.  Richards,  1  Cal.  App.  566, 
17,  28. 
v.  Richards,   36   Cal.   127,   4577. 
v.  Riordan,  4472. 
v.  Roach,   2816. 
v.  Robinson,    4245. 
v.  Rodley,    4364. 
v.  Rogers,  2617. 
v.  Royce,   4601. 
v.  Sanchez,  4686. 
v.  Sauer,  2850,  2970. 
v.  Schmidt,   2600. 
v.  Seaman,   2784,   3372,   3373. 
v.  Shoemaker,  2769. 
v.  Silva,    4364. 
v.  Smith,    Cal.,    2927. 
v.  Smith,  Mich.,  4532. 
v.  Smith,   N.   Y.,   4467. 
v.  Smith,    (S.   C),   1049. 
v.  Sprague,   344,  345. 
v.  Stevens,    345. 

v.  Stewart,   2530,  2638,  2661,  4504. 
v.  Stratton,   2803. 
v.  Strong,    4371. 
v.  Strybe,  4364. 

v.  Stubenvoll,    2652,    2657,    4434. 
v.  Supervisors,   etc.,    1105. 
v.  Taylor,  157,  168. 
v.  Thiede,  43,  55. 
v.  Thompson,    Cal.,    3110. 
v.  Thompson,    Mich.,    3045. 
v.  Thompson,    N.    Y.,    290. 
v.  Tibbs,   2535. 
v.  Thorne,    690. 
v.  Titherington,   4569. 
v.  Totman,  2525,  2815,   2816,   4526. 
v.  Township,    602. 
v.  Tuczkewitz,   2602,  2977,  4409. 
v.  Turley,  3023,   3086. 
v.  Tweed,    60. 
v.  Urquidas,    4350. 
v.  Vanderhoof,    3373. 
v.  Van   Ewan,    2535. 
v.  Vasquez,    2746. 
v.  Vereneseneckhoff,    4300.  . 
v.  Vincent,  2613. 
v.  Wagner,   286. 
v.  Waller,    41. 
v.  Wallin,    3327. 
v.  Wardrip,  385,  2515. 
v.  Warner,  Cal.,  32,  51,  52,  55. 
v.  Warner,   Wen.,   3260. 
v.  Waysman,    2650,   4663. 
v.  Welch,  190. 

v.  Wells,   Cal.,   2535,   2594,   4405. 
v.  Wells,  8  Mich.  104,  269. 
v.  Wells,   112   Mich.  648,   2800. 
v.  Westbrook,  290. 
v.  Whipple,  3206. 
v.  White,    102. 
v.  Willard,  4300. 
v.  Willett,   2543. 
v.  WiTliams,   43   Cal.    344,   2613. 
v.  Williams,  133  Cal.  168,  2814. 
v.  Williams,  284. 


TABLE  OF  CASES  CITED. 


[REFERENCES  are  to  sections.] 


People  v.  "Wilmot,  2810. 
v.  Wilson,  Cal.,  2595. 
v.  Wilson,  Mich.,  105. 
v.  Wilson,    N.    Y.,    2991. 
v.  Wood,   Cal.,  2745,  4391. 
v.  Wood,   Mich.,   4565. 
v.  Worden,   2437,   2620. 
v.  Wreden,    4405. 
v.  Wright,   2989. 
v.  Zane,  284. 
v.  Zigouras,   3155. 
Peoples  v.  State,    3328,    4710. 
People's  Claim  Adj.  Co.  v.  Darrow, 

3479. 
Peoria  v.   Simpson,   4063. 

v.  Walker,   3753. 
Peoria  B.  A.  v.  Loomis,  918,  3574. 

v.  Rice,   152. 
Peoria,   D.   &  E.  Ry.  v.   Hardwick, 

3845,  3888. 
Peoria    Ins.     Co.    V.     Anapow,    193, 

709. 
Peoria  Marine  F.  Ins.  v.  Whitehall, 

1167. 
Peoria,  P.  &  J.  v.  Champ,  1965. 
v.  Reynolds,  1797. 
v.  Siltman,   4030,   4042,   4044. 
Peoria    &    P.    U.    Ry.    v.    Herman, 
1892,    4046. 
v.  Johns,    197. 
v.  Puckett,  58,  1582,  1591. 
Peoria   &   P.    Term.    Ry.    V.    Hoerr, 

4000. 
Peoria,    Rock    I.    Ry.    Co.    v.    Coal 

Valley,  etc.,  Co.,  1710. 
Percifull  v.   Coleman,  4272. 
Perdue  v.  Gill,  309. 
Perkins  v.  Delaware,  3925. 
v.  Perkins,  2369. 
v.  State,   3119,   4766. 
Perugi  v.   State,   2986. 
Perrette  v.  Kansas  City,  1642,  1671, 

3927. 
Perrin  v.  Serrell,  307. 

v.  State,    2838,   2852,    3052,    4645. 
Perry  v.  Caledonian  Ins.,  1157. 
v.  Greenwich  Ins.,  1157. 
v.  Man,    4263. 
v.  State,  89. 
Petefish  v.   Becker,  2377. 
Peters   v.    N.    O.    &   C.    R.   R.,   1729. 
Peterson  v.   McCullough,  454,  455. 
v.  People,  4513. 
v.  Reisdorph,    3713. 
v.  Wood     Mowing    &     Reaping 
Mach.  Co.,  109. 
Pettee  v.   Prout,  2134. 
Pettengill  v.  Yonkers,  1667. 
Petty  v.  Com.,  229. 
v.  Ry.  Co.,   1129. 
v.  State,   2447. 
Petut  v.   Crawford,  419. 
Peyton  v.   State,  2436,   4316,  4395 
Pfirman  v.   Henkel,   2429. 


Pfaffenback  v.   L.  S.  &  M.   S.   Ry., 

353. 
Pharo  et  al.  v.  Johnson,  155,  3841. 
Pharr  v.   State,  2515. 
Phelan  v.   FitzPatrick,  1231. 
Phelps  v.  Mankato,  1623. 
Phelps  v.  Osgood,  288. 

v.  People,  2923. 

v.  Salisbury,   314. 
Phenix  v.  Castner,  3744. 
Phenix  Ins.   Co.  v.  Flemming,   3403. 

v.  Hart,    1172. 

v.  Hedrick,    326. 

v.  La   Pointe,   349,   3349. 

v.  Week,   79. 
Philadelphia,  etc.,  R.   R.  v.  Derby, 
1370. 

v.  Troutman,   1914. 
Philadelphia   R.    R.    v.    Ervin,   2081. 
Philadelphia  W.  &  B.  R.  v.  Ander- 
son,  2091. 

v.  Hogeland,   4055. 
P.    &.    R.    Ry.    Co.    v.    Watts,    243, 

852. 
Philamalee     v.     State,     2546,     3210, 

4775. 
Philips  v.  Beene,  2429. 
Phillips  v.  Dickerson,  249,  1221. 

v.  Elwell,  2241. 

v.  Hoefer,    2294. 

v.  London,    etc.,   R.,   912. 

v.  Moir,    472. 

v.  Ocmulgee,    190. 

v.  Phillips,    49   111.   437,   2200. 

v.  Phillips,  185  111.   633,  115. 

v.  Protection  Ins.,   1161. 

v.  Scales  Mound,  841,  843,  846. 

v.  State,  4416. 

v.  Wis.  St.  Ag.  Society,  314. 
Phillip's    Ex'r    v.    Phillip's    Adm'r, 

4299. 
Phillpotts  v.  Blasdell,  1034. 
Philomath  College  v.  Hartless,  681. 
Philpot  v.  Lucas,  3709. 

v.  Taylor,   33. 
Phippin  v.  Mo.  Pac.  R.,  1538,  1570. 
Phipps  v.   State,  3107,  3164,  4722. 
Phoenix  Ins.  Co.  v.  Neal,  2222. 

v.  Wilcox,    313. 
Phoenix  Mut.   Ins.,  1168. 
Pickard  v.  Bryant,  2165. 

v.  Hopkins,  1062,  1067. 
Pickens   v.    State,   2689,   4356,  4787. 
Pickerell  v.  Morss,  614. 
Pickering  v.   Cease,  608,  3475. 
Pickett  v.  Handy,  269. 

v.  Railroad   Co.,   4075. 

v.  So.   Ry.,  1774. 

v.  Wilmington    &    W.    R.    Ry., 
616,  3614. 
Pickins  v.   State,   2497. 
Piedmont    &    A.    Life    Ins.    Co.    v. 

Ewing,   3679. 
Pierce  v.  Hasbrouch,  279. 

v.  Pierce,  2404. 


TABLE  OF  CASES  CITED. 


CI 


[references  are  to  sections.] 


Pierce  v.   Roche,  2244. 

v.  State,   346,   349. 

v.  Walters,   261. 

v.  Waters,   1856. 
Pierrepoint  v.  Loveless,  1367. 
Pierson   v.   State,  12  Ala.,  149,  4747. 
Pierson   v.    State,   99   Ala.   148,   3458, 
4710. 

v.  State,   Tex.,   2913. 
Pigman  v.   State,  2861. 
Pike  v.   Colvin,   1321. 

v.  Dilling,   942. 

v.  Douglass,   482. 

v.  King,  643. 
Pinder  v.  State,  3106. 
Pinkerton  v.  Sydnor,  96. 
Pinkham  v.  Topsfield,  3932. 
Pinnell  v.  Ry.  Co.,  4168. 
Pioneer  C.  Co.  v.  Comanowicz,   659. 
Pioneer    Fireproof     Const.     Co.    v. 

Sunderland,  125. 
Pittsburg,  C.   &   St.   L.   Ry.  v.  Ad- 
ams, 1417,   3856. 

v.  Burton,   356. 

v.  Campbell,    1988,    1989. 

v.  Eby,  1967. 

V.  Krouse,  191,  3381. 

v.  McGrath,   1349. 

v.  Van  Dyne,    1821. 
Pittsburg,    C.    C.    &    St.    L.    Ry.    v. 
Banfill,   3983. 

v.  Bovard,    1554. 

v.  Collins,    3831. 

v.  Dahlin,  3747. 

v.  Harper,  3565. 

v.  Lightheiser,   3831. 

v.  McNeil,   1883. 

v.  Noftsger,   855,   1143,   1429,  3549, 
3625,  3856. 

V.  Reed,    1961. 

v.  Smith,    309. 

v.  Story,   234. 

V.  Wise,  4096,  4105. 

v.  Moore,   1353. 

v.  Powers,   1558. 
Pittsburgh    R.    R.    v.    Nelson,    1843, 

4099. 
Pixler  v.  Nichols,  719. 
Pjarrou  v.  State,  180,  2819. 
Piper  v.  Andricks,   2398. 
Pirtle  v.    State,   4415. 
Pisa  v.  Holy,  3528,  3600. 
Pitcairn  v.  Chester,  1146. 
Pittman  v.  Pitman,  Ala.,  447. 

v.  Pittman,  111.,  1011,   3624. 

v.  Raysor,   1205. 

v.  Weeks,  444. 
Pitts  v.   Burroughs,   538. 

v.  Pitts,  731. 

v.  R.    R.    Co.,    3834. 

v.  State,   374,  13S3. 
Place   v.    Minister,    4311. 

v.  N.     T.     Cent.    &    H.    R.    R., 
250. 
Plankroad  v.  Thomas,  7. 


Piano  Mfg.  Co.  v.  Parmenter,  1124. 
Plant  v.  State,  4691. 
Planter's  Mut.  Ins.  v.  Deford,  1163 
Piatt    v.    Johr,    3469. 
Plattsmouth  v.  Boeck,  3655,  4592. 

v.  New   Hampshire    Sav.    Bank, 
1228. 
Pleasants  v.   Fant,  254. 
Pledger  v.  Chi.,  B.   &  Q.  Ry.,  1352, 
1366,    1752. 

v,  Texas   Ry.,    3763. 
Plessy  v.    Ferguson,   2058. 
Plummer  v.  Carrier,  389. 

v.  People,  39,  40. 

v.  State,    4558. 
Plymouth  v.   Milner,   1685. 
Poepper   \f.    M.,    etc.,    R.,    2000. 
Poertner  v.   Poertner,   1054. 
Poeter  v.   State,  66. 
Poleman  v.  Johnson,  253. 
Policemen's    Ben.    Ass'n.    v.    Ryce, 

1210. 
Polin  v.  State,  2647,  2660,  2664,  4443. 
Polish   R.    Catholic   Union  v.   War- 

czak,   251. 
Polk   v.    Allen,   768. 
Pollard  v.   People,  3323. 

v.  State,  4641. 

v.  Vinton,  1696. 
Pollock  v.  Gantt,  741. 

v.  Pollock,    3429. 

v.  Sullivan,   697. 
Pomaski   v.    Grant,   2069. 
Pomerene   Co.    v.    White,    951. 
Pontiac    v.    Carter,    1652. 
Pool    v.    Ry.,    984. 

v.  Southern   Pac.    Co.,   3782. 
Poole  v.   People,  4352. 
Pooler  v.  Cristman,  2382,  2400,  2412. 
Pope  v.  Branch  County  Sav.  Bank, 
509,  4219. 

v.  Chi.    C.    Ry.,    4149. 

v.  Dodson,   3323. 

v.  Pollock,    1263. 

v.  State,  4501. 
Poppers  v.  Schoenfeld,  415. 
Porath  v.    State,   2803. 
Port  v.    H.   B.    T.    R.    R.,   860. 
Portage    Co.     Mut.    Ins.     v.    West, 

1167. 
Porter  v.   C.   &  N.  W.   R.  Co.,  1699. 

v.  Day,  591,  3465. 

v.  Dement,   1311. 

v.  Garrett,   288. 

v.  Hannibal,    etc.,    Rd.,   1843. 

v.  Knight,   1279,    3841. 

v.  Mo.  P.   Ry.,  4029. 

v.  People,   2816. 

v.  Railroad,   827. 

v.  Rumery,   289. 

v.  State,    55    Ala.    95,    3355. 

v.  State,  140   Ala.    87,    4332,   4400, 
4424. 

v.  Stone,    1144. 

v.  Hildebrand,  1832. 


Cll 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


Porther  v.  Throop,  232. 
Portsmouth    St.    R.    v.    Feed's   Ad- 
ministrator, 986. 
Portwood    v.    Commonwealth,    2483. 
Posnett   v.    Marble,   2280. 
Post   v.   Boston,   3932. 

v.  Mason,   2411. 
Postal    Tel.    Co.    v.    Brantley,    2309, 

3585,    4056. 
Potter  v.   Chi.,   R.   I.   &  P.   R.,  155. 

v.  Deyo,   3187. 

v.  Jones,  4294. 
Potts   v.    Chi.    C.    Ry.,    2028. 

v.  House,    299,   4294. 

v.  Imlay,    1263. 
Powell  v.   A.   S.    Ry.,  951. 

v.  Chittick,    2270. 

v.  Ga.    F.    &  A.    Ry.,   360. 

v.  P.    R.    R.,    418. 

v.  Powell,    4286. 

v.  State,  376,  2520,  2622. 

v.  Village   of   Bowen,    1641. 

v.  Yeazel,    3652. 
Power  v.   Frick,   326. 
Power  Co.  v.  Walker,  892. 
Powers  v.    Kindt,  4273. 

v.  P.    Rd.,   417. 

v.  Russell,  4009. 

v.  State,  Ind.,  2625. 

V.  State,  Miss.,    4445,    4447,    4460, 
4724. 

v.  State,  Tenn.,  4347. 
Prall  v.  Underwood,  362. 
Prater   v.    Frazier,    4309. 

v.  State,    2476,   2648,    2677,    2683. 
Prather  v.   Chi.   So.  R.  R.,  313,  854, 

881,    3566. 
Pratt  v.  Chi.,  R.   I.  &  P.  Ry.,  1927. 

v.  Mfg.    Co.,   3510. 

v.  Pratt,    1010. 

v.  State,  Ark.,   3179. 

v.  State,  Ind.,  3363,   4380. 

v.  State,  Tex.,   4753. 
Pratt    Coal    &   T.    Co.   v.    Brawley, 

3835. 
Premier    Steel    Co.    v.    McElwaine- 

Richards  Co.,  3735. 
Prendergast    v.    Chi.    City   Ry.    Co., 

3609. 
Prentis   v.    Bates,   75,   78. 
Prentis  v.  Mfg.  Co.,  1575. 

v.  Pailsley,    1022. 
Prescott   v.   Johnson  et  al.,   406. 

v.  Locke,    2247. 
Prescott    &    S.    W.    Ry.    v.    Weldy, 

1480. 
Presidio  Mining  Co.  v.   Bullis,  '1086. 
Pressed  B.   Co.   v.   Reinneiger,  1446. 
Pressed   S.   Car  Co.   v.   Herath,  329. 
Presser  v.  State,  3102. 
Preston  v.  Moline  Wagon  Co.,  3303. 
v.  Turner,    1074. 
v.  Walker,  223. 
Prettyman   v.   Unland,  1332. 
Preuit  v.  People,  2768,  3306,  4498. 


Price  v.   Com.,  4570. 

v.  Doan,    286. 

v.  Mahoney,   191,   3381. 

v.  P.,   Ft.   W.   &  C.   Ry.,  1246. 

v.  State,   Ind.,  231. 

v.  State,   Tex.,  2816. 

v.  Wisconsin,      etc.,      Ins.      Co., 
2252. 
Prichett  v.   State,   89. 
Prideaux    v.     Mineral    Point,    1677, 

2112,    3939. 
Prince    v.    State,    4301,    4302,    4454. 

v.  St.   Louis  Cotton  C.  Co.,  560, 
561,  837. 
Princeville  v.   Hitchcock,  144. 
Prindle   v.   Anderson,   3489. 
Prine   v.    State,   4548,   4711. 
Pringle   v.    Rogers,    3461. 
Prindiville  v.   People,   160. 
Primmer    v.    Clabaugh,    1024. 
Prinues   v.    State,   3083. 
Prior  v.   State,  4639. 

v.  White,   188. 
Pritchett   v.    Johnson,   3713. 

v.  State,  83. 
Proctor  v.   DeCamp,   243. 

v.  Southern    Ry.,    944. 

v.  Tows,    4S6. 
Progress  P.  B.  &  M.  Co.  v.  Gratiot 

B.  &  Q.  Co.,  1334,  3735. 
Proper  v.   L.   S.   &  M.   S.  Ry.,  1917. 
Protection    Life    Ins.     Co.    v.    Dill, 

3742. 
Prothero   v.   Citizens*    St.   Ry.,  2062. 
Providence  Machine  Co.  v.  Brown- 
ing, 2202. 
Prowattain   v.   Tindale,   329. 
Prudential  Ins.  v.  Fredericks,  1188, 

3673. 
Pruitt   v.    State,    2542. 
Pryor  v.    Cain,   680. 

v.  State,   2731. 
Puckhaber  v.   Henry,   307. 
Pueblo   v.    Froney,   309. 
Pugh   v.    State,  4333,  4741,  4755. 
Pullen  v.  Hopkins,  455. 
Pullian   v.    Nelson,    1032. 
Pullman  P.  C.  v.  Adams,   442,  1837, 
4003,    4004,    4005,    4006. 

v.  Laack,     248,    3742,    3753,    4062, 
4151,    4161. 
Pulpus   v.    State,   4724. 
Pumorlo  v.   Merrill,   906.   3917. 
Pumphrey  v.  Walker,  275. 
Pungs    v.    Am.    Brake    Beam    Co., 

753,   1123. 
Purcell  v.    English,   248,   1089. 
Purcell  W.  G.  Co.  v.  Bryant,  1056. 
Purely  v.  People,  2536,  4379. 
Purington    Brick    Co.    v.    Eckman, 

2092. 
Purnell  v.  R.  &  G.  R.,  1850. 
Purple   v.    Horton,    46. 
Puth  v.  Zimbleman,  601. 
Pym   v.   Campbell,   3486. 


TABLE  OF  CASES  CITED. 


cm 


[keferences  ake  to  sections.] 


Pyne    V.    Delaware,    L.    &    W.    R., 
1882. 
v.  R.    R.,    3840. 

Quackenbush   v.   Chi.   &  N.   W.   R. 

R.,     1845. 
Quale  v.   Hazel,   S.  D.,  3412. 
Queen    v.    D.,    C.    &    I.,    2081. 
Queenan   v.    Oklahoma,   2574. 

v.  Territory,    11,    15,    33,    2574. 
Quigley  v.    Merritt,    3427. 
Quill  v.   Southern  Pac.  Co.,  3748. 
Quincy  v.   Jones,   1652. 
Quincy,    Alton   &   St.   Louis   R.    R. 

v.  Wellhoener,   1347. 
Quincy  Gas  &  E.   Co.   v.   Bauman, 

245. 
Quincy   M.    Co.    v.   Kitts,    1447. 
Quinlan  v.  Kan.   City,  315,  3932. 

v.  Keiser,-   420. 
Quinn    v.    Baldwin,    300,    315. 

v.  Commonwealth,    2452,    3156. 

v.  Donovan,  174,   3472,  3789,  3816. 

v.  Railway    Co.,    3416,    3774. 
Quint  v.   Dimond,   4100,   4101. 


Rabberman   v.   Pierce,   230. 
Race   v.    Oldridge,   352,   990. 
Rack  v.  C.  C.  Ry.  Co.,  249,  254,  258. 
Radcliff's  Executors  v.  Mayor,  etc., 

1652. 
Radford  v.  Lyon,  239. 

v.  United    States,   11. 
Rafe  v.   State,  42. 
Rafferty  v.   Buckman,  972,  974. 

v.  People,  66  111.  118,  2606. 

v.  People,  72  111.   37,   3331. 
Ragland   v.    State,   3096. 
Ragsdale  v.  Memphis,  etc.,  Rd.  Co., 
1557. 

v.  State,    2617,    2986,    3131,     3133, 
4467,    4755. 
Raiford  v.  State,  4590. 
Railway  Co.  v.  Belt,  326. 

v.  Williams,   65  Ala.  78,  4015. 

v.  Wolf,   3977. 
Rains  v.   State,   2465,  2898. 
Raker  v.   State,   4259. 
Ralston    v.    Kohl,    719. 
Ramirez  v.   State,   3249. 
Ramm  v.   R.   R.   Co.,  1487. 
Ramsey  v.   Berry,  608. 

v.  Burns,    3446,    3449,    3503. 

v.  Cheek,    2287. 
Randall  v.  Packard,  552. 

v.  Smith,    637. 

v.  State,  2550. 
Randell    v.    State,    4773. 
Randolph    v.    Flemming,    21S0,    2186. 
Ranek   v.    Albright,    713. 
Rangeley's  Adm'r.  v.  So.  Ry.,  1904, 
1952. 


R,ankin  v.  Chase  Natl.  Bk.,  571. 

v.  West,    1024. 
Ranney  v.   St.   Johnsbury  &  L.   C. 

R.,    106. 
Ransom  v.   McCurley,   2279. 
Rapid   T.    Ry.    v.    Miller,   1336,   1337. 
Rapp   v.    Bush,    543. 

v.  State,    3086. 
Rascher  v.    St.   R.,   2084. 
Rath  v.   Rath,  497,   3428. 
Rathbun  v.   Allen,   490. 
Ratterree   v.    G.    H.    &   S.   A.    Ry., 

1489. 
Rau  v.  Trumbull,  3482. 
Rautert   v.    Carlson,   3329. 
Rawlins   v.    State,   28. 
Rawls  v.  State,  188. 
Ray  v.   Goings,   157. 

v.  Moore,    626,    2154. 

v.  State,  Ala.,   3355. 

v.  State,  Ga.,    3086. 

v.  State,  Tenn.,   3146. 

v.  State,  Tex.,   3035. 

v.  Woolters,   158. 
Rayburn    v.    State,    184,    2443. 
Raymond  v.   Keseberg,   3576. 

v.  Wathen,   4291. 

v.  Wichita,    1142. 

v.  Yarrington,  755. 
Rayner  v.  Rayner,  321. 
Razor  v.   Kinsey,   4275. 
Rea  v.   Durkee,  1004,  1016. 
Reab   v.   Moor,   722. 
Read  v.  State  Ins.  Co.,  832. 
Reading  v.   Keppleman,  1652. 
Reading  Township  v.  Telfer,  3948. 
Reagan  v.    U.    S.,   2542. 
Reardon    v.     Smith,    223. 
Rearick  v.  Wilcox,  2283. 
Record  v.    Chickasaw  C.   Co.,   1410, 

1470. 
Rector  v.   Rector,   69. 

v.  Robins,    2211. 

v.  St.    Clair   Circuit  Judge,   284. 
Red  v.    State,   4722. 
Red    River,    Texas    &    S.    v.    Rey- 
nolds, 885. 
Redd  v.   State,   4368. 
Reddick  v.   Commonwealth,  2999. 
Reddon  v.  Railway  Co.,  4079. 
Redfern    v.    McNaul,    1124. 
Redford  v.  Ry.  Co.,  4177. 
Redlon    v.    Barker,    1241. 
Red  River,  T.  &  S.  Ry.  v.  Hughes, 
857. 

v.  Reynolds,    900. 
Redway  v.  Chapman,  294. 
Reece   v.    Knott,    47. 
Reed  v.  Burgess,  2247. 

v.  Deerfield,    249. 

v.  Detroit,   930. 

v.  111.  C.   Ry.,  3480. 

v.  Larrison,   308. 

v.  Madison,  242. 

v.  Manierre,   164. 


CIV 


TABLE  OP  CASES  CITED. 


[references  are  to  sections.] 


Reed  v.  McKee,  639. 
v.  Mexico,   1646. 
v.  Railroad   Co.,   3598. 
v.  Sidener,    1102,    1107. 
v.  State,  Ind.,   4. 
v.  State,  Miss.,    4726. 
v.  State,  Neb.,  2986. 
v.  State,  Tex.,  4713. 
v.  W.   U.   T.   Co.,  4183. 
Reed  &  Co.   v.   Pinney  &  Co.,  3642. 
Reel   v.    Ewing,    1102. 
Rees   v.    Chicago,    1145,    1147. 

v.  Rasmussen,   935. 
Reese   v.    Bates,   2274. 
v.  State,  Ala.,   3086. 
v.  State,  5     Tex.     Ct.     Rep.     34, 

4593. 
v.  State,  44    Tex.    Cr.    App.    34, 
3229,   4790. 
Reeves   v.    Galveston,   H.    &    S.    A. 
Ry.    Co.,    1429,    1477,    1545. 
v.  State,    4423. 
Regan   v.   McCarthy,   307. 
Regensburg  v.    Nassau   Elect.   Ry., 

314. 
Regent  v.  People,  2539. 
v.  Crowhurst,  4570. 
v.  Hughes,  4563. 
v.  Serne,    2999. 
v.  Stedman,   4681. 
v.  Welsh,    3014. 
Reg.-Gaz.    Co.   v.    Larash,   172. 
Rehfuss  v.   Pierce,  93. 
Reid   v.    Mason,   3841. 
Reilly  v.   Chi.   C.   R.,  96. 
Reinhardt   v.   Hines,  418. 
Reins  v.   People,   100. 
Reiser  v.  So.  P.  M.  &  L.,  1447. 
Reizenstein  v.  Clark,  157. 
Reliable  v.   Goldstein,  294. 
Reliance     Lumber     Co.     v.     "White, 

4007. 
Reliance   Textile   &  Dye  Works  v. 

Mitchell,   3568. 
Remey   v.    Det.    U.    Co.,    954. 
Remington  v.  Railway  Co.,  3377. 
Remsen   v.    People,   2480. 
Renard  v.   Grande,  356. 
Reneau   v.    State,   4654. 
Renner    v.    State,    2913,    4483. 

v.  Thornbury,    314. 
Repley  v.   Davis,    768. 
Reslor  v.  Johnson,  731. 
Retan  v.  L.   S.,  etc.,  Ry.,  239,   1636. 
Reuss  v.  Monroe,  313. 
Rex   v.    Baker,   284. 

v.  Roeser,  332. 
Reynolds    v.    Commonwealth,    3161, 
4718. 
v.  Cox,   4548. 
v.  Fitzpatrick,  3629. 
v.  Greenbaum,    349. 
v.  McCormick,  2243. 
v.  Phillips,  195. 
v.  P.  J.  B.  Factory,  224. 


Reynolds  v.  Reynolds,  4306. 

v.  State,    56. 
Rhea  v.  State,  Ala.,  2648,  3458,  4710. 

v.  State,  Neb.,  2981,  2997. 
Rhines  v.  R.  R.  Co.,  3861. 
Rhoades  v.  Drummond,  2239. 

v.  Seidel,  1232. 
Rhodes  v.  Clute,  4248. 
v.  Dickerson,    2163. 
v.  Louisville,  etc.,  Rd.  Co.,  1731. 
v.  So.    Ry.,   297,   298. 
v.  State,  Ga.,   33. 
v.  State,   Ind.,  4434,   4451. 
Rhyner     v.      Menasha,     3737,     3940, 

3947. 
Rice   v.    City    of   Des    Moines,    173, 
1671. 
v.  Council   Bluffs,   901. 
v.  Day,    1263. 
v.  Eiseman,    540. 
v.  Jerenson,    3656. 
v.  London,   624. 
v.  Melendy,  2228. 
v.  Rice,    774,   3429. 
v.  State,   2809. 
v.  W.    Ry.    Co.,    1560. 
Rice  Co.  v.  Penn.  Plate  Glass  Co., 

3509. 
Rich  v.  Chi.,  3554. 

v.  Mclnery,   1286,  3716,   3718. 
Richards  v.   Betzer,  2134. 
v.  Judd,  4263. 
v.  Monroe,  403,  4216,   4218. 
v.  Richards,     1010. 
v.  Richman,   604. 
v.  State,    4766. 
Richardson   v.   Ashby,   2425. 
v.  Cooper,    1376,    1564. 
V.  Dybedahl,  1264. 
v.  Halstead,      2325,      3629,      3712, 

4274,    4775. 
v.  Maine  Ins.,  1188. 
v.  Nelson,    892,    937,    958. 
v.  Coffman,    1305. 
V.  R.  R.  Co.,  4090. 
v.  Planters  Bank,  45. 
v.  State,    4519. 
v.  Tyson,   3377. 

v.  Westchester  F.   Ins.,   1175. 
Richardson      &     Boynton     Co.     v. 

Winter,  411,   757. 
Richison  v.   Mead,   633. 
Richmond    v.    Moore,    642. 
Richmond   &  D.   R.   R.   v.   Hissong, 
3871. 
v.  Howard,  2104. 
■    v.  Johnston,  2104. 
v.  Rudd,    3892. 
v.  Weems,    3844,    3851. 
Richmond  G.  Co.  v.  Baker,  912. 
Richmond    Ice    Co.    v.    Crystal    Ice 

Co.,    1235. 
Richmond   P.    &   P.   v.   Allen,   1810. 
v.  Steger,  4172. 


TABLE  OF  CASES  CITED. 


CV 


[references  are  to  sections.] 


Richmond    R.     &    E.    v.    Hudgins, 

2091,   2106. 

Richmond    Ry.   Co.   v.   Kerler,  4309. 

Richmond      T.      Co.      v.      Marin's 

Adm'x,  2103. 

V.  Wilkinson.  955,  2080,  2102. 

Rickenan     v.      Williamsburg     City 

Fire  Ins.  Co.,  125,  217. 
Ricketts    v.    Coles,    309. 
v.  Harvey,     4512. 
v.  Rogers,   4^03. 
Riddle   v.    Russell,   2162. 

v.  Webb,    3367,    4253,    4254. 
v.  Varnum,    21M7. 
Riddlesbarger     v.     Hartford     Ins., 

1167. 
Riden   v.    Grimm  Bros.,  2081. 
Rider  v.   Murphy,   3713. 

v.  People,    365,    2536,    2561. 
v.  White,    2350. 
Ridgway  v.    Grant,   2216. 
Rietveld   v.    Wabash   R.,   1936,   4080. 
Rigby    v.    Hewitt,    1342,    3583. 
Riggins  v.   Richards,  3i6. 
Riggs  v.  Sterling,  86. 
Rigney  v.   Chi.,   858,   865,   3549,   3563. 
Rikerd    Lumber    Co.    v.    Hoertz    & 

Son,   674. 
Riley  v.  Butler,  355. 
v.  Norton,    2289. 
v.  Shawacker,   2170. 
vv.  Sherwood,   2416. 
v.  State,  Ala.,  4467. 
v.  State,  Miss.,   2782,   4450. 
v.  State,    Tex.,    381,    2515. 
v.  Wolfey,   269. 
v.  Vaughan,    1085. 
Rimer   v.    Dugan,    1109. 
Rimes  v.   State,  2886. 
Rindskopf   v.    Doman,    2149. 
Rio    Grande    W.    R.    v.    Leak,    332, 
923    1930 
v.  Utah,  N.Co.,  346,  411. 
Ripley   v.    Rapid   Transit   Co.,   4079. 
Rising  v.  Nash.,  4337. 
Ritchie  v.   Arnold,   249. 
v.  Fisher,  294. 
v.  Schemh,   309. 
Ritger  v.  Milwaukee,  2112. 
Ritt  v.   True  T.   P.   Co.,  1423. 
Ritter  v.   People,  3102. 
Rivard   v.    Rivard,   126. 
Riverview  Land  Co.  v.  Dance,  464, 

3706. 
Roach  v.   Baker,  326. 
v.  Carr,    476. 
v.  Parcell,   182. 
v.  People,    3109,    3111,    4699. 
Roark  v.  State,  2968,  3027,  3170. 
Robb   v.    State,   42,4,   4564,   4783. 
Robbins  v.   State,  Ind.,  3195. 

v.  State,   Ohio,  2999. 
Roblin   v.    Yaggy,   305. 
Roberge  v.   Bonner,  351. 


Roberson  v.  State,  40  Fla.  509,  4344, 
4565,  4664. 
v.  State,  42  Fla.  223,  4324,   4633. 
v.  State,  43  Fla.  156,  4607. 
v.  State,  4.")  Fla.  94,  4607. 
Roberts   v.    Cass,   3(JS. 
v.  Chi.  &  A.  R.,  2010. 
v.  Chi.  &  T.  T.  R.  Co.,  126. 
v.  Com.,    72. 
v.  Haskell,   2178,  2188. 
v.  Kendall,    1283. 
v.  Lamb,    2279. 
v.  McGraw,    307. 
v.  McWatty,  3381,  4247. 
v.  People,  2839,  4548. 
v.  Phillips,   4286. 
v.  Port    Blakely    Mill    Co.,    1347, 

1422. 
v.  Rumley,    486. 
v.  Roberts,  270. 
v.  Spokane    St.    Ry.   Co.,   4166. 
v.  State,  Ala.,  29S6,  3072. 
v.  State,   Ga.,  4611. 
v.  State,  Wis.,  3306,  4499. 
v.  State,  Wyo.,  3249,  4786. 
v.  Wilkinson,   322. 
Robertson  v.   Broun,  3431. 
v.  Com.,  2999. 
v.  Fuller  Const.  Co.,  3754. 
v.  State,  2502,  2SS6,  4566. 
Robinson  v.  Adams,  4294. 
v.  Adkins,  232. 
v.  Bailey,    2135. 
v.  Breems,  1027. 
v.  Commonwealth,  54. 
v.  G.   T.    R.,    1964. 
v.  Hirschfelder,   2248. 
V.  I.  C.  R.  R.,  254,  4305. 
v.  Louisville  Ry.,  2079. 
v.  Marino,   2350. 

v.  Northwestern  Nat.  Ins.,  1187. 
v.  People,  4245. 
v.  Randall,  49. 
v.  St.  L.  &  S.  Ry.,  889,  2032. 
v.  Springfield  Co.,  1091. 
v.  State,    Ala.,    2986,    3072,    3096 

3175. 
v.  State,  Neb.,  3081. 
v.  State,  Tex.  App.,  3228. 
v.  Superior,  etc.,  3618. 
v.  Territory,  3025,  3086,  3113,  3126, 

3147. 
v.  Uhl,  1073. 
v.  Webb,  1370. 
Roborge  v.  Burnham,  3196. 
Roby  L.  Co.  v.  Gray,  3383. 
Rochester  v.  Levering,  3626. 
Rochford  v.  Jackson,  3684. 
Rockafellow  v.  Baker,  1114. 

v.  Newcomb,   700. 
Rock  Falls  v.  Wells,  3753. 
Rockford  Ins.   Co.   v.   Boirum,  366L     x 
v.  Nelson,   1172. 
v.  Warne,  3744. 
v.  Byam,  1910. 


CV1 


TABLE  OP  CASES  CITED. 


[REFERENCES  are  to  sections.] 


Rockford    R.    I.    &    St.    L.    Rd.    v. 
Coulters,  333. 

v.  Heflin,    866. 

v.  Hillmer,  3303. 

v.  Rafferty,  1986. 
Rock  Island  v.  Cuinley,  4124. 

v.  Vanlanschoot,    4033. 
R.  I.  &  P.  Ry.  v.  Krapp,  2361. 

v.  Leisy  B.  Co.,  2360. 
Rockwell  v.  Capital  Tr.  Co.,  307. 
Rockwood  v.  Poundstone,  3309. 
Roden  v.  Chi.  &  G.  T.  Ry.  Co.,  4014. 
Roden  v.  State,  4691,  4745,  4749,  4756. 
Rodgers  v.  Cent.  Pac.  Rd.,  3765. 

v.  St.  L.  T.,  2104. 
Rodney  v.  Railway  Co.,  382. 
Rodrian   v.   N.    Y.,  N.  H.   &  H.   R. 

R.,  1919. 
Roe  v.  Taylor,  4462. 
Roebing   Sons    Co.    v.    Lock   Stitch 

Fence  Co.,  3510. 
Roedler  v.    Chi.,  M.    &   St.   P.   Ry., 

336. 
Roesel  v.  State,  2620. 
Rogencamp  v.   Converse,   430. 
Rogers  v.  Blythe,  639. 

v.  Brent,  107. 

v.  Empire  Hdw.  Co.,  2272. 

v.  Florence  R.  R.  Co.,  1993. 

v.  Leyden,  1574. 

v.  Ludlow,  3792. 

v.  Millard,  171. 

v.  Place,   1105. 

v.  Roberts,  305. 

v.  State,    117   Ala.    9,   3096,   4370, 
4436,  4468. 

v.  State,  117  Ala.  192,  2648,  2708, 
2845. 

v.  State,  Ark.,  142. 

v.  State,  Miss.,  4617,  4720. 

V.  Thornton,  4362. 

v.  Traders'  Ins.,  1161. 
Rohrabacker  v.  Ware,  180. 
Rolfe  v.  Rich.,  34S7,  3624. 
Roll  v.  N.  Cent.  R.,  1929. 
Rollard  v.  State,  4317. 
Roller  v.  Kling,  4291. 
Rollings  v.  State,  3295. 
Rollins  v.   State,  2857. 
Rolls  v.   State,  273. 
Roman   v.    State,   4347. 
Roodhouse  v.  Christian,  309. 
Rooks  v.  State,  65  Ga.  330,  68. 

v.  State,  119  Ga.  431,  4760. 
Roose  v.  Perkins,  1218,  3614. 
Root  v.  Baldwin,  2228. 

v.  Beck    1255. 

v.  Des    Moines    Ry.,    4136,    4140, 
4143. 

v.  Johnson,  3659. 
Roper  v.  Clay,  765. 
Rosborough  v.  State,  4722. 
Rose  v.  Revan,  1091. 

v.  Bradley,  3398,  4229. 

V.  Richmond,  326. 


Rosenbaum  v.  Levitt,  3336,  3337. 

v.  Meridian  Nat.  Bk.,  4205. 

v.  State,   332. 
Rosenberg  v.  Stein,  322. 
Rosenkrans    v.    Barker,    3704,    3715. 

3805,  3812. 
Rosenow  v.  Gardiner,  285. 
Rosenstein  v.  Traders'  Ins.,  1171. 
Rosenthal  v.  T.  B.  &  H.  Ry.,  857. 
Ross  v.  Davenport,  1671. 

v.  Dolan,  2146,   2147. 

v.  Demoss,  143,  372. 

v.  Langworthy,  3713. 

v.  Mo.  Rd.,  1836. 

v.  Ry.,  307. 

v.  State,  2987. 

v.  Wigg,  295. 
Rosum  v.  Hodges,  2239. 
Roszczyniala  v.   State,  2439. 
Roth  v.  Eppy,  1220. 
Rothschild   v.    Am.    Cent.    Ins.    Co., 
2289. 

v.  Mack,  1109. 
Rountree  v.  Haynes,   586. 
Rouse  v.  Melsheimer,  3685. 
Roux  v.  Blodgett  &  Davis,  1468. 
Rowe  v.   Baber,   352,   4302. 
Rowell  v.  Williams,  1612. 
Rowland  v.   Kreyenhagen,  326. 
Roy   v.    Goings,    168,    267,    378,    1271, 

1279. 
Royal   v.   Smith,  700. 
Royal  Trust  Co.  v.  Overstrom,  645. 
Rovce  v.  Guggenheim,  1245. 
Rubens  v.  Hill,  1234. 
Ruble  v.  Helm,  319. 
Rublee  v.  Belmont,  910. 
Rucker  v.  State,  Miss.,  3304,  4445. 
Rudd  v.  Dewey,  3427. 
Rudolf  v.  Winters,  608. 

v.  Landorlen,   242. 

v.  Wagner,  3659. 
Ruff  v.  Jarrett,  3487,  3624,  4302. 
Ruffner  v.  C.  etc.  R.,  2004. 
Ruloff  v.  People,  18  N.  Y.  194,  4467. 

v.  People,  45  N.  Y.  213,  123,  2555. 
Rumage  v.  State,  407. 
Rumbold  v.  Royal  League,  3683. 
Runge  v.  Brown,  4592,  4775. 
Runyan    v.    State,    3102,    3160,    3183, 

4746. 
Rupe  v.  Alkire,  1089. 

v.  State,  2997. 
Rush  v.  Coal  Bluff  M.  Co.,  248. 
Russ  v.  Steamboat,  etc.,  182. 

v.  Steamboat  War  Eagle,  922. 
Russell  v.  Carrington,  2247. 

v.  Columbia,   827. 

v.  Davis,    435. 

v.  Gunn,    1022. 

v.  Minteer,  153. 

v.  Marks,   276. 

v.  Rauson,  2228. 

v.  Sloan,  4774. 

v.  State,  2860. 

v.  Stewart,  423. 


TABLE  OF  CASES  CITED. 


CV11 


[BEFEBENCES  ABE  TO   SECTIONS.] 


Russell  C.  Coal  Co.  v.  Wells,  1390. 
Russell    Mfg.    Co.    v.    New    Haven 

Steamboat  Co.,  561. 
Rusterholtz  v.  N.  Y.  etc.  R.  R.  Co., 

1882. 
Ruth  v.  St.  Louis  T.,  789. 
Ryan  v.  Couch,  64. 
v.  Curran,  1367. 
v.  Donnelly,  4751. 
v.  Dunlap,  1232. 
v.  People,  4326. 
v.  Phillips,  293. 
v.  Springfield  Ins.,  1172. 
v.  State,  Mont.,  4349. 
v.  State,  S3  Wis.  4S6.  2913. 
v.  State,  115  Wis.  488,  33,  51,  2694, 
2706,     3014,     3112,     4444,     4626, 
4766. 
Ryan   v.    Trustees   Town   of   Shaw- 

neetown,  2183. 
Ryan    &    Co.    v.    M.    K.    &   T.    Ry., 

1988 
Ryder  v.  State,  4300. 


Sabine  &  E.   T.   Ry.   Co.   v.   Wood, 

505,    1592. 
Sack  v.   St.   L.   Car.,   1484. 
Sackett    v.    Ruder,    1222. 

v.  Stone,   1344. 
Sadler    v.    Sadler,    4462. 
Sahlinger  v.   People,   3244. 
St.    Amand    v.    Lemand,    316. 
St.  Clair  v.  U.   S.,  134. 
St.  Clair  Min.  Spr.  Co.  v.  St.  Clair, 

1665. 
St.    Clair   St.    Ry.   v.    Eadie,    1363. 
St.   Landry  W.   Merc.   v.    N.   H.   F. 

Ins.    Co.,    1177. 
St.  L.  Con.  Coal  Co.  v.  Scheiber,  238. 
St.  Louis  v.   Gorman,  4233. 
v.  Nelson,  298. 
v.  Ranken,  126,  394. 
v.  State,    Neb.,    2543,    2546,    29S6, 

3219,   3331. 
v.  State,  Tex.,   4571. 
St.  Louis  A.  &  T.  H.  R.  R.  v.  Ful- 
lerton,   4089. 
v.  Huggins,    3310. 
v.  Montgomery,  1707. 
v.  Odum,  1888,   4044. 
v.  Reagan,    1124,    1831. 
v.  Walker,  3310. 
St.  Louis.  A.  &  T.  R.  R.  v.  Finley, 
1336. 
V.  Taylor,    3961. 
St.  Louis  Bridge  Co.   v.  Miller.   152, 

3942. 
St.    L.    B.    &    S.    v.    Hopkins.    4146. 
St.  L.  I  M.  &  S.   Ry.  v  Baker,  314, 
1892 
v.  Barnett,    4434. 
V.  Berry,    1732. 
.  v.  Bragg,  1769. 
v.  Coolidge,    1726. 


St.  L.  I.  M.  &  S.  Ry.  v.  Hall,  3586. 
v.  Harrison,    17W. 
v.  Higgins,    1504. 

v.  Hitt,    977,    1911,   1919. 

v.  Ins  Co.,  1692. 

v.  Norton,    1965,    3403. 

v.  Prittchett,    3403. 

v.  Warren,  3403. 

v.  Wills,   288. 
St.  Louis  Ins.  Co.  v.  Kayle,  1158. 
St.    Louis   Merchants'  B.   T.   Ry.   v. 

Pepper,    4280. 
St.  Louis  Mut.  Life  Ins.  v.  Graves, 

1207. 
St.     Louis     Nat'l     Stock   Yards    v. 

Morris,  4278. 
St.    Louis    &    O.    F.    Ry.    v.    Union 

Bank,    355. 
St.   Louis  P.   &   N.    R.   R.   v.   Raw- 
ley,   349,  4041. 
St.  Louis  &  S.  E.  Ry.  Co.  v.  Britz, 
4603. 

v.  Mathias,    1880. 

v.  Valereus,    1354,    1843. 
St.    Louis    &    S.    F.    R.    R.    v.    Bur- 
rows,   4179. 

v.  Crabtree,   1911,   1919. 

v.  McClain,   1530. 

v.  Skaggs,   1512. 

v.  Traweek,    1806. 

v.  Smith,    216    111.    341,    866. 
St.  Louis  3.  W.  Ry.  v.   Ball,  928. 

v.  Brown,   1801. 

v.  Bryant,    1756. 

v.  Byers,    956,    1747,    1781. 

v.  Casseday,      961,      1487,      1800, 
1907. 

v.  Connally,   1998,   2000. 

v.  Corrigan,   1510,   3848. 

v.  Duck,    Tex.    Civ.     App.,     948, 
1764. 

v.  Elledge,    4031. 

v.  Ferguson,   174S. 

v.  Gentry,    1998,    3535,    4099. 

v.  Gill,    4048. 

v.  Goodnoght,    4099. 

v.  Groves,    3905. 

v.  Hall,   1925,   1955. 

v.  Haney,    1763. 

v.  Harrison,    1747,    1779,   3985. 

v.  Highnote,      900,      1786,      1806. 
3590,    3597. 

v.  Johnson,  917,  1803,  1804. 

v.  Kennemore,  1940. 

v.  Martin,    1756,    3752. 

v.  McDowell,    1606. 

v.  McCullough,    3567. 

v.  Miller,    4099. 

V.  Mitchell,    934. 

v.  Morrow,    895,    3967. 

v.  Parks,    1767,    3978,   4009. 

v.  Pope,   3S72. 

v.  Rea,   1539,   3872. 

v.  Ricketts,   3991. 


cvm 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


St.  Louis  S.  W.  Ry.  v.  Smith,  3332, 
3568,  3597,   3773. 

v.  Wright,    1799. 
St.   Paul  v.  Kuby,   1347,   1612. 
Sala  v.  Chi.  R.  D.  &  P.  R.  R-,  4009. 
Salem   v.    Webster,    231. 
Salem    Bank    v.    Gloucester    Bank, 

897 
Sales  v.   W.    Stage  Co.,   1747. 
Salisbury  v.   Com.,   65. 

v.  Hochenroder,    2081. 
Salladav    v.    Town     of    Dodgeville, 

952,    35S9. 
Saloman    v.    Buffalo    R.    Co.,    315. 
Salt    Lake    Lithographing     Co.     v. 
Ibex   Mine   &   Smelting   Co., 
3735. 
Salvador  v.    Feeley,    318. 
Sample   v.    Rand,    599. 
Sams   v.    R.    R.,    1438. 
Samson   v.    Samson,   2397,  2403. 

v.  Thornton,    3620. 
Samuels  v.   Fuller,    3384. 

v.  Oliver,    472. 
Samuelson  v.    Gale   Mfg.   Co.,   3418. 
San  Antonio  v.  Porter,  3920. 

v.  Talerico,    3583. 
San  Antonio  Edison  Co.   v.  Dixon, 

San  Antonio   &  A.  P.  Ry.  v.  Belt, 
2040,    4034,    4065. 

v.  Brooking,    1517,    3898. 

v.  Choate,    3391. 

v.  Connell,   3869. 

v.  Dolan,  1734. 

v.  Engelhorn,    1498,    1562,    3898. 

v.  Gray,  4051. 

V.  Use,    19S8. 

v.  Jackson,   3993. 

v.  Keller,   898. 

v.  Lester,    36. 

v.  Long,    3S69. 

v.  Robinson,    4009,    4201. 

v.  Stone,  797. 

v.  Votaw,   1893. 

v.  Wallace,    3869. 

v.  Wiegers,    1440. 
San  Antonio  T.  v.  Warren,  2020. 

v.  Welter,    2040. 

v.  White,    3610. 
Sanborn  v.   Nelson,  499. 
Sandage   v.    State,   4498,   4567. 
Sanders   v.    Keber,   2249. 

v.  O'Callaghan,    318,    3573. 

v.  North    End.    B.    &   L.    Assn., 
2144. 

v.  So.    Ry.,   1756. 

v.  State,    2571,    3174,    4402. 
Sandford    v.    Eighth    Ave    etc.    Rd. 

Co.,    1819. 
Sandilands  v.   Marsh,   2206. 
Sands   v.    Marquardt   &   Sons,   4258, 
4262. 
v.  Potter,   71,   616. 


Sandwich    v.    Dolan,    133    111.    177, 
3942,    3945. 

v.  Dolan,    141    111.    430,    107,    176, 
349,    3942. 
San  Felipe,   etc.  v.  Belshaw,  1040. 
Sanford   v.    Craig,   623. 

v.  Gaddis,    4^64. 

v.  Gates,  332. 
Sanitary  D.  Co  of  Mo.  v.  St.  L.  T., 

908,    2088,   2104,    2107,    4180. 
Sanitary    Dist.    of    Chi.    v.    Lough- 
ran,    860. 

v.  Bernstein,  129. 
Sankin  v.  Pa  Co.,  310. 
San  Luis  Obispo  County  v.  Simas, 

59. 
Santee   V.    State,   4327,   4593,   4790. 
Santissima  Trinidad,    344. 
Sargent   v.    Courrier,  1233. 

v.  State,   407. 
Sartwell  v.  Parker,  1263. 
Sater  v.    State,   2571,   4321. 
Saulsbury   v.   Wimberly,   476. 
Saunders  v.    Claudd,   307. 

v.  People,   4562. 

v.  R.    R.,   2100,   4177. 
Savage  v.   Hazard,  1060. 
Savannah  Ry.  v.   Beasley,   2104. 
Savannah  etc.  R.  Co.  v.  Wideman, 

355. 
Savarg  v.  State,  2664. 
Savary   v.    State,   2987,    3081,   4685. 
Saveland  v.   Green,  384,  485. 

v.  Wisconsin       Western       Ry., 
3510. 
Sawyer  v.    State,  2571,  3174. 

v.  Taggart,   605. 
Scaife  v.    Stovall,   3734. 
Schad   v.    Sharp,    34G2. 
Schaefer  v.  Cent.  C.  Ry.,  4153. 

v.  Silverstein,   1239,    3693,   3704. 
Schaefler  v.   Sandusky,   1614. 
Schafstette   v.    St.    L.   &   M.    R.   R., 

1902. 
Schanzenbach  v.  Brough,  3339. 
Schattgen  v.  Holnback,  1265. 
Schauer   v.    State,    4722. 
Scheffer  v.  Ry.  Co.,  1769. 
Scheffler   v.    Ry.    Co.,    3580. 
Schenck   v.    Mercer   Mut   Ins.    Co., 

1174. 
Schendel  v.  Stevenson,  281. 
Schenk   v.    Phelps,   2152. 
Schenke   v.    Rowell,   511. 
Scherrer  v.  Balzer,  3533. 
Scheuk  v.  Hagar,  3329,  3331. 
Schieffelin  v.   Schieffelin,   2390,   4293. 
Schimilovitz   v.    Bares,    314. 
Schindler  v.  M.  Ry.,  118. 
Schintz    v.    People,    84,    91,    2654. 
Schissler  v.    State,   2577. 
Schively  v.  Lankford,  15. 
Schlichter  v.   Philips,    2351. 
Schlotter  v.   State,   241. 


TABLE  OF  CASES  CITED. 


C1X 


[references  are  to  sections.] 


Schmalzried  v.  White,  2081. 
Schmelz   v.   Schmelz,   308. 
Schmeuckle   v.    Waters,   4219. 
Schmid   v.    Insurance  Co.,   332. 
Schmidt   v.    Balling,    3756. 

v.  Chicago      &       Northwestern 
Ry.   Co.,   59. 

v.  Mitchell,   672. 

v.  Mitchell,    1221. 

v.  N.  Y.  N.  Mut.  Fire  Ins.  Co., 
6 

v.  Ry.  Co.,  1543. 

v.  State,   4766. 

v.  St.    L.    R.,   2019,   2085,   2102. 

v.  St.  Louis  Ry.,  3323,  4166. 
Schmil   v.   Edgeworth,   3490. 
Schmisseur  v.    Kreilich,   2293,   4264. 
Schmitt  v.  Mo.  Pac.  Ry.,  1871,  1896, 

1910,  1931. 
Schneider   v.   Hosier,   781. 

v.  N.    Chi.    St.    R.,    225. 

v.  Turner,    608. 
Schnier    v.    The    People,    181,    2623, 

3032,    3034,    4699. 
Schoenfeldt  v.   State,  2803. 
Schoneld  v.  Baldwin,  4264. 

v.   R.   R.,  1869. 
Scollans  v.   Flynn,   641. 
Schollay      v.      Moffett-West      Drug 

Co.,   486,   494,    3412. 
Scholten   v.   St.   L.    &   S.   F.   R.    R., 

2007. 
Schoolcraft  v.   People,   2493,   2507. 
School  District  v.  Boston,  etc.  Rd. 
Co.,   1720. 

v.  Foster,    2717. 

v.  McCoy,     2432. 

v.  Davies,   2432. 
Schooling   v.   Harrisburg,   1148. 
Schorb    v.    Kinzie,    3319. 
Schornak   v.    St.   P.    F.    &   M.    Ins., 

1184. 
Schreyer   v.    Scott,   1086. 
Schroeder    v.    Car    Co.,    3045. 

v.  Crawford,   1221. 

v.  Mitchell,    133. 

v.  R.    R.    Co.,    1554. 

v.  Walsh,    1087,   1099. 

v.  Webster,    4220. 
Schrunck  v.   St.   Joseph,  3917. 
Schulte   v.    Menke,   1221. 
Schultz   v.   Cremer,   269. 

v.  C.   etc.    R.,   1929. 

v.  Ins.,    1207. 

v.  State,    4339. 
Schultze   v.   Coulthurst,    3427. 
Schulz   v.   Buederick,   321. 
Schumacher  v.   Cabe-Churchill  Co., 

15. 
Schumitsch   v.   Am.   Ins.,   1172. 
Schutz  v.  Jorden,  3412. 

v.    State,    2550,    3306,    4388,   4499. 
Schuyler    v.    Smith,    1228. 
Schwabacher   v.    People,    4411. 
v.  Riddle,    3645. 


Schwachtgen       v.       Schwachtgen, 

4362. 
Schwamba     Lbr.     Co.     v.     Schaar, 

2239. 
Schwantes  v.   State,  2565. 
Schwartz  v.  Lee  Gon.  Oreg.,  48. 

v.  Shull,  1388,  3798. 
Schweickhardt  v.  St.  Louis,  1629. 
Schweinfurth   v.    C,   Chi.    &   St.    L. 
Ry.,     1350,     1887,     1903,     1920, 
3752,   4072. 
Schweizer  v.   Tracy,   1130. 
Schwend  v.  St.  Louis  Traction  Co., 

3575. 
Scott  v.    Bryson,   2298. 

v.  Buck,  2321. 

v.  C.  G.  W.   Ry.  Co.,  3809. 

v.  Chi.,  M.  &  St.  P.  Ry.,  132. 

v.  Delaney,    210,    449. 

v.  Dewey,  1275. 

v.  McMenamin,   3769,   3835. 

v.  McNeal,    3684. 

v.  People,   128. 

v.  Russell,    266. 

v.  Ry.   Co.,  3981. 

v.  Snyder,    3331. 

v.  State,  105  Ala.  57,  4340. 

v.  State,   133  Aia.    112,  4334. 

v.  State,   Ind.,  4548. 

v.  State,   La.,  234. 

v.  State,   46   Tex.    Cr.    App.    530, 
2972. 

v.  State,    Tex.    Cr.    App.,    36    S. 
W.   276,   4787. 

V.  T.   P.   Ry.,  1391. 

v.  Wood,  4009. 
Scott    Lumb.    Co.   v.   Hafner-Loth- 

man   Mfg.    Co.,    3510. 
Scribner  v.  Beach,  4764. 
Scripts  v.  Reilly,  75,  79,  80. 
Scroeder  v.   R.   Co.,   148. 
Scroggins  v.   Brown,  322. 

v.  State,  4546. 
Scudder  v.    Bradberry,   2330. 
Seal  v.   State,  309. 
Seale  v.  Ry.   Co.,  1763. 
Seales  v.   State,  4495. 
Seals  v.  State,  3027. 
Seaman  v.  O'Harra,  707. 
Searcy   v.    Sudoff,   4264. 
Searle   v.    Railroad,   860. 
Searles   v.    People,   2789. 
Sears  v.  Loy,  3385. 

v.  Starbird,   322. 

v.  Taylor,    1039. 
Seattle  v.  Alison,  278. 
Seattle,  G.   E.   L.   &  M.  v.   Seattle, 

1347. 
Seattle    &    M.    R.    v.    Roeder,    847, 

860. 
Seaver  v.   Dingley,   2237. 

v.  Town   of   Union,  4118. 
Seavy  v.  Dearborn,  1093,  3631. 
Seawell  v.  K.  C.  Ft.  S.  M.  R.,  900. 


ex 


TABLE  OF  CASES  CITED. 


[EEFEEENCES   ABE   TO    SECTIONS.] 


Sebastian    v.     State,     42    Tex.     Cr. 
App.   84,  4733. 
v.  State,    44   Tex.    Cr.   App.    508, 
3184. 
Seckel   v.    Scott,   171. 
Second    Nat.    Bank   v.    Gilbert,    543, 

3646. 
Secor  v.  State,  406,  2696,  3390. 
Seefeld  v.  Thacker,  2260. 
Seeley    v.    State,    4327,    4722. 
Seg-ars   v.    State,    3288. 
Sehr  v.   Lindeman,   2416. 
Seitz   v.    Miles,    1049. 
Selby   v.   Hutchin,   653. 
Sellar   v.    Clelland,    411. 
Sellars    v.    Foster,    3689. 
Selleck    v.    Janesville,    127. 
Selma  St.   &  S.   Ry.   v.   Owen,  2062. 
Sentel  v.    So.    Ry.,   I860. 
Septowsky    v.    St.    L.     Trans.    Co., 

366,   375,   2100,   4120. 
Sepulveda  v.   Sepulveda,   455. 
Serrano  v.  Miller  &  Teasdale  Com- 
mission   Co.,    1109,    3644. 
Sessions    v.    Rice,    86. 
Setchel   v.    Keigwin,    369. 
Settle   v.    St.    L.   etc.   Ry.   Co.,   3825. 
Sewell   v.    Sling-luff,   4286. 

v.    State,   4326. 
Seymer  v.    Town   of  Lake,    3940. 
Seybolt  v.   R.   R.,  2031. 
Seyfer  v.    Otoe   Co.,    1663. 
Shabamaw    v.    Thompson    Co.,    295. 
Shafer  v.  Russel,  2250. 
Shaffner  v.   Ehrman,  3457. 
Shafstette    v.    St.    L.    &    M.    R.    R. 

Co.,    1347. 
Shakey  v.   Hawkeye  Ins.,   1168. 
Shaller  v.   Det.   U.   Ry.,   93. 
Shanahan    v.    St.    L.    T.,    919,    2036, 

4120. 
Shanley    v.   Wells,    4324. 
Shannon   v.    Com.,    4511. 

v.  Cons.    T.    &    P.    Mining    Co., 

1376,    1430. 
v.  Pearson,    3427. 
v.  Swanson,    513. 
Shantley  v.   Wells,   4158. 
Shappiro   v.   Goldberg,   1127. 
Sharp   v.   Sharp,   1012. 
v.  State,    Ark.,   3392. 
v.  State,    Ohio,    2864. 
v.  State,   Tex.,   2740. 
Sharpe  v.   Johnson,   1279. 
Shaw  v.   Bryan,   318. 
v.  Gardner,    1718. 
v.  Gilbert,    1099. 
v.  S.  C.  Ry.  Co.,  1727. 
v.  State,     Ala.,     2319,    2648,     2693. 
v.  State,   Ga„  65,   3243. 
v.  State,    Tex.,    3049. 
Shawneetown  v.   Mason,  265. 
Shea  v.  Muncie,  3208. 
Sheahan    v.    Barry,   767. 
V.  Collins,   818. 


Shear    v.    Wright,    656. 
Shearer   v.    Middleton,    446. 
Shebek     v.      National     Credit    Co., 

3792,   3814. 
Sheehy  v.   Duffy,  277. 
Sheel  v.  The  City  of  Appleton,  1613. 
Sheer  v.    Sheer,   4292. 
Shellabarger  v.   Nefaus,  329,  3:i31. 
Shelly  v.  Brunswick  T.   Co.,  2103. 
Shelton  v.  L.  S.,  etc.  Rd.,  1819. 

v.  No.    Tex.   T.    Co.,   4159. 
Shenkenberger   v.    State,    186,    4462, 

4686. 
Shepard    v.    Blossom,    3735. 
v.  Creamer,    1683. 
v.  Mills,    120. 
v.  St.    L.    T.    Co.,    3300. 
Shephard  v.   R.   R.,   1973. 
Shepherd  v.  State,  3313,  4522. 
Shepperd  v.   State,  4784. 
Sheriff  v.    Suggett,   509,    3433. 
Sherlock  v.  Ailing,  1748. 
Sherman  v.  Crosby,  425. 
v.  Dutch,   3435,   3983. 
v.  Lumber  Co.,  3360,  3385. 
v.  Welles,  1691. 
j  Sherman  Center  Town  Co.  v.  Leon- 
ard,  795. 
Sherman  S.  &  S.  Ry.  v.   Bell,  1523. 
Sherrill    v.     State,  ,  2708,    29S6,    3101, 

3131,    4420,    4469,    4759. 
Sherwood  v.   C.  &  W.  M.  R.  R.,  82 
Mich.   374,   918. 
v.  Chi.  &.  W.   M.   Ry.,  88  Mich. 

108,   357. 
V.  St.   Paul,   etc.,   Rd.,   1038. 
v.  Sherwood,   292. 
Shetter  v.  Chi.   &  N.  W.  Ry.,  1432. 
Siebert    v.    Leonard,    163. 
Shield   v.   Wyndham,    203. 
Shields   v.    Alston,   4286. 
v.  State,   2914,   4544. 
Shipley  v.   Carroll,  2174. 

v.  Fifty  Associates,  1683. 
Shipman  v.   Seymour,  1112. 
Shippers'  Compressed  W.  H.  Co.  Vi 

Davidson,    314. 
Shirk  v.  Mitchell,  4105. 
Shirley  v.  Lunenburg,  289. 
Shirras  v.  Craig,  1321. 
Shirts  v.   Overjohn,  382. 
Shissler   v.    State,    124. 
Shiver  v.   State,  2751,  4461. 
Shiverick  et  al  v.  Gunning  Co.,  826. 
Shockley  v.   Tucker,   1290. 
Shoemacher  v.   State,   40. 
Shoemaker  v.   Bryant  L.  &  S.  Mill 

Co.,   1444. 
Sholey  v.   Mumford,  424. 
Shook  v.  Proctor,  293. 
Shorb  v.   Kinzie,   3300. 

v.  Webber,    1219. 
Shore  v.  Wilson,  3371. 
Shortel  v.  City  of  St.  Joseph,  394. 


TABLE  OF  CASES  CITED. 


CXI 


[references  are  to  sections.] 


Shorter    Univ.    v.    Franklin    Bros., 

309. 
Shotwell  v.   Gorden,  3462. 
Shoup   v.   Shoup,  3622. 
Snowies  v.   Freeman,   299. 
Shreeves   v.   Allen,    2168,   2176. 
Shreffler  v.  Nadelhoffer,  1345. 
Shugart    v.    Egan,    1221. 
Shular  v.   State,  243. 
Shulse  v.   McWilliams,  70. 
Shupack  v.  Gordon,  Conn.,  964. 
Shurtliff  v.   Phoenix  Ins.,  1174. 
Siberry    v.    State,    2652,    2705,    4434, 

4446. 
Sibley    v.    McCausland,    285. 
Sibley     Warehouse     &     S.     Co.     v. 

Durand,   838. 
Sickle  v.   Wolf,   3329. 
Sickra  v.    Small,  4269. 
Siddall  v.  Jensen,  249. 
Sidway  v.  Missouri  Land  and  Live 

Stock  Co.,   3396,   3497. 
Sidwell  v.   Lobley,   307. 
Siebert  v.  People,  229,  365,  2536. 
Siegel  v.   Chicago  T.   &  S.  B.,  2176. 
Sigafus  v.  Porter,  3522. 
Sigsbee  v.   State,   407,  4462. 
Sikes    v.    Tippings,    499 
Silberry  v.   State,  2657. 
Silcox  v.  Lang,  58. 
Sillie  v.    State,   4446. 
Silly  v.   Waggoner,   612. 
Silver  Springs,   O.  &  G.  R.  v.  Van 

Ness,  751,  994. 
Silveira  v.   Iversen,   1412. 
Simar  v.  Canaday,  1103. 
Simmerman   v.    State,    3080. 
Simmons  v.   Chi.    &  Tomah   R.    R., 
249,    254,    1466,   1581. 

v.  Simmons,    704. 

v.  State,    2571,   4321. 
Simms   v.    Summers,  4203. 
Simon  v.   People,   96. 

v.  State,    Ala.,    406,    408,   409. 

v.  State,  Tex.,  705. 
Simonds   v.    Baraboo,   3927. 

v.  Henry,   1289. 

v.  Hoover,   3466. 

v.  Strong,     2211. 
Simons    v.    Mason    City    &    Ft.    D. 

Ry.,    3558. 
Simpson    v.    Magitson,    3371. 

v.  Mansfield    R.    R.,   293. 

v.  State,   4556. 

v.  Wrenn,    54,    2240. 

Sims  v.   Frankfort,   1255. 

v.  Gray,    1034. 

v.  Southern  Ry.,  944,  1977. 

v.  State,   4442,   4448. 
Sinclair  v.   Berndt,  3759. 
Singlemeyer  v.    Wright,    316. 
Singleton  v.   State,  2735,  4475. 
Sinkeforth   v.    Lord,    1100. 
Sinnet  v.  Bowman,  4293. 


Sioux   City   &    P.    R.    v.    Finlayson, 

3787,    3923. 
Sisson    v.    Cleveland,    1738. 
Sitton  v.   McDonald,  921. 
Sjogren  v.  Hall,   1570. 
Skaggs    v.    Emerson,    1246. 
Skeen  v.  Chambers,  202. 
Skellenger    v.    Chi.    &    N.    W.    Ry., 

249. 
Skelly    v.    Boland,    91. 
Skelton  v.   Pac.   L.   Co.,   1490. 
Skidmore  v.   Bricker,    1272. 
Skiles  v.  Caruthers,  175. 
Skinner  v.   Skinner,   1009. 
Skipper  v.    Georgia,   390. 
Skowhegan  First  Nat.  Bk.  v.  Max- 
field,   1108. 
Skrainka  v.  'Allen,  1143. 
Slack   v.    Harris,    2508. 
Slade  v.  State,  2515,  4427. 
Slater  v.   Rink,   897. 

v.  State,  46S6. 
Slaughter  v.    Fay,   570. 
Sleuter  v.  Wallbaum,  749. 
Sloane  v.    Railway,   914. 
Slocum  v.   People,   2783. 
Sloss    Iron    &    Steel    Co.    v.    Tilson, 

4187. 
Slover  v.   Rock,   3402. 
Sluttmeister  v.    Superior  Ct.,   287. 
Small   v.    Brainder,    163. 

v.  Chi.    Ry.,    117. 

v.  Howard,    3721. 

v.  Roberts,    556. 
Smalley   v.    Appleton,   127. 
Smart  v.  Blanchard,  2283. 
Smathers   v.    State,   4788. 
Smedis    v.    Brooklyn,    etc.    R.,    1914. 
Smentek   v.    Cornhauser,    2146. 
Smethurst    v.    Barton    Sq.    Church,, 

1683. 
Smiley  v.   Scott,  245. 
Smith   v.    Association,    1263. 

v.  Austin,    1279. 

v.  B.   &  M.    Ry.,   1834. 

v.  Benson,   2218. 

v.  Bolles,    3522. 

v.  Boston    &   M.    R.    R.,   1913. 

v.  Boswell,  294. 

v.  Bragden,   225. 

v.  Burrus,    1263. 

v.  Causey,   4277. 

v.  Chi.    &    A.    Ry.,    2020. 

v.  Com.,  Ky.,  27. 

v.  Com.,  Pa.,  4511. 

v.  Commonwealth    Ins.,   1177. 

v.  Denman,   731. 

v.  Dennision,    325. 

v.  Evans,    56. 

v.  Gaslight  Co.,  2124. 

v.  Grimes,   333. 

v.  Gulf,    W.    T.    &  P.   Ry.,   3842. 

v.  Hale,  4253. 

v.  Hall,    3532,    3711. 

v.  Hamilton,   584. 


CX11 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


Smith 


v.  Heitman  Co.,  1326. 

Henline,    513. 

Hitchcock,    430. 

Hockenberry,   500. 

Holcomb,   213,   216. 

Holmes,   3951. 

Howard,    1271. 

James,    4304. 

Johnson,    728. 

Joice,  3187. 

Jones,   4. 

Jones   Co.,   286. 

Knight,  2201. 

Lowell   Mfg.   Co.,  1434. 

Lozo,    2300. 

Lyke,   3429. 

McKay,   585. 

McLean,    111.,   1235. 

McLean,   Iowa,   2237. 

McMillen,    213. 

Meyers,  499,  501,  774,  776,  3430. 

Milwaukee         Builder's         & 
Trader's    Exchange,    3576. 
v.  Mo.   &  K.   Tel.   Co.,   391. 
v.  Mohn,    276. 
v.  Morse,   690. 
v.  New    Haven,    etc.    Rd.    Co., 

1729,    1735. 
v.  Parks,   326. 

v.  People,   25  111.   1,   2903,   2905. 
V.  People,  74  111.  144,  2729. 
v.  People.  103  111.   82,   4569. 
V.  People,  115  111.   17,   4565. 
v.  People,  141  111.   452,   3688. 
V.  People,  142  111.  117,  4331,  4662, 

4755. 
V.  Potter,  1504. 
V.  Ry.,    Minn.,    1840,    4137. 
v.  Ry.  Co.,  Mo.,  3327. 
v.  Ry.  Co.,  N.  Y.,  4499. 
v.  Ry.   Co.,  Tex.,   1517. 
V.  Richardson    Lbr.    Co.,    1391. 
v.  St.   Joseph,    872. 
v.  St.   P.   City   Ry.,   4125. 
v.  Savannah,   Florida   &   West- 
ern Ry.  Co.,  3664. 
V.  Seattle,    337S. 
v.  Sebree,  143. 
v.  Sedalia,    4281. 
v.  Shafer,  295. 
v.  Sherwood,  83. 
v.  Sisters  of  Good  Shepherd,  46. 
v.  Smith,  Ga.,  2225. 
v.  Smith,  Iowa,  1304. 
v.  Smith,   Mo.,   286. 
v.  Smith,  Neb.,  1031. 
v.  Smith,  N.  J.,  728. 
v.  Sovereign  Camp  of  Woodmen 

of  the   World,   3680. 
V.  Sparkman,    2248. 
v.  State,  88  Ala.  23,  4426,  4784. 
v.  State,   92  Ala.   30,   2648. 
v.  State,   103  Ala.   40,   3244. 
V.  State,   103   Ala.   57,   3267. 
V.  State,  108  Ala.  1,  2803. 
V.  State,   118  Ala.  117,  374. 


Smith  v.  State,  133  Ala.  145,  4352. 

v.  State,   137   Ala.   22,   4370,   4459. 

v.  State,   141  Ala.    59,   4493,   455L 

v.  State,   50  Ark.   545,  1919. 

v.  State,  59  Ark.  132,  3179. 

v.  State,  Fla.,  3106. 

v.  State,  Ga.,  2496,  2501. 
2507,    2552,    3076. 

v.  State,   58   Ind.    340,    3244,   4569. 

v.  State,    142    Ind.    288,    373,    374, 
4166. 

v.  State,   165  Ind.   188,   243. 

v.  State,    55    Miss.    513,    1101. 

v.  State,  75  Miss.  542,  3133,  3139, 
4724. 

v.  State,  4   Neb.   288,  406. 

v.  State,  61  Neb.  296,  2507,  3076. 

v.  State,  Ohio,  1350. 

v.  State,  9  Tex.  App.  150,  4439. 

v.  State,    45   Tex.    Cr.   App.    552, 
3010,    3252. 

v.  State,  22  Tex.  App.   317,   25?6. 

v.  State,    46    Tex.    Cr.    App.    267, 
2455. 

v.  State,    Tex.    Cr.    App.,    78    S. 
W.  694,  2707. 

v.  State,    Tex.    Cr.    App.,    89    S. 
W.   817,  2918,  3004,  3179. 

v.  State   Ins.   Co.,   109. 

v.  Stump,    2721. 

v.    Territory,    3119. 

v.  Township,  1636. 

v.  Vodges,    1086. 

v.  Wunderlich,    3524,    3540,    3606. 

v.  Yaryan,   503. 

v.  Zent,    1260,    1272. 
Smiths   v.   McConathy,   4281. 
Smith's   Adm'x   v.    Middleton,    3610. 
Smoot  v.  M.  &  M.  Ry.,  1437. 
Smother  v.   Hanks,  1290,  3721. 
Smucker  v..  Grinberg,   1244. 
Smyth  v.  Marsich,  270. 
Snelling  v.   State,   3160. 
Snider  v.   Burks,  4286. 

v.  State,    4395. 
Snively  v.  Meixsell,  2176. 
Snodgrass  v.   Chicago,   846. 
Snow  v.  Ware,  718. 
Snydacker  v.   Brosse,   524. 
Snyder  v.   Hannibal  Rd.,   1370. 

v.  People's    Ry.,    2093. 

v.  Pittsburg,    etc.,    R.,    2000. 

v.  R.   R.   Co.,  878. 
v.  Snyder,    2374. 
v.  State,  Ind.,  163,  197,  2639. 
v.  State,    Miss.,   3354. 
Soaps  v.    Sichberg,  507,   3433. 
Sohier  v.    Norwich  Ins.   Co.,   3674. 
Solomon    v.    Kirkwood,   2215. 

v.  Muechele,  352. 
Sonka  v.   Sonka,  939. 
Sonnen  v.    St.   L.   T.,   2054. 
Soper  v.    Hall,    307. 
v.  Halsey,  704. 
v.  Manning,  306. 


TABLE  OF  CASES  CITED. 


CXI  ll 


[references  ase  to  sections.] 


Soper  Lumber   Co.   v.    Halstead    & 

Harmount   Co.,   4z42. 
Sorenson  v.  Oregon  P.  Co.,  25,  265. 
Sosnofski    v.    L.    S.    &    M.    S.    Ry., 

1865. 
Sossamon  v.   Cruse,  2847. 
Sothman  v.  State,  3205. 
Soule  v.   Barlow,  583. 
Southard  v.   Roxford,   692. 
South  Bend   v.   Paxon,   1662. 
South  Carolina  Soc.  v.  Gurney,  290. 
Souih  Chi.  C.  Ry.  v.  Dufresne,  4149, 
4155. 
V.  Kinuare,     96     1)1.     Aop.     210, 

2105. 
v.  Kinnare,    216    111.    451,    2107. 
South   Covington   &   C.    St.    Ry.   v. 
Bolt,  950. 
V.  Constans,    2025. 
v.  Nelson,   3605. 
Southern    Bell    Tel.    &    Tel.    Co.    v. 

Mayo,    2121,    4190. 
Southern  Car  &  Fdry.  Co.  v.  Jen- 
nings, 1409. 
Southern  Const.  Co.  v.  Hinkle,  1590. 
Southern  Cotton  Oil  Co.   v.   Spotts, 

3791. 
Southern    Exp.    v.    Hill,    1352. 

v.  Palmer,    485. 
Southern    Ind.    Ry.    Co.    v.    Moore, 
3956. 
v.  Peyton,    1675,    1961,    4052. 
Southern   Kansas  Ry.   v.  Michaels, 
225. 
v.  Sage,  315,  360,  1336,  1337,  1450, 
1518,    1580,    1584. 
Southern  L.   Ins.   v.   Booker,  1168. 
Southern  Mut.  Ins.  v.  Hudson,  3308, 

3662. 
Southern  Pac.  Ry.  v.  Winton,  1498. 
Southern  Ry.   v.   Barbour,  4025. 
v.   Bush,  4016. 
v.  Clifford,    1532. 
v.  Crowder,  3969. 
v.  Cullen,    1755. 
v.  Howell,   3912. 
v.  Lynn,  4017. 
v.  O'Bryan,    3983. 
v.  Oliver,  315. 
v.  Pugh,    4177. 
v.  Reaves,   4092. 
v.  Smirley,    4092. 
v.  Watson,  3593. 
v.  Wildman,   3585. 
v.  Wilson,  1988. 
Southmayo  v.  Henley,  1040. 
South     Milwaukee     Boul.     Heights 

Co.    v.    Harte,    1114. 
South   &    North   Ala.   Rd.   v.   Hein- 
lein,    1730. 
v.  Jones,    912. 
South  Omaha  v.  Burke,  1637. 
v.  Hager,    3713. 
v.  Meyers,   1641,   1667,   3924. 
v.    Ruthjen,    362,   3551,   3933. 
v.  S-utliffe,    884. 


South  Omaha  v.  Taylor,  1671. 
South  Park  Comr.  v.  Dunlevy,  3543. 
Southwestern  F.   &  C.  E.  Co.,  2330. 
Southwestern   Rd.  Co.,  1812. 
Soward  v.   Soward,   4286. 
Sowers   v.    Territory,    2820. 
Spalding   v.    People,    2932. 
Spangler  v.   State,  4653. 
Spant    v.    Reilly,   309. 
Sparks  v.  Dispatch  Co.,  4195. 

v.  State,  86,   94. 
Spau?ding  v.  Chi.  &  K.  C.  Ry.,  133. 

v.    Hood,    4009. 

v.    R.    R.,   1J91. 

Spears  v.  C.  B.  &  Q.  R.  R.,  3955. 

v.  People,    2944. 

v.  State,    3084,    4649. 
Spect   v.   Gregg,   1035. 
Speer  v.   Bishop,   2201. 

v.  Skinner,  1321. 
Speiden  v.    State,   4562. 
Speiser  v.  Bank,  3377. 
Spencer  v.  Kinnard,  143. 

v.  Spruell,   2398. 

v.  State,  4321. 

v.  Terry's   Estate,   2385,   4285. 
Spies  V.  People,   55,   2561,   2623,   2654, 

2705,    2905,    4443,    4666. 
Spicer   v.    Commonwealth,   4373. 

v.  Webster  City,    1645. 
Spingold   v.    Tigner,   1278. 
Spitler   v.    ScoHeld,    433. 
Spivey  v.   State,  3052,  4641. 
Spraggins  v.  State,  i,648,  4356. 
Sprague    v.    Craig,    695. 

v.   Dodge,  352. 

v.  Waldo,   728. 
Sprague's      Collecting     Agency     v. 

Spiegel,   4210. 
Sprattey  v.  Hartford  Ins.,  1158. 
Springer  v.   Chgo.,   152. 

v.  Lipsis,  1331. 

v.  Springer,    291. 

v.  State,   4623. 
Springett  v.  Colerick,  3331. 
Springfield   v.    Brooks,   3931. 

v.  Doyle,   1630. 

v.  Le  Claire,  1620. 

v.  McCarthy,    1643. 

v.  State,    4340. 
Springfield    City   R.    v.    Clark,    2094. 
Springfield    Cons.    Ry.    v.   Hoeffner, 
937,    2040,   4278. 

v.  Puntenny,    671,    737,   882,   2082, 
3948. 

v.  Sommer,  4129,  4152. 

v.  Welch,    1354. 
Spring  Valley  v.    Gavin,    3939,   3942. 

v    Spring  Valley  Coal  Co.,  12. 
Spurrier  v.   Ry.   Co.,   4177. 
Sroufe    v.    Moran    Bros.    Co. ,    1415, 

1430,    1474. 
Stacer  v.   Hogan,   4289. 
Stadbecker  v.   Combs,   1743. 
Stadfeld  v.   Huntsman,   3636. 


CX1V 


TABLE  OF  CASES  CITED. 


[BEFEBENCES   ABE   TO   SECTIONS.] 


Stadden  v.  Hazzard,  631. 
Stadford  v.  Neale,  290. 
Stafford  v.  C.   B.  &  Q.  R.  R.,  1428, 
1581,    1582. 

v.  Fargo,  135. 

v.  Oskaloosa,    1644. 
Stahmer   v.    State,   2232. 
Stalker  v.  McDonald,  2171. 
Stall  v.  Morris,  223. 
Stampofski   v.    Steffens,    329,    3320. 
Stancell  v.  Kenan,  100. 
Standard  D.&  D.Co.  v.  Harris,  3797. 
Standard    Oil   Co.    v.   Bowker,    1417. 

v.  Tierney,  3570. 
Standard  Starch  Co.v.McMullen,2l6. 
Stanfield  v.  State,  4819. 
Stanley  v.   Cedar  R.  &  M.   C.   Ry., 
898,  2094,  2100. 

v.  Chi.,  M.  &  St.  P.  Ry.,  1482. 

v.  Commonwealth,    4700. 
Stanton   v.    Springfield,   3932. 
Staples  v.   Smith,  2326. 
Stapp  v.   Davis,  2137. 
Star    Elev.    Co.    v.    Carlson,    1478. 
Star  Wagon  Co.  v.  Matthieson,  247. 
Starch  v.   State,   3230. 
Starkweather   v.    Maginnis,    249. 
Starr  v.  Dow,  1118. 

v.   Rose,   223. 

v.  State,   28. 
State  v.   Abrahams,  113. 

v.  Adair,   2444,   2550. 

v.  Adams,  Iowa,   38. 

v.  Adams,   Mo.,  2925. 

v.  Adler,    3115. 

v.  Ah  Cheuy,  150. 

v.  Ahmook,    3081. 

v.  Ah  Tong,  91. 

v.  Aikens,    3262. 

v.  Alexander,  Mo.,  576. 

v.  Alexander,    S.   C,   3063. 

v.  Allen,    Iowa,   88,    139. 

v.  Allen,    Mo.,   2943. 

v.  Allen,    N.    C,    134. 

v.  Alley,    3102. 

v.  Ames,    481,    3272. 

v.  Anderson,    277. 

v.  Anderson,   2443,   3222. 

v.  Apple,  4384. 

v.  Appleton,  3107,  3110,  3294. 

v.  Archer,    3106. 

v.  Arden,    2731. 

v.  Ardion,  3096. 

v.  Ariel,   3063. 

v.  Armstrong,    4258. 

v.  Arthur,    2458,    4326. 

v.  Ashcraft,   2983. 

v.  Aspara,    2465,    2496. 

v.  Austin,  Ohio,  4407. 

v.  Austin,   la.,   4528. 

v.  Austin,    Mo.,   4378,   4382. 

V.  Austin,    N.    C,    3247. 

v.  Bailey,    94  Mo.   316,   3152. 

v.  Bailey,  57  Mo.  131,  4751. 

v.  Baldwin,   278. 

v.  Ballingall,  1224. 


State  v.  Banks,  Me.,  2555. 

v.  Banks,   Mo.,   180. 

v.  Bantley,   2973. 

v.  Barrett,  2847,  4470. 

v.  Bartlett,    4730. 

v.  Bartmess,    3165,    4720. 

v.  Bates,    14   Utah   293,    264,    266. 

v.  Bates,  25  Utah  1,  4781. 

v.  Bauerle,   3004. 

v.  Baum,  La.  Ann.,  4651. 

y.  Baum,  N.  C,  3290. 

v.  Baynes,  2950. 

v.  Beabout,  89. 

v.  Beale,  288. 

v.  Bean,   2972. 

v.  Beasley,  230. 

V.  Bell,   4413,  4553. 

v.  Benham,  3069. 

v.  Berger,  2879. 

v.  Bertoch,  3057. 

v.  Beuerman,  84. 

v.  Bingham,  2851,  2909. 

v.  Bingham,  4582. 

v.  Birkby,  4335. 

v.  Bjelkstrom,  3233. 

v.  Bland,  2725. 

v.  Bliss,  3246. 

v.  Bloomfield  St.  Bank,  281,  291, 
295. 

v.  Blunt,  la.,  4319. 

v.  Blunt,  Mo.,  2695. 

v.  Bodie,   4613. 

v.  Bohan,  3106.  3100. 

v.  Bond,  Idaho,  2748,  4485. 

v.  Bond,   la.,  3229. 

V.  Bond,  Mo.,  2545,  2635,  2984. 

v.  Bone,  2717,  3107,  4719. 

v.  Bonner,  4599. 

v.  Boon,  4384. 

v.  Borelan,  19. 

v.  Bowers,  3178. 

v.  Boyer,  2458. 

v.  Brady,  4467,  4569. 

v.  Brainard,  180. 

v.  Branstetter,  4681,  4713. 

v.  Brant,  69. 
.      v.  Brennan,  2515,  4368. 

v.  Bridgman,  2787. 

v.  Brinte,    2467,    2471,    2513,    2527, 
2631,   2651,   2954,   3032,   3034. 

v.  Bristol,  2634. 

v.  Britt,  2943. 

v.  Brooks,    382,  4766. 

v.  Brown,  Del.,  2S59,  2871. 

v.  Brown,  la.,  88,  102,  140,  2639. 

v.  Brown,  Minn.,  30S1. 

v.  Brown,  63  Mo.  439,  3177. 

V.  Brown,  104  Mo.   365,  576.      . 

V.  Brown,  168  Mo.  449,  4671. 

v.  Brown,  188  Mo.  451,  51. 

V.  Brownlee,  35,  36,  59. 

v.  Bruce,   2595. 

v.  Buck,   574,  576. 

v.  Buffington,  66  Kan.  706,  4625. 

v.  Buffington,   71  Kan.  804,  3113. 

v.  Bulling,   4681. 


TABLE  OF  CASES  CITED. 


CXV 


[REFERENCES  ABE  TO  SECTIONS.] 


State  v.  Bullinger,  2804. 
v.  Bundy,  2443. 
v.  Buralli,  2773,   3111. 
v.  Burd,   2947. 
v.  Burns,  Nev.,  346,  3328. 
v.  Burns,  la.,  2995,  3057. 
v.  Burrell,   2517. 
v.  Burton,   327,   334,  2438. 
v.  Busse,  4642. 
v.  Butts,    399. 
v.  Byers,  4384. 
v.  Byrd,     72   S.   C.   104,  41. 
V.  Byrd,  52    S.    C.    480,    3090. 
v.  Cable,  4714. 
v.  Cain,  La.,  2797,  2798. 
v.  Cain,  9  W.  Va.  559,  3196. 
V.  Cain,  20  W.  Va.  679,  3020,  3365, 

4332,  4629. 
v.  Caffrey,   3193. 
v.  Calhbun,    2897." 
v.  Callahan,  4489. 
v.  Callaway,  4683. 
v.  Cameron,   2556. 
v.  Campbell,    3323. 
v.  Cancienne,    4651,  4678. 
v.  Cannada,    2822,   2825. 
v.  Carlisle,    576,    2515. 
v.  Carnagy,    83. 
v.  Carney,  17. 
v.  Carpenter,  33,  2820. 
v    Ccirr     2556 

v."  Carter,  3106,   3160,  3329,  4742. 
v.  Carver,  4537. 
v.  Case,    2656. 
v.  Castle,   4679. 
v.  Cater,     177,     3709,     4330,     4428, 

4672. 
v.  Cather,  4553. 
v.  Cavanaugh,  7. 
v.  Cent.   P.    R.,   296. 
v.  Chambers,  2803. 
v.  Chandler,    4706. 
v.  Chappell,   4562. 
v.  Chee    Gong,    4321. 
v.  Chevalier,   336,  4352. 
v.  Child,  4316. 
v.  Chittenden,    281. 
v.  Chovin,    1819. 


Christian,    2993,    3082,   3083. 
Chyo    Chiagk,    4489. 
Clancy,    2634. 
Clark,  80  la.  517,  4413. 
Clark,  102  la.  685,  4817. 
Clark,  104  la.  691,  4437. 
Clark,  Mo.,  2685. 
Clark,    N.    C,   2720,   3173,   3178, 
4470. 


V. 

Clark,  N.  J.,  2757. 

V. 

Clark,   Wash.,  2569. 

V. 

Clark,  W.  Va.,  3122,  4765. 

V. 

demons,  2484,  3029. 

V. 

Coats,    2515,    2573,   2605,   4394 

V. 

Cody,  2838. 

V. 

Coffee,    4514. 

V. 

Coffman,  4531. 

State  v.  Cohen,  2657,  2678,  4434,  4437, 

4353. 
v.  Coleman,  La.  Ann.,  2606. 
v.  Coleman,  S.  D.,  2507. 
v.  Collins,  4384. 
v.  Commonwealth,    4647. 
v.  Conklin,    630. 
v.  Connor,   2858,   2868. 
v.  Cook,    4378. 
v.  Cooper,  4514. 
v.  Cornan,    3197. 
v.  Corrivau,  3083. 
v.  Costa,    4774. 
v.  Cottrill,    3122,   3176. 
v.  Crab,    4489. 
v.  Crafton,    74. 
v.  Craige,   277. 
v.  Crank,   4785. 
v.  Crawford,  la.,  3137. 
v.  Crawford,  Wash.,  4701. 
v.  Crea,   4610. 
v.  Crofford,  4349,  4504. 
v.  Croney,  50,  55. 
v.  Cronin,  3278. 
v.  Cross,  W.  Va.,  4613. 
v.  Cross,  Vt.,    678. 
v.  Crowell,    4321. 
v.  Currie,  3103. 

v.  Curtis,   Mo.,  3005,  3030,  4681. 
v.  Curtis,  N.   C,    270. 
v.  Cushing,  Mo.,  3331. 
v.  Cushing,     Wash.,    2484,     3152, 

3165,   4742,   4746. 
V.  Cutshall,  20. 
v.  Dana,    4486. 
v.  Darling,    341,    2490,    2531,    2545, 

2568,     2632,     2752,     2777,     2976, 

2987,   3013,    3070,   3105,   3149. 
v.  Darragh,    574,    576. 
v.  Davenport,    2498. 
v.  David,    4352,    4671. 
v.  Davis,  Del.,  2683. 
v.  Davis,  la.,   66. 
v.  Davis,  194  Mo.  485,  2635,  3285. 
v.  Davis,  186  Mo.  533,  2899,  2444. 
v.  Davis,  S.    C,   3023. 
v.  Davis,  W.  Va.,  4332,  4607. 
v.  Dawson,  4489. 
v.  Deatheage,   2456,   2548. 
v.  Debolt,  4413. 
v.  Decklotts,    406. 
v.  Delong,   631. 
v.  Desmond,  4528. 
v.  Dewis,    2830. 
v.  DeWitt,    2558. 
v.  De  Wolfe,  346,  2727,  3324. 
V.  Dierberger,  4654,  4658. 
v.  Dineen,  4444. 
v.  District     Court     of     Ramsey 

Co.,   292. 
v.  Doane,    283. 
v.  Dodds,    2549,    2672,    4611,    4618. 

4827,    4629. 
v.  Doig,    3063. 

v.  Dolan,  la.,  4531,  4534,  4536. 
v.  Dolan,  Wash.,  4548. 


CXV1 


TABLE  OF  CASES  CITED. 


[REFERENCES  are  to  sections.] 


te 

v.  Donahue,  180,  4755. 

State 

v.  Forsha,  35. 

v. 

Donnelly,   2S89,  4489. 

v. 

Foster,   la.,   31. 

v. 

Donovan,  129  la.   239,  2885. 

v. 

Foster,    Mo.,    2889. 

V. 

Donovan,  61    la.    369,    4413. 

V. 

Foster,  N.  D.,  4350. 

V. 

Donovan,  Neb.,   173. 

V. 

Foster,  S.  C,  2633,  3023,  3110 

V. 

Dooley.    31. 

3161. 

V. 

Dorland,    4419. 

V. 

Fox,    la.,    2788. 

V. 

Dorsey,  336. 

V. 

Fox,    Mo.,    3284. 

V. 

Dotson,    333,    3104,    3108, 

3126, 

V. 

Frahm,    2884. 

4349. 

V. 

Fraunburg,   3111. 

V. 

Douglas,   4795. 

V. 

Frazier,  3004. 

V. 

Downer,    192. 

V. 

Freiderich,    346. 

V. 

Drumm,    3068. 

V. 

Fry,   2443,   2872. 

V. 

Dudoussat,   2780. 

V. 

Fuller,  2555,  3324. 

V. 

Dull,    3069. 

V. 

Fullerton,  46. 

V. 

Duncan,   48. 

V. 

Furlong,  3265. 

V. 

Dunn,  18  Mo.  419,  3081. 

V. 

Furney,    2676,    4437. 

V. 

Dunn,  80  Mo.  6s9,  3030. 

V. 

Gardner,    3160. 

V. 

Dunn,  Wis.,  2486,  4801. 

V. 

Garrett,  60  N.  C.  144,  4654. 

V. 

Earnest,    3069. 

V. 

Garrett,  71  N.  C.  95,  150. 

V. 

Eaton,    4699. 

V. 

Garth,  3278. 

V. 

Eddon,    3100. 

V. 

Gartrell,   55,  30S4,  4681,  4713. 

V. 

Edgerton,  38. 

V. 

Garvey,   2861,    4413,    4415. 

V. 

Edwards,  70  Mo.  480,  3030. 

V. 

Gatlin,    2495,    2531,    2545,    2568 

V. 

Edwards,     71    Mo.     312, 
3278. 

2645, 

2685,     2728,     2737,     2758,     2767 
3003,  3058. 

V. 

Edwards,  N.   C,  2920. 

V. 

Gesell,    90. 

V. 

Eggleston,  701,  2787,  2790, 

4510. 

V. 

Gibbons,    193. 

V. 

Elkins,    3152,    3327. 

V. 

Gibbs,  2634. 

V. 

Ellick,    4470. 

V. 

Gibson,    4699. 

V. 

Elliott,  90  Mo.   350,   2548. 

V. 

Gillick,   215,   2867. 

V. 

Elliott,   98   Mo.   150.  4681, 

4713. 

V. 

Gleim,   2601,  2634,  4437,  4464. 

V. 

Ellis,  74  Mo.  385,  2803. 

V. 

Glynden,  4642. 

V. 

Ellis,  11  Mo.  App.  588,  2803. 

V. 

Goddard,    3106. 

V. 

Ellis,  74  Mo.  207,  3014,  4681. 

V. 

Golden,  2885. 

V. 

Ellis,    Wash.,    4731. 

V. 

Goldsborough,   2954. 

V. 

Elsham,    410,    2506,   2720, 

4462. 

V. 

Gooch,  2735. 

V. 

Elvins,    229. 

V. 

Good,  2949. 

V. 

Emery,   245. 

V. 

Goode,  900. 

V. 

Enslow,  3281. 

V. 

Goodenow,   2626. 

V. 

Erb,    4403. 

V. 

Gordon,  3104,  4713. 

V. 

Eubank,    3229,    3246. 

V. 

Graham,   la.,   2855. 

V. 

Evans,  Minn.,  203. 

V. 

Graham,   74   N.   C.    646,    150. 

V. 

Evans,   124  Mo.   397,   4637 

V. 

Graham,  133  N.  C.  645,  4384. 

V. 

Evans,  158  Mo.  5S9,  4658, 

4682. 

V. 

Grant,  4590. 

V. 

Evans,  S.  D.,  4779. 

V. 

Graves,    4574. 

V. 

Evans,  W.  Va.,  4744. 

V. 

Graviotte,    4402. 

V. 

Evenson,  4541. 

V. 

Gray,  Mo.,  4785. 

V. 

Fairlamb,   3001. 

V. 

Gray,   Nev.,  2999. 

V. 

Fannon,    2685. 

V. 

Grayor,  1538. 

V. 

Fassett,  3261. 

V. 

Green,  la.,  1149. 

V. 

Faulkner,  4586,  4794,  4795 

V. 

Green,  Kan.,  2700. 

V. 

Felter,  25  la.   67,   4403. 

V. 

Green,  N.  C,  3220. 

V. 

Felter,     32     la.     49,    72, 

2596, 

V. 

Greenburg,  140. 

2677. 

V. 

Greenland,   33. 

V. 

Fenton,    342,    2893. 

V. 

Grinstead,  4779. 

V. 

Ferguson,    La.,    3096. 

V. 

Groome,   33,   34,  40. 

V. 

Ferguson,  Hill,  3023. 

V. 

Guidor,  3102,  3133. 

V. 

Fisher,    2635. 

V. 

Gustafson,    2487,    4335. 

V. 

Fiske,  2537,  2542,   2861,  2866. 

V. 

Hagerman,   2812. 

V. 

Fitzgerald,   la.,  4326. 

1 

V. 

Hale,   Mo.  347,  2442',  2545,  2635, 

V. 

Fitzgerald,  Vt.,  4787. 

2713,    2813. 

V. 

Fleming,   3204,  4768,   4771 

V. 

Hale,  Ore.,  3245. 

V. 

Five,    2636. 

V. 

Halliday,   111  La.  47,  4680. 

V. 

Foley,    241. 

V. 

Halliday,  112  La.  846,  4706. 

V. 

Fontenot,    3119,    3160. 

V. 

Hamilton,  la.,  4317,  4319,  4462. 

TABLE  OF  CASES  CITED. 


CXV11 


[references  are  to  sections.] 


State  v.  Hamilton,  Mo.,  241. 
v.  Hamilton,   Nev.,  2740. 
v.  Hardin,   2442,  2443,  2444. 
v.  Harkins,  4489. 
v.  Harman,    3183. 
v.  Harp,  2872. 
v.  Harper,    346,    2645,    2693,    3121, 

3179,     4658,     4705,     4709,     4757, 

4766. 
v.  Harras,    2657. 
v.  Harris,  la.,  2541,  2901. 
v.  Harris,  La.,  4651. 
v.  Harris,  N.  C,  3106. 
v.  Harrison,   Mont.,  2634. 
v.  Harrison,  Vt.,  2885. 
v.  Harrison,   W.   Va.,  4402,  4404. 
v.  Hartfield,    3196. 
v.  Hartzell,  202. 
v.  Harvey,  4796. 
v.  Hatfield,   87,  2443. 
v.  Hathaway,  2444,   4642. 
v.  Hathhorn,  4606. 
v.  Hattman,  2457. 
v.  Hauser,   2751,   4490. 
v.  Hawkins,  3129,  4719,  4735. 
v.  Haworth,  2520. 
v.  Haws,    2948. 
v.  Hayden,   45  Iowa  11,   2867. 
v.  Hayden,    131     Iowa     1,     2676, 

2677,  2678,  4353,  4437. 
v.  Hayes,    4562. 
V.  Haynes,  337,  2511,  4486. 
v.  Heatherton,  2833. 
v.  Heed,    3258. 
v.  Heidenreich,    4371. 
v.  Heinze,  2645. 
v.  Helm,  184,  238,  3150. 
v.  Henderson,   3329. 
v.  Hendricks,     2500,     2646,     2663, 

3076,  3098,  4689. 
v.  Hennessy,   4437. 
v.  Herrod,    3152. 
v.  Hertzog,   4418,    4629. 
v.  Hessian,   2726. 
v.  Hessians,  2885. 
v.  Heusack,  2500. 
v.  Hevlin,  4642. 
v.  Hickam.  4766. 
v.  Hicks,  Mo.,  3018,  3133. 
v.  Hicks,   La.,   3032. 
v.  Higgerson,   2849,   4714. 
v.  Hill,   4681,   4713. 
v.  Hinckle,    34. 
v.  Hobbs,  437S. 
v.  Hockett,  2867. 
v.  Hodge,    3244. 
v.  Hogan,   2444. 
v.  Hollenscheit,  381,  2515. 
V.  Hollingsworth,  2566,  4699,  4705, 

4709,   4759. 
v.  Holloway,     Mo.,     2695,     3278, 

4398. 
v.  Holloway,  N.  C,  4384. 
v.  Holmes,  4339. 
v.  Hopkins,   la.,   4788. 
v.  Hopkins,    S.   C,   3063. 


State  v.  Hopkins,  Vt.,  180. 
v.  Hopkirk,    2889. 
v.  Hopper,    La.,    4489. 
v.  Hopper,    Mo.,  2515. 
v.  Horn,   180. 
v.  Horning,  4335. 
v.  Hoshaw,   3216. 
v.  Hoshor,    2922. 
v.  Hossack,  2541,  2678,  3079,  4353. 
v.  Hottman,  341,  2646,  2663,  2963. 
v.  Howard,   Mo.,  4681. 
v.  Howard,  Mont.,  50. 
v.  Howell,  Mo.,  2442,  4322. 
v.  Howell,  2842,    4271. 
v.  Hubbard,  3029. 
v.  Hudspeth,    159    Mo.    178,    2635, 

2567. 
v.  Hudspeth,    150    Mo.    12,    2645, 

4366,   4744. 
v.  Huffman,   4779. 
v.  Hughes,  2545. 
v.  Hull,  316. 
V.  Hummer,    2827. 
v.  Hunt,  2510,  2985,  3008. 
v.  Hunter,    la.,    2977,    3006,    3059, 

4504. 
v.  Hunter,   N.  C,  4633. 
v.  Hutchinson,   124. 
v.  Huting,    2573. 
v.  Hutto,  2667,  3119,  3129. 
v.  Illsley,  3188. 
v.  Jackson,  La.,  4352,  4651. 
v.  Jackson,  Mo.,  4489. 
v.  Jackson,  N.  C,  2641. 
v.  Jackson,  36  S.  C.  492,  2443. 
v.  Jackson,  68  S.  C.  53,  2498. 
v.  Jacob,  150. 
v.  James,  2458,  4326. 
v.  Jarvis,  2803,  4486. 
v.  Jaynes,    4317. 
v.  Jefferson,  2652,  2657. 
v.  Jennings,  la.,  4563. 
v.  Jennings,  18  Mo.  435,  3081. 
v.  Jennings,  81  Mo.  185,  4322. 
v.  John,  48. 

v.  Johnson,  8  la.  525,  3081. 
v.  Johnson,  19  la.  230,  4467. 
v.  Johnson,  72  la.  393,  2519. 
v.  Johnson,  54  La.  Ann.  138,  2556. 
v.  Johnson,  104  La.  417,  4494. 
v.  Johnson,  37  Minn.  493,  4352. 
v.  Johnson,  81  Minn.  121,  3186. 
v.  Johnson,  Mo.,  3177. 
v.  Johnson,  N.  D.,  3323,  4437. 
v.  Johnson,  Ore.,  4697. 
v.  Johnson,  Wash.,  3221. 
v.  Johnson,  Wyo.,  4273. 
v.  Jones,  52  la.  150,  4335. 
v.  Jones,  64  la.  349,  4396. 
v.  Jones,  89  la.  183.  3107. 
v.  Jones,  125  la.  508,  3139. 
v.  Jones,  Mont.,  247S. 
v.  Jones,  61  Mo.  232,  158. 
v.  Jones,  78  Mo.  278,  576. 
v.  Jones,  N.  J.,  2986,  3126. 
v.  Jones,  S.  C,  3063. 


CXV111 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


State  v.  Jones,  "W.  Va.,  4332. 
v.  Jordan,  2884. 
v.  Judges,  326. 
v.  Judiesch,  2656,  4456. 
v.  J.    C.    of   Tp.    No.    1,    Justice 

Court  of  Township,  292. 
v.  Kaiser,  2777. 

v.  Kallaher,  3212,  3223,  3241,  3250. 
v.  Keasling,  4699. 
v.  Keenan,  3264. 
v.  Keerl,    2573,    2586,    2587,    2601. 

4400,    4404. 
v.  Kellerman,  346,  349,  3331. 
v.  Kelley,  4352. 
v.  Kelley,  49. 
v.  Kelley,  4397,  4548. 
v.  Kelly,  3885,  4569. 
v.  Kelly,   303. 
V.  Kelly,  4785. 
v.  Kendall,    2822,    2825. 
v.  Kennedy,   2645. 
v.  Kezer,  4774. 
v.  Kiefer,  91. 
v.  Kilgore,   576. 

v.  Kinder,    2479,    2693,    2767,    2985, 
3004,     3030,     3031,     3058,     3089, 
3102. 
v.  King,   2925. 

v.  Kirkpatrick,  72  la.  500.  4788. 
v.  Kirkpatrick,    105    N.    W.    121, 

la.,  309. 
v.  Kissock,  4531. 
v.  Kline,  2443. 
v.  Kloss,  3177. 
v.  Knight,   4403. 
v.  Knock,  2663. 
v.  Koch,  263. 
v.  Koerner,   4412. 
v.  Kotovsky,  4681. 
v.  Krieger,   3218. 

Krinski,    4774. 

Lackey,  2781. 

LaGrange,  2885. 

Landgraf,  2974. 

Landrv,  2541,  2555. 

Lane,  2974,  3030. 

Laurence,   2804. 

Laurie,  1079. 

Lauth,   34. 

Lavalley,    3264. 

Lawrence,   4403. 

Laxton,  102. 

Leche,  286. 

Lee,  4384. 

Lentz,  2635,  2925,  2934,  4600. 
v.  Leuhrsman,  2869. 
v.  Levelle,  2633. 
v.  Levy,  35. 
v.  Lewis,   Minn.,  3193. 
v.  Lewis,   69  Mo.  92,  2645. 
v.  Lewis,  118  Mo.  79,  3177. 
v.  Lewis,  181  Mo.  235,  55. 
v.  Lightfoot,  4528. 
v.  Lilly,  4476. 
v.  Lindgrind,  2694,  3080. 
v.  Lindoen,  4770. 


State  v.   Linhoff,  2465. 
v.  Long,  2809. 
v.  Lucas,  2678,  4353,  4439. 
v.  Lyhes,  56. 
v.  Lyons,    396,    2574,    2582,    2587, 

4401. 
v.  Maher,   2436,   2443,    3444,   4317. 
v.  Mahoney,  la.,  2887. 
v.  Mahoney,   Minn.,  3191. 
v.  Malcomb,  2864. 
V.  Malonoy,  3245. 
v.  Maloy,    173,   2740,   2741. 
v.  Manderville,  2759,  4336,  4337. 
v.  Manley,   la.,   47s*. 
v.  Manley,  Mo.,  2925. 
V.  Marceaux,  2556. 
v.  Marsh,  3005. 
v.  Marshall,  86,  2680. 
v.  Martin,  La.,  2659. 
v.  Martin,  Mont.,  4628,  2634,  4464. 
V.  Martin,  28  Mo.  530,  43,  3230. 
v.  Martin,  124  Mo.  124,  4681. 
v.  Marx,  2978. 
v.  Mason,  La.,  2751. 
v.  Mason,   Mont.,   2601. 
V.  Mason,  S.  C,  3063. 
v.  Mathes,  4687. 
v.  Matheson,   4538. 
v.  Maupin,  2545,  2663,  3104. 
v.  Maxwell,  2788. 
v.  May,  2545,  2566,  2606,  2685,  2767, 

2985,  2987,  3001,  3003,  3004,  3020, 

3105. 
v.  Mayo,  3100. 
v.  McCahill,  290S,  4413. 
v.  McCann,   3129. 
v.  McCanon,  3097. 
v.  McCarry,  2443,  4319. 
v.  McCarty,  3219. 
v.  McCarver,  327,  341,  2553,  2566, 

2632,  2663,  2985,  3001,  3004,  3104, 

3111.    3122,    3146. 
v.  McClellan,  4404. 
v.  McClintock,   4796. 
v.  McCoy,   Kans.,  2594. 
v.  McCoy,  La.,  54. 
v.  McDaniel,  N.   C,   2615. 
v.  McDaniel,     S.    C,    3343,    3063, 

4613. 
V.  McDivitt,   2765,  2822. 
v.  McDowell,  4384. 
v.  McGarry,  2436,  2444. 
v.  McGinn,  4531. 
v.  McGinnisr  2444,  2445,  2889. 
v.  McGregor,  3178. 
v.  McGuire,  2880. 
v.  McKenzie,  102  Mo.  620,  4637. 
v.  McKenzie,  177  Mo.  699,  3177. 
v.  McLain,  4574. 
v.  McLaughlin,   180. 
v.  McMullin,  2984,  3004. 
v.  McMurphy,  576. 
v.  McNally,  4605. 
v.  McNay,  28. 
v.  McPhail,   327. 
v.  McPherson,   3081. 


TABLE  OF  CASES  CITED. 


CX1X 


[BEFEBENCES   ABE   TO   SECTIONS.] 


State 


v.  Mecum,  2788. 
Meldrum,   3211. 
Melton,   3083. 
Melvern,  2548,  2561,  3020. 
Merkel,  2515,  2925. 
Mewhester,   2573. 
Meyers,  99  Mo.  107,  2889. 
Meyers,  174  Mo.  352,  2848. 
Middleham,  3183. 
Miller,  la.,  2815. 
Miller,  93  Mo.  263,  102. 
Miller,  100  Mo.  606,  4489. 
Miller,  156  Mo.   76,  2733. 
Miller,  159   Mo.   113,  2550. 
Miller,  162  Mo.  253,  4382. 
Miller,  190  Mo.  449,  2545,  2638, 

2752     3278. 

Miller,  43  Ore.  325,  4699. 
Miller,  46  Ore.  485,  54. 
Milligan,    341,   2554,   2646,   2663, 

2947,  4605. 
Milling,  2498. 
Mills,     2473,     2569,     2786,     2957, 

3071. 

Minor,  la.,  3210. 
Minor,  Mo.,  3004,  4637. 
Mitchell,   la.,   2313,   2717. 
Mitchell,  Wash.,   2548,   2895. 
Mix,  201. 

Moelchen,  2508,  2885,  4349. 
Moore.  69,  2867,  3057,  4609. 
Moore,   156  Mo.   204,  344,   2663, 

2690,  2720,  3103. 
Moore,  168,  Mo.  432,  2566,  2854, 

2865. 

Moore,  N.  C,  269. 
Moore,  N.  H.,  4571. 
Mordecai,   146. 
Morey,    2657,    2668,    3129,    4697, 

4699,   4700. 

Morgan,  N.  C,  2943. 
Morgan,  Utah,  327,  334. 
Mott,  14,  55. 
Moxley,   3004. 
Mulligan,   2457. 
Munchrath,   4413. 
Murdy,  3129. 
Musgrave,  4349. 
Musick,  88. 
Myers,   2950. 
Nance,   2443. 
Naves,  2870. 
Neeley,   3129,   4719. 
Nelson,  65  Kas.  689,  4752. 
Nelson,  68  Kas.  566,  117. 
Newherter.  4403. 
Nicholls,  2638,  2659,  2931,  4260, 

4421. 
Niles,  2810. 
Nine,  32. 
Nixon,   4403. 
Nocton,   4659. 
North,  4785. 
Northrup,   4335. 
Norton,  2911. 
Novak,  2595,  2677,  4353. 
Nuelsein,  2635,  2645,  2663. 


State  v.  O'Brien,  117. 

v.  O'Connor,  4574. 

v.  O'Grady,  2491. 

v.  Olds,   la.,  347. 

v.  Olds,  Ore.,  4735. 

v.  O'Malley,   4412. 

v.  O'Neal,  243. 

v.  Orrick,   2735. 

v.  Osborne,    3227. 

v.  Ostrander,  la.,  2867,  4434. 

v.  Ostrander,  Mo.,  2777. 

v.  Owen,   3133. 

v.  Packenham,  15. 

v.  Page,   225. 

v.  Pagels,  4404. 

v.  Palmer,  180,  4705,  4709,  4757. 

v.  Parker,  3097. 

v.  Partlow,  4713,  4714. 

v.  Pasnau,   2919,   4413,   4553,  4588. 

v.  Patterson,  Mo.,  4714. 

v.  Patterson,  Vt,  4762. 

v.  Patton,  2657. 

v.  Paulk,  2443. 

v.  Payne,  3020. 

v.  Pearce,   2555,  2559. 

v.  Peel,  4404. 

v.  Pennyman,  3244. 

v.  Perrigo,  4711. 

v.  Perry,  2715,  2795. 

v.  Peter,   4526. 

v.  Peterson,  2943,  2945,  2946,  2951. 

v.  Petsch,  183,  409,  2482,  2667, 
3032,  3072,  3077,  3097,  3137,  3144, 
3146,  3161. 

v.  Pettit,  4659. 

v.  Pettys,  4697. 

v.  Phillips,  118  la.  660,  4462,  4481, 
4631,  4674. 

v.  Phillips,  119  la.  652,  4654. 

v.  Phillips,  Mo.,  229. 

v.  Philpot,  88. 

v.  Pierce,  2720. 

v.  Pierce,  2654,  2720,  3198,  4443. 

v.  Pitts,  212. 

v.  Poe,  4326. 

v.  Pollard,  341. 

v.  Pomeroy,   3278. 

v.  Porter,  la.,  118. 

v.  Porter,  La.,  3096. 

v.  Porter,  Ore.,  4699,  4735. 

v.  Portsmouth   Sav.   Bank,   1255. 

v.  Powell,  La.,  3382,  4762. 

v.  Powell,  Mo.,  4258. 

v.  Powers,  Ore.,  34. 

v.  Powers,  S.  C,  4442. 

v.  Powers,  Vt.,  2436. 

v.  Pratt,  98  Mo.  483,  2925. 

v.  Pratt,  121  Mo.  566,  88. 

v.  Pray,  41. 

v.  Price,  3115. 

v.  Prins,   54. 

v.  Privitt,  393,  2477,  2479,  2568, 
2579,  2580,  2599,  2620,  2633, 
2646,  2663,  2679,  2985,  2994, 
2996,     3003,     3058,     3070,     4394. 

v.  Probate  Ct.,  290. 


exx 


TABLE  OF  CASES  CITED. 


[BEFEBENCES   ABE   TO   SECTIONS.] 


State 
v. 
v. 

v. 

V. 
V. 

V. 


v.  Proctor,  234. 

Prudhomme,  2751. 

Pulle,  2911. 

Purcell,  1060. 

Putts,  211. 

Pyscher,  2496,  2663,  2948,  2949, 

2950. 

Rapp,  4714. 
Raymond,  3258,  3259. 
Red,  4317. 
Reed,   Ark.,  4810. 
Reed,  la.,  4317. 
Reed,  La.,  4665. 
Reed,  Mo.,  534,  4610. 
Reid,   Ala.,   4804. 
Reid,   la.,   2878. 
Reilly,   4788. 
Reynolds,   3238. 
Rhodes,  398,  2435. 
Richart,   2885. 
Riculfl,  4352,  4651. 
Riddell,   3648. 
Rider,  3152. 
Righter,   290. 
Riley,  54. 
Ring,  42. 
Ripley,  2911. 
Rivers,   68   la.   611,   2885,   4317, 

4565. 

Rivers,  124  la.  17,  2941. 
Roan,  2867,  3159. 
Roberts.  Ore.,  4462. 
Roberts,  Nev.,  48. 
Roberts,    W.    Va.,    378,    2476, 

2920,  4476. 

Robinson,  la.,  3057. 
Robinson,  73  Mo.  306,  46S1. 
Robinson,    117    Mo.    649,   2555, 

2558,  2559. 

Robinson,  W.  Va.,  4332. 
Rodman,  4326. 
Rolla,    4404. 
Rome,  369,  4350. 
Rose,  4705,  4709. 
Rounds,  2652,  2657. 
Rover,  4352. 
Roswell,  2804. 
Rowland,   4319. 
Rowley,  2903. 
Rue,  4462. 
Russell,  2748. 
Ruth,  2809. 
Rutherford,  4776. 
Ryan,  2885. 
Ryno,  2467. 
Sacre,  2695. 
St.  John,  4514. 
Sally,  3211,  3245. 
Sam,  4529. 
Sanders,  2548. 
Sands,  4605. 
Sauer,  2652,  2657,  4339. 
Schaffer,  2458,   4326. 
Schaunhurst,    2S04. 
Schmidt,  2889. 
Scossoni,    3092. 


State  v.  Scott,  Mo.,  3278. 
v.  Scott,  N.  C,  102. 
v.  Scott,  Ore.,  2787. 
v.  Scroggs,  2817. 
v.  Sepult,    4317. 
v.  Serenson,  2652,  2657,  2668. 
v.  Sexton,  344. 

v.  Seymour,   la.,   2458,  4326,  4349. 
v.  Seymour,  Ida.,  143. 
v.  Shea,  4755. 
v.  Shean,  109. 
v.  Shelledy,  4413. 
v.  Shelton,   4699. 
v.  Sheppard,  2504,  2672,  4632. 
v.  Sherman,  4744. 
v.  Shoultz,  3126. 
v.  Shreves,  4706. 
v.  Shuff,  2571,  2990,  3006,  4374. 
v.  Shupe,   3264. 
v.  Sidney,  4785. 
v.  Silk,  3001. 
v.  Silva,  2925. 
v.  Silverstein,  326. 
v.  Sims,  3210. 
v.  Singleton,  4697. 
v.  Sipult,  159. 
v.  Skinner,  2555. 
v.  Sloan,  Mont.,  4404. 
v.  Sloan,  Mo.,  3152. 
v.  Sloan,  N.  C,  27. 
v.  Smith,   2978. 
v.  Smith,  Conn.,  84. 
v.  Smith,  100  la.  1,  4413,  4481. 
v.  Smith,  106  la.  701,  2748,  2749. 
v.  Smith,  124  la.   334,  2835. 
v.   Smith,    Mo.,    2545,    2685,    3000, 

3004,  3021,  3131,  3149. 
v.  Smith,    Ore.,    3129,    4697,    4700, 

4735. 
v.  Smith,  S.  C,  3023. 
v.  Smith,  S.  D.,  4386. 
v.  Sorenson,  Minn.,  3134. 
v.  Spaugh,  2685. 
v.  Spencer,  3152. 
v.  Spivey,  3080. 

v.  Sprague,  2752,  2873,  4489,  4491. 
v.  Staley,    342,    2470,    2672,    3020, 

3069,  3088. 
v.  Stanley,  210. 
v.  Starr,  3086.  4681,  4699,  4713. 
v.  Stentz,    2457,    2479,    2964,    4336, 

4343. 
v.  Sterrett,  71  la.  386,  2541,  2548, 

2S85 
v.  Sterrett,  68  la.  76,  3106. 
v.  Stevens,  67  la.  557,  4326. 
v.  Stevens,  119  la.  675,  3203. 
v.  Stewart,  4437. 
v.  Stickley,  2592. 
v.  Stockhammer,  3124,  3171. 
v.  Stockton,    3106. 
v.  Stout,    3331. 
v.  Straw,   2911. 
v.  Strong,    2974,    4610. 
v.  Sullivan,    la.,    2S67,   3069,   3107. 
v.  Sullivan,  Mont.,  2601. 


TABLE  OP  CASES  CITED. 


CXXl 


[references  are  to  sections.] 


State  v.  Sumner,  3161. 
v.  Surry,    1347. 
v.  Sushenberry,   2515. 
v.  Sutfin,  3365. 
v.  Sutherlin,  17. 
v.  Sutton,  4380. 
V.  Swepson,   288. 
v.  Sykes,  55,  4527. 
v.  Talbott,  406,  2515. 
v.  Tallman,   290. 
v.  Tartar,    2542,   4735. 
v.  Taylor,   la.,  2885. 
v.  Taylor,  118  Mo.  153,  180,  2445, 

4322. 
v.  Taylor,  143  Mo.  150,  4762. 
v.  Taylor,  S.  C,  3312. 
V.  Taylor,  Vt.,  4548,  4633. 
v.  Teachey,   17. 
v.  Teeter,   2788. 
v.  Thiele,  4396. 
v.  Thomas,  Ind.,  130. 
v.  Thomas,  la.,  2444,  3057. 
v.  Thomas,  Kas.,  4326. 
v.  Thomas,   La.,   3055. 
v.  Thompson,  Mont.,  2872. 
v.  Thompson,  Nev.,  2606. 
v.  Thornhill,   2737. 
v.  Thornton,  Mo.,  240. 
v.  Thornton,   S.   D.,  2443. 
v.  Tibbetts,    2636. 
v.  Tickel,   96. 
v.  Tighe,   3134. 
v.  Timberlake,  3096. 
v.  Tobie,  3278. 
v.  Todd,  327,  341,  2568,  2632,  2685, 

29S5,  3004,  3104,  3145,  3149,  3164. 
V.  Tooker,  3126. 
v.  Tough,  2874. 
v.  Townsend,  2S67. 
v.  Thrift,    3262. 
v.  Trout,  4396. 
V.  Trusty,  2815. 
v.  Tucker,  1141. 
v.  Turner,   Wright,  3080. 
v.  Underwood,    277. 
v.  Urie,  2809,  2822. 
v.  Usher,   4755. 
v.  Valle,  2735,  2854. 
v.  Valvel,  229. 
v.  Vance,    2620,    2707,    3017,    3064, 

3082,  4454. 
v.  Vann,  4470. 
v.  Vansant,  3097,  4687,  46S6. 
v.  Van  Tassel,  2656,  3057. 
v.  Van  Waters,  39. 
V.  Vaughan.   341,  2509,  2545,  2566, 

2632,  2675,  2685,  2728,  2739,  2777, 

2998,   3003. 
v.  Vick,  52. 
v.  Vicknair,    2751. 
V.  Vineyard,   2634. 
v.  Vogel,  40. 
v.  Voorhees,  26. 
v.  Walker,    La.,    3095. 
v.  Walker,    194   Mo.   253,  4785. 
V.  Walker,  196  Mo.  73,  4558. 


State 
v. 
v. 
v. 

V. 
V. 
V. 
V. 


v.  Wain,  346. 

Walsh,   2542. 

Walters,   3246,  4336. 

Ward,  290. 

Warner,  3107. 

Watkins,  3327. 

Watson,    la.,    2S15,    4526. 

Watson,  Mo.,  3030. 
v.  Watson,   S.   C,  2444. 
v.  Watts,  268. 
v.  Weaver,  1283. 
v.  Weber,    2477,    2524,    2545,    2635, 

3213,   3214,   3234. 
v.  Weckert,  4770. 
v.  Weems,  2541,  2559,  2555. 
v.  Weiners,   3081,  4713. 
v.  Welch,  4629. 
v.  Wells,  la.,  3057. 
v.  Wells,  Mo.,  437S. 
v.  Welsh,   4613. 
v.  Welsor,  42. 

v.  West,  45  La.  Ann.  18,  4651. 
v.  West,  45  La.  Ann.  925,  274. 
v.  West,   69   Mo.   401,   2515. 
v.  West,  157  Mo.  309,  2894. 
v.  Weston,  336. 
v.  Whalen,   4530. 
v.  White,   2868. 

v.   Whittle,   2449,  2896,  2915,   3137. 
v.  Wieners,  3005,  4681. 
v.  Wiggins,    2542. 
v.  Wilkerson,  3278. 
v.  Williams,   Ala.,   284. 
v.  Williams,   120  la.   36,   4563. 
v.  Williams,  122  la.   115,  2612. 
v.    Williams,   35  Mo.   229,  2927. 
v.  Williams,   54  Mo.  170,  4785. 
v.  Williams,    N.    C,   2823. 
v.  Williams,    56. 

v.  Williams,   13  Wash.   335,  2872. 
v.  Williams,  36  Wash.  143,  2869, 

4548. 
v.  Willis,   4470. 
v.  Wilson,   la.,   2799. 
v.  Wilson,  35. 
v.  Wingo,  2595. 
v.  Winter,  36,  59. 
v.  Winters,  19. 
v.  Wisdom,  84  Mo.  190,  2550. 
v.  Wisdom,  119  Mo.  539,  576,  2515 
v.  Wisnewski,   2541. 
v.  Witten,    552,   4526. 
v.  Wolf,     112     la.       450S,      4335 
4481. 

v.  Wolf,    118    la.      564,    4526. 

v.  Wood,    3211,    3219. 

v.  Woodruff,   2:il'7. 

V.  Woolard,  4489. 

v.  Wort  hen,   2444,   4319. 

V.  Wright,   Ida.,  4786. 

v.  Wright,  la.,  109,  2606,  2608. 

v.  Wright,  Mo.,  47S5. 

v.  Terger,   2947. 

v.  Yetzer,   109. 

v.  Yokum,  3103. 

v.  Young,  Mo.,  2645,  4462. 


cxxil 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


State  v.  Young,  N.  D.,  4437. 

v.  Zeibart,  2867. 

v.  Zellers,  67. 

v    Zorn,   2545. 
State    Bank    v.    McCoy,    2147. 

v.  McGuire,   1919. 
State  ex  rel  v.    Fidelity  &  D.   Co., 
925,    1305,    2425. 

v.  Man.   Rubber  Mfg.  Co.,  1084. 

v.  Norton,  3343. 

v.  Rosenthal,  3343. 

v.  Simmons  Hardware  Co.,  4795. 
State  Sav.  Bank  v.  Raycliffe,  293. 
Stead  v.  Com.,  278. 
Steadman  v.   Keets,  3714. 
Steagald  v.  State,  4575,  4707. 
Steamer  N.  W.  v.  King,  922. 
Stearnes  v.  State,  3276. 
Stearns  v.  Laurence,  3456. 
Stebbins  v.  Keene,  3922. 
Steed  v.  Petty,  3627. 

v.  State,  3229. 
Steel  v.  Davis,  4548. 

v.  Kurtz,  972. 

v.  Miller,  611. 

v.  Steel,  728. 
Steel  Co.  v.  Schymanowski,  3829. 
Steetnische  v.  Lamb,  602. 
Stein  v.  City,  etc.,  179. 

v.  Kesselgrew,  326. 
Steinbauer  v.   Stone,   1184. 
Steiner  v.  People,  526,  4699. 

v.  State,  4S87. 
Steinhofel  v.  Chi.,  M.  &  St.  P.  Ry., 

336. 
Steinkamper  v.  McManus,  352. 
Steinlein  v.  Halstead,  1053. 
Steinmeyer  v.  People,  174,  3111,  4699. 
Stell  v.  State,  3026,  3037. 
Stennett  v.  Bradley,  1026. 
Stenton  v.  Jerome,  418,  424,  3399. 
Stephan    v.    Metzger,    359,    429,    670, 

671. 
Stephen  v.  Jones,  4291. 
Stephens  v.  H.  &  St.  J.  Ry.,  1547. 

v.  Macon,  1627. 

v.  People,  4  N.  Y.  396,  2480,  4335. 

v.  People.  19  N.  Y.  549,  102. 

v.  Railroad,   827,   3599. 
Stephensen  v.  Stephensen,  2386. 
Stephensen  v.  Little,  2326. 

v.  State,   158. 
Stepp   v.   Claiman,  109. 
Sterling  v.  Detroit,  927. 

v.  Marrow,  3922. 

v.  Merrill,  3930. 

v.  State,  25. 
Sterling  Bridge  Co.  v.  Pearl,  58. 
Sterling     Hydraulic     Co.     v.     Gait, 

4283. 
Stern  v.  Bensington,  297. 

v.  Butler,  540. 

v.  Henley,  1064. 

v.  Tuch,  3339. 
Steurer  v.  Reid,  3349. 


Stevens  v.  Campbell,  2171. 
v.  Carson,    1086. 
v.  Commonwealth,  20  Ky.  L.  48. 

2645. 
v.  Commonwealth,     30    Ky.     L. 

290,  2962,  4608. 
v.  Crane,    314. 
v.  Maxwell,  3384. 
v.  Pendleton,   248. 
v.  State,  133  Ala.  28,  2963,  3131. 
V.  State,   138  Ala.   71,  2986,   3072, 

3081,  3101. 
V.  State,    42   Tex.    Cr.    App.    154, 

2627,    3066,    3232. 
v.  State,  Tex.  Cr.  App.,  58  S.  W. 

96,  2748. 
v.  Story,  1004. 
Stevenson    v.    Ebervale    Coal    Co., 

2198. 
Stevison  v.  Earnest,  362. 

v.  State,  4612.  . 
Steward  v.   State,  4408. 
tewart  v.  Carleton,  577. 

v.  C.  W.  &  M.  R.,  2011,  4114. 

v.  Feeley,  1286,  3717,  3720. 

v.  Hamilton,   1231. 

v.  Maddox,  791. 

v.  Maher,  480. 

v.  N.    C.    Ry,    314,     1853,     4064, 

4075. 
v.  Parker,  2180. 
V.  P<mn.  Co.,  2062. 
v.  People,  279. 
v.  Sonneborn,    1268. 
v.  State,  133  Ala.  105,  2697,  4452. 
v.  State,   137  Ala.    33,   2986,   4459, 

4691. 
v.  State,    Ohio,    3133,    4719. 
v.  State,    40   Tex.    Cr.    App.    649, 

4722. 
v.  State,    Tex.    Cr.    App.,    77    S. 

W.  791,  4787. 
V.  Tevis,  299. 
v.  W.  C.  St.  Ry.,  3325. 
Stier  v.  The  City,  etc.,  163. 
Still   v.    State,  4575. 
Stillings  v.   Turner,   1057. 
Stillman  v.   Squire,  2239. 
Stillwell  v.  State,  3072,  3096. 
Stipling  v.   Maguire,  4195. 
Stitz  v.   State,  4462. 
Stoball  v.  State,  3063,  4739. 
Stock    v.    Township    of    Jefferson, 

2357. 
Stock  Exchange  v.  Board  of  Trade, 

144. 
Stocks  v.  St.  L.  T.,  1438. 

v.  Scott,   591. 
Stock   Yards  Co.   v.   Mallory   S.    & 

Z.    Co.,    472,    2239. 
Stoddard  v.  Burton,  2134. 

v.  Crocker,  1325. 
Stodder  v.  Powell,  270. 
Stoecker  v.  Nathanson,  1260,  1261. 
Stoffer  v.  State,  3327,  4724,  4725. 


TABLE  OF  CASES  CITED. 


CXXlll 


[references  are  to  sections.] 


Stokes  v.   Saltonstall,  4009. 

v.  Shannon,  326. 

v.  State,   150. 
Stone  v.  Bird,  279. 

v.  Byron,  143. 

v.  C,  etc.,  Rd.,  1943, 

v.  Com.,   128. 

v.  Crocker,  3709. 

V.  Dickinson,  1763. 

v.  Lewiston    B.    &    B.    St.    Ry., 
2063,   2069. 

v.  Miller,   286. 

v.  N.   Y.,  28S. 

v.  Pennock,  307. 

v.  Rockefeller,   2178. 

v.  Sledge,   3627. 

v.  State,  Ala.,  4671,  4749,  4798. 

v.  State,  Tex.,  2778. 

v.  Wilburn,    614. 
Stoneking  v.   State,  2707,  2720. 
Stooksbury  v.  Swan,  387,  3621,  4009. 
Storey  v.  State,  4558. 
Story  v.  Finkelstein,  3447. 

v.  Solomon,    605. 

v.  State,  4198. 

V.  Story,   731. 
Stote  v.  Johnson,  4381. 
Stout  v.   Commonwealth,  2720,  2969, 
29S8,  3104. 

v.  Cook,  117. 

v.  State,  406,  2644,  2982. 
Stowe   v.   La   Conner  T.   &   Trans. 

Co.,  905. 
Stowers  v.   Singer,   502. 
Stoy  v.  L.  E.  &  St.  L.  Cons.  R.  R., 

18S3. 
Strahlendorf  v.  Rosenthal,  1376. 
Straight     C.     C.     Co.     v.     Hauey's 

Adm'r,  3779. 
Strand   v.  Chi.   &  W.   M.   Ry.,   1347, 

1356. 
Strasser  v.  Conklin,  485. 
Stratton   v.   Cent.   City  Horse   Ry., 
198,    3473,    3624. 

V.  Henderson,    143. 

v.  Kennard,   316. 

v.  Paul,  15S. 
Straubher  v.   Mohler,  427. 
Straughan  v.  State,  277. 
Strauss  v.   Kranert,  1099. 

v.  Nat'l  Parlor  Furn.  Co.,   2269, 
3507. 
Strasser   v.    Goldberg,   4388. 
Strawn  v.  Cogswell,  685,  715. 

v.  State,   276. 
Strebin  v.  Lavengood,  2110. 
Street  v.  Goss,  2401. 

v.  Hiles,    324. 

v.  Liebendorfer,  1619. 

v.  Nelson,   769. 
Strehmann  v.  City  of  Chicago,   58, 

349,  1640,  3742. 
Stribling  v.   Prettyman,   631. 
Strick  v.  Yates,   3442. 


Strickland  v.  Capital  C.  Mills,  1471, 
3343. 

v.  State,  4619. 
Strickland  Wine  Co.  v.  Hayes,  240, 

277. 
Strickler  v.  Gitchel,  2190. 
Stringer  v.  A.  M.  R.,  4077. 
Stringham   v.    Parker,    1228. 
Stripling  v.  State,  2853. 
Strohm  v.  People,  78. 
Stromberg  v.  West.  Tel.  Const.  Co., 

3489. 
Strong  v.  Co.   Comm.,  286. 

v.  Shea,  433. 

v.  State,   2825. 
Strother  v.  State,  2465,  2662,  3275. 
Strut  v.   State,   55. 
Stuart  v.  Machias  Port,  1356. 

v.  People,  111.,  2701. 

v.  People,  Mich.,  4317. 
Stubbings  v.  World's  Col.  Ex.,  3309. 
Stubbs  v.  Houstan,  4286,  4293. 
Stude  v.  Saunders,  1391. 
Studer  V.   Railway  Co.,   3765. 
Stull  v.   Stull.   2375. 

v.  State,  4391. 
Stumm  v.  Hummel,  499,  501,  774. 
Sturgis  v.   Keith,   2339,  3521. 
Stutsman  v.   Barringer,  100. 

v.  Sharpies,  326. 
Stutz  v.  Chi.  &  N.  W.  Ry.,  951. 
Suber  v.  State,  158. 
Suburban  Ry.  v.  Baldwin,  4040. 
Succession  of  Bugue,  323. 
Suckow  v.'  State,  378,  2646,  2791. 
Suddeth  v.  State,  4484. 
Sudduth  v.   Sumeral,  459,   124S. 
Sugar  Creek  Mining  Co.   v.   Peter- 
son, 3780. 
Suggs  v.  Anderson,  532. 
Sullivan  v.   Byrne,   511. 

v.  Collins,    3658. 

v.  Cotton  St.  L.  Ins.,  1168. 

v.  Eddy,  2307. 

v.  Haug,  281. 

v.  La  Crosse,  299. 

v.  Navigation  Co.,  823. 

v.  People,  111.,  4379. 

v.  People,   Mich.,   88. 

v.  R.  R.,  2036. 

v.  Sheehan,  3425. 

v.  State,  102  Ala.  135,  3009,  4747. 

v.  State,  110  Ala.  95,  2232. 

v.  State,  117  Ala.  214,  4234. 

v.  State,   Ohio,  2555,  2559. 

v.  State,  Tex.,  117. 

v.  State,  Wis.,  2986. 

v.  Toledo,  etc.,  Rd.  Co.,  1558. 
Summerlot  v.   Hamilton,  3675,   4224. 
Summers  v.   State,  1136,  1146. 
Summerville    v.     Han.    &    St.    Joe 

Rd.  Co.,  474. 
Summons  v.  State,  118. 
Sumner  v.  State,  4399. 
Sunday   Creek   Coal   Co.    v.    Burn- 
ham,  1060. 


CXX1V 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


Supple  v.  Agnew,  1432. 
Supreme  Counsel  v.  Conklin,  128. 
Supreme  Council  of  the  Royal  Ar- 
canum v.  Lund,  3681. 
Supreme    Court    of    H.    v.    Barker, 

1213,   3318. 
Supreme  Lodge  K.  or  P.  v.  Clarke, 

1207. 
Supreme  Lodge   K.   of  H.   v.   Dick- 
son,  1195. 
Supreme  Tent  of  K.  of  Maccabees 
v.  King,  1216. 
v.  Wolkert,  1191. 
Surber  v.  Mayheld,  2393. 
Surrency   v.    State,  4706. 
Susquehanna  Fertilizer  Co.  v.   Ma- 
lone,  792. 
Sutherlin  v.   State,  4652. 
Sutton  v.  Ballou,  1062. 

v.  Clark,  444,  457,  1255,  1257. 
v.  People,   4520,   4529. 
v.  Snohomish,  1627. 
Swails  v.   Butcher,  810. 
Swain  v.  Tyler,  1017. 
Swan  v.  People,  3323. 
v.  State,  4415. 
v.  Swan,  1003. 
Swanner  v.  State,  3093,  3110,  3121. 
Swanson  v.   Allen,   214. 
Swark  v.   Nichols,   199. 
Sweeney  v.  Devens,  3630. 
v.  Envelope  Co.,  3899. 
Sweenie  v.  State,  4509. 
Sweet  v.  State,  4337. 

v.  Western  U.  Tel.,  2115. 
V.  Wood,   2206. 
Swenson  v.   Erickson,  96. 
Swift   v.   Dickermann,   812. 

v.  Thompson,  4239. 
Swift  &  Co.  v.  Fue,  162,  261. 

v.  Holoubek,  55  Neb.  288,  2765. 
v.  Holoubek,    60    Neb.    784,    3818, 

3955. 
v.  Madden,  1468,  3827. 
v.  O'Neil,   146. 
v.  Raleigh,   3769. 
v.  Rutkowski,    67    111.    App.    209, 
167    111.    156,    1453,    3745,    3751, 
3801. 
v.  Rutkowski,  182  111.   24,  123. 
Swift  Elec.  Light  Co.  v.  Grant,  383. 
Swigart  v.  Hawley,  140  111.  186,  1S2, 
197,  3468,  3470,  39S3. 
v.  Willard,  132,  2376. 
Swinney  v.  Ft.  Wayne,  etc. ,Rd.,  861. 
Switzer  v.  Kee,  3499. 
Swoboda  v.  Ward,  1564. 
Swoford  Bros.  v.   Smith,  277. 
Swope  v.  Seattle,  45. 
Sword   v.   Keith,   732. 
Sycamore    M.    Har.    Co.    v.    Sturm, 

2272. 
Sylvester  v.  State,  71  Ala.  17,  2461. 
v.  State,  72  Ala.  201,  3072. 
v.  State,  Fla.,  3135. 
Szymkus  v.   Eureka  F.   &  M.  Ins., 
3324,  3666. 


Tabor  v.  Mo.  V.  R.,  1877. 
Taggs  v.  Tenn.  M.  Bk.,  476. 
Talbert  v.  State,  33. 
Talbot  v.   Davis,   326. 
Talcott  v.  Henderson,  1111. 
Tallon  v.  Mayor  of  Hoboken,  286. 
Tally  v.  State,  2723,  2739. 
Talmadge  v.  R.  &  S.  K.,  4151. 
Taram  v.   Kellog,  584. 
Tanks  v.   State,  3649,  4465. 
Tanner  v.  State,  4475. 
Tappan   v.    Harwood,   921. 
Tapscott  v.  Gibson,  2150. 
Tarbell  v.  Forbes,  377. 
Tardy  v.  State,  43S7,  4715. 
Tarry  v.  Brown,  4270. 
Tarver  v.  State,  4686,  4688,  4693. 
Tascott  v.  Grace,  709. 
Tasker  v.  Kenton  Ins.  Co.,  485. 
Tate  v.  Mo.,  etc.,  Rd.  Co.,  1652. 

v.  State,    4518. 
Tatum  v.  Mohr,  395. 

v.  State,  2441. 
Taulbee  v.  Moore,  761. 
Taylor  v.  Beck,  3744. 

v.  B.   T.   R.    D.,   1748. 

v.  Chi.,  St.  P.  &  K.  C.  Ry.,  1975. 

v.  Commonwealth,  4482,  4583. 

v.  Cox,  4286. 

v.  Day,   1747. 

v.  Dugger,  451. 

v.  Felsing,    358,    1347,    1468,    3333. 

v.  Fickas,    2355. 

v.  Gardiner,   20. 

v.  Harris,  236. 

v.  Houston  &  T.   C.  R.   R.  Co., 
1655. 

v.  Houston  EL,  2088. 

v.  Kelly,  4293. 

v.  Pegram,  2371,  4290. 

v.  State,   Ala.,   3260. 

v.  State,   Ga.,   404. 

v.  State,   Ind.,  4576. 

v.  Talman,  276. 

v.  Taylor's  Estate,   358. 

v.  Warner,  314. 

v.  Western  P.  Ry.  Co.,  58. 

v.  Wootan,  1383,  3766. 
Taylor  B.  &  H.  R.  Ry.  Co.  v.  Tay- 
lor,  1566. 

v.  Warner,  4065. 
Teague  v.  State,  3118. 
Teasley  v.   Bradley,   649. 
Tedens  v.  Chi.  Sanit.  Dist.,  173. 
Teed  v.  Parsons,  4230. 
Teel  v.  State,  2718,  3123. 
Telford  v.  Ashland,  294. 
Teller  v.   Willis,    294. 
Temple  v.    Carroll,  3454. 

v.  Smith,  1060. 
Templeton  v.  Graves,  815. 
Ten  Eyck  v.   Whitbeck,  250,   257. 
Tenn.  Coal,  Iron  &  R.  v.  Linn,  451. 
Tenn.,  Phad.   v.  Germania  L.  Ins., 

1207. 
Tenney  v.  Foote,  608. 

v.  State  Bank,  768. 


TABLE  OF  CASES  CITED. 


CXXV 


[references  are  to  sections.] 


Tenny  v.  Madison,  293. 
Terra    Cotta   Lbr.    Co.    v.    Hanley, 
1345. 

v.  Buck,   917. 
Terre  Haute  El.  Ry.  v.  Lauer,  909, 

2067,  4146,  4147. 
Terre  Haute  &  I.  R.  R.  v.  Graham, 
4071. 

v.  Pritchard,  1827. 

v.  Voelker,  1386,  1916,  4056. 

v.  Williams,  Adm.,  1516. 
Terre   Haute   &  T.   Ry.   v.   Sheeks, 

2020. 
Terrell  v.  Commonwealth,  3134. 
Terrill  v.   State,  74  Wis.  278,  2617. 

v.  State,  95  Wis.  276,  2986. 
Territory    v.    Baca,    180,    2856,    3107, 
4427. 

v.  Baker,  3113. 

v.  Bannigan,  4464. 

v.  Egan,  2990. 

v.  Friday,  180. 

v.  Garcia,  347,  2713. 

v.  Gonzales,  2548,  3113,  3115,  3122, 
3133,  3136,  3160. 

v.  Gutierez,  2626,  4668. 

v.  Hart,  40. 

v.  Lermo,  180. 

v.  Lucero,   4668. 

v.  McAndrews,   2634. 

v.  McGinnis,  2451,  4668. 

v.  Nichols,  180. 

v.  Pino,  2856. 

v.  Taylor,  2451,  2453,  2547,  4379. 

v.  Vialpando,  180. 

v.  Vigil,  2856. 
Terry  v.  Beatrice   Starch  Co.,  3480. 

v.  Buffington,    2369. 

v.  Chandler,   584. 

v.  Davis,  1263. 

v.  G.  C.  &  S.  F.  R.  R.,  940. 

v.  Ins.,    1209. 

v.  Munger,  483. 

v.  State,   4722. 
Tescher  v.  Merea,  4219. 
Teutonia  Ins.   v.   Bonner,  1181. 
Tewalt  v.  Irwin,   129. 
Tex.  Ben.  Ass'n  v.   Bell,  763. 
Tex.   Cent.    Ry.   v.    Blanton,  44. 

v.  Brock,  3568,  3590. 

v.  Burnett,  4009. 

v.  Dick,  1798. 

v.  Fox,   1577. 

v.  Powell,    1570. 
Texas    Cotton   Prod.    Co.   v.   Deney 

Bros.,  309. 
Texas  Loan  Agency  v.  Taylor,  2118, 

4185. 
Texas    Midland    Ry.    v.    Booth,    315, 
1920,  4033. 

v.  Brown,    1780. 
Texas  &  N.  O.  R.  R.  Co.  v.  Bingle, 
1498,    1566. 

v.  Conroy,   1592. 

v.  Harrington,  3991. 

v.  Kelly,  1517,  1540. 


Texas  &  N.  O.  R.  R.  Co.  v.  Kelly, 
898,  1562,  3892. 

v.  McDonald,  1546. 

v.  Mortensen,  3869. 

v.  Scott,  3604. 
Texas  &  Pac.   Ry.   v.   Bailey,   3957. 

v.  Ball,    2852,   1859,   1948. 

v.  Bayliss,  3536. 

v.  Berdwell,   323. 

v.  Berry,  3986,  4074. 

v.  Bratcher,  1764. 

v.  Brick,   1384. 

v.  Brown,  505,  1592. 

v.  Carter,  1547. 

v.  Durett,    4076. 

v.  Durrett,  3603. 

v.  Eberheart,   940,  3820,   3872. 

v.  Fambrough,  1733,  1735. 

v.  Felker,  3529. 

v.  Gentry,  1961,  4052. 

v.  Gorman,    1336. 

v.  Gray,  1792. 

v.  Hagood,  1902. 

v.  Hill,    3S69. 

v.  Lester,    985. 

v.  Levine,  1999. 

v.  Lewis,  1547. 

v.  Lowry,  309. 

v.  McClane,  1566. 

v.  McCoy,     17     Tex.     Civ.     App. 
494.    3898. 

v.  McCoy,  90  Tex.  266,  3783,  3905, 
3909,    4121,    4151. 

v.  Maupin,  3829,  3869. 

v.  Miller,  1779.  1780,  1781,  3989. 

v.  Murphy,  3855,  3869,  4048. 

v.  O'Donnell,   917. 

v.  O'Fiel,  1498,   1577. 

v.  Phillips,    1851. 

v.  Reed,  1477. 

v.  Reeder,  1794. 

v.  Rice,  1992,  2001. 

v.  Scoggin  &  Brown,  3957. 

V.  Scrivener,  4051. 

v.  Short,  1342. 

v.  Smissen,  1738. 

v.  Whiteley,  3995. 

v.  Woolridge,   1999,   4110. 
Texas  P.  C.  Co.  v.  Poe,  929,  3813. 
Texas  P.  C.   &  L.   Co.  v.   Lee,  3817. 
Texas  So.  R.  R.  v.  Long,  315. 
Thacker  v.  Commonwealth,  3180. 
Thalheim  v.  State,  4601. 
Thames,  etc.,  Co.  v.  Beville,  305. 
Thames    Steamboat    Co.    v.    Hous- 

tanic  Ry.,  1374. 
Thayer  v.   St.  Louis,  etc.,  Rd.  Co 
1710. 

v.  State,     2708,    4433,    4450,    4628 
4644,  4665. 

v.  White,   1017. 

Thayer    Co.    Bank    v.    Huddleson, 

2236. 
Theobaldt  v.  St.  L.  Trac.  Co.,  51. 
Thillman  v.  Neal,  530. 


CXXV1 


TABLE  OF  CASES  CITED. 


[REFERENCES  are  to  sections.] 


Thirteenth  &  F.  St.  P.  Ry.  v.  Bou- 

drou,  2066. 
Thorn  v.  Hess,  3370. 
Thomas  v.    Chi.,   M.    &   St.   P.   Ry., 
4069. 
v.  Dabblemont,  3721. 
v.  Discher,  4264. 
v.  Dunaway,  2291. 
v.  Fame  Ins.  Co.,  3673. 
v.  Fischer,  2280. 
v.  Gates,  4300,  4496. 
v.  International  Silver  Co.,  318. 
v.  Kinkead,  4654. 
v.  Leonard,  25. 
v.  McDonald,   3525. 
v.  Parker,   309. 
v.  Paul,  351,  357,  3306,  3340. 
v.  Quincy,  1636. 
v.  R.  &  A.  A.  L.  R.  R.,  1479. 
v.  Riley,  3438. 
v.  State,   106  Ala.    19,   2648,   4436, 

4702. 
v.  State,   107   Ala.   13,   4327,   4420, 

4451. 
v.  State,  124  Ala.  315,  4581. 
v.  State,  126  Ala.  4,  4681. 
v.   State,  130  Ala.  62,  4475. 
v.  State,  Ark.,  2649,  4446. 
v.  State,   Fla.,   2617,   4731. 
v.  Thomas,  180,  629. 
v.  Tucker,  Zeve  &  Co.,  1332. 
Thomassen    v.    Van    Wyngaarden, 

2162. 
Thomhill  v.  Neats,  3492. 
Thompson  v.  Alkire,  4232. 
v.  Burgey,    831. 
v.  Burhans,  1039. 
v.  Family   Pro.  U.,  1202. 
v.  Hovey,   182. 
v.  Ish,  3372. 
v.  Johnson,   1000,    3621. 
v.  Kyner,  2379. 
v.  Libby,  3639. 
v.  Mead,  1330. 
v.  Owen,  4288. 
v.  People,   24   111.  60,   53. 
v.  People,  144  111.   378,   84. 
v.  People,   Neb.,  3210,  4775. 
v.  Purdy,  384. 
v.  Great    Northern    R.    R.    Co., 

3814. 
V.  N.  Y.  C.  &  H.  R.  R.  Co.,  4090. 
v.  Richmond   &   Danville  R.   R. 

Co.,   1993. 
v.  Rose,  2339. 
v.  Rubber  Co.,  3709. 
v.  State,  106  Ala.  67,  2684. 
v.  State,  122  Ala.  12,  189. 
v.  State,  131  Ala.  18,  4436,  4657. 
-       v.  State,  Ga.,  3106. 
v.  State,   Miss.,   4365. 
v.  State,  Neb.,  4762. 
v.  State,   Tex.,  2913. 
\.  United    States,  4719. 
v.  Weller,  3725. 
v.  White,    3636. 


Thorne  v.  McVeagh,  750. 
Thornton  v.   State,  4351. 

v.  State,  2713,  3130,  4710. 
Thornton-Thomas      Merc.      Co.      v. 

Bretherton,   2427. 
Thorp  v.   Bateman,  728. 
v.  Brookfield,    1356. 
v.  Craig,  182. 
Thorpe  v.   Balliett,  1275. 
v.  Growey,   195. 
v.  Shapleigh,    1014. 
Thrall  v.   Knapp,  969. 
Throckmorton  v.  Holt,  2386. 
Thurber  v.  Anderson,  473. 
Thurman  v.   State,  2586,  4800. 
Thurston  v.   Blanchard,  1116. 
Thweatt  v.   Freeman,   660. 

v.  McLoed,  3639. 
Ticknor  v.  McClelland,  1062,  1070. 
Tidwell  v.   State,  4408. 
Tierney    v.    Chi.    &    N.    W.    R.    R., 
4069. 
v.  Dodge,   282. 
Tiffin  v.  McCormack,  1368. 

v.  St.    Louis,    I.    M.    &    S.    Ry. 
Co.,    1892,    1911. 
Tilley   v.    H.    R.   Rd.,   972. 
Tilly  v.   State,  2886,  4566. 
Tiram  v.  Baer,  3347. 
Timmis  v.   Wade,   1122. 
Timmons  v.  R.  R.  Co.,  1486. 

v.  State,   2878. 
Tines  v.   Commonwealth,  2556,  4390 
Tipton  v.  Schuler,  3688. 
Titcomb  v.  Vantyle,  613. 
Tittle  v.   State,  180. 
Titterlington  v.  State,  335. 
Titus  v.  Corkins,  964. 
v.  Ins.,    1191. 

v.  Seward,  2178.  "V 

v.  State,   4636. 
Tobey  v.  B.  C.  R.  &  N.  Ry.,  1543. 
Todd  v.   Carr,   3478. 

v.  Danner,  887,  1351,  2349. 
v.  Myers,    1300. 
v.  Nelsen,  1086. 
v.  Todd,   4292. 
Toledo  P.  &  W.  R.  v.  Bray,  1973. 
v.  Chenoa,    288. 
v.  Conroy,   3845. 
v.  Coomars,  294. 
v.  Deacon,    1987. 
v.  Hammett,  1357,  1897. 
v.  Ingraham,  1963. 
v.  Johnson,  1969. 
v.  Lavery,   1963. 
v.  Patterson,  3704. 
v.  Pindar,    1998. 
Toledo,   St.   L.,  K.   C.  Ry.  v.   Cline, 
3753,     4030,     4039,     4042,     4044, 
4066. 
v.  Crittenden,  4033. 
v.  Milligan,   1980. 
Toledo,   St.   L.  &  W.  R.   R.  v.  Del- 
liplane,    4084. 
v.  Smart,    4037. 


TABLE  OF  CASES  CITED. 


CXXV1I 


[references  are  to  sections.] 


Toledo  W.    &  W.    Rd.   Co.   v.   Ash- 
bury,   1563. 

v.  Black,   1444,  1504. 

v.  Brooks,  458,  3309,  3971 

v.  Corn,    1998. 

v.  Durkin,   1561. 

v.  Eddy,   1564,  1946. 

v.  Fredericks,    1843. 

v.  Harmon,   1373,   1832. 

v.  Ingraham,  958. 

v.  Larmoa,   1989,  3789. 

v.  Lockhart,  1722. 

v.  McGinnis,   1963. 

v.  Morrison,    2352. 

v.  Shuckman,  191,  1910,  3675. 

v.  Smith,    3524,   3606. 

v.  Thompson,   1736. 

v.  Wright,    1827. 
Toler  v.   State,  2694,   3276,  4807. 
Tolman  v.  R.  R.  Co.,  4090. 
Toluca  M.  &  N.  Ry.  v.  Haws,  3595. 
Tomblin  v.   Callen,  608. 
Tomlinson  v.  People,  2789. 
Tompkins  v.  Nichols,  1099. 
Tompkins  v.    State,  4353,   4354,   4437. 
Tonawanda  Rd.  v.  Munger,  4151. 
Toner's  Adm'r  v.  So.  C.  &  C.  St.  R., 

2113. 
Tooker  v.  Duckworth,  590. 
Tootle  v.   Kent,   3537. 

v.  Maben,  4211. 

v.  Shiry,  294. 

v.  Taylor,  316. 
Topolanck  v.  State,  4526. 
Torrey   v.    Burney,    4110,    4301,    4302, 

4442,    4775. 
Torts  v.  Wash,  2370,  2412. 
Tourtelotte  v.   Brown,  271. 
Towle  v.  Stimson  Mill  Co.,  1376. 
Town  v.  R.  R.  Co.,  4279. 
Towne  v.  St.  A.  &  D.  El.  Co.,  2339. 
Towne  v.  Thompson,  3696. 
Town  of  Elkhart  v.  Ritter,  1671. 
Town  of  Fox  v.  T.  of  Kendall,  990. 

2377. 
Town    of    Grayville    v.     Whitaker, 

3753. 
Town  of  Havana  v.  Biggs,  1146. 
Town  of  Lewiston  v.  Proctor,  1149. 
Town  of  Marion  v.    Skillman,   1142. 
Town  of  Monroe  v.  Connecticut  R. 

L.,    2131. 
Town    of    Normal    v.    Bright,    1622, 

1624,  1667. 
Town    of    Ridgefield     v.    Town     of 

Fairfield,   1033. 
Town  of  Sellersburg  v.   Ford,  1675, 

3599. 
Towns  v.  Railroad  Co.,  1474. 
Townsend  v.  Albert,  1244,  1245. 

v.  Cowles,   1105. 

v.  Isenberger,  1233. 

v.  Townsend,   2401,   2408. 
Trabing  v.   Cal.   Nav.   &  Imp.,   941. 
Tracey  v.  Quillon,  2186. 
Tracy   v.   State,  4576. 


Traders'  Ins.  Co.  v.  Carpenter,  295. 
Traders'    Mut.    L.    Ins.    v.    Johnson, 

1191. 
Tradewater  Coal  Co.   v.  Lee,   752. 
Traeger   v.    Jackson   C.    Co.,    309. 
Transportation  Co.  v.  Downer,  2091. 
Trapnell  v.  Red  Oak,  3598. 
Trask  v.   The  People,  223. 
Travelers'    Ins.    Co.    v.   Ayers,    3678. 

v.  Clark,   3746. 

v.  Dunlap,    3678. 
Travers  v.   Snyder,  3381. 
Travis  v.  Pierson,   3534. 
Treadway  v.  Sempill,  325. 

v.  Sioux  City  &  St.  P.  Ry.-,  3427. 
Trebilcock    v.    Big    Mo.    Min.    Co., 

10S6. 
Treschman  v.   Treschman,  373.  374, 

915. 
Tresher  v.   Bank,   143. 
Tri-City  v.  Gould,  349,  4121. 
Trigg  v.  Railroad,  900. 
Triggs  v.  Mclntyre,  1220.  1221. 
Trimble  v.  Territory,  346,  2820. 
Triolo  v.  Foster,  827,  2346. 
Triple  L.  L.  Ins.  v.  Johnson,  1191. 
Triple  Link   Mut.   Indemnity  Ass'n 

v.  Williams,   1189,   3673. 
Trish  v.  Newell,  614,  2367,  4296. 
Trittipo  v.   Beaver,  3348. 
Trogdon    v.    State,    2655,    2710,    4427, 

4558. 
Trott  v.  C,  R.  I.  &  P.  Ry.,  3580. 

v.  Wolfe,   3303,  3757. 
Trotter  v.   Trotter,  4308. 
Trudo  v.    Anderson,    2239. 
True  v.  Plumley,  812. 
True  &  True  Co.  v.  Woda,  1364. 
Truesdale  v.   Ford,  437. 
Trumble  v.  Territory,   4668,  4755. 
Trumbull  v.   Gibbons,  4293. 
Trumbull  v.   Trumbull,   214. 
Truschel  v.  Dean,  2265. 
Trustees  v.  Hill,  4216. 
Trustees    of    Farmington    v.    Allen, 

710. 
Tubbs  v.  Van  Kleek,  767. 
Tuberson  v.   State,   4486. 
Tuck  v.  Downing,  1107. 
Tuck  v.   Singer  Mfg.  Co.,  204. 
Tucker  v.   Baldwin,  314. 

v.  Call,   2289. 

v.  Cannon,   28   Neb.   196,  1260. 

v.  Cannon,  32  Neb.  445,  1267. 

v.  Carlson,    318. 

v.  Finsh.   2905. 

v.  Pac.   Rd.  Co.,  1738. 

v.  People,   109. 

v.  Rank,    2160. 

v.  State,   4621. 

v.  Vaughn,   622. 
Tudor   v.    Tudor,    4299. 
Tudor   Iron   Works   v.    Weber,    146. 
Tuffee  v.  State  Center,  1673. 
Tufts  v.  Johnson,  477. 


cxxvm 


TABLE  OF  CASES  CITED. 


[REFERENCES  are  to  sections.] 


Tuller  v.   Talbot,   1747,   3996. 

v.  Voght,    1374. 
Tulley   v.    Harlow,   1321. 
Tully  v.  Railroad  Co.,  690. 
Tune  v.  State,  2445. 
Tupper  v.  Hudson,  1141. 
Turtaerville  v.  State,  83,  84. 
Turlev  v.   State,  33. 
Turnbull    v.    Richardson,    127,    3373. 
Turner  v.   Baker,    3462. 

v.  Commonwealth,   3167. 

v.  Cook,    2369. 

v.  Hearst,    4266. 

v.  Hitchcock,  524. 

v.  Muskegon   M.   &  F.  Co.,   634, 
2264,    2277. 

v.  Newburgh,   1640. 

v.  People,  306,   2811. 

v.  Righter,  4208. 

v.  State,  97  Ala.   57,   4475. 

v.  State,   124  Ala.   59,   2648,   2689, 
2692,  4352,  4452,  4459. 

v.  State,  102  Ind.  425,  2644. 

v.  State,  Tenn.,  54. 
Turner's  Appeal,  369. 
Turrentine  v.  Grigsley,  2162. 
Tuttle  v.    Railway   Co.,   3588. 

v.  Robinson,  2239,  4237. 
Tutwiler  C.  C.  &  I.   Co.  v.  Enslen, 

3590,  3610,  3616,  3835. 
Twelkemeyer  v.  St.  L.  T.,  908,  2094. 
Twitchell  v.  McMurtrie,  2168. 
Twomey  v.   Linnehan,  278. 
Tyler,    S.  E.    Ry.    v.   Hitchins,   3536. 
Tyson  v.  Tyson,  248. 


Uldrich  v.  Gilmore,  3685. 
Ulley  v.   Smith,  277. 
"Oilman  v.  Devereux,  3729. 

v.  State,  23,   28. 
Ulmer  v.  Leland,  1262. 
Ulrich  v.  People,  2808. 
Ulster   Co.    Bank   v.    Madden,    4220. 
Umback   v.    Lake   Shore,    etc.,    Ry. 

Co.,   3856. 
Underwood    v.    Farmers'    Joint    S. 
Ins.,  1159. 
v.  Hossack,  2156. 
Undt  v.   Hartrunft,   774. 
Unger  v.  State,  225. 
Union  Cent.   L.   I.  Co.   v.   Cheever, 
228 
v.  Holiawell.    3675. 
v.  Potker,    1169. 
Union  Gold   Min.   Co.  v.   Crawford, 

922. 
Union    Life    Ins.    Co.    v.    Jameson, 

3672,   3675. 
Union  Mut.  L.  Ins.  Co.  v.  Buchan- 
an,  912,    3304,   4198. 
Union  Nat.  Bank  v.  Barth,  295. 
Union  Pac.   Ry.   v.  Adams,  4179. 
v.  Botsford,  150. 


Union  Pac.  Ry.  v.  Broderick,  3787. 

v.  Daniels,   3825. 

v.  Jones,    900. 

v.  Keller,   1991,  1994,   2003. 

v.  Ray,  2000. 

v.  Snyder,    3810. 

v.  Thompson,  3960. 
Union   R.    Trans.   Co.   v.  Marr,   224. 

v.  Shacklet,    3948. 
Union  Show  Case  Co.  v.  Blindauer, 

3890. 
Union  Stock  Y.  &  T.  Co.  v.  Good- 
man,  4014. 

v.  Karlik,    4014. 
Union  T.  Co.  v.  Chi.,  3552. 

v.  Olsen,    360. 
United  Breweries  Co.  v.  O'Donnell, 

349,    1354. 
U.  S.  v.  Ayres,  20. 

v.  Bassett,   334. 

v.  Behan,   746. 

v.  Butler,  2657. 

v.  Buzzo,  2856. 

v.  Carey,  303. 

v.  Clark,   4654. 

v.  Cole,   2906. 

v.  Drew,   2610. 

v.  Folsom,  2856. 

v.  Gideon,    3281. 

v.  Guiteau,  4403. 

v.  Heath,  240,  243. 

v.  Jackson,  2657. 

v.  Johns,  4354. 

v.  Johnson,    2652,     2657. 

v.  Jones,   2652,   2657. 

v.  Outerbridge,    Fed.,    4700. 

v.  Reder,    2507. 

v.  Ross,    4631. 

v.  Schneider,    55. 

v.  Speed,    746. 

v.  Wood,   3259. 
U.  S.  Brwg.  Co.  v.  Stoltenberg,  159, 

360,  983,  2508,  3345. 
U.  S.  Ex.  Co.  v.  Backman,  1720. 

v.  Graham,    1718. 
U.  S.  Fid.   &  Guar.  Co.  v.  Charles, 

4206,    4215. 
U.  S.  Ins.  Co.  v.  Wright,  388. 
U.    S.   L.   Ins.    v.   Lesser,   1200,   3659. 

v.  Vocke,  1349,  3318. 
U.    S.    Rolling   Stock   Co.    v.    Chad- 
wick,  3384,  3785,  4066. 

v.  Rd.    Co.,   484. 

v.  Wilder,   1581. 
Unruh  v.  State,  2571,  4363,  3364,  4380, 

4497. 
Upstone  v.  People,  179,  4751. 
Upton   v.   Paxton,   157. 

v.  Tribilcock,    1105. 
Uren  v.  G.  T.  Mining  Co.,  1430. 
Utica  R.  R.,  878. 
Utley   v.    Burns,    3721. 
Utter  v.   Buck,   644. 
Utterback  v.    Commonwealth,   3103, 
3180,   4748. 


TABLE  OF  CASES  CITED. 


exxix 


[EEFEEENCES   ABE   TO    SECTIONS.] 


Vail   v.    Mayer,   1023. 

v.    N.   J.,    etc.,   Co.,    713. 

v.  Reynolds,   313. 
Valerius  v.    Richard,  274. 
Vallette  v.   Bilinski,  3829. 
Valley    Lumber    Co.    v.    Smith,    88, 

4499. 
Valin  v.  Ry.  Co.,  4172. 
Valtez  v.  O.  &  M.  Rd.  Co.,  1557. 
Van  Alstine  v.  Kaniecki,  3690. 
Vanatta  v.  Ry.  Co.,  4166. 
Van    Blaricum    v.    People,    48. 

v.  State,    3553. 
Van    Brunt   v.    Langley,   2146. 
Van  Camp  v.  Keokuk,  103. 
Van  Camp  H.  &  I.  v.  O'Brien,  1362, 

16S7,    3601. 
Vandalia  v.    Seibert,   31. 
Van  de  Bogart  v.  M.  N.  Paper  Co., 

156. 
Vandermark  v.   Jones,   326. 
Vandeventer     v.     Ford,     352,     2162, 

4302. 
Vandever  v.   Stalesir,  419. 
Vandiver  &  Co.  v.  Waller,  538,  546, 

739,   741,   742,   1269. 
Vandyke  v.   Cincinnati,  2081. 
Vandyke  v.  M.  N.,   3810. 
Vane   v.    Evanston,    146,    3554. 
Van  Leuven  v.  Lyke,  4277. 
Vann  v.  Edwards,  3628. 

v.  State,   Ga.,  2657. 

v.  State,  Tex.,  4737,  4755. 
Van   Rees  v.   Witzenburg,  319. 
Van  Rennsellaer  v.  Mould,  313. 
Vansantvoord  v.  St.  John,  1700. 
Van   Sickle  v.  Buffalo,  3306. 
Vanslyck  v.  Mills,  174. 
Van  Steenwyck  v.  Miller,  294. 
Van  Stone  v.   Mfg.   Co.,  301,  302. 
Van  Straaten  v.  People,  4755. 
Van  Tobel  v.   Stetson  &  Post  Mill 

Co.,  3464. 
Van  Valkenburg  v.  A.  P.  L.  Ins., 

1206. 
Van  Velsor  v.  Seeberger,  3650. 
Van  Vleve  v.  Clark,  309. 
Vanwey  v.  State,  159. 
Van   Winkle  v.   Chi.,   M.    &   St.    P. 
Ry.,   172. 

v.  SatterHeld,   660. 
Vasser  v.  State,  2728,  2739,  3054. 
Vauh  v.  Smith,  316. 
Vaughn    v.    State,    Ala.,    2678,    4353, 

4354. 
Vaughan    v.    State,    Ark.,    2534. 
Veatch  v.  State,  4380,  4548. 
Veazie  v.  Bangor,  718. 
Verholf  v.  Van  Houwenlengen,  499. 
Velvin  v.  State.  3111,  3126. 
Vermilya   v.    Chi.,   M.   &  St.  P.   R., 

826. 
Vermont,    Hathaway    v.     Nat.     L. 

Ins.,  1207. 
Verner  v.  Sweitzer,  1711. 


Vicksburg  &  M.  R.  R.  v.  Putman, 
3580. 

Vicksburg    R.,    Power    &    Mfg.    v. 
White,    3614. 

Victorian     Ry.     Commissioners     v. 
Coultas,    921. 

Viele  v.   Funk,  34. 

Vierling    v.    McDowell    &    Co.    Iro- 
quois  Furnace  Co.,   141. 

Village  of  Altamont  v.  Carter,  1345. 

Villars  v.  Palmer,  2185. 

Vincent  v.  Crane,  3694. 
v.  State,   4335. 
v.  Willis,   314,  457. 

Vining  v.  Insurance  Co.,  3402. 

Vinton  v.  Middlesex,  1828. 

Virginia  &  N.  C.  Wheel  Co.  v.  Har- 
ris.  1468,   3825,   3828. 

Va.     Portland     C.     Co.     v.     Luck's 
Admr.,    3828. 

Voche  v.  City  of  Chi.,  78,  405. 

Voegel  v.  West  Plains,  3741. 

Vogelsang  v.    St.    Louis,    3741,   3918. 

Vollmer  v.  State,  3106,  3113. 

Von  Reeden  v.  Evans,  968. 

Von   Tobel   v.    Stetson   &  Post    M. 
Co.,    598. 

Voorheis  et  al.  v.  Fry,  3508. 

Vordermark  v.  Wilkinson,  294. 

Voss  v.  Bender,  143. 
v.  Waukashaw,  98. 

Vrooman  v.  Lawyer,  4277. 

Vyne  v.  Glenn,  424. 


Wabash  Paper  Co.  v.  Webb,  3856. 
Wabash  R.   R.  v.  Biddle,   3319. 

v.  Coble,   3984. 

v.  Elliott,  1667. 

v.  Farrell,    3784,    3846. 

v.  Henks,  191,  3789. 

v.  Jenkins,  1919. 

v.  Jensen,  3340,  3749.' 

v.  Jones,  1856,  4014. 

v.  Kingsley,   3971,  4028. 

v.  Larrick,   3753. 

V.  Mahoning,  234. 

v.  Pickrell,  4084. 

v.  Propst,  1478. 

V.  Smith,  885,  983. 

v.  Speer,  4033. 

v.  Stewart,  4038. 
Wabash  R.   T.  v.    Baker,  2072. 
Wabash,  St.  L.  &  P.  Ry.  v.  Hicks, 
4032. 

V.  Jaggerman,  629,  2277. 

v.  Locke,    2091. 

v.  Rector,   3524,   3789. 

v.  Shacklett,  4062. 
Wabash  Western   R.   R.   v.   Fried- 
man,  3744. 

v.  Morgan,  1574. 
Wachsmuth  v.  Martin,  3645. 
Wachstetter  v.   State,  4462. 
Waddingham  v.  Loker,  1099. 

v.  Waddingham,  4514. 


exxx 


TABLE  OP  CASES  CITED. 


[EEFEEENCES    ABE    TO    SECTIONS.] 


Waddington  v.  Buzby,  2411. 
Waddle  v.   State,  3207. 
Wade  v.  Columbia  El.  St.  R.  L.  & 
P.,  2023. 

v.  Commonwealth,    3142. 

v.  State,   2691. 
Wadsworth  v.  Dunnam,  2158,  4215. 

v.  Chi.  &  N.  W.  Ry.,  I860. 

v.  State,  Ind.,  395,  2589,  2613. 

v.  State,  Neb.,  4567. 
Waidley  v.  State,  3210. 
Warning  v.  Teeple,  3675. 
Wainwright  v.   Smith,  3626. 
Wait  v.  Kellog,  1073. 
Wakeham  v.   St.   Clair,  1641,  1685. 
Wakely  v.  Hart,  1288. 
Walbridge  v.  Barrett,  3377. 
Walbrun  v.  Ballen,  454. 
Walden  v.    Gridley,   433. 
Waldron  v.  Alexander,   182. 

v.  Marcier,   199,  3600,   3605,   3983. 
Waldrop  v.  State,  705. 
Walkeley  v.   State,  4540. 
Walker  v.  Boston  &  M.  R.  R.,  910. 

v.  Brown,  2277. 

v.  Camp,  1276. 

v.  Coleman,  87. 

v.  Decatur  Co.,  1671. 

v.  Dewing,  268. 

v.  Dickey,  307. 

v.  Hough,    1109. 

v.  Kansas  City,  3918. 

v.  Reidsville,  1685. 

v.  St.  Louis  &  S.  Ry.,  S99,  3575. 

v.  Sauvinet,  15. 

v.  State,  104  Ala.  56,  4508. 

v.  State,   117  Ala.   42,   2648,   4434, 
4456,    4459,    4596,    4600,    4601. 

v.  State,  134  Ala.  86,  4467. 

v.  State,   138  Ala.   53,   2463,  4463. 

v.  State,  118  Ga.  34,  2552. 

v.  State,  120  Ga.  491,  2552. 

v.  State,  Ind.,  2478,  2655. 

v.  State,    7    Tex.    Cr.    Rep.    395, 
4721. 

v.  State,  32  Tex.  360,  2442. 

v.  State,   37  Tex.  366,  4321. 

v.  Tucker,  656,  1246. 

v.  Walker,  118. 
Walkins  v.  Wallace,  3630. 
Wall  v.   Schneider,  605. 
Wall  v.   State,  Ga.,  3372. 

v.  State,  Ind.,  3106. 

v.  Wall,    3625. 
Wallace  v.  Dixon,  2279. 

v.  Harris,  2410. 

v.  Jewell,  507,  3433. 

v.  Long,    1696. 

v.  Matthews,  1710. 

v.  State,  Ark.,  329. 

v.  State,    Fla.,    2652,    2657,    2801, 
4434. 

v.  State,    Tex.,    3118,    4731. 

v.  Wilmington  &  N.  R.,  1757. 

v.  Wren,    171. 
Wallen  v.  N.  Chi.  St.  Ry.,  248,  250. 


Waller  v.  Lasher,  197. 

v.  State,  52,  273. 
v.  Waller,  4286. 
Wallingford  v.  Aitkins,  664,  747. 

v.  W.  U.   Tel.   Co.,  53  S.  C.  410, 
921. 

v.  W.  U.  Tel.,  60  S.  C.  201,  2119. 
Wallis  v.  Luhing,  4291. 
Walls  v.  State,  4549. 
Walrath  v.  Redfleld,  897. 
Walsh  v.  Lennon,  4222. 

v.  People,   232. 

v.  Taitt,    3654. 
Walsh    Ex.    v.    Cullen,    135   111.    91, 

1842. 
Walter   v.    Mutual   City  &  Village 
Fire  Ins.  Co.,  3671. 

v.  Sample,   1279. 

v.  Walter,    306. 
Walters   v.    Chi.,    R.   I.    &   P.   Rd., 

1364. 
Walz  v.  N.  O.  R.,  326. 
Wambold  v.  Vick,  1019. 
Wanek  v.  Winona,  149. 
Waunack  v.  Mayer,  etc.,  91,  182. 
Wantlan  v.  White,  3289. 
Ward   v.   Bass,   2320. 

v.  Borkenhagen,    1113. 

v.  C,  M.  &  St.   P.  Ry.,  3340. 

v.  Dick,  45  Conn.  235,  224. 

V.  Dick,  47  Conn.  300,  4266. 

v.  Hollins,   326. 

v.  Meredith,  1682. 

v.  Ry.    Co.,    3939. 

v.  State,   Ala.,   3009. 

v.  State,   Tex.,   4529. 
Ward  v.  Ward,  4257,  4265. 
Wardell  v.   McConnell,  1218. 
"Warden  v.  Green,  1696. 
Ware  v.  Adams,  2187. 

v.  Souders,  3405. 

v.  State,    2443. 
Warn  v.  City  of  Flint,  75. 
Warner  v.  Carleton,  1069,  1088. 

v.  Crandel,  3317,  3487. 

v.  Miltenberger,  630. 
Warren  v.  Gabriel,  390. 

v.  Gilman,   2134. 

v.  O'Connell,    4299. 
Warren  v.  Wright,   980,  3435. 
Warrick  v.  Rounds,  1218. 
Wartena  v.  State,  86. 
Warth  v.  Loewenstein  &  Sons,  371. 
Warthan  v.  State,  4707. 
Washburn  v.  Cuddihy,  128. 
Washington  v.   Huger,  287. 

v.  State,    3162. 
Washington  A.   &  M.   V.   E.   R.   v. 

Quavle,  955,  2064,  2089,  2109. 
Wasson  v.   Palmer,  2717,  4274,  4316. 
Waterman  v.  Chi.  R.,  241. 

v.  Donalson,    1087. 

v.  Raymond,   288. 

v.  State,   4816. 
Waters  v.   People,  3331,  4318. 
Waterson  v.  Rogers,  484. 
Water  Works  v.  Brown,  314. 


TABLE  OF  CASES  CITED. 


cxxxi 


[references  are  to  sections.] 


Watkins    v.     Commonwealth,    2685, 
3109,   3032,    3035,    3036,    3127. 

V.  State,  89  Ala.   82,  2986,  4732. 

v.  State,   133   Ala.   SS,  2698,  4334, 
4340,  4703,  4723. 

\.  State,  Tex.,  3244. 

v.  Wallace,   1099,   3335,   3654. 
"Watrous  v.   Davies,  3516. 
Watson  v.  Burroughs,  318. 

v.  P.  P.  City  R.  R.  Co.,  60. 

v.  Jones,  579. 

V.  Loughran,  2263. 

v.  People,   4573. 

v.  Roode,    2274,   3331. 

v.  State,  82  Ala.  10,  3106. 

v.  State,  83  Ala.  61,  2454. 

v.  State,  Tex.,  2967. 
Watt  v.  Kirby,  4222. 

v.  People,  2913. 

v.  Scofield,    1332. 
Watte  v.  Costello,  608. 
Watts  v.   Holland,  66. 

v.  Ruth,   34. 

v.  State,  90. 
Watts-Campbell   Co.   v.   Juengling, 

3735. 
Waugh  v.  Leach,  1148. 

v.  Shunk,   726. 
Way  v.  111.  Central  Rd.,  1564. 

v.  R.  R.  Co.,  1504. 

v.  State,  4788. 
Weaver  v.   People,  4666. 

v.  State,   2844. 
Webb  v.  Packet  Co.,  3816,  8303. 

v.  State,    100    Ala.   47,    4747. 

v.  State,   106  Ala.    53,   4340,   4420, 
4448,   4787. 

v.  State,   135  Ala.   36,  4661,   4676. 

v.  State,   O.,   60. 

v.  State,   Miss.,  4447. 

v.  State,  Tex.   App.,  2596. 

v.  U.  M.  L.  Ins.  Co.,  720. 
Webber  v.   Anderson,   454,  456. 

v.  Ind.   Nat.   Bk.,  2176. 

v.  Sullivan,    4294. 
Webber   Wagon   Co.   v.   Kehl,   3845. 
Weber  v.  Costigan,  297,  298. 

v.  Kirkendale,   3444. 

v.  Whetstone,  3732. 
Weber  Gas.,  etc.,  Co.  v.  Bradford, 

763. 
Webster  v.  Anderson,  1064. 

v.  Seattle,  R.  &  S.  Ry.  Co.,  902. 

v.  State,    35. 

v.  Sullivan,  2393,  2394. 

v.  Wade,    722. 

v.  Wadsworth,  731. 

v.  Yorty,    4256,    4288,    4299,    4301, 
4302,  4310. 
Webster  Mfg.  Co.  v.  Mulvanny,  970. 

v.  Nisbett,  1339. 
Weddemann  v.  Lehman,  3301. 
Wedgewood  v.  Chi.,  etc.,  Rd.,  1843. 
Weed  &  Co.  v.  Oberreich,  2180. 
Weeks   v.    Cottingham,  165. 

v.  Meddler,  326. 


Weeks  v.  N.  Y.,  etc.,  R.  R.,  1832. 

v.  Texas    Mid.    R.    R.    Co.,    1343. 
Wegmann  v.  Jefferson,  1652. 
Weick  v.  Lander,  1337,  1629. 
Weierhauser  v.  Cole,  3525. 
Weil  v.  Fineran,  660,  3453. 
Weir  v.  Gand,  295. 
Weis  v.  Madison,  1089,  4280. 
Weise  v.  Gray's  H.  C.  Co.,  758. 
Welch  v.  Clifton  Mfg.  Co.,  944. 

v.  County  Court  of  Wetzel  Co., 
286. 

v.  Kline,  1024. 

v.  McAllister,  4172. 

v.  Olmsted,  619. 

v.  Palmer,   80. 

v.  State,  4355,  4551,  4723. 
Wellman   v.   Jones,    3383,   3478,    3480, 

3482. 
Wells  v.  Batts,  1024. 

v.  B.  C.  R.  &  N.  R.,  318. 

v.  Hollenbeck,    1233. 

v.  Houston,    360,    997,    1129,    1135, 
3653. 

v.  Parrott,   1028. 

v.  People,    1028. 

v.  Perkins,  728,  732. 

v.  Ry.  Co.,  984. 

v.  Smith,    1024. 

v.  State,  Miss.,  2662. 

v.  Territory,  2547,  3182. 
Welsch  v.  Werschem,  3633. 
Welsh  v.  St.  Louis,  3918. 
Weltmer  v.  Bishop,  4263. 
Welty  v.  R.  R.  Co.,  3940. 
Wenar  v.  Stenzel,  1391. 
Wendell  v.  Troy,  1623. 
Wendler  v.   People's   House   Furn- 
ishing Co.,  1397,  1467. 
Wenger  v.  Calder,  199,  1298. 
Wenning  v.   Teeple,  3856. 
Wenona  Coal  Co.  v.  Holmquist,  261, 

899. 
Werner  v.  State,  2838. 
Wertheim   v.    Altschuler,    1271. 
Wertheimer-Swarts     Shoe     Co.     v. 

U.  S.  Casualty  Co.,  3669. 
West  v.  State,  Ind.,  3109. 

v.  State,   2722. 
Westbrook  v.  Howell,  3365. 

v.  State,  2552. 
Westbury  v.  Simmons,  1205. 
Westchester  &  Phila.  Rd.  v.  Miles, 

2058. 
Westchester  F.  I.  Co.  v.  Earle,  176. 
West    Chicago    Alcohol    Works    v. 

Sheer,   3527. 
W.  Chi.   St.   Ry.  v.  Annis,  232. 

v.  Binkopski,    241. 
W.    Chi.    St.    Ry.    v.    Buckley,    214, 
3604. 

v.  Callow,   4176,  4181. 

v.  Camp,  2097. 

v.  Carr,  882,  937,  3579. 

v.  Dougherty,    89    111.    App.    362, 
3740,    4169. 


cxxxn 


TABLE  OF  CASES  CITED. 


[REFERENCES    ABE    TO    SECTIONS.] 


W.  Chi.   St.  Ry.   v.   Dougherty,   110 
111.  App.  204,  882. 

v.  Dougherty,    170    111.    379,    145, 
364,  412,   3349. 

v.  Dwyer,   1439,   1460. 

V.  Estep,  364,  3349,  4126. 

v.  Fishman,  127. 

v.  Foster,  261,  2093. 

v.  Groshon,  202. 

v.  Home,    277. 

v.  Johnson,    882;   883,   898,  2020. 

V.  Karzalkierwiecz,  358. 

v.  Kautz,  2016,  2106,  4148. 

V.  Kierwiciz,  3333. 

v.  Kromshinsky,   1747,   2020. 

V.  Krueger,  68  111.  App.  450,  228. 

v.  Krueger,  168  111.  586,  262. 

V.  Levey,   241. 

v.  Lieserowitz,  169,  209,  331,  349, 
354,  355,  360,  1345,  4177. 

V.  Loftus,  355,  358. 

V.  Luka,  4121,  4134,  4152. 

V.  Lundahl,   100. 

v.  Lups,  918. 

v.  Maday,  903. 

v.  Manning,   2072. 

v.  Martin,  2028,   4009. 

v.  Mayer,   145. 

v.  McCafferty,    3346. 

v.  McNulty,  1800,   3749. 

V.  Moras,   343,   3326. 

v-  Musa,    236. 

V.  Nash,  358,  364. 

V.  Otis,   145. 

V.  Petters,   1338,   2092,   2111,   4125, 
4134. 

V.  Piper,   4062. 

V.  Polkey,  360. 

v.  Raftery,  3301,  3310,  3342. 

v.  Scanlan,  360. 

v.  Schultz,  1343. 

v.  Schwartz,   899. 

v.  Shannon,   3380. 

v.  Shulze,  175. 

v.  Sullivan,   241. 

v.  Vale,    327,   401. 

v.  Winters,  4134. 

V.  Yund,  261. 
"Western   &   A.    R.   v.    Bussey,    1544. 

v.  Ferguson,    1359. 

v.  Meigs,    938. 

v.  Young,  957. 
Western   Assur.   v.    Mason,   1164. 
Western   Elec.   Co.  v.   Hart,   3639. 
Western  Manfg.  Co.  v.  Rogers,  4203. 
W.   M.   Mut.   Ins.   Co.  v.   Boughton, 

711. 
Western  Md.  R.  v.    State.  987,  1765, 
1812,    1839,     3968,     3979,    4008. 
Western   Ry.   v.   Lazarus,   4092. 

v.  Mutch,    3761. 
Western  Stone  Co.  v.  Musical,  3829. 
Western    Transfer   Co.    v.    Downer, 

4125. 
Western    T.    Co.    v.    Newhall,    1712, 
1718. 


Western  U.  T.   Co.  v.  Bowen,  4184. 

v.  Burgess,    31    Tex.    Civ.    App. 
116,    4183. 

v.  Burgess,    56    S.    W.   239    (Tex. 
Civ.   App.)   4186. 

v.  Carter,   836. 

v.  Chambers,  835. 

v.  Cunningham,   3585. 

v.  Guernsey   &    Scudder   E.   L., 
552. 

v.  Kirkpatrick,  835. 

V.  Odom,   2116. 

v.  Seed,    3585. 

v.  Shaw,  122. 

v.  Smith,    835. 

v.  Waller,  835. 

v.  Wingate,  244. 

v.  Wood,    903. 
Westfield    Gas    Co.    v.    Abernathy, 

275. 
Westmoreland  v.  Porter,  625. 
Weston    v.    Brown,   3372,    3374,    3400. 

v.  Lumley,   3265. 

v.  Teufel,    4301. 

v.  Weston,   1228. 
West    Side   Auction    House   Co.    v. 

Conn.  Mut.  Ins.  Co.,  248. 
Westville  v.  Horn,  3579. 
Wetherell  v.  Chi.  C.  R.,  248. 
Wetmore  v.  Mellinger,  1263. 
Wetzel  v.  Meranger,  241,  242. 
Whalen  v.  Kitchen,  291. 

v.  Mich.     Cent.     Railroad     Co., 
3045. 

v.  Sheridan,   301,  302. 

V.  St.  L.,  etc.,  Rd.,  884. 

v.  Utica  Hydraulic  Cement  Co., 
250. 
Whaley  v.   Thompson,   Tex.,   3963. 
Wharton  v.  State,  4353,  4354. 
Whateley  v.  State,  51. 
Wheatley   v.    Commonwealth,   2966. 
Whedon  v.  Knight,  2366. 
Wheelan  v.  Chi.,  M.  &  St.  P.  R.  R., 

1346,  2508,  3861,  4349. 
Wheeler  v.  Baars,  3426. 

v.  Bowles,  517,  827,  925,  1303. 

v.  Westport,    3927. 

v.  Conn.  Mut.  Life,  1168. 

v.  McDermid,   3475. 

v.  State,    Ohio,   4375. 

v.  State,    Tex.,    2885,    4570,    4786, 
4787. 

v.  State,   Ind.,  2584,  3078. 

v.  Wallace,   87,  89,   3331. 

v.  "Webster,  3707. 

v.  Westport,  3939. 
Wheeler  &  Wilson  Mfg.  Co.  v.  Bar- 
rett, 134. 
Wheelock  v.  Cavitt,  3621. 
Whetson  v.   State,  2497. 
Whilden  v.  Bank,  1081. 
Whipple  v.   Fuller,  1263. 

v.  M.  C.  Ry.,  239. 
Whirley   v.   Whiteman,   4177. 
Whisenhunt  v.  Jones,  1035. 


TABLE  OF  CASES  CITED. 


CXXX111 


[REFERENCES   ABE   TO    SECTIONS.] 


Whisler  v.   Roberts,   1315. 
Whitaker  v.   State,  Ala.,  2648,  2693, 
2697,    4447. 

v.  State,  Tex.,  4641. 
Whittaker  v.  Parker,  355. 
White  v.   Adams,  362. 

v.  Campbell,   420. 

v.  Epperson,    4236. 

v.  Fan-is,  2310. 

v.  Herman,  86. 

v.  Hewitt,  718. 

v.  Howd,   291. 

v.  Jordan,  309. 

v.  McCracken,    3403. 

v.  Milwaukee    City    Ry.,    3576. 

v.  Murtland,  180. 

v.  Naerup,   1239. 

v.  Oliver,    684. 

v.  People,   225. 

v.  R.  Co.,  149. 

v.  Reed,  3354. 

v.  Ross,    3429. 

v.  Smith,  1142. 

v.  Spangler,  3598. 

v.  State,   103  Ala.   72,   2648,   3271, 
4802. 

V.  State,  111  Ala.  92,  2461. 

v.  State,  133  Ala.  122,  2754. 

v.  State,   Ind.,  4166. 

v.  State,  29  Tex.  App.  530,  4736. 

v.  State,  30  Tex.  App.  652,  4687. 

v.  State,  44  Tex.  346,  3015. 

v.  Territory,  4746. 

v.  Utica,  etc.,  Rd.,  1965. 

v.  Walker,  1232. 

v.  Washington  Ter.,  3152. 

v.  White,  2187. 

v.  Whitney,   2180. 

v.  Yawkey,  769. 
Whitehead  v.  Gray,  288. 

v.  School  Dist.,  2432. 
Whiteman  v.  People,  138. 
Whitesell  v.  Hill,  3721. 
Whitesides  v.  Hunt,  610. 
Whitford  v.  Daggett,  1023. 
Whiting  v.  Carpenter,  814,  2281. 

v.  Fuller,  302. 
Whitman  v.  State,  Ind.,  2793. 

v.  State,  Neb.,  4564. 
Whitmore  v.   Steamboat,  etc.,  1835. 
Whitney  v.  Allaire,  3639. 

v.  Black  River  Ins.,  1164. 

v.  Brownewell,    189. 

v.  Jenkinson,   3538. 

v.  State,  Ind.,  2718,  3131. 

v.  State,  Neb.,  2664,  4601. 

v.  Turner,  531. 
Whitney      &       Starrette      Co.      v. 
O'Rourke,     209,     1395,     3595, 
4177. 
Whitsett  v.  Ry.,  1543. 
Whitson  v.  Wrenn,  1479. 
Whitten  v.  Wright,  2164. 
Whittlesey  v.  Ry.,  1840. 
Whitwam  v.  R.  R.  Co.,  1504. 
Whyte  v.   Smith,  1034. 


Wiborg  v.  U.  S.,  3291,  3292. 
Wichita  Valley  Mill  Co.  v.  Hobbs, 

231. 
Wickham'v.   Wolcott,  833,   2129. 
Widman  Inv.  Co.  v.  City  of  St.  Jo., 

871. 
Widner  v.  Lane,  485. 

v.  State,  158. 
Widoe   v.   Webb,   4215. 
Wiemer  v.   People,  4602. 
Wierzbicky    v.    111.    Steel    Co.,   1352, 

3836. 
Wiese  v.  Gerndorf,  3689. 
Wieting  v.  Town  of  Milstron,  3941. 
Wiggington  v.  Commonwealth,  4373. 
Wiggins  v.  People,  3152. 
Wiggins  F.  Co.  v.  Hill,  3758. 

v.  Mississippi  Ry.,  3561. 
Wightman  v.  Hart,  1087. 
Wilbur  v.  Wilbur,  2368,  2371,  4292. 
Wilburn  v.  Railway  Co.,  3599. 
Wilcox  v.    Commonwealth,   4761. 

v.  S.   A.  &  A.   P.  Ry.,  4151. 

v.  State,  4176. 
Wilde  v.  Bagan,  767. 
Wilder  v.  St.  Paul,  118. 
Wilds    v.    Hudson    River    R.    Co., 

4151. 
Wiley  v.  Ewalt,  614. 

v.  Lindley,    314. 

v.  State,   2444,  4320. 

v.  Thompson,  4228. 
Wilhelm  v.   Donegan,  315. 

v.  People,    17. 
Wilkerson   v.    State,   Miss.,   95. 

v.  State,    Tex.,   2527,    2749. 
Wilkie  v.   R.   &  C.  F.   R.   Co.,  1583, 

2847. 
Wilkins  v.   Earle,   344. 

v.  State,    Ala.,    2986,    3072,    3101, 
3106,  4691. 

v.  State,   La.,   4378. 
Wilkinson   v.  Anderson-Taylor  Co., 
1083. 

v.  Blount     Manufacturing     Co., 
3489. 

v.  Holiday,    2247. 

v.  Northeast  Borough,  3571. 
Will  v.  Lucas,  2735. 
Willard  v.   Mathesus,  4273. 

v.  Swansen,   3753,   3837. 
Willas  v.  West,  143. 
Willey  v.  Carpenter,  3438. 
William  v.  Woodworth  Co.,  309. 
William  Graver  Tank  Co.  v.  O'Don- 

nell,   269. 
Williams  v.  Ballinger,  3525. 

v.  Breitung,  295. 

v.  White,  1057. 

v.  Davis  Co.,  3304. 

v.  Ellingsworth,   3627. 

v.  Fletcher,  4228. 

v.  Fuller,  818. 

v.  Galveston,  etc.,  Ry.,  1814. 

v.  Grand  Rapids,  39. 

V.  Hollingsworth,    767. 


CXXX1V 


TABLE  OF  CASES  CITED. 


[KEFEEENCES   ABE   TO    SECTIONS.] 


Williams  v.  Houston  El.  Co.,   3579. 
v.  Iowa  Cent.  Ry.  Co.,  3744,  3840. 
v.  Lapenotiere,   326. 
v.  Lewis,  4224. 
v.  Love,  269. 
v.  McConaughey,   3629. 
v.  McDonald,   3456. 
v.  McKay,   3456. 
v.  McKee,   86,  223. 
v.  Mineral    City   P.    Ass'n,    1375. 
v.  Murphy,  1040. 
v.  Nottingham,  317. 
v.  Pain,  1024. 
v.  R.  R.  Co.,  4172. 
v.  Shepardson,  586. 
v.  Shup,    4196. 
v.  State,  83  Ala.  68,  2958. 
v.  State,  98  Ala.  22,  2648,  4454. 
v.  State,  102  Ala.  33,  3107. 
v.  State,  123  Ala.  37,  4784. 
v.  State,   130   Ala.   107,   403,   2996. 
v.  State,  140  Ala.  10,  4716. 
v.  State,    50   Ark.    511,  4402. 
v.  State,  66  Ark.  264,  3403. 
v.  State,  Ga„  3103,  3112,  3170. 
v.  State,  Ind.   Ter.,  3132. 
v.  State,  Ind.,  39. 
v.  State,  Miss.,  4460,  4724. 
v.  State,  Neb.,  2885. 
v.  State,  Ohio,  4529. 
v.  State,  2  Tex.  App.  271,  2973. 
v.  State,  24  Tex.  App.   637,  4621. 
v.  State,   30  Tex.  App.  429,  4744, 

4746. 
v.  State,   41  Tex.    Cr.    App.    365, 

3042. 
V.  State,   44  Tex.  34,  27. 
v.  State,    Tex.    Cr.    App.,    44    S. 

W.   1103,  4374. 
V.  State,    Tex.    Cr.    App.,    55    S. 

W.  500  (501),  2670. 
v.  Supreme     Court     of     Honor, 

3682. 
v.  Sweetland,  2307. 
v.  Tatnall,  2223. 
V.  U.    S.,   4  Ind.   Terr.    269,   2470, 

2686,     3023,     3039,     3075,     3101, 

3110,     3117,     3120,     3140,     3147, 

3061. 
v.  U.    S.,    Ind.    Ter.,    88    S.    W. 

334,   3113. 
v.  Vanmeter,  3709. 
v.  Wallace,   455. 
v.  West  Bay  City,  89,  222. 
v.  Williams,   Mo.,  2182. 
v.  Williams,  Wis.,  704. 
Williamson  v.   Gore,   3627. 
v.  Smith,    3302,   3494. 
v.  Tyson,  463,  480,  489,  492,  1083. 
Willis  v.  Byrne,  4315. 
v.  McNeil,  227,  241. 
v.  People,  2573. 
v.  State,  264S,  2934,  4468,  4595. 
v.  State,    2647,     2660,     2664,    2681, 

2705,    3086,    3142,    3143,    4746. 


Wilmerton    v.     Sample,    3531,     3719, 

4314. 
Wilmette  v.  Brachie,  349. 
Wilsey  v.  Wiltsey,  4308. 
Wilson  v.  Atlanta,  1610. 

v.  Bevans,  628. 

v.  Binford,  2178. 

v.  Bishop,  1016. 

v.  Board  of  Trustees,  3563. 

v.  Commonwealth,  2707,  3032, 
3046,  3102. 

v.  Fitch,  4266. 

v.  Frisby,  420. 

v.  Granby,  964. 

v.  Hayes,  4212. 

v.  Hunter,    3404. 

v.  Lakeview  Land  Co.,  1145. 

v.  Loomis,  1026. 

v.  Mason,   595. 

v.  Mayor,  etc.,  1616. 

v.  McClure,   679. 

v.  Memphis   St.    Ry.,   4171,    4180. 

v.  Noonan,   2283. 

v.  People,  54,  55. 

v.  So.  Ry.,  1993. 

v.  State,   128  Ala.   17,   4615,   4710. 

v.  State,  140  Ala.  43,  3086,  4457, 
4696,  4731. 

v.  State,  Ga.,  3066. 

v.  State,  Miss.,  2752. 

v.  State,  Tenn.,  54,  2669. 

v.  State,  Tex.  Cr.  App.,  36  S. 
W.    587,   2860. 

v.  State,  Tex.  Cr.  App.,  90  S. 
W.  312,   3061. 

v.  Tumman,  3445. 

v.  U.   S.,  2556. 

v.  Wall,  281,  292. 

v.  Wapello  County,  47. 

v.  Williams,  449. 

v.  Wilson,    501. 
Wiltfong  v.  Schafer,  4219. 
Winchester  v.  Craig,  769. 

v.  King,  329. 
Windsor  v.  Cleveland,  R.,  297. 
Winebiddle  v.   Porterfield,   1260. 
Winer   v.  Allbaugh,  3539. 
Winfield  v.  State,  2634,  2748. 
Wink  v.   Weiler,   148S,   3759. 
Winklebeck  v.  Winklebeck,  3303. 
Winn  v.  Itzel,  103. 

v.  Peckham,  787. 

v.  State,  4555. 
Winne    v.     Colorado     Springs    Co., 

2186. 
Winslow  v.   State,  Ala.,  2648. 

v.  State,  Neb.,  4561. 
Wirehauser   v.    Early,    321. 
Wisener  v.   Maupin,  65. 
Winter  v.  Atkinson,  533. 

v.  Cent.  Iowa  Ry.,  373,  400. 

v.  Pool,  4220. 

v.  R.   R.  Co.,  3598. 

v.  State,  123  Ala.  1,  2489,  2618, 
2648,  2682,  2954,  2960,  2974, 
2975,     3053,     3072,     4731. 


TABLE  OF  CASES  CITED. 


cxxxv 


[REFERENCES  are  to  sections.] 


Winter  v.   State,   132  Ala.   32,   3202, 
4768,  4769,  4771,  4775. 

v.  State,  3192,  4768,  4769. 
v.  Supreme    Lodge,     etc.,     1210, 
3684. 
Witbeck   v.    Marshall-Wells   Hard- 
ware  Co.,   1032. 
Withers  v.  Larrabee,  1244. 

v.  State,    2308. 
Witherwax  v.  Riddle,  3650. 
Witt  v.  Gardiner,  4287. 
Wittick's  Adm'r  v.   Keiffer,  4309. 
Wittram  v.  Van-Wormer,  4222. 
Witzka  v.  Moudry,  2813. 
Wohlford  v.  People,  78. 
Wolcott  v.  Wells,  290. 
Wolf  v.  C.  U.  T.,  2012,  2028. 

v.  Moses,  236. 

v.  Poirsr,  326. 

v.  Trinkle,  967. 

v.  Troxell's  Estate,  2160. 

v.  W.  U.  Tel.  Co.,  835. 
Wolf  Cigar  Stores  v.   Kramer,  763. 
Wolfe    v.    Goodhue    Fire    Ins.    Co., 
277. 

v.  McMillan,  256. 
Wolff  Manfg.  Co.  v.  Wilson,  3953. 
Wolfort  v.  St.  Louis,  3735. 
Wolsey  v.  R.   R.  Co.,  1549. 
Wolverton  v.  Taylor,  322. 
Wonder  v.  R.  R.  Co.,  3800. 
Wonderhust  Brew.  Co.  v.  Amshine, 

500. 
Wood  v.  Barker,  3377. 

v.  Clark,   3633. 

v.  Collins,  892. 

v.  Crocker,  1741. 

v.  Deutchman,  4198. 

v.  Fisk,  321. 

v.  Ind.  S.  D.,  1367. 

v.  Newkirk,    288. 

v.  People,  3262. 

v.  State,   4551. 

v.  State,   4619. 

v.  Texas  Cotton  P.  Co.,  1384. 

v.  Whitman,    308. 

v.  Wyeth,    1290. 
Woodcock  v.    McDonald,  4286. 
Wooden  v.  L.  &  M.  Co.,  2357. 
Woodford  v.  Buckner,  2369. 
Woodin  v.  Wentworth,   2357. 
Woodman  v.  Howell,  526,  528. 
Woodmen  v.  Locklin,  1211. 
Woodruff  v.    State,   2652. 
Woods  v.  Devine,  1833. 

v.  Finnell,    1263. 

v.  Moten  et  al.,  703. 
Woodward   v.    Dobyzkoski,   309. 

v.  Railway,   789. 
Woodworth  v.   Huntoon,  2170. 

v.  Mills,   314,    1281. 
Woolen  v.  Whitacre,  2540,  3304,  3319. 

v.  Wire,   32,  108. 
Woolfolk  v.   State,   37. 
Woolheather  v.  Risley,  1217,  1220. 
Woollen  v.  Whitacre,  3363,  4340. 


Wooster  v.  Butler,  630. 

Wooten  v.  State,  4423. 

Wooters  v.  King,  709. 

Worcester    Bk.     v.     Hartford   Ins., 

1174. 
Worden  v.  Humeston  &  S.  R.,  3884. 
Work  v.   McCoy,  1098. 
Workman  v.  Dodd,  176. 
Works  v.  Leavenworth,  283. 

v.  Stevens,  3363. 
Worley  v.   Moore,  314. 

v.  Spurgeon,  1217,  4772. 
Wormley  v.  Gregg,  4277. 
Worth  v.  Gilling,  2350. 
Wortman  v.   Price,  1024. 
Wray  v.  Taylor,  1053. 
Wray,  Adm'r  v.  Tindall,  355. 
Wray-Austin  Mchy.  Co.  v.  Flower, 

1243. 
Wright  v.  Ames,  210. 

v.  Brosseau,  4222,  4230. 

v.  Butler,   382. 

v.  Cent.  Ry.  &  B.  K.,  153. 

v.  Commonwealth,     24    Ky.     72, 
2569. 

v.  Commonwealth,   24   Ky.   Law 
Rep.   1838,   2609. 

v.  Com.,  85  Ky.  123,  4762. 

v.  Daniphan,  4233. 

v.  Griffey,  307. 

v.  Grover,  1062. 

v.  Lathrop,   524. 

v.  McCormick,  1063. 

v.  N.  T.  C.  Rd.,  1377. 

v.  Pelt,    1128. 

v.  People,  4800. 

v.  Rawson,  3759. 

v.  Skinner,  1093. 

v.  State,  Ga.,  17.      , 

v.  State,  Ind.,  1122. 
Wrightman  v.   Coats,   700. 
Wrigley  v.   Cornelius,   356,   2258. 
Wrisley  v.  Burke,  893,  1394,  1448. 
Wurderman  v.  Barnes,  3377. 
Wyatt  v.   Walker,  2368. 
Wycoff  v.  Parnell,  2216. 
Wyman  v.  Leavitt,  921. 

v.  State,  146. 

v.  Whicher,  3518. 


Xenia  R.  E.  Co.   v.  Dock,  322. 


Yarborough  v.  Mayes,  450,  1256. 

v.  State,  2708,  4351. 
Yarish  v.  Cedar  Rapids  Ry.,  295 
Yates  v.    Iron  Co.,    3800. 

v.  Mullen,  76S. 

v.  Shepadsen,  293. 
Yelverton  v.  Seel,  454. 
Yeoman  v.  State,  2872. 
Yeomans  v.  Lane,  4217. 
Yerkes  v.  N.  P.  Ry.,  3827. 

v.  Salomon,  608. 


CXXXY1 


TABLE  OF  CASES  CITED. 


[BEFEEENCES   ABE   TO    SECTIONS.] 


Tocham  v.  McCurdy,  449. 
Yoe  v.  McCord,  2404. 

v.  People,  2562. 
Yorde  v.  Marshall  Co.,  1663. 
Yore  v.  Transfer  Co.,  568. 
York  v.  Farmers'  Bank,  314. 

v.  Spellman,  3928. 
Yost     v.      Minneapolis     Harvester 

Works,  3434,  4193. 
Young  v.  Guilbeau,  3620. 

v.  Hahn,  3809. 

v.  Irwin,  323. 

v.  Miller,  2376,  4291. 

v.  O'Brien,  1413. 

v.  Otto,  130. 

V.  People,    134   111.   37.    4793. 

v.  People,    193   111.    236,   2479. 

v.  Rann,   294. 

v.  Sage,  1688. 


Young  v.   Shickle,  1426. 

v.  State,   Ala.,   4368. 

v.  State,   Fla.,   3068. 

v.  Young,  3429. 
Younger  v.   State,  2550. 
Yundt  v.  Hartrunft,  2539,  3470. 
Yutzer  v.  Thoman,  585. 


Zanel  v.  Ennis,  3304. 
Zehner  v.  Dale,  748. 
Ziadi  v.  I.  St.  R.,  298. 
Zibbell  v.  Grand  Rapids,  930. 
Zipkie  v.  Chieags,  4188. 
Zipperian  v.  People,  4755. 
Zube  v.  Weber,  327,  531,  1286. 
Zuver  v.  Lyons,  1074. 
Zweitusch  v.  Lowy,  221,  225. 


INSTRUCTIONS  TO  JURIES. 


PART    I. 
TRIALS. 

CHAPTER  I. 
TRIALS    IN   GENERAL. 


§  1.  Trial— Definition  of. 

§  2.  Methods  of  trial. 

§  3.  Superstitious  trials. 

§  4.  Place  of  trial. 

§  5.  Personal  knowledge  of  jurors. 

§  6.  Same   subject   continued. 

§  7.  Jurors  must  not  be  witnesses. 

§  8.  The  jury  system. 

§  9.  Same   subject  continued. 


§  10.  Constitutional    right   to   trial 

by  jury. 
§  11.  Same    subject    as    to    federal 

courts. 
§  12.  Cases  in  which  right  to  trial 

by  jury  does  not  extend. 
§  13.  Tests  of  right  to  jury  trial. 
§  14.  Usual   jury   trials. 
§  15.  Waiver  of  jury  trial. 


§  1.  Trials — Definition  of.  The  examination  before  a  com- 
petent tribunal  of  the  facts  put  in  issue  in  a  cause  for  the  pur- 
pose of  determining  such  issue.1  A  jury  trial  may  be  defined  as 
the  presentment  of  the  facts  in  the  form  of  legal  evidence,  to 
an  impartial  jury,  selected  by  the  contestants.  These  contests 
may  involve  life,  liberty  or  property. 

A  trial  may  be  further  defined  as  a  reasonable  ascertainment 
of  facts  under  certain  rules  and  regulations.  It  is  a  matter  of 
reasoning  pure  and  simple  under  our  modern  system  of  prac- 
tice and  in  this  may  be  seen  an  exhibition  of  the  evolution  in 
human  character. 

§  2.  Methods  of  Trial.  In  olden  times,  and  for  that  matter, 
even  in  our  present  day  civilization,  the  only  natural  thing 
seemed  to  be  for  contestants  to  settle  their  personal  disputes 
by  physical  combat.  The  savage  and  revengeful  pursuit  of 
the  wrong-doer  by  the  one  wronged,  gradually  gave  way  to  the 
more  honorable  method  of  a  formal  challenge  to  fight.  To 
these  physical  combats  there  came  gradually  to  be  annexed 
certain   rules,    and   referees   were   appointed  to   preside.      The 


1 — Anderson  v.   Pennie,   32   Cal.     267;    Jenks    v. 
Bouvier's  Law  Diet.  2,  749. 


State,    39    Ind.    1; 


2  INSTRUCTIONS    TO    JURIES.  [§  3. 

judges  of  the  common  pleas  and  even  the  Kings  of  England 
thought  it  no  mean  thing  to  grant  a  trial  by  battle  and  to  sit 
as  such  referee  or  judge. 

Of  this  nature  might  be  instanced  the  trial  of  disputes  by 
various  superstitious  methods  such  as  the  ordeal  by  the  hot 
iron,  by  water,  and  so  on. 

§3.  Superstitious  Trials.  These  superstitious  ordeals  or 
so-called  trials,  merely  invoked  the  protection  of  Deity  from 
the  danger  impending  in  the  event  that  their  contention  was 
right.  In  logical  sequence  followed  the  trial  by  the  mere  oath 
of  the  friends  and  neighbors  of  one  of  the  parties,  or,  what 
amounted  to  the  same  thing,  the  calling  upon  the  Deity  for  a 
witness.  The  matter  was  thus  established  by  the  oath  of  wit- 
nesses, the  number  of  whom  was  the  sacred  and  apostolic  num- 
ber, twelve.  A  public  official  acting  under  oath,  chose  from 
among  those  of  the  neighborhood  where  the  matter  in  question 
arose,  certain  men  who  were  indifferent  between  the  parties 
and  who  were  usually  owners  of  property.  There  was  little 
place  in  such  a  trial  for  the  testimony  of  witnesses,  for  the 
jury  themselves  partook  of  this  nature.  A  motion  to  direct  a 
verdict  could  not  be  granted,  as  the  judge  could  not  determine 
upon  what  evidence  the  verdict  might  have  been  based.  A  new 
trial  or  appeal  was  only  effected  by  an  attaint  or  by  a  trial  of 
the  first  jury,  by  a  second  jury  on  a  charge  of  perjury  or  other 
moral  or  legal  misconduct. 

§  4.  Place  of  Trial.  The  place  of  trial  is  held  to  be  imma- 
terial, as  the  validity  of  the  trial  does  not  depend  on  the 
place ;  it  may  be  wherever  convenience  or  necessity  requires. 
The  courtroom  where  the  court  usually  holds  its  session  is  not 
sacramental  and  another  room  or  office  may  be  used.2 

In  Texas  it  has  been  held  that  all  proceedings  must  be  held 
in  the  courthouse  at  the  County  seat,  as  provided  by  law,  and 
that  a  defendant  could  not  be  required  to  go  to  another  place 
for  trial.3 

§  5.  Personal  Knowledge  of  Jurors.  The  great  factor  which 
formerly  controlled  the  conduct  of  a  jury,  i.  e.,  that  the  jury 
possessed  personal  knowledge  outside  of  the  evidence  upon 
which  they  acted  remains  true,  to  this  day,  although  not  to  the 
same  extent  or  in  the  same  sense. 

2— Smith   v.   Jones,   23    La.    43;     Calvert  v.  State,  91  Ind.  473. 
Mohon    v.     Harkreader,    18    Kan.         3 — Adams  v.  State,  19  Tex.  App. 
383;   Reed  v.  State,   147  Ind.  41;     12. 


§6.]  TRIALS    IN    GENERAL.  3 

In  the  great  store  of  common  knowledge,  in  intuition,  in  the 
moral  and  mental  faculties,  in  the  physical  senses,  and  in 
other  things,  the  jury  find  evidence  to  corroborate  or  contra- 
dict the  evidence  produced  by  witnesses,  concerning  the  con- 
troversy. 

Of  the  controversy  itself  the  jury  should  know  nothing,  or  if 
they  do  know,  by  hearsay  or  otherwise,  such  knowledge 
should  be  such  as  not  to  affect  their  ability  to  be  fair  and  im- 
partial. 

§  6.  (Same  subject  continued.)  Jurors  may,  and  in  fact 
should,  use  their  own  personal  knowledge  and  experience  in 
drawing  conclusions  from  the  evidence  in  the  case,  but  it  will 
be  noticed  that  particular  stress  should  always  be  placed  upon 
their  ability  to  base  their  conclusions  upon  such  evidence.4 
The  personal  knowledge  of  individual  jurors  concerning  mat- 
ters which  might  be  properly  part  of  the  evidence,  as  for  in- 
stance, the  reputation  or  character  of  the  witness  who  testi- 
fied, should  not  be  taken  into  consideration  in  making  up  a 
verdict.5 

§  7.  Jurors  Must  Not  Be  Witnesses.  It  can  never  be  al- 
lowed that  a  juror  should  aid  in  finding  a  verdict,  or  even  sit 
in  a  case  when  his  attitude  of  mind  is  rather  that  of  a  witness 
than  of  a  juror.  Of  course,  a  state  of  affairs  may  arise  by 
accident,  as  when  on  the  voir  dire  examination,  a  collateral  fact 
not  manifestly  connected  with  the  issue,  becomes  so  later  in 
the  case.  The  practice  in  such  an  event  is  to  call  the  juror  to 
the  stand,  receive  his  testimony  and  then  to  have  him  return  to 
the  jury.6  In  the  event,  however,  that  his  testimony  is  of  an 
important  nature,  it  may  be  necessary  to  discharge  the  juror 
and  to  begin  again,  for  no  good  could  result  from  continuing 
the  case  where  a  new  trial  would  be  granted  almost  as  a  mat- 
ter of  course. 

If  a  juror  discloses  or  speaks  of  his  testimony  to  all  or  any 
of  his  fellow  jurors,  whether  he  testifies  in  court  on  that  point 
or  not  and  whether  it  be  done  in  the  jury  room  during  delib- 

4 — McGarrahan   v.   N.   Y.   N.    H.  cases    at    the    instance    of    either 

&  H.  Ry.,  171  Mass.  211,  50  N.  E.  party.     Morse  v.   Morse,   11    Barb. 

610.  510;  Howser  v.  Commonwealth,  51 

5— Schmidt    v.    N.    Y.    N.    Mut.  Pa.    332;    State   v.    Cavanaugh,    98 

Fire    Ins.  Co.,  67    Mass.    (1  Gray)  la.   688,    6S   N.   W.   452;    People  v. 

529.  Dohreng,    59    N.    Y.    374;     Plank- 

6 — A  juror  may  be  a  competent  roarl  v.  Thomas,  20  Pa.  91. 
witness    in    all    civil    or    criminal 


4  INSTRUCTIONS    TO    JURIES.  [§  8. 

eration  or  elsewhere,  it  is  a  clear  violation  of  the  hearsay  rule 
and  sufficient  to  vitiate  the  verdict. 

§8.  The  Jury  System.  It  seems  advisable,  before  taking 
up  this  subject,  to  make  some  general,  yet  necessarily  brief, 
observation  on  the  formation  of  a  trial  jury.  The  right  of  trial 
by  jury  originated  in  the  demand  of  the  common  people  to 
have  their  wrongs  righted  and  justice  done  them  by  an  impar- 
tial jury  of  their  peers.  One  of  the  chief  qualifications  of 
a  juror  originally  was  that  he  should  have  a  personal  knowl- 
edge of  the  matter  at  issue,  and  an  acquaintance  with  the 
persons  to  be  tried  so  that  he  might  be  better  able  to  judge. 
But  singularly  strange  yet  true,  this  very  thing  has  now  be- 
come in  modern  practice,  the  least  desirable  in  the  procure- 
ment of  a  legally  qualified  and  unprejudiced  jury.  And,  if 
opinion  has  been  formed,  which  requires  evidence  to  remove, 
it  becomes  a  disqualification. 

§  9.  (Same  subject  continued.)  While  this  has  led  to  criti- 
cism of  the  entire  jury  system,  no  strictures  thereon  will  ever 
lead  to  its  abolition  and  a  return  to  the  arbitrary  decision  of 
any  judge,  no  matter  how  famed  his  integrity  and  ability, 
whereby  the  litigants  be  again  at  the  mercy  of  one  removed 
from  common  sympathy  with  his  fellow  men  by  reason  of  his 
station,  power,  or  prominence. 

§  10.  Constitutional  Right  to  Trial  by  Jury.  "While  this 
subject  would  not  seem  to  embrace  any  matters  connected  with 
the  procurement  of  the  jurors  prior  to  their  presentation  in 
court  for  selection  or  challenge  by  the  parties,  yet  it  will  be 
readily  seen  that  in  order  properly  to  avail  oneself  of  the  right 
to  challenge  the  array,  a  comprehensive  study  of  the  method 
and  manner  of  securing  the  panel  is  absolutely  necessary. 

The  right  of  trial  by  jury  in  these  United  States  has  behind 
it  not  only  the  force  of  the  right  as  found  in  the  practice  of 
the  common  law  in  all  its  details,  but  is  also  guaranteed  under 
the  constitution  of  the  United  States  and  the  constitutions  of 
the  several  states.  It  applies  in  all  cases  at  law  in  the  same 
measure  as  it  existed  prior  to  the  adoption  of  the  constitution 
excepting  where  it  has  been  subsequently  modified. 

§  11.  Same  Subject  as  to  Federal  Courts.  The  federal  con- 
stitution guarantees  the  right  to  a  jury  trial  only  in  the  courts 
of  the  United  States.7  The  selection  of  juries  in  the  Federal 
courts  is  to  a  large  extent  similar  in  practice  to  that  of  the 

7 — Ex    parte    Brown,    140    Fed.  461. 


§  12.]  TRIALS    IN    GENERAL.  5 

state  in  which  the  court  sits,  but  in  no  sense  are  the  Federal 
courts  bound  by  the  statutes  and  practices  of  the  State  court.8 

The  constitutional  provision  that  the  right  of  trial  by  jury 
shall  remain  inviolate  guarantees  such  right  only  in  those 
cases  where  at  the  time  of  the  adoption  of  the  constitution,  the 
law  gave  that  right,  and  not  in  those  cases  where  the  right  and 
the  remedy  are  thereafter  created  by  statute  nor  where  the 
cause  was  already  the  subject  of  equitable  jurisdiction.9 

§  12.  Cases  to  Which  Right  to  Trial  by  Jury  Does  Not  Ex- 
tend. The  constitutional  right  to  trial  by  jury  does  not  extend 
to  proceedings  in  equity  either  under  the  Federal  or  State  con- 
stitutions.10 It  is  held  however,  that  the  power  of  the  legis- 
lature to  provide  for  a  trial  without  jury  in  cases  in  which  be- 
fore the  adoption  of  the  constitution  it  was  not  enjoyed,  is  un- 
limited.11 It  cannot  be  claimed  as  a  matter  of  right  in  equity 
cases,  in  quo  warranto,  in  probate  proceedings,  in  cases  of  con- 
tempt,12 or  in  summary  proceedings  unknown  to  the  common 
law,13  in  proceedings  in  rem,  or  for  the  assessment  for  ex- 
penditures for  public  improvements,  unless  specifically  con- 
ferred by  statute,14  but  see  contra.15 

§  13.  Tests  of  Right  to  Jury  Trial.  Where  a  crime  involves 
sentence  to  hard  labor,  the  right  to  trial  by  jury  is  inviolate, 
but  not  in  mere  petty  offenses  punishable  by  .summary  pro- 
ceedings before  municipal  courts.16 

The  criterion  by  which  the  right  to  a  jury  trial  is  determined 
is  the  character  of  the  action,  that  is,  the  right  sought,  and 
not  the  distinction  between  legal  and  equitable  properties. 
This  does  not  mean  that  it  depends  on  the  prayer  for  relief, 
but  on  whether  the  contents  of  the  pleadings  call  for  a  judg- 
ment at  law  or  a  decree  in  chancery.17 

8— Radford  v.  U.  S.,  129  Fed.  49.  12— Holnbach     v.     Wilson,     159 

9— Hathorne    v.     Panama    Park  111.   151,   42  N.  E.   169. 

Co.,  32  So.  812;  Queenan  v.  Terri-  13— People  v.   Hill,   163   111.  195, 

tory,   11   Okla.  261,  71  P.   218,   190  46  N.  E.  796,  36  L.  R.  A.  634. 

U.  S.   548,  23  S.  Ct.  762,  61  L.  R.  14— Juvinall  v.  Jamesburg  Dist, 

A.  324.  204  111.  106,  68  N.  E.  440. 

10 — Keith     v.     Henkleman,     173  15 — Ingram  v.  Maine  Water  Co., 

111.  137,  50  N.  E.  692;   Maynard  v.  98  Me.  566,  57  A.  893. 

Richards,    166    111.    466,    46    N.    E.  16— Jamieson    v.    Wimbish,    130 

1138.  Fed.   351;    Bray  v.  State,  140  Ala. 

11— Spring     Valley     v.     Spring  172,   37    So.   250. 

Valley   Coal   Co.,    173    111.    497,    50  17— New  Harmony  Lodge  v.  R. 
N.    E.    1067;    Drady   v.    Dist.    Ct, 
126  la.  345,  102  N.  W.  115. 


6  INSTRUCTIONS    TO    JURIES.  [§  14. 

In  civil  actions  at  law,  the  court  has  no  authority  to  try  a 
case  where  a  jury  is  demanded18  unless  the  relief  demanded 
is  peculiar  to  equity  practice.19 

§  14.  Usual  Jury  Trials.  A  trial  jury  at  common  law  and 
under  most  of  the  constitutions  of  the  various  states  con- 
sists of  twelve  fair,  competent,  impartial  men  legally  drawn, 
impaneled  and  sworn  to  render  a  unanimous  verdict  upon  the 
evidence  given  at  the  trial  in  the  issues  of  the  controversy 
under  the  superintendence  of  the  court  with  power  to  advise 
them  as  to  the  facts,  and  to  instruct  them  as  to  the  law  and 
to  set  aside  their  verdict  when  contrary  to  the  law  and  evi- 
dence, excepting  in  criminal  cases.20 

§15.  Waiver  of  Jury  Trial.  It  is  held  to  be  a  sufficient 
compliance  with  this  constitutional  guarantee  that  a  jury  trial 
may  be  had  upon  appeal.21  It  seems  that  this  constitutional 
right  cannot  be  waived  in  criminal  cases  on  a  trial  for  a  fel- 
ony22 although  it  may  be  in  civil  cases.23  A  commitment  to 
a  reform  school  for  children  without  a  jury  trial  is  held  to  be 
constitutional  and  justified  on  the  ground  that  they  are  not 
tried  for  any  offense,  but  are  merely  taken  proper  care  of.24 
So  important  is  this  right  that  an  action  of  mandamus  can  be 
had  to  compel  the  court  to  give  a  trial  by  jury.25     It  is  thus 

Co.,  100  Mo.  App.  407,  74  S.  W.  5;  preclude    either    party    from    de- 

Harrigan   v.    Gilchrist,   99    N.    W.  manding    a    jury    at    the    second 

909.  trial,    after    the   judgment   at   the 

18 — Hanson  v.   Carblom,   100  N.  first  trial  had  been  set  aside,   un- 

W.   1084,    N.   Dak.  der    Code    Civil    Proa,    sec.    630." 

19 — New  Harmony  Lodge  v.  R.  Schumacher      v.      Crane-Churchill 

Co.,  100  Mo.  App.  407,  74  S.  W.  5.  Co.,    92   N.   W.   609. 

20 — Archer   v.    Board    of   Levee  24 — Commonwealth     v.     Fisher, 

Insp.,  128  Fed.  125;   State  v.  Mott,  213    Pa.    48,    62    A.    198;    State   v. 

29  Mont.  292,  74  Pac.  728.  Packenham,   40   Wash.   403,   82    P. 

21— Schively    v.    Lankford,    174  597. 

Mo.  535,  74  S.  W.  835;    Carvin  v.  25— See  2nd  Current  Law,  page 

Hower  &  Higbee,  5  Ohio  C.  C.  70.  635.      It    is    well    settled    that    in 

22 — Queenan     v.     Territory,     71  civil    actions   trial  by  jury  is   not 

Pac.   218,    11   Okla.    261,    23    S.   Ct.  necessary.      Walker    v.     Sauvinet, 

762,  61  L.  R.  A.  324;    Hill  v.  Peo-  92  U.   S.  90;    Higgins  v.   Farmers' 

pie,  16  Mich.  351.  Ins.  Co.,  60  la.  50.     Indictment  by 

23 — Denee  v.  McCoy,   69   So.  W.  grand    jury    held    not    necessary. 

858.      "Waiver    of   a   jury    at   the  Hurtado  v.  California,  110     U.  S. 

first    trial    in    ejectment   will    not  516. 


§15.]  TRIALS    IN    GENERAL.  7 

seen  that  the  right  of  trial  by  jury  under  the  United  States 
and  the  State  constitutions  may  be  expressly  waived,  either 
by  a  writing  filed  in  court,  or  orally  or  impliedly  in  all  civil 
cases,  and  in  all  criminal  cases  involving  offenses  less  than  a 
felony  or  of  a  petty  nature,  but  being  a  constitutional  right 
as  aforesaid,  a  waiver  cannot  be  presumed.  In  the  Federal 
court  and  in  some  state  courts  an  express  waiver  is  necessary, 
but  a  stipulation  for  instance,  for  the  finding  of  facts,  has  been 
construed  as  sufficient. 


CHAPTER  II. 


IMPANELING  THE  JURY. 


§  16.  Drawing  and  selecting  a 
venire. 

§  17.  Substantial  compliance  suf- 
ficient. 

§  18.  Same   subject   continued. 

§  19.  Right  to  a  list  of  the  jurors. 

§  20.  Right  to  have  jury  drawn 
from  the  vicinage. 

§  21.  Challenge   to   the   array. 

§  22.  Grounds  for  challenge  to 
the  array. 

§  23.  Same    subject    continued. 

§  24.  Right  of  the  court  to  dis- 
charge jurors  at  its  own 
instance. 

§.25.  Same   subject  continued. 

§  26.  Discretion  of  court  as  to  ex- 
cusing jurors. 

§  27.  Eligibility  not  confined  to 
white  persons. 

§  28.  Form  and  manner  of  stating 
the  challenge. 


29.  Common    law    challenges    to 

the   polls. 

30.  Right       of       challenge       for 

cause. 

31.  Latitude   of   examination    on 

the  voir  dire. 

32.  Same   subject  continued. 

33.  Questions    on    the    voir   dire, 

importance     of     examina- 
tion. 

34.  Acceptance     of     juror     is     a- 

waiver        of       objections, 
when:  — 

35.  Evidence    in    support    of    a 

challenge. 

36.  When  an  erroneous  ruling  on 

a     challenge     is     prejudi- 
cial. 

37.  Examination:    by  whom  con- 

ducted. 


§  16.  Drawing1  and  Selecting  a  Venire.  A  party  has  un- 
doubtedly a  clear  constitutional  right  to  have  presented  to  him 
a  venire  properly  selected  according  to  the  requirements  of 
the  statutes  and  laws  of  his  state,  and  may  rightfully  object  to 
a  jury  otherwise  drawn. 

The  various  statutes  contain  very  full  accounts  of  the  meth- 
ods and  means  by  which  jurors  are  selected  and  drawn  and 
should  of  course  be  consulted.  In  a  general  way,  however, 
it  is  universally  held  that  slight  irregularities,  informalities, 
and  failure  of  strict  compliance  with  these  statutory  require- 
ments by  the  summoning  officer  or  jury  commissioners  or  elec- 
tion boards  whose  duty  it  may  be  to  select  and  furnish  the  list 
of  jurors,  will  not  constitute  a  valid  ground  of  objection  or 
challenge. 

8 


§17.]  IMPANELING    THE    JURY.  9 

§  17.  Substantial  Compliance  Sufficient.  A  substantial  com- 
pliance is  demanded,  but  deviations  from  the  positive  pro- 
visions made  to  secure  and  guard  the  drawing  of  a  fair,  im- 
partial jury  cannot,  however,  be  treated  as  harmless.1  Statu- 
tory provisions  as  to  selecting  jurors  are  held  directory  and 
should  be  liberally  construed.2 

Irregularities  such  as  drawing  a  jury  at  a  time  and  place 
different  from  that  prescribed  by  law  do  not  render  a  jury  so 
drawn  illegal.3  Irregularities  also  in  the  method  of  selecting 
a  jury  list  are  deemed  immaterial  unless  it  appears  probable 
that  the  party  challenging  was  prejudiced  thereby.4 

It  has  been  held  that  a  person  not  eligible  as  a  jury  com- 
missioner, but  who  qualifies  and  acts  as  such  is  a  de  facto 
officer,  and  his  acts  in  selecting  the  jury  list  are  those  of  a 
de  facto  officer  filling  a  de  jure  office,  and  do  not  constitute  a 
valid  ground  for  a  plea  in  abatement.5 

§  18.  (Same  subject  continued.)  A  failure  of  an  election 
board  or  other  officer,  having  the  duty  of  returning  list  of 
names,  to  return  any  list  of  names  at  all,  or  to  return  them  at 
the  proper  time,  or  the  obtaining  of  the  names  in  an  irregular 
manner  so  long  as  they  are  procured  from  the  proper  source 
untampered  with  and  through  the  proper  channels,  will  not  be 
a  good  ground  of  objection  or  challenge.  A  substantial  com- 
pliance is  considered  sufficient,  although  a  panel  may  be 
quashed  where  the  jurors  are  not  drawn  from  the  list  or  class 
prescribed  by  statute.  If  the  statute  prescribes  a  drawing  from 
certain  taxpayers  or  qualified  electors  or  persons  having  a 
certain  length  of  residence  within  the  jurisdiction,  it  must  be 
strictly  followed.  AVhere  a  jury  commissioner  is  required  to 
select  the  names  in  the  presence  of  parties  or  their  attorneys, 
and  the  list  is  selected  in  their  absence,  it  may  be  set  aside.6 

§  19.  Right  to  a  List  of  the  Jurors.  It  is  also  undoubtedly 
the  right  of  a  party  to  have  a  reasonable  opportunity  afforded 

1— Hewitt    v.     Saginaw    Circuit  602,  103  N.  W.  6;  "Wilhelm  v.  Peo- 

Court  Judge,  71  Mich.   287,   39  N.  pie,    72    111.    468;    People   v.    Madi- 

W.   56;    State  v.  Carney,   20   Iowa  son  Co.,  125  111.  334. 

82.  5 — State    v.    Sutherlin,    165    Ind. 

2— People   v.    Richards,    82    Pac.  339,  75  N.  E.  642;  Wright  v.  State, 

691,  1   Cal.  App.   566.  124  Ga.  84,  52  S.  E.  146. 

3— State  v.   Teachey,    138   N.    C.  6— Industrial    &    Gen'l    Trust    v. 

587,  50  S.  E.  232.  Tod,  34  Civ.  Proc.  R.  287,  93  N.  Y. 

4— Ullman    v.    State,    124    Wis.  App.   725. 


10  INSTRUCTIONS    TO    JURIES.  [§20. 

by  law,  in  which  he  may  learn  who  are  called  to  serve  on  the 
venire.  Usually  at  some  stated  period  prior  to  the  term  of 
court  at  which  the  panel  is  returned,  a  complete  and  full  list 
of  all  persons  intended  to  be  summoned,  whether  actually  so 
summoned  or  not,  and  whether  qualified  or  not,  giving  the 
residence,  and,  in  some  places,  also  the  occupation  of  the  jurors, 
may  be  secured  from  the  clerk  of  the  court.  It  is  sometimes 
published  in  the  court  calendars  or  newspapers7  or  mailed  to 
or  served  on  the  parties  whose  cases  are  pending  for  trial.8 
More  especially  is  this  true  in  criminal  cases.  In  no  case,  how- 
ever, does  there  seem  to  be  any  obligation  to  furnish  a  list 
in  the  absence  of  express  statutory  requirements. 

The  statutory  provisions  requiring  timely  notice  confer 
important  and  substantial  rights  which  should  not  be  impaired. 

This  right  to  a  list  of  jurors  when  given  is  peculiarly  per- 
sonal in  its  nature,  and  may  be  waived  by  a  failure  to  claim 
it  in  proper  time,  or  by  a  failure  to  object  to  a  trial  where  the 
list  has  not  been  furnished  to  or  served  on  the  party. 

For  the  practice  in  this  matter,  reference  should  be  had  to 
the  statutes  of  the  state  in  which  the  jury  is  drawn.  In  the 
United  States  Federal  Courts  the  practice  is  controlled  by  con- 
gressional legislation,  which  empowers  the  several  United 
States  Courts  to  adopt  the  practice  of  the  state  court  in  which 
they  sit,  or  to  make  at  will  all  necessary  rules  and  orders  in 
conformity  therewith.  This,  however,  seems  not  to  have  had 
any  bearing  upon  the  number  of  jurors  which  may  be  sum- 
moned, as  this  rests  entirely  with  the  court  itself  in  the  exer- 
cise of  its  discretion. 

§  20.  Right  to  have  Jury  Drawn  from  the  Vicinage.  The 
equalization  of  jury  duty  is  fixed  by  proportioning  the  number 
of  jurors  to  be  summoned  according  to  the  population  or  the 
number  of  electors  within  the  several  subdivisions  of  the  par- 
ticular county  or  district  in  which  the  court  sits. 

The  common  law  required  a  certain  number  to  come  from 
the  very  hundred  or  vicinage  where  the  crime  was  alleged  to 
have  been  committed,  or  the  action  to  have  arisen,  and  this 
is  held  to  be  a  constitutional  right  in  the  various  states.9  The 
state  cannot  ask  a  change  of  venue  on  the  ground  that  no  jury 

7— State  v.  Winters,  33   So.   47,  9— State  v.   Cutshall,   110   N.   C. 

109  La.  3.  538,    15    S.    E.    261;     Buckrice    v. 

8— State    v.    Bordelan,    113    La.  People,  110  111.  29. 
690,   37   So.   603. 


§21.]  IMPANELING    THE    JURY.  11 

is  obtainable  in  the  county  where  the  cause  is  pending  for  this 
reason,  that  the  jury  must  be  of  the  vicinage  as  at  common 
law.10  It  seems  however  to  have  been  held  in  one  court  that 
a  statute  providing  for  a  change  of  venue  by  the  state  on 
application  of  its  attorney  is  not  unconstitutional  as  violating 
the  right  of  trial  by  jury  from  the  vicinage.11  And  it  has  been 
held,  where  the  court  deemed  it  impossible  to  secure  an  im- 
partial jury  from  the  county  where  the  case  was  to  be  tried, 
that  a  jury  was  properly  drawn  from  an  adjoining  county.12 

The  Supreme  Court  of  Khode  Island  has  construed  the  right 
of  trial  of  the  vicinage  not  necessarily  to  mean  of  the  county 
where  the  cause  originated,  and  that  it  is  not  violated  by  a 
change  of  venue  for  the  purpose  of  securing  an  impartial  trial 
or  to  avoid  local  prejudice.13 

The  right  to  trial  by  jury  drawn  from  the  vicinage  may  be 
of  a  particular  district  however.14  It  is  held  in  Alabama  that 
the  acts  of  1884,  p.  726,  creating  divisions  of  the  Circuit  Court 
of  the  county  do  not  require  that  jurors  live  in  the  division 
where  the  court  sits;  hence  a  qualified  juror  of  the  county 
may  serve  in  any  division.15 

§  21.  Challenge  to  the  Array.  A  challenge  to  the  array  is 
a  proper  objection  to  the  mode  of  summoning  jurors  and  not 
to  the  qualifications  possessed  by  them;  it  must  affect  the  whole 
panel  alike  and  be  made  in  time  and  before  entering  upon  the 
formation  of  a  jury  if  the  facts  are  then  known.  Where  the 
defect  complained  of  appears  clearly  in  the  writ  itself,  or 
otherwise  in  the  records  of  the  court,  there  would  exist  no 
reason  to  support  this  challenge  by  proof,  as  it  would  other- 
wise be  incumbent  upon  the  party  to  do  so  by  his  own  affidavit 
or  that  of  some  credible  person  having  a  knowledge  of  the 
same. 

At  common  law  a  challenge  to  the  array  was  an  objection 
to  all  the  jurors  returned  collectively  and  was  founded  on  some 
fault,  misconduct  or  bias  of  the  officers  summoning  the  venire, 
or  the  clerk  by  whom  the  panel  is  arrayed.  Any  material 
departure  from  the  law  in  selecting,  listing,  drawing  or  sum- 

10— People    v.    Powell,    87    Cal.  13— Taylor  v.  Gardiner,  11  R.  I. 

348,  25  Pac.   481.  182. 

11— Barry    v.    Truax,    13    N.    D.  14— United    States   v.   Ayres,   46 

131,  99  N.  W.  769,  65  L.  R.  A.  762.  Fed.   651. 

12— Mosely   v.    Com.,    27   Ky.   L.  15— Nordan    v.    State,    143    Ala, 

214,  84   S.  W.  748.  13,  39  So.  406. 


12  INSTRUCTIONS    TO    JURIES.  [§22. 

moning    jurors    constitutes    good    ground    for    a    challenge 
generally. 

§  22.  Grounds  for  Challenge  to  the  Array.  A  selection  in- 
stead of  a  drawing  of  the  jurors  by  lot,  as  provided  by  law ; 
a  selection  by  disqualified  judge  and  not  by  the  proper  officer ; 
or  any  palpable  disregard  of  the  statutory  methods  required 
in  the  selection  or  drawing  of  jurors,  are  all  held  to  be  good 
grounds  for  challenge.  So  also  is  the  relationship  of  the  sum- 
moning officer  to  one  of  the  parties,  or  if  the  summoning  offi- 
cer is  attorney  to  one  of  the  parties  in  the  action,  it  is  a  good 
ground  of  challenge. 

In  general,  any  partial ity  or  corruption  of  the  summoning 
officer,  such  as  the  wilful  summoning  of  persons  whom  he 
knows  to  be  prejudiced,  with  a  view  to  securing  a  favorable 
verdict ;  the  intentional  omission  to  summon  certain  jurors  for 
a  corrupt  reason ;  in  fact  any  unfairness,  fraud,  bias  or  cor- 
ruption whatsoever  on  the  part  of  the  officer,  by  which  preju- 
dice might  result  to  one  of  the  parties,  would  be  good  grounds 
for  such  challenge. 

To  avoid  packing  of  juries,  the  common  law  method  of  se- 
lection was  changed  by  the  preparation  by  the  proper  officers 
or  jury  commissioners  of  a  list  of  persons  to  be  summoned  by 
the  summoning  officer  instead  of  allowing  this  selection  to  be 
at  the  sole  discretion  of  such  summoning  officer,  so  that  much 
of  what  has  been  said  along  this  line  would  not  now  be 
applicable  in  many  jurisdictions. 

§  23.  (Same  subject  continued.)  A  motion  to  quash  a  panel 
must  be  made  in  proper  time  and  comes  too  late  after  a  jury 
has  been  selected  and  accepted,16  and  a  challenge  to  a  panel 
can  only  be  founded  on  a  material  departure  from  the  forms 
prescribed  by  law  in  respect  to  the  drawing  and  returning  of 
the  jury.17  It -may  be  taken  by  either  party,  and  on  trial 
thereof,  that  the  officers  whether  judicial  or  ministerial,  whose 
irregularity  is  complained  of,  as  well  as  any  other  person,  may 
be  examined  to  prove  or  disprove  the  facts  alleged  as  a  ground 
of  challenge  to  the  panel.18  Where  the  law  required  twenty- 
four  jurors  to  be  summoned,  and  only  fifteen  were  summoned 
by  the  clerk,  it  was  considered  a  good  ground  for  challenge.19 

16— Dunn  v.  State,  143  Ala.  67,        18— Code  of  Iowa. 
39   So.   147;    Ullman  v.   State,  124         19— Baker     v.      Steamboat,      14 
"Wis.  602,  103  N.  W.  6.  Iowa  214. 

17 — Baker    v.     Steamboat    Mil- 
waukee, 14  Iowa  214. 


§24.]  IMPANELING    THE    JURY.  13 

It  is  interesting  in  this  connection  to  note  that  in  a  case  where 
all  the  jurors  of  the  regular  panel  but  one  had  been  excused, 
it  was  held  not  to  be  erroneous  to  call  in  eleven  talesmen  to 
try  the  case  with  the  one  juryman  of  the  regular  panel.20 

At  common  law  a  challenge  to  the  array  was  required  to  be 
made  in  writing,  stating  specifically  the  grounds  relied  on ;  and 
an  issue  of  law  or  fact  was  then  formed  in  respect  thereto, 
which  was  tried  by  the  court,  if  one  of  law,  or  by  triers  ap- 
pointed by  the  court,  if  one  of  fact.21 

§  24.  Eight  of  the  Court  to  Discharge  Jurors  at  Its  Own 
Instance.  It  would  seem  to  be  the  far  better  practice  to  re- 
move a  juror  in  the  first  instance  from  the  duty  of  passing 
upon  a  case  upon  which  he  has  any  opinion  one  way  or  the 
other  than  to  attempt  finally  to  remove  the  prejudice  or  bias 
born  of  such  a  preconceived  opinion.  The  rules  of  credibility 
and  of  preponderance  of  evidence  may  be  given  ever  so  clearly 
and  precisely  by  the  court  but  with  questionable  effect  upon  a 
jury  having  unfair  minds  or  preconceptions  of  the  issues 
involved. 

There  is  no  doubt  that  instructions  may  be  and  are  purposely 
framed  to  cure  all  possible  prejudices  formed  in  a  juror's 
mind,  yet  no  dependence  can  safely  be  placed  upon  such  pro- 
cedure and  the  necessity  would  seem  better  to  have  been 
avoided. 

From  these  observations  we  may  see  that  the  chief  corner- 
stone in  a  well  selected  jury  is  to  secure  men  mentally  qualified 
to  divide  the  truth  from  error,  void  of  offense  or  prejudice  to 
either  party,  sensible  of  their  duties  and  responsibilities,  true 
to  their  oath  and  guided  only  by  the  clear  light  of  reason, 
and  deciding  upon  the  evidence  alone  under  the  instructions 
of  the  court. 

It  is  not  only  the  right  and  privilege  of  the  parties  to  have 
an  unprejudiced  jury  to  try  the  issues  joined,  but  it  is  also 
the  duty  of  the  court  to  aid  in  securing  such  jury,  and  the 
court  should  lend  itself  to  the  pursuit  of  this  object  by  excusing 
of  its  own  motion  any  juror  legally  or  morally  disqualified  or 
incompetent. 

In  the  exercise  of  sound  judgment  and  discretion,  and  before 
either  party  is  tendered  the  panel,  the  trial  judge  should  excuse 

20— Emerick  v.  Sloan,  18  Iowa  21 — Ullman  v.  State,  124  Wis. 
139.  602,   103   N.  W.   6. 


14  INSTRUCTIONS    TO    JURIES.  [§  25. 

all  jurors  for  any  good  and  sufficient  cause,  in  whatever  man- 
ner it  may  appear  or  come  to  the  attention  of  the  court. 

A  lack  of  intelligence,  unfitting  the  juror  to  sit  in  judgment; 
ignorance  of  the  English  language,  so  as  not  to  understand 
what  takes  place;  being  under  the  influence  of  intoxicating 
liquors;  not  being  a  citizen  or  resident  within  the  jurisdiction 
of  the  court  or  the  limit  prescribed  by  statute ;  relationship  to 
the  parties  to  the  case  on  trial  or  members  of  their  families, 
would  all  constitute  good  reasons  for  excusing  the  juror.  So 
also,  would  be  any  mental  difficulty,  such  as  conscientious 
scruples  against  the  infliction  of  punishment  or  of  the  death 
penalty  in  particular,  or  against  the  bringing  of  any  action  at 
law  whatever. 

§25.  (Same  subject  continued.)  In  the  exercise  of  its  dis- 
cretion it  seems  that  a  court  may  at  any  time  discharge  a 
juror  who  is  inadvertently  sworn  and  who  cannot  render  a 
legal  verdict  in  the  case.22  For  a  cause  existing  before  as  well 
as  after  a  juror  is  sworn,  the  court  may  discharge  a  juror 
discovered  to  be  incompetent.23  A  court  may  on  its  own  motion 
excuse  any  juror  competent  in  all  other  respects,  but  who 
from  disease,  domestic  difficulties,  deafness  or  other  similar 
causes  is  unable  physically  to  perform  his  duties  as  a  juror.24 

It  is  held  that  the  court  in  its  discretion  may  discharge  a 
juror,  even  when  accepted  and  sworn,  at  any  time  before  the 
evidence  has  been  introduced.25 

Contrary  to  the  consent  of  one  party,  and  at  the  instance 
of  the  other,  a  court  may  discharge  a  juror  for  good  legal 
grounds  properly  sustained  even  after  the  jury  has  been  ac- 
cepted;26 but  a  court  has  no  power  to  excuse  a  juror  without 
the  consent  of  the  defendant  where  the  juror  has  been  sworn 
and  impaneled  in  a  felony  case;27  it  has  been  held,  however, 
in  a  certain  case  that  a  juror  was  properly  excused  by  a  court 
for  deafness  even  without  consent  of  the  defendant.28 

A  juror  should  be  immediately  discharged  at  any  stage  of 
the  trial,  when  the  court  learns  that  he  is  so  biased  or  pre- 
judiced as  not  to  be   impartial,   by  reason  of  facts  existing 

22— Thomas    v.    Leonard,    5    111.  25 — People  v.   Beckwith,   103  N. 

556.  Y.   360,   8  N.   E.   662. 

23— People  v.    Damar,   13   N.   Y.  26— Greer     v.     Merrill,     3     Hill. 

351.  262. 

24— Montague  v.  Com.,  10  Grat.  27— Sterling    v.    State,    15    Tex. 

767.  App.   249. 

28— Jesse  v.  State,  20  Ga.  156. 


§26.]  IMPANELING    THE    JURY.  15 

when  the  jury  was  impaneled,  but  unknown  to  the  court, 
or  occurring  afterward.29 

There  is  no  vested  right  in  any  particular  juror,  and  a 
juror  may  be  rejected  by  the  court  without  question,  no 
matter  what  the  parties  may  want,  it  being  alone  sufficient 
that  they  have   an  impartial  jury.30 

§  26.  Discretion  to  Court  as  to  Excusing  Jurors.  For  reasons 
of  public  policy,  and  because  business  men  are  desirable  as 
jurors,  the  courts  are  not  inclined  to  accept  business  ex- 
cuses as  sufficient. 

The  accused  in  a  criminal  case  cannot  complain  of  the 
ruling  of  the  trial  judge  in  excusing  jurors  in  the  exercise 
of  his  discretion,  it  has  been  held,  where  there  is  a  sufficient 
number  left,  or  where  no  prejudice  results  therefrom.31  Jurors 
may  be  discharged  by  the  court  who  have  served  in  another 
case  at  the  same  term  where  their  verdict  was  so  entirely 
against  the  evidence  as  to  be  evident  that  they  were  unfit  to 
serve  on  any  subsequent  case  of  importance.32  When  the 
prosecuting  attorney,  before  exercising  his  peremptory  chal- 
lenge, asked  the  court  to  excuse  a  certain  juror  for  the 
reason  that  the  state  wished  to  use  him  as  a  witness,  it  was 
held  to  be  within  the  discretion  of  the  court  to  excuse  the 
juror,  and  the  fact  that  subsequently  he  was  not  introduced 
as  a  witness  was  held  to  be  no  evidence  in  itself  of  bad  faith.33 

Conflicting  duties  and  certain  business  obligations  consti- 
tute good  grounds  of  excuse,  such  as  a  juror  having  a  member 
of  his  family  ill  at  home  and  his  presence  being  required 
there ;  or  being  a  farmer  and  having  his  live  stock  left  with- 
out care;  being  a  public  officer  and  having  duties  to  attend  to 
and  the  public  interests  liable  to  suffer;  being  a  party  to  an- 
other case  in  court  at  the  same  time ;  or  having  a  wedding 
of  a  member  of  the  family  to  be  celebrated  immediately.  Such 
excuses  founded  on  personal  reasons  are  matters  of  which 
the  juror  seemingly  alone  might  avail  himself,  yet,  if  these 
matters  were  not  disclosed,  except  by  examination  on  the  voir 
dire,  they  might  then  be  taken  advantage  of  by  a  challenge 

29— Sorenson  v.  Oregon    P.  Co.,  State  v.  Voorhies,  38  So.  964,   115 

82  Pac.  10,  47  Ore.  24.  La.    200. 

30— Gr.    Rapids   Booming  Co.  v.  32 — People    v.    Murray,    85    Cal. 

Jarvis,    30   Mich.    308.  350,    24    Pac.    666. 

31— Nordan    v.    State,    143    Ala.  33— Barnes   v.    Com.,    70    S.    W. 

13,  39   So.  406,  Under  Code  1892;  827,  24  Ky.  Law  Rep.   1143. 
Brown  v.  State,  Miss.  38  So.  316; 


16  INSTRUCTIONS    TO    JURIES.  [§27. 

for  cause  by  inquiring  further  if  the  existence  of  these  facts 
so  disclosed  would  keep  the  juror  from  giving  undivided  at- 
tention to  the  trial  of  the  case  at  hand. 

§  27.  Eligibility  not  Confined  to  White  Persons.  Eligibility 
to  jury  duty  cannot  be  confined  to  white  persons;  colored 
citizens  are  of  course  qualified  for  jury  service.34  A  person 
of  one  race  cannot  demand  as  a  right  that  juries  to  try  causes 
in  which  they  are  parties  shall  be  composed  in  whole  or  in 
part  of  their  own  race.35  So  also  it  will  not  be  a  ground  for 
challenge  that  the  list  of  jurors  contained  only  white  men  on 
the  trial  of  a  negro  unless  fraud  or  corruption  is  shown  in 
selecting  the  jury.36 

§28.  Form  and  Manner  of  Stating  the  Challenge.  The 
trial  court  has  some  discretion  as  to  how  specifically  the 
grounds  of  challenge  should  be  stated.  The  statement  should 
be  sufficiently  full  and  definite  to  inform  the  trial  court  and 
the  adverse  party  reasonably  of  the  precise  departure  from 
the  legal  requirements  relied  on.37  Even  where,  as  in  Wis- 
consin, the  statutes  do  not  provide  for  a  challenge  or  other 
objection  to  the  panel,  such  an  objection  may  be  raised  and 
the  form  in  which  it  is  raised  is  not  considered  important. 
It  may  be  in  the  set  phrase  of  a  challenge  to  the  array,  or  in 
the  form  of  a  motion  to  quash  the  returns  thereof,  and  is  suffi- 
cient if  stated  definitely  and  taken  down  by  a  stenographer.38 

A  motion  to  quash  a  venire  on  the  ground  that  it  was  not 
drawn  and  summoned  according  to  law  states  a  mere  con- 
clusion and  is  held  insufficient.39 

A  challenge  to  the  array  is  an  objection  to  all  the  jurors 
collectively,  and  not  the  proper  method  of  questioning  the 
qualifications  of  individual  jurors.  Such  an  objection  should 
be  raised  by  a  challenge  to  the  polls.40 

34— Neal  v.  Delaware,  103  U.  S.        38— Id. 
370.  39— Peel  v.   State,  144  Ala.  125, 

35— Williams   v.    State,    44    Tex.  39   So.   251;    Starr  v.   State    (Tex. 

34.  Cr.    App.),    13    Tex.    Ct.    Rep.    104, 

36— Hicks  v.   Com.,   3   Ky.   Law  86    S.   W.    1023;    State   v.   McNay, 

Rep.    87;    Smith   v.   Com.,    17   Ky.  100  Md.  622,  60  Atl.  273. 
Law  1162,  33  S.  W.  825;  Williams        40— People   v.    Richards,    1    Cal. 

v.  State,  supra;  Cavitt  v.  State,  15  App.   566,    82   Pac.    691;    Bryan   v. 

Tex.  App.  190;   State  v.  Sloan.  97  State,   124    Ga.   79,   52   S.   E.   298; 

N.  C.  499,  2  S.  E.  666.  Rawlins   v.    State,   124   Ga.   31,   52 

37— Ullman    v.    State,    124    Wis.  S.  E.  1. 
602,  103  N.  W.  6. 


§29.1  IMPANELING    THE    JURY.  17 

§  29.  Common  Law  Challenges  to  the  Polls.  We  now  arrive 
at  that  stage  of  the  proceedings  where  the  actual  formation 
of  the  trial  jury  is  begun,  when  the  venire  summoned  have 
presented  themselves,  and  where  the  parties  have  had  an  op- 
portunity to  challenge  the  array. 

It  then  remains  for  the  parties  to  challenge  the  jurors  in- 
dividually as  they  may  be  called  to  sit  upon  the  case.  Chal- 
lenges to  the  polls  were  of  two  kinds  at  common  law,  principal 
challenges  and  challenge  to  the  favor.  A  principal  challenge 
was  one  triable  by  the  court  itself  on  the  testimony  of  the 
juror  to  the  exclusion  of  all  other  evidence,  and  if  found  true, 
the  juror  was  adjudged  incompetent  per  se.  It  was  grounded 
upon  such  manifest  presumption  of  partiality  that  if  the  fact 
alleged  was  proved,  disqualification  followed  as  an  irrebuttable 
legal  conclusion.  The  truth  and  existence  of  certain  facts 
were  alone  to  be  determined  in  this  case. 

On  the  iOther  hand,  upon  a  challenge  to  the  favor,  disquali- 
fication arose  as  a  question  of  fact  to  be  determined  by  triers 
selected  or  appointed  for  the  purpose,  and  the  evidence  ad- 
duced in  support  of  .the  challenge  led  to  no  presumption  not 
subject  to  rebuttal.  In  fact  it  was  a  challenge  upon  suspicion 
only  and  for  the  purpose  of  determining  whether  or  not  the 
juror  was  indifferent.  It  involved,  also,  a  question  of  fact, 
but  this  did  not  necessarily  disqualify  a  juror,  except  as  it 
might  do  so  according  to  the  state  of  mind  of  the  juror  pro- 
duced by  these   facts. 

A  ground  of  principal  challenge  at  common  law  is  generally 
an  absolute  disqualification  following  as  a  necessary  legal  con- 
clusion upon  mere  proof  of  the  fact  alleged. 41 

Under  our  modern  practice  there  still  remains  unabrogated 
the  underlying  reasons  for  the  distinction  between  these  two 
challenges  for  cause  although  they  are  not  separately  desig- 
nated by  their  common  law  terms  and  although  both  are  tried 
and  passed  upon  by  the  court. 

§  30.  Right  of  Challenge  for  Cause.  The  right  to  challenge 
for  cause  is  a  common  law  right  which  cannot  be  taken  away 
except  by  statute,  if  in  fact  at  all;  and  wherever  there  is  a 
common  law  jury,  that  is,  a  jury  of  twelve  fair,  impartial, 
competent  men,  qualified  to  try  the  issue,  there  must  neces- 
sarily follow  the  right  of  selection  or  rejection  for  cause,  or 

41— Coughlin      v.      People,      144     111.  140,  33  N.  E.  1,  19  L.  R.  A.  57. 
2 


18  INSTRUCTIONS    TO    JURIES.  [§31. 

else  these  fundamental  rights  are   ignored,   abridged  or  de- 
stroyed.42 

The  grounds  of  challenge  for  cause  have  been  subdivided 
by  various  authors  to  little  or  no  practical  advantage,  the  main 
idea  being  to  secure  a  fair,  impartial  jury,  and  then  to  maintain 
the  same  under  the  instruction  of  the  court  until  the  final 
submission  of  the  case  to  them.  Any  proper  question  seeking 
to  elicit  a  juror's  frame  of  mind  respecting  the  parties  or  the 
action  is  allowable,  but  where  the  answer  will  have  no  dis- 
qualifying effect  in  one  way  or  the  other,  it  may  properly  be 
refused.  Challenges  for  cause  are  of  course  unlimited  in  num- 
ber, but  the  grounds  therefor  must  be  stated.43 

§  31.  Latitude  of  Examination  on  Voir  Dire.  The  scope  of 
the  examination  is  wide,  varying  with  the  nature  of  the  case 
on  trial,  and  questions  relating  directly  not  only  to  facts  which 
in  themselves  disqualify,  but  also  to  facts  which  in  connection 
with  others  have  a  tendency  to  affect  the  mind  and  bias,  may 
be  asked. 

Considerable  latitude  is  allowed  in  the  examination  of  per- 
sons called  to  act  as  jurors,  not  only  to  facilitate  the  discovery 
of  grounds  for  challenge  for  cause,  but  to  enable  the  parties 
to  discover  any  peculiarity  of  conduct,  association,  character 
or  opinion,  or  any  predilection  of  the  person  under  examination 
or  other  circumstances  Avhich  in  the  opinion  of  the  examiner 
might  influence  the  person  as  a  juror  and  affect  his  verdict.44 

A  right  to  an  impartial  jury  being  fundamental,  there  must 
be  a  right  reasonably  to  examine  a  person  called  as  a  juror 
to  ascertain  whether  or  not  he  is  impartial.  Questions  may 
also  be  asked  within  limits  fixed  by  considerations  of  ordinary 
propriety  and  pertinency  for  the  purpose  of  searching  for  facts 
upon  which  the  right  of  peremptory  challenge  may  be  pru- 
dently and  intelligently. exercised.45  It  has  been  held,  how- 
ever, to  the  contrary  that  questions  the  sole  object  of  which 
was  to  aid  in  the  exercise  of  peremptory  challenges  were  im- 
proper 


46 


42 — Knudinger    v.    Saginaw,    59         45 — State      v.  Dooley,      supra: 

Mich.   355,  26  N.  W.  634;    Barnett  State   v.    Foster,  91    Iowa    164,    59 

v.  Long,  3  H.  L.  Cas.  395-415.  N.  W.   8;    Vandalia  v.   Seibert,  47 

43 — Davis    v.    Anchor   Mut.    Ins.  HI.  App.  477. 

Co.,  96  Iowa  70,  64  N.  W.  687.               46— Dimmach  v.        Wheeling 

44— State    v.    Dooley,    89    Iowa  Traction  Co.,  52  S.  E.  101,  58  W. 

584,  57  N.  W.  414.  Va.  226. 


§32.]  IMPANELING    THE    JURY.  19 

§  32.  (Same  subject  continued.)  Questions  touching  scru- 
ples of  the  jurors,  asked  for  the  purpose  of  disclosing  facts 
affecting  impartiality,  may  in  proper  cases  refer  to  matters  of 
religion  or  of  race,  as  for  instance,  an  inquiry  if  the  juror  was 
biased  against  a  particular  religious  denomination  or  sect,  or 
if  he  would  take  the  word  of  a  Chinaman  as  fully  as  the 
word  of  any  other  person.47  But  a  juror  cannot  be  asked 
whether  he  would  believe  a  certain  witness  under  oath.48  It 
is  held  improper  to  ask  if  the  juror  would  give  the  testimony 
of  the  defendant  weight  if  reasonable  and  uncontradicted  and 
on  some  material  point,  although  he  might  be  asked  if  he 
would  give  all  the  evidence  fair  and  impartial  consideration 
and  such  weight  as  it  is  entitled  to.49  It  is  held  competent 
to  ask  a  juror,  in  order  to  test  his  bias,  which  party  he  would 
favor  if  the  evidence  were  ■  equally  balanced.50  In  Illinois, 
however,  this  question  has  been  held  improper.51 

A  juror  may  be  asked  as  to  his  knowledge  of  the  facts, 
or  if  he  has  formed  any  opinion  about  the  case,  but  not  as  to  his 
opinion  on  an  assumed  state  of  facts.52  A  question  upon  pre- 
liminary examination  of  a  juror  should  not  be  permitted  where 
it  calls  for  a  decision  of  a  question  of  law  and  does  not  inform 
the  juror  as  to  the  rule  of  law  which  governs  in  the  case  sup- 
posed; nor  should  a  question  be  permitted  which  calls  for  a 
pre-judgment  of  the  case  and  a  statement  as  to  which  party 
he  would  find  for  in  a  supposed  state  of  the  evidence,  thus 
possibly  entrapping  the  juror  into  an  answer  which  may  dis- 
qualify him.53 

§  33.  Questions  on  The  Voir  Dire, — Importance  of  Exam- 
ination. The  jury  receives  the  law  from  the  court,  and  for 
this  reason  counsel,  should  not  be  permitted  to  question  the 
juror  concerning  points  of  law,  or  in  fact  to  read  to  him  ex- 
tracts of  law  or  decisions  of  the  Supreme  Court.54    A  question 

47— People  v.  Gar  Soi,  57  Cal.  51— Chicago  &  Alton  Ry.  Co.  v. 
102.  Adler,     56     111.     344;     Chicago     & 

48-Fugate  v.  State,  37  So.  557,     Alton  v"   Fisher'   38   m-   APP-   33: 

85  Miss.  94,  107  Am.  St.  Rep.  268.     Fish  v'   Glass>    54   IU-   APP-    655- 

52 — Fish       v.       Glass,       supra; 
49-People      v.      Warner,      147     Woolen  y    Wire>  nQ  Ind    251    n 

Calif.   546,  82  Pac.   196.  N     E     239 

50— Otsego  Lake  v.   Kersten,   72  53 — Chicago   &   Alton   R.    Co.    v. 

Mich.  1,  40  N.  W.   26;   Monogham  Adler,     supra;    Chicago     &    Alton 

v.    Agri.    Fire    Ins.    Co.,    53    Mich.  R.   Co.   v.   Fisher,  supra. 

238,  18  N.  W.  797.  54— City    of    Chicago    v.    McGib- 


20  INSTRUCTIONS    TO    JURIES.  [§33. 

should  not  be  asked  which  calls  upon  the  juror  to  anticipate 

the  instructions  which  will  be  given  the  jury  by  the  court, 
as,  for  instance,  asking  whether  the  juror  knows  "that  a  de- 
fendant in  a  criminal  case  is  entitled  to  the  presumption  of 
innocence;"55  nor  should  a  question  which  purposes  the  dis- 
grace of  a  juror  be  permitted. 

A  juror  is  sworn  to  answer  such  questions  touching  his 
qualifications  to  sit  as  a  juror  in  the  case  as  may  be  put  to 
him,  and  for  the  purpose  of  ascertaining  if  a  juror  is  of  sound 
judgment  and  well  informed  as  required  by  statute,  it  would 
seem  that  questions  might  be  asked  concerning  the  juror's  gen- 
eral opinion  of  his  duties.  In  Illinois,  however,  it  has  been 
held  otherwise.56 

It  becomes  especially  important  that  a  party  should  make 
a  full  inquiry  on  the  voir  dire,  for  the  reason  that  grounds  for 
challenge  which  might  be  learned  by  examination,  had  the 
question  been  asked  of  a  juror,  are  deemed  to  have  been 
waived.57  If  a  juror  is  not  examined  as  to  his  qualifications 
and  competency,  all  objections  on  those  grounds  are  waived, 
although  the  fact  of  incompetency  did  not  become  known  until 
after  the  trial.5S  Defendants  in  criminal  cases  should  upon 
their  voir  dire  examination  of  jurors  endeavor  to  discover  the 
grounds  for  challenge  for  cause,  and  generally  after  verdict 
rely  upon  their  ignorance  as  a  ground  for  reversal.59  Where 
the  matter  is  not  inquired  into  on  the  voir  dire  examination, 
and  no  objection  is  made  until  after  the  trial,  such  objection 
is  deemed  waived.60  It  is  not  a  good  ground  for  a  new  trial 
that  counsel  learns  of  new  facts  concerning  a  juror  after  the 
trial,  which  would  have  been  of  no  use  to  him  on  a  challenge 
for  cause,  but  which  would  have  caused  him  only  to  have 
exercised   a  peremptory  challenge.61 

An  objection  to  the  competency  of  a  juror  should  always, 
be  made  when  he  is  sworn,  but  if  it  is  not  then  known,  it 

bons,  78  111.   347;    Philpot  v.  Tay-  59— McNish     v.     State,     36     So. 

lor,   75    111.   309.  176;   Carter  v.  State,  76  S.  W.  437: 

55— Ryan     v.     State,     115     Wis.  State    v.    Greenland,    125    la.    141, 

488,  92  N.  W.  271.  100    N.   W.    341;    Rhodes   v.    State, 

56— Penn.  Co.  v.   Rudd,   100   111.  50  S.  E.  361,  122  Ga.  56S. 

603.  60 — Turley  v.  State,  supra. 

57_Turley   v.    State,   104   N.  W.  61— Hern    v.     So.    Pac.    Co.,    29 

934    (Neb.).  Utah  127,  81  Pac.  902. 

58 — State    v.    Carpenter,    98    N. 
W.    775. 


§34.]  IMPANELING    THE    JURY.  21 

may  be  interposed  after  the  verdict.62  The  failure  to  raise 
an  objection  on  a  known  ground  of  disqualification  before  or 
during  the  trial  is  waived  if  it  is  raised  only  after  the  verdict,03 

Any  judgment  is  erroneous  that  is  rendered  upon  a  verdict 
found  by  a  jury  of  which  any  member  is  disqualified.  It  is 
not  regarded  as  a  nullity  and  as  void,  although  it  is  clearly 
erroneous  and  reversible  on  appeal.64 

§  34.  Acceptance  of  Juror  Is  a  Waiver  of  Objections,  When. 
It  is  a  rule  that  if  a  party  accepts  a  jury  knowing  that  one 
member  is  incompetent,  he  thereby  waives  the  defect.65  Noth- 
ing is  waived,  however,  where  a  juror  who  conceals  his  bias 
is  accepted.  The  parties  may  safely  rely  on  his  sworn  state- 
ments on  his  voir  dire  examination.66  Misconduct  manifestly 
prejudicial  is  shown  where  a  venire-man  falsely  states  on  his 
voir  dire  that  he  has  not  heard  the  matter  discussed,  does  not 
know  anything  about  it  and  is  not  acquainted  with  any  of  the 
witnesses.67  The  aggrieved  party  is  entitled  to  a  new  trial 
as  of  right,  where  a  juror  swears  falsely  and  conceals  his  bias 
on  his  voir  dire  examination.68  This,  however,  does  not  relieve 
the  party  from  the  duty  of  making  a  full  examination  of  the 
juror  before  accepting  him. 

Where  a  party  accepts  a  juror  without  examination,  all 
objections  on  the  ground  of  want  of  qualifications,  discovered 
afterward,  are  considered  waived,  unless  the  opposing  party  is 
guilty  of  concealment  or  fraud  in  the  matter.69 

§  35.  Evidence  in  Support  of  a  Challenge.  Both  parties 
have  the  right  to  interrogate  each  proposed  juror  on  his  oath, 
touching  his  qualifications,  and  if  a  challenge  is  not  allowed 
on  the  facts  disclosed  by  the  juror's  examination,  other  evi- 
dence than  the  testimony  of  the  persons  challenged  may  be 
heard,  and  the   court  is  required  to  determine  both  the  law 

62— State    v.    Groome,    10    Iowa  67— State  v.  Lauth,  46  Ore.  342, 

308.  80  Pac.  660. 

63— Queenan     v.     Territory,     11  68— Heasley      v.       Nichols,       38 

Okla.  261,  61  L.  R.  A.  324,  71  Pac.  Wash.  485,  80  Pac.  769. 

218.  69— Watts  v.  Ruth,  30  Ohio  23; 

64— Foreman   v.    Hunter,    39    la.  State    v.    Hinckle,    27    Kans.    308; 

550,  13  N.  W.  659.  Croy  v.   State,   32   Ind.   384;    State 

65— State    v.    Groonie,    10    Iowa  v.   Powers,    10   Oreg.    145;    Manion 

308.  v.   Flynn,    39    Conn.    330;    Viele   v. 

66— Heasley      v.       Nichols,       38  Funk,  17  Iowa  365;  Light  v.  C.  M. 

Wash.  4S5,  80  Pac.  769.  &  St.  P.  R.  Co.,  61   N.  W.  380,  93 

Iowa  83. 


22  INSTRUCTIONS    TO    JURIES.  [§36. 

and  the  facts  involved.70  A  court  may  receive  affidavits  of  the 
character  of  a  juror  who  has  sworn  falsely  on  his  examination 
and  whose  credit  and  veracity  is  attacked;71  but  unless  there 
is  a  sufficient  and  positive  showing  in  the  affidavit,  the  verdict 
will  not  be  set  aside  on  the  ground  of  the  bias  of  a  juror.71 

A  challenge  for  cause  must  state  the  ground  on  which  it  is 
based ;  otherwise  it  is  too  indefinite  and  should  be  overruled  ;7:: 
and  not  only  so,  but  it  must  be  supported  by  a  good  and 
sufficient  ground;74  and  it  must  be  of  such  a  nature  that  if 
proven,  it  would  be  sufficient  to  sustain  the  challenge.75 

In  all  challenges  the  court  is  the  sole  judge  of  the  law  and 
the  facts,70  and  to  any  error  of  the  court  in  this  respect  an 
exception  would  lie. 

§  36.  When  an  Erroneous  Ruling  on  a  Challenge  is  Pre- 
judicial. The  court  should  allow  a  wide  latitude  upon  the 
voir  dire  examination  of  a  juror,  and  should  be  disposed  to 
accept  the  testimony  of  witnesses  called  in  support  of  the 
challenge,  and  especially  is  this  true  where  a  party  has  ex- 
hausted his  peremptory  challenges,  and  a  strict  ruling  of  the 
court  would  foist  upon  him  a  biased  or  prejudiced  juror.77  It 
is  held  however,  that  a  ruling  on  a  challenge  for  cause,  even  if 
erroneous  is  without  prejudice  where  the  party  has  not  ex- 
hausted his  peremptory  challenges.78 

Overruling  a  challenge  for  cause,  and  thus  compelling  a 
party  to  resort  to  a  peremptory  challenge,  does  not  prejudice 
him  where,  when  the  jury  is  finally  accepted,  he  still  has  per- 
emptory challenges  not  used.  If  the  court  by  overruling  a 
challenge  for  cause,  should  prejudice  the  rights  of  the  party 
by  compelling  him  to  exhaust  a  final  peremptory  challenge  on 
persons  liable  to  challenge  for  cause,  such  ruling  would  be 
error.79     It  is  prejudicial  error  to  overrule  challenges  to  dis- 

70— -State  v.  Brownlee,   84  Iowa  J.   Law  142,   59   A.   1055;    State  v. 

473,  51  N.  W.  25.  Forsha.  190  Mo.  296,  88  S.  W.  746. 

71— State  v.   Levy,   75   Pac.   227.  76— May  v.   Elam,  27  Iowa  365 

72— Webster    v.    State,    47    Fla.  77— National     Bank     of     Boyer- 

108,   36   So.   584.  town  v.  Schufelt,  82  S.  W.  927   (I. 

73 — Davis   v.    Anchor   Mut.    Ins.  T.). 

Co.,  96  la.  70,  31  L.  R.  A.  141,  64  78— State  v.   Brownlee,   84   Iowa 

N.   W.    687;    Bonney  v.   Cooke,    61  473,  51  N.  W.  25;   State  v.  Winter, 

Iowa  303,  16  N.  W.  139.  72  Iowa  627,  34  N.  W.  475. 

74 — State   v.    Wilson,    99    N.    W.  79 — Martin     v.     Farmers'     Mut. 

1060.  Ins.  Co.,  139  Mich.  148,  102  N.  W. 

75— O'Donnell   v.   Weiler,    72   N.  656. 


§37.]  IMPANELING    THE    JURY.  23 

qualified  jurors,  and  sufficient  ground  for  reversal  when  the 
trial  is  compelled  to  be  had  before  obnoxious  jurors.80  The 
determination  of  the  trial  court  as  to  a  juror's  partiality  will 
be  interfered  with  on  appeal,  only  when  his  examination  on 
the  voir  dire  shows  bias  as  a  matter  of  law.81  The  question 
as  to  the  qualifications  of  jurors  is  left  largely  to  the  discretion 
of  the  trial  court,  and  its  ruling  will  be  reversed  only  when 
such  an  abuse  of  discretion  is  clearly  manifest.82  In  the  event 
of  a  court  properly  taking  a  case  away  from  the  jury  and 
directing  a  verdict,  all  errors  in  ruling  on  challenges  will 
of  course  be  without  prejudice.83 

A  re-examination  of  a  juror  after  acceptance,  and  even  after 
tacit  acceptance  of  the  whole  panel,  may  be  permitted  by  a 
trial  court  in  its  discretion  to  remove  or  clear  up  any  possible 
doubt   concerning  the  competency  of  any  juror.84 

§37.  Examination — By  Whom  Conducted.  In  some  states 
the  presiding  judge  is  required  to  conduct  the  examination. 
When  the  juror  is  thus  found  competent,  he  is  tendered  to  the 
parties  for  either  acceptance  or  rejection  by  them  upon  a 
peremptory  challenge.  In  some  instances  an  opportunity  is 
allowed  the  parties  notwithstanding  this  to  examine  the  jurors 
in  turn  or  to  suggest  questions  to  the  court,  and  this  method 
finds  its  justification  in  the  fact  that  the  sole  judge  of  the 
competency  of  the  juror  is  the  court  itself. 

Questions  that  may  be  asked  a  juror  to  test  his  competency 
may  be  prescribed  by  statute,  and  in  some  states  these  are 
the  only  proper  questions  that  may  be  asked,  although  they 
may  be  varied  in  phraseology  to  suit  the  mental  capacity  of  a 
juror.  The  parties  are  allowed  to  show  that  the  answers  are 
false  by  means  of  other  evidence.  This  method  has  been  held 
not  to  impair  the  right  to  trial  by  an  impartial  jury.85 

Summary.  In  fact,  it  may  all  be  summed  up  as  follows : — 
The  competency  of  a  juror  on  a  challenge  for  cause  is  for  the 
sole  and  final  determination  of  the  court  upon  the  facts  dis- 

80 — Decker    v.    Laws,    74    Ark.  Iowa   565;    Cramer  v.   Burlington, 

286,  85  S.  W.  425;   San  Antonio  &  42  Iowa  315;   McGinty  v.  Keokuk, 

A.  P.  R.  Co.  v.  Lester,  13  Tex.  Ct.  66  Iowa  725,  24  N.  W.  506;   Geiger 

Rep.  813,  89  S.  W.  752.  v.  Paine,  69  N.  W.  554,  102  la.  581. 

81 — Graybill     v.     DeYoung,    146  83 — Melerup   v.  Travel   Ins.  Co., 

Cal.    421,   80    Pac.    618.  95   la.   317,   63   N.  W.   665. 

82— Anson   v.   Dwight,    18    Iowa  84— Belt  v.  People,  97  111.  461. 

241;   Dav.  G.  L.  Co.  v.  City  Dav.,  85— Woolfolk    v.    State,    85    Ga. 

13    la.    229;     Dively    v.    City,    21  69,  11  S.  E.  814. 


24  INSTRUCTIONS    TO    JURIES.  [§37. 

closed  by  the  examination.  This  examination  may  be  made 
by  the  court  alone,  in  which  case  the  questions  must  be  of 
a  general  nature  and  not  seemingly  in  the  interest  of  either 
of  the  parties ;  or  assisted  by  counsel  on  either  side,  suggesting 
questions  which  the  judge  may  propound ;  or  the  examination 
may  be  by  questions  propounded  to  the  juror  in  turn  by  counsel 
after  the  examination  of  the  court;  or  for  counsel  on  either 
side  to  conduct  the  examination  themselves  under  the  super- 
vision and  restriction  of  the  court,  supplemented  by  the  court 
in  its  discretion;  or  by  statutory  questions;  or  by  evidence 
aliunde  produced  before  the  court  by  the  parties. 


CHAPTER  III. 


IMPANELING  THE  JURY— Continued. 


CHALLENGES   FOR   CAUSE. 


§  38.  Personal    exemptions — Age. 

§  39.  Prior   service  as   juror. 

§  40.  Alienage. 

§  41.  Consanguinity   or   affinity. 

§  42.  Ignorance  of  English  lan- 
guage. 

§  43.  Intimate  knowledge  of  ma- 
terial   issues    involved. 

§  44.  Intimate  friendly  relations 
with  opponent  or  x  his 
family. 

§  45.  Relationship  of  duty  or  ob- 
ligation, as  employer, 
partner,    or   otherwise. 

§  46.  Membership  in  churches,  so- 
cieties and  associations. 

§  47.  Member  or  shareholder  of 
corporation — Taxpayer  of 
county. 


§  48.  Prejudice,   partiality  or  bias. 

§  49.  Prejudice  against  the  sub- 
ject matter  of  the  action. 

§  50.  Prejudice  against  insanity  or 
Statute  of  Limitations. 

§  51.  Prejudice  against  class  of 
litigants  —  circumstan- 
tial   evidence. 

§  52.  Scruples  against  capital  pun- 
ishment. 

§  53.  Previous  conversation  with 
one  of  the  parties. 

§  54.  Having  formed  or  expressed 
an  opinion. 

§  55.  Opinions  formed  from  read- 
ing newspaper  articles. 

§  56.  Opinions  formed  from  rumor 
or   hearsay. 


§  38.  Personal  Exemptions — Age.  Although  the  common 
law  is  superseded  by  statutes  prescribing  the  disqualifications 
of  jurors  in  mcst  of  the  states,1  and  it  is  of  course  necessary 
to  consult  the  particular  statutes  of  the  state  in  which  the  court 
sits,  yet  in  the  absence  of  statutes  the  general  provisions  of 
the  common  law  apply. 

We  may  enumerate  some  of  the  various  grounds  of  challenge 
for  cause,  as  they  existed  at  common  law  and  under  the  stat- 
utes and  practice  of  the  various  states: 

Challenges  would  seem  to  be  good  for  all  causes  which  render 
a  person  exempt  from  jury  service.  There  is  some  conflict  in 
the  reasoning  of  the  courts  upon  this  matter,  however,  and  it 
is  held  that  exemption  from  jury  service  is  not  strictly  a  cause 


1 — Com.    v.    Wong    Chuns 


186    Mass.   231,   71   N.   E.  292. 
25 


26  INSTRUCTIONS    TO    JURIES.  [§39. 

for  challenge,  but  merely  a  personal  privilege  to  the  party, 
which  may  be   waived.2 

Statutory  provisions  exempting  all  persons  who  are  over 
sixty-five  years  of  age  from  liability  to  act  as  jurors,  does  not 
make  persons  over  that  age  incompetent,  and  such  persons 
are  liable  to  serve  unless  they  personally  claim  the  privilege 
of  exemption.3  It  is  held  in  Nebraska  that  it  is  not  a 
good  ground  for  challenge  that  a  juror  is  more  than  sixty 
years  of  age.4  There  is  equally  good  authority  to  the  effect, 
however,  that  the  age  of  talesmen  being  in  excess  of  that  pre- 
scribed by  statute  is  good  as  a  challenge  for  cause.5 

§  39.  Prior  Service  as  Juror.  It  is  held  that  prior  service  as 
a  juror  within  a  certain  time,  usually  a  year,  preceding  the 
term  at  which  he  is  challenged,  is  a  good  cause  for  challenge.6 
Previous  service  as  a  juror  is  held  to  disqualify  only  such  per- 
sons as  have  actually  served  within  that  time.7  Former 
service  within  a  year  as  a  juror  in  court  of  record  must  appear 
to  have  been  in  that  county,  to  be  a  good  cause  for  challenge.8 
It  is  held  that  ineligibility  because  of  previous  service  in  the 
same  court  during  the  year  renders  a  juror  incompetent 
"propter  defectum"  and  is  a  good  ground  for  challenge,  but 
when  this  was  not  known  until  after  verdict  and  sentence, 
it  is  not  a  cause  for  a  new  trial.9  It  also  disqualifies  one  to 
have  been  sworn  within  the  year  as  a  grand  juror;  the  statute 
prescribing  disqualifications  for  one  who  has  been  sworn  as 
a  "juror"  applies  also  in  this  instance.10  An  exemption  on 
account  of  prior  service  as  a  juror  should  be  liberally  con- 
strued and  allowed  as  a  challenge  for  cause,  in  view  of  the 
evil  of  professional  jurors,  which  it  was  especially  designed  to 
correct.11 

In  Illinois  it  is  a  ground  for  challenge  to  a  petit  juror  "that 

2 — State  v.  Adams,  20  Iowa  486;  Joint    Stock    Assn.,    35    Ind.    App. 

Murphy  v.  People,  37  111.  447;  Da-  221,  73  N.  E.  951;  Barnes  v.  New- 

vison  v.  People,  90  111.  221;   State  ton,  46  Iowa  567. 

v.    Edgerton,    100    Iowa    63,    69   N.  7— Humphrey  v.    State,   74   Ark. 

W.   280.  554,  86   S.  W.  431. 

3 — State  v.  Edgerton,  supra.  8 — Gropp  v.   People,  67  111.  154. 

4— Keeler  v.  State   (Nebr.),  103  9— Hill  v.  State,  122  Ga.  166,  50 

N.    W.    64.  S.  E.  57. 

5— R.    Co.    v.    Moosman,    82    111.  10— Bissel  v.  Ryan,   23   111.  517; 

App.    176;    Murphy   v.    People,    37  Brooks  v.   Bruyn,   35   111.   392. 

111.   447;    19   111.   74.  11— Burden  v.   People,   26   Mich. 

6 — Brooks     v.     Jennings     Agri.  162;    Williams    v.    State,    45    Ind. 


§10.]  IMPANELING    THE    JURY.  27 

he  has  served  as  a  juror  on  a  trial  of  a  cause  in  any  court 
of  record  in  the  county  within  one  year  previous  to  the  time 
of  his  being  offered  as  a  juror."12 

Having  already  sat  on  a  trial  of  the  same  issues  is  a  good 
ground  of  challenge,  or  having  served  as  a  grand  or  trial  juror 
in  a  criminal  case  based  on  the  same  transaction.13 

A  juror  is  not  disqualified  who  has  sat  upon  a  panel  that 
convicted  another  defendant  of  a  similar  kind,  but  not  con- 
nected with  the  crime  for  which  the  defendant  is  being  tried.14 
But  where  the  offense  for  which  the  defendant  is  being  tried 
arose  out  of  the  same  matter,  and  the  same  evidence  is  relied 
on,  a  juror  that  sat  on  a  former  trial  of  one  of  the  co-defendants 
indicted  for  the  same  offense  may  be  challenged  for  cause.15 

§40.  Grounds  for  Challenge — Alienage.  Alienage  is  held  to 
disqualify  a  juror.  A  statute  which  in  some  states  expressly 
qualifies  citizens  natural  born  or  naturalized  for  jury  service 
necessarily  disqualifies  all  others.10 

Alienage  of  a  juror  has  been  held  by  one  court  not  to  be  an 
absolute  disqualification,  but  merely  an  exemption,  enabling 
him  to  excuse  himself.17 

Where  peremptory  challenges  have  not  been  exhausted,  the 
alienage  of  a  juror  has  been  held  not  to  constitute  a  good 
ground  for  challenge  for  cause.18 

Character.     A  good  ground  of  challenge  for  cause  is  that  a 

299;  Williams  v.  Grand  Rapids,  53  faith"    are    all    exempt    from    jury 

Mich.  271,  18  N.  W.  811;   Bissel  v.  service.     The  fact  that  a  person  is 

Ryan,   23   111.    517.  a  minor  would  seem  to  be  equally 

12 — Vol.   6,   Starr  &  Curtis  Ann.  good  as  a  ground  of  challenge  fol- 

111.    Stat.,    Sec.    14,    p.    2391,   Plum-  lowing   this   line    of   reasoning, 

mer  v.  People,  74  111.  361.  13 — Code  of  Iowa. 

In  Iowa  the  code  provides  that  14 — State  v.  Van  Waters,  37 
persons  "holding  office  under  the  Pac.  897;  People  v.  Albers,  137 
laws  of  the  United  States  or  the  Mich.  G78,  100  N.  W.  908;  Bird- 
State  of  Iowa,  practicing  attor-  song  v.  State,  120  Ga.  850,  48  S. 
neys,   physicians,    registered    phar-  E.    329. 

macists,     clergymen,     acting     pro-  15 — People    v.    Mol,     137    Mich, 

fessors    or    teachers,    members    of  692,   100  N.  W.   913. 

any     fire     company,     persons     dis-  16 — Greenup  v.    Stoker,   3   Gilm. 

abled  by  bodily  infirmity,  or  over  202;    Shoemacher  v.   State,   5  Wis 

"ixty  years  of  age,  or  any  persons  324;    State  v.  Vogel,   22  Wis.   449. 

conscientiously   opposed    to    acting  17 — Chase  v.  People,  40  111.  35S. 

as    a    juror    because    of    religious  18 — Territory   v.    Hart,    14    Pac. 

768. 


28  INSTRUCTIONS    TO    JURIES.  [§41. 

person  is  not  of  good  moral  character19  or  "not  of  fair  char- 
acter and  approved  integrity"  according  to  the  statutes  of 
Illinois.20 

Mental  Unsoundness.  All  persons  mentally  incompetent, 
idiots  or  persons  of  unsound  mind  may  be  challenged.  Hav- 
ing such  defects  in  the  faculties  of  mind,  or  in  the  organs  of 
the  body,  as  to  render  the  juror  incapable  of  performing  the 
duties  of  a  juror  is  a  good  ground  of  challenge  in  the  state  of 
Iowa.  Jurors  must  be  in  possession  of  their  natural  faculties 
and  not  infirm  or  decrepit,  and  a  lack  of  these  qualifications 
is  also  sufficient  cause  of  challenge  in  the  state  of  Illinois.21 

Not  Being  a  Qualified  Elector.  It  has  been  held  that  a  juror 
is  incompetent  who  is  not  a  qualified  elector.22 

Having  a  Cause  Fending  at  Same  Term  of  Court.  Having 
a  cause  pending  and  at  issue,  at  the  same  term  of  court  is 
generally  considered  a  good  cause  for  challenge.23 

Consanguinity  or  Affinity.  Consanguinity  or  affinity  to  the 
adverse  party  within  certain  prescribed  degrees,  computed 
according  to  the  civil  law  and  placed  at  the  ninth  degree  under 
the  common  law  practice  is  ground  for  challenge.  While  affinity, 
or  relationship  by  marriage  is  sufficient,  yet  the  death  of  the 
party  through  whom  the  relationship  was  created  will  dis- 
solve the  tie,  except  where  living  issue  survive. 

A  venireman  in  a  murder  case,  who  was  married  to  the 
second  cousin  of  the  deceased,  was  properly  excused  because 
related  within  the  sixth  degree  by  affinity.24  Relationship  to 
an  attorney  in  the  case  has  been  held  to  be  a  good  ground  of 
challenge  for  cause,  especially  where  the  attorney  has  an  in- 
terest in  the  verdict  by  way  of  fees  to  be  paid  therefrom.25 

Where  a  juror  on  his  voir  dire  testified  that  he  knew  the 
parties,  but  was  not  related  to  them,  and  wras  able  to  decide 
the  case  on  the  evidence  without  regard  to  who  the  attorneys 
were,  but  was  not  asked  whether  he  was  related  to  them  or 
not,  a  judgment  would  not  be  reversed  although  the  juror  was 

19 — Manning  v.   Boston   El.  Ry.  p.  2391.  Plummer  v.  People,  supra. 

Co.    (Mass.),  73  N.  E.  645.  22— State    v.    Groome,    10    Iowa 

20— Vol.   2,   Starr  &  Curtis  Ann.  308. 

111.   Stat.,   Sec.    2,   p.  2386,  sec.  14,  23 — Plummer  v.   People,  supra. 

p.  2391;  Plummer  v.  People,  74  111.  24— State  v.  Byrd,  72  S.  C.  104, 

361.  51   S.   E.    542. 

2i_ vol.  2,  Starr  &  Curtis'  Ann.  25— Melson    v.    Dickson,    63    Ga. 

111.   Stat.,   Sec.   2,  p.   2386,   Sec.  14,  682,  36  Am.  Rep.  128. 


§42.]  IMPANELING    THE    JURY.  29 

in  fact  married  to  a  first  cousin  of  one  of  the  attorneys.26 
It  has  been  held  that  a  juror's  relationship  as  the  son  of  a  stock- 
holder in  a  corporation  that  is  a  party  to  the  action,  was  a 
good  ground  for  challenge.27  In  the  absence  of  statute  fixing 
the  degrees  of  relationship,  it  is  held  to  be  a  question  of  bias, 
xo  be  determined  by  the  court  as  to  whether  a  juror's  rela- 
tionship to  the  party  would  render  him  incompetent.28 

A  court  may  discharge  a  juror  on  the  ground  of  kinship 
even  after  he  has  been  accepted  and  sworn.29  An  objection 
on  the  ground  of  relationship  is  considered  waived,  if  it  is 
known  and  not  taken  advantage  of  before  the  verdict.30 

§  42.  Ignorance  of  English  Language.  Ignorance  of  the 
English  language  is  held  to  be  a  good  cause  for  challenge.31 
A  disqualification,  because  of  inability  to  read  or  write  the 
English  language  is  held  not  unconstitutional,  as  the  qualifi- 
cations of  jurors  may  be  prescribed  without  contravening  the 
right  of  trial  by  jury32  and  indeed  a  trial  by  jurors  unable 
to  speak  or  understand  the  English  language  is  in  direct  viola- 
tion of  the  right  of  trial  by  jury.33 

§  43.  Intimate  Knowledge  of  Material  Issues  Involved.  In- 
timate knowledge  of  material  issues  involved  in  the  case  on 
the  part  of  a  juror  is  held  to  be  a  sufficient  ground  of  dis- 
qualification,34 but  the  knowledge  of  incidental  facts,  or  those 
collateral  to  the  material  issues  of  the  case,  does  not  render  the 
juror  incompetent.35  However  if  the  juror  has  such  a  knowl- 
edge of  material  facts  as  will  tend  to  bias  his  opinion,  he  is 
considered  incompetent  and  may  be  challenged  for  cause.36 

There  is  also  a  further  ground  for  the  discharge  of  a  juror 

26— Kelso    v.    Kuehl,    93    N.    W.  570,  21  S.  W.  443;   Rafe  v.  State, 

455,  116  Wis.   495;   People  v.  Wal-  20   Ga.   60. 

ler,  70  Mich.  237,  38  N.  W.  261.  33— Lyles  v.  State,  41  Texas,  172, 

27— Georgia  Ry.  Co.  v.  Hart,  60  19    Am.    Rep.    38. 

Ga.  550.  34— Johnson    v.    Park    City,    27 

28— Sims  v.   Jones,   43   S.   C.   91,  Utah   420,   76   Pac.   216. 

20  S.  E.   905.  35— Delaney  v.    Salina,   34   Kan. 

29— Dorman     v.     State,     37     So.  532,  9  Pac.  271;   People  v.  Keefer, 

561,   48   Fla.   18.  97  Mich.  15,  56  N.  W.  105;    State 

30— Hadden    v.    Thompson,    118  v.  Martin,  28  Mo.  530;  Dew  v.  Mc- 

Ga.    207,    44    S.    E.    1001;    State  v.  Davitt,  31  Ohio  St.  139. 

Pray,   99  N.  W.  1065.  36— Mclntire  v.   Hussey,   57  Me. 

31— State  v.  Ring,  29  Minn.   78,  493;    Atkins  v.   State,   60  Ala.   45; 

11  N.  W.  233;  Atlas  Mining  Co.  v.  Laverty  v.  Gray,  3  Mart.  La.  617; 

Johnson,  23  Mich.  36.  Buddee  v.   Spangler,  12  Colo.  216. 

32— State    v.    Welsor,    117    Mo.  20  Pac.  760. 


30  INSTRUCTIONS    TO    JURIES.  [§43. 

found  to  possess  knowledge  of  facts  material  in  the  case  aside 
from  that  of  his  possible  prejudice  by  reason  of  his  knowledge, 
and  that  is  that  the  party  may  use  him  as  a  witness.  Of 
course,  as  before  stated,  the  juror  could  be  a  competent  witness, 
but  the  opposing  party  would  hardly  dare  to  impeach  him  as 
a  witness  nor  could  he  adequately  cross-examine  a  juror  for 
fear  of  offending  him.37 

A  juror  is  not  supposed  to  be  a  blockhead  and  he  may  bring 
to  bear  upon  the  case  and  has  a  right  to  use  his  own  knowledge 
of  the  common  facts  and  general  information  which  he  may 
possess,  not  directly  involving  the  specific  issues  in  controversy 
but  which  by  way  of  comparison  may  elucidate  the  controversy. 

It  may  transpire  that  a  particular  juror,  by  reason  of  his 
trade  or  education,  has  a  peculiar  and  specific  knowledge  of 
a  special  subject  connected  with  the  case,  as,  for  instance, 
an  engineer  sitting  as  a  juror  may  possess  a  special  knowledge 
connected  with  the  matter  of  running  an  engine  that  none  of 
the  other  jurors  possess.  It  then  becomes  a  question  as  to 
whether  such  a  juror  is  in  duty  bound  figuratively  to  divest 
himself  of  such  superior  intelligence  and  to  act  solely  upon 
the  evidence  and  the  expert  testimony  received  in  court  for 
the  purpose  of  supplementing  the  general  knowledge  of  'the 
jurors  or  whether  he  may  act  upon  his  own  expert  knowledge 
and  information. 

It  would  seem  to  be  impossible  to  draw  the  line  upon  so  in- 
tangible a  matter  as  a  person's  stock  of  knowledge  and  cer- 
tainly it  would  be  an  impossibility  ever  to  secure  a  jury  equal 
in  mental  power  and  in  their  stock  of  information.  It  is  true 
that  the  parties  in  court  have  no  means  of  knowing  whether 
the  information  possessed  by  the  juror  was  correct  or  not. 

There  would  also  be  no  means  of  correcting  it  if  erroneous, 
but  this  is  no  real  objection  and  could  be  urged  with  equal 
force  against  any  false  judgment,  erroneous  conclusion,  or 
illogical  conception  that  a  juror  may  have. 

From  this  it  seems  to  follow  that  it  is  the  right  and  duty 
of  the  jury  to  marshal  in  array  all  of  their  personal  knowledge, 
information,  human  experience,  intuition  with  their  physical 
senses  in  passing  upon  the  evidence  in  the  case. 

37 — Juror     may     be     an     inter-    this    case    the    accused    consented 
preter;   People  v.  Thiede,  11  Utah    thereto. 
241,  39  Pac.  837,  159  U.  S.  51.     In 


§44.]  IMPANELING    THE    JURY.  31 

§  44.  Intimate  Friendly  Relations  with  Opponent  or  his 
Family.  Intimate  friendship  with  one  of  the  parties  is  held 
to  disqualify  a  juror,  especially  where  it  is  of  such  an  intimate 
nature  as  to  influence  him  in  the  verdict.38  Intimate  friend- 
ship, as  where  the  plaintiff  had  been  an  attorney  for  the  juror 
and  had  named  one  of  his  children  for  him  on  account  of  his 
regard,  was  held  a  ground  of  disqualification.39  However, 
the  decisions  are  not  entirely  uniform  upon  this  point,  and  a 
juror  has  been  held  not  to  be  disqualified  on  the  ground  of  bias 
where  the  plaintiff  was  his  family  physician,  for  the  reason 
that  the  court  would  not  usually  exclude  competent  men  as 
jurors  for  arbitrary  or  technical  reasons.40 

§  45.  Relationship  of  Duty  or  Obligation,  as  Employer,  Part- 
ner or  Otherwise.  A  relationship  of  duty  or  obligation  to  a 
party  to  the  action  on  account  of  past  or  promised  favors  is 
held  to  disqualify  a  juror  on  challenge  for  cause.  For  instance, 
a  guest  who  receives  gratuitous  board  is  disqualified  in  an 
action  wherein  his  landlord  is  a  party,  but  if  he  is  under 
obligation  to  pay,  it  might  be  otherwise.41  Being  in  the  em- 
ploy of  either  party  as  servants  or  otherwise  is  held  to  dis- 
qualify a  juror  in  the  same  manner  as  it  did  at  common  law,42 
but  the  performing  of  some  mere  clerical  work  by  one  of  the 
jurors  for  one  of  the  party  is  held  not  to  be  a  sufficient  ground 
of  challenge  for  bias.43 

Being  in  the  relationship  of  partners  or  that  of  landlord 
and  tenant,  so  that  the  juror  might  ordinarily  seek  to  favor 
such  a  party,  or  being  under  his  control  in  any  way  is  a  good 
ground  of  challenge.  It  is  held  not  proper  to  ask  a  juror 
concerning  his  pecuniary  obligations  to  a  party  to  the  case,44 
although  it  would  seem  to  have  a  bearing  on  the  question  of 
bins,  as  well  as  any  other  question  that  might  be  asked.  All 
of  these  matters  concerning  the  relationship  of  duty  or  obliga- 

38— Omaha   St.   R.   Co.  v.   Craig,  42— Hubbard     v.     Rutledge,     57 

39   Nebr.   601,   58  N.   W.   209.  Miss.    7;    Louisville    T.    R.    Co.    v. 

39— R.  Co.  v.  Blanton,  81  S.  W.  Mask,    64    Miss.    738,    2    So.    360; 

537.  Central  R.  Co.  v.  Mitchell,  63  Ga. 

40— Chesapeake  &  Ohio  Ry.   Co.  173. 

v.    Smith,    49    S.    E.    487,    103    Va.  43— Swope  v.   Seattle,   36  Wash. 

326;    Brown   v.   McNair,   82   S.  W.  113,  78  Pac.  607. 

677.  44 — R  ichardson   v.   Planters 

41— Cummings      v.      Gann,      52  Bank,  94  Va.   130,  26  S.   E.  413. 
Penn.  484. 


32  INSTRUCTIONS    TO    JURIES.  [§46. 

tion,  must,  however,  be  presently  existing  in  order  to  be  of 
any  consequence. 

§  46.     Membership  in  Churches,  Societies  and  Associations. 

Membership  of  a  juror  in  a  secret  society  or  association  with 
one  of  the  parties  has  been  held  a  good  ground  for  challenge 
for  cause,45  although  this  would  seem  to  be  very  extreme  to 
say  the  least.  In  Kentucky  it  was  held,  on  the  contrary,  that 
veniremen  who  were  Catholic  were  not  disqualified  for  that 
reason  in  an  action  by  a  Protestant  against  a  Catholic  eleemo- 
synary institution.46  Membership  of  a  juror  in  a  certain 
church  was  held  a  good  ground  of  challenge  for  cause,  where 
the  trustees  of  that  church  were  parties  to  the  action ;  but 
this  was  on  account  of  the  beneficial  interest  which  they  sus- 
tained.47 

Persons  who  are  members  of  a  society  liable  to  assessments 
for  funds  to  prosecute  violations  of  liquor  laws  are  not  com- 
petent jurors  to  try  defendant  charged  with  selling  liquor 
without  a  license.48  Persons  who  are  members  of  a  mutual 
insurance  company  and  liable  to  an  assessment  to  pay  any 
judgment  which  might  be  rendered  against  it  are  not  qualified 
to  sit  as  jurors  in  an  action  against  the  company.49 

§  47.  Member  or  Shareholder  of  Corporation — Taxpayer  of 
County.  Being  a  member  of,  or  a  shareholder  in,  a  public 
or  private  corporation  which  is  a  party  to  the  suit  is  a  good 
ground  of  challenge,  which  the  adverse  party  may  make  to  a 
juror  and  is  allowed  on  the  ground  of  interest.  Thus,  it  has 
been  held  that  the  membership  of  a  juror  in  a  corporation 
holding  stock  in  another  corporation,  when  such  corporation 
is  a  party  to  the  action,  has  been  allowed  as  a  good  challenge 
for  cause.50  But  a  juror  is  not  disqualified  by  interest  merely 
because  his  employer  is  a  stockholder  of  the  corporation  that 
is  a  party  to  the  action.51 

In  an  action  against  a  city  for  damages  a  taxpayer  of  a 

45 — Purple  v.  Horton,  13  Wend.  State    v.    Fullerton,    90    Mo.    App. 

9,   27  Am.   Dec.   167.  411. 

46 — Smith    v.    Sisters    of    Good  49 — Martin     v.     Farmers'     Mut. 

Shepherd,  27  Ky.  Law  1170,  87  S.  Fire   Ins.    Co.,   139   Mich.   148,    102 

W.   1076    (1083).  N.  W.  656. 

47 — Cleage    v.    Hyden,    6    Heisk  50 — McLaughlin      v.      Louisville 

73.  Elec.  Lgt.   Co.,  100  Ky.  173,  37  S. 

48— Jackson  v.  Landman,  45  N.  W.   851,   34   L.   R.   A.   812. 

Y.   S.  R.  633,  18  N.  Y.  Supp.  894;  51— D  i  m  m  a  c  k     v.     Wheeling 


§48.]  IMPANELING    THE    JURY.  33 

city  is  held  subject  to  challenge  for  cause,  and  this  is  true 
even  though  he  is  a  non-resident  of  the  city.52  Taxpayers 
of  the  county  being  disqualified  by  reason  of  interest  as  jurors, 
in  a  suit  against  the  county  for  damages,  it  would  seem  that 
a  change  of  venue  was  inevitable,  as  in  Iowa.53  It  is  held  in 
this  same  case  that  where  a  plaintiff  could  by  right  have  a 
change  of  venue  in  such  an  action,  that  he  virtually  waived 
his  challenges  to  the  jurors  for  cause  on  this  ground  by  going 
to  trial  without  asking  for  a  change  of  venue.54 

On  the  contrary  it  is  held,  in  Utah,  that  the  qualifications  for 
exclusion  cannot  be  based  on  such  partisan  grounds  as  that  of 
being  a  taxpayer  in  the  city  or  county  that  is  a  party  to  the 
suit.55  By  statute  in  many  other  states  it  is  provided  that  no 
challenge  for  cause  may  be  allowed  in  such  instances. 

A  juror  is  held  to  be  incompetent  who  is  interested  in  the 
result  of  the  cause  on  trial,  but  this  is  not  construed  as  an 
interest,  merely,  which  he  might  have  in  the  legal  questions 
involved  ;56  it  must  be  something  of  a  material  and  pecuniary 
nature,  directly  affecting  him  in  a  personal  way,  as,  for  in- 
stance, having  made  a  wager  on  the  result  of  the  case,  or  being 
on  the  bond  of  one  of  the  parties. 

A  juror  may  also  be  challenged  for  cause  when  he  has  liti- 
gation pending  with  one  of  the  parties  to  the  suit. 

§  48.  Prejudice,  Partiality  or  Bias.  Prejudice,  partiality  or 
bias  of  any  nature,  so  that  the  juror  could  not  be  as  fair 
on  the  trial  of  the  case  on  hand  as  he  would  want  a  juror 
to  be  on  his  own  case,  are  grounds  of  challenge.  The  legal 
disqualification  of  a  juror  must  be  tested  by  something  more 
certain  than  the  bare  possibility  that  he  might  be  prejudiced 
by  his  belief  of  an  immaterial  fact.57  A  suspicion  of  guilt 
raised  in  a  juror's  mind  by  reason  of  the  fact  that  an  indict- 
ment had  been  found  was  held  not  to  be  a  good  ground  for 
challenge  for  cause,58  and  a  statement  by  a  juror  that  it  Avould 

Tract.  Co.,  52  S.  E.  101,  58  W.  Va.  Road  Co.,  52  Ind.  51-59.     A  holder 

226.  of  bonds,  similar  to  those  sued  on, 

52 — Kendal    v.    Albia,    73    Iowa  has  been  held  subject  to  challenge 

241,  34  N.  W.  833.  for  cause.     Jefferson  Co.  v.  Lewis, 

53— Wilson   v.   Wapello    County,  20  Fla.  980. 

105  N.  W.  363,  129  la.  77.  57— People  v.   Albers,   137  Mich. 

54— Id.                                              v  678,   100  N.  W.   908. 

55— Reece  v.  Knott,  3  Utah  451,  58 — Gillespie  v.    People,   176   111. 

24  Pac.  757.  243,  52  N.  E.  250. 

56— Miller    v.    Wild    Cat    Gravel 
3 


34  INSTRUCTIONS    TO    JURIES.  [§49. 

demand  a  stronger  defense  in  the  case  of  this  defendant  than 
that  of  another  was  held  a  good  ground  for  challenge.59 - 
No  bias  is  shown,  however,  when  a  juror  states  on  his  voir 
dire,  that  he  knows  neither  of  the  parties  and  nothing  about 
the  case,  and  that  he  could  not  say  that  his  sympathies  were 
for  either,  and  that  his  verdict  would  depend  on  the  evidence.60 

Jurors  should  not  only  be  impartial  at  the  time  they  are 
selected,  but  should  of  course  remain  so  throughout  the  trial.61 
Jurors,  however,  who  have  had  more  or  less  active  connection 
with  the  matters  upon  which  the  issues  are  based  can  hardly 
be  said  to  be  of  a  sufficiently  fair  and  impartial  frame  of  mind 
to  try  the  case  properly ;  so  that,  for  instance,  jurors  who  are 
members  of  a  posse  that  ran  down  the  defendant  on  trial  would 
not  be  considered  as  impartial.62  So.  also,  an  active  participant 
at  a  political  meeting  would  not  be  a  qualified  juror  in  an 
action  for  libel  growing  out  of  words  spoken  at  that  meeting. 

In  a  criminal  case  the  court  should  be  satisfied  that  a  juror 
is  impartial,  and  the  conduct  and  demeanor  of  the  juror  must 
show  affirmatively  that  he  is  so.63  If,  however,  the  parties 
themselves  choose  to  accept  a  prejudiced  juror,  the  court 
should  not  refuse  them  the  right.64 

§  49.     Prejudice  against  the  Subject  Matter  of  the  Action. 

Prejudice  against  the  very  matter  out  of  which  the  action 
grew,  as,  for  instance,  an  action  against  a  seller  of  intoxicat- 
ing liquors  involving  matters  of  his  business,  is  held  not  to 
be  a  good  ground  for  challenge  for  cause,  except  where  the 
prejudice  is  of  a  violent  nature,  or  where,  as  we  have  already 
stated,  the  juror  is  a  member  "of  an  association  formed  to 
enforce  a  particular  law,  and  is  bound  to  contribute  money  for 
that  purpose."65 

That  a  juror  dislikes  or  has  prejudice  against  the  vocation 
of  a  saloon  keeper  is  not  a  ground  for  challenge  in  the  absence 

59 — Billmeyer  v.  St.  Louis  Tran-  62 — State     v.     Duncan,     47     La. 

sit  Co.,  82  S.  W.  536,  108  Mo.  App.  Ann.  1025,  17   So.  482. 

6;    State  v.  John,   100  N.  W.  193;  63— Lucas    v.    State,    105    N.    W. 

State  v.  Roberts,  77  Pac.   598.  976. 

60 — Schwartz  v.  Lee  Gon.  Oreg.,  64 — Van  Blaricum  v.   People,  16 

80  Pac.  110.  111.  364. 

61— Albers    v.    San    Ant.    R.    R.  65 — Lavin  v.  People,  69  111.  303; 

Co.,  SI  S.  W.  828;   People  v.  Mo!.,  Musick     v.     People,     40     111.     268; 

137    Mich.    692,    100    N.    W.    913;  State  v.  Kelley,  78  Pac.  151;  Dodd 

Riley  v.  State,  81  S.  W.  711.  v.  State,  82  S.  W.  510. 


§  50.]  IMPANELING    THE    JURY.  35 

of  prejudice  against  this  particular  defendant,06  but  where  a 
juror  states  that  he  can  give  a  fair  trial  and  be  governed 
by  the  law  and  the  evidence,  he  is  not  disqualified  in  an  action 
against  a  saloonkeeper  by  reason  of  prejudice  against  persons 
in  general  Avho  are  engaged  in  that  business.67 

Where  the  prejudice  is  so  violent,  however,  that,  as  he  says, 
he  would  do  all  in  his  power,  except  raise  mobs  to  break  down 
places  used  for  the  business,68  or  where  the  juror  says  he  would 
not  give  the  same  weight  to  the  testimony  of  the  witness  en- 
gaged in  selling  intoxicating  liquors  that  he  would  to  that  of 
another  person,  he  is  held  to  be  disqualified.69 

A  trial  court  may  excuse  a  juror  in  its  discretion,  although 
he  is  not  legally  disqualified,  when  the  sitting  of  the  juror 
is  reasonably  liable  to  give  either  party  an  apprehension  of 
unfairness.70  A  juror  who  states  that  he  has  a  prejudice 
against  such  eases  as  the  one  on  trial,  which  would  require 
evidence  to  remove,  but  that  he  knows  nothing  about  this  par- 
ticular case  and  has  no  prejudice  concerning  it,  and  would 
try  it  on  its  merits,  is  held  not  to  be  disqualified.71 

§  50.  Prejudice  against  Insanity  or  Statute  of  Limitations. 
A  prejudice  against  insanity  as  a  defense  will  not  disqualify 
where  the  juror  testifies  that  he  will  follow  the  law  as  laid 
down  in  the  instructions  of  the  court.  Prejudice  in  order  to 
disqualify,  must  extend  to  that  particular  form  of  insanity 
relied  upon  as  a  defense.72 

Where  the  defense  relied  upon  was  insanity,  which  appeared 
to  have  been  caused  by  liquor,  a  juror  on  his  voir  dire  stated 
that  he  could  not  give  that  defense  the  same  weight  as  any 
other.  The  court  then  asked  the  juror,  if  it  should  appear  that 
the  accused  was  insane  from  any  cause  whatsoever,  whether 
he  would  give  the  accused  the  benefit  of  the  doubt.  The 
juror  replied  affirmatively,  and  was  held  not  to  be  disqualified 
on  that  ground.73 

66— Albrecht   v.   Walker,    73    111.  70— Glasgow  v.  Metropolitan  St. 

69;      Krcer     v.      People,      78      111.  Ry.  Co.,  89  S.  W.  915,  191  Mo.  347. 

294;     Carrow    v.    People,    113    111.  71 — Denham     v.     Wash.     Water 

550.  Power  Co.,  38  Wash.  354,   SO  Pac. 

67— Robinson  v.  Randall,  82  111.  546. 

521.  72— State    v.    Howard,    77    Pac. 

68 — Albrecht  v.  Walker,   supra.  50;    Gammons    v.    State,    85    Miss. 

69 — Robinson  v.  Randall,  supra;  103,  37  So.  609. 

Meaux    v.    Whitehall,    8    111.    App.  73— State    v.    Croney,    31   Wash. 

172.  122,  71  Pac.  783. 


36  INSTRUCTIONS    TO    JURIES.  [§51. 

A  juror  may  be  asked  if  he  is  prejudiced  against  the  statute 
of  limitations  which  the  party  has  pleaded.74 

§  51.  Prejudice  against  Class  of  Litigants — Circumstantial 
Evidence.  A  juror  may  be  asked  if  he  has  any  prejudice 
against  the  class  of  litigants  to  which  the  party  to  the  action 
belongs.75  It  is  also  proper  to  ask  a  juror  if  he  is  prejudiced 
against  those  of  the  Jewish  faith;  but  he  could  not  be  asked, 
however,  if  the  testimony  of  Jewish  witnesses  would  receive 
as  much  credit  as  any  witness  of  another  faith.76 

A  prejudice  against  the  negro  race,  not  sufficiently  strong 
to  prevent  the  juror  from  affording  the  prisoner  a  fair  trial, 
will  not  disqualify  him  when  he  has  no  prejudice  against  the 
prisoner  personally.77 

It  is  held  that  a  juror  cannot  be  asked  if  he  is  prejudiced 
against  corporations.78  A  juror  who  had  an  action  against  a 
Street  Railway  Company  for  injuries  several  years  before,  and 
had  a  prejudice  against  such  companies  in  general,  sufficient  to 
influence  him  on  the  trial,  was  held  disqualified,  although  he 
testified  that  he  would  be  governed  by  the  evidence  and  the 
instructions  of  the  court.79  A  contrary  ruling  seems  to  have 
been  made  on  this  point,  which  seems  to  be  lacking  in  good 
and  sound  reason,  where  it  was  held  that  no  bias  was  shown 
in  an  action  for  libel  on  the  part  of  a  juror  who  stated  that 
he  thought  such  actions  speculative  and  often  unwarranted, 
that  he  had  the  same  opinion  of  all  kinds  of  damage  suits, 
and  that  such  an  opinion  might  create  a  prejudice,  although  he 
would  try  the  case  at  issue  on  the  evidence  given.80 

Prejudice  against  circumstantial  evidence  has  also  been  held 
sufficient  as  a  ground  for  challenge  for  cause  and  that  even  in 
a  case  which  does  not  depend  upon  such  evidence.81 

§  52.  Scruples  against  Capital  Punishment.  Conscientious 
scruples    against    capital   punishment    in    criminal    eases    dis- 

74— Towl  v.    Bradley,   108   Mich.  '/y— Theobaldt    v.    St.    L.    Tract. 

409,  66  N.  W.  347.  Co.,  191  Mo.  395,  90  S.  W.  354. 

75— Patrick   v.    State,    78    S.    W.  80— Graybill     v.     DeYoung,     146 

947,  45  Tex.  Crim.  App.  587.  Cal-   421>   80   Pac-    618- 

76-Horst  v.  Schuman,  20  Wash.  81-Calhoun    v.    State,    143    Ala. 

933    55  pac    52  11,  39   So.   37S;   Whatley  v.   State. 

144  Ala.  68,  39  So.  1014;  People  v. 
77-State  v.  Brown,  188  Mo.  451,     Warner>  m  ^  546>  82  p&c   19g; 

87  S.  W.  519.  Johnson  v.  State,  71  S.  W.   25,  44 

7S— Atl.  &  D.  R.   Co.  v.  Reiger,     Tex.     Crim.     App.     332;     Ryan    v. 

95  Va.  418,  28  S.  E.  590.  State,  115  Wis.  488,  92  N.  W.  271. 


§  53.]  IMPANELING    THE    JURY.  37 

qualify  a  juror82  where  the  state  is  demanding  the  same, 
especially  upon  circumstantial  evidence,83  or,  in  fact,  upon  any 
evidence  whatsoever.  A  juror  who  states  that  he  would  he 
very  reluctant  to  agree  to  a  verdict  of  guilty  in  a  capital  case, 
hut  might  be  starved  to  render  it,  is  held  disqualified.84 

Where  a  juror  informs  the  court  that  he  has  conscientious 
scruples  against  capital  punishment,  the  state  may  be  allowed 
to  peremptorily  challenge  him,  even  after  he  has  been  accepted 
on  the  jury.S5  Conscientious  scruples  against  a  death  penalty 
have  been  held  to  disqualify  a  juror,  even  where  the  jury  may 
in  their  discretion  substitute  a  life  sentence.86 

It  is  the  duty  of  the  court  to  see  that  a  jury  is  organized 
which  will  be  willing  to  assess  the  penalty  that  the  law  al- 
lows.87 It  has  been  held,  however,  that  a  court  is  not  obliged 
of  its  own  motion  to  set  aside  a  juror  who  has  opinions  against 
capital  punishmentS8  although  it  may  do  so,  even  against  the 
defendant's  objection,89  and  the  fact  that  the  juror  was  not 
challenged  by  the  state  does  not  preclude  the  court  from  so 
excusing  him.90 

§  53.  Previous  Conversation  with  One  of  the  Parties.  Hav- 
ing had  conversation  with  one  of  the  parties  relative  to  the 
merits  of  the  case,  or  with  one  who  knows  or  professed  to 
know  the  facts,  may  be  a  sufficient  cause  for  challenge  on  the 
ground  of  bias. 

The  statement  of  a  juror  that  he  had  talked  with  one  who 
had  claimed  to  know  the  facts ;  that  he  had  formed  an  opinion 
from  this  conversation ;  that  this  would  influence  him  as  a  juror 
and  that  he  would  not  act  with  impartiality  shows  him  to  be 
disqualified.91  Mere  conversation  with  a  witness  and  belief  in 
"what  he  says  does  not  necessarily  disqualify,  where  no  opinion 
is  formed  relative  to  the  main  issue  or  to  the  guilt  or  innocence 
of  defendant.92 

82— Gates  v.  People,  14  111.  433.         88— Murphy    v.     State,    37    Ala. 
83— People   v.   Warner,   147    Cal.     142. 
546,  82  Pac.  196;   Gates  v.  People,         89— Waller  v.  State,  40  Ala.  325. 

14  IU-  433-  90— State  v.  Vick,  132  N.  C.  995, 

84 — Gates  v.  People,  supra.  .„ 


91— People    v.    Cebulla,    137   Cal. 
314,  70  Pac.  181. 


85— Brewer   v.    State,    7S    S.   W. 
773. 

86— Caldwell  v.  State,  41  Texas 
86.  92— Thompson  v.  People,  24  111. 

87— Gonzales  v.   State,  31  Texas     61. 
508,  21  S.  W.  253. 


38  INSTRUCTIONS    TO    JURIES.  [§54. 

§  54.  Having  Formed  or  Expressed  an  Opinion.  Having 
formed  or  expressed  a  fixed,  definite  and  unconditional  opinion 
as  to  the  guilt  or  innocence  of  the  defendant  in  a  criminal  case, 
or  as  to  the  merits  of  the  case  in  a  civil  action,  such  as  will 
take  evidence  to  remove,  will  disqualify  even  though  the  juror 
believes  that  he  could  disregard  this  opinion  and  try  the  case 
according  to  the  law  and  evidence.93  This  opinion  must,  how- 
ever, not  be  of  a  light  character,  but  one  of  a  more  or  less 
decided  nature,91  such  as  is  not  the  result  of  mere  rumor 
or  of  chance  report,  nor  of  a  hypothetical  nature,  conditioned 
on  the  truth  of  what  has  been  reported.  But  where  it  clearly 
appears  from  the  examination  that  the  juror  has  a  fixed  and 
positive  opinion  as  to  the  merits  of  the  case  he  is  called  to 
try,  from  whatever  source  derived,  or  however  arrived  at,  he 
is  to  be  regarded  as  incompetent.  It  will  make  no  difference* 
that  he  states  that  he  can  render  a  fair  and  impartial  verdict 
according  to  the  law  and  the  evidence ;  such  a  statement  can- 
not be  deemed  to  disprove  the  existence  of  a  fixed  opinion  al- 
ready admitted,  as  such  admission  is  not  to  be  overcome  by 
evidence.  And  this  with  greater  reason  where  his  examination 
exposes  a  positive  opinion,  not  only  as  to  the  main  question, 
but  as  to  most  of  the  facts  and  circumstances  relied  on  to  make 
out  a  case,  and  a  prejudice  against  not  only  the  immediate 
party  but  an  organization  of  which  he  is  a  member;  and  so 
also  where  his  statement  as  to  his  belief  in  his  competency 
is  apparently  the  result  of  an  argumentative  examination  on 
the  part  of  the  court,  pointing  out  the  duty  of  a  good  citizen.95 

Jurors  who  have  formed  opinions  from  statements  heard  are 
not  disqualified,  it  has  been  held,  where  they  did  not  know 
whether  the  persons  making  the  statements  knew  the  facts, 
and  where  they  state  that  they  were  able  to  try  the  case  on  the 
law  and  the  evidence.96 

"Where  the  examination  of  a  juror  shows  that  he  has  formed 
and  expressed  an  opinion  which  would  require  strong  evidence 
to  remove  and  that  his  mind  is  influenced  to  a  great  extent 
by  the  opinion  already  formed,  he  is  held  incompetent,  although 
he  says  that  he  could  go  into  the  jury  box  and  disregard  such 
opinion,  if  the  evidence  was  strong  enough.97    On  the  contrary 

93— State  v.  Riley,  78  Pac.  1001;  95— Goughlin  v.   People,  144   111. 

Turner  v.  State,  69  S.  W.  774.  140,  33  N.  E.  1,  19  L.  R.  A.  57. 

94— Gardner  v.   People,   3   Scam.  9G— Wilson  v.  State,  70  S.  W.  57. 

83;     Lycoming    Fire    Ins.    Co.    v.  97 — State  v.   McCoy,  33   So.  730, 

Ward,   90   111.   545.  109   La.    682. 


§  55.]  IMPANELING    THE    JURY.  39 

there  is  some  authority  that  seems  to  hold  that  an  opinion 
which  would  take  some  evidence  to  remove  does  not  render 
the  person  incompetent  where  he  will  be  governed  by  the 
evidence  and  can  give  the  party  a  fair,  impartial  trial,  accord- 
ing to  the  instructions  and  evidence.98 

§  55.  Opinions  Formed  from  Reading  Newspaper  Articles. 
To  have  read  accounts  in  the  newspapers,  upon  which  the 
juror  has  formed  an  opinion,  is  sufficient  to  disqualify  him, 
unless  he  shall  state  under  oath  that  he  can  fairly  and  im- 
partially render  a  verdict  in  accordance  with  the  law  and  the 
evidence  produced  on  the  trial,  and  the  court  shall  be  satisfied 
thereof.  The  test  is  whether  the  juror  will  base  his  verdict 
upon  the  account  which  may  be  given  by  the  witnesses  on  the 
trial  and  not  whether  the  opinion  which  he  has  formed  from 
the  newspapers  will  be  changed  by  the  evidence.  This  is  held 
not  to  violate  the  constitution  of  the  United  States,  Section  1, 
amendment  XIV,  guaranteeing  to  the  accused  "a  speedy  trial 
by  an  impartial  jury."99 

The  reading  of  an  account  of  the  case  does  not  disqualify 
where  the  reading  makes  no  impression  on  the  juror's  mind 
and  is  not  remembered.100  A  juror  who  has  read  newspaper 
accounts  and  talked  of  the  crime,  but  formed  only  a  slight 

98— Wilson  v.  People,  94  111.  299.  him  for  the  former  offense.  Rob- 
A  juror  who  has  heard  part  of  inson  v.  Commonwealth,  52  S.  E. 
the  testimony  on  a  former  trial  of  690,  104  Va.  888. 
the  case,  but  who  states  that  he  A  venireman  who  discloses  on 
can  lay  aside  the  opinion  formed  his  voir  dire  examination  that  he 
from  such  testimony  and  decide  has  formed  an  opinion  that  would 
solely  on  the  evidence  produced  take  considerable  evidence  to  re- 
on  the  second  trial,  without  ref-  move  is  disqualified  for  actual 
erence  to  what  he  has  heard  be-  bias,  whether  he  obtained  such 
fore,  is  not  disqualified  on  a  chal-  opinion  from  hearing  the  testi- 
lenge  for  cause.  State  v.  Prins,  mony  on  the  former  trial,  or  talk- 
117  Iowa  505,  91  N.  W.  758.  ing  with  the  jurors,  or  with  wit- 
One  of  the  grand  jurors,  on  a  nesses  who  testified  therein.  State 
former  indictment  against  the  de-  v.  Miller,  46  Oreg.  485,  81  P.  363. 
fendant,  has  been  held  not  to  be  99 — People  v.  Warner,  82  Pac. 
disqualified  on  a  subsequent  trial,  196,  147  Cal.  546;  Sec.  14,  ch.  78, 
when  he  swears  he  will  give  the  p.  2391,  Starr  &  Curtis  Ann.,  111. 
defendant  a  fair,  impartial  trial.  Stat;  Spies  v.  People,  122  111.  1. 
even  though  the  grand  juror  had  12  N.  E.  865,  17  N.  E.  898,  3  Am. 
made  a  statement  to  the  effect  St.  Rep.  320  n. 
that  he  would  convict  this  defend-  100 — Gradle  v.  Hoffman,  105  111. 
ant  if  he  sat  on  any  jury  trying  147. 


40  INSTRUCTIONS    TO    JURIES.  [§  55. 

opinion,  is  competent  although  he  states  that  evidence  is  re- 
quired to  change  it.1 

A  juror  who  has  read  newspaper  accounts,  but  who  has 
formed  no  opinion,  is  of  course  not  disqualified.2  An  opinion 
based  on  newspaper  reports  does  not  disqualify  where  a  juror 
states  on  oath  that  he  could  render  an  impartial  verdict  in 
accordance  with  the  law  and  the  evidence  ;3  but  where  the 
juror  omits  to  state  that  he  could  render  an  impartial  verdict 
notwithstanding  the  reading  of  the  newspaper  account,  he 
would  be  held  disqualified.4 

The  constitutional  guarantee  of  a  trial  by  an  impartial  jury 
is  not  violated  by  refusing  a  challenge  to  a  juror  who  has 
formed  an  opinion  from  reading  the  newspapers  if  the  juror 
swears  that  he  can  render  an  impartial  verdict.5  This,  however, 
does  not  make  the  oath  of  the  juror  that  he  is  impartial  con- 
clusive as  to  the  fact,  as  that  would  still  remain  a  matter  for 
the  judgment  and  discretion  of  the  court.0 

There  is  some  authority  to  the  point  that  opinions  and 
impressions  gained  from  the  reading  of  newspapers  that  can 
be  removed  by  evidence  do  not  disqualify  if  the  juror  is  able 
to  go  into  the  jury  box  with  his  mind  perfectly  free,  neither 
in  favor  of  one  side  nor  the  other.7  There  is  also  a  holding 
that  an  impression  that  can  be  removed  by  testimony  will  not 
be  sufficient  to  disqualify.8 

The  best  opinion,  however,  seems  to  be  that  a  juror  who 
states  that  he  has  an  opinion  which  would  require  strong  evi- 
dence to  remove  is  disqualified.9  Under  the  Code  of  Cr.  Proc. 
Sec.  376  of  N.  Y.  a  juror  is  prima  facie  disqualified  who  has 

1— Wilson  v.  People,  94  111.  299.  Gartrell,    71    S.   W.    1045,    171   Mo. 

2— McCue  v.  Com.,  49  S.  E.  623,  489;  Dimmick  v.  U.  S.,  121  F.  638, 

103   Va.   870;    State  v.   Lewis,   181  57  C.  C.  A.  664. 

Mo.    235,   79   S.  W.   671.  4— Fugitt   v.    State,    33    So.    942, 

3— McHughe    v.    State,    42    Ohio  g2   Miss.   189;    Eason   v.    State,   65 

St.  154;   Palmer  v.  State,  42  Ohio  Tenn.  466. 

St.  596;  People  v.  Thiede,  11  Utah  5_n<   g_'  y>   Schneiderj   21  D.  c. 

241,   39   Pac.   837;    State  v.   Sykes,  381 

191  Mo.  62,  89  S.  W.  851;   Strut  V.         _' 

c,  r,n  t   j    -i     o   •  -n       i„         6 — Fugate  v.   State,   supra. 

State,  90  Ind.   1;   Spies  v.  People,  °  y 

supra;    Lindsay   v.    State,    4    Ohio  7— State    v.    Croney,    31    Wash. 

C.  C.  409;    State  v.  Mott,  29  Mont.  122>  71  Pac-  783- 

292,  74  Pac.  728;    Barker  v.  State,  8 — Gammons   v.    State,    85   Miss. 

103  N.   W.    71    (Neb.);    Jahnke  v.  103,   37   So.   609. 

State,    94    N.    W.    158;     State    v.  9— Fugate  v.   State,   supra. 


§56.]  IMPANELING    THE    JURY.  41 

formed  an  opinion  from  reading  city  newspapers  which  it 
would  take  strong  evidence  to  remove  and  should  be  excluded 
unless  he  is  able  to  state  under  oath  that  such  opinion  would 
not  influence  his  verdict  and  the  court  is  satisfied  of  that  fact.10 
A  juror  who  states  that  the  fact  that  the  defendant  had  been 
held  to  answer  would  in  his  mind  raise  a  presumption  against 
him  is  not  disqualified  under  statutes  providing  in  substance 
that  an  opinion  founded  on  newspaper  reports  should  not  dis- 
qualify a  juror  who  can  act  fairly  on  the  merits  of  the  case 
and  give  the  defendant  the  benefit  of  a  reasonable  doubt.11 

§  56.  Opinions  Formed  From  Rumor  or  Hearsay.  Opinions 
which  are  formed  from  rumor  or  hearsay  disqualify  a  juror 
in  the  same  measure  as  those  gained  from  reading  newspaper 
reports,12  and  he  is  not  rendered  competent  merely  by  testify- 
ing that  he  would  render  an  impartial  verdict,  unless  it  affirma- 
tively appear  that  he  would  do  so.13  A  juror  who  has  formed 
an  opinion  from  rumor  and  expressed  it  is  not  disqualified, 
even  though  he  says  he  still  adheres  to  that  opinion  "if  the 
rumor  he  heard  was  true,"14  but  in  this  case  there  was  a  dis- 
senting opinion  which  held  that  a  disavowal  of  present  belief 
in  the  rumor  was  necessary. 

Where  a  juror  has  formed  and  expressed  an  opinion  upon 
rumor  or  hearsay,  but  this  opinion  is  conditioned  on  its  truth, 
and  he  has  no  more  reason  to  believe  these  reports  than  other 

10 — People   v.    Miller,    80    N.   Y.  ages    that   during   the   trial   state- 

S.  1070,  81  Ap.  Div.  255,  17  N.  Y.  niento     that     plaintiff     had     been 

Cr.  263.  awarded     damages     to     a     large 

11 — People   v.   Warner,    82    Pac.  amount    in    a    former    trial    were 

196,  147  Calif.  546.  published      in      the      newspapers, 

In     the     circuit     court     of    the  where  there  was  no  evidence  that 

United    States,    Meyer    v.    Cadwal-  they    had    reached   the   jury.      111. 

lader,  49  Fed.  32,  it  was  held  that  Cent.   R.    Co.   v.    Souders,    178   111. 

where     comments     in     the     daily  585,  53  N.  E.  408. 

papers   are   of   so   gross   a   nature  12 — Funderburk  v.  State  (Ala.), 

as  to  be  well  calculated  to  preju-  39   So.    672;    Reynolds  v.   State,   1 

dice   the   jury,   and   are   evidently  Ga.  222;   Evans  v.  State,  87  Miss, 

inspired  by  one  of  the  parties,  and  459,  40  So.  8;   State  v.  Lyhes,  191 

are  published  during  the  trial  and  Mo.    62,    89    S.    W.    851;    State   v. 

have  been  presumably  seen  by  the  Williams,  82  Pac.  353. 

jurors,  a  new  trial  will  be  granted.  13 — Lucas  v.  State   (Nebr.),  105 

It  is  no  ground  for  a  new  trial  N.  W.  976. 

of    an    action    for    personal    dam-  14 — Smith  v.  Evans,  3  Scam.  76. 


42  INSTRUCTIONS    TO    JURIES.  [§56. 

gossip  in  the  neighborhood,  he  would  not  be  disqualified  as  a 
juror;15  but  decided  opinions  which  cannot  be  laid  aside  con- 
cerning the  merits  of  the  case,  gained  from  personal  knowledge, 
statements  of  the  witnesses,  relations  of  the  parties,  newspaper 
reports  or  rumor,  disqualify  a  juror  when  challenged  for 
cause.16 

15— Gardner  v.  People,  3   Scam.        16— Neely  v.  People,  13   111.  686. 
83. 


CHAPTER  IV. 
IMPANELING  THE  JURY— Continued. 


§  57.  Peremptory  challenges.  Gen- 
eral  observations. 

§  58.  When  the  right  of  per- 
emptory challenge  must 
be  exercised. 


§  59.  Number  of  peremptory  chal- 
lenges allowed. 

§  60.  Struck    juries. 

§  Gl.  Method  of  standing  objec- 
tionable jurors   aside. 

§  62.  Swearing  in  the  jury. 


§  57.  Peremptory  Challenges.  General  Observations.  When 
efforts  at  removing  a  juror  by  a  challenge  for  cause  has 
failed,  resort  may  then  be  had  to  peremptory  challenges  and 
this  subject  will  now  engage  our  attention.  These  may  or  not 
be  made  as  the  caprice  or  judgment  of  the  parties  shall  dic- 
tate without  giving  or  assigning  any  reason  therefor,  and  with- 
out being  required  to  do  so. 

The  right  of  peremptory  challenge  was  an  ancient  common 
law  right,  extended  somewhat  by  modern  statutes,  so  that  it 
now  embraces  cases  to  which  it  did  not  originally  apply  at 
common  law. 

This  right  of  peremptory  challenge  existed  and  was  allowed 
at  common  law  in  the  first  instance,  only  upon  the  trial  of 
felony  cases  punishable  with  death1,  in  which  case  thirty-five 
challenges  were  allowed.  It  was  finally  settled  by  the  House 
of  Lords  in  1843  that  it  was  allowable  in  all  felonies,  whether 
capital  or  not.2  Otherwise  this  right  did  not  and  does  not  now 
exist,  except  as  it  may  be  especially  given  under  statutes. 

The  right  of  peremptory  challenge  is  given  to  insure  a  person 
a  fair  trial  and  to  permit  the  rejection  by  him  of  undesirable 
jurors.  It  is  a  rule  of  exclusion  alone,  and  not  made  for  the 
purpose  of  selecting  a  jury.  It  is  made  to  protect  from  preju- 
dice and  the  bias  of  any  juror,  fancied  or  real,  that  cannot  be 
taken  advantage  of  otherwise. 

Although  there  is  some  contrary  opinion,  it  seems  that  in- 

1— Coke's  Littleton,  156;  Black-  2— Gray  v.  Reg.,  11  G.  I.  Fin. 
stone  Com.,  Book  4,  page  353.  427. 

43 


44 


INSTRUCTIONS    TO    JURIES. 


[§58. 


formation  may  be  elicited  from  a  juror  on  his  voir  dire,  which, 
although  immaterial  as  a  ground  for  a  challenge  for  cause,  yet 
might  be  of  the  utmost  importance  in  determining  on  the  use 
of  his  peremptory  challenges.3 

§58.  When  the  Right  of  Peremptory  Challenge  Must  Be 
Exercised.  A  party  to  an  action  has  a  right  to  reserve  his 
peremptory  challenges  until  a  full  panel  is  secured,  free  from 
challenges  for  cause,  and  judged  to  be  competent  by  the  court, 
for  the  reason  that  he  may  lose  the  value  of  this  privilege 
unless  he  first  ascertains  who  can  be  excluded  for  cause.4 

It  is  provided  in  the  statutes  of  Illinois  that  upon  the  im- 
paneling of  the  jury  in  any  civil  cause  now  pending,  it  shall 
be  the  duty  of  the  court,  upon  the  request  of  either  party  or 
upon  its  own  motion,  to  order  the  full  number  of  twelve  jurors 
into  the  jury  box,  before  either  party  shall  be  required  to  ex- 
amine any  of  said  jurors  touching  their  qualifications.  It  also 
provides  that  the  jury  shall  be  passed  upon  and  accepted  in 
panels  of  four  by  the  parties  commencing  with  the  plaintiff 
before  calling  up  another.5 


3 — Foley  v.  Cudahy  Packing 
Co.,   119   la.   246,   93  N.  W.   284. 

"It  is  complained  that  the  court 
erred  in  permitting  counsel  for 
appellee  to  question  certain  jurors 
upon  their  voir  dire  as  to  their 
interest  in  the  Union  Casualty 
Co.  It  appears  that  an  attorney 
representing  that  company  was 
present  with  the  attorneys  for 
appellant  at  the  trial.  The  ques- 
tion was  proper  at  least  for  the 
purpose  of  enabling  counsel  to  ex- 
ercise their  right  of  peremptory 
challenge,  if  for  no  other  purpose. 
O'Hare  v.  C.  M.  &  N.  R.  R.  Co.,  139 
111.  151,  28  N.  E.  923;  Am.  B.  W. 
v.  Pereira,  79  111.  App.  90,  and 
cases   therein   cited." 

Iroquois  Furniture  Co.  v.  Mc- 
Rae,  91  111.  App.  327  (343). 

4 — Strehman  v.  City  of  Chicago, 
93  111.  App.  206;  Taylor  v.  West- 
ern P.  Ry.  Co.,  45  Cal.  322;  Ster- 
ling  Bridge   Co.    v.    Pearl,   80    111. 


251;  Chicago  City  R.  Co.  v.  Fetzer, 
113   111.   App.   280. 

5— Sterling  P.  R.  Co.  v.  Pearl, 
80  111.  251,  Sec.  21,  p.  2397,  Vol.  2, 
Starr  &  Curtis'  Ann.  Stat,  of  111. 
In  Strehmann  v.  City  of  Chicago, 
supra,  the  ruling  of  the  court 
compelling  the  plaintiff's  attorney 
to  exercise  the  right  of  challenge 
when  only  eleven  jurors  were  in 
the  box  and  to  pass  conclusively 
on  ten  jurors  when  only  the  ten 
were  in  the  box  was  an  erroneous 
denial  of  the  plaintiff's  right. 

In  Sterling  Bridge  Co.  v.  Pearl, 
80  111.  251,  the  court  commented 
on  and  interpreted  section  21  of 
the  statute  in  regard  to  jurors, 
and  said:  "Neither  party  shall 
be  required  to  examine  them 
touching  their  qualifications  un- 
less there  are  twelve  jurors  in  the 
box."  And  further  said:  "There 
must,  when  either  party  requirer 
it,  during  all  the  time  the  jury  is 


§  59.]  IMPANELING    THE    JURY.  45 

When  there  are  twelve  men  in  the  box,  against  none  of  whom 
a  challenge  for  cause  can  be  successfully  proposed,  the  jury  is 
completed,  and  must  ordinarily  be  then  accepted  unless  a  juror 
is  removed  by  peremptory  challenge  of  either  party.  The  chal- 
lenged juror  being  thus  removed,  another  is  called  in  the  usual 
way  to  fill  the  vacancy,  he  being  subject,  also,  to  a  challenge 
for  cause  or  to  a  peremptory  challenge  by  either  party  as  the 
case  may  be. 

In  the  selection  of  a  jury,  it  is  the  better  practice  to  require 
the  exercise  of  the  peremptory  challenges  to  be  made  alter- 
nately, commencing  with  the  plaintiff  and  to  refill  the  panel 
after  each  challenge.6  A  peremptory  challenge  may  be  inter- 
posed at  any  time  before  the  jury  is  formed  and  the  evidence 
introduced,  if  made  in  good  faith;7  but  where  a  jury  has  been 
accepted,  it  is  error  to  permit  the  plaintiff  to  peremptorily 
challenge  a  juror,8  especially  where  the  other  party  has  pre- 
viously exhausted  his  own  peremptory  challenges  and  can  no 
longer  challenge  the  substituted  juror.9 

A  peremptory  challenge  may  be  allowed  in  Illinois,  even 
after  a  jury  has  been  accepted  and  sworn  upon  good  and 
sufficient  grounds,  under  the  discretion  of  the  court.10 

§  59.  Number  of  Peremptory  Challenges  Allowed.  The 
number  of  peremptory  challenges  which  may  be  allowed  is 
usually  fixed  by  statutory  provisions  to  suit  the  various  cases 
to  which  they  are  made  applicable.  The  number  of  peremptory 
challenges  as  first  allowed  at  common  law  in  capital  cases 
was  one  short  of  three  complete  juries  or  thirty-five.11 

At  the  common  law  if  a  challenge  was  made  in  excess  of 
the  thirty-five  it  was  considered  of  so  much  importance  fiat 
the  punishment  that  might  be  meted  out  in  case  the  verdict 
was  guilty,  was  made  excessive  to  the  extreme.12 

The  number  of  peremptory  challenges  allowed  to  a  single 

being  empaneled,   be  twelve   jury-  551;    U.    S.    v.    Daubner,    17    Fed. 

men   in   the   box.     So    it  is  when  793. 

one  is  challenged,  even  for  cause'        8 — Dunn   v.    Wilmington   W.    R. 

or    peremptorily,    before    proceed-  Co.,  131  N.  C.  446,  42  S.  E.  862. 
ing  further  another  must  be  called         9 — Dunn  v.  Wilmington  &  W.  R. 

into    the    box."  Co.,    supra:    Glenn    v.     State,    71 

6— Nicholson  v.   People,   71  Pac.  Ark.  86,   71   S.  W.  254. 
377.     Iowa    Code.  10— P.  D.  &  E.  R.  Co.  v.  Puckett, 

7— Silcox   v.   Lang,    78    Cal.   118,  52  111.  App.  222. 
20  Pac.  297;  Hunter  v.  Parsons,  22        11 — Coke  on  Littleton,  p.   156. 
Mich.  96;   Adam  v.  Olive,  48  Ala.        12— Funk  v.  Ely,  45  Pa.  St.  444. 


46  INSTRUCTIONS    TO    JURIES.  [§60. 

person  who  is  a  party  to  an  action  is  construed  as  being  al- 
lowed to  one  side,  either  plaintiff  or  defendant,  as  the  case 
may  be,  regardless  of  how  many  persons  may  be  joined  on  the 
side.13  This  is  true  in  all  cases,14  but  especially  so  in  actions 
of  a  civil  nature. 

In  the  state  of  Texas,  persons  jointly  indicted  may  challenge 
separately,  but  not  to  the  same  number  as  allowed  to  a  single 
defendant.15  It  is  the  usual  rule  that  where  evidence  in  a 
case  is  of  such  a  nature  that  the  acquittal  of  one  would  result 
in  the  acquittal  of  all,  they  should  be  required  to  join  in  their 
challenges.16 

It  seems  that  in  the  exercise  of  sound  judgment  and  discre- 
tion a  court  may  allow  the  parties  additional  challenges  on  the 
ground  of  a  possible  impairment  of  the  right  to  challenge  hav- 
ing been  made  by  some  action  or  erroneous  ruling  of  the  court. 

In  a  case  where  the  challenges  are  unequal  on  either  side 
the  one  holding  the  greater  number  of  peremptory  challenges 
should  challenge  proportionately,  so  that  both  sides  Shall  have 
used  all  their  challenges  at  the  same  time. 

A  peremptory  challenge  must  always  be  interposed  in  order 
and  turn,  or  presumed  to  have  been  waived.17  By  waiving 
peremptory  challenges  and  accepting  the  jury  the  party  there- 
by waives  any  error  of  the  court  in  overruling  his  previous 
challenges  for  cause.18 

§  60.  Struck  Juries.  There  is  a  form  of  jury  known  as  the 
struck  jury  which  may  be  briefly  considered.  It  is  so  called 
from  the  manner  in  which  it  is  derived,  or  rather  the  way  the 
jurors  are  selected.  This  form  of  jury  was  well  known,  even 
in  the  earliest  period  of  the  common  law,  and  was  usually  or- 
dered for  the  trial  of  cases  of  great  consequence  or  importance, 
or  on  account  of  the  intricacy  of  the  matters  in  issue.  Its  main 
purpose  seems  to  have  been  the  avoidance  of  incompetent 
jurors,  or  of  a  packed  jury. 

This  form  of  jury  was  at  first  allowed  only  in  the  trial  of 

13 — San  Luis  Obispo  County  v»  17 — Com.  v.  Evans,  212  Pa.  369, 

Simas,    Cal.    App.,    81    Pac.    972;  61    Atl.    989. 

Booth  v.  Territory    Ariz.,  80    Pac.  18 — State    v.    Winter,    72    Iowa 

354.  627,  34  N.  W.  475;  State  v.  Brown- 

14— Lorenz  v.  U.  S.,  24  App.  D.  lee,   84    Iowa  473,    51   N.  W.   25. 

C.  337.  In  Illinois  it  has  been  held  that 

15 — R.  S.  Texas,  1879,  Art.  635,  only  three   peremptory   challenges 

652.  can  be  allowed  in  civil  cases,  no 

16 — Hawkins    v.    State,    13    Ga.  matter  how  many  parties  plaintiff 

322.  or  defendant.     Gordon  v.   City  of 


§  60.]  TMPANELING    THE    JURY.  47 

civil  cases ;  later  o*»,  however,  it  could  be  had  on  the  trial  of 
criminal  eases  less  than  a  felony,  upon  a  demand  being  made 
by  either  party  in  sufficient  time  before  trial  to  obtain  this  jury. 

To  secure  a  struck  jury,  an  application  supported  by  an 
affidavit,  must  be  made,  setting  forth  such  facts  as  will  require 
rhe  calling  of  such  a  jury. 

Struck  juries  violate  no  constitutional  right,19  and  do  not 
contravene  the  constitutional  requirement  that  the  right  of 
trial  by  jury  shall  remain  inviolate.20 

The  manner  of  procedure  consists,  generally,  in  the  selection 
by  some  competent  impartial  officer,  of  forty-eight  names  of 
the  principal  freeholders  or  electors  from  the  list  of  such 
persons  as  are  qualified  for  jury  service,  as  returned  to  the 
clerk  of  court  or  jury  commissioners,  due  notice  being  given 
so  that  the  respective  parties  may  be  present  at  that  time  if 
they  should  so  desire. 

The  number  to  be  selected  or  struck,  is  of  course,  regulated 
by  the  various  statutes  of  the  states;  however,  it  is  generally 
held  that  a  full  panel  of  competent  men  must  be  had  before 
proceeding  to  strike.  In  the  absence  of  a  party,  the  officers 
designated  by  statute  or  some  other  disinterested  person  may 
do  the  striking,  and  where  there  are  several  co-defendants  or 
plaintiffs,  they  must  join  in  the  striking,  being  regarded  as 
one  party. 

Manner  of  Striking.  The  usual  manner  for  striking  is  for 
the  parties  alternately  to  strike  a  name  from  the  list,  until 
the  prescribed  number  are  stricken  out,  when  the  remainder  is 
then  made  out,  and  certified  to  be  the  correct  list  of  persons 
to  be  drawn  as  jurors  by  the  order  of  court  and  duly  delivered 
to  the  sheriff  to  be  summoned. 

The  trial  jury  is  formed  or  impaneled  from  the  number  thus 
summoned  in  the  same  manner  as  in  the  ordinary  jury  trial 
and  subject  to  the  same  rights  of  challenge  for  cause. 

Chicago,  201  111.  623,  66  N.  E.  823;  ant  or  group  of  defendants  to  be 

citing  Schmidt  v.  Chicago  &  North-  entitled  to  be  a  party  entitled  to 

Western  Ry.  Co.,  83  111.  405;  Cad-  the    statutory    number     of     chal- 

wallader  v.  Harris,  76  111.  370;  Fa-  lenges.     Hundhausen  v.  Atkins,  36 

g^n  v.  City  of  Chicago,  84  111.  227.  Wis.  518. 

By  recent  amendment  five  chal-  19 — Lommen  v.  Minn.  Gas  Light 

lenges  allowed  in  Civil  cases  in  II-  Co.,    65   Minn.   196,    68   N.   W.   53, 

linois:     Laws  of  Illinois  1907.  33  L.  R.  A.  437. 

in     Michigan,     Wisconsin     and  20 — Fowler    v.    State,    58    N.    J. 

Texas    statutes    have    been    inter-  Law  423,  34  Atl.  682. 
preted  as  to  consider  each  defend- 


48  INSTRUCTIONS    TO    JURIES.  [§62. 

Fraud  or  the  deviation  from  the  strict  statutory  method  re- 
quired to  be  pursued  in  the  preparation  of  a  list  from  which 
a  struck  jury  obtained  is  considered  a  good  ground  for  chal- 
lenge to  the  array.21 

To  test  their  competency  jurors  may  be  examined  on  their 
voir  dire,  before  striking  again  ;22  and  as  challenges  for  cause 
are  thus  allowed  in  the  impanelment  of  a  struck  jury,  it  must 
necessarily  follow,  that  talesmen  may  be  summoned  if  required. 

Under  no  condition,  however,  is  a  peremptory  challenge  al- 
lowed,23 the  reason  being,  that  the  right  to  strike,  was  in  itself 
an  equivalent  thereto. 

In  the  state  of  Iowa,  in  any  civil  action  triable  by  jury, 
whenever  both  parties  require  it,  a  struck  jury  may  be  ordered, 
in  which  case  eighteen  jurors  must  be  called  into  the  box,  and 
the  parties  commencing  with  the  plaintiff  must  strike  out  one 
juror  in  turn  until  each  has  struck  six,  and  the  remaining  six 
must  try  the  case.24 

§  61.  Method  of  Standing  Objectionable  Jurors  Aside.  The 
right  of  peremptory  challenge  under  the  common  law  was  at 
one  time  taken  away  and  a  method  of  standing  objectionable 
jurors  aside  to  the  end  of  the  panel  was  devised  in  its  place. 
This  method  seems  to  have  been  made  use  of  by  and  for  the 
benefit  of  the  state  alone,  its  purpose  being  to  see  if  a  choice 
could  not  be  had  out  of  the  unobjectionable  jurors. 

This  right  of  standing  jurors  aside  still  exists  in  some  states 
and  is  not  affected  by  an  allowance  of  peremptory  challenges. 
The  state  alone  being  allowed  this  right,  as  at  common  law, 
goes  through  the  panel  under  this  method  and  tenders  the 
jurors  who  are  not  thus  set  aside,  to  the  opposing  party  for 
challenge  for  cause. 

"We  will  not  consider  in  this  article  any  of  the  peculiar  forms 
of  juries  that  may  have  been  in  vogue  at  one  time  or  another, 
such  as,  for  instance,  a  jury  called  "De  mediatate  linguae" 
which  was  a  jury  allowed  to  aliens  and  composed  half  of  citi- 
zens and  half  of  foreigners.  In  one  state  of  the  union,  this 
form  of  jury  may  still  be  allowed  by  the  court.25 

21— People   v.   Tweed,    50    How.  R.  Co.,  42  Minn  46,  43  N.  W.  904; 

Pr.  N.  Y.  262;   Webb  v.  State,  29  Branch  v.  Dawson,  36  Minn.  193, 

O.  State  351.  30  N.  W.  545. 

22— Howell    v.    Howell,    59    Ga.  24— Code  Iowa. 

145.  25— Gen.  State  Ky.,  571,  Sec.  6, 

23— Eldredge  v.   Hubbell,   77   N.  1879. 
W.  631;   Watson  v.  F.  P.  City  R. 


§62.]  IMPANELING     THE    JURY.  49 

§62.  Swearing  in  the  Jury.  A  juror's  oath  completes  the 
final  act  in  the  impaneling  of  the  jury,  "to  well  and  truly 
try  the  issues  joined  and  a  true  verdict  render  according  to 
the  law  and  the  evidence"  is  the  measure  of  his  duty.  The 
jury  impaneled  in  each  case  must  of  course  be  sworn  in  that 
case  to  try  that  particular  case,  and  not  to  try  all  cases  that 
may  be  submitted  to  them.26 

The  better  practice  is  to  postpone  the  sAvearing  in  chief  of 
the  jurors  until  the  full  panel  is  obtained,  so  as  to  allow  the 
longest  possible  time  for  peremptory  challenges.  The  sound 
discretion  of  the  court  will  govern  as  to  the  time  and  manner 
of  so  swearing  them.27 

The  oath  of  a  juror  is  of  the  utmost  importance  in  a  criminal 
case,  and  its  omission  would  be  sufficient  to  render  the  trial 
a  nullity.  An  omission  to  swear  the  jury  is  held  not  to  be 
necessarily  fatal  in  a  civil  case,  especially  if  not  objected  to. 

We  trust  that  these  foregoing  remarks  based  upon  the  best 
authority  obtainable  and  covering  a  variety  of  points  may  be 
of  some  value  to  the  busy  practitioner  in  the  important  work 
of  impaneling  a  trial  jury. 

26— Barney  v.  People,  22  111.  27— Mathis  v.  State,  34  So.  287. 
160. 


CHAPTER  V. 


PUBLICITY  OF  TRIAL  AND  PROCEEDINGS. 


§63.  Adrrission   of  spectators. 

§  64.  Exclusion  of  witnesses;  gen- 
eral observations. 

§  65.  Exclusion  prevents  combina- 
tions among  witnesses  and 
alteration  of  testimony. 

§  66.  Exclusion  not  granted  as  a 
matter  of  right. 


§  67.  Persons  exempted  from  the 
order    of   exclusion. 

§  68.  Punishment  for  the  violation 
of  rule  by  witnesses.  Con- 
nivance. 

§  69.  Limitation  of  number  of  wit- 
nesses. 


§  63.  Admission  of  Spectators.  A  trial  should  always  be 
public  in  its  nature,  it  is  important  in  its  effect  upon  the 
quality  of  evidence.  On  account  of  public  scorn  or  the  pos- 
sibility of  detection,  witnesses  are  not  so  liable  to  falsify  when 
their  testimony  is  heard  in  open  court  by  those  who  may  be 
better  informed  or  who  upon  the  hearing  thereof  might  pro- 
ceed to  inform  themselves  and  in  turn  state  their  information 
to  the  parties  so  that  the  truth  may  be  discovered.  The  very 
officers  of  court,  the  judges  and  counsel  are  directly  influ- 
enced in  their  conduct  by  a  public  trial.  They  are  more 
careful  and  considerate  in  their  treatment  of  parties,  more 
conscientious  in  the  performance  of  their  duty  and  aside  from 
all  of  this  a  public  trial  is  an  educational  factor  in  itself. 

Sir  William  Blackstone  says  :— 

"This  open  examination  of  the  witness,  viva  voce,  in  the 
presence  of  all  mankind,  is  much  more  conducive  to  the  clear- 
ing up  of  truth  than  the  private  and  secret  examination  taken 
down  before  an  officer  or  his  clerk,  as  in  the  ecclesiastical 
courts  and  in  all  others  that  have  borrowed  their  practice 
from  the  civil  law ;  where  a  witness  may  frequently  depose 
that  in  private  which  he  will  be  ashamed  to  testify  in  a  public 
and  solemn  tribunal."1 

The  publicity  of  examination  serves  the  useful  purpose  of 
keeping  a  witness  keyed  up  to  a  sense  of  his  duty  and  causes 
his  testimony  to  be  more  correct  than  it  might  otherwise  be 

1— Blackstone   Com.,    Book   3,    p.     373. 

50 


§64.]  PUBLICITY  OF  TRIAL.  51 

and  as  Mr.  Jeremy  Bentham  says  in  his  book  entitled  Rationale 
of  Judicial  Evidence:  "Environed  as  he  sees  himself  by  a 
thousand  eyes,  contradiction,  should  he  hazard  a  false  tale, 
will  seem  ready  to  rise  up  in  opposition  to  it  from  a  thousand 
mouths.  Many  a  known  face,  and  every  unknown  countenance, 
presents  to  him  a  possible  source  of  detection,  and  from  whence 
the  truth  he  is  struggling  to  suppress  may  through  some  un- 
expected channel  burst  forth  to  his  confusion."2 

A  right  of  public  trial  in  a  criminal  case  is  absolute,  but 
the  judge  has  a  discretion  in  regulating  this,  and  may  exclude 
spectators  that  abuse  their  privilege  or  hinder  the  trial  by 
their  conduct.  There  are  other  reasons  for  exclusion  of  equal 
value,  such  as  matters  of  public  policy,  lack  of  room,  the 
taking  of  testimony  of  an  indecent  nature  and  injurious  to 
public  morals.3 

The  court  may  even  prevent  the  publication  of  its  pro- 
ceedings by  contempt,  in  proper  instances  as  when  these  pro- 
ceedings are  ex  parte  or  when  their  publication  might  preju- 
dicially excite  public  sentiment. 

§  64.  Exclusion  of  Witnesses.  General  Observations.  It  is 
often  desirable  and  proper  that  witnesses  should  be  exam- 
ined out  of  the  hearing  of  each  other  as  it  tends  to  prevent 
an  agreement  or  combination  among  the  witnesses  to  tell  the 
same  story.4 

"Whenever  it  is  desired  by  either  party  that  the  witnesses 
be  examined  out  of  the  hearing  of  each  other,  the  court  has 
the  power  to  enter  an  order  excluding  them  from  the  court 
room  during  the  trial.  This  cannot  perhaps  be  demanded  by 
the  parties  as  a  matter  of  right  but  it  is  seldom  refused  by 
the  court  when  requested.5  The  court  has  power  to  exclude 
witnesses  from  the  court  room  on  its  own  motion  whenever 
deemed  essential  to  the  discovery  of  truth.6  It  has  been  held 
that  it  might  be  granted  even  at  the  request  of  the  jury.7 

This  practice  was  in  great  vogue  among  the  English  courts, 
especially  as  it  was  claimed  to  have  its  sanction  from  the  Bible 
itself.  Daniel  is  said  to  have  used  this  method  in  the  dis- 
covery of  truth. 

2 — Bentham,   Rationale   of   Judi-  5 — Supra. 

cial   Evidence,   Vol.    II,    C.   X,   No.  6— King    v.    Hanson,    99    N.    W. 

2.  1091. 

3— Dunham  v.  State,  6  la.  245.  7— Wilson  v.  State,  52  Ala.  299; 

4— Hubbel  v.  Ream,  31  la.  289.  Ryan   v.   Couch,   66   Ala.   244.' 


52  INSTRUCTIONS    TO    JURIES.  [§  65. 

§65.  Exclusion  Prevents  Combinations  Among  Witnesses 
and  Alteration  of  Testimony.  It  tends  to  prevent  an  agree- 
ment or  combination  among  witnesses  to  tell  the  same  story, 
and  to  prevent  witnesses  who  are  interested  and  biased  from 
preparing  themselves  to  meet  statements  made  upon  the  stand 
by  other  witnesses.  It  compells  the  witnesses  to  rely  upon 
their  own  memory,  and  where  they  hear  no  testimony  on  the 
case  their  own  testimony  is  neither  warped  nor  influenced 
thereby.711 

Witnesses  when  put  under  this  rule  are  prevented  from  either 
strengthening  or  altering  their  testimony  according  to  their 
bias,  and  the  courts  have  held  that  it  is  proper  and  legitimate 
in  argument  to  comment  upon  the  fairness  or  truthfulness 
of  the  witness  by  calling  the  attention  of  the  jury  to  the  fact 
that  the  witness  has  had  opportunity,  from  remaining  in  the 
court  room  and  hearing  the  testimony  of  other  witnesses,  to 
modify  his  own  testimony  or  to  change  or  strengthen  it  as 
he  may  be  inclined  to  do.8 

Not  only  a  biased  witness,  but  the  most  fair  and  honest 
witness  may  be  influenced  by  hearing  the  testimony  given  by 
others  on  the  trial.  He  comes  to  believe  that  his  own  memory 
was  possibly  at  fault  and  that  the  statements  made  by  others 
may  be  more  nearly  the  truth  and  thereby  is  influenced  to 
state  what  he  might  not  otherwise.9  The  less  a  witness  hears 
of  the  testimony  of  another  the  more  likely  he  is  to  testify 
fairly  and  unbiased.10 

§  66.  Exclusion  Not  Granted  as  a  Matter  of  Right.  As 
already  stated  the  exclusion  of  witnesses  cannot  be  demanded 
as  a  matter  of  right.11  It  is  granted  only  as  a  matter  of  favor 
by  the  court.  In  Tennessee  it  is  given  as  a  matter  of  right 
in  all  cases  when  an  affidavit  is  made  showing  a  necessity  for 
it.  There  must  be  an  affidavit  presented  in  all  cases  alleging 
facts  which  show  the  necessity  for  it,  but  it  is  usually  held 
to  be  a  matter  of  sound  judicial  discretion  whether  or  not  the 
court  will  grant  the  order.12     "If  it  is  deemed  necessary  in 

7a — Wisener  v.  Maupin,  2  Baxt.  10 — State  v.  Zellers,  7  N.  J.  L. 

343.  226. 

8— Louisville  R.  Co.  v.  York,  128  11— Hubbel  v.  Ream,  31  la.  289; 

Ala.  305;   30  So.  676.  King  v.  Hanson,  99  N.  W.  1091. 

9— Meeks  v.   State,   51  Ga.   429;  12— McLean    v.    State,    16    Ala. 

Shaw    v.    State,    102    Ga.    660,    29  672;    McClellan  v.   State,  117  Ala. 

S.   E.   477;    Salisbury  v.   Com.,   79  140,  23  So.  653;  People  v.  McCarty, 

Ky.  425.  117    Cal.   65,    48    Pac.   984;    Eriss- 


§  67.]  PUBLICITY  OF  TRIAL.  53 

order  to  elicit  truth  and  prompt  justice,  all  witnesses  but  the 
one  under  examination  may  be  ordered  to  leave  the  room,  and 
when  requested  by  either  paiiy  it  is  rarely  withheld."13 

In  the  state  of  Texas  the  court  held  it  to  be  a  good  ground 
for  reversal  to  refuse  the  application  of  either  party  to  exclude 
the  witnesses  when  requested.14 

§  67.  Persons  Exempted  from  the  Order  of  Exclusion.  From 
the  rule  excluding  witnesses  the  following  persons  are  usually 
exempt :  the  parties  to  the  case  and  their  attorneys,  expert 
witnesses,  medical  witnesses  and  witnesses  to  character.  As 
to  whether  medical  experts  should  be  exempted  from  the  op- 
eration of  this  rule  is  questionable,  as  such  witnesses  are  sup- 
posed to  testify  from  hypothetical  questions  without  consider- 
ing their  own  personal  knowledge  or  conclusions  based  on  the 
evidence  which  they  may  hear.15  The  agents  of  a  party  who 
have  such  a  grasp  of  the  facts  that  he  is  of  considerable  as- 
sistance to  the  party  who  is  his  principal  should  not  be  ex- 
cluded, although  he  is  a  witness  in  the  case.  Court  officers 
are  of  course  exempt  from  the  rule  whether  witnesses  or  not. 
In  some  jurisdictions  a  party  is  not  exempted  from  the  opera- 
tion of  the  rule  unless  he  first  testified  in  the  case.15a 

It  is  held  as  a  strict  rule  of  practice  in  the  state  of  New 
Jersey  that  a  prisoner's  witnesses  should  not  be  in  the  court 
room  while  the  state's  witnesses  are  being  examined.10 

§  68.  Punishment  for  the  Violation  of  Rule  by  Witnesses. 
Connivance.  When  the  names  of  witnesses  are  given  to  the 
sheriff  to  be  excluded,  they  are  read  in  court  by  the  clerk, 
or  the  witnesses  may  be  simply  directed  by  the  court  in  gen- 
eral to  withdraw  without  reading  the  names.  It  may  be 
noticed  that  the  exclusion  is  only  in  force  during  the  taking 
of  testimony.  If  a  witness  remains  in  violation  of  this  order 
it  is  not  proper  to  deprive  a  party  of  his  testimony  by  exclud- 
ing him  altogether.  To  do  this  might  be  to  deny  a  party  of 
the  only  person  in  the  world  by  whom  the  defendant  could 

man  v.  Erissman,  25  111.  119;  Por-  14— Watts   v.    Holland,    56    Tex. 

ter  v.   State,   2   Ind.   435;    Hubbel  54. 

v.    Ream,    31    la.    239;     State    v.  15— Johnson    v.    State,    10    Tex. 

Davis,  110  la.  746,  82  N.  W.  328;  571,    60   Am.    Dec.    223.      (Medical 

Commonwealth   v.   Follansbee,   155  experts  were  excluded.) 

Mass.  274,  29  N.  E.  471;  Johnston  15a-Frerjch  v.  Sale,  63  Miss.  386, 

v.  Ins.  Co.,  106  Mich.  96,  64  N.  W.  391. 

5.  29  L.  R.   A.   63.  16— State  v.   Zellers,  7  N.  J.   L 

13—1  Gr.  Evidence,  432.  220. 


54  INSTRUCTIONS    TO    JURIES.  [§  69. 

prove  his  innocence.17  Such  a  witness  remaining  in  violation 
of  the  order  of  exclusion  may  be  punished  for  contempt  and  a 
comment  may  be  made  on  his  evidence  on  account  of  his 
remaining  in  violation  of  the  rule.18 

It  is  held  to  be  no  valid  objection  to  a  witness  called  by 
the  state,  when  he  was  in  the  court  room  and  heard  the  testi- 
mony of  other  witnesses  when  his  presence  was  not  contrary 
to  any  order  of  court,  and  even  if  he  remained  in  court  con- 
trary to  such  an  order  hat  would  not  disqualify  him  as  a 
witness  on  the  case,19  however,  if  a  witness  should  remain 
contrary  to  the  rule  of  court  excluding  all  witnesses  through 
the  connivance  or  fault  of  the  party  to  the  suit  the  witness 
may  be  kept  from  testifying  in  the  case  at  all.20 

But,  in  the  absence  of  any  collusion,  connivance  or  fraud, 
a  party  should  not  be  held  accountable  for  the  conduct  of  his 
witnesses  in  obeying  this  rule.  A  fine  of  a  party  who  is  guilty 
in  aiding  witnesses  to  violate  the  rule  would  not  be  adequate 
punishment.  The  fine  of  the  witness  himself  would  not  cure 
it,  but  the  loss  of  testimony  of  the  witness  is  not  too  severe 
and  even  in  that  case  the  party  loses  only  a  witness  that 
would  testify  falsely  even  as  he  falsely  disobeyed  the  order 
of  the  court. 

It  would  seem  to  be  difficult,  if  not  impossible,  to  establish 
any  general  rule  regarding  the  exclusion  of  witnesses  that 
would  be  fair  in  every  instance  to  the  parties  concerned.  A 
party  cannot  be  held  to  account  for  every  movement  of  his 
witness  during  the  confusion  of  the  trial  and  especially  so  as 
a  party  has  in  reality  very  little,  if  any,  control  over  his 
witnesses  at  all.21 

§  69.  Limitation  of  Number  of  Witnesses.  Witnesses  that 
testify  only  to  a  certain  identical  point  in  the  evidence  may 
be  limited  by  the  court  in  its  discretion.  If  this  were  not  so 
a  party  could  pass  the  census  return  over  to  the  summoning 
officer  and  have  the  whole  population  produced  in  court  as 
witnesses.  This  might  be  done  especially  in  the  matter  of 
character  evidence  in  a  locality  where  the  party  is  well  known. 
Nothing  is  so  well  settled  as  that  mere  numbers  do  not  mean 
the  greater  weight  of  evidence.     The  case  is  not  to  be  deter- 

17— Rooks  v.   State,  65  Ga.  330.  20— Keith  v.  Wilson,  6  Mo.  435, 

18 — Grimmes  v.  Martin,  10  Iowa  (441),  35  Am.  Dec.  443. 

347.  21— Laughlin   v.    State,    18   Ohio 

19— Kota  v.  People,  136  111.  655,  99,  102,  51  Am.  Dec.  444. 

27  N.  E.  53. 


§  69.]  PUBLICITY  OF  TRIAL.  55 

mined  by  an  imposing  array  of  witnesses  to  the  expense  and 
ruin  of  the  parties. 

If  however  one  of  the  alloted  number  selected  by  a  party 
should  prove  incompetent  the  party  should  then  be  allowed 
to  substitute  another. 

Impeaching  Witnesses.  A  limitation  is  also  imposed  on  the 
witnesses  impeaching  the  impeaching  witnesses.  It  is  held 
that  no  further  than  this  can  a  party  properly  go  for  the 
reason  that  impeaching  witnesses  might  in  turn  go  on  in  ad 
finitum  making  an  endless  impeachment.  In  some  states  the 
limitation  is  only  as  far  as  witnesses  impeaching  the  impeach- 
ing witnesses  and  no  further.22  In  Illinois  an  impeaching  wit- 
ness cannot  be  impeached.23 

Evidence  may  also  be  excluded  on  the  ground  of  the  undue 
confusion  which  may  arise  therefrom,  produced  by  diverting 
the  attention  of  the  jury  from  the  real  issue  and  fixing  it  upon 
minor  and  trivial  matters  and  by  making  the  issue  so  intricate 
and  intangled  that  the  evidence  suppresses  the  truth. 

Expert  Witnesses.  It  is  usual  to  limit  expert  witnesses  in 
number  fixed  at  from  two  to  five  on  a  side.  With  wealth  and 
means  on  hand  it  would  not  be  difficult  to  secure  an  imposing 
array  of  experts  to  testify.  Much  more  by  far  depends  upon 
the  capacity  and  skill  of  the  experts  than  upon  their  numbers 
and  justice  is  well  served  by  a  wise  limitation  on  the  number 
of  experts  which  the  parties  may  call. 

22— State  v.  Brant,  14  Iowa  182;  v.  Stratton,  63  N.  E.  148  (N.  Y.). 
State  v.  Moore,  25  Iowa  137;  Brink        23— Rector  v.  Rector,  8  111    105. 


CHAPTER  VI. 


OPENING  STATEMENTS. 


§  70.  Right  of  parties  to  make  a 
statement. 

§  71.  Same   subject   continued. 

§  72.  Order  of  statements  in  the 
discretion  of  the  court. 
Criminal  cases. 

§  73.  Importance  of  a  statement. 

§  74.  Competent  matters  in  the 
opening   statement. 

§  75.  Improper  matters  in  open- 
ing statement. 

§  76.  Reading  the  pleadings  to  the 
jury. 


§  77.  Reading   of    papers   proposed 
to  be  introduced. 

§  78.  Reading    of    law    in    opening 
statement. 

§  79.  Exceptions      taken      to      im- 
proper remarks. 

§  80.  Improper    remarks    cured    by 
withdrawal  or  instructions. 

§  81.  Anticipating    defense    of    op- 
ponent. 

§  82.  Waiver  of  statement. 


§  70.  Right  of  Parties  to  Make  a  Statement.  The  first  duty 
that  the  parties  or  their  counsel  have  in  the  trial  of  a  case 
is  to  present  in  an  opening  statement  to  the  jury  a  clear  and 
full  idea  of  the  matters  in  dispute  and  what  the  evidence  will 
show  in  relation  thereto  so  as  to  prepare  the  minds  of  the 
jury  to  receive  and  properly  assimilate  the  evidence  to  be 
produced.  The  opening  statement  should  be  full  enough  to 
make  the  case  understood  and  should  be  confined  to  the  pro- 
posed proof  upon  which  the  party  relies  to  substantiate  his 
claim.  The  question  arises  sometimes  concerning  the  right 
of  the  parties  to  present  to  the  jury  the  first  statement.  The 
only  sound  rule  seems  to  be  that  if  the  plaintiff  has  any  evi- 
dence to  give  in  order  to  be  entitled  to  a  verdict,  he  has  the 
right  to  make  the  opening  statement  and  produce  his  evidence 
first.  In  other  words  the  test  may  be  stated  to  be,  that  the 
party  against  whom  judgment  would  go  if  no  evidence 
were  given,  has  the  right  to  make  the  opening  statement  and 
to  begin  the  case.  The  one  having  the  burden  of  proof  is 
entitled  to  open  and  close  whether  he  is  defendant  or  plain- 
tiff.1 

1 — Cassell    v.    First   Nat.    Bank,    the     right     to     open     and     close. 
169    111.    380,    48    N.    E.    701.      The     Goetz   v.    Sona,    65    111.   App.   78. 
party  holding   the   affirmative   has 

56 


§71.] 


OPENING  STATEMENTS. 


57 


If  the  plaintiff  has  anything  to  prove  in  order  to  have  a 
verdict  the  right  to  open  the  case  is  said  to  belong  to  him,2 
or  if  he  must  give  any  evidence  at  all  in  order  to  be  entitled 
to  a  verdict  for  his  claim.3 

§  71.  Same  Subject,  Continued.  A  defendant  may  make 
the  opening  statement  where  his  pleading  admits  clearly  anil 
unqualifiedly  every  material  allegation  of  plaintiff's  pleading.4 
This  admission  of  the  essential  and  material  facts  in  the  plain- 
tiff's pleading  may  be  made  by  the  defendant  by  means  of  an 
oral  or  written  admission  on  the  trial  or  by  amending  his 
pleading,  so  as  to  entitle  him  to  open  the  case. 

It  is  the  usual  practice  for  the  plaintiff  or  the  party  on 
whom  rests  the  burden  of  proof  to  state  first  his  claim  and 
the  evidence  by  which  he  expects  to  sustain  it;  after  which 
the  other  party  may  state  his  defense  and  the  evidence  he 
expects  to  offer  in  support.  After  all  of  which  the  party  upon 
whom  rests  the  burden  of  proof  should  introduce  his  evidence 
in  chief.5 


2— Cortelyou  v.  Hiatt,  36  Neb. 
584,    54    N.    W.    y64. 

3 — Johnson  v.  Josephs,  75  Maine 
544;   Dille  v.  Lovell,  37  Ohio  415. 

4 — Shulse  v.  McWilliams,  104 
Ind.  512,  3  N.  E.  243. 

5— In  Cleveland  &  E.  Electric  R. 
Co.  v.  Hawkins,  64  Ohio  Sup.  391, 
60  N.  E.  558,  the  court  said  that 
"since  its  amendment,  March  3, 
1892  (89  Ohio  Laws,  p.  59),  the 
section  reads  as  follows:  When 
the  jury  is  sworn  the  trial  shall 
proceed,  except  as  provided  in  the 
next  section,  in  the  following  or- 
der, unless  the  court  for  special 
reasons  otherwise  direct:  (1)  The 
plaintiff  must  briefly  state  his 
claim  and  may  briefly  state  the 
evidence  by  which  he  expects  to 
sustain  it.  (2)  The  defendant  must 
then  briefly  state  his  defence,  and 
may  briefly  state  the  evidence  he 
expects  to  offer  in  support  of  it. 
(3)    The  party  who  would  be   de- 


feated, if  no  evidence  were  offered 
on  either  side,  must  first  produce 
his  evidence,  and  the  adverse  party 
must  then  produce  his  evidence. 
(4)  The  parties  shall  then  be  con- 
fined to  rebutting  evidence,  unless 
the  court,  for  good  reasons  in  the 
furtherance  of  justice,  permft 
them  to  offer  evidence  in  their 
original  case.  (5)  When  the  evi- 
dence is  concluded,  either  party 
may  present  written  instructions 
to  the  court  on  matters  of  law,  and 
request  the  same  to  be  given  to  the 
jury,  which  instructions  shall  be 
given  or  refused  by  the  court  be- 
fore the  argument  to  the  jury  is 
commenced.  (6)  The  parties  may 
then  submit  or  argue  the  case  be- 
fore the  jury;  the  party  required 
first  to  produce  his  evidence  shall 
have  the  opening  and  closing  argu- 
ment, and  if  several  defendants, 
having  separate  defenses,  appear 
by    different    counsel,    the     court 


58  INSTRUCTIONS    TO    JURIES.  [§72. 

In  some  jurisdictions  the  opening  statement  of  the  defendant 
should  not  be  made  usually  until  the  evidence  of  the  plaintiff 
has  been  heard  and  the  plaintiff  has  rested  his  case,  although 
it  is  not  uncommon  even  in  such  states  for  the  defendant  to 
open  his  case  before  the  plaintiff  introduces  his  evidence.6 

The  right  to  open  the  case  to  the  jury  is  a  fixed  right,  at 
least  in  all  cases  for  unliquidated  damages,7  and  a  refusal 
of  this  right  is  error  to  which  an  exception  will  lie. 

A  distinction  must  be  made  between  the  provisions  of  the 
various  statutes  of  the  States  providing  who  should  open  the 
case  to  the  jury  and  those  provisions  relating  to  the  opening 
and  closing  argument  of  the  case  to  the  jury. 

§  72.  Order  of  Statements  in  Discretion  of  the  Court.  Crim- 
inal Cases.  It  is  within  the  sound  discretion  of  a  trial  court 
to  fix  the  time  at  which  the  opening  statement  to  the  jury  is 
to  be  made  and  in  the  absence  of  clear  abuse  of  this  discretion 
the  appellate  court  would  not  consider  it  as  error.8 

It  is  within  the  discretion  of  the  court  to  refuse  the  de- 
fendant's request  to  make  his  opening  statement  at  the  close 
of  plaintiff's  evidence  although  the  making  of  such  a  statement 
disclosed  to  the  plaintiff  an  error  in  his  declaration  and  caused 
him  to  amend  the  pleading.9 

The  burden  of  proof  always  rests  upon  the  State  in  a  crim- 
inal case  on  account  of  the  presumption  of  innocence  on  the 
part  of  the  defendant  and  for  that  reason  the  prosecutor  has 
the  right  to  open  the  case  and  to  state  all  competent  facts 
which  he  intends  to  prove  and  no  others. 

Even  where  the  defense  is  insanity  and  the  homicide  is  not 
controverted,  the  prosecution  has  been  held  to  have  the  right 
to  open  and  close.10    The  opening  statement  may  be  made  by 

shall  arrange  their  relative  order,  hold  that  both  parties  may  be  re- 

(7)  The  court,  after  the  argument  quired  to  open  before  evidence  is 

is  concluded,  shall,  before  proceed-  put   in. 

ing  with  other  business,  charge  the  7— Hettinger   v.    Beiler,    54    111. 

jury;  any  charge  shall  be  reduced  App.   320. 

to  writing  by  the  court,  if  either  8— Hettinger    v.    Beiler,    54    111. 

party,  before  the  argument  to  the  App.    320. 

jury  is  commenced,  request  it."  9— D.    Sinclair    Co.    v.    Waddill, 

6— Hettinger    v.    Beiler,    54    111.  99    111.    App.    334.      Judgment    af- 

App.  320,  but  see  Sands  v.  Potter,  firmed  65  N.  E.  437,  200  111.  17. 

59  111.  App.  206,  which  seems  to  10— State  v.  Felter,  32  Iowa  49. 


§73.]  OPENING  STATEMENTS.  59 

an  attorney  acting  as  an  assistant  to  the  State's  Attorney 
without  any  impropriety  on  that  account.11 

§  73.  Importance  of  a  Statement.  Too  much  importance 
cannot  be  attached  to  the  proper  making  of  the  opening  state- 
ment. In  fact  it  is  of  as  much  relative  importance  to  inform 
the  jury  on  the  matters  in  controversy  so  that  they  may  under- 
stand the  materiality  and  relevancy  of  the  evidence  produced 
and  be  able  to  retain  a  strong  recollection  thereof,  as  it  is 
for  counsel  afterwards  to  accentuate  the  evidence  and  explain 
it  in  his  closing  argument  to  the  jury. 

The  opening  statement  has  the  same  relation  to  the  closing 
argument  as  the  upper  mill  stone  has  to  the  lower.  The  jury 
would  grasp  the  evidence  quicker,  would  understand  and  digest 
it  better  and  would  follow  the  argument  of  counsel  more  read- 
ily if  proper  attention  were  paid  to  a  clear  setting  forth  of 
the  issues  in  an  opening  statement. 

It  is  equally  as  bad  to  make  a  statement  to  the  jury  that 
is  lacking  in  completeness  as  to  make  a  statement  too  far 
reaching  in  its  extent.  Of  these  the  latter  would  be  more 
disastrous  in  its  effects  to  the  party  himself,  for  a  jury  is  very 
prone  to  demand  that  the  assurances  and  promises  held  out 
by  counsel  should  be  met.  It  is  not  always  the  better  policy 
to  put  one's  best  foot  forward  at  the  beginning,  and  although 
there  is  little  room  for  a  display  of  modesty  on  the  part  of 
one  with  serious  responsibilities  commanding  his  attention,  yet 
the  effect  is  not  to  be  ignored  where  the  strength  of  evidence 
later  brought  to  light  on  a  trial  far  exceeds  the  expectation 
of  the  jury. 

A  lack  of  a  full  statement  of  the  issues  in  the  case  on  the 
part  of  one  of  the  parties  cannot  be  called  error,12  but  where 
.the  plaintiff's  opening  statement  discloses  no  cause  of  action, 
it  is  frequently  the  practice  to  order  a  nonsuit  at  once  where 
the  court  has  that  power.  This  is  substantially  in  effect  the 
same  as  though  a  demurrer  had  been  made  to  the  evidence, 
or  as  if  a  peremptory  instruction  was  made  by  the  defendant 
at  the  close  of  plaintiff's  case  to  direct  a  verdict.  All  the 
facts  and  offers  of  proof  should  be  taken  into  consideration 
in  passing  upon  this  motion  together  with  the  matters  stated 
in  the  party's  pleadings.13 

11— Roberts  v.  Comm.,  94  Ky.  "  13— Clews  v.  Bank,  105  N.  Y. 
499,    22   S.    W.    845.  398,   11  N.  E.   814. 

12— Clarke     v.     O'Rourke,  111 
Mich.   108,   69  N.  W.  147. 


60  INSTRUCTIONS    TO    JURIES.  [§74. 

Such  a  case  as  the  one  just  referred  to  can  scarcely  arise 
except  where  the  cause  of  action  stated  in  the  pleading  was 
in  itself  subject  to  demurrer,  but  was  not  taken  advantage  of 
before  the  opening  of  the  case. 

§  74.  Competent  Matters  in  the  Opening  Statement.  The 
statement  relates  to  the  intended  evidence  merely  and  should 
not  be  made  an  avenue  to  put  incompetent  matters  before 
the  jury  even  though  it  is  nothing  more  than  an  offer  to  prove 
such  facts.  It  should  not  be  made  a  cover  for  the  introduction 
of  details  of  evidence  which  cannot  legally  be  produced  on 
the  trial.  A  strict  application  of  the  rules  of  evidence  should 
not  be  applied,  however,  to  the  matters  set  forth  in  the  open- 
ing statement.14  Where  there  is  nothing  either  in  law  or 
in  the  pleadings  which  would  put  the  court  or  the  opposing 
party  in  possession  of  the  fact  that  the  party  had  no 
such  evidence  which  could  be  used  in  support  of  the  statement 
made  on  the  opening,  there  is  no  way,  it  seems,  by  which  a 
party  could  object  or  by  exception  protect  himself  from  such 
statements.  In  such  a  case  the  court  should  instruct  the  jury 
to  disregard  all  such  statements  as  may  have  been  made  by 
counsel  in  their  opening  statement  which  are  unsupported  by 
the  evidence. 

A  party  is  not  confined  to  the  facts  recited  in  his  opening 
statement  and  for  this  reason  the  court  properly  refused  a 
requested  instruction  that  the  plaintiff  was  bound  by  any 
statement  made  by  his  counsel  in  his  opening  statement  to  the 
jury.15  For  this  reason  it  is  error  to  admit  evidence  to  dis- 
credit a  statement  made  by  counsel  to  the  jury  in  stating 
what  he  expects  to  prove  where  no  attempt  has  been  made  to 
prove  it.16 

In  opening  the  case  it  has  been  held  proper  for  a  prosecuting 
attorney  to  state  that  the  defendant  made  a  forcible  resistance 
to  the  officers  when  making  his  arrest  when  he  expects  to 
prove  this  fact  by  proper  evidence,17  and  indeed  all  matters 
relied  upon  by  the  prosecution  for  a  conviction  which  are 
competent  may  be  stated  on  the  opening  even  if  afterwards 

14 — Campbell    v.    Kalamazoo,    80  ings   Bank,   189   111.   568,    59   N.  E. 

Mich.   655,   45   N.   W.   652.  1106. 

15— Lusk  v.  Throop,  189  111.  127,  17— People  v.  Chalmers,   5   Utah 

59  N.  E.  529.  201,    14    Pac.    131,    5   Utah   274,   15 

16— Howard  v.  111.  Trust  &  Sav-  Pac.  2. 


§  75.]  OPENING  STATEMENTS.  61 

these  matters  are  not  put  in  evidence  as  counsel  honestly  in- 
tended, but  was  prevented  by  unforeseen  circumstances.18 

§  75.  Improper  Matters  in  Opening  Statement.  An  opening 
statement  should  certainly  never  contain  matter  which  is  clear- 
ly incompetent  when  offered  as  evidence,19  and  where  a  client 
was  not  allowed  to  testify  in  the  case,  his  counsel  for  this 
reason  would  not  be  permitted  to  give  in  his  opening  statement 
such  facts  as  this  party  alone  can  testify  to  and  of  which  he 
was  the  only  witness.20 

A  party  is  not  bound  to  substantiate  every  statement  made 
in  his  opening  statement  to  the  jury  and  to  produce  evidence 
in  support  thereof,  nor  is  he  confined  to  the  introduction  of 
evidence  to  the  statements  of  what  he  expects  to  prove,21  since 
this  would  subject  him  at  his  peril  to  announce  to  the  jury 
each  and  every  item  of  evidence  intended  to  be  used.22 

It  is  the  duty  of  the  trial  court  to  prohibit  any  statement 
on  the  part  of  counsel  of  matters  foreign  to  the  issues  or 
tending  to  excite  the  prejudice  of  the  jury  ;23  to  reprove  coun- 
sel who  overstep  due  bounds  in  their  opening  statements 
and  to  reprove  them  in  the  hearing  of  the  jury  and  afterwards 
to  admonish  the  jury  in  the  instructions  to  dismiss  such  state- 
ments from  their  mind.  Even  such  action  of  the  court  may 
not  be  sufficient  to  cure  a  serious  infraction  of  this  rule  and  a 
reversal  will  be  given  on  that  account  on  appeal.24  Over- 
stepping of  the  bounds  and  just  limits  of  an  opening  statement 
are  not  usually  considered  of  grave  importance  unless  it  is 
done  in  bad  faith  and  concerns  matters  that  would  necessarily 
prejudice  the  jury,  and  is  of  such  a  nature  that  the  court  is 
unable  to  remove  the  prejudice  by  anything  it  may  say  or  do.25 
§  76.  Reading  the  Pleadings  to  the  Jury.  In  making  the 
statement  of  the  case  to  the  jury  it  is  usual,  although  not 
necessary,  to  read  the  pleadings.     Counsel  may  be   required 

18— People  v.  Ellsworth,  92  Cal.  22— Lusk  v.  Throop,  189  111.  127, 

594,   28   Pac.   604;    People  v.   Glea-  59  N.  E.  529. 

son,    127    Cal.    323,    59    Pac.    592;  23— Hennies  v.  Vogel,  87  111.  242. 

State  v.   Crafton,  89  Iowa  107,  56  24_Scripps   y    ReU1      35   Mich. 

N.  W.  257.  371 

19_Warn  v.   City  of  Flint,  140 

Mich.  573,  104  N.  W.  37.  25— Prentess  v.   Bates,   93   Mich. 

20— Scripps   v.    Reilly,    35   Mich.  235,    53    N.    W.    153,    17    L.    R.    A. 

371,   24   Am.  Rep.  575.  494,   n;    Lee  v.  Campbell,  77  Wis. 

21— Kelly    v.    Troy    Ins.    Co.,    3  340   and  46   N.   W.   497. 
Wis.  229,  60  Am.  Dec.  379. 


62  INSTRUCTIONS    TO    JURIES.  [§77. 

to  read  them  or  to  state  their  contents  in  order  to  enable  the 
issues  to  be  understood.  It  is,  however,  a  matter  of  discretion 
with  the  trial  judge  whether  he  will  allow  the  pleadings  to 
be  read  to  the  jury  or  not.  There  can  be  no  real  objection  to 
allowing  them  to  be  read  as  a  part  of  the  opening  statement 
or  at  least  allowing  such  parts  to  be  read  as  have  not  been 
stricken  out  on  motion,  for  the  reason  that  it  would  be  not 
less  prejudicial  to  state  orally  the  same  matters  before  the 
jury  as  counsel  undoubtedly  has  a  right  to  do.  Certainly  no 
objection  could  be  urged  against  the  reading  of  the  opposite 
party's  pleading  to  the  jury  as  containing  the  facts  relied 
upon  by  such  party.  The  practice  however  is  not  uniform  as 
it  has  been  held  that  pleadings  are  considered  as  for  the  court 
alone,  to  enable  court  to  understand  the  issues  involved  and 
to  rule  on  the  competency  and  materiality  of  the  evidence 
which  is  offered.26  Where  the  pleadings  contain  improper 
matter,  they  should  not  be  allowed  to  be  read  any  more  than 
counsel  may  orally  state  improper  matter  to  the  jury  in  his 
opening  statement. 

§  77.  Reading  of  Papers  Proposed  to  Be  Introduced.  "While 
the  opening  statement  should  be  complete  enough  to  state 
clearly  the  matters  at  issue  between  the  parties,  yet  a  relation 
by  the  counsel  of  the  expected  oral  testimony  in  detail  and  at 
length  or  a  reading  by  him  of  expected  documentary  proofs 
at  large  should  not  be  tolerated.  There  may  be  cases  where 
the  statement  of  evidence  or  reading  of  papers  may  be  allowed 
as  convenient  or  harmless  under  the  discretion  of  the  court, 
but  this  is  extremely  exceptional  and  of  doubtful  propriety. 

An  opening  statement  should  not  embrace  the  reading  of 
documents  or  maps,  proposed  to  be  offered  in  evidence  except 
as  the  court  may  in  its  discretion  permit  it.27 

§  78.  Reading  of  Law  in  Opening  Statement.  In  order  to 
give  the  jury  a  clear  idea  of  the  case  and  the  relation  of  the 
evidence  thereto  it  may  be  necessary  for  counsel  to  state  in 
good  faith  to  the  jury  the  law  bearing  on  the  case.  The  courts 
hold  as  a  general  rule  that  counsel  should  not  be  permitted 
to  read  law  to  the  jury  in  civil  actions  and  that  it  would  be 
an  error  of  the  court  to  permit  this.28 

26— Hachman  v.  Maguire,  20  Mo.  28 — Bangs     v.     State,     61     Miss. 

App.    286.  363;    Griffen  v.  Lewiston,   55   Pac. 

27— Hill    v.    Watkins,    28    N.    Y.  545     (Idaho);     Prentiss    v.    Bates, 

Supp.   805.  92  Mich.  234,  53   N.  W.  153;    City 


§  79.]  OPENING  STATEMENTS.  63 

It  would  seem  that  there  is  really  no  difference  between  the 
oral  statement  of  law  to  a  jury  or  the  reading  of  it  from  the 
printed  reports  or  books  and  if  either  method  is  allowed, 
it  would  certainly  be  better  to  allow  the  reading.  Yet  it  is 
held  that  the  reading  of  extracts  from  law  books  to  the  jury 
during  the  opening  statement  is  not  permissible  except  in 
criminal  cases  and  in  civil  cases  where  the  jury  is  constituted 
the  judge  of  both  law  and  fact.29 

Where  the  reading  of  law  to  the  jury  is  permitted  either 
on  the  opening  statement  or  in  the  argument,  the  reason  for 
its  permission  being  the  same  in  both  instances  and  governed 
by  the  same  rule,  it  should  be  supervised  by  the  court  and 
ail  law  not  pertinent  to  the  case  should  be  excluded.30  Where 
the  reading  is  from  the  reported  decisions  of  the  Supreme 
Court  such  reading  should  not  be  restricted  to  portions  con- 
taining mere  legal  principles,  but  the  recital  of  facts  and  the 
reasoning  of  the  court  necessary  to  an  understanding  of  the 
principles  should  be  permitted.31 

The  jury  have  no  right  to  take  the  statement  of  any  attorney 
as  to  what  the  law  is  except  where  the  court  gives  an  instruc- 
tion coincident  with  it  and  to  the  same  general  effect.32 
Where  the  plaintiff's  attorney  did  not  encroach  on  the  prov- 
ince of  the  court  to  state  finally  the  law  to  the  jury,  although 
in  stating  the  case  to  the  jury  he  made  a  statement  of  what 
he  claimed  was  the  law  of  the  case  as  a  basis  for  argument  on 
the  facts,  the  court  considered  such  conduct  as  not  prejudicial 
to  any  right  of  the  defendant.33 

§  79.  Exceptions  Taken  to  Improper  Remarks.  An  excep- 
tion may  be  taken  to  the  remarks  of  counsel,  or  the  ruling  of 
the  court  in  permitting  counsel  to  go  beyond  the  proper  limits 
in  his  opening  statement,  and  such  exception  should  be  saved 
if  the  remarks  made  would  probably  result  in  prejudice  to 

of  Chicago  v.  McGivin,  78  111.  347;  30— Strohm    v.    People,    60    111. 

Nash   v.   Burns,   35    111.  App.    296;  App.  128. 

State    v.    Whitman,    53    Kan.    343,  31— Wohlford  v.  People,  supra. 

42   Am.    St.    288;    Fosdick  v.   Van  32— Vocke    v.    City    of    Chicago, 

Arsdale,   74    Mich.    302,    41    N.    W.  208  111.  192,  70  N.  E.  325. 

931.     See  also  Askew  v.   State,  94  33— Coyne    v.    Avery,    59    N.    E. 

Ala.   4,  3  Am.  St.   83.  788,   189   111.   378;    Griffen  v.   Lew- 

29_Wohlford   v.   People,   45    111.  iston,  supra;  Prentiss  v.  Bates,  93 

App.    188,    148    111.    296,    36    N.    E.  Mich.  234.   53  N.  W.   153,  17  L.  R. 

107;    Griffen  v.   Lewiston,  55   Pac.  A.  494  n.;  Fosdick  v.  Van  Arsdale, 

545.  74  Mich.   302,   41  N.  W.   931. 


64  INSTRUCTIONS    TO    JURIES.  [§80. 

the  party.34  If  no  injury  results  to  the  party  therefrom,  it 
would  be  of  no  material  consequence  and  an  exception  would 
not  lie.35 

Where  improper  remarks  have  been  made  and  objected  to 
and  the  ruling  of  the  court  properly  excepted  to,  if  adverse, 
and  such  conduct  is  allowed  to  continue  without  any  attempt 
on  the  part  of  the  court  to  correct  the  impression  made  by  it, 
an  instruction  should  then  be  asked  for  remedying  this  matter 
as  far  as  possible  and  removing  it  from  the  consideration  and 
mind  of  the  jury. 

§  80.  Improper  Remarks  Cured  by  Withdrawal  or  Instruc- 
tion. An  immediate  withdrawal  of  the  improper  remarks  made 
by  counsel  is  usually  sufficient  to  cure  the  error,  but  it  is  not 
necessary  that  such  a  withdrawal  should  include  the  statement 
that  such  remarks  are  untrue.36 

An  instruction  to  the  jury  to  dismiss  from  their  mind  the 
improper  statements  made  and  the  withdrawal  of  such  state- 
ments by  the  offending  counsel  coupled  with  a  severe  rebuke 
by  the  court  may  be  ordinarily  sufficient  to  cure  the  error 
committed,  but  in  a  gross  case  of  abuse  this  would  not  be 
sufficient  and,  as  Judge  Graves  said,  "It  is  quite  impossible  to 
conclude  that  the  jury  had  not  been  influenced  too  far  by 
the  erroneous  rulings  and  proceedings,  to  be  brought  into  the 
same  impartial  attitude  by  the  court's  admonition,  which  they 
would  have  held  if  counsel  for  the  defendant  in  error  had 
been  properly  confined  in  his  opening  statement.  The  course 
of  fair  and  settled  practice  was  violated  to  the  prejudice  of 
plaintiff  in  error,  and  it  is  not  a  satisfactory  answer  to  say 
that  the  court  went  as  far  as  practicable  afterwards  to  cure 
the  mischief,  so  long  as  an  inference  remained  that  the  remedy 
applied  by  the  court  was  not  adequate.37 

§  81.  Anticipating  Defense  of  Opponent.  As  a  party  may 
properly  be  allowed  to  give  evidence  to  rebut  matter  which 
the  opponent  intends  to  rely  upon  when  he  gives  his  evidence 
on  the  trial38  so  it  is  proper  in  some  jurisdictions  at  least  to 

34— Ayrcault  v.  Chamberland,  33  98  Iowa  606,  67  N.  W.  583,  40  L. 

Barb.    229;    Scripps    v.    Reilly,    38  R.    A.    845    n.;    Welch    v.    Palmer, 

Mich.     10;     Bendetson    v.    Moody,  836  Mich.  552,  48  N.  W.  252. 
100  Mich.  553,  59  N.  W.  252.  37— Scripps   v.    Reilly,    35    Mich. 

35— Ins.   Co.   v.   Weeks,   45  Kan.  371,  391. 
751,  26  Pac.   410.  38— Hintz  v.   Graupner,   138  111. 

36— Erb  v.  German-Am.  Ins.  Co.,  158,  27  N.  E.  935. 


§  82.]  OPENING  STATEMENTS.  65 

state  in  a  general  way  the  defense  relied  upon  by  the  opponent 
and  how  he  expects  to  meet  it.  This  is  held  in  great  disfavor 
by  most  courts  and  is  limited  if  allowed  at  all,  to  a  very  brief 
statement.  It  is  by  no  means  good  practice  and  had  better 
be  avoided  except  in  cases  where  it  is  impossible  to  separate 
properly  the  matters  in  dispute  or  where  it  would  be  good 
policy  to  "steal  the  thunder"  of  the  defendant  before  he  had 
sufficient  opportunity  to  use  it  effectively.39 

Under  the  old  English  practice  it  was  a  usual  thing  to  an- 
ticipate in  an  opening  statement  the  defense  of  the  opposing 
party. 

§  82.  Waiver  of  Statement.  A  refusal  to  make  an  opening 
statement  would  seem  to  result  merely  in  a  waiver  of  this 
right  and  privilege,  although  in  at  least  one  instance  it  has 
been  held  sufficient  to  entitle  the  opposite  party  to  a  verdict 
upon  a  motion  therefor.40 

39 — Ayrcault  v.  Chamberland,  33        40 — Osborne    v.    Kline,    18    Neb. 
Barb.  (N.  Y.)  229;  Baker  v.  State,     344,  25  N.  W.  360. 
69  Wis.  32,  33  N.  W.  52. 


CHAPTER  VII. 


POWERS  AND  DUTIES  OF  THE  COURT  DURING  TRIAL. 


§  83.  Presence  of  judge  required 
at  the  trial. 

§  84.  Judicial  functions  cannot  be 
delegated. 

§  84a.  Temporary  absence  during 
argument. 

§  85.  Judge  falling  asleep  during 
the  trial. 

§  86.  Powers  and  duties  of  presid- 
ing judge. 

§  87.  Same  subject,  continued. 

§  88.  Same  subject,  continued. 

§  89.  Same  subject,  continued. 

§  90.  Power  of  court  to  exclude 
witnesses. 

§  91.  Remarks  by  court  indicating 
his  opinion  of  facts  calcu- 
lated to  influence  the  jury. 

§  92.  Conduct  of  trial  judge  not  to 
be   too   closely   scrutinized. 


§  93.  Remarks  of  court  to  jury  on 
expense  of  trial  and  neces- 
sity  of  agreeing. 

§  94.  Undue  interference  by  court 
during  the  trial. 

§  95.  Communications  with  the 
jury  after  retirement. 

§96.  Communications  between 
court  and  jury. 

§  97.  Display  of  anger  and  ridi- 
cule by  judge. 

§  98.  Admonishing  jury  as  to  con- 
duct during  separations. 

§  99.  Separation  of  jury  constitut- 
ing error. 

§  100.  Separation,  when  a  matter 
of  discretion  with  the 
court. 

§  101.  When  separation  will  war- 
rant granting  of  new  trial. 


§  83.  Presence  of  Judge  Required  at  the  Trial.  There  is  no 
court  in  the  true  sense  without  a  judge  present;  his  presence 
is  always  essential.1  The  presence  of  the  judge  in  a  criminal 
case  and,  especially,  in  one  involving  a  felony  is  of  the  utmost 
importance,  and  he  must  be,  if  not  actually  present  in  the 
court  room  during  all  of  the  trial,  at  least  constructively 
present,  so  he  can  be  in  readiness  to  assert  authority  and  as- 
sume instant  control.2 

It  is  not  uncommon,  although  not  desirable,  for  the  court 
to  be  absent  during  the  progress  of  the  argument  or  when 
the  business  of  the  court  reasonably  requires  it,  and  unless 
prejudice  results  on  this  account,  there  will  be  no  error  suffi- 
cient to  warrant  a  reversal  of  the  case.3     It  would  seem  that 

1— State  v.  Carnagy,  106  Iowa  3— Baxter  v.  Ray,  62  Iowa  336, 
487,  76   N.  W.  805.  17  N.   W.    576. 

2 — State  v.  Carnagy,  supra. 

66 


§84.]  POWERS   OF  COURT  DURING  TRIAL.  67 

the  court  should  be  extremely  careful  in  the  matter  of  absent- 
ing himself  even  during  the  argument,  as  this  is  as  much  a 
part  of  the  trial  as  the  hearing  of  evidence  or  any  of  the  pro- 
ceedings.4 The  presence  of  the  judge  preserves  the  legal 
solemnity  and  the  security  of  the  trial  and  upholds  the  majesty 
of  the  law.5  In  civil  cases  it  seems  that  consent  to  absence  of 
the  judge  may  be  given  or  implied  by  not  objecting  in  advance 
when  the  court  leaves  the  room;  but  in  the  trial  of  a  felony, 
such  a  consent  cannot  be  given,  or,  if  given,  is  not  binding 
in  any  sense.6 

Even  where  the  absence  of  the  judge  is  permissible  within 
discretionary  limits,  it  will  be  error  of  sufficient  gravity  to 
warrant  reversal  where  such  absence  is  for  a  considerable 
length  of  time.7  In  any  event,  whether  the  judge  properly 
or  improperly  absents  himself,  no  reversal  can  follow  where 
a  showing  is  made  that  no  prejudice  resulted  from  such  action.8 
However,  the  practice  of  the  judge  absenting  himself  is  full 
of  risk ;  it  imposes  on  counsel  obligations  of  scrupulous  ob- 
servation of  professional  propriety  such  that  its  disregard 
would  incur  hazard  of  reversal  if  a  party  has  profited  thereby.9 
The  parties  in  a  civil  case  and,  especially,  the  defendants  in 
criminal  cases,  are  entitled  to  the  presence  of  the  court  at  all 
stages  of  the  trial  and  to  have  every  act  of  the  judge  or  the 
jury  transpire  in  their  presence  so  that  they  may  know  and 
judge  of  the  effect  it  has  upon  the  case.  Absence  during  a 
portion  of  the  trial  in  a  civil  case  is  undesirable  no  matter 
how  good  a  reason  there  may  be  for  it,  but  such  absence  will 
not  constitute  error  sufficient  to  reverse  judgment  unless 
prejudice  resulted  therefrom  or  some  error  transpired  during 
and  on  account  of  such  absence.10 

§  84.  Judicial  Functions  Cannot  Be  Delegated.  Judicial 
functions  must  be  performed  by  the  persons  designated  and 
not  by  their  agents.  For  this  reason  a  judge  cannot  call  an 
attorney  to  preside  during  a  part  of  the  trial,  and  to  do  so 
would  be  error.11     It  was  held  in  a  Missouri  case  that  it  is 

4 — Smith  v.    Sherwood,    95  Wis.  7 — Smith  v.  Sherwood,  supra. 

558,  70  N.  W.  682.  8— State  v.  Carnagy,  supra. 

5— Hayes    v.    State,    58    Ga.    35;  9— Hall    v.    Wolf,    61    Iowa    559, 

Pritchett  v.  State,  92  Ga.  65,  18  S.  16    N.    W.    710. 

E.  536.  10— Baxter  v.  Ray,  62  Iowa  336; 

6— Turberville  v.  State,  56  Miss.  19  N.  W.  576;  Hall  v.  Wolf,  supra. 

793.  11— Davis  v.  Wilson,  65  111.  527. 


68  INSTRUCTIONS    TO    JURIES.  [§84a. 

error  for  the  court  to  leave  the  room  during  the  trial  in  any 
ease,  and  it  is  so  even  where  an  attorney  is  left  in  charge.12 
Another  judge,  it  has  been  held,  cannot  be  substituted  by  the 
trial  judge  before  the  conclusion  of  the  case,  and  to  do  so, 
would  be  ground  for  a  new  trial.13 

§  84a.  Temporary  Absence  During  Argument.  The  presence 
of  the  judge  at  the  trial  of  a  case  is  required  at  all  stages 
of  its  proceedings,  but  a  mere  temporary  absence  from  the 
bench,  where  no  prejudice  resulted  therefrom,  would  not  be 
sufficient  to  remand  the  case  for  a  new  trial.14  A  mere  tem- 
porary absence  of  the  judge  from  the  court  room  during  argu- 
ment is  not  reversible  error  in  the  absence  of  prejudice.15 

The  absence  of  a  judge  is  improper,  whether  in  a  civil  case 
involving  mere  property  rights  or  in  a  criminal  trial,  but  more 
especially  in  the  latter.16  An  accused  on  trial  for  a  serious  crim- 
inal offense  punishable  by  incarceration  in  the  penitentiary 
has  an  undoubted  right  to  the  presence  of  the  judge  during 
argument  of  the  case  to  the  jury,17  and  although  the  judge  is 
within  hearing,  but  absent  from  the  room,  and  in  a  position 
to  pass  on  any  question  that  might  arise,  it  has  been  held 
improper  conduct.18  For  a  judge  to  leave  the  bench  during 
trial  of  a  capital  case  has  been  held  improper,  unless  all  busi- 
ness was  suspended  until  his  return.19  To  constitute  error,  ac- 
cording to  the  Supreme  Court  of  Mississippi,  there  must  be 
such  relinquishment  of  the  functions  of  office  by  reason  of 
bodily  absence  as  to  prevent  instant  assertion  of  authority  by 
the  judge  when  occasion  calls  for  it.20 

§  85.  Judge  Falling  Asleep  During  the  Trial.  It  would  seem 
to  be  misconduct  upon  the  part  of  the  respective  attorneys  en- 

12 — Nichols   v.    Metzger,    43    Mo.  v.  Benerman,  59  Kan.  586,  53  Pac. 

App.  607;   Colburn  v.  Brummel,  49  874;    Thompson  v.  People,  144  111. 

Mo.  App.  445.  378,  32  N.  E.  968;    State  v.  Smith, 

13— Durden    v.    People,    192    111.  49  Conn.  378;  O'Callaghan  v.  Bode, 

497,    61    N.    E.    317,    55    L.    R.    A.  84  Cal.  489,  24  Pac.  269. 

240.  15— Allen   v.   Ames  College,   106 

14— R.  Co.  v.  Anderson,  193   111.  Iowa  602,  76  N.  W.  848. 

13,  61  N.  E.  999.  16— Meredith    v.    People,    84    111. 

In  Schintz  v.  People,  178  111.  320,  479. 

52  N.  B.  903,  held  that  it  is  not  er-  17 — Thompson  v.   People,  supra. 

ror  for  the  judge  to  go  to  an  ad-  18 — Schintz   v.    People,   supra. 

jacent  room,   within   hearing,   and  19 — Hayes  v.  State,  58  Ga.  35. 

remain  there  during  the  argument  20 — Turberville      v.      State,      56 

for    the    defense.      The    following  Miss.    793. 
cases  hold  to  the  same  effect:  State 


§8G.]  POWERS   OF   COURT   DURING   TRIAL.  69 

gaged  in  the  case,  rather  than  any  misconduct  chargeable  to 
the  court,  that  during  the  conduct  of  the  trial  the  judge  should 
fall  asleep  while  witnesses  are  being  examined.  The  Supreme 
Court  of  Illinois  has  held  that  where  no  prejudice  resulted 
it  would  not  be  good  ground  for  a  new  trial.-1  There  is  really 
no  difference  between  the  fact  of  a  judge  being  asleep  during 
a  trial  or  a  portion  thereof  and  his  bodily  absence  from  the 
court  room,  and  for  this  reason  this  ruling  would  seem  in 
accord  with  good  reasoning. 

§  86.  Powers  and  Duties  of  Presiding  Judge.  The  relation 
of  the  judge  to  the  proceeding  and  trial  briefly  stated  are: 
To  pass  upon  all  questions  of  law  that  may  arise,  and  to  do 
so  as  soon  as  possible,  although  his  decision  may  be  reserved 
for  a  limited  time  for  the  purpose  of  informing  himself  on 
the  law,  or  for  submission  of  briefs  upon  the  point  by  counsel.22 
Be  present  and  preserve  proper  order  (this  is  more  important 
in  criminal  cases  than  in  civil).  Prevent  intimidation  of  wit- 
nesses or  other  improper  conduct  toward  them  by  counsel.23 
Compel  proper  conduct  towards  the  court,  and  punish  infrac- 
tions by  fine  or  sentence  for  contempt.  Prescribe  regulations 
in  the  proper  discharge  of  court  business  and  control  times 
of  the  sittings  of  court  and  adjournments.24  Regulate  the 
order  of  introducing  evidence  in  the  exercise  of  sound  discre- 
tion. 

To  supervise  the  conduct  of  witnesses  and  direct  them  as  to 
conduct.25  Supervise  conduct  of  the  jury  and  do  all  things 
to  preserve  impartiality  and  freedom  from  prejudice  and  bias. 
The  court  may  within  its  discretion  limit  the  number  of  wit- 
nesses on  a  single  point,  as  well  as  regulate  the  order  of  their 
introduction.26  This  limitation  may  be  imposed  at  any  stage 
of  the  trial  and  need  not  be  made  known  at  the  beginning. 

Witnesses  as  to  credibility  come  within  the  above  rule  and 
may  be  limited  in  number.27     Witnesses  as  to  value  of  land 

21— R.  Co.  v.  Anderson,  193  111.  26— Green  v.  Phoenix  Mut.  Life 

12.  Co.,   134   111.   310,   25   N.  E.   583,   10 

22— McCauley  v.  Weller,  12  Cal.  L.   R.   A.    576;    Minthon   v.    Lewis, 

500.  78   Iowa  620,  43  N.  W.   465;    Bays 

23— Crow  v.  Peters,   63  Mo.  429.  v.    Hunt,    60    Iowa   251,    14    N.    W. 

24— Wartena   v.    State,    105    Ind.  785;    Detroit  City  Ry.  v.  Mills,  85 

445,    5    N.   E.   20;    Jones  v.   Spear,  Mich.   654,  48  N.  W.  1007. 

22  Vt.  426.  27— Bays  v.   Hunt,  60  Iowa  251, 

25— Ferguson  v.  Hirsch,  54  Ind.  14  N.  W.  785. 
337. 


70  INSTRUCTIONS    TO    JURIES.  [§87. 

may  also  be  limited.28  In  Illinois,  however,  the  court  has  re- 
fused to  limit  the  number  of  witnesses  in  relation  to  the  value 
of  land.29  Witnesses  as  to  character  or  impeachment  of  wit- 
nesses may  also  be  limited  in  number.30  It  is  held  proper  to 
limit  the  number  of  expert  witnesses.31 

Court  should  assign  counsel  to  the  parties,  if  they  have  none, 
especially  in  criminal  cases,  and  advise  the  defendant  of  his 
rights  in  this  respect,  and  may  also  limit  number  of  acting- 
attorneys  on  each  side.  The  court  may  caution  a  witness  in 
a  proper  manner  when  hesitating  or  embarrassed,  and  also 
where  a  question  is  propounded  that  would  tend  to  incriminate 
him.32  The  witness  may  be  cautioned  by  the  court  to  testify 
only  in  regard  to  matters  of  his  own  personal  knowledge;33 
but  the  court  need  not  caution  the  parties  while  testifying 
unless  it  be  to  prevent  them  from  volunteering  testimony.34 

§  87.  Same  Subject,  Continued.  The  judge  may  ask  leading 
questions  of  a  witness,  even  on  the  trial  of  a  criminal  case. 
The  court  has  a  duty  to  develop  truth  without  partiality,  and 
may  examine  a  witness  as  his  discretion  dictates,  although  this 
practice  should  be  discouraged.35  Such  questions  have,  how- 
ever, been  repeatedly  held  proper.36  Questions  propounded  by 
the  court  are  subject  to  the  same  legal  objection  as  any  ques- 
tions of  counsel.37  It  would  be  difficult  and  perhaps  tainted 
with  a  shade  of  discourtesy  to  interrupt  a  judge  by  interposing 
objections,  and  although  objections  should  be  made  in  all  cases 
before  the  answer  is  given,  it  seems  that  the  Courts  of  Appeal 
are  inclined  more  readily  to  strike  out  testimony  where  im- 
proper questions  were  asked  by  the  court  and  the  objection 
came  late  if  at  all. 

The  court  has  a  right  in  civil  cases  to  order  a  party  to  testify 
in  a  case  first  before  producing  his  witnesses,  and  on  his  re- 

28— Riggs  v.  Sterling,  60  Mich.  34— Dunn  v.  State,  99  Ga.  211, 
643,  27   N.  W.   705.  25  S.  E.  448. 

29-White    v.    Herman,    51    111.         35_Fager  y<  state>  22  Neb    332) 

243'  35    N.    W.    195. 

30— Williams  v.  McKee,  98  Tenn. 

139,  38   S.  W.  730.  36 — Hauffman  v.  Cauble,  86  Ind. 

31— Mergentheim    v.    State,  107     591:   Sessions  v.  Rice,  70  Iowa  306, 

Ind.    567,    8   N.   E.   568.  30   N-   w-   735!    state  v-   Marshall, 

32— Friess    v.    N.    Y.    Cent.  Ry.     105  Iowa  42>  74  N.  W.    763. 

Co.,  67  Hun.  205.  37— People  v.   Lacoste,   37  N.   Y. 

33— Com.  v.  Certain  Intoxicating  196;  Sparks  v.  State,  59  Ala.  82. 
Liquors,  132  Mass.   36. 


§88.]  POWERS   OF   COURT   DURING   TRIAL.  71 

fusal  may  exclude  him.  It  is  error  for  the  court  to  speak 
either  too  favorably  to  a  witness  or  on  the  other  hand,  so 
harshly,  as  to  prejudice  the  jury,  and  it  is  improper  to  conduct 
himself  towards  any  witness  in  such  manner  as  to  leave  an  im- 
pression upon  the  jury  as  to  the  court's  opinion  of  his  credi- 
bility. 

The  court  should  not  use  offensive  language  to  counsel,  so 
as  to  prejudice  him  before  the  jury,37a  and  where  a  judge  in 
passing  on  evidence  criticised  the  conduct  of  the  counsel  for 
proposing  such  evidence  it  was  held  error.38  So  also  a  refusal 
of  the  court  to  hear  counsel  when  they  were  endeavoring 
courteously  to  explain  their  motions  or  requests.39  A  reflection 
by  the  court  on  the  ability  or  capacity  or  memory  of  counsel 
is  held  to  be  improper.40  An  interruption  of  counsel  by  the 
court  directing  him  to  make  haste  in  his  argument  so  that 
it  caused  him  to  break  down  and  to  omit  part  of  his  intended 
argument,  is  held  to  be  a  matter  requiring  reversal. 

The  judge  must  check  all  undue  demonstration  in  court  by 
the  audience  or  others,  such  as  applause  or  hisses,  by  repri- 
mand, and  upon  its  continuance,  or,  in  severe  cases  have  the 
offenders  summarily  arrested  and  fined  for  contempt.  He 
should  check  all  abusive  language  or  offensive  personalities  to 
itself  by  fining  the  guilty  party  for  contempt.  The  use  of 
insulting  and  improper  remarks  by  an  attorney  about  a  witness, 
especially  in  a  criminal  case,  is  an  abuse  of  privilege  and 
should  be  reprimanded  by  the  court.41  The  reasonable  discre- 
tion of  the  court,  however,  should  be  used  in  determining  when 
an  attorney  steps  over  the  just  bounds  in  the  language  he 
employs.42  An  attorney  should  not  be  permitted  to  interrupt 
the  reading  of  instructions  to  the  jury  in  order  to  discuss  or 
argue  the  law  with  the  court.43 

§  88.  Same  Subject,  Continued.  Jurymen  are  watchful  of 
the  actions  of  the  court  and  attach  great  importance  to  his 
words  and  are  exceedingly  quick  to  draw  conclusions  as  to 
what  he  thinks  about  the  case  or  to  which  side  the  judge  may 
lean,  and  for  this  reason  great  care  should  be  exercised  by 

37a— Walker  v.  Coleman,  55  Kan.  Wheeler  v.  Wallace,  53  Mich.  355, 

381,  40  Pac.  640.  19  N.  W.  33,  37. 

38— House    v.    State,    42    Texas  41— People  v.    Beilfus,   59   Mich. 

Crim.  App.  125,  57  S.  W.  825.  576,   26   N.  W.    771. 

39— Hine  v.   Bay  City  Cons.  Ry.  42— State    v.    Hatfield,    75    Iowa 

Co.,   115   Mich.   204,  73   N.   W.   116.  596,    39    N.    W.    910. 

40 — Walker   v.    Coleman,   supra;  43 — Novack  v.  Mich.  Cent.  R.  R., 

63  Mich.   121,   29  N.  W.   525. 


72  INSTRUCTIONS    TO    JURIES.  [§89. 

the  court.44  In  fact,  a  remark  made  by  the  judge  in  the  pres- 
ence of  the  jury  may  be  and  usually  is  equivalent  to  an  in- 
struction.45 Remarks  made  by  the  court  which,  if  they  were 
put  in  the  instructions  would  be  error  in  the  case,  are  sufficient 
to  reverse.46  An  expression  of  impatience  at  the  waste  of 
time  made  to  one  of  the  counsel  in  the  conduct  of  the  case 
is  held  to  be  error,47  and  the  remarks  of  the  court  to  an 
attorney  on  the  too  frequent  use  of  objections  was  held  to 
be  improper.48  The  court  should  not  express  an  opinion  on 
the  facts  in  any  way,  nor  on  the  credibility  of  a  witness  or  the 
weight  of  the  testimony  in  a  case.  It  is  as  dangerous  if  not 
more  so,  for  a  judge  to  convey  his  thoughts  by  conduct  or 
mannerisms  as  it  is  by  words,  and  it  certainly  is  far  more 
harmful  and  difficult  for  the  party  to  correct  the  same  by  an 
appeal.  So  also  it  is  held  to  be  error  for  a  judge  to  endorse 
a  witness's  respectability  by  remarks  or  otherwise  and,  espe- 
cially so,  where  the  character  of  the  witness  is  attacked.49 
Asking  questions  of  a  witness  in  a  suspicious  way  so  as  to 
lead  the  jury  to  think  that  the  court  held  an  idea  that  the 
witness  was  influenced  by  a  party  or  was  untruthful,  is  held 
erroneous.50 

§  89.  Same  Subject,  Continued.  Many  matters  which  the 
court  may  do  properly  may  be  improper  when  done  in  the 
presence  of  a  jury  such  as,  arresting  a  witness  for  perjury 
or  committing  him  to  jail  in  the  presence  of  the  jury  when 
he  has  just  testified.51  The  contrary  of  this  last  has  been 
held  in  New  York,52  although  it  would  unquestionably  seem 
to  be  the  better  rule  that  such  actions  of  the  court  should 
take  place  out  of  the  presence  of  the  jury  as  far  as  it  is  pos- 
sible so  to  do.53     The  court  should  never  make  any  remarks 

44— State  v.   Allen,   100   Iowa   7,  48— State  v.  Brown,  100  Iowa  50, 

69    N.    W.    274;    Chicago    City   Ry.  69  N.  W.  277;  State  v.  Musick,  101 

Co.    v.    McLaughlin,    146    111.    353,  Mo.  260,  14  S.  W.  212. 

34  N.  E.  796.  49— McMinn  v.  Whelan,   27   Cal. 

45— Minthon   v.   Lewis,    78    Iowa  300. 

620,    43    N.    W.    465;     Sullivan    v.  50— State  v.   Allen,   100   Iowa   7, 

People,  31  Mich.  1.  69  N.  W.  274. 

46— State    v.    Philpot,    97    Iowa  51— Burke  v.  State,  66  Ga.  157. 

365,  66  N.  W.  730;   Valley  Lumber  52— People   v.   Hayes,  140'  N.  Y. 

Co.  v.   Smith,   71   Wis.   304,   37   N.  484,    35    N.    E.    951,    23    L.    R.    A. 

W.   412.  830. 

47— Anglo-Am.    Packing    Co.    v.  53— Golden    v.    State,    75    Miss. 

Baier,    31    111.    App.    653;    State   v.  130,   21   So.  971. 
Pratt,  121   Mo.  566,    26   S.  W.  556. 


§90.1  POWERS  OF  COURT  DURING  TRIAL.  73 

to  the  defendant  in  court  in  a  criminal  case  that  would  in  the 
least  affect  his  credit  with  the  jury.54 

The  court  has  a  discretion  in  allowing  the  latitude  which 
counsel  may  use  in  their  statements  to  the  jury,  and  where 
counsel  in  his  argument  misstates  the  evidence  grossly,  the 
court  may  stop  the  remarks  and  correct  the  statement.55  The 
statements,  however,  of  counsel  for  either  side  should  not  be 
considered  as  serious  which  are  mere  exaggerations  and  which, 
although  not  wholly  supported,  have  some  ground  for  a  basis 
in  the  evidence  either  directly  or  by  way  of  inference.  While 
an  attorney  is  an  officer  of  court  and  as  such  should  be  re- 
spectful and  considerate  in  his  conduct  and  address  to  the 
court,56  the  court  should  be  as  careful  of  his  manner  towards 
an  attorney  or  it  may  be  cause  for  reversal  when  such  conduct 
would  disparage  the  attorney  or  tend  to  prejudice  the  jury 
against  him.57 

Remarks  of  court  that  the  case  was  not  of  great  importance 
or  that  too  much  time  was  being  consumed  and  asking  the 
witness  to  answer  quickly  was  held  to  be  error,  although  in 
that  case  subsequent  remarks  of  the  court  to  the  jury  were 
held  sufficient  to  cure  the  error  committed.58 

§  90.  Power  of  Court  to  Exclude  Witnesses.  The  number 
of  witnesses  on  a  single  point  may  be  and  usually  is  limited,59 
but  where  the  number  selected  contains  one  who  is  incompetent, 
another  cannot  be  substituted  in  his  place.  The  court  has 
the  power  to  exclude  the  witnesses  at  its  discretion  during 
the  taking  of  testimony  when  it  is  deemed  essential  to  the 
discovery  of  truth.00  The  judge  has  sole  discretion  in  the 
matter  of  excluding  witnesses,01  but  this  discretion  should  not 
be  arbitrary  or  prejudicial  to  the  parties.02  It  is  held  in  Texas 
that  this  is  not  a  matter  for  the  discretion  of  the  judge,  but 

54— Newberry  v.    State,    26   Fla.  58— Crowell  v.  McGoon,  106  Iowa 

334,  8  So.  445;  Perry  v.  State,  102  266,  76  N.  W.   672. 

Ga.  365,   30   S.  E.   903.  59— State  v.   Beabout,   69  N.  W. 

55— Com.    v.    Walsh,    162    Mass.  429,  100  Iowa  155. 

242,    38    N.    E.    436;     Pritchett    v.  60— Greenleaf  on  Evidence,  Sec. 

State,  92  Ga.   65,  18   S.  E.  536.  432. 

56— Goldstein  v.  State,  23  S.  W.  61— People  v.  Machem,  101  Mich. 

686.  400,    59    N.    W.    664;     Hubbel    v. 

57— Williams  v.  West  Bay  City,  Ream,   31   Iowa   289. 

119    Mich.    395,    78    N.    W.    326;  62— Mcintosh    v.     Mcintosh,     79 

Wheeler  v.  Wallace,  53  Mich.  355,  Mich.   198,    44   N.   W.   592. 
19  N.  W.  33,  37. 


74  INSTRUCTIONS    TO    JURIES.  [$91. 

that  the  witnesses  must  be  excluded  when  required  by  the 
parties  or  the  case  will  be  reversed.63  The  object  of  the  ex- 
clusion of  witnesses  is  to  prevent  the  testimony  of  some  of  the 
witnesses  from  influencing  others,  as  well  as  prevent  collusion, 
but  it  does  not  operate  in  any  sense  to  forbid  attorneys  in 
the  case  to  talk  to  the  witnesses.04  It  is  better,  however,  and 
productive  of  less  error,  for  the  attorneys  where  such  a  rule 
is  enforced,  to  ask  the  court  for  permission  to  speak  to  the 
witnesses.05  The  penalty  which  may  be  imposed  for  dis- 
obedience is  discretionary  with  the  court.  It  may  not  be, 
however,  the  utter  exclusion  of  the  witness  from  testifying 
if  he  disobeys  the  order,  excepting  where  the  party  calling  him 
has  connived  thereat.06  It  is  of  course  a  proper  matter  for 
recognition  as  a  contempt  and  punishable  accordingly. 

§  91.  Remarks  by  Court  Indicating  His  Opinion  of  Facts 
Calculated  to  Influence  the  Jury.  It  is  not  proper  for  a  court 
to  make  remarks  in  the  hearing  of  a  jury  calculated  to  influ- 
ence their  finding.67  The  judge  should  not  invade  the  province 
of  the  jury  by  intimating  his  opinion  on  the  facts.  To  do  this 
directly,  especially,  where  there  is  any  conflict  of  evidence  at 
all  upon  which  the  jury  must  pass,  would  be  error,  and  if  this 
cannot  be  done  directly  it  certainly  cannot  be  done  indirectly 
or  by  innuendo.  To  afterwards  state  to  the  jury  that  they  are 
independent  of  the  court  in  passing  on  matters  of  fact  would 
not  be  sufficient  to  obviate  this  error  no  matter  how  clearly 
and  distinctly  it  may  be  stated.68 

The  judge  should  refrain  from  any  act  or  remarks  that 
might  be  construed  as  beyond  his  power  or  as  invading  the 
province  of  the  jury.  For  this  reason  it  was  held  error  for 
the  court  to  answer  either  affirmatively  or  negatively  a  ques- 
tion put  by  the  jury  as  follows,  "If  we  bring  in  a  verdict  of 
guilty  can  we  depend  on  the  clemency  of  the  court?"  for  the 
reason  that  the  answer  would  tend  to  influence  the  jury  either 
for  or  against  the  defendant.69 

If  the  statement  made  by  the  court  indicates  to  the  jury 

63— Watts  v.   State,  56   Tex.   54.  Wannack    v.    Mayer,    etc.,    53    Ga. 

64— Allen  v.  State,  61  Miss.  627.  162;    Hasbrouck  v.   Milwaukee,   21 

65— Davis  v.  State,  6  Tex.  App.  Wis.  217. 

196.  68— State  v.  Ah  Tong,  7  Nev.  148. 

66— State  v.  Gesell,  124  Mo.  531,  69— State  v.  Kiefer,  16  S.  D.  190, 

27  S.  W.  1101.  91  N.  W.   1117;    McBean  v.   State, 

67— Skelly  v.  Boland,  78  111.  438;  83  Wis.  206,  53  N.  W.  497. 
Furhman  v.  Huntsville,  54  Ala.  263; 


§92.]  POWERS   OF  COURT   DURING  TRIAL.  75 

the  belief  of  the  judge  on  a  material  fact  prejudicial  to  the 
defendant  in  a  criminal  case,  it  is  a  ground  for  reversal.  Even 
if  considered  as  a  mere  interrogatory,  it  is  equally  erroneous 
where  it  is  so  leading  and  suggestive  in  character  that  had  it 
been  asked  by  the  attorney  for  the  state,  it  should  have  been 
stricken  out  on  objection.70 

§  92.  Conduct  of  Trial  Judge  Not  to  Be  Too  Closely  Scru- 
tinized. The  general  usage  and  powers  incident  to  the  office 
of  a  presiding  judge  as  elsewhere  outlined,  should  not  be 
overlooked  in  deciding  whether  or  not  a  judge  has  stepped 
beyond  the  proper  bounds  of  his  authority.  The  proper  pro- 
tection of  witnesses  against  conduct  of  opposing  attorneys 
or  protection  of  parties  against  the  improper  conduct  of  a 
hostile  and  biased  opposing  witnesses;  superintending  of  an 
orderly  trial  to  economize  time ;  using  of  proper  means  to 
bring  to  light  such  information  as  justice  and  truth  may  re- 
quire. These  are  all  the  great  guiding  principles  in  the  con- 
duct of  a  trial  judge.  It  is  not  every  slight  mistake  or  lack 
of  judgment  that  will  constitute  error  on  part  of  the  judge, 
for  perfection  is  not  expected.  For  this  reason  the  remarks 
of  a  trial  judge  even  in  a  criminal  case  should  not  be  too  closely 
scrutinized.71 

Where  remarks  of  the  court  are  addressed  to  the  jury  upon 
matters  material  to  the  issues  and  not  merely  upon  conduct 
of  the  trial,  adjournment  and  other  similar  matters,  they 
violate  the  requirements  of  the  statutes  providing  for  instruc- 
tions to  be  in  writing.  Where  the  remarks  are  not  addressed 
directly  to  the  jury,  however,  it  would  be  considered  other- 
wise.72 

So  also  remarks  of  the  trial  judge  merely  criticising  the 
practice  in  vogue  with  reference  to  instructing  jurors  are  not 
considered  a  ground  for  reversal.  But  where  the  jury  per- 
ceives the  bent  of  the  court's  mind  upon  the  issues  involved, 
so  that  it  prejudices  their  minds  against  parties  or  their  at- 
torneys on  either  side,  thereby  depriving  them  of  a  fair  trial, 
it  would  be  most  clearly  error  sufficient  to  reverse  the  case.73 
A  remark  made  by  the  court  as  follows:  "I  prefer  that  if 
there  is  any  stealing  to  be  done  on  technicalities,  that  the 

70— Cunningham  v.  People,  195  72 — Illinois  Cent.  R.  Co.  v.  Sou- 
Ill.  550,  63  N.  E.  517.  ders,  79  111.  App.  41. 

71— Featherstone  v.  People,  194  73— Schintz  v.  People,  178  111. 
111.  325,  62  N.  E.  684.  327,  52  N.  E.  903. 


76 


INSTRUCTIONS    TO    JURIES. 


§93. 


Supreme  Court  say  so,"  was  held  to  be  error,  although  the 
court  endeavored  to  cure  it  later  by  an  instruction.  The  re- 
mark indicated  the  court  did  not  propose  to  assist  the  party 
in  committing  larceny  unless  the  Supreme  Court  so  directed.74 

§  93.  Remarks  of  Court  to  Jury  on  Expense  of  Trial  and 
Necessity  of  Agreeing.  Remarks  by  court  to  jury  touching 
public  necessity  of  their  agreeing,  or  other 'remarks  calculated 
to  hasten  their  verdict,  however  well  meant,  is  a  practice  that 
cannot  be  sustained  and  is  unwarranted  by  law,  and  if  made 
in  a  case  where  the  facts  are  sharply  contested  would  vitiate 
the  verdict.75 

Contra:  Where  a  jury,  after  being  out  five  hours,  returned 
into  court  and  announced  their  inability  to  agree  upon  a  ver- 
dict, instructions  upon  their  duty  as  to  reconciling  their  views 
and  arriving  at  a  verdict,  if  consistent  with  their  consciences, 
rather  than  that  the  parties  should  be  put  to  the  trouble  and 
expense  of  trying  the  case  again,  nothing  being  said  to  the 
prejudice  of  either  party,  are  held  not  erroneous.76 


74 — Kramer  v.  N.  W.  Elevator 
Co.,  91  Minn.  346,  98  N.  W.  96. 

75 — Farnha|m  v.  Farnham,  73 
111.    497. 

76— Pierce  v.  Rehfuss,  35  Mich. 
53;    Allen  v.  Woodson,   50   Ga.   53. 

In  People  v.  Miles,  143  Cal. 
636,  77  Pac.  666,  667,  the  trial 
court  said:  "It  costs  sev- 
eral hundred  dollars  to  get  a 
jury  together  to  try  a  criminal 
case.  It  is  an  expensive  matter. 
If  there  is  a  mistrial  in  a  crim- 
inal case,  the  district  attorney 
may  bring  it  on  for  trial  again, 
and  a  great  expense  attaches  to 
the  trial  of  such  cases.  *  *  * 
If  you  think  there  is  any  pos- 
sibility of  arriving  at  a  verdict 
and  thus  saving  the  county  the 
expense  of  a  retrial,  I  am  willing 
to  read  the  instructions  to  you 
again.  *  *  *  It  will  save  a 
good  deal  of  expense  if  this  case 
can  be  finally  determined  by  this 
jury,  but,  as  I  said  before,  I  have 


no  desire  to  force  you  to  retire 
again  to  the  jury  room  if  there 
is  no  possibility  of  your  arriving 
at  a  verdict.  *  *  *  You  are 
all  taxpayers — you  would  not  b? 
in  the  jury  box  if  you  were  not 
all  on  the  assessment  roll  of  the 
county — and  it  should  be  your  de- 
sire more  than  that  of  any  others 
that  the  county  should  be  saved 
as  much  expense  as  possible.  All 
I  want  to  know  is  whether  there 
is  a  probability  of  your  arriving 
at  a  verdict  as  to  both  of  the  de- 
fendants or  as  to  one  of  them. 
You  must  arrive  at  a  verdict,  if 
you  do  at  all,  solely  from  the  evi- 
dence and  the  instructions  given 
you,  not  from  any  convenience  to 
any  of  you,  or  any  inconvenience 
to  any  of  you  by  reason  of  being 
kept  in  the  jury  room." 

In  commenting  on  this  the 
Supreme  Court  said:  "No  intima- 
tion whatever  was  given  as  to 
how   the   court   regarded   the   evi- 


94.] 


POWERS  OP  COURT  DURING  TRIAL. 


77 


§  94.    Undue  Interference  by  Court  During  the  Trial.    The 

trial  in  an  American  court  cannot  go  too  far  from  the  vicious 
and  cruel  travesty  known  as  a  trial  in  one  of  the  courts  of 
France.  A  judge  is  there  furnished  with  what  is  known  as 
a  "Process  Verbal,"  an  instrument  drawn  up  by  a  court  of- 


dence;    its  whole   purpose  was  to 
require  a  reasonable  effort  on  the 
part  of  the  jury  to  come  to  some 
conclusion    one    way    or    another, 
and  not  cause  a  mistrial.     In   re- 
minding the   jury   of  the  expense 
of   the   trial,   and   the   desirability 
to  them,  as  taxpayers,  of  avoiding 
a   repetition    of    this    expense,    he 
was  saying  no  more  to  them  than 
they,  as  taxpayers  and  intelligent 
men,   must   be   presumed   to   have 
known  without  being  told  by  the 
court.      In    Niles    v.    Sprague,    13 
Iowa  189,  the  trial  court  told  the 
jury    the     case     had    been    twice 
tried,   and   that   it   was   important 
that     they     should     agree.       The 
appellate    court    said:       'To    this 
action   or   remark  we   can  see   no 
just  ground   of   objection.     If   im- 
proper,  it  was  as  much  so  to  de- 
fendants  as   to    plaintiffs.     But   it 
was    so    to    neither.      It   was    not 
only    right    but    the    duty    of    the 
court   to   remind   the   jury   of  the 
protracted    litigation,    and    of    the 
necessity    on    their    part   to    labor 
honestly   and   faithfully   to   arrive 
at  a  verdict  and  thus  terminate  a 
controversy      which       time      only 
tended    to    make    more    expensive 
and    embittered.      There    was    no 
intimation  as  to  how  they  should 
decide,  but  a  general  remark  that 
they  ought  to  agree  if  they  could 
satisfy   their    minds.'      In    another 
case  the   jury   were   told   the   case 
had    been    long    pending    and    had 
been    exhaustively    tried,    that    a 
new   trial   would   entail   large   ex- 


pense, etc.,  and  in  view  of  these 
facts  they  were  directed  to  return 
to  their  rooms  and  examine  their 
differences  in  a  spirit  of  fairness, 
etc.  The  ^ourt  said:  'But  we 
fail  to  discover  either  error  or 
prejudice  in  any  part  of  it.  What 
the  court  said  was  abundantly 
true,  and  practical,  and  ought  to 
have  occurred  to  the  jury  with- 
out the  necessity  of  having  it  said 
to  them  by  the  court.'  Frandsen 
v.  C.  R.  I.  &  P.  R.  Co.  36  Iowa 
372. 

"These  were  civil  cases,  and 
there  was  no  suggestion  to  the 
jurors  that  the  expense  of  the 
trial  might  fall  upon  them  as  tax- 
payers. We  cannot  see,  however, 
that  this  fact  would  change  the 
reason  for  upholding  the  admoni- 
tion of  the  court.  The  point  is 
that  it  was  proper  for  the  court 
to  urge  the  importance  of  reach- 
ing a  verdict,  and,  as  it  intimated 
no  opinion  of  its  own  or  sug- 
gested how  the  verdict  should  go, 
the  defendants  were  not  preju- 
diced.. Indeed,  the  jury  were 
quite  as  likely  to  find  for  the  de- 
fendants as  for  the  people  under 
such  an  admonition.  Nor  can  we 
say  but  that  the  jury  were  in- 
fluenced by  the  re-reading  of 
some  of  the  testimony,  and  not 
by  the  remarks  of  the  court." 

In  Jessen  v.  Donahue,  4  Neb. 
(Unof.)  838,  96  N.  W.  639  (640- 
1),  the  trial  court  instructed  the 
jury  as  follows:  "You  now  have 
been   deliberating  upon  your  ver- 


78 


INSTRUCTIONS    TO    JURIES. 


[§94. 


ficer  similar  to  an  indictment  in  a  criminal  case,  containing 
the  entire  history  of  the  accused  from  infancy.  The  judge  pro- 
ceeds with  an  inquisitional  examination  of  the  prisoner  based 
upon  this  instrument.  The  examination  is  full  of  low,  brow- 
beating questions,  mixed  with  slurs  and  inuendos,  to  all  of 


diet     for     more     than     29     hours. 
Now,  where  a  jury  finds  difficulty 
in    agreeing,    and    various    jurors 
entertain   different   ideas   concern- 
ing    the    evidence    or    inferences 
and     conclusions     to     be     drawn 
therefrom,  it  is  the   duty  of  each 
juror    to    listen    patiently    to,    and 
consider  the  argument,  of  his  fel- 
low jurors,  with  an  honest  desire 
to  ascertain  the  truth  of  the  mat- 
ters   concerning    which    you     dis- 
agree.     No    juror    should    contend 
for     his     original     ideas     or     con- 
clusions    concerning     matters     of 
'disagreement  after  he  has  become 
convinced    that    his    position    first 
taken     was     wrong.       No     juror 
should   hold   out  through   a  spirit 
of  stubbornness.  Neither  should  a 
juror    permit    the    friendship    or 
admiration,     the     ill     feeling     or 
prejudice,    he    may    entertain    for 
any    counsel    connected    with    the 
case,  to  influence  him. 

"Considerable  time  has  been 
consumed  in  the  trial  of  this 
case.  It  is  not  probable  that 
further  evidence  can  be  furnished 
another  jury  in  the  trial  of  the 
case  if  you  are  finally  discharged 
because  you  cannot  agree  and  the 
case  is  again  tried.  You  are 
probably  in  as  favorable  a  posi- 
tion to  decide  the  case  as  another 
jury  can  be.  I  want  you  to 
realize  that  it  is  your  work  and 
your  duty  to  decide  this  case,  and 
to  decide  it  correctly.  I  hope 
you  will,  on  retiring  to  your 
room,  do  so,  each  with  the  honest, 


conscientious  desire  to  agree  and 
to  return  a  verdict  which  is  jus- 
tified by  the  evidence  and  the 
law,  and  which  will  meet  the  ap- 
probation of  your  own  con- 
science." This  was  approved  on 
appeal. 

In  Kelley  v.  Emery,  75  Mich. 
147,  42  N.  W.  795,  the  trial  court 
said:  "Gentlemen  of  the  jury,  this 
case  has  already  been  tried  once, 
and  the  amount  involved  is  not 
very  large,  and  the  parties  cannot 
afford  to  litigate  forever,  and  the 
county  cannot  afford  to  have  them 
do  it.  You  see  it  takes  some  time 
to  try  the  case,  and  I  hope  you 
will  be  able  to  arrive  at  a  conclu- 
sion and  settle  the  facts  in  the  case 
at  least." 

In  commenting,  the  Supreme 
Court  said:  "It  is  claimed  that 
by  this  charge  the  jury  were 
coerced  into  finding  a  verdict. 
This  statement  by  the  court  could 
not  have  had  any  such  effect.  It 
was  simply  an  admonition  to  the 
jury  to  agree,  if  possible,  upon 
the  facts  of  the  case,  and  one 
which  the  court  might  very  prop- 
erly make.  It  appears  that  the 
case  had  once  been  tried,  and  on 
that  trial  the  jury  failed  to  agree, 
there  being  such  a  conflict  of  tes- 
timony. We  do  not  see  how  this 
portion  of  the  charge  affected  the 
verdict,  or  had  any  influence  in 
favor  of  or  against  either  of  the 
parties.  It  was  important  in  that, 
as  in  other  cases,  that  the  jury 
settle    the    disputed    questions    of 


§95.]  POWERS   OF  COURT  DURING  TRIAL.  79 

which  the  jury  listens.  It  is  a  marvel  any  one  guilty  or  innocent 
could  escape  conviction  under  such  procedure. 

A  judge  may,  with  entire  propriety,  ask  pertinent  questions 
of  counsel  during  examination  of  a  witness,  although  it  in 
effect  puts  the  witness  on  his  guard  by  disclosing  facts  counsel 
did  not  wish  him  to  know.77  The  court  may,  in  proper  in- 
stances, state  his  recollection  of  evidence  to  the  jury,  although 
this  would  seem  to  be  extreme,  and,  in  view  of  the  fact  that 
the  evidence  is  usually  taken  down  by  the  reporter,  would 
seem  to  be  unnecessary.78 

Conduct  of  the  judge  in  conversing  with  a  witness  whether 
in  or  out  of  court,  especially  to  ascertain  his  knowledge  about 
the  case  or  suggesting  to  him  that  he  should  disclose  matters 
more  than  he  had  already  disclosed  on  his  examination  is 
certainly  reprehensible.79 

§  95.  Communications  with  the  Jury  After  Retirement. 
After  the  jury  have  retired  to  deliberate  upon  their  verdict, 
no  communication  should  be  had  between  them  and  any  one 
else  whatever,  whether  it  be  the  court  or  the  officers  in  charge, 
or,  least  of  all,  the  parties.  The  mere  fact,  however,  of  a 
communication,  when  it  is  not  concerned  with  the  case  under 
advisement,  would  not  necessarily  be  prejudicial. 

A  bailiff  in  charge  of  the  jury  should  not  remain  in  the  jury 
room  or  hold  communication  with  the  jury,  and  it  has  been 
held  such  misconduct  as  to  vitiate  the  verdict  for  a  bailiff  to 
remain  in  the  jury  room  all  night  while  the  jury  were  con- 
sidering the  case,  answering  questions  concerning  the  case 
and  even  threatening  to  report  a  juror  to  the  court  and  have 
him  fined  for  declining  to  vote.so    Any  prejudicial  communica- 

fact  arising  on  the  trial;   and  the  for  considering  it,  no  matter  how 

court,      without      intimating      its  much    time    is    required.      Engage 

opinion  of  the  facts  upon  this  part  in  no  discussion  that  will  tend  to 

of  the  case,  advised  the  jury  that  prevent    your    agreeing;     consider 

it   was    for   the    best    interests    of  the    evidence    and    all    the    facts, 

the  parties,  and  would  save  costs  and    reach   a   verdict   if   you   can, 

to  the  county,  if  they  could  in  that  such    as    shall     hereafter    satisfy 

trial   settle  the  facts  in  the  case,  your    individual    consciences,    and 

No    one    could    be    prejudiced    by  the  court  will  be  satisfied." 

this  portion  of  the  charge."  77 — City   Bank   v.    Kent,    57   Ga. 

So,    too,    in    Shaller    v.    Detroit  285. 

United    Railway,    139    Mich.    171,  78— Eddy    v.    Gray     (Mass.),    4 

102  N.   W.    632    (633),   the   follow-  Allen   435. 

ing    remarks    by    the    trial    judge  79 — Sparks  v.  State,  59  Ala.  82. 

were   approved:    "Gentlemen,   take  80 — Heston  v.  Neathammer,  180 

the  case  and  take  your  own  time  111.  150,  54  N.  E.  310. 


80  INSTRUCTIONS    TO    JURIES.  [§96. 

tion  by  a  bailiff  to  the  jury  during  deliberation  is  held  to  war- 
rant a  reversal  of  the  case.81 

It  seems  a  remark  of  the  bailiff  is  not  prejudicial  unless  it 
is  clearly  apparent  from  the  words  themselves  or  when  there 
is  no  design  on  the  part  of  the  officer  to  favor  either  party 
and  where  it  had  no  effect  upon  the  verdict.  A  remark  of  an 
officer  that  "He  did  not  know  but  that  the  jury  would  have 
to  stay  out  until  Saturday  night,"  was  for  the  reason  just 
stated  held  to  be  insufficient  to  reverse  the  case.82  The  judge 
should  not  hold  a  conference  with  jurors  either  collectively 
or  individually,  but  it  was  held  not  misconduct  sufficient  to 
warrant  a  reversal  of  the  case  where  the  presiding  judge  in 
the  presence  of  the  attorneys  for  both  sides,  as  well  as  officers 
of  court,  held  a  conversation  with  the  plaintiff  with  reference 
to  sending  his  son  to  the  institution  of  which  he  was  in  charge 
and  handing  him  his  son's  address  with  a  request  that  a  cata- 
logue be  mailed.83 

§  96.  Communications  between  Court  and  Jury.  Inquiries 
directed  to  the  jury  not  relating  directly  to  the  issues  are  not 
improper,  but  communications  bringing  to  bear  any  influence 
upon  the  jury  especially  while  deliberating  upon  their  verdict 
is  held  error.  The  presiding  judge  may,  however,  inquire 
whether  the  jury  will  be  able  to  reach  a  verdict,  but  not  to 
lead  them  to  think  a  verdict  is  demanded  within  a  limited  time, 
and  it  is  even  held  proper  for  a  court  to  inquire  of  the  jury 
on  what  grounds  a  verdict  was  found.83a 

During  the  deliberations  of  the  jury  a  judge  should  not 
go  to  the  jury  room,  stand  in  the  door  and  answer  questions 
put  by  the  jurors.84  If  the  jury  desire  further  instructions 
they  should  be  brought  into  court  for  that  purpose.85 

§  97.  Display  of  Anger  and  Ridicule  by  Judge.  The  man- 
ner of  intercourse  between  court  and  bar  is  rightly  left  to 
good  sense  and  breeding  which  should  be  characteristic  of 
both.  The  courts  are  not  inclined  to  consider  the  mere  irrita- 
bility and  loss  of  temper  of  the  judge  as  sufficient  to  warrant 
a  reversal  of  the  case,  although  it  certainly  would  seem  to  be 

81 — "Wilkerson  v.  State,  70  Miss.  83a — Lawler  v.  Earle,  5  Mass.  1. 

356.  84— Hurst  v.   Webster  Mfg.   Co., 

82— Leach   v.    Wilbur,    91    Mass.  128  Wis.  342,  107  N.  W.  666. 

212.  85— Martin   v.   Martin,   126  Wis. 

83— Danville  Democrat  Pub.  Co.  237,  105  N.  W.  783. 
v.  McClure,  86  111.  App.  432. 


§97.]  POWERS   OF  COURT  DURING  TRIAL.  81 

as  damaging  in  effect  as  spoken  words  might  be  upon  the 
minds  of  the  jury.  Displays  of  anger  and  severity  amounting 
almost  to  hostility  are  held  not  sufficient  ground  for  a  reversal 
in  the  absence  of  error  in  the  rulings  of  the  court.80 

It  is  held  not  to  be  reversible  error  for  a  trial  court  to  fine 
an  attorney  for  contempt,  even  while  actively  engaged  in  trial 
of  a  case.87  The  remarks,  however,  of  the  trial  judge  made 
upon  the  trial  indicating  disfavor  towards  the  accused  was  con- 
sidered a  good  ground  for  the  reversal.88  So,  also,  remarks 
of  the  trial  judge  as  follows:  "I  say  there  is  evidence  to  show 
guilt,"  was  held  a  good  ground  for  a  new  trial.89  Ridiculing 
of  witnesses  by  the  trial  judge  is  certainly  improper,90  and 
where  during  examination  of  a  witness  the  court  remarked, 
"Evidently,  sir,  this  man  is  making  his  evidence  out  of  whole 
cloth,"  the  court  considered  this  prejudicial  error  as  improper- 
ly discrediting  the  witness.91  Where  the  court  makes  remarks 
concerning  the  respectability  of  any  witness  it  is  error.92 

The  remarks  of  the  court  to  a  witness  concerning  his  falli- 
bility and  liability  to  make  mistakes  was  held  to  be  in  sub- 
stance an  instruction  to  the  jury  upon  a  question  of  fact,  the 
party  being  entitled  to  have  the  jury  pass  upon  this  fact.93 
Parties  to  an  action  are  entitled  to  have  the  jury  pass  upon 
the  evidence  in  the  case  without  having  its  effect  diminished 
or  increased  by  remarks  made  by  the  court   concerning  the 

86 — Reilly  v.  Chgo.  City  R.  Co.,  time    while    attending    as    a    wit- 

90  111.  App.  364.  ness,    also    stating    shortly    after- 

87 — Pinkerton  v.   Sydnor,  87  111.  wards     that     he     was     to     receive 

App.  81.  $2.00  a  day  and  then  again  at  an- 

88— Synon  v.  P.,  188  111.  625,  59  other    time    stated    he    was    to    re- 

N.  E.  508.  ceive    his    wages    and    in    the    evi- 

89 — Feinberg  v.  P.,  174  111.   617,  dence  it  appeared  that  his  wages 

51  N.  E.  798.  was  the  sum   of  $2.00  per  day  at 

90 — Fish    v.    Ryan,    88    111.    App.  the    time    of    the    agreement,    al- 

526.  though  afterwards  they  were  less, 

91— Swenson     v.     Erickson,     90  the  court  remarked,   "that  he  did 

111.  App.  358.  not  see   any   need   of  arguing   the 

92 — McMinn  v.  Whelan,   27   Cal.  case   very    long   with   the   witness. 

300.  He  says  one  tning  one  minute  and 

93— State  v.  Tickel,  13  Nev.  502;  another  thing  the   next."     It   was 

People  v.  Bonds,  1  Nev.  33.  held  these  remarks  were  improper 

Where   a   witness   for   defendant  and    constituted    reversible    error, 

made    some    apparently    inconsist-  Chicago   City   Ry.   Co.    v.    Wall   93 

ent    statements    to    the    effect    he  111.  App.  411. 
was    to    be    paid    for    his    loss    of 
6 


82  INSTRUCTIONS    TO    JURIES.  [§98. 

evidence  either  to  the  jury,  witnesses,  or  counsel,  and  such 
conduct  would  constitute  reversible  error,  providing  it  tended 
apparently  to  influence  the  jury  in  their  verdict.'-'4 

A  judge  necessarily  possesses  considerable  power  in  presid- 
ing over  the  trial,  but  great  care  should  be  taken  that  in  the 
exercise  of  this  power  he  does  not  indicate  a  bias  for  or  against 
either  party  so  as  to  influence  the  jury  or  create  an  impression 
that  the  court  is  taking  sides  one  way  or  the  other.95 

The  propriety  of  the  conduct  or  misconduct  of  the  judge 
in  making  prejudicial  remarks  should  be  excepted  to  at  once 
in  order  to  be  considered  by  the  appellate  courts.90 

§98.    Admonishing  Jury  as  to  Conduct  During  Separation. 

The  court  may  and  should  admonish  the  jurors  during  their 
impanelment,  as  well  as  during  the  trial  of  the  case,  whenever 
they  are  allowed  to  separate,  to  refrain  from  talking  with  any 
one  about  the  case,  or  to  allow  any  one  to  talk  to  them  about 
it  in  their  presence  and  hearing,  and  to  go  away  from  all  such 
persons  and  to  remind  them  that  they  are  jurors  and  if  they 
do  not  then  desist,  to  report  them  to  the  court,  and  to  refrain 
as  far  as  possible  from  reading  any  newspaper  accounts  or 
comments  upon  the  case  in  which  they  are  impaneled  as  jurors. 
Disregard  of  this  admonition  would  tend  to  prejudice  the  mind 
of  a  juror,  provided  what  he  heard,  or  read,  was  of  a  nature 
calculated  to  affect  the  mind,  and  would  amount  to  such  mis- 
conduct on  the  juror's  part  as  to  warrant  granting  of  a  new 
trial  if  demanded. 

§99.  Separation  of  Jury  Constituting  Error.  An  adjourn- 
ment from  day  to  day  is  an  unquestioned  right  which  the  court 
has  on  the  ground  of  necessity,  but  this  does  not  permit  the 
jurors  to  disperse.  Under  the  ancient  common  law,  trials  lasted 
but  for  a  single  day  and  there  was  no  necessity  for  any  con- 
tinuance. The  power  of  the  court  to  order  a  continuance  was 
denied,  but  in  modern  times,  trials  being  protracted  over  days 
and  even  weeks,  an  adjournment  from  day  to  day  for  rest 
and  refreshment  is  an  absolute  necessity,  the  court  giving  the 
jury  such  rules  and  instructions  regarding  their  conduct  as  to 
prevent  prejudice  resulting  to  the  parties.     The  jurors  were 

94— McDuff    v.    Detroit    Evening  96— Mulliner  v.  Bronson,  114  111. 

Journal,  84  Mich.  1,  47  N.  W.  671;  510,  2  N.  E.  671;  Hall  v.  First  Nat. 

Kane  v.  Kinnare,  69  111.  App.  81.  Bank  of  Emporia,  133  111.   234,  24 

95— Looney    v.     People,     81     111.  N.  E.  546;  Voss  v.  Waukashaw,  90 

App.  370.  Wis.  337,  60  N.  W.  280. 


§100.]  POWERS   OF   COURT  DURING  TRIAL.  83 

formerly  forbidden  to  separate  or  to  mingle  and  converse  with 
the  public.  They  were,  in  fact,  kept  as  prisoners,  but  great 
liberality  now  exists  in  this  respect;  care  being  taken  to  avoid 
any  conduct  of  the  jury,  or  the  members  thereof,  prejudicial 
to  the  parties. 

Separation  alone  is  of  itself  not  usually  considered  a  suffi- 
cient ground  for  a  new  trial,  except  in  capital  cases.  In  some 
states  it  is  considered  sufficient  ground  for  reversal  in  all 
felony  cases  unless  it  appears  that  no  prejudice  resulted  by 
reason  thereof.  A  mere  unexplained  separation  in  cases  where 
the  usual  practice  and  the  law  requires  the  jury  to  be  kept 
together  would  raise  such  a  presumption  against  the  verdict 
as  to  call  for  a  new  trial.97 

These  strict  rules  do  not  apply  in  civil  cases  generally,  except 
where  the  separation  takes  place  after  the  charge  to  the  jury 
and  their  retirement  for  deliberation.  Even  then  it  has  been 
considered  proper  for  the  judge  to  allow  the  jury,  before 
making  up  their  verdict,  to  separate  for  rest  and  refreshment 
in  cases  where  the  deliberation  is  long  and  protracted.98 

§  100.  Separation,  when  a  Matter  of  Discretion  with  the 
Court.  In  cases  involving  a  misdemeanor  it  is  a  matter  of 
discretion  with  the  court  to  allow  the  jury  to  separate  before 
verdict.  The  court  must  decide  if  a  separation  would  be 
detrimental,  and  having  decided  that  it  would  be  so,  a  new 
trial  would  be  given  if  the  jury  separated  contrary  to  the  order 
of  the  court.  But  in  none  of  these  cases  would  a  separation 
be  considered  of  material  consequence  if  no  misconduct  or 
prejudicial  matter  transpired  at  all.99 

§  101.  When  Separation  Will  Warrant  Granting  of  New 
Trial.  It  is  a  general  rule  that  the  mere  separation  or  dis- 
persal of  a  jury  without  consent  of  parties  is  a  ground  for 

97 — Adams     v.     People,     47     111  for  a  juror  in  company  with  the 

376;    Reins  v.   People,   30   111.   256,  bailiff  to  go  to  an  adjoining  room 

83  Am.  Dec.  186;  Stutsman  v.  Bar-  and    telephone    some    instructions 

ringer,  16  Ind.  363.  to     one     of     his     employees.       He 

98 — Stancell   v.   Keenan,   33   Ga.  talked   with  no  other  person   and 

56.  the    bailiff    was    with    him    during 

In    W.    Chicago    St.    Ry.    Co.    v.  all    of    the    time.      Such    conduct 

Lundahl,     82     111.    App.     553,     the  having  in  no  way  prejudiced  the 

court   held   that   a   temporary   ab-  party,   could  not  be  taken  advan- 

sence   of  a  juror  from   his  fellow  tage  of  as  error, 
jurors    is   not   necessarily   prejudi-         99 — Davis  v.   State,   35   Ind.  496, 

cial.     It  was  held  not  to  be  error  9  Am.  Rep.  760. 


84  INSTRUCTIONS    TO    JURIES.  [§  101. 

new  trial,  and  in  a  criminal  case,  even  with  consent  of  de- 
fendant. The  courts  have  gone  so  far  as  to  hold  that  a  separa- 
tion of  the  jury  during  their  deliberation  was  of  little  im- 
portance and  a  new  trial  refused  even  where  one  of  the  jurors 
went  home  to  do  some  work  while  a  committee  of  the  jury 
were  busy  investigating  the  controversy ;  but  this  is  an  ex- 
treme case  and  apparently  not  a  precedent  that  would  be 
likely  to  be  followed.100  It  is  a  grievance  to  subject  a  party 
to  a  new  trial  on  the  ground  of  misconduct  of  the  jury  and 
is  not  done  unless  it  is  reasonably  clear  that  the  opposing 
party  has  been  prejudiced  by  such  misconduct.  The  abscond- 
ing of  a  juror  has  been  held  to  result  in  a  new  trial,  for  a 
juror  cannot  by  his  own  act  and  misconduct  work  a  discharge 
of  the  defendant. 

It  is  a  general  rule  that  the  separation  of  a  jury  without 
consent  of  parties  is  ground  for  a  new  trial,  excepting  in 
the  absence  of  prejudice.  In  criminal  cases  the  consent  of 
the  defendant  has  been  held  immaterial.  Consent  is  always 
a  release  of  errors  whenever  the  jury  separates  by  consent, 
but  this  can  only  be  where  the  parties  are  free  to  consent,  and 
under  no  restraint  or  fear.  This  is  not  so  in  criminal  cases, 
for  it  is  obvious  that  the  refusal  of  a  prisoner  to  agree  to  a 
separation  of  the  jury,  might  prejudice  him  with  the  jury. 
Where,  however,  the  defendant  of  his  own  accord,  voluntarily 
asks  for  a  separation  of  the  jury,  and  there  is  no  solicitation, 
it  would  be  entirely  different  and  his  consent  would  be  valid.1 

100— Edrington  v.  Kiger,  4  Tex.  1— Stephens  v.  People,  19  N.  Y. 
89.  549. 


CHAPTER   VIII. 

EXAMINATION  OF  WITNESSES  AND  INTRODUCTION 
OF  EVIDENCE. 


§  102.  Control  of  court  over  exam- 
ination of  witnesses. 

§  103.  Admission  of  evidence  by 
the  court. 

§  104.  Withdrawal   of   evidence. 

§  105.  Order  of  introducing  evi- 
dence within  court's  dis- 
cretion. 

§  106.  What  evidence  should  be  in- 
troduced  on   the   direct. 

§  107.  Evidence  introduced  piece- 
meal— Duty  to  show  rel- 
evancy. 

§  108.  Evidence  admitted  provi- 
sionally. 

§  109.  Further  testimony  after  the 
close  of  the  case. 

§  110.  What  evidence  the  jury 
may   consider. 

§  111.  Previous  disclosures  of  evi- 
dence discussed. 

§  112.  Inspection   of  documents. 

§  113.  List  of  witnesses  and  copy 
of  indictment  furnished 
accused.  Rule  as  to  sub- 
sequently discovered  wit- 
nesses. 

§  114.  Presence    of    witnesses. 

§  115.  Oaths  or  affirmations  of  wit- 
nesses. 


§  116.  Copy  of  former  testimony  of 
witnesses,  when  admis- 
sible. 

§  117.  Showing  required  to  admit 
former  testimony. 

§  118.  Admissibility  of  former  tes- 
timony. 

§  119.  Pleadings  considered  as  ad- 
missions. 

§  120.  Pleadings    of    the    party    as 

evidence. 
§  121.  Conduct  of  attorneys,  court 

or  parties  as  evidence  for 

the  jury. 
§  122.  Appearance   and   conduct  of 

witnesses  as  evidence. 
§  123.  Experiments,        photographs 

and   like  evidence. 
§  124.  Obtaining    information    out- 
side  of    court    during   the 

trial. 
§  125.  Voluntary  efforts  of  the  jury 

to  secure  evidence. 
§  126.  Expert   testimony. 
§  127.  Hypothetical    questions. 
§  128.  Scientific  and  medical  books 

as    evidence.      Reading   of 

books  to  the  jury. 


§  102.  Control  of  Court  over  Examination  of  Witnesses. 
The  trial  court  has  full  control  over  the  method  and  manner 
of  counsel  in  the  examination  of  witnesses,  may  arrest  an  ex- 
amination which  is  needlessly  extended,1   and  may  refuse  to 

1— State  v.  Miller,  93  Mo.  263,  6     S.  W.  57. 

85 


86  INSTRUCTIONS    TO    JURIES.  [§  103. 

allow  counsel  to  go  over  matters  which  have  already  been  gone 
over  sufficiently.2 

The  court  should  protect  a  witness  from  uncalled  for  abuse 
and  any  personal  conflict  between  the  witness  and  counsel 
should  be  prevented.3  Such  methods  in  maintaining  order  and 
decorum  should  be  adopted  that  a  witness  may  have  a  fair 
show  in  stating  his  testimony  in  such  manner  that  the  mean- 
ing he  intends  to  convey  may  be  apparent;  for  this  reason  a 
continued  interruption  of  testimony  by  counsel  may  be 
stopped.4 

Indecent  questions  should  not  be  put  to  a  young  child,5  and 
vulgar  words,  although  the  exact  words  called  for  by  the 
question,  need  not  be  given  by  a  witness  when  the  truth  and 
meaning  thereof  can  be  as  easily  given  in  other  languages.6 
Conduct  of  counsel  in  insinuating  in  questions  he  asks  that 
the  witness  has  the  character  of  a  spy  or  an  informer  is  im- 
proper  and  should  not  be  allowed.7  Likewise,  asking  of  ques- 
tions upon  cross-examination  for  the  purpose  of  showing 
wealth  of  the  party,  is  ground  for  a  new  trial  if  it  resulted  in 
prejudice.  Language  which  conveys  an  intimation  of  an  at- 
tempt to  settle  having  been  made  by  one  of  the  parties  is  im- 
proper in  questions  asked  of  witnesses.8 

§  103.  Admission  of  Evidence  by  the  Court.  The  admis- 
sion of  evidence,  whether  in  chief  or  rebuttal,  is  within  the 
court's  discretion.9  The  court  may  admit  evidence  out  of  its 
regular  order  as  it  may  deem  best,10  and  evidence  has  been  al- 
lowed to  be  put  in  even  after  the  argument  has  begun.11  It  is 
within  the  power  of  the  court  to  say  when  evidence  is  offered 
too  late  in  the  case.12  Greater  latitude  is  allowed  in  equity 
cases  than  in  common  law  actions  triable  by  jury  and  further 

2— State  v.  Brown,  100  la.  50,  69  8— Gundlach    v.    Schott,    95    111. 

N.  W.  277;   People  v.  Harrison,  93  App.    119. 

Mich.   594,  53  N.  W.  725;   Buck  v.  9— Eckhart    v.    People,    116    111. 

Maddock,  167  111.  219,  47  N.  E.  208.  App.  408;  Louisville  &  N.  R.  Co.  v. 

3— Baldwin    v.    St.    Louis,    K.    &  Board,  28  Ky.  L.  Rep.  921,  90  S.  W. 

N.  W.  Ry.  Co.,  75  Iowa  297,  39  N.  944. 

W.  208,  1  L.  R.  A.  318.  10— Cook  Mfg.  Co.  v.  Randall,  62 

4— State  v.  Scott,  80  N.  C.  365.  Iowa  244;  Campbell  v.  Ormsby,  65 

5— People  v.  White,  53  Mich.  537,  Iowa  518,  22  N.  W.  656. 

19  N.  W.  174.  11— Eberhard    v.    State,    47    Ga. 

6— State  v.  Laxton,  78  N.  C.  564.  598. 

7— Field  v.  French,  80  111.  App.  12— Van  Camp  v.  Keokuk,  107  N. 

95.  W.  933. 


§  104.]  EXAMINATION  OF  WITNESSES.  87 

evidence  in  such  cases  has  been  allowed  within  the  court's  dis- 
cretion even  after  the  case  had  been  formally  closed.13 

Evidence  which  is  competent  for  any  purpose  in  the  case  is 
as  a  rule  admissible,14  but  cumulative  evidence  or  mere  repe- 
titions which  have  already  been  offered  may  be  excluded,  al- 
though entirely  competent.15 

§  104.  Withdrawal  of  Evidence.  Evidence  which  has  been 
produced  on  the  trial  has,  as  a  rule,  gone  beyond  control  of  the 
party  which  offered  it,  although  the  court  may  in  its  discre- 
tion allow  it  to  be  withdrawn.  If  the  evidence  had  a  preju- 
dicial effect  upon  the  jury  it  should  not  be  allowed  to  be  with- 
drawn, for  the  opposing  party  has  then  the  right  to  meet  it. 
The  withdrawal  of  improper  evidence,  which  has  prejudiced 
the  opposing  side,  will  not  cure  the  error. 

The  withdrawal  of  improper  evidence  cannot  be  objected  to 
with  any  degree  of  force  by  a  party  who  has  objected  to  its 
admission,  except  in  event  of  prejudice,  and  one  who  objects 
to  the  withdrawal  cannot  afterwards  complain  of  its  admission, 
although  he  made  proper  objections  at  the  time  it  was  admit- 
ted.10 

§105.  Order  of  Introducing  Evidence  within  Court's  Dis- 
cretion. The  usual  and  well  defined  order  for  introducing  evi- 
dence is  always  the  best.  Such  rules  are  not  mandatory,  but 
merely  directory,  and  the  court  may  depart  from  these  rules 
whenever  justice  seems  to  demand  it.  Although  the  courts 
have  a  large  discretion  in  this  matter,  the  parties  should  not 
be  allowed  to  introduce  evidence  haphazard,  but  should  as 
far  as  possible,  be  governed  by  an  orderly  rule  subject  only, 
in  rare  instances,  to  an  exception.  An  appellate  court  will 
not  interfere  with  the  use  of  the  lower  court's  discretion  in 
this  respect  except  in  an  instance  of  the  gravest  abuse,  for  the 
reason  that  no  good  could  ordinarily  result  from  a  reversal 
of  the  case  upon  this  ground.17 

The  general  rule  seems  to  be  that  the  discretion  of  the  court 
will  govern  in  receiving  evidence  in  the  case  and  in  the  order 
thereof.1  s     The  court  may  properly  allow  rebuttal  evidence  to 

13— Argo  v.  People,  78  111.  App.  16— N.    Y.    C.    &    St.    L.    Ry.    v. 

247;  Winn  v.  Itzel,  103  N.  W.  220.  Blumenthal,   160   111.   40,   43   N.  E. 

14— Mighell  v.  Stone,  175  111.  262,  809. 

51  N.  E.  906.  17— Crane  v.  Ellis,  31  Iowa  510. 

15— Gulf,  C.  &  St.  F.  Ry.  Co.  v.  18— McClellan   v.    Hein,    56   Neb. 

Hayes,  89  S.  W.  29.  600,  77  N.  W.  120. 


88  INSTRUCTIONS    TO    JURIES.  [§  106. 

be  given  upon  the  direct,  especially  where  the  evidence  that 
the  opponent  relies  upon  is  known.19  On  the  other  hand,  it  is 
held  that  evidence  which  is  essential  to  make  out  the  plaintiff's 
case  cannot  be  withheld  and  given  on  rebuttal,  even  though  it 
should  have  a  tendency  toward  rebutting  the  opponent's  evi- 
dence.20 Evidence  properly  belonging  to  the  case  in  chief  as 
a  general  rule  should  be  excluded  when  offered  in  rebuttal.21 
"When  a  mistake  or  inadvertence  has  occurred  or  where  a  wit- 
ness was  unable  to  be  secured  in  proper  time  to  testify  on  the 
direct,  the  court,  in  its  discretion,  will  usually  allow  the  plain- 
tiff to  introduce  evidence  in  chief  on  the  rebuttal.22  It  has  been 
held  to  be  inadmissible  upon  rebuttal  even  if  it  was  not  known 
to  the  party  until  after  the  close  of  his  direct  examination.23 
This  is  an  extreme  case  and  it  is  doubtful  if  it  does  not  violate 
the  very  spirit  of  the  general  rule  that  the  order  of  introduc- 
tion of  evidence  lies  in  the  sound  discretion  of  the  court. 

§  106.  What  Evidence  Should  Be  Introduced  on  the  Direct. 
It  is  often  difficult  to  decide  whether  a  party  who  has  the  bur- 
den of  proof  should  put  forth  all  his  evidence  in  support  of 
his  case  on  direct  examination,  or  to  put  in  only  so  much  as 
may  be  necessary  to  make  out  a  prima  facie  case  awaiting  de- 
fendant's evidence  in  answer  or  in  support  of  counter-claims, 
set-offs  or  affirmative  issues  which  he  may  have  as  against  the 
plaintiff. 

Plaintiff,  however,  cannot  be  allowed  to  go  into  half  of  his 
case  and  reserve  the  remainder  until  the  defendant  has  put 
in  his  evidence.  In  the  main,  only  such  evidence  should  be  al- 
lowed on  the  examination  in  chief,  as  directly  supports  the 
making  out  of  a  'prima  facie  case  and  rebuttal  evidence  should 
be  confined  to  such  matters  as  explain  away  or  deny  the  facts 
set  up  by  defense  or  attacking  credibility  of  his  witnesses, 
and  as  to  matter  explaining  the  evidence  set  forth  on  exami- 
nation in  chief,  which  has  been  attacked  by  the  defendant. 

19— Hintz  v.   Graupner,   138   111.  Wilcox,  58  Iowa  380,  10  N.  W.  847; 

158,  27  N.  E.  935.  People  v.  Wilson,  55  Mich.  506,  21 

20— Moehn   v.   Moehn,    105    Iowa  N.  W.  905. 

710,  75  N.  W.  521.  23— Hale    v.    L.    I.    &    I.    Co.,    65 

21— Howes  v.  Colburn,  165  Mass.  Minn.  548,  68  N.  W.  182. 

385,  43  N.  E.  125.  A  plaintiff  is  not  called  upon  to 

22— Mueller    v.    Rebhan,    94    111.  disprove  an  imaginary  defense  or 

142;    Hathaway   v.    Hemingway,  20  claim     set     up     by    the     opposing 

Conn.    191;    Chytraus   v.    Chicago,  party.     Cooper  v.  Francis,  37  Tex. 

60   111.   18,   43   N.   E.   335;    Hess  v.  445;    Luke  v.  Bruner,  15  Iowa  3. 


§  107.]  EXAMINATION  OF  WITNESSES.  89 

The  party  having  the  opening  should,  as  a  general  rule,  in- 
troduce all  evidence  on  direct  examination,  excepting  for  the 
purpose  of  rebutting  or  explaining  away  evidence  given  by 
the  other  side,  although  in  some  states  the  making  out  of  a 
prima  facie  case  is  sufficient  and  further  evidence  to  support 
it  is  allowed  during  rebuttal.24 

After  the  plaintiff  has  closed  his  case,  additional  evidence 
supporting  it  may  be  obtained  by  cross-examination  of  oppo- 
nent's witnesses,25  but  this  does  not  include  examination  of 
opponent's  witnesses  upon  matters  not  brought  out  in  their  ex- 
amination in  chief. 

§  107.  Evidence  Introduced  Piecemeal — Duty  to  Show 
Relevancy.  It  is  manifestly  impossible  always  to  offer  evi- 
dence in  a  logical  manner.  Evidence  must  be  offered  a  little 
at  a  time  and  every  portion  cannot  be  stamped  with  the  mark 
of  relevancy.  It  is  relevant  more  or  less  as  it  connects  with 
other  evidence.  That  it  will  be  made  relevant  later  on  is  pre- 
sumed and  if  not  so  made,  it  may  be  stricken  out.  If  the  court 
should  consider  that  there  is  no  apparent  connection,  counsel 
may  be  asked  to  explain  what  he  intends  to  prove  by  such 
evidence.  The  court  should  not,  however,  be  too  strict  in  de- 
manding such  a  statement,  as  it  is  more  or  less  embarrassing 
to  be  compelled  to  make  such  explanations  in  the  presence  of 
the  jury.20 

The  court  may,  subject  to  its  sound  discretion,  require  a 
party  to  fully  examine  a  witness  upon  all  matters  upon  which 
he  may  be  called  to  testify,  before  calling  another.27  In  no 
event  should  the  court  allow  the  parties  to  give  evidence  in  a 
haphazard  form  and  by  piecemeal.2S 

§  108.  Evidence  Admitted  Provisionally.  Statements  by 
counsel  that  evidence  later  on  will  be  produced  connecting  the 
evidence  in  question  with  the  case,  are  proper  to  be  taken  into 
consideration  by  the  court  and  such  evidence  allowed  to  go  in 

24 — Martin   v.   Capital   Ins.    Co.,  a  large  number  of  exhibits.    Dowie 

85  Iowa  643,  52  N.W.  534;  Central  v.    Priddle,    216    111.    553,    116    111. 

Ry.  v.  Nash,   81   Ga.   580,  7   S.   E.  App.  184,  75  N.  E.  243. 
808.  27— Anderson  Tr.   Co.   v.  Fuller, 

25 — Commonwealth   v.   Eastman,  174    111.    221,   aft,   73    111.   App.    48, 

48    Am.    Dec.    596;    Ranney   v.    St.  51    N.    E.    251;    Fowler    v.    Straw- 

Johnsbury  &  L.   C.  R.  Co.,   67  Vt.  berry  Hill,  74  Iowa  644,  38  N.  W. 

594,   32  At.   810.  521. 

26— Rogers  v.  Brent,  10  111.  573.         28— Sandwich   v.   Dolan,   141  111. 

It  is  improper  to  offer  en  masse  430,  31  N.  E.  416. 


90  INSTRUCTIONS    TO    JURIES.  [§  109. 

provisionally.  When  evidence  is  admitted  on  the  statement  of 
counsel  that  he  will  afterwards  remedy  such  defects  in  the 
proof,  the  court  should  not  afterwards  strike  out  such  evidence 
on  its  own  motion  without  being  requested  so  to  do.29  How- 
ever, it  has  been  held  that  it  is  not  error  to  admit  evidence  pro- 
visionally where  no  promises  to  connect  have  been  made.30 

The  practice  of  receiving  evidence  provisionally  on  statement 
of  counsel  is  not  to  be  commended.31 

Cross-examination  is  not  generally  subject  to  this  rule,  for 
the  reason  that  if  the  court  should  ask  counsel  for  a  statement 
concerning  the  tendency  of  his  questions  the  very  object  of 
his  cross-examination  would  be  defeated.  In  cases  which  in- 
volve a  written  instrument  on  the  genuineness  of  which  the 
parties  take  issue,  evidence  should  not  be  admitted  provision- 
ally.32 

§  109.  Further  Testimony  after  the  Close  of  the  Case.  Evi- 
dence may  be  allowed  after  the  case  has  closed  on  the  part  of 
either  party,33  although  with  less  liberality  for  the  reason  that 
all  the  witnesses  have  then  been  dismissed  and  a  party  might 
for  this  reason  have  no  means  of  contradicting  such  offered  evi- 
dence. 

It  has  been  held  that  evidence  may  be  offered  at  the  con- 
clusion of  the  arguments  in  the  case.  This  would  seem  to  be  a 
matter  which  should  only  be  allowed  under  the  sound  discretion 
of  the  court,  and  especially  should  be  discountenanced  if  it  ap- 
pears that  the  evidence  proposed  is  designed  to  meet  the  matter 
upon  which  greatest  stress  has  been  placed  in  the  argument.34 

29— Hix  v.  Gulley,   124  Ga.  547,  the  case  is  closed,  for  the  purpose 

52  S.  E.  890.  of     correcting     an     oversight     or 

30 — Brady    v.    Finn,    162    Mass.  mistake. 
260,  38  N.  E.  506;  Foley  v.  Tipton,         34— Dugan  v.  State,  116  Ga.  846, 

102  Iowa  272,  71  N.  W.  236.  43    S.    E.    253;    Tucker   v.    People, 

31— Woolen    v.    Wire,    110    Ind.  122   111.   583,  13   N.   E.    800;    Bolan 

251,    11   N.   E.   236.  v.    People,    184    111.    338,    56    N.    E. 

32— Baum    v    Palmer,    165    Ind.  408;    Stepp   v.    Claiman,    123    Ind. 

513,   76  N.  E.  108.  532,   24   N.   E.   131;    Smith  v.    Ins. 

33 — Huey     v.     Huey,     26     Iowa  Co.,    supra;    State   v.    Wright,    112 

525;     Meadows    v.    Hawkeye    Ins.  Iowa  436,  84  N.  W.  541;  Hamilton 

Co.,   67   Iowa   57;    Smith   v.   State  v.  Iowa  B.  Co.,  88  Iowa  364,  55  N. 

Ins.    Co.,    58    Iowa   487,    12   N.   W.  W.  496. 
542.  The  court  has  the  right  in  the 

Court    has    properly    permitted  exercise    of    solemn    discretion   to 

the  introduction  of  evidence  after  make  any  order  for  the  introduc- 


§  110.]  EXAMINATION  OF  WITNESSES.  91 

§  110.  What  Evidence  the  Jury  May  Consider.  Questions  at 
issue  on  the  trial  are  determined  by  the  jury  upon  evidence  pro- 
duced before  them.  This  evidence  may  consist  of  the  oral  testi- 
mony of  witnesses  sworn  and  examined  in  open  court  or  by  the 
testimony  of  witnesses  residing  out  of  the  jurisdiction  of  the 
court  taken  in  the  form  of  depositions.  This  latter  can  only  be 
done,  however,  on  the  part  of  defendants  in  criminal  cases. 
Any  evidence  which  appeals  to  the  convictions  of  the  jury, 
whether  it  be  conveyed  to  them  by  the  sense  of  hearing,  of  sight 
and  perhaps,  even  through  the  sense  of  smell  or  feeling,  is 
competent,  provided  such  testimony  be  subject  to  the  test  of 
cross-examination  by  the  opposite  party. 

§  111.  Previous  Disclosures  of  Evidence  Discussed.  The 
ancient  common  law  trial  seemed  full  of  the  spirit  of  sports- 
manship ;  it  was  like  a  game  of  cards,  the  party  held  his  hand 
secret  and  waited  for  an  opportune  time  to  overwhelm  his  op- 
ponent. His  weapons  of  attack  and  defense  were  concealed 
until  the  final  moment. 

This  was  of  good  use  to  keep  from  unscrupulous  opponents 
the  facts,  so  they  could  not  arrange  their  testimony  to  upset  the 
other  side.  If  the  opponent  were  an  honest  man  this  would  on 
the  other  hand  inform  him  of  the  frailty  of  his  defense  and  so 
cause  him  to  drop  the  controversy.  If  the  party  was  notified  in 
advance  he  could  not  alter  the  truth,  nor  should  he  be  allowed 
to  do  so. 

If,  however,  the  opponent  was  the  victim  of  a  plot  and  false 
evidence  was  being  used  against  him,  as  was  often  the  case,  it 
were  better  that  he  be  made  aware  of  the  facts.    However,  if 

tion  of  evidence  it  may  see  fit,  Additional  evidence  in  chief  may 
and  its  decision  will  not  be  re-  be  allowed  after  the  testimony  has 
versed  unless  such  discretion  has  been  taken  on  the  part  of  the  de- 
been  abused.  fendant. 

Peterson    v.    Wood   Mowing   and  Hubbell  v.  Ream,   31   Iowa  289; 

Reaping   Mach.   Co.,    97    Iowa   148,  McDonald  v.   Moore,  65  Iowa  171; 

66    N.    W.    96;    Miller   v.    Hartford  State   v.    Yetzer,    97    Iowa   423,    66 

Ins.   Co.,   70   Iowa  704;    Cannon  v.  N.  W.  737. 

Iowa  City,   34    Iowa   203;    Kassing  After   both   sides  have  rested  it 

v.  Walter,  65  N.  W.  832.  has  been  held  proper  to  introduce 

Evidence    may    be    properly    in-  further   evidence, 

troduced   although   out  of  its   reg-  Byington  v.  Moore,  62  Iowa  470; 

ular  order.  State  v.  Shean,  32  Iowa  88;  Maher 

Cook    Mfg.    Co.    v.    Randall,    62  v.  Shenhall,  96  Iowa  634,  65  N.  W, 

Iowa    244;     Campbell    v.    Ormsby,  978. 
65  Iowa  518. 


92  INSTRUCTIONS    TO    JURIES.  [§  112. 

the  evidence  against  him  were  true,  there  would  be  no  necessity 
for  such  disclosures  of  evidence.  On  the  whole  it  was  a  ques- 
tion whether  falsity  or  truth  would  be  best  served  by  a  pre- 
vious disclosure  of  the  evidence. 

§  112.  Inspection  of  Documents.  Documents,  chattels  and 
premises  were  all  permitted  to  be  inspected  at  common  law, 
and  documents  copied  as  this  could  not  endanger  their  integ- 
rity. On  this  principle  rests  the  modern  right  of  the  inspec- 
tion of  a  document  offered  for  evidence  by  a  party,  and  if  its 
production  causes  an  opponent  to  be  taken  by  surprise  it  may 
be  excluded,  or  in  the  discretion  of  the  court  a  continuance  or 
postponement  of  the  trial  may  be  granted,  and  even  after  a 
verdict  it  may  be  sufficient  to  warrant  the  granting  of  a  new 
trial. 

Many  of  these  difficulties  are  solved,  however,  by  the  mod- 
ern system  of  pleading,  and  if  necessary,  pleadings  may  be 
made  more  specific.  Usually  all  written  instruments  upon 
which  the  action  is  based  must  be  appended  to  the  pleadings, 
greatly  minimizing  the  danger  of  surprise,  for  the  reason  that 
the  proofs  on  the  trial  must  correspond  with  the  allegat-ons. 

§  113.  List  of  Witnesses  and  Copy  of  Indictment  Furnished 
Accused — Rule  as  to  Subsequently  Discovered  Witnesses.  Un- 
der the  common  law  rule  no  provision  was  made  for  a  list  of 
witnesses  and  much  less  a  copy  of  the  indictment  even  in  crim- 
inal trials  involving  a  felony  until  statutory  provisions  were 
made  correcting  this  injustice.  A  list  is  furnished  the  ac- 
cused by  the  proper  court  officer  or  upon  a  motion  demanding 
it.  Where  it  is  not  given,  the  witnesses  may  be  excluded  or  a 
continuance  at  least  will  be  granted. 

In  some  states  it  is  provided  that  the  accused  must  be  fur- 
nished a  list  of  all  witnesses  sworn  before  the  grand  jury  upon 
which  the  indictment  is  based  and  so  endorsed  by  the  foreman 
thereof.  This  provision  does  not  absolutely  exclude  the  testi- 
mony of  witnesses  subsequently  discovered  and  it  is  held  con- 
stitutional to  serve  upon  the  defendant  a  list  of  such  subse- 
quently discovered  witnesses,  together  with  the  substance  of 
their  testimony,  a  reasonable  time  before  the  trial.35 

35— Witnesses  not  named  on  in-  In    State   v.   Abrahams,    6    Iowa 

dictment  may  be  permitted  to  tes-  117,    upon    the    question    whether 

tify   at   discretion   of   court.    Gore  the  prosecuting  attorney  is  to  be 

v.   P.,   162   111.   265,   44   N.   E.   500;  confined  to  the  list  of  witnesses  on 

Bolen  v.  P.,  184  111.  340,  56  N.  E.  the  back  of  the  indictment  or  may 

408.  call    others,    the    court   said:     "It 


114.] 


EXAMINATION  OF  WITNESSES. 


93 


§  114.  Presence  of  Witnesses.  The  presence  of  witnesses  in 
civil  cases  may  be  dispensed  with  when  parties  take  the  testi- 
mony by  way  of  depositions,  but  this  does  not  apply  in  criminal 
eases  on  the  part  of  the  prosecution,  as  the  accused  has  a  right 
to  meet  the  witnesses  face  to  face.  It  is  so  guaranteed  in  the 
State  of  Illinois  by  the  constitution  of  1870.36  The  right  of  the 
accused  to  be  in  the  presence  of  witnesses  is  held  not  to  be  vio- 
lated by  ordering  the  defendant  to  be  seated  at  a  distance  when 
the  witness  was  afraid  of  defendant,37  nor  is  one  confronted 
with  his  witness  when  he  must  sit  24  feet  away,  where  he  can- 
not see  witness's  face  or  hear  the  testimony,  although  the  wit- 
ness was  afraid  of  accused  and  would  not  testify  unless  he  was 
removed.38 

§  115.  Oaths  or  Affirmations  of  Witnesses.  It  is  universally 
recognized  that  any  statement  by  a  witness  must  be  made  un- 
der the  sanction  of  an  oath,  or  the  equivalent  thereto,  as  an 
affirmation,  or  a  dying  declaration  in  homicide  cases.  In  gen- 
eral, anyone  who  understands  the  nature  of  an  oath,  is  compe- 
tent to  testify.  The  right  to  affirm,  instead  of  taking  an  oath, 
is  recognized  as  absolute,  and  is  a  lawful  substitute  whenever 
an  oath  is  specifically  required.39  No  person  shall  be  rendered 
incompetent  to  give  evidence  in  any  court  of  law  or  equity  in 
consequence  of  his  opinions  on  the  subject  of  religion.    In  the 


would  make  it  necessary  to  search 
all  possible  evidence  before  pre- 
senting an  indictment  and  thus  fa- 
vor the  escape  of  the  guilty.  There 
is  no  principle  of  law  or  natural 
right  which  entitles  a  defendant  to 
a  previous  knowledge  of  all  the 
witnesses  to  be  called  against  him. 
The  statute  gives  the  defendant 
the  names  of  those  upon  whose 
knowledge  the  charge  is  based  as 
known  to  the  prosecution  at  the 
time.  This  has  been  changed  now 
by  section  5373,  Iowa  Code,  8970." 

36— Const,  of  111.,  Art.  2,  Sec.  9; 
Hoyt  v.  People,  140  111.  588,  30 
N.  E.  315. 

It  is  error  to  swear  witnesses  in 
the  absence  of  the  accused.  Bear- 
den  v.  State,  44  Ark.  331. 


37 — Grabowski  v.  State,  126 
Wis.  447,   105   N.  W.  805. 

38— Hoft  v.  Utah,  110  U.  S.  574; 
Lewis  v.  U.  S.,  146  U.  S.  370. 

39— Goodman  v.  P.,  90  111.  App. 
540. 

At  common  law  the  accused 
could  not  testify,  but  this  is  now 
entirely  changed  by  statute  and 
he  may  testify  as  any  other  wit- 
ness. Where  the  accused  could  not 
testify,  he  was  accorded  a  right 
to  make  an  unsworn  statement  to 
the  jury  of  the  facts  of  the  case 
according  to  his  point  of  view, 
and  he  was  not  subjected  to  cross- 
examination.  3  Code  of  Ga.  Sec. 
1010:  Rev.  Stat.  Pla.,  Sec.  2908; 
Georgia  and  Florida  hold  this  lat- 
ter rule. 


94  INSTRUCTIONS    TO    JURIES.  [§  H6. 

Constitution  of  Illinois,  1870,  Article  2,  Section  3,  it  is  pro- 
vided that  "no  person  shall  be  denied  any  civil  or  political 
right,  privilege,  or  capacity,  on  account  of  his  religious  opin- 
ions, but  the  liberty  of  conscience  hereby  secured  shall  not  be 
construed  to  dispense  with  oaths  or  affirmations."40 

§  116.  Copy  of  Former  Testimony  of  Witnesses,  When  Ad- 
missible. Besides  the  admission  of  oral  testimony  upon  the 
trial  it  is  permissible  and  proper  to  use  a  copy  of  the  former 
testimony  of  witnesses  who  testified  at  a  previous  time  and  to 
have  it  read  in  evidence  before  the  jury  both  in  criminal  and 
civil  cases.  In  some  jurisdictions  the  old  common  law  rule 
still  applies,  that  the  evidence  of  the  absent  witness  is  not  ad- 
missible except  where  such  witness  is  dead.41 

§  117.  Showing  Required  to  Admit  Former  Testimony.  In 
some  jurisdictions  a  strict  showing  for  not  producing  a  witness 
is  not  required  except  in  criminal  cases,  where  a  strict  prelim- 
inary proof  is  demanded.42  It  is  held  that  a  mere  transitory 
residence  outside  of  the  state,  so  that  a  subpoena  could  not  be 
served,  is  sufficient,43  but  the  best  modern  rule  requires  that 
the  residence  of  the  witness  outside  of  the  jurisdiction  should 
be  permanent  and  a  showing  must  be  made  to  the  satisfaction 
of  the  court  that  the  party  could  not  by  the  use  of  reasonable 
diligence  have  secured  the  deposition  and  that  if  fruitless 
search  for  the  witness  had  been  conducted  in  good  faith  and 
diligence.  Such  diligence  may  be  shown  by  the  fact  of  having 
written  to  the  postmaster  or  by  delivery  of  letter  to  the  sum- 
moning officer.44 

Absence  from  the  jurisdiction  making  it  impossible  to  use 
compulsory  process  to  secure  attendance,  is  a  sufficient  ground 

40 — An  oath  must  lawfully  be  to-wit:  You  do  solemnly,  sincerely 
administered  in  the  following  and  truly  declare  and  affirm.  Rev. 
form,  to-wit:  The  person  swear-  St.  111.  1874,  C.  101,  §  4. 
ing  shall,  with  his  hand  uplifted,  An  attorney  should  not  admin- 
swear  by  the  ever  living  God,  and  ister  an  oath  to  his  client.  Phil- 
shall  not  be  compelled  to  lay  the  lips  v.  Phillips,  185  111.  633. 
hand  on  or  kiss  the  Gospels.  Rev.  41 — Collins  v.  Commonwealth,  12 
St.   111.   1874,  C.  101,    §   3.  Bush,  Ky.  271. 

When    such    person    shall    have  42 — Bergen    v.    People,    17i    111. 

conscientious       scruples       against  426,  65  Am.  Dec.  672. 

taking    an    oath,    he    shall    be   ad-  43 — Monroe  Bank  v.   Gifford,  79 

mitted,  instead  of  taking  an  oath,  Iowa  300,  44  N.  W.  558,  9  L.  R.  A. 

to  make  his  solemn  affirmation  or  126. 

declaration  in  the  following  form,  44 — Boldwain    v.    St.    Louis    R. 


§  118.]  EXAMINATION  OF  WITNESSES.  95 

for  admitting  the  former  testimony  in  either  civil  or  criminal 
cases  under  the  proper  limitations  mentioned  herein.45  The 
absence  from  the  jurisdiction  must  be  shown  by  the  testimony 
of  some  one  who  knows  this  fact  in  order  to  establish  a  ground 
for  its  admissibility.46 

Where  the  witness  is  absent  apparently  by  procurement  of 
one  of  the  parties,  the  former  testimony  is  admitted  as  a  mat- 
ter of  course,47  and  the  fact  that  the  witness  when  last  seen 
was  with  an  agent  of  the  opposite  party  who  bought  him  rail- 
road tickets  is  held  to  be  a  sufficient  reason  or  showing  for  its 
admissibility.48 

The  rule  seems  to  be  sufficient  if  a  witness  is  able  to  give  the 
substance  of  the  former  testimony,49  and  in  some  states  it  is 
sufficient  merely  to  give  its  effect  in  either  criminal  or  civil 
cases,50  but  the  substance  of  both  direct  and  cross-examination 
must  be  given  by  the  witness  in  order  to  be  admissible.51 

§118.  Admissibility  of  Former  Testimony.  Stenographic 
notes  are  also  admissible  as  evidence  of  the  former  testimony 
of  the  witness.  In  some  states  such  evidence  is  made  evidence 
per  se.52  Death  formerly  was  the  sole  condition  of  admissi- 
bility of  such  evidence  and  it  is  still  the  rule  in  criminal  cases 
in  many  jurisdictions.  The  reporting  witness  was  formerly 
required  to  repeat  the  very  words  of  the  testimony  of  the  for- 
mer witness,  but  this  is  so  changed  that  it  is  now  sufficient  to 
give  merely  the  essential  words.53 

The  issues  in  the  former  case  should  be  identical  with  those 
at  the  present  trial.54  It  must  be  shown  that  the  party  against 
whom  the  evidence  is  offered  or  his  privy  was  a  party  to  the 

Co.,    68    Iowa   37,    25    N.    W.    918;  50— Hutchings  v.  Corgan,  59  111. 

Sullivan    v.    State,    6    Texas   App.  70;    Small  v.   Chicago  Ry.  Co.,   55 

319,  32  Am.  Rep.  580.  Iowa   582,   39   Am.   Rep.   179;    Ber- 

45 — Piano   Mfg.    Co.   v.   Darman-  son   v.    Huntington,   21   Mich.   415, 

ter,    56    111.    App.    258;    Howard   v.  4  Am.   Rep.   497;    Barnett  v.   Peo- 

Patrick,    38    Mich.    795;    Campbell  pie,  54   111.   325;    State  v.  O'Brien, 

v.  Campbell,  138  111.  612,  28  N.  E.  81  Iowa  88. 

1080;     People    v.    Devine,    46    Cal.  51— Aulger  v.  Smith,  34  111.  534; 

45;  State  v.  Nelson,  75  Pac.  505.  Harrison  v.  Charlton,  42  Iowa  573. 

46— Boldwain    v.    St.    Louis    R.  52— In  re  Wiltsey,  122  Iowa  423, 

Co.,   68  Iowa  37,  25  N.  W.  918.  98  N.  W.   294;    Walker  v.  Walker] 

47— Stout  v.  Cook,  47  111.  530.  117  Iowa  609,  91  N.  W.  908. 

48— Eagle  Mfg.  Co.  v.  Welch,  61  53— Marshall   v.   Adams,    11    111. 

Ga.  444.  37. 

49— Cleland    v.    Huey,    18    Ala.  54— Fricke     v.     Kabacker,     160 

343.  Iowa  494,  90  N.  W.  498;  Schindler 


96  INSTRUCTIONS    TO    JURIES.  [§  119. 

former  trial,  that  the  issue  is  substantially  the  same  in  the  two 
cases  and  that  the  witness  through  the  former  testimony  is 
able  to  state  it  with  correctness. 

It  is  also  necessary  to  show  a  good  and  sufficient  reason  why 
the  original  witness  is  not  produced  either  on  account  of  death, 
or  his  absence  and  his  whereabouts  being  unknown,  so  that  his 
deposition  could  not  be  taken.  It  must  further  appear  that  a  fair 
opportunity  for  cross-examination  was  given  in  the  former 
case  both  in  civil  and  criminal  trials.  It  seems  that  it  is  of  no 
consequence  that  the  two  hearings  were  on  different  indict- 
ments or  that  the  form  of  the  charge  was  different,  provided 
that  both  arose  from  the  same  facts  and  the  source  of  liability 
in  both  instances  was  the  same.55 

The  party  offering  the  evidence  either  in  a  civil  or  criminal 
case  must  show  that  the  parties  to  the  suit  are  actually  or  con- 
structively the  same  in  both  cases.  The  constitutional  right 
of  the  accused  to  be  confronted  with  his  witnesses  is  not  in- 
fringed by  the  admission  of  such  evidence.56 

§  119.  Pleadings  Considered  as  Admissions.  The  pleadings 
are  not  evidence  on  which  a  jury  can  act ;  at  most  they  are  but 
admissions  made  by  the  opposing  party,  and  when  put  in  evi- 
dence may  then  be  considered  by  the  jury  in  the  same  way 
that  an  admission  would  be.57  The  pleadings  in  whole  or  in 
part,  being  in  the  nature  of  admissions,  may  be  used  against 
the  party  even  if  filed  in  a  former  suit  where  the  parties  were 
different.  Such  admissions  are  subject  to  qualification  and  ex- 
planation, however.  Pleadings  may  be  introduced  as  admis- 
sions of  the  statements  contained  therein,  although  not  signed 
by  the  party  but  by  his  attorney  and  upon  information  fur- 
nished by  the  party.58 

§  120.  Pleadings  of  the  Party  as  Evidence.  The  pleadings 
of  a  party  to  an  action  may  be  used  as  competent  evidence 

v.  M.  Ry.  Co.,  87  Mich.  400,  49  N.  which  has  been  dismissed  for  want 

W.  670.  of  prosecution  is  competent,  being 

55 — Ballman  v.  Heron,  169  Penn.  in  nature  of  admission. 

510,    32    Atl.    594;    Wilder   v.    St.  Barron    v.    Burke,    82    111.   App. 

Paul,  12  Minn.  192.  122. 

56— Mason   v.    Kellog,    38    Mich.  57— Greenville    v.    O.    D.    S.    S. 

132;    Summons    v.    State,    5    Ohio  Co.,  104  N.  O.  91,  10  S.  E.  147. 

325;  Barnett  v.  People,  54  111.  325;  58— Johnson      v.      Russell,      144 

State  v.   Porter,   74   Iowa   623,   38  Mass.  409,  11   N.  E.   670;    Farr  v. 

N.  W.  514.  Rouillard,  172  Mass.  303,  52  N.  E. 

Former      suit      between      same  444. 
parties   for  same   cause   of   action 


§  121.]  EXAMINATION  OF  WITNESSES.  97 

against  him  of  any  admissions  or  facts  contained  therein  and 
are  conclusive  upon  him.  Pleadings  may  be  amended  with 
more  or  less  liberality  by  permission  of  court,  and  for  this  rea- 
son the  conclusiveness  of  the  matters  stated  in  a  pleading  are 
therefore  not  altogether  absolute. 

Even  where  the  pleading  or  a  part  of  it  has  been  withdrawn 
or  amended  by  the  party,  it  may  be  used  as  competent  evidence 
against  the  party  who  filed  it,  but  it  is  subject  to  such  explana- 
tion as  any  other  evidence  might  be.  If  the  pleading  of  the 
opposing  side  is  put  in  evidence  it  does  not  estop  the  party 
who  offers  it  from  denying  the  statements  it  contains.59 

It  is  not  necessary  that  the  whole  of  the  pleading  should  be 
put  in  evidence;  the  party  may  offer  a  portion  or  a  single  sen- 
tence thereof,  provided  it  is  complete  in  itself  sufficiently  to 
convey  truthfully  the  meaning  it  intended.60  If  only  a  portion 
is  offered  in  evidence  the  whole  or  as  much  more  as  may  be 
sufficient  to  explain  it  may  be  read  by  the  one  who  filed  the 
pleading.61 

Except  as  we  have  already  stated,  that  a  party  may  read  his 
pleading  upon  the  opening  statement  to  the  jury,  he  is  not  enti- 
tled to  put  his  own  pleading  in  evidence  for  obvious  reasons. 
The  pleadings  are  for  the  court  and  may  be  read  for  any  pur- 
pose of  defining  the  issue  without  being  put  in  evidence.62 

§  121.  Conduct  of  Attorneys,  Court  or  Parties  as  Evidence 
for  the  Jury.  No  experienced  trial  lawyer  would  ever  rely  ex- 
clusively upon  the  sworn  statements  made  in  open  court  by 
the  witnesses  and  disregard  the  many  other  avenues  of  infor- 
mation through  which  conviction  may  be  conveyed  to  a  juror's 
mind.  In  fact  while  the  evidence  given  by  witnesses  in  court 
is  the  skeleton  or  frame  work  upon  which  the  structure  is 
built,  it  is  often  lost  sight  of  by  the  jury  as  they  look  upon 
some  exterior  and  rather  immaterial  matter  which,  in  the  con- 
sideration of  counsel,  served  as  mere  ornament  to  the  case. 

The  seriousness  of  counsel  in  addressing  the  jury  or  the 
court,  the  manner  in  which  apparently  damaging  evidence 
seems  to  affect  him,  the  manner  and  demeanor  of  the  court 
toward  the  attorney,  whether  respectful  or  not,  the  appearance 

59— Cleveland  v.  Gray,  148  Ind.  61— Grattan  v.  Life  Ins.  Co.,  92 

266,    46    N.    E.    675;    Fogg  v.    Ed-  N.  Y.  274,  44  Am.  Rep.  372. 

^ards,  20  Hun   [N.  Y.]   90.  62— Shepard  v.  Mills,  70  111.  App. 

^C1— Jones    v.    Mutual    Accident  72. 
Assn.,  92  Iowa  652,  61  N.  W.  485. 
7 


98  INSTRUCTIONS    TO    JURIES.  [§122. 

of  the  party  or  his  witnesses,  as  to  whether  they  seem  candid 
and  fair;  all  these  appeal  to  the  jury  as  strongly  as  the  sub- 
stance of  any  testimony. 

§  122.  Appearance  and  Conduct  of  Witnesses  as  Evidence. 
Actions  speak  louder  than  words  and  many  a  jury  has  re- 
ceived into  its  consciousness  matters  of  evidence  that  the  oral 
testimony  failed  to  convey.  The  plaintiff,  in  an  action  for  per- 
sonal injuries,  crippled  and  lamed,  walks  to  the  witness  stand 
and  before  a  word  is  spoken  by  him  the  jury  have  the  full 
knowledge  of  what  his  testimony  will  be.  It  has  been  held 
proper  to  permit  a  plaintiff,  though  crippled,  to  walk  to  the 
witness  stand  in  an  action  brought  for  personal  injuries  to 
himself,03  and  in  an  action  for  personal  injury,  the  plain- 
tiff may  show  his  wounds  to  the  jury,  although  the  court 
seemed  to  hold  that  to  permit  a  dramatic  exhibition  of  his 
wounds  would  be  reversible  error.64  In  an  action  for  delay  in 
delivering  a  message  announcing  the  death  of  a  son  of  the 
plaintiff,  it  was  held  she  was  not  guilty  of  misconduct  in  ap- 
pearing on  the  witness  stand  in  deep  mourning  op  in  giving 
way  to  her  emotions  during  her  examination  when  asked  about 
the  death  of  said  son.65 

A  witness  may  be  brought  in  to  testify,  lying  on  a  cot,  and 
although  the  sympathies  of  the  jury  may  be  aroused  on  ac- 
count of  his  pitiful  condition,  the  witness  has  an  undoubted 
right  to  be  present  and  only  the  defendant  can  blame  him- 
self therefor  on  account  of  his  own  negligence.  In  a  later  part 
of  this  chapter  will  be  considered  more  in  detail  the  exhibition 
of  material  evidence  to  the  jury  and  the  allowance  of  a  view 
by  the  jury. 

§  123.    Experiments,     Photographs     and     Like     Evidence. 

Aside  from  the  testimony  to  be  given  orally  on  the  witness 
stand  on  the  trial  or  depositions  which  we  have  just  men- 
tioned, there  is  a  species  of  evidence  equally  as  good  called  by 
some  writers  "real  evidence,"  such  as  photographs,  experi- 
ments made,  and  exhibits  placed  in  evidence  at  the  trial.  Ex- 
periments have  been  held  competent  where  the  same  condi- 
tions exist  at  the  time  of  the  experiment  as  at  the  time  of  the 
occurrence.66     Experiments  as  to  the  amount  of  pressure  re- 

63— City   of   Minden   v.   Vedene,  65— W.  U.  Tel.  Co.  v.   Shaw,   70 

101  N.  W.  330    (Neb.).  S.  W.  58   (Tex.). 

64— Felsch  v.   Babb,   101   N.  W.  66— Fein     v.     Covenant    Mutual 

1011   (Neb.).  Benefit  Ass'n,  60  A.  277. 


§  124.]  EXAMINATION  OF  WITNESSES.  99 

quired  to  pull  the  trigger  of  a  revolver  have  thus  been  held 
competent.67 

It  seems  that  photographs  may  be  introduced  in  evidence, 
but  these  are  limited  to  objects  permanent  in  their  nature  for 
some  undefinable  reason  and  if  necessary  the  jury  may  be  sup- 
plied with  a  magnifying  glass  with  which  to  examine  them.68 
When  it  is  important  that  the  locus  in  quo  of  any  object  be 
described,  a  photograph  of  the  same  is  competent,  and  views 
of  tracks,  streets,  buildings,  bridges,  sidewalks,  and  other  ob- 
jects permanent  in  their  nature  may  be  shown  by  this  means.69 

The  court  in  an  action  for  damages  for  personal  injury  may 
.within  its  discretion  allow  an  exhibition  of  the  mutilated  limb 
before  the  jury,70  but  a  dramatic  exhibition  thereof  has  been 
held  reversible  error.71 

§  124.  Obtaining  Information  Outside  of  Court  During  the 
Trial.  It  is  of  the  utmost  importance  that  a  juror's  mind 
should  be  free  from  prejudice  and  bias.  Knowledge  of  any 
fact,  material  to  the  issue,  would  lead  to  a  reliance  upon  his 
own  individual  conception  rather  than  to  giving  the  evidence 
produced  upon  the  trial  its  relative  importance  and  weight. 
For  the  same  reason,  we  might  state  that  any  observation  made 
by  a  juror  would  be  misconduct,  as  where  he  separates  himself 
from  his  fellows  without  authority,  and  looks  at  the  premises 
to  which  the  evidence  relates.  Action  of  this  sort  might  not 
necessarily  constitute  such  misconduct  as  to  require  the  set- 
ting aside  of  a  verdict,  and  yet  according  to  the  facts  involved, 
it  might.72  So  also,  it  has  been  held  that  individual  investiga- 
tion by  a  juror,  affecting  the  provable  guilt  or  innocence  of  the 
accused,  was  misconduct,  although  not  always  sufficient  for 
reversal.73 

The  foregoing  comments  upon  the  personal  knowledge  of  ju- 
rors or  upon  their  unauthorized  obtaining  of  such  knowledge 
during  the  trial  are  not  criticisms  upon  the  conduct  of  the  jury 

67— Collins    v.    P.,    194    111.    506,  78  Am.  649;  Clausen  v.  R.  Co.,  173 

62  N.  E.  902.  111.   106;    Swift  v.   Rutkowski,   182 

68— Barker    v.    Perry,    67    Iowa  111.  24,  54  N.  E.  1038. 

148,  25  N.  W.  100.  71— Felsch   v.    Babb,    101    N.   W. 

69— Udderzook's     Case,     76     Pa  1011. 

340;   Ruloff  v.  People,  45  N.  Y.  213;  72— Bowman     v.     Western     Fur. 

Barker  v.   Perry,   67   Iowa  147,   25  Mfg.  Co.,  96  Iowa  188,  64  N.  W.  775. 

N.  W.  100.  73— Shissler  v.   State,   99  N.  W. 

70— R.    Co.    v.    Grenell,    90    Am.  593. 
49;  Jefferson  Ice  Co.  v.  Zwickoski, 


100  INSTRUCTIONS    TO    JURIES.  [§  125. 

in  properly  observing  and  noticing  the  conduct  of  a  party  in 
open  court  during  the  trial  of  the  case,  or  the  consideration  of 
the  conduct,  deportment  and  demeanor  of  the  witnesses  while 
on  the  stand.74 

§  125.  Voluntary  Efforts  of  the  Jury  to  Secure  Evidence. 
The  jury  have  undoubtedly  a  right  to  ask  for  such  evidence  as 
they  may  require  to  reach  a  proper  comprehension  of  the  case. 
A  juror,  however,  is  guilty  of  misconduct  who  seeks  to  inform 
himself  after  the  beginning  of  the  trial  relative  to  the  matters 
in  controversy  either  by  questioning  witnesses  out  of  court 
or  by  viewing  and  measuring  the  premises  involved,  for  the 
reason  that  all  of  the  evidence  upon  which  the  jurors  act, 
should  be  received  by  them  in  open  court  in  the  presence  of 
the  parties,  excepting  where  otherwise  ordered  under  the  lim- 
itations of  the  court.  The  allowing  of  a  jury  to  view  the 
premises  is  within  the  sound  discretion  of  the  court.75  And  it 
is  not  improper  for  the  court  to  state  to  the  jury  that  they 
should  not  examine  the  place  of  the  accident  and  should  re- 
main away  therefrom  unless  counsel  agree  they  go  in  a  body, 
in  charge  of  an  officer.76 

§  126.  Expert  Testimony.  Where  the  knowledge  of  the 
jury  is  not  equal  to  the  special  demands  made  by  reason  of 
the  unusual  and  complicated  matters  involved,  it  should  be 
supplemented  by  expert  testimony,  at  the  request  of  the  jury, 
though  usually  given  without  such  request.  Expert  testimony 
should  not  be  received  in  any  case  as  to  matters  of  mere  com- 
mon knowledge.77  Nor  is  it  admissible  to  prove  the  operation 
of  natural  laws  of  general  observation,78  nor  is  it  essential  to 
prove  the  value  of  property  in  almost  universal  use.79 

It  is  held  that  expert  testimony  is  not  necessary  to  prove  the 
value  of  personal  belongings  lost  by  common  carriers.80  Ex- 
pert testimony  has  been  held  not  competent  to  show  the  well- 
known  fact  that  machinery  is  of  a   dangerous  nature,81   but 

74— State  v.  Hutchinson,  95  Iowa  78 — Hughes   v.    Richter,    161    111. 

566,  64  N.  W.  610.  411,   43  N.  E.   1066; 

75 — Rickenan     v.     Williamsburg  79 — R.    Co.    v.    Jones    Furniture 

City   Fire    Ins.   Co.,   120   Wis.   655,  Transit  Co.,  92  111.  App.  509;  Max- 

98  N.  W.  968.  well  v.  Habel,  92  111.  App.  513. 

76 — Pioneer  Fireproof  Const.  Co.  80 — Hebard    v.     Riegel,     67     111. 

v.   Sunderland,   188   111.   341,  58  N.  App.  586. 

E.  928.  81 — Meyer  v.  Meyer,  86  111.  App. 

77— R.  Co.  v.  Smith,  69  111.  App.  420. 
70. 


5  128. J  EXAMINATION  OF  WITNESSES.  101 

expert  testimony  as  to  whether  machinery  operated  in  a  par- 
ticular manner  was  dangerous,  is  held  to  be  competent.82 

In  the  same  line  of  reasoning  the  court  has  held  that  ex- 
pert testimony  as  to  the  cause  of  a  derailment  of  a  train  is 
incompetent  where  such  cause  is  the  main  issue  in  the  case.83 

Before  expert  testimony  can  be  given  to  the  jury  it  is  requi- 
site that  the  competency  of  the  expert  be  first  shown  to  the 
court,84  and  having  shown"  this,  such  testimony  is  entitled  to 
as  great,  or  equal  weight,  as  any  other  evidence  before  the 
jury.85  It  should  not  be  discredited  by  the  court  as  weak  or 
that  the  jury  are  to  receive  it  with  caution.80  It  seems,  how- 
ever, that  some  courts  have  criticised  expert  testimony  as  not 
of  equal  weight  as  other  testimony  of  a  more  direct  nature.87 
To  tell  the  jury  that  they  may  disregard  the  expert  evidence 
and  base  their  verdict  on  their  own  knowledge  is  error,88  but 
not  where  the  jury  considers  it  unreasonable  in  its  nature.89 

It  is,  also,  on  the  other  hand,  unfair  to  give  undue  promi- 
nence and  weight  to  expert  testimony.90  In  weighing  the  rela- 
tive value  of  expert  testimony  as  against  that  of  a  direct  na- 
ture the  jury  is  the  judge  of  the  credibility  of  the  witness,  tak- 
ing into  consideration  the  skill  and  scientific  attainment  of 
the  expert  and  all  other  factors  which  may  have  a  bearing  upon 
the  truth  or  falsity  of  the  evidence. 

82 — Gundlach  v.   Schott,  192  111.  the   same   indicates   that   the   wit- 

513,  61  N.  E    332.  ness   is    giving   his   opinion    as   to 

83 — Roberts    v.    R.    Co.,    78    111.  the  relative  position  of  the  parties 

App.  531.  at  the  time  the  shot  was  fired." 

In    Cavaness    v.    State,    45    Tex.  84— R.  Co.  v.  Blatchford,  81  111. 

Cr.  App.  209,  74  S.  W.  908    (909),  App.    611. 

the  court  said:     "We  have  repeat-  85 — Rivard  v.  Rivard,  109  Mich, 

edly  held  that  even  an  expert  wit-  98. 

ness   could   not  testify   as   to   the  86 — Atchison  Ry.  Co.  v.  Thul,  32 

relative  positions  of  defendant  and  Kan.    355,    4    Pac.    352;    Louisville 

deceased  from  the  location  of  the  R.  Co.  v.  Whitehead,  71  Miss.  451, 

wounds;    but   we    have    also   held  15  So.  890. 

that  any  witness,  whether  an  ex-  87 — Jackson  v.  Adams,  100  Iowa 

pert  or  not,   could   testify   that  a  163,  69  N.  W.  427;   Eggers  v.  Eg- 

bullet  went  in  at  one  place  on  the  gers,  57  Ind.  461. 

body    and    came    out   at    a    lower  88 — Kansas  City  v.  Hill,  80  Mo. 

place;    that  this  was  a  matter  of  523. 

common  observation,  and  did  not  89 — St.  Louis  v.  Rankin,  95  Mo. 

require  an  expert  to  testify  there-  189. 

to.     We  think  the  court  erred  in  90 — Blough    v.    Parry,    144    Ind. 

permitting  the   witness   to  testify  463,  43  N.  E.  560,  32  L.  R.  A.  309- 
to  the  facts  as  above  detailed,  since 


102  INSTRUCTIONS    TO    JURIES.  [§   127. 

§  127.  Hypothetical  Questions.  A  greater  latitude  is  al- 
lowed in  cross-examination  of  expert  witnesses,  than  in  the 
case  of  ordinary  witnesses,  and  the  court  should  not  unduly 
restrict  the  cross-examination  of  expert  witnesses.91  Any  fad 
which  in  the  discretion  of  the  court,  whether  it  has  been  tes- 
tified to  in  the  case  or  not,  may  be  assumed  in  the  hypothetical 
question,  provided  it  is  pertinent  to  the  inquiry.92  It  is  held, 
however,  that  the  facts  assumed  in  a  hypothetical  question 
must  have  some  supporl  in  the  evidence.93 

A  hypothetical  question  should  recite  the  whole,  or  part,  at 
least,  of  the  supposed  facts  in  the  case.'"  and  if  material  facts 
are  omitted,  it  should  be  specifically  objected  to.05  Such  ob- 
jection should  point  out  the  facts  which  have  been  improperly 
omitted,  in  order  that  the  question  may  be  amended.96 

The  question  does  not  necessarily  have  to  include  all  the 
facts  in  evidence,97  but  if  there  is  no  dispute  upon  the  facts, 
it  is  proper  that  the  question  should  be  required  to  embrace 
them  all.98  The  question  may  embrace  all  the  facts  in  evi- 
dence, or  such  facts  as  counsel  may  see  fit  to  use,  and  if  there 
is  any  evidence  omitted  the  opposing  party  can,  upon  cross- 
examination,  call  attention  of  the  expert  to  such  facts.99  "When 
all  the  elements  are  not  embraced  in  the  hypothetical  ques- 
tions, those  stated  must  be  correct. 

An  expert  witness  cannot  be  asked  in  a  general  question  to 
state  his  opinion  upon  all  the  evidence  related  at  the  trial,  as 
this  would,  in  fact,  usurp  the  functions  of  the  jury.100  An  ex- 
pert can  with  entire  propriety  testify  to  facts  as  an  ordinary 
witness  as  well  as  upon  a  hypothesis  stated  in  a  question,  and 
therefore  hypothetical  questions  may  embrace  the  ordinary  tes- 
timony of  the  expert,  as  well  as  the  testimony  of  any  other 
witness.1 

91 — Inland    Printer   Co.   v.   Eco-        96 — Catlin   v.   Traders'   Ins.  Co., 

nomical    Half-Tone    Sup.    Co.,    99  supra. 
111.  App.  18.  97— Turnbull   v.   Richardson,    69 

92— W.  C.  St.  R.  Co.  v.  Fishman,  Mich.  400,  37  N.  W.  499. 
169   111.  196,  48  N.  E.  447.  98— Davis  v.  State,  35  Ind.  496. 

93— Hurst  v.  C.  R.  I.  &  P.  Co.,         99— Davidson  v.   State,  135   Ind. 

49    Iowa    76;    Kraatz    v.    Electric  254,  34  N.  E.  972. 
Light  Co.,  82  Mich.  457,  46  N.  W.        100— People  v.  Brown,  53  Mich. 

787.  531,  19  N.  W.  172. 

94 — R.    Co.    v.    Glenny,    175    111.        1 — Joslin  v.  Grand  Rapids  Ice  & 

238,  51  N.  E.  896.  Coal   Co.,    53  Mich.   322,   19   N.  W. 

95— Catlin    v.    Ins.    Co.,    83    111.  17;   Selleck  v.  Janesville,  100  Wis. 

App.  43.  157,    75    N.    W.    975,    41    L.   R.   A. 

563. 


§  128.]  EXAMINATION  OF  WITNESSES.  103 

The  expert  opinions  which  may  be  given  upon  the  trial  by 
other  expert  witnesses  than  the  one  testifying,  cannot  be.  in- 
corporated in  the  hypothetical  question  which  may  be  asked.2 
Considerable  latitude  should  be  allowed  by  the  court  in  cross- 
examination  of  expert  witnesses  in  order  to  test  their  knowl- 
edge and  determine  the  value  of  their  opinion.3 

For  the  same  reason  that  a  party  may  ask  of  a  witness  upon 
cross-examination  pertinent  questions  which  would  in  fact 
make  the  witness  his  own,  it  is  likewise  proper  to  ask  an  ex- 
pert hypothetical  questions  on  his  cross-examination.4  Hypo- 
thetical questions  stated  in  cross-examination  must  be  based  on 
facts  in  the  evidence  and  it  is  improper  to  assume  facts  to 
have  been  proven.5  This  has  no  reference,  however,  to  the 
mere  testing  of  the  skill  and  knowledge  of  the  expert. 

§128.  Scientific  and  Medical  Books  as  Evidence — Reading 
of  Books  to  the  Jury.  Medical  books,  even  though  standard, 
are  not  proper  to  be  read  to  the  jury  for  the  purpose  of  prov- 
ing symptoms  of  diseases,  unless  they  have  been  referred  to  by 
witnesses  and  are  to  be  used  for  the  purposes  of  contradic- 
tion.6 Books  of  medical  or  veterinary  practice  cannot  be  read 
to  the  jury  in  argument.7  Statements  made  in  books  of  science 
are  not  competent  as  evidence  for  any  purpose,8  being  bare 
statements  merely,  having  no  sanction  of  an  oath  and  not  sub- 
ject to  cross-examination. 

Books  of  exact  sciences,  such  as  mathematical  calculations 
and  not  of  mere  inductive  science,  may  be  read  in  evidence. 
So,  an  almanac  is  admissible  to  show  the  time  when  the  moon 
rises.9  It  is  within  the  sound  discretion  of  the  judge  to  regu- 
late the  reading  of  books  to  the  jury.    A  reading  of  part  of  a 

2— Louisville  Ry.  Co.  v.  Falvey,    30  N.  E.  329,  the  court  held  that 

104  Ind:  409,  4  N.  E.  908.  where  a  passage  in  a  medical  book 
3 — Chicago  &  A.  R.  Co.  v.  Red-     has  been   read  to  a  physician  on 

mond,  171  111.  347,  49  N.  W.  541;  the  stand,  and  he  has  been  asked 

Eslich  v.  Mason  City  &  Ft.  Dodge  if    the    statements    therein    agree 

Ry.  Co.,  75  Iowa  443,  39  N.  W.  700.  with  his  observations,  and  he  has 

4— Grubb  v.  State,  117  Ind.  277,  said  they  do,  the  passage  may  be 

20  N.  E.  257;  Conway  v.  State,  118  read  to  the  jury  in  argument. 
Ind.  482,  21  N.  E.  285.  7— Washburn     v.     Cuddihy,     74 

5 — Smalley  v.  Appleton,  75  Wis.  Mass.  430. 
18,  43  N.  W.  826.  8— North  Chgo.  Rolling  Mill  Co. 

6— Bixby  v.  Omaha,  a  B.  R.  Co.,  v.  Monka,   107   111.  340;    Brodhead 

105  Iowa  293,  75  N.  W.  182,  43  L.  v.  Wiltse,  35  Iowa  429. 

R.  A.  533.  9— Munshower  v.   State,  55   Md. 

In  Scott  v.  People,  141  111.  195,     11,  39  Am.  Rep.  414. 


104  INSTRUCTIONS    TO    JURIES.  f§128. 

Supreme  Court  opinion  in  argument  by  counsel,  but  chan 
it  to  correspond  with  the  facts  in  the  case  on  trial,  is   h 
improper,10  and  it  has  been  held  proper  to  refuse  p<  rmi 
to  read  from  another  opinion  of  a  court  to  the  jury.11 

Entries  in  a  family  Bible  are  admissible  as  evidence  in  mat 
ters  of  pedigree.12    The  minutes  of  a  stenographer,  even  thoug 
certified   to   by  him,   are  not  competent,   unless  made   so   by 
statute,  or  where  the  stenographer  who  transcribed  the  min- 
utes, testifies  that  his  transcript  is  correct,  or  where  the  stenog- 
rapher is  dead  or  beyond  the  jurisdiction  of  the  court. 

10— Hughes  v.  C.  M.   &  O.  Ry.,  12 — Supreme    Counsel    v.    Conk- 

122  Wis.  258,  99  N.  W.  902.  lin,  60  N.  J.  L.  565,  38  Atl.  659,  41 

11— Stone    v.    Com.,     131    Mass.  L.  R.  A.  449. 
438,   63  N.  E.  1074;    Com.   v.   Hill, 
145  Mass.  305,  14  N.  E.  124. 


CHAPTER  IX. 


OBJECTIONS    TO    EVIDENCE— CROSS    EXAMINATION- 
IMPEACHMENT— ATTORNEYS,  PARTIES  AND 
JUDGES  AS  WITNESSES. 


§  129.  Stating  objections  to  evi- 
dence. 

§  130.  Offer  of  testimony— state- 
ment by  counsel. 

§  131.  Exclusion  of  testimony  by 
opponent's  admission  of 
tbe  facts. 

§  132.  Objecting  to  and  striking 
out  evidence. 

§  133.  Must  remain  hostile  to  evi- 
dence objected  to. 

§  134.  Latitude  of  cross-examina- 
tion. 

§  135.  Cross-examination  on  the 
whole  issue,  Federal  rule. 

§  136.  Same  subject,  criticisms. 

§  137.  Same  subject,  leading  ques- 
tions, when  proper. 


§  138.  Conduct  of  cross-examina- 
tion. 

§  139.  Witnesses  as  to  character, 
cross-examination   of. 

§  140.  Impeachment  as  to  charac- 
ter, questions  as  to  specific 
acts. 

§  141.  Impeachment  in  general. 

§  142.  Presiding  judge  as  a  wit- 
ness. 

§  143.  Attorneys  in  the  case  as  wit- 
nesses. 

§  144.  Failure  of  the  parties  to  tes- 
tify— presumptions. 

§  145.  Parties  as  witnesses  subject 
to  criticism. 


§129.  Stating  Objections  to  Evidence.  The  particular 
grounds  upon  which  an  objection  to  the  evidence  is  based, 
should  be  stated;  a  general  objection  omitting  to  specify  the 
grounds  therefor  is  not  sufficient.1  The  use  of  the  words  "in- 
competent, irrelevant  and  immaterial"  is  usual!}7  considered 
as  comprehensive,  but  if  the  evidence  is  admissible  for  any 
purpose,  it  is  held  not  sufficiently  specific.2 

Incompetent  evidence  may  be  objected  to  at  any  time,3  but 
this  does  not  mean  that  objections  can  be  made  after  the 
submission  of  the  case  to  the  jury,  or  after  argument.4  The 
reason  for  stating  the  objection  with  specific  particularity  is 
that  the  opposing  party  may  be  apprised  of  its  objectionable 
features  so  he  may  be  able  to  remedy  it,  if  possible.     If  the 

1— McDonald   v.    Stark,    176    111.     land,  122  111.  461,  13  N.  E.  145. 
456,  52  N.  E.  37;  Tewalt  v.  Irwin,         3— Day  v.  Crawford,  13  Ga.  508. 
164  111.  592,  46  N.  E.  13.  4— Barton  v.  Gray,  57  Mich.  622, 

2— Chicago   &  E.    I.   Ry.  v.   Hoi-     24  N.  W.  638. 

105 


106  INSTRUCTIONS    TO    JURIES.  [§130. 

grounds  are  not  stated,  the  opposing  counsel  has  the  right  to 
demand  them,  but  if  this  is  not  done  and  the  objection  seems 
sufficient  to  the  court,  the  evidence  may  be  properly  refused. 

An  objection  to  evidence  as  being  incompetent  should  spe- 
cifically point  out  wherein  the  incompetency  consists.5  Where 
the  evidence  is  competent  for  any  purpose  it  should  be  admitted 
and  if  for  any  reason  it  should  be  restricted  in  its  application 
this  may  properly  be  done  by  an  instruction.6  The  objection 
that  a  question  is  leading  must  always  be  specifically  made.7 

§  130.     Offer  of  Testimony — Statement  by   Counsel.     If   a 

question  is  raised  as  to  the  admissibility  of  any  evidence  the 
party  offering  it  should  save  an  exception  to  the  ruling  of  the 
court  in  excluding  it.  Before  taking  an  exception,  it  is  con- 
sidered good  practice  to  make  an  offer  of  the  evidence  which 
has  been  objected  to,  before  the  ruling  is  made.  It  is  held 
that  the  offer  must  be  made  at  such  a  time  before  the  ruling 
as  to  give  the  court  an  opportunity  of  knowing  what  the  testi- 
mony is  sought  to  be  elicited.8 

To  refuse  counsel  the  opportunity  to  make  a  statement  of 
what  he  expects  to  prove  by  a  particular  question,  is  error, 
although  the  evidence  may  be  excluded.9  If  the  competency 
of  the  witness  is  brought  in  question  and  not  merely  his  testi- 
mony, it  is  not  necessary  to  state  the  substance  of  what  is 
expected  to  be  proved  by  him  as  it  otherwise  might  be.10 

The  offer  of  testimony  should  contain  the  substance  of  what 
is  expected  to  be  proven  by  the  witness  and  should  be  clear 
and  unequivocal,  and  must  be  competent  evidence  proper  for 
consideration  by  the  jury;11  and  the  presence  of  a  witness  is 
necessary  in  order  that  the  offer  of  his  testimony  may  be 
properly  made.12 

5 — Sanitary  Dist.  of  Chicago  v.  that  the  proper  foundation  has  not 

Bernstein,    175    111.    215,    51    N.   E.  been  laid." 

720.  8— Young  v.  Otto,  57  Minn.  307, 

6— Mighell  v.  Stone,  175  111.  261,  59  N.  W.  199. 

51  N.  E.  906.  9— Maxwell  v.  Habel,  92  111.  App. 

7— North  Chicago   St.   R.  Co.  v.  510;    Fidelity    &    Casualty    Co.    v. 

Balhatchett,  86  111.  App.  60.  Weise,  80  111.  App.  499. 

In  McDonald  v.  Stark,  supra,  the  10 — State    v.    Thomas,    111    Ind. 

court  held  that  "it  is  not  sufficient  515,  13  N.  E.  35. 

to  state  a  general  objection  against  11 — Cincinnati  Ry.  v.  Roesch,  126 

the    admission    of    secondary    evi-  Ind.  445,   26  N.  E.  171. 

dence   without   stating   specifically  12 — Lewis    v.    Newton,    93    Wis. 

405,  67  N.  W.  724. 


§  131.]  OBJECTIONS   TO   EVIDENCE.  107 

§  131.  Exclusion  of  Testimony  by  Opponent's  Admission  of 
the  Facts.  Should  the  evidence  offered  be  admitted  by  the  op- 
posing side  it  need  not  be  given.  The  court  is  not  bound  to  take 
evidence  on  uncontroverted  matters.13  This  method  should  not 
be  approved  too  extensively,  for  the  reason  that  a  party  has 
a  right  to  have  his  evidence  given  by  the  witnesses  produced 
and  to  have  the  jury  receive  the  benefit  of  the  manner  in  which 
the  witness  testifies  to  the  facts.  Aside  from  this  it  would  be 
exacting  a  hardship  on  the  party  to  demand  that  his  offer, 
when  made,  should  be  so  full,  accurate  and  complete,  that  if 
admitted  by  the  opposite  party,  it  would  be  considered  equiva- 
lent to  the  giving  of  the  testimony  itself  on  the  stand. 

"It  would  be  absurd  to  hold  that  any  party  by  his  bald 
admissions  on  a  trial  could  shut  out  legal  evidence,"  says  the 
Supreme  Court  of  Michigan.14 

§  132.  Objecting  to  and  Striking  Out  Evidence.  In  order 
to  take  advantage  of  the  improper  admission  of  evidence  as 
error  and  to  secure  a  reversal  on  that  ground,  such  evidence 
must  be  objected  to  at  the  trial.15  An  objection  made  after 
the  question  is  answered  comes  too  late.16  It  must  be  made 
before ;  and,  if  not,  the  only  proper  method  is  to  strike  out 
the  answer  where  not  responsive.17 

When  it  is  not  apparent  that  a  question  is  proper  and  an 
objection  thereto  is  sustained,  such  ruling  is  held  not  to  be 
erroneous  unless  a  statement  is  offered  as  to  the  facts  ex- 
pected to  be  proven  by  the  question.18  If  a  party  finds  answers 
of  a  witness  in  response  to  his  questions,  or  questions  of  the 
opposite  side  are  unresponsive  or  irrelevant  and  incompetent, 
such  answers  may  be  stricken  out  at  the  discretion  of  the 
court,  by  either  party. 

All  improper  and  incompetent  evidence  may  be  stricken  out 
on  motion  of  the  opposing  party  addressed  to  the  sound  dis- 
cretion of  the  court,  and  if  the  party  is  unsuccessful  in  his 

13— John    Hancock    Ins.    Co.    v.  17— Hebert  v.  Hebert,  104  N.  W. 

Moore,  34  Mich.  41.  911    (S.  D.). 

14 — Kimball  Mfg.  Co.  v.  Vroman,  In  Davis  v.  Holy  Terror  Mining 

35  Mich.  310,  24  Am.  Rep.  558.  Co.,  107  N.  W.  374,  the  court  held 

15 — Cleveland    C.   C.   Ry.   Co.   v.  that   when   an   answer   is   not   re- 
Strong,   66   111.   App.   604;    Scott  v.  sponsive  to  the  question  it  should 
C.  M.  &  St.  P.  Ry.,  78  Iowa  199,  be  stricken  out  on  motion. 
42  N.  W.  645.  18— Judy  v.  Buck,  82  Pac.  1104. 

16— Swigart    v.    Willard    (Ind.), 
76  N.  E.  755. 


108  INSTRUCTIONS    TO    JURIES.  [§133. 

motion,  the  jury  should  be  instructed  to  disregard  such  evi- 
dence.19 

§  133.  Must  Remain  Hostile  to  Evidence  Objected  to.  A 
party  who  has  objected  to  certain  evidence  should  remain 
hostile  to  it  or  else  his  objection  will  be  considered  waived. 
If  he  should  afterwards  introduce  the  same  evidence,  either 
confirming  or  explaining  it,  all  his  objections  would  be 
waived.20  If  improper  evidence  has  been  objected  to  and 
the  objection  is  overruled,  it  is  held  that  the  objecting  party 
has  the  right  to  put  matter  in  evidence  which  relates  to  the 
same  point  although  equally  improper.21 

It  is  proper  to  cross-examine  a  witness  upon  the  evidence 
to  which  the  party  has  objected  when  his  objection  is  over- 
ruled, although  this  is  dangerous  practice  and  liable  to  pre- 
clude the  party  from  maintaining  his  objection. 

§  134.  Latitude  of  Cross-Examination.  The  cross-examina- 
tion of  witnesses  has  for  its  object  to  discover  the  extent  or 
limitation  of  their  knowledge.  Cross-examination  should,  if 
possible,  follow  the  direct  immediately  so  the  connection  and 
real  significance  of  the  testimony  may  be  observed,  unless 
otherwise  ordered  in  the  court's  discretion.  If  cross-examina- 
tion is  waived  it  is  still  within  the  court's  discretion  to  allow 
the  party  at  a  further  stage  in  the  proceedings  to  recall  the 
witness  and  subject  him  to  cross-examination. 

The  question  arises  as  to  whether  on  cross-examination  a 
party  may  question  such  witness  merely  as  to  matters  called 
out  upon  his  direct  examination,  or  may  go  into  the  whole 
issue.  Upon  this  question  the  courts  hold  a  party  has  no  right 
to  introduce  his  own  case  to  the  jury  by  cross-examination 
before  his  adversary  has  closed.22  The  court  has  the  right  to 
allow  the  cross-examination  considerable  latitude  and  in  the 
use  of  its  sound  discretion  it  has  been  held  proper  in  some 
jurisdictions  to  allow  a  party  to  elicit  matters  on  cross-exam- 
ination which  are  in  support  of  his  own  side  of  the  case.23 
"Wherever  the  opposing  party  is  a  witness  the  courts  are  more 

19— Brandon  v.  L.  S.  &  M.  S.  Ry.  222,  50  N.  E.  325;  Bulliss  v.  C.  M. 

Co.,  8  0.  642.  &  St.  P.  Ry.  Co.,  76  Iowa  680,  39  N. 

20— Schroeder  v.  Michel,  98  Mo.  W.    245;    Bell    v.    Prewitt,    62    111. 

43,  11  S.  W.  314.  361.     (Case  reversed   for  allowing 

21 — Spaulding  v.   Chicago   &  K.  cross-examination  at  large.) 
C.  Ry.,  98  Iowa  205,  67  N.  W.  227.         23— McGuire  v.  Hartford  F.  Ins. 

22— W.    &    W.    Mfg.    Co.   v.    Bar-  Co.,  40  N.  Y.  Supp.  300. 
rett,  172  111.  610,  aff'g  70  111.  App. 


§135.]  OBJECTIONS   TO   EVIDENCE.  109 

inclined  to  allow  considerable  latitude  in  his  cross-examina- 
tion.24 

§  135.    Cross-examination  on  the  Whole  Issue,  Federal  Rule. 

It  would  seem  that  a  witness  once  offered  by  the  opponent,  if 
a  witness  for  any  purpose,  is  so  for  all  purposes,  and  may  be 
cross-examined  as  to  any  matter  in  the  issue.  This  is  the 
rule  of  the  common  law  and  in  use  in  the  courts  of  England, 
and  to  some  extent  in  the  United  States.25 

Chief  Justice  Story  in  one  of  his.  decisions  denied  this  broad 
rule  and  laid  down  what  is  known  as  the  Federal  Rule,  which 
limits  the  right  of  cross-examination  strictly  to  the  matters 
brought  out  in  chief.26  The  primary  obligation  of  the  oath 
of  a  witness  is  to  elicit  the  whole  truth,  and  why  should  not 
the  entire  knowledge  of  the  witness  in  regard  to  the  con- 
troversy be  exhausted?  Why  call  the  witness  later,  on  behalf 
of  the  other  party  when  he  has  already  been  vouched  for  as 
a  witness? 

It  is  urged  that  this  method  would  cause  the  party  who  first 
called  him  to  lose  his  right  of  cross-examination  but  this  would 
not  necessarily  follow  for  his  re-direct  examination  would 
serve  the  same  purpose. 

§  136.  Same  Subject — Criticisms.  It  is  urged  that  by  this 
method  a  party  could  secure  the  benefits  of  testimony  from  a 
witness  and  yet  impeach  the  same  witness,  but  this  objection 
is  not  of  great  weight  for  the  reason  that  a  party  may  in  many 
instances  do  this  very  thing,  and  aside  from  this,  it  must  be 
remembered  that  the  opposing  party  calling  the  witness  is 
the  one  who  has  primarily  vouched  for  his  credibility.  The 
main  object  is  to  elicit  the  whole  truth  concerning  the  trans- 
actions but  partially  explained,  and  where  the  whole  truth 
would  cause  them  to  appear  in  a  different  light,  only  justice 
would  be  served  thereby. 

Whenever  an  entire  transaction  is  in  issue,  evidence  which 
conceals  a  part  of  it  is  imperfect  and  does  not  comply  even 
with  the  obligation  of  the  oath.  The  witness  is  sworn  to  tell 
the  truth,  the  whole  truth  and  nothing  but  the  truth.  And 
any  question,  therefore,  which  fills  up  omissions  made  either 
by  accident  or  design  would  seem  to  be  proper  upon  cross- 

24— State  v.  Allen,  107  N.  C.  805,  26— Phila.  &  R.  Co.  v.  Stimpson, 

11  S.  E.  1016;   News  v.  Butler,  95  14  Pet.   (U.  S.)   448;  Wills  v.  Rus- 

Ga.  559,  22  S.  E.  282.  sell,  100  U.  S.  621;    1  Greenl.  Ev. 

25— Fulton    Bank   v.    Stafford,    2  445;     Stafford    v.     Fargo,     35     111. 

Wend.  N.  Y.  483.  481;  Mask  v.  State,  32  Miss.  405 


110  INSTRUCTIONS    TO    JURIES.  [§  137. 

examination.  To  permit  a  party  to  glean  out  particular  facts 
which  would  cause  a  false  account  in  his  behalf  and  to  bar 
the  opposing  side  from  sifting  the  testimony  of  the  witness 
by  which  this  can  be  detected  is  neither  right  nor  proper. 

No  one  should  be  compelled  to  make  his  adversary's  wit- 
nesses his  own  in  order  to  explain  a  transaction  which  has 
but  partially  been  gone  over  by  the  opponent.27  A  difference 
is  to  be  noticed  as  to  whether  the  answer  desired  on  cross- 
examination  is  a  part  of  the  case  of  the  plaintiff  or  the  de- 
fendant. 

§  137.  Same  Subject — Leading  Questions,  When  Proper.  It 
is  also  urged  that  this  method  would  permit  leading  questions 
to  be  asked,  but  this  objection  is  not  of  much  validity  for 
the  reason  that  the  witness  is  called  by  the  opponent  and  is 
necessarily  considered  as  hostile.  Leading  questions  may  al- 
ways be  asked  of  a  hostile  witness  and  that  even  where  the 
witness  has  been  offered  by  the  party  examining  him. 

A  witness  who  appears  eager  and  anxious  to  help  the  oppos- 
ing side  and  shows  a  partisanship  in  the  case  may  not  be  asked 
leading  questions  on  cross-examination,  even  where  he  is  called 
by  the  opposing  side.  The  state  of  mind  of  a  witness  is  the 
only  rule  to  guide  as  to  whether  a  leading  question  may  be 
asked  or-  not. 

§  138.  Conduct  of  Cross-Examination.  In  order  that  there 
may  be  a  cross-examination  at  all  there  must  of  necessity  be 
a  direct  examination  of  some  kind,  thus  leaving  on  record 
some  testimony  which  may  be  discredited.  There  can  be  no 
cross-examination  where  a  witness  has  been  merely  sworn  or 
been  offered  as  a  witness  but  no  testimony  was  given,  or  if 
it  was  given,  when  the  same  has  been  stricken  out  by  order 
of  court. 

The  conduct  of  cross-examination  is  within  the  discretion 
of  the  court  and  unless  the  rights  of  parties  have  been  preju- 
diced, is  not  reviewable  in  an  upper  court.  A  denial  of  the 
right  is  error  and  any  abridgment  which  would  amount  in 
any  measure  to  its  denial  would  also  be  error  justifying  a 
reversal.28 

Such  conduct  of  the  trial  court  as  may  unduly  hinder  the 
defendant,  trying  to   cross-examine   a  witness,   is  held  to  be 

27— Chandler  v.  Allison,  10  Mich.  28— Duquesne  Mfg.  Co.  v.  Wil- 
472.  liams,  79  111.  App.  277. 


§139.]  OBJECTIONS   TO   EVIDENCE.  Ill 

improper.29  Great  latitude  should  be  allowed  in  a  criminal 
case  in  the  cross-examination  of  the  prosecuting  witness,30  and 
in  fact  in  cross-examination  of  any  of  the  state's  witnesses. 
However,  it  is  held  that  the  limit  and  extent  of  cross-examina- 
tion, especially  in  civil  eases,  is  largely  within  the  discretion 
of  the  trial  court.31  The  manner  of  examining  a  witness  is 
entirely  within  the  discretion  of  the  court,  governed,  in  a 
measure,  by  the  demeanor  of  the  witness  during  his  examina- 
tion.32 

§  139.  Witnesses  as  to  Character,  Cross-examination  of. 
The  jury  may  be  made  acquainted  with  the  past  life  and  char- 
acter of  a  witness  through  cross-examination  within  reason- 
able limits  as  the  court  in  its  discretion  may  allow,  and  the 
putting  of  a  question  to  a  witness  which  involves  an  accusa- 
tion of  disgrace  or  dishonor,  is  not  error.33 

Witnesses  to  character  or  reputation  are  allowed  to  be  cross- 
examined  most  liberally  in  order  to  test  the  nature  and  grounds 
of  their  knowledge.  Such  witnesses  may  be  cross-examined 
and  asked  if  there  are  not  other  facts  contradicting  the  evi- 
dence they  have  given.  The  witness  may  be  asked  if  he  has 
not  heard  reports  of  good  character  where  he  has  testified 
to  the  bad  reputation  of  the  witness,34  but  questions  of  this 
nature  must  be  as  general  as  the  questions  asked  him  on  the 
direct.  For  this  reason  the  witness  to  the  bad  moral  character 
of  another  cannot  be  asked  whether  he  has  heard  certain  named 
persons  state  that  his  character  was  good;  it  must  refer  to 
the  general  character  in  the  neighborhood.35 

A  witness  to  the  reputation  of  another  may  be  cross-exam- 
ined as  to  the  grounds  and  sources  of  this  information  and  may 
be  asked  the  names  of  the  persons  from  whom  he  received  it 
and  what  they  said. 

§  140.  Impeachment  as  to  Character,  Questions  as  to  Specific 
Acts.  Whether  questions  relating  to  specific  acts  which  tend 
to  discredit  a  witness  or  impeach  his  moral  character  may  be 
asked  or  not,   is  variously  held  by  the  different  courts.     It 

29— Whiteman  v.  People,  83  111.        33— Beebe  v.  Knapp,  28  Mich.  72; 

App.  375.  Leland  v.  Kauth,  47  Mich.  508,  11 

30— Davids    v.    People,    192  111.     N.  W.  292;  McBride  v.  Wallace,  62 

190,  61  N.  E.  537.  Mich.  454,  29  N.  W.  75;   Knicker- 

31— R.  Co.  v.  Rathburn,  190  111.  bocker  v.  Worthing,  101  N.  W.  540. 
572,  60  N.  E.  817;  Harty  v.  Smith,         34— Hutts  v.  Hutts,  62  Ind.  240. 

74  111.  App.  196.  35— State  v.   Allen,  100  Iowa  7, 

32— Brown  v.  Burris,  8  Mo.  26.     69  N.  W.  274. 


112  INSTRUCTIONS    TO    JURIES.  [§141. 

seems  that  the  main  or  ultimate  fact  may  be  inquired  into  and 
not  the  details  thereof,  nor  as  to  matters  entirely  collateral 
and  immaterial.  To  ask  a  witness  if  he  has  been  convicted 
of  a  crime  is  entirely  proper  even  without  producing  the  rec- 
ord.36 In  the  state  of  New  York  an  attorney  may  properlj 
be  asked  whether  he  was  disbarred  at  any  time.37 

An  expulsion  from  a  church  or  a  discharge  from  the  public 
service  is  not  a  proper  matter  for  questioning  for  the  reason 
that  these  are  not  as  decisive  as  a  judicial  hearing  might  be 
of  the  guilt  or  innocence  of  the  party  or  proof  of  his  moral 
character. 

Questions  concerning  the  fact  of  having  been  arrested  or 
indicted  are  held  improper,38  although  in  some  states  it  has 
been  held  that  such  questions  may  be  asked.39  It  would  seem 
that  the  impropriety  of  asking  such  a  question  would  be  ap- 
parent for  the  reason  that  the  fact  of  arrest  or  indictment  is 
not  conclusive  in  the  least  sense  of  moral  turpitude  or  guilt; 
it  is  a  mere  accusation  at  the  most  and  entirely  consistent  with 
innocence. 

§  141.  Impeachment  in  General.  Impeachment  of  witnesses 
cannot  be  accomplished  without  first  laying  proper  foundation 
therefor.40  Nor  can  it  be  accomplished  by  first  showing  state- 
ments he  has  made  out  of  court,  and  then  calling  witnesses 
to  contradict  them.41  The  impeachment  of  a  witness  cannot 
be  accomplished  by  contradicting  him  as  to  immaterial  mat- 
ters.42 The  use  of  a  written  statement  signed  by  the  witness 
is  not  proper  for  the  purpose  of  impeachment  unless  a  proper 
foundation  is  first  laid.43  It  is  held  that  the  impeachment  of 
a  witness  cannot  be  made  by  party  calling  him,  nor  can  the 
effect  of  his  testimony  be  overcome  by  mere  denial  of  its 
truthfulness  by  counsel.44 

36— Hanners    v.    McClellan,    74  40— Hones  v.  Cline,  84  111.  App. 

Iowa  318,  37  N.  W.  389;    Handlin  429. 

v.  Law,  34  111.  App.  84.  41 — Vierling,  McDowell  &  Co.  v. 

37 — People   v.   Reavey,    38    Hun  Iroquois  Furnace  Co.,  68  111.  App. 

418;    People  v.   Dorthy,  156  N.  Y.  644,  affirmed  170  111.  189. 

237,  50  N.  E.  800.     (Right  denied  42— R.  Co.  v.  Finnan,  84  111.  App. 

and   held   that   witness   could   not  390;   R.  Co.  v.  Southwick,  165  111. 

he  required  to  state  upon  what  dis-  495. 

barment  rested.)  43— Himrod   Coal   Co.  v.   Adack, 

38— State  v.  Brown,  100  Iowa  50,  94  111.  App.  5. 

69  N.  W.  277.  44— R.  Co.  v.  Cohen,  66  111.  App. 

39— State  v.  Greenburg,  59  Kan.  320. 
404,  53  Pac.  61,  41  L.  R.  A.  349. 


§142.]  OBJECTIONS   TO   EVIDENCE.  113 

§  142.  Presiding  Judge  as  a  Witness.  A  judge  may  be  a 
witness  on  the  trial  at  which  he  presides  but  usually  only 
upon  some  formal  and  undisputed  point.45  In  any  other  event 
he  should  refuse  to  act  further  and  the  case  should  be  tried 
before  another  judge.  This  might  work  a  hardship  upon  the 
parties  by  forcing  a  postponement  of  the  trial  but  it  seems 
the  only  way  to  secure  justice  with  impartiality. 

The  practice  of  allowing  the  judge  to  testify  in  a  case  is 
certainly  reprehensible  for  if  one  party  is  entitled  to  his  testi- 
mony the  other  might  be  equally  sio.  On  a  motion  to  direct 
a  verdict  the  judge  would,  of  necessity,  be  forced  to  pass 
upon  his  own  evidence  and  the  rights  of  the  litigants  might 
be  prejudiced  in  that  event.  Aside  from  this  the  judge  would 
of  necessity  be  compelled  to  pass  upon  the  objection  made 
and  the  admissibility  of  his  own  answers  while  acting  as  a 
witness,  and  to  a  great  extent  the  jury  would  be  influenced 
to  attach  more  weight  to  the  testimony  of  the  judge  than  to 
any  other  witness.  The  only  safe  rule  for  the  party  desiring 
to  have  the  judge  as  a  witness  is  to  have  another  judge  preside 
at  the  trial  of  the  case.46 

Even  if  a  judge  is  able  to  pass  upon  the  admissibility  of 
his  own  evidence  and  the  objections  made  thereto,  it  would 
detract  from  the  dignity  of  the  judicial  office  to  do  so.  By 
taking  the  character  of  a  witness  he  appears  to  be  partisan 
and  arouses  the  distrust  of  the  party  against  whom  he  testifies, 
which  he  cannot  do  and  maintain  the  strict  impartiality  which 
the  law  exacts.47 

§  143.  Attorneys  in  the  Case  as  Witnesses.  An  attorney  is 
undoubtedly  competent  as  a  witness  for  his  client,  yet  this 
is  more  to  be  shunned  than  the  practice  of  allowing  the  judge 
or  juror  to  act  as  a  witness.  It  is  unseemly  for  an  attorney 
to  state  on  oath  those  things  upon  which  he  must  afterward 
comment  in  argument.48     The  reason  for  this  is  that  the  in- 

45 — The  judge  of  the  court  is  a  47 — Rogers  v.  State,  60  Ark.  T6- 

competent  witness  for  either  party  86,  29  S.  W.  894,  31  L.  R.  A.  465. 

and    may   be   sworn   on   the  trial.  48 — R.  v.  Brice,   2  B.  and  Add. 

But  in  such  case  it  is  his  discre-  606. 

tion   to   order  the  trial   postponed  In  State  v.  Seymour,  7  Idaho  548, 

or  suspended  and  to  take  place  be-  63   Pac.   1036,  the  court  held  that 

fore  another  judge.    Code  of  Iowa,  county    attorneys    could    be    com- 

Sec.  4610.  pelled  to  testify  for  the  defendant 

46 — Maitland  v.  Zanga,  14  Wash,  in    criminal    cases,    but    these    in- 

92,  44  Pac.  117.  stances  are  exceptional. 

S 


114  INSTRUCTIONS    TO    JURIES.  [§  143. 

terest  and  partisanship  which  he  has  in  favor  of  his  client 
through  his  relationship  causes  him  to  become  identified  in 
feeling,  if  not  in  interest,  with  his  client.49  Not  only  this,  but 
an  attorney  loses  the  respect  and  confidence  of  the  public  when 
he  becomes  a  witness  upon  his  own  case.  The  jury  may.be 
unduly  impressed  with  the  weight  of  the  argument  where 
the  attorney  is  able  on  account  of  having  been  a  witness  to 
weave  in  his  own  personal  opinion  and  evidence. 

It  is  sometimes  necessary  perhaps  that  an  attorney  testify 
for  his  client,  but  only  in  cases  of  the  most  pressing  necessity 
should  the  courts  countenance  such  practice.60  And  in  cases 
where  the  evidence  is  indispensable,  counsel  should  be  recom- 
mended by  the  court  to  withdraw  from  the  case.51  Attorneys 
are  not  compellable  to  testify  for  their  clients  although  com- 
petent,52 and  an  attorney  has  been  held  to  be  competent  as 
a  witness  for  his  client  even  though  he  acts  on  a  contingent 
fee.53  An  attorney  is  allowed  to  testify  as  a  subscribing  wit- 
ness to  a  will  although  it  is  said  that  the  courts  always  dis- 
countenance this  practice.54  There  is  really  no  good  reason 
for  criticising  such  practice,  as  the  probate  of  a  will  is  more 
of  a  formal  and  ministerial  duty  than  anything  else. 

In  regard  to  the  testimony  of  an  attorney  for  his  client  on 
a  mere  matter  of  reckoning  of  interest  the  Supreme  Court  of 
Illinois  said:  "We  are  not  altogether  in  favor  of  it  but  we 
have  no  law  or  rule  of  practice  against  it."55 

In  one  case 'the  court  spoke  of  it  as  a  highly  indecent  prac- 

49— Cox  v.  Williams,  5  Mart.  139.  subjects  his  testimony  to  criticism 

50— Smith  v.  Sebree,  2  Iowa  327;  if   not    suspicion;    but    where    the 

Spencer  v.  Kinnard,   12  Tex.   180,  half    of     valuable     farm     depends 

188.  upon  his  evidence,  he  places  him- 

51— Morgan  v.  Roberts,  38  Wash,  self  in  an  unprofessional  position, 

65.  and  must  not  be  surprised   if  his 

52— Willas  v.  West,  60  Ga.  613.  evidence   is   impaired.     While   the 

53  Central  Branch  U.  P.  R.  Co.  profession  is  an  honorable  one,  its 

v.  Andrews,   41   Kan.   370,   377,   21  members    should    not    forget    that 

Pac.  276,  3  L.  R.  A.  631.  even  they   may   so   act  as  to  lose 

54— Drach   v.   Kamberg,   1S7   111.  public   confidence   and   general   re- 

385,  58  N.  E.  370.  spect." 

55— Smith    v.    Sebree,    2    Iowa.         Sandford.   J.,   in  Little  v.  Keon, 

327;  Stratton  v.  Henderson,  26  111.  1  Code  Reporter  (N.  Y.  Super.)   4, 

69.  73,  76.  the  court  said  that  "Counsellors  of 

In  Ross  v.  Demoss,  45  111.  447,  standing  and  character  will  never, 
449,  the  court  said  that  "An  attor-  except  in  extreme  cases,  present 
ney  occupying  the  attitude  of  both  themselves  before  a  jury  as  wit- 
witness  and  attorney  for  his  client  nesses  in  their  own  causes  on  liti- 


§  143.]  OBJECTIONS    TO   EVIDENCE.  115 

tice  for  an  attorney  to  cross-examine  witnesses,  to  address  the 
jury  and  to  give  testimony  himself,  contradicting  witnesses, 
"though  his  testimony  is  sometimes  indispensable  and  no  law 

forbids  it."56 

Judge  Lewis  says  that  "in  the  course  of  twenty-five  years' 
experience  I  have  seldom  known  an  attorney  received  as  a 
witness  for  his  client  touching  a  disputed  point  without  some 
loss  of  reputation  and  without  bringing  some  reproach  upon 
the  profession  to  which  he  belongs  and  upon  the  court  of 
which  he  was  an  officer.  Existing  prejudices,  whether  just 
or1  not,  point  to  the  exclusion  of  such  testimony  as  indispensable 
to  the'  usefulness  of  all  who  are  officially  connected  with  the 
administration  of  justice."57 

The  Western  Law  Journal  in  a  very  able  article  on  this  sub- 
ject stated  that  "the  attorney's  exclusion  should  rest  on  pe- 
culiar grounds,  he  should  be  rejected,  not  for  the  protection 
of  the  opposite  party,  but  for  his  own;  not  because  his  in- 
tegrity may  be  exposed  to  temptation,  but  because  it  will  be 
disposed  to  suspicion."58 

An  attorney  can  hardly  testify  without  bias  or  favor  and 
tell  the  truth  of  the  matters  he  has  heard  or  seen  while  zeal- 
ously espousing  the  interests  of  his  client.  For  this  reason 
the  characters  of  advocate  and  witness  should  be  separate 
and  for  the  further  reason  that  the  jury  will  then  have  no 
difficulty  in  separating  statements  which  they  have  heard  from 
the  attorney  as  witness  from  those  he  afterwards  makes  in  his 
argument  to  the  jury.59 

It  has  even  been  held  proper  for  the  court  to  prohibit  an 
attorney  from  arguing  to  the  jury  on  a  case  in  which  he  has 
been  a  witness.00  This  rule  is  considerably  different  where 
the  party  himself  tries  the  case  for  the  reason  that  a  party  is 
always  entitled  to  try  his  own  case  and  to  be  a  witness.01 

gated  questions,  and  in  such  cases  56— Frear  v.  Drinker,  8  Pa.  St. 

only  because   of   some   unforeseen  520. 

necessity.    Those  gentlemen  of  the  57— Mishler  v.  Baumgardner,  Pa. 

bar    who    habitually    suffer    them-  Com.    PI.    1847;    1    American   Law 

selves  to  be  used  as  witnesses  for  Journal,  N.   S.  304,  308. 

their  clients  soon  become  marked,  58—5  Western  Law  Journal,  457. 

both   by  their   associates   and   the  59— Stones  v.   Byron,   4   Doll.   & 

courts,   and   forfeit  in  their  char-  L.  393. 

acter  more  than  will  ever  be  com-  60— Voss    v.    Bender,    32    Wash, 

pensated    to    them    by    success    in  566,  73  Pac.  697. 

such  clients'  controversies."  61— Tresher   v.   Bank,    68   Conn. 

201,  36  Atl.  38. 


116  INSTRUCTIONS    TO    JURIES.  [§  144. 

§  144.  Failure  of  the  Parties  to  Testify— Presumptions.  The 
parties  have  a  right  but  are  not  bound  to  testify  as  witnesses 
upon  the  case  in  their  own  behalf.  There  is  a  presumption  which 
arises  in  civil  cases  from  a  failure  to  testify,  although  this  may 
be  rebutted  by  proof  of  adequate  reasons  for  so  declining.62  The 
failure  of  a  party  to  testify  in  regard  to  material  matters  in 
his  case  of  which  he  has  a  special  full  knowledge  raises  a 
presumption  that  he  declines  to  testify  because  the  truth  would 
militate  against  his  contention.63 

For  this  reason,  also,  the  failure  of  a  party  to  call  a  witness 
whom  he  may  have,  possessing  peculiar  knowledge  con- 
cerning the  case  and  to  examine  such  witness  concerning  the 
facts  within  his  special  knowledge  amounts  almost  to  a  pre- 
sumption that  the  testimony  of  that  witness  would  not  sustain 
the  contention  of  the  party.  This  would  be  especially  true 
if  such  a  witness  was  favorable  to  the  party's  contention  and 
he  made  use  of  witnesses  relative  to  that  particular  matter  in 
dispute,  who  were  less  familiar  with  the  case  than  this  par- 
ticular witness.04 

§  145.  Parties  as  Witnesses,  Subject  to  Criticism.  The  testi- 
mony of  a  party  to  a  suit  is  open  to  criticism  on  the  same 
ground  that  the  testimony  of  any  interested  witness  would 
be.  The  Supreme  Court  of  Illinois  has  approved  an  instruction 
to  the  effect  that  "while  the  law  permits  the  plaintiff  in  this 
case  to  testify  in  his  own  behalf,  nevertheless  the  jury  have 
the  right  in  weighing  his  evidence  to  determine  how  much 
credence  is  to  be  given  him  and  to  take  into  consideration  the 
fact  that  he  is  the  plaintiff  and  interested  in  the  result  of  the 
suit."65  "Had  the  suit  been  against  a  natural  person."  says 
the  court  in  comment,  "and  had  both  plaintiff  and  defendant 
testified,  it  should  have  been  so  drawn  that  it  would  apply  to 
either  party  without  pointing  out  either."  As  it  was,  the 
refusal  of  the  above  instruction  was  held  reversible  error. 

62— Princeville      v.      Hitchcock,         65— Street  Ry.  v.  Dougherty,  170 

101  111.  App.  588;    Cramer  v.  Bur-  111.  379,  48  N.  E.  1000;    Street  Ry. 

lington,  49  Iowa  213.  v.    Mayer,    185    111.    336,    56    N.    E. 

63— Stock  Exchange  v.  Board  of  1058;    Street   Ry.    v.   Otis,    192    111. 

Trade,  196   111.  396,  63  N.  E.   740;  514,  61  N.  E.  459;   Chicago  &  E.  I. 

Cole  v.  Lake  Shore  Ry.,   81  Mich.  Ry.  v.  Burridge,  211  111.  9,  71  N.  E. 

156,  45  N.  W.  983.  838;  Feary  v.  Met.  St.  Ry.,  162  Mo. 

64— Princeville  v.  Hitchcock,  101  75,  62  S.  W.  452;   Hess  v.  Lowrey, 

HI.   App.    588;    Stock  Exchange  v.  122  Ind.  225,  23  N.  E.  156,  7  L.  R. 

Soard  of  Trade,  supra;  Mantonya  A.  90. 
V.  Reilly,  83  111.  App.  275. 


CHAPTER  X. 


VIEW  AND  INSPECTION  BY  THE  JURY. 


§  146.  When  permitted  —  Illustra- 
tions. 

§  147.  Power  to  compel  an  exhibi- 
tion of  the  body  against  a 
party's  will. 


Inviolability  of  person— Crit- 
icisms. 


§148. 

§  149.  Enforcement  by  penalties 


§  150.  Compelling  defendant  in 
criminal  case  to  submit  to 
tests  for  purposes  of  iden- 
tification. 
Inconvenience,  shame,  risk 
of  health  and  similar  crit- 
icisms discussed — Rule  in 
Illinois. 
Examination  by  surgeon  or 
commission  of  physicians 
and  surgeons. 


§151. 


§  152. 


§  146.  When  Permitted— Illustrations.  It  is  a  common  prac- 
tice for  the  parties,  especially  in  actions  for  personal  injuries, 
to  submit  their  injuries  to  the  jury  for  inspection  and  this 
practice  is  approved  by  many  courts.1  This  practice  rests 
largely  in  the  discretion  of  the  trial  court  and  where  the  ex- 
hibition may  be  unseemly  or  dangerous  to  health  it  may  prop- 
erly be  refused.  An  exhibition  of  an  injured  member  of  one 
of  the  parties  is  held  to  have  been  properly  refused  by  the 
trial  court  in  its  discretion.2 

An  exhibition  of  an  injured  leg  to  the  jury  has  been  held 
to  rest  in  the  sound  discretion  of  the  trial  court,  who  may 
decline  to  compel  the  removal  of  salve  from  the  wound,  so 
that  it  mav  be  better  observed.3  So,  also,  is  it  within  the  dis- 
cretion of  the  court  to  permit  the  plaintiff  to  show  his  injuries 
to  the  jury  in  an  action  for  criminal  assault.4 

The  torn  clothing  which  the  plaintiff  wore  at  the  time  of  the 
injury  may  be  placed  on  exhibition  before  the  jury  for  their 
inspection.5     And  it  has  also  been  held  proper  to  allow  the 

1-Mulhada   v.    Brooklyn,    30  N.     25  N.  W.  100;    Hall  v.  Manson,  68 

Y    370  N.  W.  922;  L.  N.  A.  &  C.  Ry.  Co.  v. 

2— Grand  Lodge  Brotherhood  of     Wood,  113  Ind.  548,  14  N.  E.  572, 

16  N.  E.  197;  Mulhada  v.  Ry.  Co. 
supra;  Hatfield  v.  Ry.  Co.,  33 
Minn.  130,  22  N.  W.  176. 

5— Tudor  Iron  Works  v.  Weber, 
129  111.  535,  21  N.  E.  1078. 


R.  Trainmen  v.  Randolph,  186  111. 
90,  57.  N.  E.  882. 

3_Swift  &  Co.  v.  O'Neil,  88  Am. 
Rep.  168. 

4— Barker  v.   Perry,   67   la.   146, 


117 


118  INSTRUCTIONS    TO    JURIES.  [§147. 

plaintiff,  in  an  action  against  a  carrier  for  loss  of  goods,  to 
show  to  the  jury  similar  articles.0  The  weapon  used  by  tin- 
accused  in  a  criminal  assault,  may  be  shown  to  the  jury;'  so 
also  tools  used  in  the  commission  of  a  burglary,8  and  Burgical 
instruments  used  for  illegal  purposes,  such  as  procuring  abor- 
tions, under  an  indictment  for  such  offenses,'-'  may  all  be 
shown  to  the  jury. 

The  jury,  as  at  common  law,  may  be  permitted  to  take  a 
view  or  not,  as,  in  the  discretion  of  the  court,  9  view  may  be 
deemed  proper  or  necessary  to  enable  the  jury  to  understand 
and  apply  the  evidence,  though  not  a  matter  of  right.10 

§  147.  Power  to  Compel  an  Exhibition  of  the  Body  Against 
a  Party's  Will.  The  question,  however,  of  the  power  of  the 
trial  court  to  compel  an  exhibition  or  allow  an  examination 
of  the  body  of  one  of  the  parties  againsl  Ids  will  seems  to  be 
in  a  state  of  confusion  and  uncertainty.  A  view  by  the  jury 
at  common  law  was  undoubtedly  sanctioned  but  in  what  par- 
ticular cases  is  not  altogether  clear,  neither  is  the  extent  of 
the  court's  authority  entirely  clear.  The  Supreme  Court  of 
Minnesota  held  that  the  trial  court  in  an  action  for  personal 
injuries  might  compel  the  performance  of  some  physical  act 
before  the  jury  so  that  the  extent  of  his  injury  could  be  seen. 
The  court  said:  "As  the  object  of  all  judicial  investigation 
is,  if  possible,  to  do  exact  justice  and  obtain  the  truth  in  its 
entire  fullness,  we  have  no  doubt  of  the  power  of  the  court, 
in  a  proper  case,  to  require  the  party  to  perform  a  physical 
act  before  the  jury  that  will  illustrate  or  demonstrate  the 
extent  or  character  of  his  injuries."11 

§  148.  Inviolability  of  Person — Criticisms.  There  can  be 
no  sound  objection  to  allowing  the  jury  to  see  the  objects 
with  which  the  testimony  is  concerned  in  order  that  a  clearer 
understanding  may  be  had12  and  if  a  party  may  do  so  at  his 
option  there  can  be  no  real  reason  against  compelling  him 
to  make  such  disclosures  at  the  request  of  his  opponent.13     It 

6— Am.  Exp.  Co.  v.  Spellman,  90  10— Vane    v.    Evanston,    150    111. 

111.   455;    Jupitz  v.  People,   34   111.  616. 

516.  11— Hatfield  v.  Ry.  Co.,  33  Minn. 

7— Wyman  v.  State,  56  Ga.  113;  130,  22  N.  W.  176. 

State  v.  Mordecai,  68  N.  C.  207.  12— Butler   v.    Ricketts,    6    Iowa 

8— People  v.  Lamed,  3  Seld.  455.  92. 

9 — Commonwealth  v.  Brown,  121  13 — Hadfield     v.     Railway     Co., 

Mass.  69.  supra. 


§148.]  VIEW  AND  INSPECTION  BY  JURY.  119 

is  urged  that  the  inviolability  of  the  person  is  invaded  thereby, 
but  the  duty  to  bear  witness  to  the  truth  by  whatever  mode 
of  expression  may  be  appropriate  includes  the  duty  to  exhibit 
the  physical  body  as  far  as  the  truth  requires  it. 

As  the  Supreme  Court  of  Iowa  has  well  stated:  " Whoever 
is  a  party  to  an  action  in  a  court,  whether  a  natural  person 
or  a  corporation,  has  a  right  to  demand  therein  the  adminis- 
tration of  exact  justice.  This  right  can  only  be  secured  and 
fully  respected  by  obtaining  the  exact  and  full  truth  touching 
all  matters  in  issue  in  the  action.  If  truth  be  hidden,  injustice 
will  be  done.  The  right  of  the  suitor,  then,  to  demand  the 
whole  truth  is  unquestioned;  it  is  the  correlative  of  the  right 
to  exact  justice.  ...  To  our  minds  the  proposition  is 
plain  that  a  proper  examination  by  learned  and  skilful  physi- 
cians and  surgeons  would  have  opened  a  road  by  which  the 
cause  could  have  been  conducted  nearer  to  exact  justice  than 
by  any  other  way." 

"The  plaintiff,  as  it  were,  had  under  his  own  control  testi- 
mony which  would  have  revealed  the  truth  more  clearly  than 
any  other  that  could  have  been  introduced.  The  cause  of 
truth,  the  right  administration  of  the  law,  demand  that  he 
should  have  produced  it.  .  .  .  It  is  said  that  the  examina- 
tion would  have  subjected  him  to  danger  of  his  life,  pain  of 
body,  and  indignity  to  his  person.  The  reply  to  this  is  that 
it  should  not;  and  the  court  should  have  been  careful  to  so 
order  and  direct.  .  .  .  As  to  the  indignity  to  which  an 
examination  would  have  subjected  him,  as  urged  by  counsel, 
it  is  probably  more  imaginary  than  real.  An  examination  of 
the  person  is  not  so  regarded  when  made  for  the  purpose  of 
administering  remedies ;  those  who  effect  insurance  upon  our 
lives,  pensioners  for  disability  incurred  in  the  military  service 
of  the  country,  soldiers  and  sailors  enlisting  in  the  army  and 
navy,  all  are  subjected  to  rigid  examinations  of  their  bodies; 
and  it  is  never  esteemed  a  dishonor  or  indignity.  ...  If 
for  this  purpose  (to  show  the  nature  of  the  injury)  the  plaintiff 
may  exhibit  his  injuries,  we  see  no  reason  why  he  may  not, 
in  a  proper  case  and  under  like  circumstances  be  required  to 
do  the  same  thing  for  a  like  purpose  upon  the  request  of  the 
other  party."14 

14 — Schroeder  v.  R.  Co.,  47  Iowa  "The  plaintiff  complained  of  an  in- 

375-379.  jury  to   the   spine   and   defendant 

In  Hess  v.  Railroad  Company,  7  asked  for  an  order  of  physical  ex- 
Pa.  Com.  PI.  565,  the  court  said:  amination   by   means  of  electrical 


120 


INSTRUCTIONS    TO    JURIES. 


[§149. 


§  149.  Enforcement  by  Penalties.  The  Supreme  Court  of 
Minnesota  lays  down  the  rule  that  while  a  party  cannot  be 
compelled  to  submit  to  a  personal  examination,  he  must  either 
submit  thereto  or  have  his  action  dismissed.15  In  Wisconsin 
the  courts  have  upheld  the  granting  of  an  order  for  the  in- 
spection and  examination  of  the  opposing  party  by  medical 
experts,16  but  the  court  refused  to  granl  an  order  for  a  second 
examination  where  the  plaintiff  had  submitted  to  one  examina- 
tion by  X-ray  process  and  had  been  burned.17  The  rule  seems 
to  be  in  this  state  that  an  examination  cannot  be  required  as 
a  matter  of  right  but  is  within  the  court's  discretion.18 

Aside  from  the  penalty  above  stated  of  dismissing  the  party's 
case  upon  his  refusal  to  submit  to  an  examination,  a  proceed- 
ing in  contempt  might  be  employed  as  an  alternative  penalty. 
The  exhibition  of  the  body  need  not  be  directly  to  the  court, 
first  because  the  jury  could  often  not  comprehend  the  appear- 


test.  To  grant  the  order  prayed 
for  is  but  to  apply  the  principle  of 
allowing  the  inspection  of  writ- 
ings. The  object  of  a  trial  is  that 
substantial  justice  may  be  done 
between  litigants.  If  a  defendant 
is  denied  the  reasonable  oppor- 
tunity of  testing  the  truth  of  plain- 
tiff's allegations  who  alleges  an  in- 
jury which  can  only  be  discovered 
upon  an  examination  by  experts, 
courts  may  be  applied  to  and 
relied  upon  to  assist  in  fraudu- 
lent and  unjust  recoveries  upon 
the  testimony  of  plaintiff  and 
witnesses  of  his  own  selection, 
whose  only  knowledge  may  be  de- 
rived from  declarations  made  by 
the  plaintiff  for  the  purpose  of 
manufacturing  evidence  in  his  own 
favor.  To  permit  such  a  practice 
would  be  to  encourage  perjury.  On 
the  other  hand,  if  the  claim  is 
meritorious,  if  he  has  sustained 
injuries  complained  of,  he  has 
nothing  to  fear  from  the  most 
searching  examination." 

15 — Wanek  v.  Winona,  78  Minn. 
98,  80  N.  W.  851. 


In  this  case  the  court  said  as 
follows: 

"The  trial  court  has  power  to  or- 
der a  personal  inspection  and  to 
require  the  plaintiff  to  submit  un- 
der penalty  of  having  his  action 
dismissed.  The  right  to  possession 
and  control  of  the  person  is  no 
more  sacred  than  the  cause  of  jus- 
tice. When  a  person  appeals  for 
justice  tendering  an  issue  as  to  his 
own  personal  condition,  he  im- 
pliedly consents  in  advance  to 
make  any  disclosure  necessary  to 
be  made  in  order  that  justice  may 
be  done.  No  one  claims  that  he 
can  be  compelled  to  submit  but  he 
must  either  submit  or  have  his 
action  dismissed.  Any  other  rule 
in  personal  injury  cases  would  re- 
sult in  a  denial  of  justice  to  the 
defendant  and  leave  him  at  the 
mercy  of  plaintiff's  witnesses." 

16— White  v.  R.  Co.,  61  Wis.  536, 
21  N.  W.  524. 

17 — Boelter  v.  Ross  Lumber  Co., 
103  Wis.  324,  79  N.  W.  243. 

18— O'Brien  v.  LaCrosse,  99  Wis. 
421,  40  L.  R.  A.  831,  75  N.  W.  81. 


§  150.]  VIEW  AND  INSPECTION  BY  JURY.  121 

ances  without  expert  explanation  and  secondly  because  the 
public  exposure  might  be  unnecessarily  embarrassing. 

§  150.  Compelling  Defendants  in  Criminal  Case  to  Submit 
to  Tests  for  Purposes  of  Identification.  In  the  Supreme  Court 
of  the  United  States  the  court  in  discussing  this  question,  used 
the  following  language : 

"No  right  is  held  more  sacred,  or  is  more  carefully  guarded 
by  the  common  law,  than  the  right  of  every  individual  to  the 
possession  and  control  of  his  own  person,  free  from  all  re- 
straint or  interference  of  others,  unless  by  clear  and  unques- 
tionable authority  of  law.  The  inviolability  of  the  person  is 
as  much  invaded  by  a  compulsory  stripping  and  exposure  as 
by  a  blow.  To  compel  any  one,  and  especially  a  woman  to  lay 
bare  the  body,  or  to  submit  it  to  the  touch  of  a  stranger,  with- 
out lawful  authority,  is  an  indignity,  an  assault  and  a  trespass; 
and  no  order  or  process  commanding  such  an  exposure  or 
submission  was  ever  known  to  the  common  law  in  the  admin- 
istration of  justice  between  individuals,  except  ii  a  very  small 
number  of  cases,  based  upon  special  reasons  and  upon  ancient 
practice  coming  down  from  ruder  ages,  now  mostly  obsolete 
in  England,  and  never,  so  far  as  we  are  aware,  introduced  into 
this  country."19 

In  North  Carolina  it  was  held  error  to  allow  the  state  to  offer 
a  negro  defendant  to  the  inspection  of  the  jury  in  order  that 
they  could  see  that  he  was  within  the  prohibited  degrees.  Ap- 
parently the  defendant  was  in  the  court  room  but  in  a  place 
where  the  jury  could  not  see  him.20  The  same  court  later  held 
that  it  was  no  violation  of  the  constitutional  right  of  the 
defendant  to  allow  an  officer  to  testify  that  he  had  compelled 
the  defendant  to  put  his  shoe  in  a  track  or  foot  print,  for  the 
purpose  of  seeing  whether  it  would  fit  or  not.21 

In  Tennessee  it  was  held  to  be  error  prejudicially  influencing 
the  jury  to  demand  that  a  prisoner  put  his  foot  in  a  certain 
pan  of  soft  mud  brought  in  before  the  jury  in  court  for  the  pur- 
pose of  identification.22 

Examination  of  the  urine  and  Mad-  646;  Day  v.  State,  63  Ga.  667.   But 

der  by  catheter  insertion  refused.  see  O'Brien  v.  State,  25  N.  E.  138; 

19— Union  Pacific  R.  Co.  v.  Bots-  State  v.  Garrett,  71  N.  C.  95,  and 

ford,  141  U.  S.  250,  11  Sup.  1000.  State  v.  Ah  Chuey,  14  Nev.  79. 

20 — State  v.  Jacob,  5  Jones  law  22 — Stokes     v.     State,     6     Bax. 

(N.  C.)  239.  (Tenn.)  619. 

21— State   v.   Graham,   74  N.   C. 


122  INSTRUCTIONS    TO    JURIES.  [§151 

§  151.  Inconvenience,  Shame,  Risk  of  Health  and  Similar 
Criticisms  Discussed — Rule  in  Illinois.  This  question  of  the 
power  of  the  court  to  order  an  inspection  of  the  body  of  one  of 
the  parties  against  his  will,  seems  to  have  been  settled  in  some 
courts  in  certain  kinds  of  actions,  but  as  to  others,  it  is  still  in 
confusion.  That  the  court  has  power  in  the  exercise  of  sound 
discretion  to  direct  such  examinations,  in  actions  for  personal 
injuries,  is  upheld  by  the  decisions  of  many  courts,  but  where 
no  sufficiently  valuable  evidence  can  be  reasopably  expected  to 
be  obtained  from  it  or  where  the  inconvenience,  shame  and  risk 
to  health  would  be  considerable,  it  seems  that  the  court  may 
properly  refuse  such  requests. 

The  courts  do  not  consider  the  matter  of  inconvenience  or 
shame  involved  as  the  absolute  criterion  for  refusing  an  ex- 
amination, however,  as  the  Supreme  Court  of  Alabama  lias 
said:  "An  examination  should  not  be  denied  merely  because 
the  party  is  a  young  woman  of  dedicate  ami  refined  feeling  and 
nervous  temperament,  especially  when  she  has  already  sub- 
mitted to  several  examinations  by  her  own  physicians  and  this 
examination  would  have  no  injurious  results."23 

"Justice  should  not  be  sacrificed  to  notions  of  delicacy.  The 
attainment  of  justice  is  of  greater  importance  than  mere  per- 
sonal consideration,"  is  the  language  used  by  the  Supreme 
Court  of  Washington  in  a  case  involving  this  question.24 

In  New  York  the  Supreme  Court  held  that  a  forcible  ex- 
amination of  a  female  prisoner  to  determine  whether  she  had 
delivered  a  child  recently,  was  a  violation  of  her  constitutional 
privilege.25  So  also  in  Indiana  the  court  said:  "One  should 
not  publish  and  circulate  slanderous  charges  against  a  young 
unmarried  female,  and  when  called  on  to  prove  them,  ask  the 
court  to  aid  in  the  search  for  evidence  by  ordering  and  sub- 
jecting her  to  an  indelicate  examination  of  her  person,  with 

23 — Ala.  G.  S.  R.  Co.  v.  Hill,  90  woman  would  not  subject,  but  jus- 
Ala.  71,  8  S.  Rep.  90,  9  L.  R.  A.  tice  should  not  be  sacrificed  to 
442.  notions  of  delicacy.  The  attain- 
Where  the  court  says:  "It  is  ment  of  justice  is  of  greater  im- 
said  that  it  is  abhorrent  to  the  portance  than  mere  personal  con- 
principles   of   liberty   to  compel  a  sideration." 

party  to  submit  to  a  personal  ex-  24 — Lane  v.   R.   Co.,   221   Wash, 

animation;  that  it  invades  the  in-  119,  57  Pac.  367,  46  L.  R.  A.  153. 

violability  of  the  person  is  an  in-  25 — People    v.    McCoy,    45    How. 

dignity   involving   assault   and   an  Pr.  (N.  Y.)  216. 
impertinence   to    which    a   modest 


§  ±52.]  VIEW  AND  INSPECTION  BY  JURY.  123 

the  hope  of  obtaining-  some  information  advantageous  to  the 
defendant  and  call  upon  the  court  as  a  means  of  humiliating 
her  some  more."26 

§  152.  Examination  by  Surgeon  or  Commission  of  Physicians 
and  Surgeons.  The  Supreme  Court  of  Illinois  was  divided 
upon  the  question  of  whether  a  view  could  be  ordered  against 
the  objection  of  a  party  in  any  case  in  which  this  was  not  pro- 
vided for  by  statute,27  the  majority,  however,  being  on  the  side 
of  its  propriety. 

It  is  well  settled,  however,  in  the  latter  state  that  the  court 
possesses  no  power  to  require  the  plaintiff  in  an  action  for 
personal  injury  to  submit  to  a  personal  examination  by  a  com- 
mission of  physicians  or  surgeons  against  his  will.28  The 
court  may,  however,  in  its  discretion  in  an  action  for  damages 
for  personal  injury  permit  a  surgeon  to  make  -an  examination 
of  the  plaintiff  even  in  the  presence  of  the  jury.29 

26— Kern  v.  Bridewell,  119  Ind.  Co.  v.  Coll.,  143  111.  177,  aff'g  42  111. 

226,  21  N.  E.  664.  App.  41,  32  N.  E.  389;    Pe.  Dec.  & 

27— Springer  v.  Chicago,  135  111.  Ev.  Ry.  Co.  v.  Rice,    144  111.  227, 

552,  aff.,  37  111.  App.  206,  26  N.  E.  aff'g  46  111.  App.  60,  33  N.  E.  951; 

514.  Beardstown  v.  Smith,  150  111.  169, 

28— St.  Louis  Bridge  Co.  v.  Mil-  aff'g  52  111.  App.  46,  37  N.  E.  211. 

ler,  138  111.  465,  aff'g  39  111.  App.  29— Lanark    v.    Dougherty,    153 

366,  28  N.  E.     1091;   Joliet  St.  Ry.  111.  163,  38  N.  E.  892. 


CHAPTER   XI. 


INSTRUCTIONS    IN    GENERAL— FORMS    AND    REQUISITES- 
STATUTORY  PROVISIONS  OF  THE  VARIOUS  STATES. 


§  153.  Common  law  practice  as 
to  instructions — Notes  on 
statutory  modifications. 

§  154.  Court  may  instruct  without 
being  asked. 

§  155.  Duty  to  instruct  whether  re- 
quested or  not. 

§  156.  Failure  to  instruct  cannot 
be  objected  to  unless 
written  instructions  have 
been  presented. 

§  157.  Instructions  given  on  re- 
quest of  parties. 

§  158.  Statutes  mandatory. 

§  159.  In  writing  may  be  waived. 

§  160.  Court  may  limit  the  time  for 
instructions. 

§  161.  Reading  instructions  given 
to  the  jury — Marking  in- 
structions "given"  or  "re- 
fused" or  "changed  thus.' 

§  162.  Numbering  and  signing  in- 
structions. 

§  163.  Must  not  assume  facts  not 
admitted. 

§  164.  Assuming  facts  to  be  true. 

§  165.  Facts  not  controverted  may 
be  assumed. 

§  166.  Instructions  should  indicate 
no  opinion  as  to  the 
weight  of  evidence. 

§  167.  Instructions  may  assume 
what  the  law  presumes. 

§  168.  Right  of  the  parties  to  as- 
sume any  reasonable  hy- 
pothesis on  the  facts. 

124 


§  169.  Reference  to  pleadings  in  in- 
structions. 

§  170.  Referring  to  issues  involved 
in  case. 

§  171.  Should  be  confined  to  the 
issues  being  tried. 

§  172.  Instructions  must  be  accu- 
rate and  pertinent. 

§  173.  Instructions  regarded  as  a 
whole — When  faulty  in- 
structions may  be  cured 
by  others. 

§  174.  Should  be  harmonious. 

§  175.  One  instruction  may  be 
limited  by  others. 

§  176.  Undue  prominence  to  any 
fact — Referring  to  prior 
trials. 

§  177.  Instructions  should  not  be 
repeated  or  underscored 
in  places. 

§  178.  When  all  material  allega- 
tions are  proved. 

§  179.  Abstract  propositions  of  law 
should  not  be  given,  when. 

§  180.  Should  not  submit  questions 
of  law  to  the  jury. 

§  181.  In  criminal  cases  the  jury 
are  the  judges  of  the  law 
as  well  as  of  the  facts  of 
the  case. 

§  182.  Instructions  should  be  con- 
cerned with  matters  of 
law  exclusively. 

§  183.  Jury  to  take  law  from  the 
court. 

§  184.  Metaphors  and  Latin  words. 


§  153.] 


STATUTORY  PROVISIONS. 


125 


§  185.  Error  in  admitting  evidence, 
obviated  by. 

§  186.  When  not  obviated  by. 

§  187.  Instructing  the  jury  to  dis- 
regard certain  evidence. 

§  188.  Effect  of  evidence,  limited 
by. 

§  189.  When  erroneous  instructions 
are  not  held  prejudicial. 

§  190.  Error  will  not  always  re- 
verse. 

§  191.  When  error  will  reverse. 

§  192.  Must  be  construed  in  con- 
nection with  the  evidence. 

§  193.  Should  be  given  when  there 
is  any  evidence,  etc. 

§  194.  Instructing  that  evidence 
tends  to  prove. 

§  195.  Should  not  be  argumenta- 
tive. 

§  196.  Should  not  ignore  facte  prov- 
en. 

§  197.  Must  not  prejudice  or  favor 
either  party. 

§  198.  Jury  must  believe  from  the 
evidence  alone. 

§  199.  Should  be  based  on  the  evi- 
dence. 

§  200.  Instructing  the  jury  that 
they  are  the  exclusive 
judges  of  the  facts. 

§  201.  Should  be  clear,  accurate 
and  concise. 

§  202.  Should  be  clear  and  unequi- 
vocal, not  contradictory. 

§  203.  Jury  should  consider  all  the 
evidence;  but  need  not  be 
instructed. 

§  204.  Should  not  instruct  upon 
immaterial  matter;  must 
be  prejudicial  to  be  re- 
versible error. 


§  205.  Should  not  compromise  be- 
tween liability  and  the 
amount  of  damages. 

§  206.  Jury  bound  to  follow  in- 
structions; effect  of  dis- 
obedience. 

§  207.  Right  to  see  instructions 
requested  by  opponent. 

§  208.  Party  not  always  entitled  to 
an  instruction  in  the  form 
requested. 

§  209.  Not  error  to  refuse  requested 
instructions  already  in- 
cluded in  those  prepared 
by  the  court. 

§  210.  Number  of  instructions  lim- 
ited by  the  court. 

§  211.  The  giving  of  further  in- 
structions is  in  the  discre- 
tion of  the  court. 

§  212.  The  jury  may  come  in  for 
further  instructions. 

§  213.  Instructions  taken  by  the 
jury  upon  retirement. 

§  214.  When  the  jury  may  take 
the  pleadings  upon  retire- 
ment. 

§  215.  Law  books,  etc.,  should  not 
be  taken  to  jury  room. 

§  216.  Depositions  and  other 
papers  taken  by  the  jury 
upon  retiring. 

§  217.  Permitting  the  jurors  to 
make  memoranda  on  the 
evidence  and  take  same  to 
the  jury  room. 

§  218.  Introducing  further  evidence 
after  retirement  of  jury  or 
after  verdict. 

§  219.  Protraction  of  trial  over 
night. 


§  153.  Common  Law  Practice  as  to  Instructions — Statutory- 
Modifications.  In  the  orderly  and  regular  progress  of  a  cause 
before  a  jury,  in  courts  where  the  common  law  practice  pre- 
vails, after  the  cause  has  been  argued  by  the  counsel  on  both 


126  INSTRUCTIONS    TO    JURIES.  [§153. 

sides,  the  judge  proceeds  to  charge  the  jury  orally,  explaining 
to  them  the  nature  of  the  action  and  of  the  defense,  and  the 
points  in  issue  between  the  parties,  recapitulating  the  evidence 
which  has  been  produced  upon  both  sides,  and  remarking  upon 
it  when  he  deems  it  necessary  or  desirable,  and  directing  or  in- 
structing the  jury  on  all  points  of  law  arising  upon  the  evi- 
dence; or,  to  quote  the  words  of  Chitty:  "It  is  the  practice  for 
the  judge  at  nisi  prius  not  only  to  slate  to  the  jury  all  the  evi- 
dence that  has  been  given,  but  to  comment  upon  its  bearing 
and  weight,  and  to  state  the  legal  rules  upon  the  subject  and 
their  application  to  the  particular  case,  and  to  advise  them  as 
regards  the  verdict  they  should  give." 

This  common  law  practice,  in  many  of  the  states,  lias  been 
changed  by  statute,  so  as  to  require  the  court  to  instruct  the 
jury  as  to  the  law  of  the  case  only,  and,  cither  peremptorily 
or  at  the  request  of  either  party,  to  reduce  his  charge  to  writ- 
ing. The  general  character  and  scope  of  these  changes  in  the 
common  law  practice  will  appear  from  the  following  statutory 
provisions  of  some  of  the  states:1 

Alabama. — "The  court  may  state  to  the  jury  the  law  of  the  case, 
and  may  also  state  the  evidence  when  the  same  is  disputed,  but  shall 
not  charge  upon  the  effect  of  the  testimony,  unless  required  to  do  so 
by  one  of  the  parties. 

"In  all  civil  and  criminal  cases,  the  judge  must  charge  the  jury  in 
writing  if  the  charge  is  required  to  be  so  given  by  either  party,  and 
notice  of  such  requisition  is  given  after  the  testimony  is  closed,  and 
before  the  argument  to  the  jury  is  commenced. 

"Charges  moved  for  by  either'  party  must  be  in  writing,  and  must 
be  given  or  refused  in  the  terms  in  which  they  are  written;  and  it  is 
the  duty  of  the  judge  to  write  'given'  or  'refused'  as  the  case  may 
be,  on  the  document,  and  sign  his  name  thereto,  which  thereby 
becomes  a  part  of  the  record,  and  charges  which  are  given  must  be 
taken  by  the  jury  with  them  on  retirement,  and  those  refused  must  be 
retained  by  the  clerk.  All  instruments  of  evidence  and  depositions 
read  to  the  jury  may  be  taken  out  by  them  on  their  retirement." — Sees. 
3326-7-8-9,  Chapter  91,  Code  of  Ala.,  1896,  Vol.  1. 

Arizona. — "Before  the  argument  of  a  cause  the  judge  may,  in  open 
court,  deliver  a  charge  to  the  jury  on  the  law  of  the  case.  The  charge 
shall  be  in  writing,  unless  waived,  and  signed  by  the  judge.  The 
charge  shall  not  comment  on  the  weight  of  evidence,  but  shall  instruct 

1 — The  court  has  the  power  un-  the  jury,  but  this  is  largely  discre- 
der  the  common  law  to  sum  up  or  tionary  with  the  court.  Wright  v. 
state  the  evidence  in  its  charge  to    Cent.  Ry.  &  B.  K.  G.  Co.  16  Ga.  46. 


§  153.]  STATUTORY  PROVISIONS.  127 

the  jury  as  to  the  law  arising  on  the  facts,  and  the  charge  shall  sub- 
mit all  controverted  questions  of  fact  solely  to  the  decision  of  the 
court. 

"Either  party  may,  before  the  charge  is  given,  present  to  the  court, 
in  writing,  such  instructions  as  he  desires  to  have  given  to  the  jury, 
and  for  this  purpose  a  reasonable  time  therefor  shall  be  given.  The 
court  shall  pass  upon  the  same,  and  either  give  or  refuse  the  same  as 
asked;  if  given,  the  judge  shall,  on  the  margin  of  such  instructions, 
write  the  word  'given'  in  ink  and  sign  his  name  thereto  in  ink; 
and  if  refused,  he  shall,  in  like  manner,  write  the  word  'refused,' 
and  sign  his  name  thereto." — Sees.  1407-8-9,  pages  449-450,  Chap.  12, 
Rev.  Stat,  of  Ari.,  1901. 

Arkansas. — "Judges  shall  not  charge  juries  with  regard  to  matters 
of  fact,  but  shall  declare  the  law,  and  in  jury  trials  shall  reduce  their 
charge  or  instructions  to  writing  on  the  request  of  either  party." — Sec. 
23,  Art.  7,  Constitution  of  Ark.,  same  provision  as  in  I.  T. 

California  — Civil. — "In  charging  the  jury,  the  court  may  state  to 
them  all  matters  of  law  which  it  thinks  necessary  for  their  informa- 
tion in  giving  their  verdict;  and  if  it  state  the  testimony  of  the  case, 
it  must  inform  the  jury  that  they  are  the  exclusive  judges  of  all  ques- 
tions of  fact.  The  court  must  furnish  to  either  party,  at  the  time, 
upon  request,  a  statement  in  writing  of  the  points  of  law  contained 
in  the  charge,  or  sign,  at  the  time,  a  statement  of  such  points  pre- 
pared and  submitted  by  the  counsel  of  either  party. 

"Where  either  party  asks  special  instructions  to  be  given  to  the  jury, 
the  court  must  either  give  such  instruction,  as  requested,  or  refuse  to 
do  so,  or  give  the  instruction  with  a  modification,  in  such  manner  that 
it  may  distinctly  appear  what  instructions  were  given  in  whole  or  in 
part."— Sees.  608  and  609,  pages  265-6-7,  Code  of  Civ.  Pro.,  vol.  3,  Deer- 
ing's  Anno.  Stat.  Cal. 

Calif omia  —  Penal. — "In  charging  the  jury  the  court  must  state 
to  them  all  matters  of  law  necessary  for  their  information.  All  in- 
structions given  (except  such  as  might  incidentally  be  given  during 
the  admission  of  evidence)  shall  be  in  writing,  unless  both  parties 
request  the  giving  of  an  oral  instruction,  or  consent  thereto,  and 
when  so  given  orally,  all  instructions  must  be  taken  down  by  the 
stenographic  reporter.  Either  party  may  present  to  the  court  any 
written  charge,  and  request  that  it  be  given.  If  the  court  thinks  it 
correct  and  pertinent,  it  must  be  given;  if  not,  it  must  be  refused. 
Upon  each  charge  presented  and  given  or  refused,  the  court  must 
indorse  and  sign  its  decision.  If  part  be  given  and  part  refused,  the 
court  must  distinguish,  showing  by  the  indorsement  what  part  of  the 
charge  was  given  and  what  part  refused." — Sec.  1127,  page  422,  Codes 
of  Cali.  Annot.    (Penal),  Pomeroy,  1901. 

Colorado. — "When  the  evidence  is  concluded,  and  either  party  de- 
sires special  instructions  to  be  given  to  the  jury,  such  instruction  shall 
be  reduced  to  writing,  numbered  and  signed  by  the  party  cr  his  attor- 


128  INSTRUCTIONS    TO    JURIES.  [§  153. 

ney  asking  the  same,  and  delivered  to  the  court.  Before  the  argument 
is  begun,  the  court  shall  give  such  instructions  upon  the  law  to  the 
jury  as  may  be  necessary,  which  instructions  shall  be  in  writing  and 
signed  by  the  judge. 

"Where  either  party  asks  special  instructions  to  be  given  to  the  jury, 
the  court  shall  either  give  such  instructions  as  requested,  or  give  the 
instructions  with  modifications,  and  shall  mark  or  indorse  upon  each 
instruction  so  offered  in  such  manner  that  it  shall  distinctly  appear 
what  instructions  were  given  in  whole  or  in  part,  or  refused,  or  modi- 
fied, and  in  like  manner  the  modifications,  where  made. 

"All  instructions  offered  by  the  parties,  or  given  by  the  court  shall 
be  filed  with  the  papers  in  the  cause,  and  shall,  together  with  the  en- 
dorsement thereon  indicating  the  action  of  the  court,  be  taken  as  a 
part  of  the  record  of  the  cause  without  being  made  such  by  a  bill  of 
exceptions;  and  if  any  such  action  of  the  court  so  indicated,  error  be 
assigned,  it  shall  be  reviewed  in  the  Appellate  court.  If  requested 
by  either  party  or  the  jury,  the  instructions  given  may  be  taken  by 
the  jury  in  their  retirement.  And  in  all  cases  the  instructions  or  any 
of  them  may  be  read  to  the  jury  and  be  commented  on  by  the  attor- 
neys in  the  argument."— Chapter  14,  paragraph  187,  pages  420,  421, 
Mills'  Anno.  Code  Col. 

Connecticut. — "The  court  shall  decide  all  issues  of  law,  and  all 
questions  of  law  arising  in  the  trial  of  any  issue  of  fact;  and  in  com- 
mitting the  cause  to  the  jury  shall  direct  them  to  find  accordingly,  and 
shall  submit  all  questions  of  fact  to  the  jury,  with  such  observations 
on  the  evidence,  for  their  information,  as  it  may  think  proper,  without 
any  direction  how  they  shall  find  the  facts.  After  the  cause  is  com- 
mitted to  the  jury,  no  pleas,  arguments  or  evidence  shall  be  received 
before  the  verdict  is  returned  into  court  and  recorded."  (Civil.) — Sec. 
753,  Chap.  52,  Conn.  Rev.,  1902. 

"The  court  shall  state  its  opinion  to  the  jury  upon  all  questions  of 
law  arising  in  the  trial  of  a  criminal  cause,  and  submit  to  their  con- 
sideration both  the  law  and  the  facts,  without  any  direction  how  to  find 
their  verdict."    (Crim.)—  Sec.  1516,  Chap.  97,  Ibid. 

Florida. — "Every  charge  to  a  jury  shall  be  oral,  except  when,  in  the 
Circuit,  Criminal  courts  of  record  or  County  court,  either  party,  or  his 
attorney,  shall  request  in  writing  before  the  evidence  is  closed  that  it 
be  in  writing,  when  the  judge  shall  commit  it  to  writing. 

"When  delivered  it  shall  be  filed  in  the  case  and  become  a  part  of  the 
record.  If  either  of  the  parties,  or  their  attorneys,  present  to  the  judge 
instructions  in  writing  on  any  point  of  law  arising  on  the  trial,  it  shall 
be  the  duty  of  the  judge  to  declare  in  writing  to  the  jury  his  ruling 
thereupon  as  presented,  and  pronounce  the  same  to  the  jury  as  given 
or  refused. 

"Said  instructions,  as  well  those  given  as  those  denied,  shall  be 
signed  by  the  said  judge,  and  be  by  him  filed  in  the  case  immediately 


§  153.]  STATUTORY  PROVISIONS.  I29 

after  delivery  or  refusal,  and  form  a  part  of  the  record  in  the  case."— 
Sees.  1497,  8,  9,  Chap.  14,  Gen.  Stat.  Fla.,  1906. 

Georgia.— "The  judges  of  the  Superior  courts  of  this  state  shall,  in 
all  cases  of  felony,  and  on  the  trial  of  all  civil  cases  tried  before  them, 
give  their  charges  to  the  jury  in  writing;  that  is  to  say,  shall  write 
out  their  charges  and  read  the  same  to  the  jury,  when  the  counsel  for 
either  party  shall  require  them  to  do  so;  and  it  shall  be  error  for  such 
judge  to  give  any  other  or  additional  charge  than  that  so  written  out 
and  read. 

"The  charge  so  written  out  and  read,  as  aforesaid,  shall  be  filed 
as  soon  as  delivered,  with  the  clerk  of  the  court  in  which  the  same 
was  given,  and  shall  be  accessible  to  all  persons  interested  in  the 
same;  and  the  clerk  shall  give  certified  copies  thereof  to  any  person 
applying  for  the  same,  upon  the  payment  of  the  usual  fee. 

"It  is  error  for  any  or  either  of  the  judges  of  the  Superior  courts 
of  this  state,  in  any  case,  whether  civil  or  criminal,  or  in  equity, 
during  its  progress,  or  in  his  charge  to  the  jury,  to  express  or  intimate 
his  opinion  as  to  what  has  or  has  not  been  proved,  or  as  to  the  guilt 
of  the  accused;  and  should  any  judge  of  said  court  violate  the  pro- 
visions of  this  section,  such  violation  shall  be  held  by  the  Supreme 
court  to  be  error,  and  the  decision  in  such  case  reversed,  and  a  new 
trial  granted  in  the  court  below,  with  such  directions  as  the  Supreme 
court  may  lawfully  give."— Sees.  4318,  19  and  4334,  Chap.  7,  Code  1, 
Ga.,  1895,  vol.  2. 

Hawaii..— "The  jury  shall  in  all  cases  be  the  exclusive  judges  of  the 
facts  in  suits  tried  before  them,  and  the  judge  presiding  at  any  jury 
trial  (hereafter  in  this  chapter,  named  the  court)  shall  in  no  case 
comment  upon  the  character,  quality,  strength,  weakness  or  credibility 
of  any  evidence  submitted,  or  upon  the  character,  attitude,  appearance, 
motive  or  reliability  of  any  witness  sworn  in  a  cause;  provided,  how- 
ever, that  nothing  herein  shall  be  construed  to  prohibit  the  court  from 
charging  the  jury  whether  there  is  or  is  not  evidence  (indicating  the 
evidence)  tending  to  establish  or  to  rebut  any  specific  fact  involved 
in  the  cause,  nor  shall  it  be  construed  to  prohibit  the  setting  aside  of 
a  verdict  rendered  by  such  jury,  in  a  proper  case,  as  being  against  the 
weight  of  evidence,  and  the  granting  of  a  new  trial  therein. 

"Unless  the  parties  to  the  cause  or  trial  either  in  person  or  through 
their  attorneys,  shall  file  therein  their  written  consent  that  the  court 
may  charge  the  jury  orally,  it  shall  be  the  duty  of  the  court,  except 
as  provided  in  the  next  succeeding  section,  to  reduce  to  writing  and 
read  its  charge  to  the  jury;  and  the  manuscript  of  such  charge,  signed 
by  the  court,  shall  be  filed  in  the  cause,  and  shall  constitute  a  pari, 
thereof. 

"Whenever,  and  as  often  as  the  court  shall  depart  from  such  duty, 
either  party  to  such  suit  shall  be  entitled,  as  a  matter  of  right,  to 
demand  and  have  granted  a  new  trial  of  such  cause. 

"In  cases  where  an  official  stenographer  is  present,  and  taking  notes 
9 


!30  INSTRUCTIONS    TO    JURIES.  [§153. 

of  the  trial  proceedings,  it  shall  not  be  necessary  for  the  court  to  re- 
duce its  charge  to  writing,  but  such  charge  may  be  given  orally,  and 
noted  by  such  stenographer,  etc. 

"It  shall  be  the  duty  of  the  counsel  for  the  respective  parties  to  a 
cause,  to  furnish  the  court  with  a  written  memorandum  of  their  re- 
quest for  the  charging  of  the  jury  upon  the  points  of  law  involved 
therein,  and  it  shall  not  be  incumbent  upon  the  court,  in  cases  where 
the  parties  are  so  represented  by  counsel,  to  charge  the  jury  upon  the 
law,  unless  thereto  so  requested  in  writing.  But  in  case  either  party 
on  his  behalf,  and  the  court  may,  of  its  own  motion,  charge  the  jury 
upon  any  point  of  law  involved  in  the  trial. 

"Where  requests  for  instructions  are  presented,  as  provided  in 
section  1801,  an  argument  thereon  may  be  made  by  the  respective 
counsel,  previous  to  the  court  passing  thereon.  Whenever  instructions 
are  asked  which  the  court  cannot  give,  he  shall,  in  the  margin  thereof, 
write  the  word  'refused,'  and  such  instruction  as  the  court  approves 
he  shall  designate  by  writing  in  the  margin  the  word  'given.'  It  shall 
also  be  competent  for  the  court  to  modify  an  instruction  so  requested, 
and  to  give  it  in  its  modified  form,  but  in  such  manner  that  it  shall 
distinctly  appear  what  instruction  was  given  and  what  refused,  in 
whole  or  in  part.  All  written  requests  for  instructions  shall  be  filed 
in  the  cause,  and  shall  form  a  part  of  the  record  therein;  and  the 
court  shall  in  no  case  orally  qualify,  modify  or  explain  the  same  to  the 
jury."— Sees.  1798,  1799-1800-1-2,  Chap.  119,  Rev.  L.  Hawaii,  1905. 

Idaho  — Criminal.— "The  judge  must  then  charge  the  jury  if  re- 
quested by  either  party;  he  may  state  the  testimony  and  declare  the 
law,  but  must  not  charge  the  jury  in  respect  to  matters  of  fact;  such 
charge  must  be  reduced  to  writing  before  it  is  given,  unless  by  the 
mutual  consent  of  the  parties  it  is  given  orally."  (Criminal.) — Sec. 
5448,  Chap.  231,  Idaho  Code,  Ann.,  1901,  vol.  4   (Criminal). 

"In  charging  the  jury,  the  court  must  state  to  them  all  matters  of 
law  necessary  for  their  information.  Either  party  may  present  to 
the  court  any  written  charge  and  request  that  it  be  given.  If  the 
court  thinks  it  correct  and  pertinent,  it  must  be  given;  if  not,  it  must 
be  refused.  Upon  each  charge  presented  and  given  or  refused,  the 
court  must  indorse  and  sign  its  decision.  If  part  be  given  and  part 
refused  the  court  must  distinguish,  showing  by  the  indorsement  what 
part  of  the  charge  was  given  and  what  part  refused." — Sec.  5479,  Ibid. 
(Criminal). 

Idaho  — Civil. — "In  charging  the  jury  the  court  may  state  to  them 
all  matters  of  law  which  he  thinks  necessary  for  their  information  in 
giving  their  verdict;  and  if  it  states  the  testimony  of  the  case  it  must 
inform  the  jury  that  they  are  the  exclusive  judges  of  all  questions  of 
fact.  The  court  must  furnish  to  either  party  at  the  time,  upon  request, 
a  statement  in  writing  of  the  points  of  law  contained  in  the  charge 
or  sign  at  the  time  a  statement  of  such  points  prepared  and  submitted 
by  the  counsel  of  either  party. 


§  153.]  STATUTORY  PROVISIONS.  131 

"Where  either  party  asks  special  instructions  to  be  given  to  the 
jury,  the  court  must  either  give  instructions,  as  requested,  or  refuse  to 
do  so,  or  give  the  instructions  with  a  modification,  in  such  manner 
that  it  may  distinctly  appear  what  instructions  were  given  in  whole  or 
in  part."— Sees.  3465-6,  Chap.  145,  Idaho  Code,  Ann.,  vol.  3,  1901  (Civil). 

Illinois.— "The  court,  in  charging  the  jury,  shall  only  instruct  as 
to  the  law  of  the  case. 

"Hereafter  no  judge  shall  instruct  the  petit  jury  in  any  case,  civil 
or  criminal,  unless  such  instructions  are  reduced  to  writing. 

"And  when  instructions  are  asked  which  the  judge  cannot  give,  he 
shall,  on  the  margin  thereof,  write  the  word  'refused';  and  such  as  he 
approves  he  shall  write,  on  the  margin  thereof,  the  word  'given';  and 
he  shall  in  no  case,  after  instructions  are  given,  qualify,  modify,  or  in 
any  manner  explain  the  same  to  the  jury  otherwise  than  in  writing. 

"Exceptions  to  the  giving  or  refusing  any  instructions  may  be  en- 
tered at  any  time  before  the  entry  of  final  judgment  in  the  case.  And 
such  instructions,  so  given,  shall  be  taken  by  the  jury  in  their  retire- 
ment, and  returned  by  them,  with  their  verdict,  into  court."— Sees.  52, 
53,  54  and  55,  Chapter  110,  Starr  &  Curtis's  Ann.  111.  Stat.  (2d  ed.), 
1896. 

Illinois  — Municipal  Court.— "That  in  trials  by  jury  in  the  muni- 
cipal court,  the  court  shall  charge  the  jury  as  to  the  law  only,  and 
the  charge  may,  in  the  discretion  of  the  court,  be  given  orally  or  in 
writing;  but  when  given  orally  it  shall,  at  the  request  of  either  party, 
be  taken  down  in  shorthand,  and  a  transcript  thereof  shall  be  made 
and  shall  be  signed  by  the  judge  and  filed  in  the  cause  in  which  such 
charge  is  given,  and  shall  be  made  a  part  of  the  record  in  such  cause." 
—Laws  of  111.,  1907,  p.  244,  Sec.  37. 

Indiana.— "The  court  must  then  charge  the  jury;  which  charge,  upon 
the  request  of  the  prosecuting  attorney,  the  defendant  or  his  counsel 
made  at  any  time  before  the  commencement  of  the  argument,  shall  be 
in  writing,  and  the  instructions  therein  contained  numbered  and  signed 
by  the  court.  In  charging  the  jury  the  court  must  state  to  them  all 
matters  of  law  which  are  necessary  for  their  information  in  giving 
their  verdict.  If  he  present  the  facts  of  the  case,  he  must  inform  the 
jury  that  they  are  the  exclusive  judges  of  all  questions  of  fact,  and  that 
they  have  a  right  also  to  determine  the  law. 

"If  the  prosecuting  attorney,  the  defendant  or  his  counsel  desire 
special  instructions  to  be  given  to  the  jury,  such  instructions  shall 
be  reduced  to  writing,  numbered  and  signed  by  the  party  or  his  attor- 
ney asking  them,  and  delivered  to  the  court  before  the  commencement 
of  the  argument.  Such  charge  or  charges  of  the  court,  or  any  special 
instructions,  when  so  written  and  given  by  the  court,  shall  in  no  case 
be  orally  qualified,  modified  or  in  any  manner  orally  explained  to  the 
jury  by  the  court."— Sec.  1901,  article  16,  page  181,  Burns'  Annot. 
Ind.  Stat.,  Sup.,  1905. 


132  INSTRUCTIONS    TO    JURIES.  [§  153. 

"That  all  instructions  requested  shall  be  plainly  written  and 
numbered  consecutively  and  signed  by  the  party  or  his  counsel. 
The  court  shall  indicate,  before  instructing  the  jury,  by  a  memo- 
randum in  writing  at  the  close  of  the  instructions  so  requested  the 
numbers  of  those  given  and  of  those  refused  and  such  memorandum 
shall  be  signed  by  the  judge.  All  instructions  given  by  the  court  of 
its  own  motion  shall  be  in  writing  and  shall  be  numbered  consec- 
utively and,  signed  by  the  judge.  If  the  court  shall  modify  any  in- 
struction requested,  the  instruction  as  modified  shall  be  written  out  at 
full  length  and  shall  be  given  as  one  of  the  instructions  given  by 
the  court  of  its  own  motion,  and  the  instruction  as  requested  shall 
be  refused.  All  instructions  requested,  whether  given  or  refused, 
and  all  instructions  given  by  the  court  of  its  own  motion,  shall  be 
filed  with  the  clerk  of  the  court  at  the  close  of  the  instruction  of  the 
jury;  Provided,  That  if  the  parties  consent  thereto,  the  court  may 
instruct  the  jury  orally,  in  which  case  the  instructions  so  given  shall 
be  taken  in  shorthand  by  the  court  reporter  and  by  him  written  out 
in  longhand,"  etc. — Sec.  544a,  article  19,  page  50,  Ibid. 

Indian  Territory.— See  Arkansas. 

Iowa.— "When  the  argument  is  concluded,  either  party  may  re* 
quest  instruction  to  the  jury  on  points  of  law,  which  shall  be  given 
or  refused,  by  the  court.  All  instructions  asked,  and  the  charge  of 
the  court,  shall  be  in  writing.  If  the  court  refuse  a  written  instruc- 
tion as  demanded,  but  give  the  same  with  a  modification,  which  the 
court  may  do,  such  modification  shall  not  be  by  interlineation  or 
erasure,  but  shall  be  well  defined,  and  shall  follow  such  character- 
izing words  as  'changed  thus,'  which  words  shall  themselves  indicate 
that  the  same  was  refused  as  demanded. 

"All  instructions  requested  or  given  shall  be  filed  by  the  clerk  and 
be  a  part  of  the  record,  and  if  the  giving  or  refusal  of  an  instruction 
is  excepted  to,  it  may  be  noted  by  the  shorthand  reporter,  and  no 
reason   for  such   exception  need  be  given. 

"The  instruction  given,  whether  by  request  or  otherwise,  shall  be 
in  consecutively  numbered  paragraphs,  shall  be  read  to  the  jury 
without  oral  comment  or  explanation,  and  be  announced  as  given, 
and  those  refused  shall  be  so  marked,  and  the  court,  without  reading 
them,  shall  announce  such  refusal.  Those  given  at  the  request  of  either 
party  shall  be  marked  'given'  at  the  request  of  the  party  asking  them, 
naming  him  as  plaintiff  or  defendant,  as  the  case  may  be. 

"Either  party  may  take  and  file  exceptions  to  the  charge  or  in- 
structions given,  or  to  the  refusal  to  give  any  instructions  asked, 
within  three  days  after  the  verdict,  which  shall  be  a  part  of  the  rec- 
ord, and  may  include  the  same  in  a  motion  for  a  new  trial,  but  in 
either  case  the  exceptions  shall  specify  the  part  of  the  charge  or  in- 
struction objected  to  and  the  ground  of  the  objection." — Sees.  3705-6-7-8 
and  9,  Code  la.  Anno.,  1897. 


§  153.]  STATUTORY  PROVISIONS.  133 

Kansas. — "When  the  evidence  is  concluded  and  either  party  de- 
sires special  instructions  to  be  given  to  the  jury,  such  instructions 
shall  be  reduced  to  writing,  numbered  and  signed  by  the  party  or 
his  attorney  asking  the  same  and  delivered  to  the  court;  the  court 
shall  give  general  instructions  to  the  jury,  which  shall  be  in  writing 
and  numbered,  and  signed  by  the  judge,  if  required  by  either  party. 
When  either  party  asks  for  special  instructions  to  be  given  to  the 
jury,  the  court  shall  either  give  such  instructions  as  requested  or 
positively  refuse  so  to  do;  or  give  the  instructions  with  a  modifica- 
tion in  such  manner  that  it  shall  distinctly  appear  what  instructions 
were  given  in  whole  or  in  part,  and  in  like  manner  those  refused,  so 
that  either  party  may  except  to  the  instructions  as  asked  for  or  as 
modified,  or  to  the  modification  or  to  the  refusal.  All  instructions 
given  by  the  court  must  be  signed  by  the  judge  and  filed  together 
with  those  asked  for  by  the  parties  as  a  part  of  the  record." — R.  S. 
Kan.,   1901,  Chap.   80,   Sec.   4722. 

Kentucky. — "The  court  shall,  on  the  motion  of  either  party  and 
before  any  argument  to  the  jury,  instruct  the  jury  on  the  law  appli- 
cable to  the  case,  which  shall  always  be  given  in  writing." — Sec.  225, 
page  524,  Ky.  Codes  Rev.;   Carroll,  1900    (Criminal). 

"When  the  evidence  is  concluded,  but  before  the  argument  to  the 
jury,  either  party  may  require  the  court  to  direct  the  jury  to  find  a 
separate  general  verdict  with  the  general  verdict.  If  a  general  ver- 
dict be  required,  either  party  may  ask  written  instructions  to  the 
jury  on  points  of  law,  which  shall  be  given  or  refused  by  the  court 
before  the  commencement  of  the  argument  to  the  jury." — Sec.  317 
(347),  page  193,  Ibid.   (Civil). 

Louisiana.— "In  charging  the  jury  in  criminal  cases,  the  judge 
must  limit  himself  to  giving  them  a  knowledge  of  the  law  applicable 
to  the  case.  In  doing  so,  he  shall  abstain  from  stating  or  recapitulat- 
ing the  evidence  so  as  to  influence  their  decision  on  the  facts.  He 
shall  not  state  or  repeat  to  the  jury  the  testimony  of  any  witness; 
nor  shall  he  give  any  opinion  as  to  what  facts  have  been  proved  or 
disapproved."— Sec.  991,  page  261,  Rev.  L.  La.   (Criminal),  Wolff,  1897. 

Massachusetts. — "The  courts  shall  not  charge  juries  with  respect 
to  matters  of  fact,  but  they  may  state  the  testimony  and  the  law." — 
Sec.  80,  Chap.  173,  Rev.  L.  of  Mass.,  1902,  vol.  2. 

"The  jury  shall  try,  according  to  established  forms  and  principles 
of  law,  all  criminal  cases  which  are  committed  to  them,  and,  after 
having  received  the  instructions  of  the  court,  shall  decide,  in  their 
discretion,  by  a  general  verdict,  both  the  fact  and  the  law  involved  in 
the  issue,  or  they  may,  at  their  election,  find  a  special  verdict." — 
Sec.  13,  Chap.  219,  Ibid. 

Michigan. — "That  hereafter  in  all  civil  and  criminal  cases  ax 
law,  circuit  courts,  in  charging  or  instructing  juries,  shall  charge  or 
instruct  them  only  as  to  the  law  of  the  case;    and  such  charge  or 


134  INSTRUCTIONS    TO    JURIES.  [§153. 

instruction  shall  be  in  writing,  and  may  be  given  by  the  court  of  its 
own  motion. 

"On  the  trial  of  any  case  at  law,  civil  or  criminal,  in  circuit 
courts,  after  the  evidence  is  concluded  and  before  the  case  is  argued 
or  submitted  to  the  jury,  or  the  court  trying  the  case  without  a  jury, 
either  party  may  present  written  requests  for  instructions  on  any 
point  of  law  arising  in  the  cause,  and  upon  such  written  requests  so 
presented,  an  argument  may  be  made  by  the  counsel  for  the  re- 
spective parties,  previous  to  the  court  passing  thereon  as  herein- 
after enacted. 

"Whenever  instructions  are  asked  which  the  court  cannot  give, 
he  shall,  in  the  margin  thereof,  write  the  word  'refused:'  and  such 
instructions  requested  as  the  court  approves,  he  shall  designate  by 
writing  in  the  margin  thereof  the  word  'given.' 

"The  instructions  on  law  so  settled  by  the  court  in  writing,  either 
upon  its  own  motion  or  upon  the  application  of  the  respective  parties, 
shall  be  read  to  the  jury,  filed  in  and  be  a  part  of  the  record  of  the 
case,  and  the  court  shall  in  no  case  orally  qualify,  modify,  or  in  any 
manner  explain  the  same  to  the  jury." — Paragraphs  10243-4-5-6,  pages 
3104-5-6-7,  Com.  L.  Mich.,  1897. 

Minnesota. — "Upon  the  trial  of  any  civil  action  before  a  jury  in 
any  district  or  municipal  court  of  this  state,  any  party  thereto  having 
an  interest  in  the  result  of  such  trial  may,  before  the  commencement 
of  the  argument  to  the  jury,  tender  to  the  court  instructions  in  writ- 
ing, properly  numbered,  to  be  given  to  the  jury,  and  require  the  court 
to  indicate  before  the  argument  such  as  will  be  given;  by  writing 
opposite  each  the  words  'given,'  'given  as  modified  by  the  court,' 
or  'refused.'  And  if  the  court  desires,  it  may  hear  arguments  there- 
on by  the  respective  counsel  before  acting  on  the  instructions  ten- 
dered. And  thereupon,  during  the  argument  to  the  jury,  any  in- 
structions so  indicated  to  be  given,  may  be  read  to  the  jury  as  the 
law  of  the  case;  and  the  court  shall  give  the  same  to  the  jury  as 
the  law  when  such  jury  is  instructed  by  the  court.  And  the  court 
may  of  its  own  motion  and  shall  upon  application  of  either  party, 
also  before  the  commencement  of  the  argument,  lay  before  the  parties 
any  instructions  properly  numbered  which  it  will  give  to  the  jury 
and  thereupon  the  same  may  be  read  by  any  as  the  law  while  making 
an  argument  to  the  jury;  provided,  however,  the  court  may  give  the 
jury  such  other  instructions,  with  those  already  approved,  at  the 
close  of  the  argument,  as  may  be  necessary  to  fully  present  the  law 
to  the  jury  and  secure  the  ends  of  justice." — Sec.  5403,  page  1451, 
Chap.  66,  Stat.  Minn.,  1894,  Wenzell. 

"In  charging  the  jury,  the  court  shall  state  to  them  all  matters  of 
law  which  it  thinks  necessary  for  their  information  in  giving  their 
verdict;  and,  if  it  presents  the  facts  of  the  case,  shall,  in  addition 
to  what  it  may  deem  its  duty  to  say",  inform  the  jury  that  they  are 


§  153.]  STATUTORY  PROVISIONS.  135 

the   exclusive   judges    of    all    questions    of   fact." — Sec.    7333,   p.    1916, 
Chap.   114,  Stat.  Minn.  Wenzell. 

Mississippi. — "The  judge  in  any  cause,  civil  or  criminal,  shall 
not  sum  up  or  comment  on  the  testimony,  or  charge  the  jury  as  to 
the  weight  of  the  evidence;  but  at  the  request  of  either  party  he 
shall  instruct  the  jury  upon  the  principles  of  law  applicable  to  the 
case.  All  instructions  asked  by  either  party  must  be  in  writing,  and 
all  alterations  or  modifications  of  instructions  given  by  the  court 
or  refused  shall  be  in  writing,  and  those  given  may  be  taken  out  by 
the  jury  on  its  retirement.  The  clerk,  before  they  are  read  to  the 
jury,  shall  mark  all  instructions  asked  by  either  party,  or  given  by 
the  court,  as  being  'given'  or  'refused,'  as  the  case  may  be,  and  all 
instructions  so  marked  shall  be  a  part  of  the  record  on  appeal,  with- 
out a  bill  of  exceptions." — Sec.  793,  Chap.  20,  p.  345,  Miss.  Code,  1906. 

Missouri. — "When  the  evidence  is  concluded,  and  before  the  case 
is  argued  or  submitted  to  the  jury  or  to  the  court  sitting  as  a  jury, 
either  party  may  move  the  court  to  give  instructions  on  any  point 
of  law  arising  in  the  cause,  which  shall  be  in  writing  and  shall  be 
given  or  refused.  The  court  may,  of  its  own  motion,  give  like  in- 
structions, and  such  instructions  as  shall  be  given  by  the  court  on  its 
own  motion  or  the  motion  of  counsel  shall  be  carried  by  the  jury 
to  their  room  for  their  guidance  to  a  correct  verdict  according  to  the 
law  and  evidence,  which  instructions  shall  be  returned  by  the  jury 
into  court  at  the  conclusion  of  the  deliberations  of  such  jury,  and 
filed  by  the  clerk  and  kept  as  a  part  of  the  record  in  such  case." — 
Sec.  748,  p.  277,  Chap.  8,  Rev.  Stat.  Mo.,  1899. 

"The  court  must  instruct  the  jury  in  writing  upon  all  questions 
of  law  arising  in  the  case  which  are  necessary  for  their  information 
in  giving  their  verdict,  which  instructions  shall  include,  whenever 
necessary,  the  subjects  of  good  character  and  reasonable  doubt;  and 
a  failure  to  so  instruct  in  cases  of  felony  shall  be  good  cause,  when 
the  defendant  is  found  guilty,  for  setting  aside  the  verdict  of  the 
jury  and  granting  a  new  trial." — Sec.  2627,  p.  688,  Chap.  16,  Rev. 
Stat.  Mo.,  1899. 

Montana. — "When  the  evidence  is  concluded,  or  at  any  time  be- 
fore the  case  is  finally  submitted  to  the  jury,  such  instructions  shall 
be  reduced  to  writing,  numbered  and  signed  by  the  party  or  his 
attorney  asking  the  same,  and  delivered  to  the  court.  The  court 
shall  either  give  each  instruction  as  requested  or  positively  refuse 
to  do  so,  or  give  the  instruction  with  a  modification,  and  shall  mark 
or  indorse  upon  each  instruction  so  offered  in  such  manner  so  that 
it  shall  distinctly  appear  what  instructions  were  given  in  whole  or 
in  part,  and,  in  like  manner,  those  refused.  All  instructions  given  by 
the  court  must  be  filed,  together  with  those  refused,  as  a  part  of 
the  record. 


136  INSTRUCTIONS    TO    JURIES.  [§  153. 

"When  the  argument  is  concluded  the  court  shall  charge  the  jury 
in  writing,  giving  in  connection  therewith,  such  instructions  as  are 
offered  and  allowed.  The  charge  of  the  court,  the  instructions  given 
and  the  modification  thereof,  and  the  refusal  to  give  instructions, 
(shall  be  deemed  excepted  to  and  no  bill  of  exceptions  shall  be 
required. 

"In  charging  the  jury,  the  court  shall  give  to  them  all  matters 
of  law  which  it  thinks  necessary  for  their  information  in  rendering 
a  verdict.'— Sec.  1080,  p.  259,  1895   Mont.  Codes  Ann.;   vol.  2,  part  3. 

Nebraska. — "It  shall  be  the  duty  of  the  judges  of  the  several  dis- 
trict courts  in  all  cases,  both  civil  and  criminal,  to  reduce  their  charge 
cr  instructions  to  the  jury  to  writing,  before  giving  the  same  to  the 
jury,  unless  the  so  giving  the  same  is  waived  by  the  counsel  in  the 
case  in  open  court,  and  so  entered  in  the  record  of  said  case;  and  either 
party  may  request  instructions  to  the  jury  on  points  of  law,  which 
shall  be  given  or  refused  by  the  court.  All  instructions  asked  shall 
be  in  writing. 

"If  the  court  refuse  a  written  instruction  as  demanded,  but  give 
the  same  with  a  modification,  which  the  court  may  do,  such  modifica- 
tion shall  not  be  by  interlineation  or  erasure,  but  shall  be  well  defined, 
and  shall  follow  some  such  characterizing  words  as  'changed  thus,' 
which  words  shall  themselves  indicate  that  the  same  was  refused  as 
demanded. 

"No  oral  explanation  of  any  instruction  authorized  by  the  pre- 
ceding sections  shall,  in  any  case,  be  allowed,  and  any  instruction  or 
charge,  or  any  portion  of  a  charge  or  instruction,  given  to  the  jury 
by  the  court  and  not  reduced  to  writing,  as  aforesaid,  or  a  neglect  or 
refusal  on  the  part  of  the  court  to  perform  any  duty  enjoined  by  the 
preceding  sections,  shall  be  error  in  the  trial  of  the  case  and  sufficient 
for  the  reversal  of  the  judgment  rendered  therein." — R.  S.  Neb..  1901, 
p.  512,  Sees.  2446-47-50. 

Nevada.— "In  charging  the  jury  the  court  shall  state  to  them  all 
matters  of  law  which  it  thinks  necessary  for  their  information  in  giv- 
ing their  verdict,  and  if  it  state  the  testimony  of  the  case,  it  shall  also 
inform  the  jury  that  they  are  the  exclusive  judges  of  all  questions  of 
fact.  The  court  shall  furnish  to  either  party,  at  the  time,  upon  re- 
quest, a  statement  in  writing  of  the  points  of  law  contained  in  the 
charge,  or  shall  sign,  at  the  time,  a  statement  of  such  points  prepared 
and  submitted  by  the  counsel  of  either  party."  (Civil.)— Sec.  3262,  p. 
674,  Comp.  L.  Nev.,  Ann.,  1900. 

"The  judge  shall  then  charge  the  jury,  if  requested  by  either  party; 
he  may  state  the  testimony  and  declare  the  law,  but  shall  not  charge 
the  jury  in  respect  to  matters  of  fact;  such  charge  shall  be  reduced 
to  writing  before  it  is  given;  and  in  no  case  shall  any  charge  or  in- 
structions be  given  to  the  jury  otherwise  than  in  writing  unless  by 
the  mutual  consent  of  the  parties."— Sec.  4320,  p.  863,  Ibid.     (Criminal.) 


§  153.]  STATUTORY  PROVISIONS.  137 

New  York. — "In  charging  the  jury,  the  court  must  state  to  them, 
all  matters  of  law  which  it  thinks  necessary  for  their  information 
in  giving  their  verdict;  and  must,  if  requested,  in  addition  to  what  it 
may  deem  its  duty  to  say,  inform  the  jury  that  they  are  the  exclusive 
judges  of  all  questions  of  fact."— Code  Crim.  Proc,  Sec.  420,  p.  3845, 
Rev.  Stat.  N.  Y.,  Birdseye,  3d  ed.,  1901. 

New  Mexico. — "Upon  the  trial  of  any  case,  either  civil  or  criminal, 
in  the  district  courts  held  within  and  for  various  counties  of  the  ter- 
ritory, all  instructions  to  the  jury  asked  by  either  party,  whether  given 
or  refused,  shall  be  in  writing,  and  all  instructions  given  by  the  court 
at  the  request  of  either  party  or  upon  its  own  motion,  shall  be  in 
writing;  and  it  is  hereby  made  the  duty  of  the  court  in  all  cases, 
whether  civil  or  criminal,  to  instruct  the  jury  as  to  the  law  of  the 
case,  and  a  failure  or  refusal  so  to  do  shall  be  sufficient  ground  for  a 
reversal  of  the  judgment  by  the  supreme  court  upon  appeal  or  writ  of 
error:  Provided,  however,  that  the  parties  to  the  suit  or  their  at- 
torneys may  waive  upon  the  record  the  instructions  in  writing. 

"Before  the  argument  is  concluded  either  party  may  request  in- 
structions to  the  jury  on  points  of  law,  which  shall  be  given  or  refused 
by  the  court.  All  instructions  asked  and  the  charge  of  the  court  shall 
be  in  writing.  The  court  shall  instruct  the  jury  as  to  the  law  of  the 
case,  but  shall  not  comment  upon  the  weight  of  the  evidence. 

"If  the  court  refuse  a  written  instruction,  as  demanded,  but  gives 
the  same  with  a  modification,  which  the  court  may  do,  such  modifica- 
tion shall  not  be  by  interlineation  or  erasure,  but  shall  be  well  defined, 
and  shall  follow  some  such  characterizing  words  as,  'Changed  thus,' 
which  words  shall  themselves  indicate  that  the  same  was  refused  as 
demanded. 

"The  court  must  read  to  the  jury  all  the  instructions  it  intends 
to  give  and  none  others,  and  must  announce  them  as  given,  and  shall 
announce  as  refused,  without  reading  to  the  jury,  all  those  which  are 
refused,  and  must  write  the  words,  'Given,'  or  'Refused,'  as  the  case 
may  be,   on  the  margin  of  each  instruction. 

"If  the  giving  or  refusal  be  excepted  to,  the  same  may  be  without 
any  stated  reason  therefor,  and  all  instructions  demanded  must  be 
filed,  and  shall  become  a  part  of  the  record. 

"After  argument  the  court  may  also,  of  its  own  motion,  charge  the 
jury,  such  charge  shall  be  in  writing  in  consecutively  numbered  para- 
graphs, and  no  oral  explanation  thereof  shall  be  allowed;  and  the  pro- 
visions of  this  section  shall  also  apply  to  the  instructions  asked  by 
the  parties.  (Civil.)"— Sees.  2992,  2994-5-6-7-8,  p.  773-4,  Comp.  Laws 
N.  Mex.,  1897. 

North  Carolina. — "Every  judge,  at  the  request  of  any  party  to  an 
action  on  trial,  made  at  or  before  the  close  of  the  evidence,  before  in- 
structing the  jury  on  the  law.  shall  put  his  instructions  in  writing, 
and  read  them  to  the  jury;  he  shall  then  sign  and  Tile  them  with  the 
clerk  as  a  part  of  the  record  of  the  action. 


138  INSTRUCTIONS    TO    JURIES-  [§  153. 

"Whenever  a  judge  shall  put  his  instructions  to  the  jury  in  writing, 
either  of  his  own  will,  or  at  the  request  of  any  party  to  an  action  on 
trial,  he  shall,  at  the  request  of  either  party  to  the  action,  allow  the 
jury  to  take  his  instructions  with  them  on  their  retirement,  and  the 
jury  shall  return  said  instructions  with  their  verdict  to  the  court. 

"Counsel  praying  of  the  judge  instructions  to  the  jury,  shall  put 
their  request  in  writing  entitled  of  the  cause,  and  sign  them;  other- 
wise the  judge  may  disregard  them.  They  shall  be  filed  with  the 
clerk  as  a  part  of  the  record."— Sec.  535-6-7,  p.  533,  vol.  1,  Rev.  1905, 
N.  Caro. 

North  Dakota.— "The  court  in  charging  the  jury  shall  instruct 
the  jury  as  to  the  law  of  the  case;  and  no  court  shall  instruct  the 
jury  in  any  civil  case,  unless  such  instructions  are  first  reduced  to 
writing.  Either  party  may  request  instructions  to  the  jury.  Each 
instruction  so  requested  must  be  written  on  a  separate  sheet  and  may 
be  given  or  refused  by  the  court,  and  the  court  shall  write  on  the 
margin  of  such  requested  instruction  given  by  him  the  word  'given,' 
and  on  the  margin  of  those  which  he  does  not  give  he  shall  write  the 
word  'refused,'  and  all  instructions  asked  for  by  the  counsel  shall  be 
given  or  refused  by  the  court  without  modification  or  change,  unless 
modified  or  changed  by  consent  of  the  counsel  asking  the  same.  The 
court  may  in  its  discretion  submit  the  written  instructions,  which  it 
proposes  to  give  to  the  jury,  to  counsel  in  the  case  for  examination, 
and  require  such  counsel  after  a  reasonable  examination  thereof  to 
designate  such  parts  thereof  as  he  may  deem  objectionable,  and  such 
counsel  must  thereupon  designate  such  parts  of  such  instructions  as  he 
may  deem  improper,  and  thereafter  only  such  part  so  designated  shall 
be  excepted  to  by  counsel  so  designating  the  same." — Sec.  5432,  p. 
117,  Rev.  Code  N.  Dak.,  1899. 

"All  instructions  given  to  the  jury  must  be  read  to  them  by  the 
court  without  disclosing  to  them  whether  such  instructions  were  re- 
quested or  not,  and  must  be  signed  by  the  judge  and  delivered  to  the 
jury  and  shall  be  taken  by  the  jury  in  their  retirement  and  returned 
with  their  verdict  into  court  and  upon  the  close  of  the  trial  all  instruc- 
tions given  or  refused  must  be  filed  with  the  clerk,  and  either  party 
may,  within  20  days  from  the  date  of  such  filing,  file  with  the  clerk 
exceptions  to  any  of  such  instructions  or  refusal  to  instruct  and  the 
same  shall  thereupon  be  deemed  duly  excepted  to;  provided,  that  with 
the  consent  of  both  parties  entered  in  the  minutes  the  court  may  in- 
struct the  jury  orally,  in  which  case  such  oral  instructions  shall  be 
taken  down  by  the  official  stenographer  and  written  out  at  length 
and  the  shorthand  notes  thereof,  together  with  such  instructions  so 
written  out,  shall  be  filed  in  the  case  with  the  clerk,  and  either  party 
may  except  to  any  of  such  instructions  within  twenty  days  after  the 
date  of  such  filing,  as  hereinbefore  provided;  provided,  that  the  official 
stenographer  shall  receive  for  writing  out  such  instructions  the  same 
fees  as  for  making  transcripts;   and  provided,  further,  that  when  oral 


§  153.]  STATUTORY  PROVISIONS.  139 

instructions  are  given,  the  jury  shall  not  take  the  charge  in  their  re 
tirement  unless  so  ordered  by  the  court." — Sec.  5433,  Ibid. 

"In  charging  the  jury,  the  court  must  state  to  them  all  matters  of 
law  which  it  thinks  necessary  for  their  information  in  giving  their 
verdict,  and  if  it  states  the  testimony  of  the  case,  it  must  in  addition 
inform  the  jury  that  they  are  the  exclusive  judges  of  all  questions  of 
fact.  Either  party  may  present  to  the  court  any  written  charge,  and 
request  that  it  be  given.  If  the  court  thinks  it  correct  and  pertinent, 
it  must  be  given;  if  not,  it  must  be  refused.  Upon  each  charge  pre- 
sented and  refused  court  must  indorse  or  sign  its  decision." — Sec.  8217 
Crim.  Proa,  p.  1606,  Ibid. 

Ohio. — "When  the  evidence  is  concluded,  either  party  may  present 
written  instructions  to  the  court  on  matters  of  law,  and  request  the 
same  to  be  given  to  the  jury,  which  instructions  shall  be  given  or 
refused  by  the  court  before  the  argument  to  the  jury  is  commenced. 

"The  court,  after  the  argument  is  concluded,  shall,  before  pro- 
ceeding with  other  business,  charge  the  jury;  any  charge  shall  be 
reduced  to  writing  by  the  court,  if  either  party,  before  the  argument 
to  the  jury  is  commenced,  request  it;  a  charge  or  instruction,  when 
so  written  and  given,  shall  not  be  orally  qualified,  modified,  or  in  any 
matter  explained  to  the  jury  by  the  court;  and  all  written  charges  and 
instructions  shall  be  taken  by  the  jurors  in  their  retirement,  and  re- 
turned with  their  verdict  into  court,  and  shall  remain  on  file  with 
the  papers  of  the  case." — Sec.  8699,  p.  1780,  Lanings  Rev.  Stat,  and 
Recod.  Laws  of  Ohio,  1905.  (Civil.)  Sec.  11054,  p.  2173  in  regard 
to  Crim.  Proc.  same  provisions  as  civil;   slightly  differently  worded. 

Oregon. — "In  charging  the  jury,  the  court  shall  state  to  them  all 
matters  of  law  which  it  thinks  necessary  for  their  information  in 
giving  their  verdict,  but  it  shall  not  present  the  facts  of  the  case,  but 
shall  inform  the  jury  that  they  are  the  exclusive  judges  of  all  questions 
of  fact." — Sec.  139,  Chap.  3,  Bellinger  &  Cotton's  Ann.  Codes  and  Stat. 
of  Ore. 

Pennsylvania. — "The  president  judges  of  the  several  courts  of 
common  pleas  of  this  commonwealth,  in  every  case  tried  before  them 
respectively,  upon  request  of  any  party  or  attorney  concerned  therein, 
reduce  the  whole  opinion,  and  charge  of  the  court  to  writing,  at  the 
time  of  the  delivery  of  the  same,  and  shall  forthwith  file  the  same 
of  record." — Sec.  166,  p.  3640,  vol.  2,  Pepper  and  Lewis'  Dig.  L. 
Pa.,  1896. 

South  Dakota. — "The  court,  in  charging  the  jury,  shall  only  in- 
struct as  to  the  law  of  the  case,  and  no  court  shall  instruct  the  petit 
jury  in  any  case,  civil  or  criminal,  unless  such  instructions  are  reduced 
to  writing;  and  when  instructions  are  asked  which  the  judge  cannot 
give,  he  shall  write  on  the  margin  thereof  the  word  'Refused,'  and 
such  as  he  approves  he  shall  write  on  the  margin  thereof  the  word 
'Given,'  and  he  shall  in  no  case,  after  instructions  are  given,  qualify, 


140  INSTRUCTIONS    TO    JURIES.  LS  153. 

modify  or  in  any  manner  explain  the  same  to  the  jury,  otherwise  than 
in  writing;  and  all  instructions  asked  for  by  counsel  shall  be  given 
or  refused  by  the  judge,  without  modification  or  change,  unless  such 
modification  or  change  be  consented  to  by  the  counsel  asking  the 
same."— Sec.  6255,  p.  1565,  vol.  2,  Grantham's  Ann.  S.  D.  Stat.,  1901. 
(Civil.) 

"The  judge  must  then  charge  the  jury;  he  may  state  the  testimony, 
and  must  declare  the  law,  but  must  not  charge  the  jury  in  respect  to 
matters  of  fact;  such  charge  must,  if  so  requested,  be  reduced  to  writ- 
ing before  it  is  given,  unless  by  tacit  or  mutual  consent  it  is  given 
orally,  or  unless  it  is  fully  taken  down  at  the  time  it  is  given  by  a 
stenographic  reporter,  appointed  by  the  court."— Sec.  8639,  p.  2074, 
Ibid.     (Criminal.) 

Rhode  Island.— "In  every  case,  civil  and  criminal,  tried  in  said 
common  pleas  division  with  a  jury,  the  justice  presiding  shall  in- 
struct the  jury  in  the  law  relating  to  the  same,  and  may  sum  up  the 
evidence  therein  to  the  jury  whenever  said  justice  may  deem  it  ad- 
visable so  to  do;  but  any  material  misstatement  of  the  testimony  by 
said  justice  shall,  upon  petition  of  the  party  aggrieved,  be  cause  for 
a  new  trial."— Sec.  13,  Chap.  223,  Gen.  L.  of  R.   I.,  1896. 

Tennessee.— "On  the  trial  of  civil  cases  in  the  courts  of  this  state, 
it  shall  be  the  duty  of  the  judge  before  whom  the  same  is  tried,  at  the 
request  of  either  party,  plaintiff  or  defendant,  to  reduce  every  word 
of  his  charge  to  writing  before  it  is  delivered  to  the  jury,  and  all  sub- 
sequent instructions  which  may  be  asked  for  by  the  jury,  or  which 
may  be  given  by  the  judge,  shall,  in  like  manner,  be  reduced  to  writ- 
ing before  being  delivered  to  the  jury."— Sec.  4683,  p.  1177,  Code  Tenn. 
Am*.,   1896,   Shannon. 

"On  the  trial  of  all  felonies,  every  word  of  the  judge's  charge  shall 
b«?  reduced  to  writing  before  given  to  the  jury,  and  no  part  of  it  what- 
ever shall  be  delivered  orally  in  any  such  case,  but  shall  be  delivered 
wnolly  in  writing.  Every  word  of  the  charge  shall  be  written,  and 
read  from  the  writing,  which  shall  be  filed  with  the  papers,  and  the 
jury   shall  take  it  out  with  them  upon  their  retirement. 

"If  the  attorneys  on  either  side  desire  further  instructions  given 
to  the  jury,  they  shall  write  precisely  what  they  desire  the  judge  to 
say  further.  In  such  case  the  judge  shall  reduce  his  decision  on  the 
proposition  or  propositions  to  writing,  and  also  read  the  same  to  the 
jury  without  one  word  of  oral  comment,  it  being  intended  to  prohibit 
judges  wholly  from  making  oral  statements  to  juries  in  any  case  in- 
volving the  liberties  and  lives  of  the  citizens. 

"It  shall  be  the  duty  of  all  judges  in  the  state  charging  juries  in 
case  of  criminal  prosecutions  for  any  felony  wherein  two  or  more 
grades  or  classes  of  offense  may  be  included  in  the  indictment,  without 
any  request  on  the  part  of  the  defendant  to  do  so." — Sec.  7186-7-8, 
ps.  1716-17,  Ibid. 


§  153.]  STATUTORY  PROVISIONS.  141 

Texas— Civil. — "After  the  argument  of  a  cause  the  judge  may,  in 
open  court,  deliver  a  charge  to  the  jury  on  the  law  of  the  case,  sub- 
ject to  the   restrictions  hereinafter  provided. 

"The  charge  shall  be  in  writing  and  signed  by  the  judge,  and  he 
shall  read  it  to  the  jury  in  the  precise  words  in  which  it  is  written; 
he  shall  not  charge  or  comment  on  the  weight  of  evidence;  he  shall 
so  frame  the  charge  as  to  distinctly  separate  the  questions  of  law 
from  the  questions  of  fact;  he  shall  decide  on  and  instruct  the  jury  as 
to  the  law  arising  on  the  facts,  and  shall  submit  all  controverted  ques- 
tions of  fact  solely  to  the  decision  of  the  jury. 

"Such  charge  shall  be  filed  by  the  clerk  and  shall  constitute  a  part 
of  the  record  of  the  cause,  and  shall  be  regarded  as  excepted  to,  and 
subject  to  revision  for  errors  therein,  without  the  necessity  of  taking 
any  bill  of  exception  thereto.  Either  party  may  present  to  the  judge, 
in  writing,  such  instructions  as  he  desires  to  be  given  to  the  jury,  and 
the  judge  may  give  such  instructions,  or  a  part  thereof,  or  he  may 
refuse  to  give  them,  as  he  may  see  proper,  and  he  shall  read  to  the 
jury  such  of  them  as  he  may  give. 

"When  the  instructions  asked,  or  some  of  them,  are  refused,  the 
judge  shall  note  distinctly  which  of  them  he  gives  and  which  he  re- 
fuses, and  shall  subscribe  his  name  thereto,  and  such  instructions 
shall  be  filed  with  the  clerk,  and  shall  constitute  a  part  of  the  record 
of  the  cause,  subject  to  revision  for  error  without  the  necessity  of 
taking  any  bill  of  exception  thereto.  The  charge  and  instructions 
given  to  the  jury  may  be  carried  with  them  by  the  jury  in  their  re- 
tirement, and  an  additional  charge  or  instructions  may  be  given 
them  upon  any  question  of  law  arising  in  the  case,  in  conformity 
with  the  preceding  rules,  upon  the  application  of  the  jury  therefor  in 
open  court."— Arts.  1316-17-18-19-20-21,  Chap.  12,  Sayles'  Tex.  Civil 
Stat.,  vol.  1,  1897. 

Texas  —  Criminal.— "After  the  argument  of  a  criminal  cause  has 
been  concluded,  the  judge  shall  deliver  to  the  jury  a  written  charge, 
in  which  he  shall  distinctly  set  forth  the  law  applicable  to  the  case; 
but  he  shall  not  express  any  opinion  as  to  the  weight  of  evidence,  nor 
shall  he  sum  up  the  testimony.  This  charge  shall  be  given  in  all 
cases  of  felony,  whether  asked  or  not.  It  is  beyond  the  province  of 
a  judge  sitting  in  criminal  causes  to  discuss  the  facts  or  use  any 
argument  in  his  charge  calculated  to  rouse  the  sympathy  or  excite 
the  passion  of  a  jury.  It  is  his  duty  to  state  plainly  the  law  of  the 
case. 

"After  or  before  the  charge  of  the  court  to  the  jury  the  counsel 
on  both  sides  may  present  written  instructions  and  ask  that  they 
be  given  to  the  jury.  The  court  shall  either  give  or  refuse  these 
charges,  with  or  without  modification,  and  certify  thereto;  and  when 
the  court  shall  modify  a  charge  it  shall  be  done  in  writing  and  in 
such  manner  as  to  clearly  show  what  the  modification  is. 

"The  general  charge  given  by  the  court,  as  well  as  those  given  or 


142  INSTRUCTIONS    TO    JURIES.  [§153. 

refused  at  the  request  of  either  party,  shall  be  certified  by  the  judge 
and  filed  among  the  papers  in  the  cause,  and  shall  constitute  a  part 
of  the  record  of  the  cause. 

"In  criminal  actions  for  misdemeanor  the  court  is  not  required 
to  charge  the  jury,  except  at  the  request  of  the  counsel  on  either  side; 
but  when  so  requested,  shall  give  or  refuse  such  charges,  with  or  with- 
out modification,  as  are  asked  in  writing. 

"No  verbal  charge  shall  be  given  in  any  case  whatever,  except  in 
cases  of  misdemeanor,  and  then  only  by  consent  of  the  parties. 

"When  charges  are  asked  the  judge  shall  read  to  the  jury  only 
such  as  he  gives.  The  jury  may  take  with  them,  in  their  retirement, 
the  charges  given  by  the  court  after  the  same  have  been  filed,  but 
they  shall  not  be  permitted  to  take  with  them  any  charge,  or  portion 
of  a  charge,  that  has  been  asked  of  the  court  and  which  the  court  has 
refused  to  give."— Arts.  715-16-17-18-19-20-21-22,  Chap.  5,  White's  Ann. 
Code  Crim.  Proa,  1900. 

Utah. — "When  the  evidence  is  concluded,  the  court  shall  instruct 
the  jury  in  writing  upon  the  law  applicable  to  the  case,  and,  if  it 
state  the  testimony  of  the  case,  it  must  inform  the  jury  that  they 
are  the  exclusive  judges  of  all  questions  of  fact ;  provided,  that  with 
the  consent  of  both  parties  entered  in  the  minutes  the  court  may  in- 
struct the  jury  orally,  in  which  case  the  instructions  shall  be  taken 
down  by  the   court  stenographer. 

"Either  party  may,  before  the  court  has  instructed  the  jury,  or 
later  by  consent  of  the  court,  ask  special  instructions,  which  shall  be 
in  writing  and  numbered,  and  the  court  must  either  give  such  instruc- 
tions as  requested  or  refuse  to  do  so,  or  give  the  instructions  with 
modifications.  Those  refused  shall  be  so  marked;  those  modified  shall 
be  marked  in  such  manner  as  clearly  to  point  out  the  charges  therein 
by  words  indicating  the  same. 

"The  instructions  given  shall  be  in  consecutively  numbered  para- 
graphs, and  shall  be  read  to  the  jury  without  oral  comment  or  ex- 
planation. 

"When  the  charge  is  in  writing,  it  must  be  signed  by  the  judge 
and  delivered  to  the  jury,  and  may  be  taken  by  the  jury  in  their  re- 
tirement and  returned  with  their  verdict  into  court." — Sec.  3147-48-49- 
50,  ps.  695-6,  Rev.  Stat.  Utah,  1898. 

Washington. — "When  the  evidence  is  concluded,  either  party  may 
request  the  judge  to  charge  the  jury  in  writing,  in  which  event  no 
other  charge  or  instruction  shall  be  given,  except  the  same  be  con- 
tained in  the  said  written  charge;  or  either  party  may  request  in- 
structions to  the  jury  on  points  of  law,  and  if  the  court  refuse  to 
give  the  same,  the  party  requesting  may  except. 

"The  court  shall  then  charge  the  jury  upon  the  law  in  the  case. 
If  no  request  has  been  made  for  said  charge  the  same  will  be  oral;  but 
either  party,  at  any  time  before  the  jury  return  their  verdict,  may 
except  to  the  same  or  any  part  thereof;  but  no  exception  shall  be  re- 


§  154.]  STATUTORY  PROVISIONS.  143 

garded  by  the  supreme  court,  unless  the  same  shall  embody  the  specific 
parts  of  said  charge  to  which  exception  is  taken.  In  charging  the  jury, 
the  court  shall  state  to  them  all  matters  of  law  necessary  for  the  in- 
formation of  the  jury  in  finding  a  verdict;  and  if  it  become  necessary 
to  allude  to  the  evidence,  it  shall  also  inform  the  jury  that  they  are 
the  exclusive  judges  of  all  questions  of  fact. — Sec.  4993,  ps.  1366-7, 
Ballinger's  Ann.  Codes  and  Stat.  Wash.,  1897. 

Wisconsin. — "Upon  the  trial  of  every  action,  the  judge  presiding 
shall,  before  giving  the  same  to  the  jury,  reduce  to  writing  and  give 
as  written  his  charge  and  instructions  to  the  jury;  and  all  further 
and  particular  instructions  given  them  when  they  shall  return  after 
having  once  retired  to  deliberate,  unless  a  written  charge  be  waived 
by  counsel  at  the  commencement  of  the  trial;  and  except  that  the 
charge  or  instructions  may  be  delivered  orally  when  taken  down  by 
the  official  stenographic  reporter  of  the  court.  Each  instruction 
asked  by  counsel  to  be  given  to  the  jury  shall  be  given  without  change 
or  modification,  the  same  as  asked,  or  refused  in  full.  If  any  judge 
shall  violate  any  of  the  foregoing  provisions,  or  make  any  comments 
to  the  jury  upon  the  law  or  facts  on  the  trial  in  any  action  without 
the  same  being  so  reduced  to  writing  or  taken  down,  the  judgment 
rendered  upon  the  verdict  found  shall  be  reversed  upon  appeal  or 
writ  of  error,  upon  the  fact  appearing." — Sec.  2853,  p.  1998,  Wis.  Stat., 
1898,  Ann. 

Wyoming. — "When  the  evidence  is  concluded,  and  either  party  de- 
sires special  instruction  to  be  given  to  the  jury,  such  instructions  shall 
be  reduced  to  writing,  numbered  and  signed  by  the  party  or  his  at- 
torney asking  the  same,  and  delivered  to  the  court.  And  before  the 
argument  of  the  case  is  begun,  the  court  shall  give  such  instructions 
upon  the  law  to  the  jury  as  may  be  necessary,  which  instructions  shall 
be  in  writing,  and  be  numbered  and  signed  by  the  judge. 

"When  either  party  asks  special  instruction  to  be  given  to  the 
jury,  the  court  shall  either  give  such  instruction  as  requested,  or 
positively  refuse  to  do  so;  or  give  the  instruction  with  modifications, 
and  shall  mark  or  endorse  upon  each  instruction  so  offered  in  such 
manner  that  it  shall  distinctly  appear  what  instructions  were  given 
in  whole  or  in  part,  and  in  like  manner  those  refused  or  modified 
as  to  the  modification.  All  instructions  given  by  the  court  must  be 
filed,  together  with  those  refused,  as  a  part  of  the  record." — Sec.  3644, 
p.  957,  Rev.  Stat.  Wyo.,  1899. 

§  154.  Court  May  Instruct  Without  Being"  Asked.  A  judge 
of  the  trial  court  is  at  liberty  to  instruct,  at  his  discretion,  if 
he  reduces  his  instructions  to  writing,  so  the  jury  can  take 
them  with  them  in  considering  their  verdict.2    The  duty  of  the 

2— Brown  v.  The  People,  4  Gilm.     Chgo.  G.  T.  Ry.  v.  Smith,  124  111. 
439;    Green  v.   Lewis,   13    111.   642;     App.  628. 
Chicago    v.    Keefe,    114    111.    222; 


144  INSTRUCTIONS    TO    JURIES.  [§  155. 

court  consists  in  giving  such  clear,  concise  and  comprehensive 
instructions  to  the  jury  upon  the  law  governing  the  case  and 
the  issues  involved  that  neither  side  will  have  reason  to  com- 
plain on  account  of  any  prejudice.  While  this  is  undoubtedly 
the  court's  work,  it  is  not  an  obligation  of  which  the  failure  to 
perform  would  be  considered  prejudicial  and  sufficient  to  re- 
verse the  case,  unless  such  instructions  were  erroneous  or 
appeared  to  lean  in  favor  of  one  party  more  than  the  other. 

§  155.  Duty  to  Instruct  Whether  Requested  or  Not.  It  is 
the  duty  of  the  judge  to  see  that  every  case  so  goes  to  the 
jury  that  they  have  clear  and  intelligent  notions  of  the  points 
they  are  to  decide,  and  to  this  end  he  should  give  necessary 
instructions  whether  so  requested  by  counsel  or  not,  and  his 
failure  so  to  do  is  held  ground  for  a  new  trial  where  the  ver- 
dict was  not  one  which  effectuated  justice  between  the  parties,3 
and  the  court  should  instruct  the  jury  as  to  the  issues  joined 
in  the  pleadings,  and  to  determine  from  the  pleadings  what  al- 
legations are  admitted  and  what  denied.  It  is  held  on  the 
contrary,  however,  that  it  is  not  a  duty  resting  on  the  judge  to 
instruct  a  jury  on  its  own  motion  unless  so  requested.4 

§  156.  Failure  to  Instruct  Cannot  Be  Objected  to  Unless 
Written  Instructions  Have  Been  Presented.  Each  party  has 
the  right  to  have  the  jury  instructed  upon  the  law  of  the  case 
clearly  and  pointedly,  so  as  to  leave  no  reasonable  ground  for 
misapprehension  or  mistake ;  and  if  the  instructions  of  the  court 
fail  thus  to  instruct,  it  is  error  to  refuse  one  calculated  to  cure 
the  omission.5  If  the  court  fails  to  give  such  full  instructions 
as  the  parties  consider  themselves  entitled  to,  it  is  their  own 
fault  in  not  having  presented  to  the  court  such  instructions. 
If,  however,  such  instructions  had  been  presented,  but  not 
given  by  the  court,  there  would  be  a  sufficient  ground  for  com- 
plaint. 

It  is  held  that  the  instructions  desired  by  the  parties  must 
be  submitted  to  the  court  before  the  arguments  to  the  jury, 
otherwise  they  would  come  too  late. 

As  a  rule  the  instructions  of  the  court  should  be  comprehen- 

3— Owen  v.  Owen,  22  Iowa  270;  Wisley,  32  Mo.  498;  Ch.  &  G.  T. 
The  State  v.  Brainard,  25  Iowa  572.     R.  v.  Smith,  supra. 

4 — Pharo  et  al.  v.  Johnson,  15  5 — Muldowney  v.  111.  Cent.  Rd. 
Iowa  560;  Potter  v.  C,  R.  I.  &  P.  Co.,  32  Iowa  176;  Carpenter  v. 
R.    Co.    46    Iowa    399;    Dassler    v.     State,  43  Ind.  371 ;  Morris  v.  Piatt, 

32  Conn.  75;  Nels  v.  State,  2  Tex. 
280. 


§  157.]  INSTRUCTIONS  IN  GENERAL.  145 

sive  and  cover  the  case  in  dispute,  although  it  is  held  that  in- 
structions cannot  be  objected  to  as  inadequate  unless  written 
requests  have  been  made  for  further  instructions.6 

§  157.  Instructions  Given  on  Request  of  Parties.  It  is  held 
to  be  the  duty  of  the  trial  judge,  when  requested,  to  instruct 
the  jury  upon  every  point  of  law  pertinent  to  the  issues,7  but 
the  better  rule  seems  to  be  that  it  is  the  duty  of  the  judge  to 
present  to  the  jury  the  substantial  issues  in  the  cause  and  the 
principles  of  law  governing  the  same,  whether  the  parties  re- 
quest the  same  or  not.s  In  the  absence  of  any  statute  it  is 
usually  held  to  be  discretionary  with  the  court  whether  he 
will  instruct  the  jury  or  not,  unless  requested  to  do  so  by 
either  party.9  On  the  other  hand,  in  some  states  the  statutes 
forbid  the  giving  of  any  instructions  by  the  court  excepting 
where  requested.10 

§  158.  Statutes  Mandatory — Instructions  Must  Be  in  Writ- 
ing. A  judge  on  the  trial  of  a  cause  has  no  authority  to  affect 
or  change  the  law  as  stated  in  written  instructions,  by  any 
statement  not  in  writing.  It  is  error  for  the  court  to  instruct 
the  jury  orally,  or  to  orally  explain  or  modify  an  instruction.11 
It  is  violation  of  the  statute  for  the  court  to  instruct  the  jury 
orally  as  to  the  impropriety  of  certain  modes  of  arriving  at 
their  verdict.12 

All  instructions  in  the  state   of  Illinois  either  in  civil  or 

6— Van  De   Bogart  v.  M.  N.  Pa-  Esten,    78    111.    App.   326,   affd.   178 

per  Co.,    127  Wis.   104,   106  N.  W.  111.  192,  52  N.  E.  954. 

805;     Benson    v.    State,    119    Ind.  10 — Archer  v.  Sinclair,  49  Miss. 

488,    31    N.    E.    1109.      Where    the  343. 

Instruction  came  too  late  the  court  11 — Ray  v.  Woolters,  19  111.  82; 

committed  no  error  in  refusing  to  Head    et    al.    v.    Langworthy,    15 

give  it,  citing  Rev.  St.  1881,  cl.  6,  Iowa    235;    Hardin    v.    Helton,    50 

para.    1823;    Foxwell   v.    State,    63  Ind.  320;    Horton  v.  Williams,   21 

Ind.  539;    Suber  v.  State,  99   Ind.  Minn.  187;   State  v.  Jones,  61  Mo. 

71;    Grubb  v.   State,   117  Ind.  277,  232;    Miller   v.   Hampton,   37    Ala. 

20  N.  E.  257.  342;  Widner  v.  State,  28  Ind.  394; 

7— People  v.  Taylor,  36  Cal.  255;  Strattan    v.    Paul,    10    Iowa    139; 

Hays   v.   Paul,    51   Penn.   St.   134;  O'Donnell  v.  Segar,  25  Mich.  367. 

Lyttle  v.  Boyer,  33   Ohio  St.   506;  12—1.  C.  R.  Co.  v.  Hammer,  85 

Ray  v.  Goings,  112  111.  656.  111.     526.       Written     instructions, 

8 — Upton  v.  Paxton,  72  Iowa  299,  when   requested   in   writing,   must 

33  N.  W.  777;  Barton  v.  Gray,  57  he  given  by  the  court  in  Indiana. 

Mich.  622.  Stephenson  v.  State,  110  Ind.  358, 

9— Reizenstein  v.  Clark,  104  Iowa  11  N.  E.  360,   (368)   59  Am.  Rep. 

287,  73  N.  W.  588;  C.  &  A.  R.  Co.  v.  261. 
10 


146  INSTRUCTIONS    TO    JURIES.  [§159. 

criminal  cases  must  be  presented  to  the  court  in  writing.13 
The  charges  of  the  court  to  juries  are  no  longer  required  to  be 
sealed  by  the  judge.  The  law  now  usually  only  requires  them 
to  be  in  writing,  signed  by  the  judge,  and  filed  as  part  of  the 
record  in  the  case.14 

§  159.  In  Writing  May  Be  Waived.  While  the  statute  re- 
quires the  instructions  given  to  the  jury  shall  be  in  writing, 
the  parties  may  waive  that  provision  of  the  law,  and  when  they 
do  so  and  consent  that  the  court  may  instruct  the  jury  orally, 
they  are  estopped  from  afterwards  objecting.15  When  oral 
instructions  are  not  excepted  to  on  that  ground,  at  the  time, 
the  error  will  be  regarded  as  waived.10 

§  160.  Court  May  Limit  the  Time  for  Instructions.  Circuit 
courts  have  the  power,  by  reasonable  and  proper  rules,  to  pre- 
scribe within  what  time,  during  the  progress  of  the  trial,  the 
instructions  must  be  presented  to  the  court.17  The  courts  have 
the  power  to  make  regulations  concerning  the  time  in  which 
the  instructions  requested  should  be  handed  to  the  court,  and 
it  is  generally  provided  that  this  must  be  done  before  the  argu- 
ment to  the  jury.18 

It  is  discretionary  with  the  judge  to  receive  or  reject  in- 
structions which  have  not  been  handed  in  in  proper  time,  al- 

13 — Practice  Act,  Sees.  72-75,  p.  them,  and  delivered  to  the  court 

458,    Illinois    Session    Laws    1907;  before   the    commencement   of  the 

I.    C.   R.   Co.   v.   Wheeler,   149   111.  argument.     Construing   these  pro- 

525,  36  N.  E.  1023.  visions   of  our   Criminal   Code  to- 

14 — Denmark   v.    State,   43   Fla.  gether,  we  are  of  the  opinion  that 

182,   31   So.   269,    (270).     Sections  the  court  would  not  be  required  to 

1091,    2920,    Fla.    Rev.    St.    Chap,  instruct   the   jury   as   provided   in 

4388  Acts  1895.  section  1798,  unless  asked  to  do  so. 

15 — Bates   v.   Ball,    72    111.   108;  As  we  have  seen,  in  this  case  the 

Litzelmal  v.   Howell,   20   111.   App.  court  was  not  asked  to  give  this 

588.                         *  Instruction    until    after   the    argu- 

16 — State    v.     Sipult,     17    Iowa  ment  in  the  case  had  closed,  and 

575;  Vanwey  v.  State,  41  Tex.  639.  the     jury     had     been     instructed. 

17 — Prindiville  v.  The  People,  42  This  was  too  late.    It  should  have 

111.  217.  been   reduced   to  writing   and    de- 

The    Statutes    of    Indiana    pro-  livered  to  the  court  before  the  ar- 

vide  that   "if   the   prosecuting   at-  gument    commenced." — Foxwell    v. 

torney,  the  defendant,  or  his  coun-  State,     63     Ind.     539;      Grubb     v. 

sel  shall  desire  special  instructions  State,  117  Ind.  277,  20  N.  E.  257; 

to  be  given  by  the  court,  such  in-  quoting  Foxwell  v.   State,  63   Ind. 

structions  shall  be  reduced  to  writ*  539;  Lueber  v.  State,  99  Ind.  71. 

ing,  numbered  and  signed  by  the  18 — Craig   v.    Frazier,    127    Ind. 

party,     or     his     attorney,     asking  286,  26  N.  E.  842. 


§  161.]  INSTRUCTIONS  IN  GENERAL.  147 

though  the  Supreme  Court  of  Illinois  has  held  it  improper  to 
refuse  an  instruction  not  presented  in  time,  unless  there  was 
some  rule  of  court  on  record,  or  in  writing,  specifying  the  time, 
in  which  instructions  could  be  presented.19 

§  161.  Reading  Instructions  Given  to  the  Jury — Marking 
Instructions  "Given"  or  "Refused"  or  "Changed  Thus." 
The  statutes  of  many  states  provide  for  reading  of  the  instruc- 
tions, by  the  court,  and  also  frequently  provide  for  marking 
the  instructions  on  the  margin  to  show  whether  any  instruc- 
tion has  been  given  or  refused.  The  statute  of  Nebraska  reads 
as  follows:  "The  court  must  read  over  all  the  instructions 
which  it  intends  to  give,  and  none  others,  to  the  jury,  and  must 
announce  them  as  given,  and  shall  announce  as  refused,  with- 
out reading  to  the  jury,  all  those  which  are  refused,  and  must 
write  the  words  'given'  or  'refused,'  as  the  case  may  be,  on 
the  margin  of  each  instruction."  In  construing  this  section  the 
Supreme  Court  said:  "From  the  language  of  this  section,  it 
is  clear  that  it  was  the  intention  of  the  legislature  to  make  it 
the  duty  of  the  trial  court  to  read  to  the  jury  all  instructions 
given  to  them  on  the  trial  of  a  cause,  or,  in  other  words,  to 
make  the  method  of  giving  instructions  that  of  reading  them 
to  the  jury.  The  statute  not  only  imposes  upon  the  court  the 
duty  of  reading  the  instructions  to  the  jury,  but  insures  to 
every  suitor  the  right  to  have  all  instructions  which  he  shall 
present,  and  which  shall  be  deemed  proper  to  be  given  to  the 
jury,  read  to  them  at  length  by  the  court.  A  refusal  or  neglect 
to  discharge  this  duty,  and  a  denial  of  this  right  to  a  suitor 
in  any  cause,  are  administrations  without  that  due  process  of 
law  required  by  the  constitution  of  this  state,  and  must  be  held 
to  be  reversible  error."20 

The  instructions  as  presented  should  be  marked  either 
"given"  or  "refused,"  or  marked  when  modified  by  the  court, 
by  the  words  "changed  thus,"  which  words  indicate  that  the 
instruction  in  the  form  it  was  given  was  refused.21 

§  162.  Numbering  and  Signing  Instructions.  Usually  the 
instructions  requested  must  be  presented  in  writing  and  some- 
times are  required  to  be  numbered  and  signed  by  the  party  re- 

19— Chicago  P.  B.  Co.  v.  Sobko-  54,    Chapter    19,    Statutes    of    Ne- 

wiak,  148  111.  573,  36  N.  E.  572.  braska. 

20— McDuffee  v.  Bentley,  27  Neb.  21— Ham  v.  W.   I.  &  N.  R.  Co., 

380,  43  N.  W.  123  (126).  61  Iowa  716,  17  N.  W.  157. 

"rnsimctions  to  juries"   Section 


148  INSTRUCTIONS    TO    JURIES.  [§163. 

questing  them.22  The  numbering  and  signing  of  the  instruc- 
tions is  for  the  benefit  and  convenience  of  the  court,  as  well 
as  for  the  safeguarding  of  the  interests  of  the  parties  to  the 
suit,  by  providing  a  method  for  their  objections  and  exceptions 
to  be  properly  made  and  preserved. 

§  163.  Must  Not  Assume  Facts  Not  Admitted.  It  is  the 
province  of  the  court  to  instruct  the  jury  as  to  the  law  of  the 
case,  and  that  of  the  jury  to  find  the  facts  proved  by  the  evi- 
dence. It  is  error  for  the  court,  in  giving  an  instruction,  to 
assume  that  facts  have  been  proved,  or  that  a  certain  state  of 
facts  exist.23 

Instances:  "In  this  case  the  plaintiff  is  entitled  to  recover 
all  damages  proved  to  have  been  sustained  by  him  on  account 
of  the  trespass  committed  by  the  defendant  on  plaintiff's  prem- 
ises, as  claimed  in  the  declaration."24 

"If  the  jury  believe  from  the  evidence  that  Bond  and  Shinn 
were  together  and  acting  in  concert  at  the  time  of  the  assault, 
they  should  find  them  equally  guilty."25 

An  instruction  commencing,  "We  will  now  direct  your  at- 
tention to  the  question  whether  the  defendant  gave  the  de- 
ceased strychnine  with  a  criminal  intent" — held  to  be  erro- 
neous, as  liable  to  be  understood  by  the  jury  to  assume  the  dis- 
puted point,  whether  he  gave  her  poison  at  all,  leaving  to  them 
only  the  question  of  intent.26 

§  164.  Assuming  Facts  to  Be  True.  Conceded  facts27  and 
facts  not  controverted,  may  be  assumed  in  the  instructions  as 
true,28  but  material  facts  in  controversy  upon  which  there  is 
any  conflict  of  evidence  should  not  be  assumed.29  Facts  of 
which  there  is  no  evidence  at  all  would  be  error  to  assume  as 
true  in  the  instructions,30  unless  such  facts  are  matters  of  com- 
mon knowledge.31 

22— Swift  &  Co.  v.  Fue,  167  111.         26— Snyder  v.  The  State,  59  Ind. 

443,  47  N.  E.  761.  105. 

23— Russell    v.    Minteer,    83    111.        27— Haines   v.    Amerine,    48    111. 

150;     Stier   v.    The    City,    etc.,    41  App.  570. 

Iowa   353;    Siebert  v.  Leonard,  21        28 — Garretson  v.  Becker,   52   111. 

Minn.  442;    Jardieke  v.  Scropford,  App.   255;    Reed   v.   Manierre,    124 

15    Kan.   120;    C.    &    A.    R.   R.    Co.  111.  App.  127. 
v.  Robinson,  106  111.  142.  29— D.  T.  &  W.  Co.  v.  Dandelin, 

24— Small    v.    Brainerd,    44    111.  143   111.  409,   32  N.  E.   258. 
355;   Boddie  v.  State,  52  Ala.  395;         30— Langdon  v.   People,   133   III 

N.  J.  L.  Ins.  Co.  v.  Baker,  94  U.  S.  S82,    24    N.   E'.   874. 
610;   Peck  v.  Ritchey,  66  Mo.  114.        31— Joliet    v.    Shufeldt,    144    111. 

25— Bond   et  al.   v.   The   People,  403,  18  L.  R.  A.  750,  32  N.  E.  969. 
39  111.  26. 


§  165.]  INSTRUCTIONS  IN  GENERAL.  149 

§  165.  Facts  Not  Controverted  May  Be  Assumed.  Where 
an  instruction  assumes  the  existence  of  a  fact  in  issue  by  the 
pleadings,  but  which  is  admitted  by  the  party  objecting  in  his 
testimony,  and  there  is  no  evidence  contradicting  such  admis- 
sion, there  will  be  no  material  error  in  giving  such  instruc- 
tion.32 

If  an  instruction  assumes  the  existence  of  facts  not  contro- 
verted on  the  trial,  and  which  under  the  circumstances,  if  as- 
sumed, could  not  prejudice,  there  will  be  no  error.33  It  is 
often  a  matter  of  convenience,  and  avoids  circumlocution,  to 
assume  the  existence  of  certain  facts  about  which  the  parties 
are  agreed,  and  neither  party  under  such  circumstances  can 
afterwards  make  such  assumption  a  ground  of  objection  to  the 
instruction.34 

When  all  the  evidence  on  both  sides  tends  clearly  to  prove 
a  fact,  and  if  true  does  prove  it,  and  there  is  nothing  to  cast 
doubt  upon  it,  such  fact  may  and  generally  should  be  assumed 
as  proved  and  the  jury  told  that  there  is  no  evidence  from 
which  they  can  find  against  the  fact  as  proved.35 

§166.  Instructions  Should  Indicate  No  Opinion  as  to  the 
Weight  of  Evidence.  In  giving  instructions,  the  judge  should 
always  abstain  from  in  any  manner  indicating  an  opinion  as 
to  the  weight  of  evidence,  unless  it  is  of  that  character  which 
the  law  deems  conclusive.36 

§  167.  Instructions  May  Assume  What  the  Law  Presumes. 
When  the  circumstances  proved  are  of  such  a  character  that 
the  law  itself  raises  a  presumption,  the  court  may  properly 
instruct  the  jury  to  draw  such  inference.37 

§  168.  Right  of  the  Parties  to  Assume  Any  Reasonable 
Hypothesis  on  the  Facts.  In  preparing  instructions  each  party 
may  assume  any  reasonable  hypothesis  in  relation  to  the  facts 
of  the  case,  and  ask  the  court  to  declare  the  law  as  applicable 
to  it,  and  it  is  error  to  refuse  an  instruction  so  framed  because 

32— Heartt    v.    Rhodes,    66    111.  189;    Caldwell  v.   Stephens,  57  111. 

351;  Weeks  v.  Cottingham,  58  Ga.  589;    Hanrahan  v.  The  People,  91 

559.  111.    142;    Hauk   v.    Brownell,    120 

33— Miller  v.  Kirby,  74  111.  242;  111.   161,  11   N.  E.   416. 

Hughes    v.    Monty,    24    Iowa   499;  36— Frame    v.    Badger,    79     111. 

Davis   v.    The   People,   114   111.   86,  441. 

29  N.  E.  192.  37— Herkelrath  v.  Stookey,  63  111. 

34— Martin  v.  The  People,  13  111.  486;    Griffin  v.   C.   R.   I.   &  P.  Ry. 

341.  Co.,  68  Iowa  638,  27  N.  W.  792. 

35 — Druse  v.  Wheeler,  26  Mich. 


150  INSTRUCTIONS    TO    JURIES.  [§  169. 

the   case   supposed   does   not   include   some    other   hypothesis 
equally  rational.38 

§  169.  Reference  to  Pleadings  in  Instructions.  The  plead- 
ings should  not  be  referred  to  in  the  instructions  for  state- 
ments of  the  issues  involved,  but  the  court  should  state  to  the 
jury  what  facts  must  be  proved  to  sustain  their  finding  of  a 
verdict.30  If  the  instructions  refer  to  the  pleadings,  the  court 
should  state  the  allegations  that  are  material  and  not  leave 
them  to  the  jury.  The  jury  should  not  be  told  that  it  is  suf- 
ficient that  the  facts  be  proved  substantially  as  charged,  as  the 
jury  cannot  be  presumed  to  know  what  is  material  or  substan- 
tial in  the  case.  The  court  should  not  instruct  th.it  it  is  neces- 
sary for  the  party  seeking  to  recover  to  prove  his  case  by  a 
preponderance  of  the  evidence  as  laid  in  the  declaration  or 
plea,  as  the  case  may  be,  or  in  some  count  thereof. 

It  must  be  understood,  however,  that  the  above  criticisms 
do  not  concern  the  referring  of  the  pleadings  to  the  jury  and 
allowing  them  to  determine  legal  questions  therein  involved 
which  is  improper;  it  is  held  proper,  however,  to  refer  the 
pleadings  to  the  jury  so  that  they  may  consider  the  narrations 
of  fact  therein,  to  determine  whether  the  same  have  been 
proved,  but  not  authorizing  them  to  determine  the  legal  effect 
of  the  pleadings.40 

§  170.  Referring  to  Issues  Involved  in  Case.  The  court 
must  so  instruct  the  jury  that  they  may  intelligently  under- 
stand questions  upon  which  they  are  to  pass,  and  ordinarily 
an  omission  to  do  this  would  constitute  error.41  To  this  end  a 
statement  of  the  issues  involved  in  the  case  tends  materially 
to  assist  the  jury  in  arriving  at  their  verdict,42  but  in  no  case 
should  the  jury  be  directed  to  the  pleadings  for  the  ascertain- 
ment of  the  issues  in  the  case.43 

38_People    v.    Taylor,    36    Cal.  Ry.  v.  Liesserowitz,  197  111.  607,  64 

255;     Hays    v.    Paul,     51    Pa.     St.  N.  E.  718;  Malott  v.  Hood,  201  111. 

134;    Lytle   v.   BOyer,   33   Ohio    St.  207,    aff'g  99    111.   App.   360,    66   N. 

506;  Roy  v.  Goings,  112  111.  656.  E.   247;    I.  C.  Ry.   C.  v.   Jernigan, 

39— Lumaghi  v.   Gardien,  53   111.  19S    111.    297,   aff'g  161   App.    1,    65 

App.  667;  Baker  et  al.  v.  Summers,  N.  E.   88. 

201  111.  57,  Rev.  103,  111.  App.  37,  41— Hill    v.    Aultman,    68    Iowa 

66  N.  E.  302.  630,  27  N.  W.  788. 

40 — Bering  Mfg.  Co.  v.  Femelat,  42 — Fannon     v.      Robinson,      10 

35  Tex.  Civ.  App.  36,  79  S.  W.  869;  Iowa  272. 

U.   S.  Brewing  Co.   v.   Stoltenberg,  43 — Morrison   v.    B.    C.    R.    &   N. 

211  111.  531,  71  N.  E.  108;  W.  C.  St.  Ry.  Co.,  84  Iowa  663,  51  N.  W.  75. 


§171.]  INSTRUCTIONS  IN  GENERAL.  151 

§  171.  Should  Be  Confined  to  the  Issues  Being  Tried.  The 
instructions  of  the  court  should  be  restricted  to  the  issues  made 
by  the  pleadings,  and  to  the  evidence.44  When  the  declaration 
alleges  the  personal  negligence  of  the  defendant  as  the  ground 
of  liability,  it  is  a  fatal  objection  to  the  instructions  that  they 
direct  the  attention  of  the  jury  to  other  and  different  elements 
of  liability.45 

When  the  plaintiff  declares  upon  a  completed  sale,  it  is 
erroneous  for  the  court,  in  instructing  for  him,  to  submit  to 
the  jury  the  question  of  an  executory  contract  of  sale.46  In  an 
action  on  a  warranty  it  would  be  error  for  the  court  to  instruct 
the  jury  as  to  what  acts  constitute  fraud.47 

Where  in  an  action  upon  an  alleged  express  contract,  evi- 
dence was  introduced  without  objection,  putting  the  fact  of 
such  contract  in  issue,  it  was  held  not  to  be  error  to  instruct 
the  jury  with  reference  to  an  express  contract,,  even  though 
the  pleadings  put  in  issue  an  implied  contract  only.48 

§  172.  Instructions  Must  Be  Accurate  and  Pertinent.  Where 
the  evidence  is  conflicting  and  the  case  is  a  strongly  contested 
one,  the  instructions  upon  the  law  given  to  the  jury  must  be 
accurate,49  and  wherever  the  facts  are  close  it  is  held  that  the 
court  must  give  instructions  which  are  of  greater  accuracy 
than  would,  perhaps,  otherwise  be  demanded.493  And  it  is 
necessary  that  instructions  should  not  only  be  correct  in  law, 
but  pertinent  to  the  issues  involved.50 

§  173.  Instructions  Regarded  as  a  Whole — When  Faulty 
Instructions  May  Be  Cured  by  Others.  The  instructions  should 
be  regarded  as  a  whole  and  considered  together  and  not  dis- 
connectedly, even  though  there  be  a  considerable  number  in  a 
series.51  One  instruction,  although  faulty  by  reason  of  the 
omission  of  certain  essential  matters,  may  be  cured  by  other 

44— Nollen   v.   Wisner  et  al.,   11  49a— Reg.-Gaz.  Co.  v.  Larash,  123 

Iowa    190;    Iron    Mount.    Bank   v.  111.  App.  453;   R.  Co.  v.  Appel,  103 

Murdock,     62     Mo.     70;     Hall     v.  111.  App.  187. 

Strode,  19  Neb.  658,  28  N.  W.  312.  50— Flannigan    v.    B.    &    O.    Ry., 

45— Ch.  &  Alt.  R.  R.  Co.  v.  Mock,  83    Iowa   639,    50   N.   W.    60;    Neg- 

72  111.  141;    Colum.,  C.  &  I.  R.  R.  ley  v.   Cowel,   91   Iowa  256,  59  N. 

Co.  v.  Troesch,  68  111.  545.  W.    48;    Van   Winkle    v.    C.    M.    & 

46— Seckel  v.  Scott,  66  111.  106.  St.    P.   Ry.    Co.,    93    Iowa   509,   61 

47— Wallace  v.  Wren,  32  111.  146.  N.  W.  929. 

48— Rogers  v.   Millard,   44   Iowa  51 — C.  C.  C.  &  St.  L.  Ry.  v.  Mon- 

466.  aghan,  140  111.   474,  30  N.   E.  869. 

49—1.  C.  R.  R.  Co.  v.  Berry,  81 
111.   App.    17. 


152  INSTRUCTIONS    TO    JURIES.  [§  174. 

instructions  given.52  However,  if  the  instruction  covers  the 
whole  case  and  is  affirmative  and  positive,  it  is  not  cured  by  a 
succeeding  instruction  which  lays  down  the  rule  correctly,  both 
instructions  apparently  being  equally  affirmative  and  neither 
seeming  to  be  connected  with  or  qualified  by  the  other,  as  the 
jury  may  have  followed  one  or  the  other  of  these  instructions, 
which  one  it  is  impossible  to  determine.7'3 

The  court  should  not  use  incorrect  instructions  and  expect 
succeeding  correct  ones  to  cure  the  defect.  The  instructions 
given  to  the  jury  are  and  constitute  one  connected  body  and 
series,  and  should  be  so  regarded  and  treated  by  the  jury;  that 
is  to  say,  they  should  apply  them  to  the  facts  as  a  whole,  and 
not  detached  or  separated,  any  one  instruction  from  any  or 
either  of  the  others.  54  "It  is  the  duty  of  the  jury  to  consider 
all  the  instructions  together,  and  when  this  court  can  see  that 
an  instruction  in  the  series,  although  not  stating  the  law  cor- 
rectly, is  qualified  by  others,  so  that  the  jury  were  not  likely 
to  have  been  misled,  the  error  will  be  obviated."55  "A  charge  to 
the  jury  must  be  taken  together,  and  it  is  not  necessary  to  in- 
sert in  each  separate  instruction  all  the  exceptions,  limitations 
and  conditions  which  are  inserted  in  the  charge  as  a  whole."56 

All  the  instructions  should  be  considered  together,  and  a 
judgment  will  not  be  reversed  because  some  one  of  them  fails 
to  state  the  law  applicable  to  the  facts  with  sufficient  qualifi- 
cation, provided  the  defects  be  cured  in  other  instructions.57 
Instructions  are  to  be  considered  as  a  single  series,  and  when 
so  considered,  if  as  a  whole  they  state  the  law  correctly,  that  is 
sufficient,  even  though  one  or  more  of  them,  standing  alone, 
might  be  erroneous.58 

§  174.  Should  Be  Harmonious.  The  giving  of  a  correct  in- 
struction upon  a  point  in  the  case,  will  not  obviate  an  error  in 
an  instruction  on  the  other  side,  when  they  are  entirely  variant 

52 — Tedens  v.  Chicago  Sanitary  56 — People  v.  Cleveland,  49  Cal. 

District,  149  111.  87;   C.  &  A.  R.  v.  578. 

Walters,  217  111.  87,  75  N.  E.  441.  57— Rice    v.    The   City,    etc.,    40 

53— Miller  v.   McKinney,   45   111.  Iowa  638;   The  State  v.  Maloy,  44 

App.   447.  Iowa  104. 

54— N.  C.   St.  R.  R.  Co.  v.  Kas-  58— Mitchell  v.  Hindman,  150  111. 

pers,    186    111.    246     (250),    aff.    85  538,    37    N.    E.    916;    Laurance    v. 

111.  App.  316,  57  N.  E.  849.  Goodwil,    170    111.    390,    48    N.    E. 

55 — Anderson  v.  Walter,  34  Mich.  903;    Cent.   Ry.    Co.   v.   Bannister, 

113;  State  v.  Donavan,  10  Neb.  36.  195  111.  48   (50-1),  aff.  96  111.  App. 

332,   62   N.   E.   864. 


§175.]  INSTRUCTIONS  IN  GENERAL.  153 

and  there  is  nothing  to  show  the  jury  which  to  adopt.59  One 
correct  instruction  will  not  always  cure  an  erroneous  one.  The 
court  should  harmonize  the  instructions,  else  they  are  calcu- 
lated to  confuse  and  mislead  the  jury.60 

Where  one  instruction  states  the  defendant's  liability  more 
strongly  than  the  law  warrants,  and  another  of  the  series  states 
it  correctly,  and  the  two  instructions  relate  to  vital  points  in 
issue,  they  are  calculated  to  confuse  the  jury,  and  the  latter 
instruction  will  not  cure  the  error.61 

§175.  One  Instruction  May  Be  Limited  by  Others.  Al- 
though an  instruction,  considered  by  itself,  is  too  general,  yet, 
if  it  is  properly  limited  by  others,  so  that  it  is  not  probable 
it  could  have  misled  the  jury,  judgment  will  not  be  reversed 
on  account  of  such  instruction.  The  defective  instruction 
may  be  limited  by  instructions  given  on  either  side  or  may  be 
supplemented  by  other  instructions  so  as  to  cure  any  such 
error.62 

§  176.  Undue  Prominence  to  any  Fact — Referring  to  Prior 
Trials.  Undue  prominence  should  not  be  given  to  any  fact  in 
the  instructions,63  nor  should  the  court  state  in  a  prominent 
manner  a  fact  in  the  conduct  of  one  party  and  omit  the  ex- 
planation of  the  other  party  in  reference  thereto.64  Nor  should 
the  court  magnify  the  importance  of  the  case  by  stating  that 
it  has  been  twice  tried  already  and  that  it  is  important  that 
they  reach  an  agreement.65  An  instruction  which  singles  out 
and  gives  undue  prominence  to  certain  facts,  ignoring  other 
facts  proved  and  of  equal  importance  in  a  proper  determina- 
tion of  the  case,  is  improper.66 

59—111.  Linen  Co.  v.  Hough,  91  64— L.  S.  &  M.  S.  Ry.  Co.  v.  Bod- 
Ill.   63;    Vanslyck  v.   Mills   et  al.,  emer,  139  111.  596,  29  N.  E.  692. 
34  Iowa  375.  65— Niles  v.    Sprague,    13    Iowa 

60— Quinn    v.    Donovan,   85    111.  198. 

194.  66— Calef  v.   Thompson,    81   111. 

61 — Steinmeyer   v.    The    People,  478;  Westchester  F.  I.  Co.  v.  Earle, 

95  111.  383.  33   Mich.   143;    Jones  v.  Jones,   57 

62— Carrington  v.  P.  M.  S.  S.  Co.,  Mo.     138;     Chose    v.     Buhl     Iron 

1   Cal.   475;    Edwards  v.  Cary,   60  Works,  55  Mich.  139,  20  N.  W.  827. 

Mo.,  572;  Kendall  v.  Brown,  86  111.  Illustration:      In    Workman    v. 

387;    Skiles   v.    Caruthers,    88    111.  Dodd,  55  111.  App.  597    (599),  the 

458;     W.    C.    Ry.    v.    Shulze,    217  following  instruction  was  held  er- 

111.  322,  75  N.  E.  495.  roneous  for  singling  out  evidence: 

63— Hartshorn  v.  Byrne,  147  111.  "The    court    instructs    the    jury 

418,  35  N.  E.  622.  that    the    deposit    tickets    in    evi- 
dence showing  deposits  of  plaintiff 


154  INSTRUCTIONS    TO    JURIES.  [§  177. 

An  instruction  which  calls  special  attention  to  particular 
points  in  the  evidence  which  are  indecisive,  and  mere  circum- 
stances bearing  upon  an  issue  of  fact,  and  omits  all  reference 
to  other  important  circumstances  in  proof,  is  objectionable.07 

§  177.  Instructions  Should  Not  Be  Repeated  or  Underscored 
in  Places.  It  is  necessary  for  the  court  to  state  the  instruc- 
tions but  once,  and  any  reiteration  or  repetition  should  be 
avoided;  instructions  should  not  be  underscored  in  places  for 
purpose  of  emphasis.68  When  the  law  applicable  to  a  case  is 
given  in  clear  and  intelligible  language,  the  sole  function  of 
instructions  is  performed,  and  there  is  no  necessity  for  repeat- 
ing the  same  idea  in  different  instructions,  varying  only  in 
form.  The  court  is  not  only  under  no  obligation  to  permit  a 
case  to  be  argued  through  instructions,  but  it  is  bound  to  pro- 
hibit it.69 

§  178.  When  All  Material  Allegations  Are  Proved.  When- 
ever all  the  material  facts  necessary  to  enable  the  plaintiff  to 
recover  are  averred  in  the  declaration,  it  is  not  improper  for 
the  court  to  instruct  the  jury  that,  if  the  facts  alleged  in  the 
declaration  have  all  been  proved,  the  plaintiff  is  entitled  to 
recover,  unless  the  defendant  has  established  by  a  preponder- 
ance of  evidence  some  one  or  more  of  the  special  defenses 
pleaded.70 

An  instruction  which  tells  the  jury,  if  the  plaintiff  has  made 

to    the    credit    of    defendant    are  themselves  did  not  tend  to  prove 

prima  facie  proof  that  the  plaintiff  that  the  funds  deposited  were  the 

deposited    the    money    and    checks  property  of  the  appellee." 

specified   therein   to  the  credit   of  67 — Graves    v.    Colwell,    90    111. 

the  defendant,  the  plaintiff  is  en-  612;    Chesney  v.  Meadows,  90   111. 

titled    to    credit    for    such    money  430. 

and    checks,    unless    the    evidence  A  particular  witness  should  not 

shows  that  such  money  or  checks  he  singled  out  by  the  court  and  his 

were  the  property  of  the  defendant  evidence   commented   upon   in  the 

at    the    time    such    deposits    were  instructions. 

made."  Sandwich  v.  Dolan,  141  111.  430, 

The  court  said:     "We  think  this  31  N.  E.   416;    Graham  v.   Sadler, 

instruction  given  in  behalf  of  ap-  46   111.   App.   440. 

pellee,     which     was     directed     ex-  68 — State    v.    Cater,     100    Iowa 

clusively    to    the    deposit    tickets,  501,  69  N.  W.  880. 

fatally     erroneous.       The     tickets  69 — Anderson  v.  "Walter,  34  Mich, 

were  competent  testimony  tending  113;  Keeler  v.  Stuppe,  86  111.  309; 

in  connection  with  other  testimony  I.  &  C.  R.  Co.  v.  Horst,  93  U.   S. 

to  show  that  appellee  delivered  to  91. 

the  bank  money  and  checks  to  be  70 — Amer.     Cent.     Ins.     Co.     v. 

credited   to   the   appellant,   but  of  Rothschild,  82  111.   166. 


§  179.]  INSTRUCTIONS  IN  GENERAL.  155 

out  his  case  as  laid. in  his  declaration,  they  must  find  for  the 
plaintiff,  is  not  liable  to  the  objection  that  it  makes  the  jury 
the  judges  of  the  effect  of  the  averments  in  the  declaration ;  it 
merely  empowers  them  to  determine  whether  the  proof  intro- 
duced sustains  the  averments  made  in  the  pleadings,  which  they 
may  well  do.71 

§  179.  Abstract  Propositions  of  Law  Should  Not  Be  Given, 
When.  Instructions  should  be  framed  with  reference  to  the 
circumstances  of  the  case  on  trial,  and  not  be  expressed  in  ab- 
stract and  general  terms,  when  such  terms  may  mislead  in- 
stead of  enlightening  the  jury.72  Instructions  containing  mere 
abstract  legal  propositions  without  any  evidence  to  support 
them,  are  calculated  to  mislead  the  jury,  and  should  not  be 
given.73  The  giving  of  an  instruction  stating  an  abstract  prin- 
ciple of  law  in  a  criminal  case  is  not  an  error,  unless  the 
principle  stated  is  erroneous.74 

§180.  Should  Not  Submit  Questions  of  Law  to  the  Jury. 
It  is  error  to  give  instructions  to  the  jury  which  require  them 
to  find  and  determine  legal  propositions.  The  court  should 
direct  the  jury  what  the  law  is  on  the  facts  which  the  evidence 
tends  to  prove;  or  instruct  them  what  the  law  is,  if  they  find 
the  facts  to  be  as  alleged  or  claimed.75 

71—0.  &  M.  Ry.  Co.  v.  Porter,  92  between  the  plaintiff  and  another, 

HI.  437#  the  question  as  to  what  the  con- 

72 — C.  &  A.  Rd.  Co.  v.  Utley,  38  tract  was,  was  one  of  fact  for  the 

111.    410;     Parliman    v.    Young,    2  jury;   but  the  question  as  to  what 

Dak.   175,   4   X.   W.   139,  711.  the  legal  effect  of  it  was,  was   a 

73_Stein   v.    The   City,    etc.,    41  question  of  law  and  it  was  error 

Iowa  353;   McNair  v.  Piatt,  46  111.  to  submit  both  these  questions  to 

2ii.  the  determination  of  a  jury  by  in- 

74— Upstone  v.   The  People,   109  structions.     White  v.  Murtland,  71 

111.  169.    There  should  be  evidence  111.  250;   Rohrabacker  v.  Ware,  37 

upon   which   an   instruction   given  Iowa  85;    Lapeer,  etc.,   Ins.  Co.  v. 

can    be    based    or    the    instruction  Doyle,  30  Mich.  159. 
should  not  be  given.    C.  M.  &  St.  P.        Whether   a   chattel   mortgage   is 

Ry.   v.   O'Sullivan,   143   111.   48,  32  proved  to  have  been  duly  acknowl- 

X.   E.   398.  edged  and  recorded  is  a  question 

75— Mitchell    v.    The    Town    of  of  law  for  the   court,  and   should 

Fond  du  Lac,  61  111.  174;   Hudson  not    be     submitted    to    the    jury, 

v.   St.  Louis,   etc.,   R.   Co.,   53   Mo.  Bailey  v.  Godfrey,  54  111.  507. 
525;    Thomas    v.    Thomas,    15    B.        In  an  action  against  a  railroad 

Mon.    (Ky.)    178.  company   for   damages   for   injury 

Illustrations:   When  it  appeared  to    private    property    by    the    con- 
that  there   was   a  verbal  contract  struction  of  its  road  upon  a  public 


156 


INSTRUCTIONS    TO    JURIES. 


[§  181. 


The  instructions  should  contain  the  law  of  the  case  and 
to  instruct  the  jury  substituting  this  requirement  as  to  what 
the  law  is  by  a  reference,  for  instance,  to  an  indictment  from 
which  the  jury  must  determine  what  the  essential  elements  of 
the  crime  may  be,  is  held  erroneous. 

It  is  the  duty  of  the  court  to  interpret  and  give  the  legal 
effect  of  such  documents. 

§  181.  Jury  Are  Judges  of  Law  and  Facts  in  Criminal  Cases, 
in  Some  States.  While  it  is  true,  in  the  fullest  sense,  that  a 
jury,  in  a  criminal  case,  are  the  judges  both  of  the  fact  and  of 
the  law,  and  may  be  so  instructed  by  the  court,  they  should 
then  be  left  to  their  own  responsibility  alone  to  decide  on  the 
guilt  or  innocence  of  the  prisoner,  giving  him  the  benefit  of  all 
reasonable  doubts,  without  any  reference  to  the  possible  future 
action  of  the  court.76 

In  the  case  of  Schnicr  v.  The  People,  the  court  qualified  the 
general  instruction  that  "the  jury  are  the  judges  of  the  law 
as  well  as  of  the  facts,"  as  follows: 

"If  the  jury  can  say  upon  their  oaths  that  they  know  the 
law  better  than  the  court  does,  they  have  the  right  to  do  so; 


street,  it  was  held  to  be  error  to 
instruct  the  jury  to  determine 
whether  the  company  had  con- 
structed more  tracks,  or  upon  dif- 
ferent lines,  than  were  authorized 
by  the  city  ordinances.  The  num- 
ber of  tracks  thus  authorized  was 
a  question  of  law,  respecting  which 
the  court  should  have  determined 
the  legal  rights  of  the  parties. 
State  v.  McLaughlin,  170  Mo. 
608,  71  S.  W.  221  (224).  This 
instruction  would  not  be  good  in 
states  where  the  jury  are  empow- 
ered to  decide  questions  of  law 
as  well  as  of  fact.  State  v.  Hop- 
kins, 56  Vt.  250;  State  v.  Horn, 
115  Mo.  416,  22  S.  W.  381; 
Dolan  v.  State,  44  Neb.  643,  62  N. 
W.  1090;  Carleton  v.  State,  43 
Neb.  373,  61  N.  W.  699;  Metz  v. 
State,  46  Neb.  547,  65  N.  W.  190; 
Pjarrou  v.  State,  47  Neb.  294,  66  N. 
,W.  422;  Barton  v.  Gray,  57  Mich. 
622,  24  N.  W.  638;   People  v.  Cum- 


mins, 47  Mich.  334,  11  N.  W.  184, 
186;  People  v.  Murray,  72  Mich. 
10,  40  N.  W.  29;  State  v.  Brain- 
ard,  25  Iowa  572;  Tittle  v.  State, 
35  Tex.  Cr.  App.  96,  31  S.  W.  677; 
Anderson  v.  State,  34  Tex.  Cr.  App. 
546,  31  S.  W.  673,  53  Am.  St.  Rep. 
722;  Moore  v.  State,  —  Tex.  Cr. 
App.  — ,  33  S.  W.  980;  Territory 
v.  Baca,  11  N.  M.  559,  71  Pac.  460 
(461);  Territory  v.  Nichols,  3  N. 
M.  (Gild.)  109,  2  Pac.  78;  Terri- 
tory  v.  Friday,  8  N.  M.  204,  42 
Pac.  62;  Territory  v.  Vialpando, 
8  N.  M.  211,  42  Pac.  64;  Ter- 
ritory v.  Lerno,  8  N.  M.  570,  46 
Pac.  16;  State  v.  Taylor,  118  Mo. 
153,  24  S.  W.  449;  State  v.  Banks, 
73  Mo.  592;  State  v.  Palmer,  88 
Mo.  572;  State  v.  Donohoe,  78  Iowa 
486,  43  N.  W.  297. 

76— Falk  v.  The  People,  42  111. 
331;  Schnier  v.  The  People,  23  111. 
17. 


§  182.]  INSTRUCTIONS  IN  GENERAL.  157 

but  before  assuming  so  solemn  a  responsibility  they  should  be 
sure  that  they  are  not  acting  from  caprice  or  prejudice ;  that 
they  are  not  controlled  by  their  will  or  their  wishes,  but  from 
a  deep  and3  confident  conviction  that  the  court  is  wrong  and 
that  they  are  right.  Before  saying  this  upon  their  oaths  it  is 
their  duty  to  reflect  whether,  from  their  habits  of  thought, 
their  study  and  experience,  they  are  better  qualified  to  judge 
of  the  law  than  the  court.  If,  under  all  these  circumstances, 
they  are  prepared  to  say  that  the  court  is  wrong  in  its  exposi- 
tion of  the  law,  the  statute  has  given  them  the  right."77 

§  182.  Instructions  Should  Be  Concerned  with  Matters  of 
Law  Exclusively.  The  instructions  of  the  court  should  be  con- 
cerned with  matters  of  law  exclusively,  leaving  to  the  jury  the 
question  of  facts.  The  assumption  by  the  court  of  the  exist- 
ence of  material  facts  when  there  is  a  conflict  in  the  evidence, 
would  be  error.78  Nor,  on  the  other  hand,  should  the  judge 
assume  that  certain  facts  do  not  exist  when  there  is  some  evi- 
dence on  that  point.79 

The  jury  should  be  left  as  far  as  possible  to  form  their  own 
opinions  upon  the  evidence.80  The  apparent  statement  of  the 
opinion  of  the  court  would  be  prejudicial  in  invading  the 
province  of  the  jury  and  influencing  their  opinion,  if  there  is 
any  conflict  in  the  evidence  and  the  point  in  dispute  has  evi- 
dence for  as  well  as  against  it  equal  in  weight.81  The  weight 
and  sufficiency  of  the  evidence  should  not  be  commented 
upon.82  Nor  should  an  instruction  upon  the  effect  of  the  evi- 
dence be  given  by  the  court  of  its  own  motion,  even  though 
the  credibility  of  such  evidence  be  submitted  to  the  jury.83 

77— Schnier   v.    The   People,    23  78— Kennedy  v.  Rosier,  71  Iowa 

111.  17.     See,  also,  Mullinlx  v.  The  671,    33   N.   W.   226. 

People,   76   111.   211.  79— Roach  v.  Parcell,  61  Iowa  98, 

It  has  been  well  said:  "There  Is  15  N.   W.  866. 

a  species  of  equity  in  the  adminis-  80 — Landon   v.    People,    133    111. 

tration  of  law  by  a  jury  when  they  382,  24  N.  E.  874. 

are  the  sole  judges  of  law  and  fact  81 — Swigart  v.  Hawley,  140  111. 

that   would    not   control    a   court.  186;    Waldron   v.    Alexander,    136 

They  will  convict  an  assassin,  but  111.  550,  27  N.  E.  41. 

not  the  girl  who  kills  her  seducer,  82 — Thorp  v.  Craig,  10  Iowa  461. 

convict  the  murderer  for  money,  83 — Parker     v.     Daughtry,     111 

but  not  one  who  kills  the  invader  Ala.  529,   20   So.   362. 

of  his  home,  and  when  in  righteous  The  charge  of  the  court  to  the 

anger  a  mob  lynches  a  beast,  the  jury    should    be    strictly    confined 

jury  will  not  convict  them."  to  matters  of  law,   and  it  is  er- 


158  INSTRUCTIONS    TO    JURIES.  [§  183. 

§  183.  Jury  to  Take  Law  from  the  Court.  The  jury  should 
regard  the  law  as  given  by  the  court.  It  is  their  duty  to  do  so. 
If  the  court  errs  in  giving  the  law,  the  parties  are  not  with- 
out remedy.  They  have  the  right  and  privilege  of  having  it 
corrected.  When  jurors  take  the  law  otherwise  than  from  the 
court,  justice  is  not  carried  out  according  to  law  and  the  courts 
may  as  well  be  closed.84 

§  184.  Use  of  Metaphors  and  Latin  Words  in  Instructions. 
Instructions  should  be  in  plain,  terse  English,  so  that  the  man 
of  ordinary  comprehension  may  understand.  The  use  of  meta- 
phors should  be  avoided.  To  speak  of  a  chain  of  circumstan- 
tial evidence  is  an  expression  used  and  found  in  law  books, 
but  it  is  a  metaphor  and  not  strictly  accurate. 

When  the  words  "quo  animo"  were  used  in  an  instruction 
the  court  refused  the  instruction  upon  the  grounds  that  it  em- 
bodied words  which  were  not  contained  in  the  English  lan- 
guage, and  which  the  members  of  the  jury  might  not  under- 
stand, though  the  instruction  asked  embodied  a  correct  princi- 
ple of  law,  which  should  have  been,  but  was  not  set  out,  in  the 
charge.85 

§  185.  Error  in  Admitting  Evidence,  How  Obviated.  If  in- 
competent evidence  is  permitted  to  be  introduced,  which  the 
court  afterwards  instructs  the  jury  not  to  consider,  no  preju- 
dice is  wrought  by  its  introduction.86 

When  Not  Obviated.  An  error  in  the  admission  of  evidence 
is  not  obviated  by  an  instruction  to  disregard  such  evidence, 
unless  the  case  is  such  that  it  clearly  appears  no  injustice  or 
wrong  has  been  done  to  the  party  complaining. 

§  186.  Repetitions  Occurring  in  Instructions.  It  is  not  al- 
ways possible  to  frame  a  series  of  instructions  in  which  no  rep- 
etitions occur.  The  courts  do  not  incline  to  criticise  such  de- 
fects severely.  However,  it  is  held  error  to  repeat  the  same 
propositions  many  times  in  a  single  instruction,  although  the 

roneous  for  the  judge  to  tell  the  84— State  v.  Petsch,  43  S.  C.  132, 

jury    what   facts    are    proved    and  20  S.  E.  993   (995). 

what  are  not.     The  court  may  in-  85 — Rayburn   v.    State,    69    Ark. 

struct  the  jury  what  is  evidence,  177,  63  S.  W.  356   (357);   State  v. 

but  not  what  it  proves.  Helm,  92  Iowa  540,  61  N.  W.  246 

Russ  v.  Steamboat,  etc.,  9  Iowa  (248). 

374;    Thompson   v.    Hovey,   43   111.  86— Cook  et  al.  v.  Robinson,   42 

198;    Wannock   v.   Mayor,   etc.,    53  Iowa  474;   Howe,  etc.,  Co.  v.  Ros- 

Ga.  162.  ine,  87  111.  105. 


§  187.]  INSTRUCTIONS  IN  GENERAL.  159 

phraseology  and  language  are  slightly  varied.  Such  repeti- 
tions have  the  tendency  to  unduly  emphasize  certain  points 
and  on  this  ground  may  be  considered  erroneous.87 

§  187.    Instructing  the  Jury  to  Disregard  Certain  Evidence. 

An  instruction  should  not  signify  to  the  jury  any  particular 
evidence  to  follow  or  not  to  follow;88  unless  such  evidence  has 
been  improperly  admitted  and  is  incompetent  for  any  purpose 
in  the  case.  The  court  may,  however,  instruct  the  jury  upon 
the  limitations  of  evidence  before  them,89  and  to  disregard 
evidence  which  has  been  admitted  upon  the  statement  of  coun- 
sel that  he  expected  to  make  it  relevant,  but  failed  to  do  so.90 
It  has  also  been  held  to  be  within  the  compass  of  instructions 
to  cure  errors  made  by  the  court  in  the  admission  of  evidence 
by  withdrawing  such  evidence  from  the  consideration  of  the 
jury.91  Evidence  admitted  without  objection  cannot  be  ex- 
cluded from  the  consideration  of  the  jury  by  instructions.92 

§  188.  Effect  of  Evidence,  Limited  by  Instructions.  If  evi- 
dence is  admitted  competent  for  one  purpose  which  may  have 
an  improper  effect,  the  party  aggrieved  should  ask  an  instruc- 
tion explaining  its  legitimate  effect.  It  is  improper,  however, 
to  single  out  particular  evidence  for  comment  and  the  very 
force  and  pertinence  of  such  intimations  from  the  court  would 
justify  the  granting  of  a  new  trial.93 

§  189.  When  Erroneous  Instructions  Are  Not  Held  Preju- 
dicial. Instructions  that  are  erroneous  have  not  been  held  to 
be  prejudicial  unless  it  affirmatively  appears  that  they  are  so. 

87— Shenikeeberger  v.  State,  154  92— Prior  v.  White,  12  111.   261; 

Ind.  630,  57  N.  E.  519  (524).    Where  Allison  v.  C.  &  N.  W.  R.  R.  Co.,  42 

the     statement    that     each     juror  Iowa  274. 

must  be  satisfied  beyond  a  reason-  93 — Blumenthal     v.     State,     121 

able     doubt    was    repeated    three  Ga.  477,  49  S.  E.  597   (598). 

times.  The    court    said    that    the    very 

88 — Cable  v.  Grier,  45  111.  App.  force  and  pertinence  of  the  intima- 

407.  tion  requires  the  grant  of  a  new 

89— Jamison   v.   People,   145   111.  trial,   citing   Moody  v.    State,    114 

357,  34  N.  E.  486.  Ga.    449,    40    S.    E.    242;    Rawls   v. 

90— Matthews  v.  Reinhardt,  149  State,  114   Ga.  449,   22   S.  E.   529; 

111.  635,  37  N.  E.  85.  Davis  v.  State,  91  Ga.  167   (2),  17 

91— Jones    v.    U.    S.    Mut.    Ace.  S.   E.    292;    Bradley  v.    State,   121 

Assn.,  92  Iowa  652,  61  N.  W.  485;  Ga.    201,    48    S.    E.    981;    Cobb    v. 

Becker  v.   Becker,  45  Iowa  239.  State,  76  Ga.  664. 


160  INSTRUCTIONS    TO    JURIES.  [§  190. 

An  argumentative  instruction,  otherwise  correct,  will  not 
be  ground  for  reversal.  Where  a  jury  were  instructed  that  if 
satisfied  beyond  a  reasonable  doubt  of  defendant's  guilt,  they 
owed  it  to  the  community  to  find  him  guilty.  The  court  held 
that  although  argumentative,  as  it  contained  a  correct  state- 
ment of  the  law,  it  was  not  reversible.94 

§  190.  Error  Will  Not  Always  Reverse.  Where  it  appears, 
from  the  evidence,  that  a  verdict  is  so  clearly  right  that  had 
it  been  different  the  courts  should  have  set  it  aside,  such  ver- 
dict will  not  be  disturbed  merely  for  the  reason  that  there  is 
error  found  in  the  instruction.95  The  refusal  of  instructions, 
which,  though  containing  correct  propositions,  could  not,  in 
view  of  all  the  facts  developed  by  the  evidence,  have  prejudiced 
the  party  complaining,  will  not  operate  to  reverse  the  case.96 

§  191.  When  Error  Will  Reverse.  When  a  case  is  close  in 
its  facts,  or  when  there  is  a  conflict  in  the  evidence  on  a  vital 
point  in  the  case,  the  rights  of  parties  cannot  be  preserved 
unless  the  jury  are  accurately  instructed.97  An  instruction 
which  has  a  tendency  to,  and  probably  did,  mislead  the  jury 
when  taken  singly,  is  erroneous,  even  though  the  instructions, 
when  taken  together,  embrace  the  law  of  the  case.98 

§  192.  Must  Be  Construed  in  Connection  with  the  Evidence. 
A  charge  given  by  the  court  must  be  construed  in  connection 
with  the  evidence  in  the  case.  It  is  sufficient  if  the  instructions 
are  correct  when  considered  with  reference  to  the  case  upon 
trial  and  the  facts  sought  to  be  established.99 

§  193.  Should  Be  Given  When  There  Is  Any  Evidence,  etc. 
When  the  evidence  tends  to  prove  a  certain  state  of  facts,  the 
party  in  whose  favor  it  is  given  has  a  right  to  have  the  jury 
instructed  on  the  hypothesis  of  such  state  of  facts,  and  leave 

94 — Whitney   v.   Brownewell,    71  97 — Toledo,     etc.,     Ry.     Co.     v. 

Iowa   251,  32   N.  W.    285;    Thomp-  Shuckman,  50  Ind.  42;  Wabash  Rd. 

son  v.   State,  122   Ala.   12,   26  So.  Co.  v.  Henks,  91  111.  406. 

144.  98 — Price   v.   Mahoney,   24   Iowa 

95— Lundy    v.    Pierson,    83    111.  582;     Pittsburg,    etc.,    Ry.    Co.    v. 

241;   Burling  v.  111.  Cent.  Rd.  Co.,  Krouse,  30  Ohio  St.  223;  Mackey  v. 

85    111.    18;    Phillips   v.    Ocmulgee,  People,    2    Col.    T.    13;    Murray   v. 

etc.,  55  Ga.  633;   People  v.  Welch,  Com.,  79  Pa.  St.  311. 

49  Cal.  177.  99— State    v.    Downer,    21    Wis. 

96 — Cross    v.    Garrett,    35    Iowa  275;    Huffman   v.   Ackley,   34   Mo. 

480;    Cook  et  al.   v.  Robinson,   42  277. 
Iowa  474. 


§  194.]  INSTRUCTIONS  IN  GENERAL.  161 

it  to  the  jury  to  find  whether  the  evidence  is  sufficient  to  estab- 
lish the  facts  supposed  in  the  instruction.  If  the  instructions 
are  pertinent  to  any  part  of  the  testimony,  they  should,  if  cor- 
rect, be  given  without  regard  to  the  amount  of  evidence  to 
which  they  apply.100 

When  an  instruction  is  asked  upon  a  question  concerning 
which  there  is  no  direct  testimony,  yet  if  there  be  any  proof 
tending  to  establish  it,  such  question  should  be  submitted  to 
the  jury,  as  the  party  asking  the  instruction  is  entitled  to  the 
benefit  of  whatever  inference  the  jury  may  think  proper  to 
draw  from  the  proof,  however  slight.1 

§  194.  Instructing  What  Evidence  Tends  to  Prove.  An  in- 
struction which  tells  the  jury  that  they  may  consider  certain 
evidence  as  tending  to  prove  a  particular  fact,  making  no  com- 
ment as  to  its  weight  or  effect,  is  not  for  that  reason  improper. 
But  the  expression  in  an  instruction  indicating  an  opinion  as 
to  the  weight  of  the  evidence  would  be  improper.2 

§  195.  Should  Not  Be  Argumentative.  It  is  erroneous  to 
give  an  instruction  which  is  more  in  the  nature  of  an  argument 
than  a  statement  of  the  law  governing  the  case,  giving  undue 
prominence  to  facts  relied  upon,  and  reciting  facts  having  no 
tendency  to  support  the  theory  presented.3 

§  196.  Should  Not  Ignore  Facts  Proven.  When  there  is  evi- 
dence tending  to  prove  a  fact  having  an  important  bearing 
upon  the  law  of  the  case,  though  strongly  contradicted,  an  in- 
struction is  erroneous  which  ignores  the  existence  of  such  fact, 
and  takes  its  consideration  from  the  jury.4 

§  197.  Must  Not  Prejudice  or  Favor  Either  Party.  It  is  not 
every  instruction  which  is  sound  in  law  that  the  court  is  bound 
to  give  and  an  instruction  which  might  unduly  and  improperly 

100— Griel  v.  Marks,  51  Ala.  566;     controversy,  provided  there  is  some 


State    v.    Gibbons,    10    Iowa    117 
Kendall    v.    Brown,    74    111.     232 


evidence  concerning  it.   C.  M.  &  St. 
P.  Ry.  Co.  v.   O'Sullivan,   143   111. 


Jones  v.  C.  &  N.  W.  R.  Co.,  49  Wis.  48,  32  N.  E.  398. 

'352,  5  N.  W.  854.  2— Beattie  v.  Hill,  60  Mo.  72. 

1— Peoria  Ins.  Co.  v.  Anapow,  45  3— Ludwig  v.   Sager,  84  111.  99; 

111.,    87;    Flournoy   v.   Andrews,    5  Thorpe    v.    Growey,    85    111.    612; 

Mo.  513;   Camp  v.  Phillips,  42  Ga.  Reynolds  v.   Phillips,   13   111.  App. 

289;  C.  &  W.  I.  R.  R.  Co.  v.  Bingen-  557;   Am.  B.  Soc.  v.  Price,  115  111. 

heimer,  116  111.  226,  4  N.  E.  840.  628,  5  N.  E.  126. 

An  instruction  should  not  ignore  4— Chicago  P.  &  P.  Co.  v.  Tilton, 

any  material  facts  involved  in  the  87  111.  547. 

11 


162  INSTRUCTIONS    TO    JURIES.  [§  198. 

tend  to  prejudice  the  adverse  party  may  be  refused.5  If  an  in- 
struction states  a  case  upon  which  the  plaintiff  is  entitled  to 
recover  it  should  also  contain  such  matters  of  defense  which 
may  be  put  in  evidence  as  would  defeat  such  a  claim.6 

An  instruction  should  be  equally  fair  to  both  sides,  and  a 
question  should  not  be  submitted  to  the  jury  concerning  the 
responsibility  of  one  party  without  submitting  also  the  respon- 
sibility of  the  adverse  party.7  When  the  court  directs  the  at- 
tention of  the  jury  to  the  facts,  it  should  refer  them  to  all  the 
facts  bearing  upon  the  issues,  so  as  to  present  the  case  fairly 
for  both  parties.8  An  instruction  which  undertakes  to  give  a 
summary  of  the  principal  facts,  but  directs  the  attention  of  the 
jury  only  to  those  favorable  to  one  of  the  parties,  leaving  out 
of  view  all  that  tends  to  illustrate  the  theory  of  the  other  party 
is  objectionable.9 

§  198.    Jury  Must  Believe  from  the  Evidence  Alone.    The 

findings  of  the  jury  should  be  required  to  be  upon  the  evidence 
in  the  case,10  and  the  jury  should  be  instructed  to  believe  from 
the  evidence  alone.11  This  refers,  of  course,  to  the  evidence 
which  has  not  been  stricken  out  by  the  court.12  An  instruc- 
tion which  does  not  require  the  jury  to  "believe  from  the  evi- 
dence" the  facts  assumed  in  it,  is  objectionable,  even  if  the 
law  in  the  instruction  is  correctly  stated.13 

It  is  not  necessary  that  a  jury  should  be  told  in  each  sentence 
of  an  instruction  that  they  should  believe  from  the  evidence. 
If  the  first  part  of  the  instruction  contains  this  clause  a  jury 
of  intelligent  men  will  not  be  misled  if  it  is  omitted  in  the  re- 
maining portion.14 

It  is  error  to  instruct  the  jury  that  it  is  necessary  for  the 
plaintiff  to  prove  a  material  fact,  or  that  it  should  be  made  to 
appear  from  the  evidence  "to  the  satisfaction  of  the  jury." 
The  jury  in  a  civil  case  are  to  decide  facts  upon  the  weight  or 

5— Bunker   Hill   v.    Pearson,    46        9— Evans  v.   George,  80  111.  51; 

111.  App.  47.  Newman  v.  McComas,  43  Md.  70. 

6— Waller  v.  Lasher,  37  111.  App.        10— P.  D.  &  E.  Ry.  v.  Johns,  43 

609.  HI.  App.  83. 

7— Swigart   v.    Hawley,    140    111.        11— L.  S.  &  M.  S.  Ry.  v.  Rohlfs, 

186,  29  N.  E.   883.  51  111.  App.  215. 

8— Cushman  v.  Cogswell,  86  111.        12— Con.  Coal  Co.  v.  Haenni,  146 

62;    Snyder  v.  The  State,   59   Ind.  111.  614,  35  N.  E.  662. 
105.  13— Parker  v.  Fisher,  39  111.  164. 

14— Gizler  v.  Witzel,  82  111.  322. 


§  199.]  INSTRUCTIONS  IN  GENERAL.  163 

preponderance  of  the  evidence,  even  though  the  proof  does  not 
show  such  facts  to  their  satisfaction.15 

§  199.  Should  Be  Based  on  the  Evidence.  The  instructions 
in  all  cases  should  be  based  on  the  evidence,  and  not  on  the 
facts  of  which  there  is  no  evidence.16  An  instruction  is  properly 
refused  when  there  is  no  evidence  tending  to  prove  the  hypo- 
thetical state  of  facts  to  which  it  relates.17 

It  is  error  to  give  an  instruction  denying  a  party's  right  upon 
an  assumed  state  of  facts  not  shown  by  the  evidence,  and  cal- 
culated to  give  the  jury  to  understand  that,  as  a  matter  of  law, 
the  party  under  the  contract  was  bound  in  a  certain  way  not 
shown  by  the  evidence.18 

An  instruction,  in  an  action  of  trespass  for  an  assault  and 
battery,  that  the  jury  are  the  sole  judges  of  the  amount  of  dam- 
ages that  the  plaintiff  should  recover,  without  stating  that  the 
damages  should  be  estimated  from  the  evidence,  is  erroneous.19 

The  jury  should  not  be  instructed  in  an  action  of  trespass, 
that  they  may  give  punitive  damages  if  they  believe  from  the 
evidence  the  trespass  was  committed  wantonly  or  willfully, 
where  there  are  no  circumstances  of  wantonress  or  willfulness 
to  warrant  such  an  instruction.20 

It  is  error  to  tell  the  jury  that  it  is  their  duty  to  assess  dam- 
ages if  they  believe  in  certain  facts.  Whether  a  plaintiff  has 
sustained  damages,  and  if  so,  how  much,  is  a  question  to  be 
determined  by  the  jury;  and  it  is  proper  for  the  court  to  in- 
struct them  that  if  they  believe  certain  facts  they  may,  or  they 

15 — Stratton  v.  Cent.  City  Horse  sion  to  instruct  as  to  matters  com- 

Ry.  Co.,  95  III.  25.  mon  to  all  cases  is  reversible  er- 

In   Isaac  v.  McLean  et  al.,  106  ror." 

Mich.  79,  64  N.  W.  2,  the  court  in-  16— Eli  v.  Tallman,  14  Wis.  28; 

structed   the  jury  that  they  were  Hill    v.    Canfield,    56   Pa.    St.   454; 

to  determine  the  amount  of  prop-  Howe  S.  Mch.  Co.  v.  0.  Laymen,  88 

erty    taken,    and    its    fair   market  111.  39;  Atkins  v.  Nicholson,  31  Mo. 

value,    and   the   only  objection   is  488. 

that    the    words    "from    the    evi-  17— C,  B.  &  Q.  R.  R.  Co.  v.  Dick- 

dence"    or    "under    the    evidence"  son,  88   111.  431. 

were  not  used  in  that  connection.  18 — Harrison  v.  Cachelin,  27  Mo. 

"It  might  with  equal  propriety  be  26;    Frantz   v.    Rose,    89   111.    590; 

urged     that    no     instruction     was  Swark    v.    Nichols,    24    Ind.    199; 

given  as  to  the  preponderance  or  Bogle  v.   Kreitzer,  46  Pa.  St.  465. 

burden  of  proof,  or  that  the  jury  19 — Martin    v.    Johnson,    89    111. 

must  be  governed  by  the   law   as  537. 

given  by  the  court.     It  cannot  be  20 — Waldron  v.  Marcier,   82   111. 

said  that  in  a  civil  case  the  omis-  550;   Wenger  v.  Calder,  78  111.  275. 


164  INSTRUCTIONS    TO    JURIES.  [§  200. 

are  at  liberty  to,  assess  damages,  but  not  that  it  is  their  duty 
to  do  so.21 

§  200.  Instructing  the  Jury  That  They  Are  the  Exclusive 
Judges  of  the  Facts.  Whenever  the  expressions  of  the  court 
in  the  instructions  might  lead  the  jury  to  perceive  the  opinion 
of  the  court  and  there  is  danger  of  its  influencing  and  prejudic- 
ing the  jury,  the  party  should  ask  the  court  to  instruct  the 
jury  that  they  are  the  exclusive  judges  of  the  facts.22  The 
following  instruction  has  been  approved: 

"The  jury  are  instructed  that  neither  by  this  instruction  or 
the  special  interrogatories,  nor  by  any  words  uttered  or  re- 
mark made  by  the  court  during  this  trial,  does  or  did  the  court, 
intimate,  or  mean  to  give,  or  wish  to  be  understood  as  giving, 
an  opinion  as  to  what  the  proof  is  or  what  it  is  not,  or  what  are 
the  facts  in  this  case  or  what  are  not  the  facts  therein.  It  is 
solely  and  exclusively  for  the  jury  to  find  and  determine  the 
facts,  and  this  they  must  do  from  the  evidence,  and,  having 
done  so,  then  apply  to  them  the  law  as  stated  in  these  instruc- 
tions."23 

§  201.  Should  Be  Clear,  Accurate  and  Concise.  Instruc- 
tions should,  in  a  clear,  concise  and  comprehensive  manner,  in- 
form the  jury  as  to  what  material  facts  must  be  found  in  order 
to  recover,  or  to  bar  a  recovery.  They  should  never  be  argu- 
mentative, equivocal  or  unintelligible  to  the  jury.24  Instruc- 
tions should  always  be  clear,  accurate  and  concise  statements 
of  the  law  as  applicable  to  the  facts  of  the  case.  It  was  never 
contemplated,  under  the  provision  of  the  practice  act,  that  the 

21 — Chi.  and  N.  W.  Ry.  Co.  v.  instructions  to  the  facts  as  proved 

Chisholm,  79  111.  584.  by  the  evidence,  and  it  would   be 

22 — Bonniss  v.  Felsing,  97  Minn,  error   to   give   an    instruction   im- 

227,  106  N.  W.  909.  pressing    upon    them    their    inde- 

23 — N.  C.  St.  R.  R.  Co.  v.  Kas-  pendence   of   the   law    (Ludvig   v. 

pers,  186  111.  246,  affg.  85  111.  App.  Sager,  84  111.   99),  but  we  do  not 

316,  57  N.  E.  849.  think  the  instruction  is  subject  to 

In  comment  the  court  said:  "The  that  criticism.     It  directs  the  jury 

objection  made  to  this  instruction  to    find    and    determine    the    facts 

is,  that  it  gave  the  jury  to  under-  from  the  evidence,  and  to  apply  to 

stand  that  they  were  independent  such  facts  the  law  as  stated  in  the 

of    the    law.     The   ultimate    ques-  instructions.       It   is   correct    as   a 

tions  of  the  care  of  the   plaintiff  proposition  of  law." 

and  negligence  of  defendant  were  24 — Moshier   v.    Kitchel,    87    111. 

to  be   determined  by  the  jury  by  19;  Loeb  v.  Weis,  64  Ind.  285. 
applying  the  law  as  stated  in  the 


§  202.J  INSTRUCTIONS  IN  GENERAL.  165 

court  should  be  required  to  give  a  vast  number  of  instructions, 
amounting  in  the  aggregate  to  a  lengthy  address ;  such  a  prac- 
tice is  mischievous,  and  ought  to  be  discountenanced.  A  few 
concise  statements  of  the  law  applicable  to  the  facts,  is  all  that 
can  be  required,  and  all  that  can  serve  any  practical  purpose  in 
the  elucidation  of  the  case.25 

§  202.  Should  Be  Clear  and  Unequivocal,  Not  Contradictory. 
Instructions  should  be  as  clear  and  unequivocal  as  possible  ;2G  if 
numerous  and  involved  the  jury  is  confused  thereby,  rather 
than  enlightened.27  It  has  been  held  that  the  giving  of  in- 
structions in  the  language  of  the  statute  was  not  error,  when  a 
statute  defines  an  offense,  word  or  term.  If  the  instructions 
contain  contradictory  rules  and  there  is  no  way  of  determining 
which  of  these  rules  the  jury  followed,  it  would  be  reversible 
error.28 

§  203.  Jury  Should  Consider  All  the  Evidence,  but  Need 
Not  Be  So  Instructed.  The  jury  should  consider  all  of  the  evi- 
dence given  at  the  trial,  giving  to  each  part  of  it  the  weight  to 
which  they  may  consider  it  entitled  under  all  the  circumstances, 
but  the  court  need  not  necessarily  instruct  them  upon  this 
point.  While  the  jury  are  concerned  only  with  the  evidence 
given  in  the  case  it  has  been  held  not  improper  for  the  court 
to  instruct  the  jury  relative  to  the  arguments  of  counsel  and 
the  decision  of  the  jury  as  being  based  in  any  manner  on  the 
eloquence  of  the  pleas.29 

§  204.  Should  Not  Instruct  Upon  Immaterial  Matter ;  Must 
Be  Prejudicial  to  Be  Reversible  Error.  The  court  is  not  re- 
quired to  give  an  instruction  upon  an  immaterial  matter,  not 
directly  involving  the  main  issues  in  the  case,30  but  the  giving 
of  an  instruction  which  in  no  way  is  relevant  to  the  matters 

25— Adams  v.  Smith,  58  111.  417;  People  v.  Biddlecome,  3  Utah  208, 

Trish  v.  Newell,  62  111.  196;   State  2  Pac.   194;    State  v.   Hartzell,   58 

v.  Mix,  15  Mo.  153;  Kraus  v.  Thie-  Iowa  520,  12  N.  W.  557. 

ben,  15  111.  App.  482.  29— Lowden  v.  Morrison,  36   111. 

26— W.  C.  St.  Ry.  Co,  v.  Groshon,  App.   495;    Normal   v.   Bright,    223 

51  111.  App.  463.  111.    99,    79    N.    E.    90;     Shield    v. 

27— Betting   v.    Hobbett,    42    111.  Wyndham,     123     111.     App.     228; 

App.  174.  Houtz    v.    People,     123     111.    App. 

28 — Skeen  v.  Chambers  —  Utah  445;   State  v.  Evans,  88  Minn.  262, 

— ,    86    Pac.   492-494.      11   Enc.    PI.  92    N.   W.    976. 

&    Prac.    205;    Duncan    v.    People,  30 — Tuck  v.   Singer  Manufactur- 

134  111.  110,  24  N.  E.  765;  Long  v.  ing   Co.,    67    Iowa    576,    25    N.    W. 

State,   23  Neb.  33,  36  N.  W.  310;  812. 


166  INSTRUCTIONS    TO    JURIES.  [§  205. 

in  evidence,  although  correct  in  law,  is  not  improper  unless  it 
is  shown  that  it  in  some  manner  prejudiced  the  party  with  the 
jury.31 

§205.  Should  Not  Compromise  Between  Liability  and  the 
Amount  of  Damages.  The  court  may  with  propriety  give  cau- 
tionary instructions  on  this  subject,  and  the  following  has  been 
approved: 

"The  court  instructs  the  jury  that  they  have  no  right  to 
compromise  in  their  verdict  between  the  question  of  liability 
and  the  amount  of  damages,  for  if  they  shall  find  that  accord- 
ing to  law,  as  stated  to  them  in  the  instructions  of  the  court, 
under  the  evidence  in  the  case,  the  defendant  is  not  liable, 
then  the  plaintiff  is  not  entitled  to  any  damages,  and  it  is  the 
duty  of  the  jury  to  so  find  by  their  verdict ;  and  the  jury  must 
not  arrive  at  their  verdict  by  lot  or  by  chance;  and  no  juror 
should  consent  to  a  verdict  which  does  not  meet  with  the  ap- 
proval of  his  own  judgment  and  conscience,  after  due  delibera- 
tion with  his  fellow  jurors,  and  fairly  considering  all  of  the 
evidence  admitted  by  the  court,  and  the  law,  as  stated  in  the 
instructions  of  the  court."32 

§  206.  Jury  Bound  to  Follow  Instructions ;  Effect  of  Diso- 
bedience. The  jury  are  in  duty  bound  to  follow  all  instruc- 
tions of  the  court  and  while  this  included  the  duty  to  obey  the 
order  of  court  to  find  a  verdict,  as  directed,  the  modern  prac- 
tice practically  eliminates  all  possibility  of  the  jury  disobey- 
ing the  instructions  of  the  court  in  this  respect.  A  refusal  of 
the  jury  to  follow  the  instructions  of  the  court  will  be  a  suf- 
ficient cause  for  the  reversal  of  the  case,  however.33 

§  207.  Right  to  See  Instructions  Requested  by  Opponent. 
No  communications  should  be  had  by  one  party  to  the  suit 
with  the  judge  excepting  where  the  other  side  may  have  the 
right  to  know  the  same,  and  for  this  reason  it  is  the  right  of 
a  party  to  know  what  instructions  have  been  handed  to  the 
court  by  his  adversary. 

§  208.  Party  Not  Always  Entitled  to  an  Instruction  in  the 
Form  Requested.  ^Requested  instructions  may  be  rejected  by 
the  court  when  incorrect,  or  when  they  present  questions  not 
involved  in  the  case,  for  a  party  is  not  entitled  to  an  instruc- 

31— McGregor  v.  Armill,  2  Iowa  ham  F.  Ins.  Co.  v.  Pulver,  126  111. 

30.  329,  18  N.  E.  804. 

32— C.  &  A.  Ry.  Co.  v.  Kirkland,  33— Boske  v.  Collopy,  86  111.  App. 

120    111.    App.    272,    275;    Birming-  268. 


§  209.J  INSTRUCTIONS  IN  GENERAL.  167 

tion  in  the  very  form  in  which  he  presents  it.34  The  better 
practice  seems  to  be  for  the  court  to  give  instructions  drawn 
by  himself  rather  than  use  the  instructions  requested  by  the 
parties,  as  they  are  more  likely  to  be  partisan  in  their  nature 
and  framed  in  the  interest  of  the  parties  than  the  instructions 
of  the  court.35 

§  209.  Not  Error  to  Refuse  Requested  Instructions  Already 
Included  in  Those  Prepared  by  the  Court.  A  party  has  a  right 
to  submit  requests  to  the  court  for  instructions  bearing  on 
material  parts  of  his  case,  and  to  have  the  court  give  the  same 
to  the  jury,  unless  the  same  are  included  in  the  instructions 
which  the  court  has  himself  prepared.36  It  is  error  for  the 
court  to  reject  proper  instructions  requested  unless  the  court 
should  in  place  thereof  give  the  jury  instructions  covering  the 
same  paints  but  in  a  different  form  than  those  requested.37 

The  instructions  of  the  court  may  have  the  advantage  of  be- 
ing more  concise  and  logical  than  the  various  loosely-drawn 
instructions  presented  by  the  parties  on  both  sides.  The  court 
may,  however,  in  its  discretion,  or  where,  for  want  of  time,  it 
could  not  prepare  instructions  of  its  own,  give  the  instructions 
as  presented  by  the  parties  without  change.38 

The  refusal  of  instructions  requested,  which  are  fully  cov- 
ered by  other  instructions  given,  does  not  constitute  error.39 
That  the  refused  instruction  is  correct  will  not  take  it  out  of 
the  rule,  where  its  substance  is  embodied  in  other  instructions 
given.40 

§  210.  Number  of  Instructions  Limited  by  Court.  The  right 
of  a  party  to  ask  instructions  must  have  some  limit  and  the 
Supreme  Court  will  not  sustain  an  abuse  of  this  right.41  Error 
in  limiting  instructions  will  not  be  considered  where  no  excep- 
tion or  objection  was  taken  and  when  no  instructions  were 
offered  in  excess  of  the  number  limited,42  and  to  refuse  to  give 

34— B.  &  0.  Ry.  Co.  v.  Schultz,  and  Light  Co.,  127  Wis.  230,  106 

43   O.    St.   270,   1   N.   E.   324.  N.   W.    1068. 

35— Chicago   v.    Moore,    139    111.  40— Whitney  &  Starrette  Co.  v. 

201,   28  N.  E.  1071.  O'Rourke,    172    111.    177,    50   N.    E. 

36— O'Neil  v.  Dry  Dock  B.  R.  Co.,  242;    W.   C.  R.   R.   Co.  v.  Liesero- 

129  N.  Y.  125,  29  N.  E.  84.  witz,    197    111.    607,   617,    64    N.    E. 

37— Chicago   v.    Moore,    139    111.  718. 

201,  28  N.  E.  1071.  41— Fisher    v.    Stevens,    16    111. 

38— Cook  v.  Brown,  62  Mich.  473,  397;    Wright   v.    Ames,    28    Minn. 

29  N.  W.  46.  362,   10   N.  W.   21. 

39— J.  H.  Cowin  Glove  Co.  v.  M.  42— The    Fair    v.    Hoffman,    209 

D.  T.  Co.,  130  Iowa  327,  106  N.  W.  111.  330,  70  N.  E.  622. 
749;     Hirts    v.    Eastern    Wis.    R. 


168 


INSTRUCTIONS   TO    JURIES. 


[§211. 


instructions  asked  for,  however  correct  or  applicable,  is  not 
erroneous,  if  they  have  in  substance  already  been  given  in  the 
charge  of  the  court.43 

§  211.  The  Giving  of  Further  Instructions  Is  in  the  Discre- 
tion of  the  Court.  When  the  jury,  in  a  criminal  case,  return 
into  court  and  say  that  they  cannot  agree,  it  is  competent  for 
the  court,  of  its  own  motion,  to  give  them  any  additional  in- 
struction, proper  in  itself,  which  may  be  necessary  to  meet  the 
difficulties  m  their  minds.44 

A  fresh  discussion  of  the  law  or  the  evidence,  on  the  part  of 
counsel  in  the   presence   of  the  jury,   cannot  be  had,  unless 


43— State  v.  Stanley,  33  Iowa 
526;  Cramer  v.  The  City  of  Bur- 
lington, 42  Iowa  315;  Scott  v.  De- 
laney,  87  111.  146;  Crisman  v.  Mc- 
Donald, 28  Ark.  8;  Olive  v.  The 
State,  11  Neb.  1,  7  N.  W.  444. 

In  I.  C.  R.  R.  Co.  v.  Chi.  T.  &  T. 
Co.,  79  111.  App.,  623,  631,  the  court 
says:  "Appellant's  counsel  asked 
thirty-nine  instructions  thirteen 
of  which,  some  of  them  modified, 
were  given,  and  the  remainder  re- 
fused. Counsel  now  objects  to  the 
modification  of  the  instructions 
modified,  and  the  refusal  of  those 
refused.  We  decline  to  pass  on 
these  objections.  Such  a  large 
number  of  instructions  in  such  a 
case  as  this  is  wholly  unnecessary, 
tends  to  confuse  rather  than  en- 
lighten the  jury,  and  also  to  in- 
crease the  chances  of  error,  which 
latter,  we  are  inclined  to  think,  is 
not  infrequently  the  object  sought 
to  be  attained  by  counsel.  The 
practice  of  asking  a  large  number 
of  instructions  has  been  severely 
criticised  by  the  Supreme  Court, 
the  court  saying,  among  other 
things,  'It  is  a  mischievous  prac- 
tice and  should  be  discontinued.' " 
See  also  Chi.  Ath.  Assn.  v.  Eddy, 
77  111.  App.  204,  and  Adams  v. 
Smith,  58  111.  417. 


In  Duthie  v.  Town  of  Wash- 
burn, 87  Wis.  231,  58  N.  W.  380. 
382,  the  court  said  that  the  "prac- 
tice of  giving  long  charges  to  the 
jury  has  grown  into  an  evil,  and 
to  this  practice  may  well  be  attrib- 
uted the  various  objections  above 
noticed.  Instructions  to  the  jury 
should  be  clear  and  explicit  and  to 
the  point,  and  so  brief  as  to  be  em- 
phatic. The  language  should  be 
well  selected  to  express  with  ex- 
actness and  clearness  the  legal 
principle  in  view,  and  the  words 
be  apt  and  appropriate.  There  is 
nothing  that  should  be  expressed 
with  more  terseness,  brevity  and 
accuracy  than  legal  principles. 
These  rules  may  as  well  be  applied 
to  judicial  opinions  as  to  instruc- 
tions to  a  jury.  Repetition,  ver- 
bosity, long  and  involved  sen- 
tences, and  numerous  and  point- 
less examples,  analogies  and  illus- 
trations, should  be  avoided  •  in 
either  case.  The  briefer,  well-ex- 
pressed and  proper  instructions 
are,  the  more  readily  the  jury  will 
understand  and  longer  remember 
them." 

44— State  v.  Pitts,  11  Iowa  343; 
Hogg  v.  State,  7  Ind.  551. 


§212.]  INSTRUCTIONS  IN  GENERAL.  169 

allowed  by  the  judge,  in  his  discretion;  nor  is  the  judge  re- 
quired to  give  additional  instructions  at  the  request  of  either 
party.  In  such  matters  much  must  be  left  to  the  discretion  of 
the  judge.45  After  a  jury  retire  to  consider  their  verdict  and 
come  into  court  for  further  instructions,  it  is  irregular  to  give 
such  instructions  in  the  absence  of  a  party.46 

The  court  should  not  give  instructions  to  the  jury  after 
they  have  retired  to  consider  their  verdict,  unless  the  parties 
or  their  attorneys  have  been  notified,  and  such  action  is  reversi- 
ble error,  unless  it  is  shown  that  no  prejudice  resulted.47  It  is 
held,  however,  that  the  sending  for  counsel  in  such  a  case  is 
but  an  act  of  courtesy  by  the  court,  and  not  a  legal  duty.48 
In  a  case  where  no  instructions  were  offered  by  either  party, 
it  was  held  proper  for  the  court  to  orally  instruct  the  jury  that 
they  must  find  the  amount  of  damages,  where  they  had  re- 
turned a  verdict  without  fixing  the  amount  and  to  order  them 
to  return  to  the  jury-room  for  this  purpose.49 

§  212.    The  Jury  May  Come  in  for  Further  Instructions.    A 

jury  may  be  called  into  court  for  further  instructions,  either 
by  agreement  of  counsel,  or  at  their  own  request.50  If  the  jury 
should  find  an  insufficient  verdict,  the  court  may  send  them 
out  under  instructions  to  find  formally  and  fully,  so  as  to  de- 
termine the  rights  of  the  parties.51 

§  213.  Instructions  Taken  by  the  Jury  upon  Retirement. 
Written  instructions  are  as  a  general  rule  allowed  to  be  taken 
with  the  jury  upon  their  retirement.52  In  some  states  it  is  held 
improper  to  allow  the  jury  to  take  with  them  the  instructions 
of  the  court,  which  are  reduced  to  writing,  but  this  occurred 
only  in  a  case  where  the  instructions  were  not  given  to  the 
jury  until  after  they  had  retired.53 

§214.  When  the  Jury  May  Take  the  Pleadings  upon  Re- 
tirement.    Pleadings  are  drawn  in  technical  language  and  con- 

45— Nelson  v.  Dodge,  116  Mass.  49— Chapman  v.    Salfisberg,   104 

367.  111.  App.  445. 

46— Davis  v.  Fish,  2  G.  Gr.  447;  50— State  v.  Pitts,  11  Iowa  343; 

O'Connor  v.  Guthrie  et  al.,  11  Iowa  Lee  v.  Quirk,  20  111.  392;  O'Shields 

80;    Campbell   v.   Beckett,    8   Ohio  v.    State,    55    Ga.    696;    Farley    v. 

State  210;  Hoberg  v.  State,  3  Minn.  State,  57  Ind.  331. 

262.  51— Flinn  v.  Barlow,   16   111.  39. 

47— Kizer  v.  Walden,  96  111.  App.  52— Smith  v.  Holcomb,  99  Mass. 

593.  552. 

48— Heenan   v.   Howard,   81   111.  53— Smith  v.  McMillen,  19  Ind. 

App.  629.  391. 


170  INSTRUCTIONS    TO    JURIES.  [§-15. 

tain  matter  which  may  have  been  withdrawn,  and  sometimes 
has  matter  pregnant  with  denunciations  and  adjectives  that 
might  sway  or  influence  the  jury.54  It  is  not  always  easy  for 
the  court  itself  to  understand  the  pleadings  and  certainly  it 
would  be  too  much  to  expect  that  the  jury  would  not  misun- 
derstand them. 

In  some  states  it  has  been  held  to  be  proper  to  allow  the 
jury  to  take  with  them  the  pleadings  to  the  jury-room,  although 
they  are  drawn  for  the  guidance  of  the  court  rather  than  for 
the  jury.55  In  the  state  of  Minnesota  it  is  held  that  the  court 
may  permit  a  jury  to  take  the  pleadings  with  them  to  the  jury- 
room  when  there  is  any  special  reason  therefor,  but  that  this 
was  of  doubtful  propriety.56 

In  the  state  of  Illinois  the  rule  seems  to  be  that  the  jury  may 
be  allowed  to  take  the  pleadings  with  them  when  they  retire 
to  consider  their  verdict  if  the  parties  so  request,  but  this  rule 
does  not  include  pleadings  which  have  been  stricken  from  the 
files  by  demurrer,  or  otherwise  eliminated.57  Where  a  count 
of  a  declaration  has  been  withdrawn  it  should  not  be  submitted 
to  the  jury,58  but  where  a  count  was  withdrawn  by  one  of  the 
parties  in  the  presence  of  the  jury  it  cannot  be  said,  as  a  mat- 
ter of  course,  that  the  jury  were  prejudiced  and  misled  by 
being  allowed  to  take  the  whole  declaration  with  them.59 

§  215.     Law  Books,  etc.,  Should  Not  Be  Taken  to  Jury-Room. 

Law  books  should  not  be  taken  to  the  jury-room,  either  by  the 
jury  or  anyone  else,60  and  it  is  even  held  that  a  copy  of  the 
state  statutes  in  the  jury-room  during  deliberation  was  a  suf- 
ficient cause  for  reversing  the  verdict.  Nor  should  scientific 
books  be  allowed,61  nor  even  a  city  directory.62 

§  216.  Depositions  and  Other  Papers  Taken  by  the  Jury 
upon  Retiring".  Generally  all  papers  which  are  duly  admit- 
ted in  evidence  may  properly  go  to  the  jury,  but  it  is  wTithin 
the  power  of  the  court  to  withhold  them  in  the  exercise  of 

54— Swanson  v.  Allen,  108  Iowa  58— Trumbull  v.  Trumbull,  98  N. 

419,  79  N.  W.  132.  W.  683. 

55— Dorr  v.   Simerson,   73   Iowa  59 — W.  C.  St.  Ry.  Co.  v.  Buckley, 

89,  34  N.  W.  752.  200  111.  260,  65  N.  E.  708. 

56— Mattson   v.   Minn.   &   N.   W.  60— Merrill    v.    Nary,    10    Allen 

Ry.    Co.,     98    Minn.    290,    108    N.  416. 

W.  517.  61— State  v.  Gillick,  10  Iowa  98. 

57— Village  of  N.  Peoria  v.  Rog-  62— U.  S.  v.  Horn,  5  Blatchford, 

ers,  98  111.  App.  355.  105. 


§  217.]  INSTRUCTIONS  IN  GENERAL.  171 

sound  discretion,  but  no  exception  will  lie  to  the  ruling  in  this 
regard.63  This  holds  true  of  all  papers  and  documents  unless 
otherwise  provided  by  statute.  Depositions  are,  however,  ex- 
cepted.64 The  courts  do  not  allow  deposition  to  be  taken  by 
the  jury  upon  retirement  to  deliberate  upon  their  verdict,  for 
the  reason  that  being  a  part  of  the  testimony  they  ought  not 
receive  a  greater  emphasis  than  the  other  parts.  This  is  true 
of  pleadings  also,  where  portions  of  them  are  underscored  so 
as  to  call  particular  attention  thereto. 

It  has  been  held,  however,  that  books  containing  memoranda 
attached  to  the  depositions  are  competent  and  independent 
evidence  and  the  jury  may  take  them  with  them  upon  retire- 
ment when  detached  from  the  depositions.65  And  it  has  been 
held  proper  to  send  papers  to  the  jury-room  even  after  the 
jury  had  retired  for  deliberation.66 

§217.  Permitting  the  JuVors  to  Make  Memoranda  of  the 
Evidence.  In  some  states  it  is  held  proper  for  the  jurors  to 
make  memoranda  of  the  evidence  or  arguments  and  to  take 
them  with  them  to  the  jury-room  to  assist  them  in  the  consid- 
eration of  the  evidence.67  In  Indiana,  however,  the  court  held 
that  jurors  would  be  too  apt  to  depend  on  their  own  memoran- 
dum and  to  give  it  undue  prominence  to  the  exclusion  of  the 
other  parts  of  the  evidence,  and  for  that  reason  it  was  held 
error  to  permit  the  jury  to  take  such  notes  with  them  on  re- 
tirement.68 

§218.  Introducing  Further  Evidence  after  Retirement  of 
Jury  or  After  Verdict.  Although  the  case  is  under  advisement 
by  the  jury,  the  trial  court  may,  in  its  discretion,  permit  fur- 
ther evidence  in  special  exigencies.69 

A  rendering  of  further  evidence  after  the  verdict  could  only 
be  done  by  asking  for  a  new  trial  as  the  case  is  closed  at  least 
for  that  trial.  If  the  case,  however,  was  one  in  Chancery  it 
would  seem  possible  and  entirely  proper  for  the  court  to  hear 

63-Burghardt  v.  Van  Beusen,  86  67-Rickenan     v.     Williamsburg 

Mass.    374;    Standard    Starch    Co.  C.  F.  Ins.  Co.,  120  Wis.  655,  98  N. 

v    McMullen,   100   111.   App.   82.  W.  960. 

64-Standard  Starch  Co.  v.  Mc-  68-Cheek  v.  State,  35  Ind.  492. 

Mullen,  supra.  69-Meadows  v.  Ins.  Co.,  67  Iowa 

65-Standard   Starch  Co.  v.  Mc-  57,  24  N.  W.  951;  McComb  v.  Ins. 

Mullen,  supra.  Co.,  83   Iowa  247,  43  N.  W.  1038; 

66— Smith  v.  Holcomb,  99  Mass.  Meserve  v.  Folsom,  62  Vt.  504,  20 


552. 


Atl.  926. 


172  INSTRUCTIONS    TO    JURIES.  [§  219. 

such  further  testimony  and  if  necessary  reconsider  his  judg- 
ment. 

§219.  Protraction  of  Trial  over  Night.  Under  extraor- 
dinary circumstances,  a  court  may  protract  a  trial  during  the 
whole  or  a  part  of  the  night,  but  in  the  absence  of  special  rea- 
sons justifying  it  is  held  to  be  an  unjust  and  unusual  proceed- 
ing and  to  do  this  constitutes  a  great  abuse  of  discretion.70 

70— McGonn     v.     Campbell,     28    Kan.  30. 


CHAPTER  XII. 


ARGUMENT  OF  COUNSEL  TO   THE  JURY— TIME  FOR  ARGU- 

MENT   LIMITED    BY   THE    COURT— FREEDOM 

OF  SPEECH— IMPROPER  REFERENCES 

IN    ARGUMENT. 


J220. 
|221. 
§222. 
§223. 
§224. 
§225. 
§226. 
§227. 

§228. 
§229. 

§230. 
§231. 

§232. 
§233. 


The  right  to  argue  the  case 

to  the  jury. 
Refusal  of  the  court  to  lis- 
ten to  argument. 
Licensed  attorneys  alone  en- 
titled to  this  right. 
Time  and  order  of  argument 

— Waiver. 
Limiting  time  consumed  in 

the  trial. 
Limiting  the  time  consumed 

in  argument. 
Allowing      additional      time 

for  argument. 
Interruptions    by    opponent 

for  the  purpose  of  wasting 

time. 
Arguments  should  be  limited 

to  the  evidence. 
Matters   of   common   knowl- 
edge may  be  referred  to  in 

argument. 
Personal  opinions  of  counsel 

to  be  avoided. 
Comment  on  the  conduct  of 

parties  and  appearance  of 

witnesses. 
Freedom  of  speech   allowed 

in  argument. 
Privilege  of  attorney  on  ac- 
count  of    words   used    in 

argument. 

173 


§  234.  Appeals  to  prejudice  or  pas- 
sion. 

§  235.  References  to  other  crimes 
of  accused. 

§  236.  Reference  to  poverty  and 
wealth. 

§  237.  Reference  to  Inability  to  se- 
cure a  witness  on  account 
of  expense. 

§  238.  Comments  on  withholding 
evidence. 

§  239.  Referring  to  the  corporate 
capacity  of  opponent. 

§  240.  Profane  and  obscene  lan- 
guage. 

§  241.  Improper  remarks  cured  by 
rebuke  of  court 

§  242.  Improper  remarks  not  cured 
by  withdrawal. 

§  243.  Improper  remarks  cured  by 
an  instruction. 

§  244.  Objections  to  improper  re- 
marks should  be  made  im- 
mediately. 

§  245.  Reference  to  damages  in 
previous  trial  or  to 
amount  of  verdicts  in 
other  cases. 

§  246.  Where  the  opposite  party  is 
equally  guilty— Condoned. 


174  INSTRUCTIONS    TO    JURIES.  [§220. 

§  220.    The  Right  to  Argne  the  Case  to  the  Jury.     The  right 

to  be  heard  by  counsel  in  argument  may  be  said  to  be  univer- 
sally conceded ;  it  is  not  a  question  of  discretion  for  the  court, 
but  an  absolute  legal  right,  not  absolute,  perhaps,  in  the  sense 
that  a  right  to  appear  and  defend  by  counsel  is  absolute  and 
which  cannot  be  taken  away  from  a  party,  but  dependent  on 
the  fact  that  there  is  something  to  argue,  something  in  dispute, 
or,  in  other  words,  a  debatable  question. 

§  221.  Refusal  of  the  Court  to  Listen  to  Argument.  The 
trial  court  may  refuse  to  listen  to  the  most  respectful  argument 
on  the  ground  that  it  is  infallible  in  judgment  and  that  there  is 
no  possibility  of  it  being  in  error.  Such  arrogance  and  arbi- 
trariness is  inexcusable  and  even  more  so,  when  the  court  pre- 
vents a  full  presentation  and  argument  of  the  case  to  the  jury. 
There  can  be  no  excuse  for  the  refusal  of  the  court  to  allow  a 
litigant  to  have  a  full  presentation  of  his  case  in  argument  to 
the  court  or  to  the  jury.  While  an  attorney  is  truly  an  officer 
of  the  court,  owing  certain  duties  and  obligations  thereto,  he 
is  also  under  engagements  of  responsibility  to  his  client.  The 
interests  of  the  client  are  paramount  to  all  other  considera- 
tions. It  is  to  this  end  that  the  whole  machinery  of  the  court, 
judge,  jury  and  counsellor  exist. 

A  licensed  attorney  is  an  officer  of  the  court  and  as  such 
has  the  duty  and  privilege  of  aiding  and  assisting  the  court  on 
the  matters  of  the  trial  and  in  the  settlement  of  questions  of 
law.  For  this  reason  courts  have  assumed  the  right  to  dispense 
with  arguments  of  counsel  to  itself,  as  it  may  properly  refuse 
to  receive  unnecessary  help,  but  this  by  no  means  follows  when 
the  argument  is  made  to  the  jury. 

In  all  cases,  whether  civil  or  criminal,  but  especially  in  crim- 
inal cases,  this  right  is  of  high  order  and  is  guaranteed  under 
the  federal  constitution  and  many  of  the  state  constitutions. 

Whenever  there  is  a  case  for  the  jury  there  is  an  absolute 
right  to  argue  the  same  by  counsel  and  to  deprive  a  party  of 
it  would  constitute  error.1  Counsel  who  represent  defendant 
only  for  the  purpose  of  moving  for  a  continuance  and  arguing 

.    1— Mayo  v.  Wright,  63  Mich.  32;  Lowy,   57    111.   App.    106;    Douglas 

Cartwright  v.  Clopton,  25  Ga.  85;  v.  Hill,  29  Kas.  527;  Kintz  v.  Star- 

Lanan  v.  Hibbard,  S.,  B.  &  Co.,  63  key,  70  111.  App.  53;  Nedig  v.  Cole, 

111.   App.    54;    Hettinger  v.   Beiler,  13  Neb. 
54    111.    App.    320;     Zweitusch    v. 


§  222.]  ARGUMENT  OF  COUNSEL.  175 

a  demurrer  have  no  right  to  argue  the  case  upon  its  merits  to 
the  jury  at  the  close  of  plaintiff's  testimony.2 

§  222.  Licensed  Attorneys  Alone  Entitled  to  This  Right. 
To  be  entitled  to  this  right  it  is  usually  required  either  that 
the  person  be  a  party  to  the  suit  or  a  regularly  licensed  attor- 
ney appearing  in  his  behalf.  It  is  held  improper  to  allow  one 
who  is  not  a  licensed  attorney  to  appear  and  conduct  a  case, 
although  it  is  doubtful  if  this  would  be  sufficient  to  reverse 
the  case  on  appeal.3 

§  223.  Time  and  Order  of  Argument — Waiver.  The  order 
of  argument  at  the  close  of  the  evidence  is  so  well  known  as 
to  need  no  comment.  An  attorney  should  avail  himself  of  the 
right  to  argue  to  the  jury  at  the  proper  time  and  it  is  only 
within  the  discretion  of  the  court  to  allow  him  to  argue  to  the 
jury  afterwards.4 

It  may  be,  however,  that  the  plaintiff  desires  to  waive  his 
opening  argument  and  if  the  defendant  should  do  the  same  the 
case  would  then  be  given  to  the  jury  without  any  argument  on 
either  side,5  but  where  plaintiff  waives  his  opening,  and  the  de- 
fendant proceeds  to  argue  to  the  jury,  the  plaintiff  has  the  right 
to  make  the  closing  argument,  although  he  made  no  argument 
in  the  first  instance.6 

§  224.  Limiting  Time  Consumed  in  the  Trial.  Trials  were 
of  the  most  summary  nature  up  to  the  beginning  of  the  eigh- 
teenth century ;  truth  was  not  supposed  to  require  more  than  a 
cursory  investigation.  Quick  dispatch  was  expected  and  the 
trial  was  supposed  to  be  finished  before  the  close  of  the  day.' 
It  was  not  until  1794  that  the  practice  of  adjourning  the  trial 
of  the  case  from  day  to  day  was  assumed  by  the  court. 

Gradually  all  this  became  changed  until  at  present  we  are 
in  danger  of  going  to  the  other  extreme  and  showing  too  little 
regard  for  the  value  of  time.  Time  should  not  be  regarded  as 
unlimited  in  quantity  nor  on  the  other  hand  should  it  be  re- 

2— Gunn  v.  Gunn,  95  Ga.  439,  22  N.  J.  L.   463;    Combs  v.   State,   75 

S.  E.  552.  Ind.   215. 

3— Newburger  v.  Campbell,  9  N.  5— Martin  v.  State,  51  Ga.  567; 

Y.   102;    Garrison  v.  Wilcoxon,  11  State    v.    Rose,    81    Iowa    138,    46 

Ga.    154;    Williams   v.    West   Bay  N.  W.  812. 

City,  119  Mich.  395,  78  N.  W.  328.  6— Pa.  Co.  v.  Greso,  79  111.  App. 

4 — Harrington  v.   Puley,   26   111.  127;     Lewandowski    v.     State,    70 

94;   Reardon  v.  Smith,  72  111.  App.  Wis.  458,  36  N.  W.  21;  Preston  v. 

675:      Com.      v.      Hull,      4      Allen  Walker,    26    Iowa    207;    Trask    v. 

(Mass.)    305;    Stall   v.   Morris,   84  People,  151  111.  523,  38  N.  E.  248. 
N.   C.   756;    Donnelly  v.   State,   26 


176  INSTRUCTIONS    TO    JURIES.  [§  225. 

garded  of  such  intrinsic  value  that  the  rights  of  litigants  are 
jeopardized  and  justice  sacrificed  in  order  to  save  time. 

The  court  in  a  New  York  case  said:  "It  is  the  first  time 
we  have  ever  heard  it  urged  that  a  party  who  had  a  conceded 
right  should  not  have  a  remedy  to  enforce  it,  because  a  large 
consumption  of  time  would  take  place  before  his  right  could  be 
established.  If  a  party  has  a  legal  title  to  an  office,  it  surely 
can  be  no  legal  reason  for  denying  him  the  opportunity  to  es- 
tablish it,  that  such  process  will  require  the  examination  of  a 
large  number  of  witnesses  and  consume  much  time  in  the  pro- 
ceeding. Rights  of  parties  cannot  be  determined  on  such  a 
basis."7 

As  one  writer  has  well  said:  "What  is  necessary  to  be  done 
the  law  allows,  no  matter  how  long  a  time  it  may  take  to  do  it. 
No  man's  defense  or  claim  should  suffer  because  the  court 
thinks  there  is  too  much  time  wasted  in  investigating  it." 

The  parties  to  a  case  have  a  right  to  have  all  their  witnesses 
heard  whenever  a  controlling  fact  is  the  matter  in  controversy, 
provided  that  these  witnesses  have  knowledge  bearing  on  the 
point  in  contest  and  to  deny  this  right  would  be  considered 
error  sufficient  to  reverse  the  case.8 

It  is  held  in  an  action  for  personal  injuries  that  the  trial 
court  has  no  power  to  limit  the  number  of  witnesses  which  a 
party  may  call  to  testify  as  to  the  occurrences  at  the  time  of 
the  accident.9 

The  court  should  not  indulge  in  facetious  remarks  about  the 
consumption  of  time  and  it  has  been  held  to  be  improper  con- 
duct, although  not  sufficient  in  the  particular  case  cited  to  war- 
rant a  reversal.10 

In  general,  however,  it  seems  to  be  well  settled  that  the  court 
may,  with  entire  propriety,  limit  the  evidence  presented  upon 
a  certain  point,  and  require  a  party  calling  further  witnesses 
for  examination  on  the  same  point  to  pay  the  costs  of  the  wit- 
nesses called.11 

§225.  Limiting  the  Time  Consumed  in  Argument.  In  a 
great  many  decisions  the  courts  appear  to  recognize  the  right 

7 — People  v.  Pease,  27  N.  Y.  45,  444;  Reynolds  v.  P.  J.  B.  Factory, 

61.  52    Hun     (N.    Y.)     64;     Union    R. 

8— Williams  v.  McKee,  98  Tenn.  Trans,  v.  Marr,  80  Ind.  458. 

139,   38   S.   W.   730;    Crane   Co.  v.  10— Chi.   C.  Ry.  Co.  v.  Wall,  93 

Stammers,  83  111.  App.  329.  111.     App.     411;     Mergentheim     v. 

9— Ward  v.  Dick,  45  Conn.  235;  State,   107   Ind.   567,   8  N.   E.    56S. 

Cooke  B.  Co.  v.  Ryan,  98  111.  App.  11— Long  v.  State,  12  Ga.  255. 


§  225.]  ARGUMENT  OF  COUNSEL.  177 

of  a  trial  court  to  limit  the  time  consumed  by  counsel  in  their 
arguments.12  This  power  must  be  exercised  with  sound  dis- 
cretion and  the  limitation  imposed  must  be  reasonable.13  The 
only  valid  reason  for  limiting  the  time  at  all  is  a  great  press  of 
business  before  the  court,  or  that  an  unusual  amount  of  time 
is  consumed  by  a  long  and  purposeless  argument. 

The  limiting  of  time  used  in  argument  to  the  jury  is  a  serious 
question  for  consideration,  for  it  is  manifestly  impossible  for 
the  court  to  know  in  advance  how  much  time  may  be  required 
to  present  a  full  and  fair  argument  upon  the  case.  What  is 
worth  doing  at  all  is  worth  doing  well,  and  in  haste  there  is  no 
gain.  Counsel  should  not  be  subjected  to  the  treatment  af- 
forded race  horses  or  pugilists  on  whom  time  is  called.  Their 
thoughts  may,  like  the  entered  race  horse,  spring  forth  and  run 
a  part  of  the  course,  but  fail  to  make  the  finish  within  the  time 
allotted. 

It  has  been  held  to  be  an  abuse  of  discretion  to  limit  the  time 
to  5  minutes  in  a  felony  case,  about  10  witnesses  testifying  in 
the  case.14  Even  30  minutes  was  held  insufficient  in  a  similar 
case.16  So  also,  to  limit  a  party  to  five  minutes  so  that  he  is 
unable  to  make  a  substantial  presentation  of  his  case  in  argu- 
ment to  the  jury,  there  being  evidence  on  which  a  verdict 
could  be  sustained.13 

If  a  court  can  limit  the  argument  to  fifteen  minutes  it  can 
limit  it  to  less,  or  may  take  the  right  away  altogether,  which 
in  some  instances  amount  to  the  same  thing,  and  thus  deprive 
a  party  of  his  clear  constitutional  right.  An  attorney  who  is 
sensible  of  his  solemn  duties  and  obligations  to  his  client  would 
not  feel  he  could  measure  up  to  that  standard  of  duty  by  at- 
tempting to  elucidate  the  issues  in  even  an  ordinary  case  in  the 
beggarly  time  sometimes  allotted. 

In  some  states  no  limitation  is  allowed  to  be  placed  on  the 
time  allotted  counsel  in  argument.17 

12— Smith  v.  Bragden,  66  Miss.  14— White  v.  People,  90  111.  117. 
178;   Hanson  v.  State,  18  Tex.  Cr.         15— Dille  v.  State,  34  Ohio  617. 


16— Zweitusch  v.  Lowy,   57   111. 
App.  106. 


App.   183;    So.   K.  R.  v.  Michaels, 

49  Kan.   388,   30   Pac.   408;    Unger 

v.   State,  62  Mass.   311;   People  v. 

Keenan,    13    Cal.    584;     Pease    v.         17— See    Code    of    Iowa,    1897; 

Barkowsky,     67     111.     App.     277;      State  v.  Page,  21  Mo.  257,  64  Am. 

State  v.   Page,    21  Mo.  257.  Dec.    220;    People   v.    Labadie,    66 

13— Schneider  v.  N.  C.  St.  R.  Co.,     Mich.   702,   33  N.  W.  806. 
80  111.  App.  306. 
12 


178  INSTRUCTIONS    TO    JURIES.  L§  226. 

§226.  Allowing  Additional  Time  for  Argument.  To  allow 
counsel  to  indulge  in  further  argument  or  additional  argu- 
ment, as  well  as  to  permit  the  introduction  of  further  evidence 
after  the  close  of  the  case,  is  always  a  matter  for  the  sound 
discretion  of  the  court,18  and  where  counsel  is  thus  given  addi- 
tional time  for  argument,  he  is  required  to  use  it  in  order  to 
have  any  standing  to  complain  that  he  was  not  allowed  a  suffi- 
cient time  for  argument.19 

§  227.  Interruptions  by  Opponent  for  the  Purpose  of  Wast- 
ing Time.  The  judge  should  exercise  such  a  control  over  the 
trial  that  the  party  arguing  the  case  before  the  jury  should 
have  the  full  benefit  of  his  opportunity  to  fairly  present  his 
view  of  the  case  and  continual  interruptions  on  the  part  of 
the  adverse  party  made  under  pretense  of  objecting,  should  not 
be  permitted.20 

§  228.  Arguments  Should  be  Confined  to  the  Evidence.  It 
is  a  well  settled  principle  that  the  jury  should  receive  the  evi- 
dence from  the  witnesses  sworn  at  the  trial  and  not  from  the 
statements  made  by  counsel  in  their  arguments.  It  is  for  this 
reason  manifestly  improper  for  counsel  to  state  to  the  jury 
facts  which  have  not  been  proven  at  the  trial,21  but  statements 
which  are  unsupported  by  the  evidence  should  not  ordinarily 
be  considered  as  serious,  as  considerable  latitude  should  be  al- 
lowed counsel  in  their  argument  to  the  jury.22 

It  is  upon  the  evidence  that  has  none  to  the  jury,  excepting 
such  portions  as  may  have  been  stricken  out  on  motion  by  the 
court,  that  counsel  have  a  right  to  comment  upon  in  their  argu- 
ments to  the  jury.23  To  recite  facts  not  in  evidence  regarding 
specific  acts  of  witnesses,  or  any  other  matters  during  the  argu- 
ment by  counsel,  is  held  sufficient  to  warrant  reversal  of  the 
ease  and  remanding  it  for  a  new  trial.     Many  lawyers  unfor- 

18— Boreham   v.  Byrne,   83   Cal.  282;   Bedford  v.  Penney,   58  Mich. 

23;  Gulf  C.  &  S.  F.  Ry.  Co.  v.  Mat  424;  W.  C.  St.  Ry.  Co.  v.  Krueger, 

thews,  89  S.  W.  983.  68  111.  App.  450. 

19— American  S.  Co.  v.  U.  S.,  77  22— Fitzgerald    v.    Benner,    219 

111.  App.  106.  111.    488,    76   N.   E.    709;    Dollar  v. 

20— N.  Chi.  St.  R.  Co.  v.  Cotton,  State  (Ala.  1893),  13  So.  Rep.  576. 

140  111.  486,   29  N.  E.  899;   Barry  23— Union    Cent.    L.    I.    Co.    v. 

v.  State,  10  Ga.  511;  Willis  v.  Mc-  Cheever,  36  Ohio  St.  201;  Chi.  &  E. 

Neil,  57  Tex.  474.  I.  R.  Co.  v.  Mochell,  193  111.  208.  61 

21— Haskell   v.   McCoy,   38   Kas.  N.  E.  1028. 
53;    Brown  v.    Swineford,   44  Wis. 


§  229.]  ARGUMENT  OF  COUNSEL.  179 

tunately  cannot  understand  that  a  verdict  which  is  obtained 
by  unfair  means  is  as  good  as  no  verdict  at  all.24 

§  229.  Matters  of  Common  Knowledge  May  be  Referred  to 
in  Argument.  Where  the  matter  referred  to  by  counsel  in  his 
argument  is  a  matter  of  common  experience  and  knowledge  it 
is  entirely  proper,  although  it  may  not  be  based  upon  or  war- 
ranted by  the  evidence.  Well  known  facts  may  be  referred  to 
by  way  of  illustration ;  the  jury  may  be  called  upon  by  an  at- 
torney in  his  argument  to  sustain  the  laws,  and  the  fact  that 
crime  has  gone  unpunished  may  be  referred  to  where  it  is  a 
matter  of  general  notoriety.25 

§  230.  Personal  Opinions  of  Counsel  to  be  Avoided.  No  per- 
sonal opinion  on  the  case  should  be  indulged  in  by  counsel,  as 
this  would  be  improper  even  in  the  case  of  a  sworn  witness. 
Nor  should  counsel  state  to  the  jury  that  the  adverse  party 
has  no  case;  all  such  remarks  should  be  avoided.  Counsel 
should  not  assume  the  character  of  a  witness.26 

§  231.  Comment  on  the  Conduct  of  Parties  and  Appearance 
of  Witnesses.  The  conduct  of  the  parties  at  the  trial  may  be 
commented  upon  with  entire  propriety;  to  be  libelous  there 
must  be  proof  presented  that  such  statements  were  maliciously 
made,  as  an  attorney  has  a  constitutional  privilege  to  make 
such  fair  comments  as  in  his  judgment  seems  proper.27  So  also 
reasonable  comments  may  be  made  upon  the  personal  appear- 
ance and  manner  of  the  witnesses  upon  the  stand,28  but  unjus- 
tifiably indulging  in  coarse  and  vulgar  abuse  of  witnesses  and 
parties  is  improper  in  argument.29 

Any  proper  inference  from  the  evidence  may,  of  course,  be 
drawn  by  counsel  in  his  argument  and  in  a  proper  case  counsel 
24— Barth  v.  Krainth,  106  N.  W.  McArthur,  76  Wis.  641,  45  N.  W. 
803-  Ry.  Co.  v.  Krueger,  supra;  518;  Hatcher  v.  State,  18  Ga.  460; 
Coleman  v.  State,  87  Ala.  14,  6  People  v.  Barnhart,  59  Cal.  402. 
g0     290.  27— Atlanta   News    Co.    v.    Med- 

25-Siebert  v.  People,  143  111.  571,  lock,  123  Ga.  714,  51  S.  E.  756. 
32  N  E  431;  State  v.  Elvins,  101  28-1.  C.  Ry.  Co.  v.  Beebe,  174 
Mo  243  13  S.  W.  937;  State  v.  111.  13,  50  N.  E.  1019,  43  L.  R.  A 
Valwel,  '66  Vt.  558,  29  Atl.  1018;  210;  Friemark  v.  Rosenkrans,  81 
State  v.  Phillips,  117  Mo.  389,  22  Wis  359,  51  N.  W.  557. 
S  W  1079-  Ferguson  v.  State,  29-City  of  Salem  v.  Webster, 
117  Mo  389;  Ferguson  v.  State,  192  111.  376,  61  N.  E.  323;  Dollar 
49  Ind.  33;  Petty  v.  Com.,  12  Ky.  v.  State,  99  Ala.  236,  13  So.  576; 
L   919    15  S.  W.  1059.  Heyl    v.    State,    109    Ind.    589,    10 

'  26-Rabberman  v.  Pierce,  77111.    N.  E.  916;  Brow  v.  State,  103  Ind. 
App.    405;    State    v.    Beasley,    84    133,  2  N.  E.  296. 
Iowa  83,   50  N.  W.  570;    Grace  v. 


180  INSTRUCTIONS    TO    JURIES.  [§232. 

may  speak  of  a  witness  as  having  been  bribed  and  perjured.  In 
the  case  cited  below,  a  witness  was  recalled  by  the  adverse 
party  and  gave  damaging  testimony  against  the  party  first  call- 
ing him,  much  of  which  was,  however,  contradicted  by  other 
credible  evidence.  The  court  held  that  counsel  might  draw  any 
proper  inference  from  the  evidence  they  chose,  and  a  designa- 
tion of  such  a  witness  as  bribed  and  perjured  was  considered 
proper.30 

§  232.  Freedom  of  Speech  Allowed  in  Argument.  Counsel 
should  be  allowed  considerable  latitude  in  his  argument,31 
and  the  most  liberal  freedom  of  speech  consistent  with  fairness, 
justice  and  the  orderly  administration  of  the  trial,  but  the 
rights  of  the  parties  should  not  be  prejudiced  thereby  and  un- 
less prejudice  clearly  results  therefrom  the  Supreme  Court  will 
not  consider  it  as  error.32  The  courts  regard  the  question  of 
the  propriety  of  the  argument  of  counsel  in  a  case  as  a  matter 
of  delicacy.33  But  a  judge  having  the  power  to  keep  counsel 
within  due  bounds  should  use  it  promptly  and  impartially 
whenever  occasion  demands,  without  having  the  court's  atten- 
tion called  to  it  by  the  motion  of  the  adverse  party.34 

That  counsel  must  be  confined  in  his  argument  to  the  evi- 
dence adduced  on  the  trial  does  not  include  a  limitation  upon 
him  against  all  flights  of  fancy  and  arts  of  oratory,  but  merely 
restrains  him  from  stating  as  verities  matters  which  have  no 
foundation  in  the  evidence  nor  can  be  logically  drawn  there- 
from. 

§  233.  Privilege  of  Attorney  on  Account  of  Words  Used  in 
Argument.  An  attorney  has  not  an  absolute,  but  a  qualified, 
or  conditional,  privilege;  he  is  protected  by  this  privilege  on 
account  of  words  spoken  by  him  on  the  trial  of  the  case  and 
during  the  discharge  of  his  duties,  unless  it  can  be  shown  that 
he  was  actuated  by  express  malice.    If  under  the  cover  of  his 

30— E.    St.    L.    Con.    Ry.    Co.    v.  32— N.  C.  St.  R.  Co.  v.  Anderson, 

O'Hara,  49  111.  App.  282,  aff'd,  150  176  111.  635,  52  N.  E.  21;   Gregory 

111.    580,    37    N.    E.    917;    Wichita  v.  Ohio  R.  R.  Co.,  37  W.  Va.  606. 

Valley  Mill  Co.  v.   Hobbs,  51  Ex.  33— W.  C.  St.  Ry.  Co.  v.  Annis, 

C.  W.  App.  34.  165  111.   478,  46  N.  E.  264;   Robin- 

31— Dollar  v.   State,   13   S.   576;  son  v.  Adkins,  19  Ga.  398;   Lamar 

Campbell  v.   Kalamazoo,   80  Mich.  v.  State,  65  Miss.  93. 

655;    Porther   v.    Throop,    47   Md.  34— N.  C.  St.  Ry.  Co.  v.  Cotton, 

313;    Walsh    v.    People,    88    N.    Y.  140  111.  486,  29  N.  E.  899. 
438;    Goldstein  v.   Smiley,  168  111. 
443,  48  N.  E.  203. 


§  234.]  ARGUMENT  OF  COUNSEL.  181 

profession  he  should  seek  to  maliciously  slander  a  party  he  is 
liable.  No  malice  is  implied  from  mere  words  spoken  in  court 
in  the  discharge  of  his  duties  on  the  trial,  but  the  repetition 
of  such  words  elsewhere  in  private  or  public,  or  by  publication 
in  the  press,  would  render  him  liable  the  same  as  any  other 
person. 

§  234.  Appeals  to  Prejudice  or  Passion.  One  of  our  tribunals 
has  well  said:  "The  breath  of  passion  through  the  zeal  or 
forgetfulness  of  counsel  must  not  disturb  the  most  solemn  and 
deliberate  consideration  of  the  jury  entrusted  with  duties  and 
responsibilities  so  important."35 

Counsel  should  be  restrained  by  the  court  of  its  own  motion 
from  indulging  in  appeals  to  sympathy  or  prejudice  in  such 
cases  where  the  feelings  may  be  easily  aroused.36  It  is  held 
that  any  remark  made  by  counsel  in  his  argument  calculated 
to  arouse  passion  and  prejudice  will  warrant  a  reversal,  espe- 
cially in  a  close  case.37  A  remark  of  counsel  in  argument  was 
held  improper  which  characterized  a  railroad  crossing  as  a 
"dirty  death  trap."38 

Remarks  concerning  the  approval  or  disapproval  of  a  ver- 
dict one  way  or  the  other  by  the  public  at  large,  in  order  to 
influence  the  finding  of  the  jury,  are  improper  and  should  not 
be  permitted  in  argument.39 

35 — C.  C.  Ry.  Co.  v.  Osborne,  105  of    defendant's    witnesses,    stated 

111.  App.  462,  469-70.  that  courts  have  held  that  the  tes- 

36 — N.  C.  St.  Ry.  Co.  v.  Leonard,  timony  of  police  officers,  in  cases 
67  111.  App.  603;  P.  C.  C.  &  St.  L.  in  which  they  are  prosecuting, 
Ry.  Co.  v.  Story,  63  111.  App.  239;  ought  to  be  looked  upon  with  sus- 
Cooksie  v.  State,  26  Tex.  App.  72;  picion.  The  officer  was  not  prose- 
Kennedy  v.  State,  19  Tex.  App.  cuting  in  the  case  at  bar  and  the 
618;  State  v.  Proctor,  53  N.  W.  law  was  not  properly  stated.  The 
424.  learned   counsel   for   appellee   was 

37 — Ry.    Co.   v.    Garner,    83    111.  evidently  carried  away  by  his  zeal, 

App.  126.  and  we  are  unable  to  say  that  the 

38 — Ry.  Co.  v.  Mahoney,  79  111.  jury    were    not    swept    along    by 

App.  58.  these   inflammatory  and   improper 

39 — L.  E.  &  W.  Ry.  Co.  v.  Mid-  remarks  which  were  calculated  to 

dleton,    142    111.    550,    46    111.    App.  incite  in   their  minds  a  prejudice 

218,   aff'd,   32  N.   E.   453;    State  v.  against    the    defence.     Hennies    v. 

Jackson,     95     Mo.     623;     Scott    v.  Vogel,  87   111.   242;    C.   &  E.  R.  R. 

State,  7  Lea   (Tenn.)    252.  Co.  v.  Binkopski,  72   111.  App.  22; 

"Counsel,  in  commenting  upon  Chi.  C.  Ry.  Co.  v.  Osborne,  supra. 
the  testimony  of  a  policeman,  one 


182  INSTRUCTIONS    TO    JURIES.  [§235. 

§  235.  References  to  Other  Crimes  of  Accused.  The  argu- 
ment in  a  criminal  case  should  be  kept  within  due  bounds,  and 
references  to  crimes  of  the  accused  other  than  those  for  which 
he  is  on  trial,  whether  such  crimes  are  real  or  imaginary,  are 
improper.40 

§  236.  Reference  to  Poverty  and  Wealth.  To  appeal  to  the 
prejudices  of  the  jury  in  an  action  sounding  in  damages  is  al- 
ways improper,41  and  where  the  remarks  made  are  of  a  charac- 
ter likely  to  prejudice  the  jury,  the  verdict,  if  excessive,  will  be 
considered  as  the  result  of  prejudice  and  no  remittitur  will 
cure  it,42  so  it  has  been  held  that  references  to  the  plaintiff  as 
being  poor  and  to  the  defendant  as  being  rich  are  improper 
and  not  cured  by  a  remittitur,43  and  in  an  action  for  negligence 
the  allusions  of  counsel  to  the  poverty  of  the  plaintiff  are 
especially  improper  and  a  subsequent  withdrawal  does  not 
cure  the  error.44 

On  the  other  hand,  argument  of  counsel  referring  to  the 
financial  condition  of  the  defendant  and  using  the  words 
"amassed  a  fortune"  were  held  not  a  good  ground  for  revers- 
ing the  case.45 

The  court  held  that  remarks  made  by  counsel  for  plaintiff  in 
an  action  on  an  accident  policy  that  "no  one  will  say  that  the 
plaintiff  is  a  fraud,  excepting  the  counsel  for  the  defendant, 
who  is  hired  to  do  so,  and  that  counsel  is  trying  not  to  do  jus- 
tice but  to  wrong  a  fellow  citizen  in  the  interests  of  his  clients, 
because  they  are  rich  and  can  pay,"  were  calculated  to  arouse 
the  passions  of  the  jury.46 

A  reference  to  the  fact  that  one  of  the  parties  to  the  suit 
against  a  corporation  is  poor,  is  improper  in  the  argument  of 
counsel  to  the  jury,  as  it  in  no  wise  adds  to  the  right  of  the 
plaintiff  to  recover.47 

40— Palmer   v.   People,    138    111.  226,      54      N.      E.      168;      Taylor 

356,  28  N.  E.  130;  Leahy  v.  State,  v.  Harris,  68  III.  App.  94;  Gulf  R, 

31  Neb.  566,  48  N.  W.  390;  Holder  Co.    v.    Fox.     (Tex.),    33    A.    &   E 

v.  State,  58  Ark.  473,  25  S.  W.  279.  Corp.    Cases    543. 

41— Evans  v.  Trenton,   112  Mo.  44— W.  C.  St.  Ry.  Co.  v.  Musa 

390,  20  S.  W.  614;   Belo  v.  Fuller,  supra. 

84   Tex.  450,  19   S.  W.   616;   N.  C.  45— Wolf  v.  Moses,  92  111.  App 

St.  Ry.   Co.  v.    Southwick,   66   111.  279;   Dugan  v.  Ch.  R.  Co.,  85  Wis 

App.  241.  609,    55  N.  W.  894. 

42— Nicholson    v.    O'Donald,    79  46— C.  &  E.  I.  R.  Co.  v.  Garner, 

111.  App.  195.  83  111.  App.  118. 

43— Nicholson  &  Sons  v.  O'Don-  47— N.  C.  St.  Ry.  Co.  v.   South 

aid,    supra;  W.    C.    St.   R.    Co.   v.  wick,  165  111.  494,  aff.  66  111.  App 

Musa,  ISO  111.  130,  aff.  80  111.  App.  243,  46  N.  E.  377. 


§  237.]  ARGUMENT  OP  COUNSEL.  183 

§  237.  Reference  to  Inability  to  Secure  a  Witness  on  Account 
of  Expense.  A  remark  of  counsel  that  his  client  was  not  able 
xo  call  a  physician  who  attended  him  as  a  witness  for  the  rea- 
son that  the  physician  asked  $100.00  for  testifying-,  is  improper. 
The  court  by  subpoena  and  other  process  could  compel  the  wit- 
ness to  attend  and  testify  in  the  case.48 

§  238.  Comments  on  Withholding  Evidence.  The  fact  that  one 
of  the  parties  withholds  certain  evidence  within  his  control  is 
held  a  proper  matter  for  comment,  but  this  in  no  wise  war- 
rants a  statement  in  detail  of  what  such  evidence  might  be.49 
That  a  witness  is  not  produced  by  a  party  when  such  witness 
is  a  person  presumed  to  have  a  special  knowledge  of  the  mat- 
ters in  controversy  is  held  a  legitimate  matter  of  comment. 

To  refer  to  the  failure  of  the  opponent  to  testify  in  civil 
eases  is  not  improper,  but  for  the  state's  attorney  to  refer  to 
the  failure  of  the  defendant  to  testify  is  held  error  sufficient 
to  require  a  reversal  in  nearly  all  jurisdictions.50 

To  say  to  the  jury  that  the  other  party  had  excused  a  juror 
for  the  reason  that  he  knew  one  of  the  parties  is  improper 
to  be  stated  in  argument.51 

§  239.  Referring-  to  the  Corporate  Capacity  of  Opponent. 
In  a  personal  injury  case  counsel  in  his  argument  remarked 
that  the  defendant  corporation  was  an  artificial  being  and  did 
not  have  human  feelings  and  sympathy.  The  court  held  this 
reversible  error  and  stated  that  a  corporation  in  law,  so  far  as 
damages  are  concerned,  must  stand  the  same  as  any  other  per- 
son.52 So  also  it  was  not  proper  for  counsel  to  state  that  the 
enactment  of  a  statute  involved  in  the  case  was  procured  by 
efforts  of  corporations  where  the  defendant  in  the  case  on  trial 
was  a  corporation.53 

48 — American  M.  Co.  v.  Lelivelt,  51 — 0.  &  M.  Ry.  Co.  v.  Wangelin, 

101  111.  App.  320.  152  111.  138,  38  N.  E.  760. 

49— St.     L.     Con.     Coal     Co.     v.  52— Whipple   v.   M.    C.   Ry.,   143 

Scheiber,    167    111.    539,    47    N.    E.  Mich.  41,   43,   106  N.   W.   690. 

1052.  53— Elgin   City  Ry.   Co.  v.  Wil- 

50— Gilmore  v.   P.,   87   111.   App.  son,  56  111.  App.   364;    Radford  v. 

137;  A.  &  S.  R.  Co.  v.  Randal,  85  Lyon,  65  Tex.  477;  Retan  v.  L.  S., 

Ga.  297,  11   S.  E.  806;    Bennett  v.  etc.,  R.    Co.,    94   Mich.    155,   53   N. 

State,  86  Ga.  405,  12  S.  E.  806;  22  W.    1094;    Cleveland,    etc.,    R.    Co. 

Am.  St.  Rep.  415;   State  v.  Helm,  v.  Williams,  102  Mich.  537,   61  N. 

92  Iowa  540,  61  N.  W.  246;  Berry  W.  52;   Lake  Erie,  etc.,  R.  Co.  v. 

v.    State,    10   Ga.   326;    Bullard    v.  Cloes,    5   Ind.   App.   444,  32  N.  E. 

Boston,    64    N.   E.    27,    10   Am.    St.  588. 
Rep.  367. 


184  INSTRUCTIONS    TO    JURIES.  [§240. 

§  240.  Profane  and  Obscene  Language.  The  control  of  the 
trial  court  over  the  closing  argument  extends  not  only  to  con- 
fining counsel  to  the  evidence  introduced  and  restraining  preju- 
dicial appeals  to  sympathy  or  passion,  but  also  to  preventing 
profanity,  obscenity  and  all  other  improper  and  intemperate 
language.54 

Ordinary  infractions  of  this  rule  do  not  usually  partake  of 
so  serious  an  error  as  to  demand  a  reversal.  When  counsel 
turned  to  one  of  the  witnesses  during  argument  and  called  him 
a  "liar"  the  court  did  not  consider  this  a  sufficient  ground  for 
a  reversal,  although  offensive  and  unprofessional.55 

§  241.  Improper  Remarks  Cured  by  Rebuke  of  Court.  Usu- 
ally the  improper  remarks  made  in  argument  of  counsel  to  the 
jury  may  be  cured  upon  objection  thereto  by  the  remarks  of 
the  court  in  restraining  counsel  from  indulging  in  such  a  line 
of  argument  and  in  cautioning  the  jury  to  disregard  the  same, 
or,  on  the  other  hand,  it  may  be  effectively  removed  by  a  with- 
drawal of  the  remarks  by  the  offending  counsel.  All  of  this 
is  no  doubt  true  ordinarily,  but  there  are  instances  where  the 
effect  has  been  produced  upon  the  jury  and  remains  with  them 
and  counsel  may  not  violate  the  proper  rules  which  they 
should  observe  in  the  argument  and  escape  so  easily  from  the 
consequences  and  reap  the  reward  of  their  iniquity.56 

The  trial  judge  has  the  duty  of  supervising  the  arguments  of 
counsel  and  this  he  may  do  at  the  request  of  the  opposite  party 
or  upon  his  own  motion  restraining  all  remarks  or  lines  of  ar- 
gument that  are  unfair  and  improper.57  Such  remarks  as  that 
the  defendant  is  a  corporation  and  the  plaintiff  is  a  poor  man 
are  improper  and  when  not  made  willfully  or  in  disregard  of 

54— Doster.v.  Brown,  25  Ga.  24,  S5  Mich.  128,  48  N.  W.  181;   Long 

71  Am.  Dec.  153;   U.  S.  v.  Heath,  v.    State,    56    Ind.    182;     Hunt    v. 

20  S.  C.  272;   Amperse  v.  Flicken-  State,  28  Tex.  App.  149,  21  S.  W. 

stein,  67  Mich.  47,  34  N.  W.  564;  723. 

State    v.    Thornton,    108    Mo.    640,  57— W.   C.   St.  Ry.  Co.  v.   Sulli- 

18    S.    W.    841;     Cartier    v.    Troy  van,  165  111.  302,  46  N.  E.  234;  W. 

Lumber  Co.,  35  111.  App.  449.  C.   St.   Ry.  Co.  v.  Krueger,  68  111. 

55— Strickland  Wine  Co.  v.  App.  450;  C.  &  E.  Ry.  Co.  v.  Bin- 
Hayes,  94  111.  App.  479;  Dale  v.  kopski,  72  111.  App.  22;  State  v. 
State,  88  Ga.  552,  15  S.  E.  287.  Hamilton,  55  Mo.  522;   McConnell 

56— Kedzie  v.  State,  —  Miss.  — ,  v.    State,    22    Tex.    App.    354,   3    S. 

16    So.   490;    Wetzel   v.   Meranger,  W.    699;     Chacon    v.    Territory,    7 

85   111.   App.    457;    People  v.   Hess,  N.  M.  241,  34  Pac.  448. 


§  242.]  ARGUMENT  OF  COUNSEL.  185 

the  admonition  of  the  court  may  be  properly  cured  by  the  re- 
marks made  by  the  court  in  restraining  counsel.58 

Remarks  that  have  no  foundation  in  the  evidence  and  have 
a  tendency  to  be  prejudicial  in  their  effect  are  improper  and 
it  is  competent  for  the  court  by  a  sharp  rebuke  of  counsel  to 
remove  such  improper  effects  so  far  as  it  can  be  done  by  stat- 
ing to  the  jury  that  there  is  no  evidence  to  warrant  such  argu- 
ment in  that  regard.59 

The  trial  judge  should  immediately  suppress  any  conduct  or 
improper  language  used  by  counsel  in  his  argument,  and  it  is 
held  that  such  acts  are  not  prejudicial  where  the  trial  court 
attempts  to  suppress  it  and  sustains  the  objections  thereto,  al- 
though it  is  reprehensible  conduct  on  the  part  of  the  offend- 
ing counsel.60 

Where  the  court  admonishes  the  jury  not  to  be  influenced  by 
the  improper  remarks  of  counsel  whenever  made,  and  repri- 
mands counsel  for  the  same,  it  has  been  held  not  to  constitute 
error.61  Counsel  should  be  rebuked  for  an  improper  remark  to 
the  jury  during  argument  in  such  a  manner  that  he  may  not 
derive  any  benefit  from  the  remark  made.62 

§  242.  Improper  Remarks  Not  Cured  by  Withdrawal.  When 
an  objection  has  been  made  and  counsel  cautioned  or  repri- 
manded for  making  improper  remarks,  it  does  not  cure  the 
effect  that  these  remarks  have  produced  upon  the  jury  to  have 
counsel  withdraw  them.  All  the  proper  rules  which  counsel 
should  have  observed  in  argument  to  the  jury  cannot  be  vio- 
lated with  impunity  and  the  consequences  avoided  by  means  of 
the  mere  oral  statment  that  he  withdraws  the  remarks.63  Such 
withdrawal  is  held  insufficient  to  amend  the  error  committed.64 

58— Bettes  v.  C.  R.  I.  &  P.  Ry.,  42,  16  S.  W.  751;    State  v.  Foley, 

108  N.  W.  103;    Schlotter  v.  State,  12  Mo.  App.   43. 
127  Ind.  493,  27  N.  E.  149.  62— Pease  v.   Barkowski,    67   111. 

59— Brzozowski  v.   National  Box  App.  274;  C.  &  E.  R.  Co.  v.  Binkop- 

Co.,  104  111.  App.  338;    Forsyth  v.  ski,  supra;  Henry  v.  Huff,  143  Pa. 

Cochran,  61  Ga.  278;  Willis  v.  Mc-  St.    563,    22    Atl.    1046;    Waterman 

Neil,   57   Tex.   474.  v.  Chi.  R.  Co.,  82  Wis.  613,  52  N. 

60— W.   C.   St.  Ry.  Co.  v.  Levy,  W.  247. 
182  111.  527.  55  N.  E.  554;  Berry  v.         63— Met.   R.   Co.   v.  Johnson,  90 

State,  10  Ga.  511;   Fry  v.  Bennett,  Ga.   500.  16  S.  E.  49;   Met.  R.  Co. 

14  N.  Y.    Sup'r  Ct.   242;    Kellin  v.  v.  Powell,  89  Ga.  61,  16  S.  E.  118; 

State.   28  Fla.   313,   9   So.   711.  Cook    v.    Doud,    14    Colo.    483,    23 

61— Gundlach  v.  Schott,  192  111.  Pac.   906;    Wetzel  v.  Meranger,   85 

509,  61  N.  E.  332,  55  L.  R.  A.  240;  111.  App.  457. 

Matson   v.   State,   22   S.  W.   1038;         64—1.  C.  R.  Co.  v.  Souders,  178 

Fritzeller   v.    State,   30   Tex.   App.  111.    585,    53    N.    E.    408;    Hill    v. 


186  INSTRUCTIONS   TO   JURIES.  [§243. 

§  243.  Improper  Remarks  Cured  by  an  Instruction.  The  fol- 
lowing instruction  was  given  and  approved  by  the  Supreme 
Court  of  Indiana:  "Gentlemen  of  the  jury,  counsel  have  no 
right  to  refer  to  anything  outside  of  the  case,  and  you  must 
not  consider  anything  except  such  things  as  have  reference  to 
the  case  on  trial,  and  counsel  must  not  go  outside  the  records 
in  this  case  any  more."65 

§  244.  Objections  to  Improper  Remarks  Should  be  Made  Im- 
mediately. The  argument  of  counsel,  when  improper,  should 
be  objected  to  and  ruling  obtained  upon  the  objection  at  the 
time  the  impropriety  takes  place.  There  is  a  practice  of  per- 
mitting the  argument  to  proceed  uninterruptedly,  and  subse- 
quently to  except  to  the  improper  portion,  but  this  practice  is 
not  approved.66  Although  this  practice  may  be  for  the  pur- 
pose of  obviating  the  necessity  of  interruption,  it  is  not  proper. 
Objections  which  may  be  made  to  the  argument  of  counsel 
should  be  passed  upon  by  the  court  at  once  and  in  the  presence 
of  the  jury.67  ' 

§  245.  Reference  to  Damages  in  Previous  Trial  or  to  Amount 
of  Verdicts  in  Other  Cases.  To  state  to  the  jury  the  amount 
awarded  as  damages  in  a  previous  trial  in  another  court  is  im- 
proper in  argument,68  and  in  fact  any  reference  to  the  amount 

State,  42  Neb.  503,  60  N.  W.  916;  v.   Fleckenstein,  67  Mich.  247,   34 

Rudolph     v.     Landorlen,     92     Ind.  N.  W.  564;   Fry  v.  Bennett,  3  Bos. 

40;  Reed  v.  Madison,  85  Wis.  667,  (N.   Y.)    243,   aff'g,  28   N.  Y.   324; 

56  N.  W.  182.  State   v.    Oneal,    7    Ired.    (N.    C.) 

65— Smith  v.  State,  165  Ind.  188,  251;   Doster  v.  Brown,  25  Ga.  24, 

74  N.  E.  985.  71  Am.  Dec.  153;   U.  S.  v.  Heath, 

See  also  Gillett's  Criminal  Law,  20  D.  C.  272. 
901;  Norton  v.  State,  106  Ind.  66— Morrison  v.  State,  76  Ind. 
163,  169,  6  N.  E.  126;  Blume  v.  344;  "Western  U.  Tel.  C.  v.  Win- 
State,  154  Ind.  343,  354-357,  56  N.  gate,  6  Tex.  Civ.  App.  394,  25  S. 
E.  771  and  cases  cited;  Epps  v.  W.  439;  Penn.  Co.  v.  Greso,  79  111. 
State,   102   Ind.   539,  550-552,  1  N.  App.  134. 

E.  491;   Carter  v.  Carter,  101  Ind.         67— Penn.   Co.   v.   Greso,   supra; 

450;    Anderson  v.   State,  104  Ind.  Metropolitan   St.    R.   Co.   v.   John- 

467,  475,  4  N.  E.  63;   5  N.  E.  771;  son,  90  Ga.  500,  16  S.  E.   49;   Da- 

Shular    v.     State,     105     Ind.     289  vis  v.  State,  33  Ga.  98;    Lynch  v. 

(306),  4  N.  E.  870,  55  Am. Rep.  211;  Peabody,    137   Mass.    92;    King   v. 

Boyle  v.   State,  105   Ind.   469,  480,  State,  91  Tenn.  617,  20  S.  W.  169; 

481,  5  N.  E.  203,  55  Am.  Rep.  218;  Hencke  v.  Milwaukee  City  R.  Co., 

Warner  v.  State,  114  Ind.  137,  140,  69  Wis.  401,  34  N.  W.  243. 
141,  16  N.  E.  189;    Proctor  v.  De-         68— Huskhold  v.  St.  L.  R.  R.  Co., 

Camp,  63  Ind.  559,  561;    Amperse  90  Mo.   548,   2   S.  W.   794;    Smiley 


§246.]  ARGUMENT  OF  COUNSEL.  187 

of  verdicts  in  other  cases  which  have  b'een  sustained  by  the 
courts  is  improper.69  To  state  in  the  argument  as  follows :  "I 
do  not  want  any  compromise  verdict  in  this  case.  This  case  has 
been  to  the  Appellate  Court  and  was  reversed  for  the  sole  rea- 
son that  the  jury  did  not  give  us  damages  enough,"  is  justly 
held  to  be  improper.70 

§246.  When  the  Opposite  Party  is  Equally  Guilty— Con- 
doned. The  Supreme  Court  of  Illinois  has  ruled  that  all  con- 
duct of  counsel,  no  matter  how  improper,  is  condoned  where 
the  opposite  party  is  equally  guilty  of  a  similar  offense.71 

v.   Scott,  77  111.  App.  555,  aff.  179  65   111.  App.  649;   State  v.  Emery, 

111.  142,  53  N.  E.  544.  79   Mo.   401;    Chacon  v.   Territory, 

69— Quincy  Gas  &  E.  Co.  v.  Bau-  7  N.  M.  241,   34  Pac.  448. 

man,  104  111.  App.  600;    Huskhold  71— Maxwell  v.  Durkin,  185  111. 

V.   St.    L.   R.   R.   Co.,   supra.  547,  56  N.  E.  1101. 

70— C.  N.  W.  R.  Co.  v.  Smedley, 


CHAPTER  XIII. 


MOTION  TO  DIRECT  A  VERDICT. 


§  247.  Introductory. 

§  248.  Directing  a  verdict;  under 
what  circumstances. 

§  249.  Nature  of  a  motion  to  di- 
rect a  verdict. 

§  250.  Where  the  evidence  is  con- 
flicting. 

§  251.  When  the  evidence  is  with- 
out conflict. 

§  252.  Exclusion  of  evidence  same 
as  directing  a  verdict. 

§  253.  All  the  evidence  must  he  ex- 
cluded when  one  essential 
allegation  is  not  proved. 

§  254.  No  questions  of  preponder- 
ance of  evidence  or  credi- 
bility considered  on  a  mo- 
tion to  direct. 

§  255.  Motion  to  direct  should  not 
be  one  of  a  series,  but 
separate. 


§  256.  Duty  to  direct  a  verdict 
whenever  the  verdict 
would  afterwards  have  to 
be  set  aside. 

§  257.  All  the  most  favorable  in- 
ferences deducible  from 
the  evidence  are  to  be  al- 
lowed on  a  motion  to  di- 
rect. 

§  258.  Sufficiency  of  the  evidence 
with  all  the  inferences  to 
be  considered. 

§  259.  Motion  to  direct  may  be 
waived. 

§  260.  When  the  motion  to  direct 
comes  too  late. 

§  261.  Written  instruction  direct- 
ing a  verdict  must  be  pre- 
sented with  the  motion. 

§  262.  Waiving  points  not  included 
in  motion  for  new  trial. 

§  263.  Directing  a  verdict  in  crim- 
inal cases. 


§  247.  Introductory.  Under  the  old  common  law  practice  the 
directing  of  a  verdict  by  the  court  was  not  so  much  of  a  fiction 
as  it  is  today.  Jurors  were  then  used  as  dummies,  but  this 
was  later  on  remedied  by  statute  providing  for  the  directing  of 
a  verdict  by  the  court  without  participation  of  the  jury.  It  is 
interesting  to  consider  the  extent  of  power  a  jury  may  have 
had  to  disobey  the  order  of  court  to  direct  a  verdict  under 
the  old  common  law  form  of  practice.  Jurors  certainly  have 
attempted  to  disobey  this  order  and  that  without  fear  that 
such  conduct  would  be  punishable  criminally.1 

1— See  account  of  the  trial  of  How.  (U.  S.)  362;  Cosgrove  v.  N. 
Zenger,    1734;    Parks   v.    Ross,   11     Y.  R.  R.  Co.,  2  N.  Y.  492. 

188 


248.] 


MOTION    TO    DIRECT    A    VERDICT. 


189 


§248.     Directing  a  Verdict;  Under  What  Circumstances. 

The  jury  are  the  judges  of  the  evidence,  but  where  there  is  no 
conflict  in  the  evidence  it  becomes  a  matter  of  law  whether 
judgment  should  be  rendered  for  or  against  a  party.2  In  such 
cases  the  court  is  limited  strictly  to  the  determination  whether 
there  is  any  evidence  upon  which  a  verdict  could  be  rendered.3 
If  there  is  evidence  tending  to  show  the  plaintiff's  right  to 
recover,  there  must  be  a  submission  of  the  case  to  the  jury.4 

All  disputed  questions  of  fact  must  be  left  to  the  jury,  and 
where  the  evidence  must  be  weighed  the  trial  court  should  not 
sustain  a  motion  to  direct  a  verdict.5  It  is  only  in  cases  where 
the  testimony  given  is  of  such  a  character  that  the  court,  in 
the  exercise  of  sound  discretion,  would  be  compelled  to  set 
aside  a  verdict,  if  rendered  thereon,  that  a  motion  to  direct 
a  verdict  should  be  sustained  by  the  court.6 

In  doubtful  cases  it  is  the  better  practice  to  allow  such  a  case 
to  go  to  the  jury  and  to  set  aside  the  verdict  afterwards  upon 
motion  for  a  new  trial  if  the  court  is  satisfied  that  it  is  mani- 
festly not  supported  by  the  weight  of  the  evidence.7 


2— Star  Wagon  Co.  v.  Matthie- 
sen,  3  Dak.  223,  14  N.  W.  107; 
Lacey  v.  Porter,  103  Cal.  597;  Chi. 
Gen.  Ry.  Co.  v.  Novaeck,  94  111. 
App.  178. 

In  O'Donnell  v.  MacVeagh,  205 
111.  23,  25,  68  N.  E.  646,  the  court 
instructed  the  jury:  "This  ques- 
tion is  one  of  the  law — and  is — 
•was  there  evidence  adduced  before 
the  jury  which,  with  all  legitimate 
and  natural  inferences  to  be 
drawn  therefrom,  fairly  tended  to 
support  the  cause  stated  in  the 
declaration,  or  any  count  thereof." 

The  court  held  it  would  have 
been  proper  to  have  given  a  per- 
emptory instruction.  See  also  111. 
S.  Co.  v.  Coffey,  205  111.  206,  212, 
68  N.  E.  751;  Freeman  v.  Scar- 
lock,   27  Ala.   407. 

3— Wetherell  v.  Chi.  C.  R.  Co., 
104  111.  App.  357;  Tyson  v.  Tyson, 
37  Md.  567;  Grand  Trunk  R.  v. 
Nicol,  18  Mich.   126. 

4— Landgraf    v.    Kuh,     188    111. 


484,  492,  rev.  90  111.  App.  134,  59 
N.  E.  501;  Payne  v.  Mathius,  92 
Ala.  585,  9  So.  605;  Stevens  v. 
Pendleton,  85  Mich.  137,  48  N.  W. 
478;  C.  C.  C.  &  St.  L.  Ry.  Co.  v. 
Baddeley,  150  111.  328,  36  N.  E. 
965. 

"If  there  is  evidence  which  fair- 
ly tends  to  support  the  plaintiff's 
case,  it  must  be  submitted  to  the 
jury."  Pullman  Palace  Car  Co.  v. 
Laack,  143  111.  242,  32  N.  E.  285; 
Heyne  v.  Blair,  62  N.  Y.  19. 

5— Rush  v.  Coal  Bluff  M.  Co.,  131 
Ind.  135,  30  N.  E.  904;  McKech- 
ney  v.  Columbian  Powder  Co.,  86 
111.  App.  27;  I.  C.  R.  Co.  v.  Kel- 
ley,  10  U.  S.  App.  537. 

6 — Haecker  v.  Chicago  &  A.  R. 
Co.,  91  111.  App.  570;  Purcell  v. 
English,  86  Ind.  34;  Gilman  v. 
Sioux  City  R.  Co.,  62  la.  299,  17 
N.   W.   520. 

7— Wallen  v.  N.  C.  St.  Ry.  Co.,  82 
111.  App.  103;  Avary  v.  Perry  Store 
Co.,  96  Ala.  406,  11  So.  417. 


190  INSTRUCTIONS   TO    JURIES.  [§  248. 

Where  under  all  the  evidence  in  the  case  a  verdict  for  the 
plaintiff  would  not  be  permitted  to  stand,  the  jury  should  be 
instructed  to  find  for  the  defendant,8  and  in  passing  on  a  mo- 
tion to  instruct  the  jury  to  find  for  the  defendant  the  court 
is  limited  to  the  determination  of  the  question  whether  or  not 
there  is  evidence  which,  if  true,  would  reasonably  tend  to  sup- 
port the  plaintiff's  case.9  % 

A  motion  to  direct  a  verdict  does  not  involve  a  determina- 
tion of  the  credibility  of  witnesses  or  the  weight  of  the  evi- 
dence.10 It  is  only  in  cases  where  there  is  literally  no  evidence 
to  support  a  necessary  allegation  or  where  the  evidence  is  too 
weak  and  inconclusive  to  justify  a  verdict,  that  the  court 
should  direct  a  verdict  when  a  motion  is  properly  made.11  In 
those  cases  where  there  is  no  evidence  tending  to  prove  the 
defense  or  controverting  the  facts  which  entitle  the  plaintiff 
to  a  recovery,  the  jury  should  then  be  directed  to  find  the  is- 
sues for  the  plaintiff.12 

The  courts  hold  that  where  there  is  no  evidence  before  the 
jury  in  favor  of  the  party  holding  the  affirmative  on  which  the 
jury  could  find  in  his  favor,  the  court  should  direct  a  verdict 
in  favor  of  the  opposing  side,13  but  if  there  is  any  evidence  or 
testimony  which  with  all  of  the  inferences  proper  to  be  drawn 
from  it,  tends  in  any  way  to  prove  the  issues  stated,  the  court 
should  not  direct  a  verdict  against  such  a  party.14 

If  there  is  no  evidence  in  the  case  sufficient  to  support  a 
verdict  against  a  party  the  court  should  be  asked  to  direct  a 
verdict  in  his  favor,  and  an  omission  to  do  this  would  be  in 
the  nature  of  an  admission  that  there  is  evidence  upon  which 
the  jury  might  base  a  contrary  opinion.15  A  party  who  has 
not  asked  for  the  directing  of  a  verdict  thereby  waives  his 
right  to  have  the  verdict  set  aside  on  the  ground  that  there  is 
no  evidence  sufficient  to  support  it,  but  this  does  not  preclude 

8— Bjork  v.   I.  C.  R.  C,   85  111.  Co.,  175  111.  472,  51  N.  E.  651;  Fritz 

App.  269.  v.  Clark,  80  Ind.  591. 

9— O'Donnell  v.  L.  S.  &  M.  S.  Ry.  12 — Marshall     v.     John     Grosse 

Co.,    100   111.   App.    424;    Sniter  v.  Clothing  Co.,   184   111.   421,  83  111. 

Park  Nat'l  Bank,  35  Neb.  372,  53  App.  338,  56  N.  E.  807. 

N.  W.   205.  13 — Mattson  v.  Qualey  Const.  Co., 

10— Brezinski  v.  Swift  &  Co.,  91  90  111.  App.  260. 

111.  App.  537;  Schultze  v.  Mo.  Pac.  14 — Lange  v.  Seiter,  81  111.  App. 

R.  R.  Co.,  32  Mo.  App.  435.  192. 

H_Offutt  v.  World's  Col.  Exp.  15— Haist  v.  Bell,  48  N.  Y.  405. 


§  249.] 


MOTION    TO    DIRECT    A    VERDICT. 


191 


him  from  having  the  verdict  set  aside  as  being  against  the 
weight  of  the  evidence. 

The  courts  hold  to  the  general  rule  that  if  the  testimony  of- 
fered on  behalf  of  the  plaintiff  makes  a  prima  facie  case  and 
the  evidence  offered  by  defendant  is  insufficient  to  support  a 
defense,  the  court  may  properly  direct  a  verdict  for  the 
plaintiff.16 

§  249.  Nature  of  a  Motion  to  Direct  a  Verdict.  A  motion  to 
take  a  case  from  the  jury  is  in  the  nature  of  a  demurrer  to  the 
evidence  and  the  truth  of  such  evidence  is  admitted  thereby 
and  not  only  so,  but  it  admits  all  the  inferences  which  can  be 
reasonably  drawn  therefrom.17    The  direction  of  the  court  to 


16— West  Side  Auction  House 
Co.  v.  Conn.  Mut.  Ins.  Co.,  186 
111.  156,  aff.  85  111.  App.  497,  57 
N.  E.  839. 

17— Sims  v.  Sims,  2  Ala.  117; 
Hill  v.  Rucker,  14  Ark.  706;  Kane 
v.  Cicero  &  P.  E.  R.  Co.,  100  111. 
App.  181;  Hober  v.  W.  P.  Nelson 
Co.,  101  111.  App.  336;  Purcell  v. 
English,  86  Ind.  134;  Fox  v. 
Spring  Lake  Iron  Co.,  89  Mich. 
387,   50  N.  W.  872. 

In  I.  C.  R.  R.  Co.  v.  Harris,  184 
111.  57,  58,  affg.  84  111.  App.  462, 
56  N.  E.  316,  48  L.  R.  A.  175,  the 
court  held  that: 

"In  requesting  the  court  to  in- 
struct the  jury  to  find  for  the  de- 
fendant, the  truth  of  plaintiff's 
evidence  and  all  the  inferences 
to  be  properly  drawn  therefrom, 
were  admitted,  and  in  passing 
upon  an  application  to  take  a 
case  from  the  jury,  we  do  not  con- 
sider or  pass  upon  the  weight  of 
the  evidence." 

"In  such  cases,"  said  the  court, 
"the  real  question  is  whether  the 
evidence,  with  all  the  inferences 
to  be  properly  drawn  therefrom, 
fairly  tended  to  prove  the  plain- 
tiff's cause  of  action  as  set  out 
in    his    declaration.      If    it    does, 


then  it  is  the  duty  of  the  court  to 
refuse  to  take  the  case  from  the 
jury.  Offutt  v.  World's  Col.  Ex., 
175    111.    472,   51    N.   E.    651." 

The  following  quotation  is 
taken  from  the  opinion  in  the 
case  of  Offutt  v.  Columbian  Ex- 
position, supra,  in  reversing  73 
111.   App.  231. 

"An  instruction  to  find  against 
the  party  upon  whom  rests  the 
burden  of  proof,  on  the  ground 
that  there  is  no  evidence  legally 
tending  to  prove  his  case,  or,  as 
it  is  now  more  generally  stated, 
on  the  ground  that  the  evidence, 
with  all  the  inferences  which  the 
jury  could  justifiably  draw  from 
it,  is  so  insufficient  to  support  a 
verdict  for  such  party  that  such 
verdict,  if  returned,  must  for  that 
reason  be  set  aside,  is  in  the  na- 
ture of  a  demurrer  to  the  evi- 
dence, and,  except  as  to  technical 
methods  of  procedure,  is  gov- 
erned by  the  same  rules.  The 
maker  of  the  motion  to  so  in- 
struct admits  the  truth  of  all  op- 
posing evidence,  and  all  infer- 
ences which  may  be  fairly  and 
rationally  drawn  from  it.  The 
motion  does  not  involve  a  deter- 
mination   of    the    weight    of    the 


192 


INSTRUCTIONS    TO   JURIES. 


[§  249. 


find  a  verdict  for  one  party  is  in  effect  a  peremptory  instruc- 
tion to  the  jury  that  there  are  no  facts  for  their  consideration 
and  that  there  exists  only  a  question  of  law  for  the  determina- 
tion of  the  court. 


evidence,  nor  the  credibility  of 
the  witnesses.  (Bartelott  v.  In- 
ternational Bank,  119  111.  259,  9 
N.  E.  898  and  cases  cited;  Phil- 
lips v.  Dickerson,  85  id.  11,  28 
Am.  Rep.  607;  C.  &  N.  W.  Ry.  Co. 
v.  Dunleavy,  129  id.  132,  22  N.  E. 
15.)  It  has  been  said  in  some 
cases  that,  if  there  is  any  evi- 
dence, however  slight,  tending  to 
prove  the  plaintiff's  cause  of  ac- 
tion, such  an  instruction  would 
be  erroneous,  as  it  is  the  province 
of  the  jury  and  not  of  the  court 
to  pass  upon  the  weight  of  the 
evidence  or  its  sufficiency  in  pro- 
bative force,  to  authorize  a  ver- 
dict. In  Simmons  v.  Chicago  & 
Tomah  R.  R.  Co.,  110  111.  340, 
in  delivering  the  opinion  of  the 
court,  Mr.  Justice  Sheldon  said 
(p.  346) :  'There  may  be  decisions 
to  be  found  which  hold  that  if 
there  is  any  evidence — even  a 
scintilla — tending  to  support  the 
plaintiff's  case,  it  must  be  sub- 
mitted to  the  jury.  But  we  have 
a  more  reasonable  rule  which  has 
now  come  to  be  established  by 
the  better  authority,  that  when 
the  evidence  given  at  the  trial, 
with  all  inferences  that  the  jury 
could  justifiably  draw  from  it,  is 
so  insufficient  to  support  a  ver- 
dict for  the  plaintiff  that  such  a 
verdict,  if  returned,  must  be  set 
aside,  the  court  is  not  bound  to 
submit  the  case  to  the  jury,  but 
may  direct  a  verdict  for  the  de- 
fendant.' (Pleasants  v.  Fant,  22 
Wall.  120;  Randall  v.  Baltimore 
&  Ohio  R.  R.  Co.,  109  U.  S.  478; 


Metropolitan  Ry.  Co.  v.  Jackson, 
3  App.  Cas.  193;  Reed  v.  Inhabit- 
ants of  Deerfield,  8  Allen  524; 
Skellenger  v.  C.  &  N.  W.  Ry.  Co., 
61  Iowa  714;  Martin  v.  Chambers, 

84  111.  579;   Phillips  v.  Dickerson, 

85  id.  11,  28  Am.  Rep.  607.)  In  the 
recent  case  of  Frazer  v.  Howe,  106 
111.  563,  this  court  recognized  the 
rule  to  be  'if  there  is  no  evidence 
before  the  jury  on  a  material  is- 
sue in  favor  of  a  party  holding 
the  affirmative  of  that  issue  on 
which  the  jury  could,  in  the  eye 
of  the  law,  reasonably  find  in  his 
favor,  the  court  may  exclude  the 
evidence  or  direct  the  jury  to  find 
against  the  party  so  holding  the 
affirmative.'  This  language  was 
quoted  in  Bartelott  v.  Interna- 
tional Bank,  supra,  and  Mr.  Jus- 
tice Schofield,  in  speaking  for  the 
court,  said  (p.  272):  'Since  it  was 
not  intended  in  this  case  to  over- 
rule Simmons  v.  Chicago  &  Tomah 
R.  R.  Co.,  supra,  it  is  apparent 
that  'evidence  tending  to  prove' 
means  more  than  a  mere  scintilla 
of  evidence,  but  evidence  upon 
which  the  jury  could,  without 
acting  unreasonably  in  the  eye  of 
the  law,  decide  in  favor  of  the 
plaintiff  or  party  producing  it.  It 
is  not  intended  by  this  practice 
that  the  function  of  the  jury  to 
pass  upon  the  questions  of  fact  is 
to  be  invaded,  any  more  than  it  is 
intended  that  such  function  is  to 
be  invaded  by  a  motion  to  set 
aside  a  verdict  or  for  a  new  trial 
upon  the  ground  of  the  want  of 
evidence    to   sustain   the   verdict. 


§250,] 


MOTION    TO    DIRECT    A    VERDICT. 


193 


For  this  reason  it  was  held  not  to  be  error  to  refuse  to  allow 
the  jury  to  be  polled;  the  object  of  polling  a  jury  is  to  ascer- 
tain whether  any  juror  has  been  coerced  into  agreeing  upon  a 
verdict.  The  directing  of  a  verdict  by  the  court  cannot  be  con- 
sidered as  coercion  and  the  polling  would  be  unnecessary  and 
futile.18 

§  250.  Where  the  Evidence  is  Conflicting.  If  the  evidence 
is  conflicting  the  court  should  refuse  to  direct  a  verdict,19  but 
where  there  is  a  mere  scintilla  of  evidence  in  favor  of  the  plain- 
tiff  not  amounting  to  a  material  conflict,  the  court  may  disre- 
gard such  a  mere  trifle,  or  scintilla  of  evidence,  and  direct  a 
verdict  for  the  defendant.20  Where  reasonable  minds  acting 
under  the  proper  rules  of  law  might  come  to  different  conclu- 
in  neither  case  is  the  court  an-  lish  it.  The  instruction  asked 
thorized  to  weigh  the  evidence  was  based  upon  the  theory  that 
and   decide  where   the  preponder-     there    was    a    substantial    failure 


ance  is.'  See  also  Siddall  v.  Jen- 
sen, 168  111.  43,  48  N.  E.  191,  39 
L.  R.  A.  112,  and  Rack  v.  C.  C. 
Ry.  Co.,  173  id.  289,  50  N.  E.  668, 
44  L.  R.  A.  127.  It  is  clear  from 
the  cases  cited  and  others,  that 
what  is  called  'the  scintilla  rule 
of  evidence'  is  not  in  force  in  this 
state." 

In  Boyce  v.  Tallerman,  183  111. 
115,  119,  affg.  83  111.  App.  575,  55 
N.  E.  703,  quoting  C.  &  N.  W.  R. 
Co.  v.  Dunleavy,  supra,  the  court 
said:  "A  prayer  for  an  instruction 
of  this  court  is  in  the  nature  of  a 
demurrer  to  the  evidence,  and  is 
equivalent  to   an   admission  upon 
the  record  of  every  fact  and  every 
conclusion  in  favor  of  the  oppos- 
ite party  which  the  evidence  con- 
duces  to    prove— in   other    words, 
every  fact  which  the  jury  might 
have  inferred  from  it  in  favor  of 
such    opposite    party.      Such    in- 
struction   should    not,     therefore, 
be  given  except  where  there  is  a 
substantial     failure     of     evidence 
tending    to    prove    the    plaintiff's 
cause  of  action  or  to  prove  some 
material  fact  necessary  to  estab- 
1S 


of  evidence  tending  to  prove  the 
negligence  charged  against  the  de- 
fendant. In  considering  the  pur- 
port of  such  instruction,  we  have 
nothing  to  do  with  any  question 
as  to  the  preponderance  of  the 
evidence  or  the  credibility  of  the 
witnesses,  or  the  force  to  be 
given  to  the  evidence  having  a 
tendency  merely  to  impeach  their 
veracity.  The  only  question  is, 
whether  any  evidence  was  given 
which,  if  true,  would  have  tended 
to  support  a  verdict  for  the  plain- 
tiff." Marshall  v.  Darney,  1  S. 
Dak.  350,  47  N.  W.  290. 

18— Ritchie  v.  Arnold,  79  111. 
App.  406;  Williams  v.  McMichael, 
64  Ga.  445;  Baker  v.  State,  31  Okl. 
314. 

19— Smith  v.  Marx,  93  Ala.  311, 
9  So.  194;  Eaton  v.  Carruth,  11 
Neb.  231,  9  S.  W.  58;  Central 
Ry.  Co.  v.  Mehlenbeck,  103  111. 
App.  17;  Starkweather  v.  Ma- 
ginnis,  196  111.  274,  63  N.  E.  692. 

20— Finley  v.  W.  Chicago  St.  Ry. 
Co.,  90  111.  App.  368;  Stow  v.  Bros- 
ius,  39  Mo.  535. 


194 


INSTRUCTIONS    TO    JURIES. 


[§  251. 


sions  and  the  evidence  is  sufficient  to  support  a  verdict  it  must 
be  left  to  the  jury.21 

§  251.  Where  the  Evidence  is  Without  Conflict.  Where  the 
evidence  in  behalf  of  both  parties  is  without  conflict  and  the 
allegations  of  both  sides  are  uncontroverted,   issues  of  law, 


21— McFadden  v.  Sollitt,  94  111. 
App.  271;  Wallen  v.  N.  Chicago  St. 
Ry.  Co.,  82  111.  App.  103;  Whalen 
v.  Utica  Hydraulic  Cement  Co., 
103  111.  App.  149. 

[Note: 

In  Place  v.  N.  Y.  C.  &  H.  R.  R. 
Co.,  167  N.  Y.  App.  345,  60  N.  E. 
632,  this  question  was  discussed 
at  length  and  it  is  thought  im- 
portant enough  to  set  out  the  fol- 
lowing extract  from  that  case: 

"Conflicting  evidence,  hearing 
upon  all  of  these  questions,  was 
given  by  many  witnesses  who  were 
interested,  and  by  others  who  were 
not.  The  result  of  the  trial  clear- 
ly depended  upon  the  weight  which 
might  be  given  by  the  jury  to  the 
evidence  presented  on  behalf  of 
the  respective  parties. 

"The  plaintiff  in  attacking  the 
judgment  dismissing  her  com- 
plaint is  entitled  to  the  most  fa- 
vorable inferences  deducible  from 
the  evidence,  and  all  disputed  facts 
are  to  be  treated  as  established  in 
her  favor."  Ladd  v.  Insurance 
Co.,  147  N.  Y.  478,  482,  42  N.  E. 
197;  Higgins  v.  Eagleton,  155  N. 
Y.  466,  50  N.  E.  287;  Ten  Eyck  v. 
Whitbeck,  156  N.  Y.  341,  349,  50 
N.  E.  963;  Bank  v.  Weston,  159  N. 
Y.  201,  208,  54  N.  E.  40;  McDonald 
v.  Railway  Co.,  167  N.  Y.  66,  60 
N.  E.  282. 

"The  defendant,  in  its  effort  to 
sustain  the  judgment,  is  confront- 
ed by  the  rule  so  frequently  laid 
down  in  this  court,  that  we  have 


nothing  to  do  with  the  weight  of 
evidence;  that,  if  a  question  of 
fact  is  fairly  presented,  it  should 
have  been  submitted  to  the  jury. 
In  a  very  recent  case  (McDonald 
v.  Railway  Co.,  167  N.  Y.  66,  60 
N.  E.  282),  the  court  reviewed  the 
authorities  and  approved  the  rule 
laid  down  in  Colt  v.  Railroad  Co., 
49  N.  Y.  671,  as  follows:  'It  is  not 
enough  to  justify  a  nonsuit  that 
a  court,  on  a  case  made,  might,  in 
the  exercise  of  its  discretion,  grant 
a  new  trial.  It  is  only  where  there 
is  no  evidence  in  law  which,  if  be- 
lieved, will  sustain  a  verdict  that 
the  court  is  called  upon  to  non- 
suit; and  the  evidence  may  be  suf- 
ficient in  law  to  sustain  a  verdict, 
although  so  greatly  against  the  ap- 
parent weight  of  evidence  as  to 
justify  the  granting  of  a  new  trial.' 
In  Bagley  v.  Bowe,  105  N.  Y.  171, 
179,  11  N.  E.  386,  the  rule  is  thus 
stated  by  Judge  Andrews:  'The 
trial  court  or  the  general  term  is 
authorized  to  set  aside  a  verdict, 
and  direct  the  issue  to  be  retried 
before  another  jury,  if  in  its  judg- 
ment the  verdict  is  against  the 
weight  or  preponderance  of  evi- 
dence; but,  in  a  case  which  of 
right  is  triable  by  jury,  the  court 
cannot  take  from  that  tribunal 
the  ultimate  decision  of  the  fact, 
unless  the  fact  is  either  uncontra- 
dicted, or  the  contradiction  is  il- 
lusory, or  where,  to  use  a  cur- 
rent word,  the  answering  evidence 
is  a  scintilla  merely.' " 


§  252.]  MOTION    TO    DIRECT    A    VERDICT.  105 

and  not  of  facts,  arise  and  must  be  decided  by  the  court.22 
When  there  is  no  conflict  in  the  evidence,  the  court  may  direct 
the  verdict  or  order  a  nonsuit.23 

§  252.  Exclusion  of  Evidence  Same  as  Directing  a  Verdict. 
Excluding  the  evidence  amounts  to  the  same  thing  as  instruct- 
ing the  jury  to  find  for  the  opposing  party,  as  either  course 
produces  the  same  result.24 

§  253.  All  the  Evidence  Must  Be  Excluded  When  One  Es- 
sential Allegation  is  Not  Proved.  Where  there  is  any  one  es- 
sential allegation  of  a  declaration  which  has  no  proof  tending 
to  support  it,  it  is  the  duty  of  the  court  to  exclude  from  the 
consideration  of  the  jury  all  the  evidence  in  the  case,  or  to 
charge  the  jury  that  there  is  no  evidence  to  support  such  essen- 
tial allegation,  and,  for  want  of  such  proof,  to  find  for  the  de- 
fendant. Whether  there  is  any  evidence  tending  to  prove  any 
material  allegation  of  a  declaration  is  a  question  of  law  for 
the  court  to  determine.25 

§  254.  No  Questions  of  Preponderance  of  Evidence  or  Credi- 
bility Considered  on  a  Motion  to  Direct.  In  considering  the 
propriety  of  a  motion  to  direct  a  verdict,  the  Court  has  nothing 
to  do  with  any  question  as  to  the  preponderance  of  the  evi- 
dence or  the  credibility  of  the  witnesses,  or  the  force  to  be 
given  to  the  evidence  having  a  tendency  merely  to  impeach  the 
veracity  of  the  witnesses.  The  only  question  is  whether  any 
evidence  was  given  which,  if  true,  would  have  tended  to  sup- 
port a  verdict  for  plaintiff.26 

22— Parker  v.  State,  34  Ga.  262;  289,  290,  aff'g  69  111.  App.  656,  50 

Sims  v.  State,  43  Ala.  33;    Fergu-  N.  E.  668,  44  L.  R.  A.  127. 

son  v.  Tucker,  2  Har.  &  G.   (Md.)  In  Chicago  &  N.  W.  Ry.  Co.  v. 

182;    Polish  R.  C.  U.  v.  Warczak,  Dunleavy,  129  111.  132,  22  N.  E.  15, 

82  111.  App.  351.  it    was    said:       "In    Simmons    v. 

23— Greening  v.  Bishop,  39  Wis.  Chi.  &  Tomah  R.  R.  Co.,  110  111. 

552;  Johnson  v.  Moss,  45  Cal.  515;  340,  this  court  used  the  following 

Kelly  v.  Hendricks,  26  Mich.  256;  language   (p.  346):   'We  think  the 

Am.  Ins.  Co.  v.  Butler,  70  Ind.  1.  more   reasonable   rule,   which   has 

24 — House  v.  Wilder,  47  111.  510;  now    come    to    he    established    by 

Louisville  R.  Co.  v.  Woodson,  134  the     better     authority     is,     that 

U.    S.    614;    Schwarzbach   v.   Ohio  when      the      evidence      given      at 

Valley  P.  Union,  25  W.  Va.  622.  the      trial,      with      all      the      in- 

25 — Poleman  v.  Johnson,  84  111.  ferences  that  the  jury  could  justi- 

269;    Sims   v.    Sims,    2   Ala.    117;  fiably  draw   from   it,   is   so   insuf- 

Bryan  v.  Ware,  20  Ala.  687;   Hill  ficient  to  support  a  verdict  for  the 

v.  Ruker,  14  Ark.  706.  plaintiff  that  such  a  verdict,  if  re- 

26— Rack  v.  C.  C.  Ry.  Co.,  173  111.  turned,  must  be  set  aside,  the  court 


196 


INSTRUCTIONS    TO    JURIES. 


[§  255. 


It  is  not  the  province  of  the  court  to  decide  upon  the  suffi- 
ciency of  the  testimony  pertaining  to  the  facts  in  the  case,27 
nor  to  order  the  jury  upon  the  facts  to  find  for  either  party.28 

§  255.  Motion  to  Direct  Should  Not  Be  One  of  a  Series  But 
Separate.  It  has  been  frequently  held  that  when  the  peremp- 
tory instruction  asked  is  one  of  a  series  of  instructions  to  the 
jury  it  does  not  present  a  question  which  will  authorize  a  court 
of  appeals  to  consider  the  facts.29 

§  256.  Duty  to  Direct  a  Verdict  Whenever  the  Verdict  Would 
Afterwards  Have  to  Be  Set  Aside.  It  is  only  when  the  plaintiff 
fails  to  make  a  case,  so  that  it  would  be  the  duty  of  the  trial 
court,  or  of  a  higher  court  on  appeal,  to  set  aside  the  verdict 
as  not  being  supported  by  any  competent  evidence  on  some 
material  point,  that  a  verdict  for  the  defendant  should  be  di- 
rected.30 

Where  there  is  a  mere  scintilla  of  evidence  to  establish  a 
fact  and  the  evidence  is  so  overwhelmingly  against  it  that  the 
court  would  set  aside  the  finding  of  a  jury,  if  based  upon  such 
fact  then  the  question  of  the  existence  of  such  fact  need  not 
be  submitted  to  the  jury.31 


is  not  bound  to  submit  the  case  to 
the  jury,  but  may  direct  a  verdict 
for  the  defendant.'  Pleasants  v. 
Fant,  22  Wall.  120;  Randall  v. 
Baltimore  &  Ohio  R.  R.  Co.,  109 
U.  S.  478;  Martin  v.  Chambers,  84 
111.  579.  The  case  of  Simmons  v. 
Chi.  &  Tomah  R.  R.  Co.,  supra,  was 
referred  to  with  approval  by  this 
court  in  L.  S.  &  M.  S.  R.  R.  Co.  v. 
O'Connor,  115  111.  254,  3  N.  E.  501, 
and  again  in  Bartelott  v.  National 
Bank,  119  id.  259,  9  N.  E.  89S." 

27— In  House  v.  Wilder,  47  111. 
510,  the  court  said:  "It  is  the 
settled  practice  never  to  instruct 
the  jury  as  to  the  weight  of  evi- 
dence. When  conflicting,  or  tending 
to  prove  the  issue,  however  slight- 
ly, it  must  be  left  to  the  consider- 
ation of  the  jury.  But  when  it 
essentially  varies  from  the  plead- 
ings and  fails  to  sustain  the  is- 
sue,  the   court  may,   and   should 


when  asked,  exclude  it  from  the 
consideration  of  the  jury.  Ex- 
cluding the  evidence  amounts  to 
the  same  thing  as  instructing  the 
jury  to  find  for  the  defendant,  as 
either  course  produces  the  same 
result." 

28 — Oleson  v.  Hendrickson,  12 
Iowa  222;  Robinson  v.  111.  C.  R.  R. 
Co.,  30  Iowa  401. 

29— Hartford  Deposit  Co.  v.  Sol- 
litt,  172  111.  222,  224,  aff'g  70  111. 
App.  166,  50  N.  E.  178. 

30 — Diezi  v.  G.  H.  Hammond 
Co.,  156  Ind.  583,  60  N.  E.  353, 
355;  Gregory  v.  Railroad  Co., 
112  Ind.  385,  388,  14  N.  E.  228; 
Wolfe  v.  McMillan,  117  Ind.  587, 
20  N.  E.  509. 

31 — Hogan  v.  Cushing,  49  Wis. 
169,  5  N.  W.  490;  Com.  of  Marion 
Co.  v.  Clark,  94  U.  S.  278;  May  v. 
I.  C.  R.  Co.,  35  Iowa  585;  State  v. 
Brown,  47  Ohio  102,  23  N.  E.  747. 


§  257.]  MOTION    TO    DIRECT    A    VERDICT.  197 

§257.  All  the  Most  Favorable  Inferences  Deducible  From 
the  Evidence  are  to  Be  Allowed  on  a  Motion  to  Direct.     The 

court  having  directed  a  verdict,  the  appellant  is  entitled  to  the 
most  favorable  inferences  deducible  from  the  evidence,  and  all 
disputed  facts  are  to  be  treated  as  established  in  his  favor.32 

§  258.  Sufficiency  of  the  Evidence  With  All  the  Inferences 
to  Be  Considered.  When  a  motion  to  instruct  the  jury  to  re- 
turn a  verdict  for  the  defendant  is  made  at  the  close  of  all 
ttie  evidence  in  the  case,  and  allowed  by  the  court,  it  must  be 
that  the  evidence,  both  for  plaintiff  and  defendant,  with  all 
the  inferences  which  the  jury  might  justifiably  draw  therefrom, 
is  not  sufficient  to  support  a  verdict  for  the  plaintiff,  if  one 
should  be  returned.33 

It  now  seems  to  be  the  well-settled  rule  that  where  the  evi- 
dence with  all  the  inferences  properly  to  be  drawn  therefrom 
tends  to  establish  the  plaintiff's  cause  of  action  as  set  forth  in 
the  declaration,  the  court  should  decline  to  take  the  case  from 
the  jury  either  at  the  close  of  the  plaintiff's  evidence  or  at 
the  close  of  all  the  evidence.  In  determining  the  propriety  of 
a  peremptory  instruction  of  this  character,  the  court  is  not 
authorized,  nor  required,  to  weigh  the  evidence  or  to  determine 
where  the  preponderance  of  evidence  lies.34 

§  259.  Motion  to  Direct  May  be  Waived.  A  motion  made 
by  the  defendant  at  the  close  of  the  plaintiff's  evidence  to 
direct  a  verdict  for  him  is  waived  by  a  failure  to  renew  it,  if 
denied,  either  by  a  motion  or  an  instruction  at  the  close  of  all 
the  evidence.35  Where  both  parties  move  for  a  verdict  the 
only  question  then  is  one  of  law,30  and  the  court  may  draw 

32— McDonald  v.  Met.  St.  Ry.  App.  219,  223-4;  Siddall  v.  Jen- 
Co.,  167  N.  Y.  66,  60  N.  E.  282,  son,  168  111.  43,  48  N.  E.  191; 
283;  Ladd  v.  Insurance  Co.,  147  Rack  v.  C.  C.  Ry.  Co.,  173  111.289, 
N.  Y.  478,  482,  42  N.  E.  197;  Hig-  50  N.  E.  668;  Offutt  v.  Col.  Exp., 
gins  v.  Eagleton,  155  N.  Y.  466,  50  175  111.  473,  51  N.  E.  651;  Land- 
N.  E.  287;  Ten  Eyck  v.  Whitbeck,  graf  v.  Kuh,  188  111.  484,  59  N.  E. 
156  N.  Y.  341,  349,  50  N.  E.  963;  501;  C.  &  E.  I.  R.  R.  Co.  v.  Filler, 
Bank  v.  Weston,  159  N.  Y.  201,  195  111.  9,  62  N.  E.  919;  C.  T.  T. 
208,  54  N.  E.  40.  R.   R.   Co.  v.   Schmelling,   197   111. 

33— Foster    v.    Wadsworth,    168  619,  64  N.  E.  714. 
111.   517,  48  N.   E.    160;   McGregor         35— Humiston,     K.     &     Co.     v. 

v.  Reid,  178  111.  471,  53  N.  E.  323,  Wheeler,    175    111.    514,    51    N.    E. 

69    Am.    St.    Rep.    332;    Birch    v.  893,  aff'g  70  111.  App.  349. 
Charleston    L.    H.    &   P.   Co.,   113        36— McComb   v.    Barkerville,  — 

111.  App.  229,  235-6.  S.  D.  — .  106  N.  W.  300. 

34— Nicholls  v.  Colwell,  113  111. 


198  INSTRUCTIONS    TO    JURIES.  [§  260. 

any  inference  from  the  facts  that  the  jury  might  have  drawn.37 
Both  parties  having  admitted  the  facts  to  be  undisputed  by 
then*  motion  for  a  verdict,  virtually  agree  thereby  to  submit 
questions  of  both  law  and  fact  to  the  court. 

"Where  at  the  close  of  the  evidence  for  the  plaintiff  the  de- 
fendant moves  the  court  to  instruct  the  jury  to  find  the  issues 
for  the  defendant,  and  the  motion  was  denied,  and  the  defend- 
ant then  proceeded  to  offer  evidence,  and  the  motion  is  not 
renewed  or  an  instruction  asked  at  the  close  of  all  the  evidence, 
the  motion  was  waived.  The  question  of  the  sufficiency  of  the 
evidence  to  sustain  a  verdict  was  not  raised  as  a  question  of 
law,  and  the  court  on  appeal  is  precluded  from  considering 
questions  of  fact.38 

§  260.  When  the  Motion  to  Direct  Comes  Too  Late.  It  is 
held  that  a  peremptory  instruction  must  be  asked  at  the  close 
of  the  opponent's  evidence,  or  at  least  at  the  close  of  all  the 
evidence  and  not  after  the  final  submission  of  the  case  to  the 
jury.39  A  request  for  a  peremptory  instruction  made  by  the 
defendant  is  too  late  when  made  after  the  close  of  all  the  testi- 
mony where  the  defendant  has  requested  several  other  instruc- 
tions and  the  plaintiff  has  done  the  same.40 

The  judge  has  the  right  to  recall  all  instructions  and  to  direct 
a  verdict  in  the  case  before  the  jury  has  returned  to  court 
and  its  verdict  has  been  announced  and  recorded.41 

§  261.  Written  Instruction.  Directing  a  Verdict  Must  be 
Presented  With  the  Motion.  Where  a  motion  is  made  at  the 
close  of  plaintiff's  evidence  to  take  a  case  from  the  jury  and 
direct  a  verdict  for  the  defendant,  and  is  renewed  at  the  close 
of  all  the  evidence,  a  written  instruction  directing  such  a  ver- 
dict must  be  presented  with  the  motion.  When  a  written  in- 
struction is  not  so  presented,  and  error  is  assigned  on  the  re- 

37— Sundling   v.    Willey,   —   S.  gory  v.  Prescott,  5  Cush.   (Mass.) 

D.  — ,  103  N.  W.  38.  67;  C.  G.  W.  Ry.  Co.  v.  Mohan,  58 

38— Humiston,     K.     &     Co.     v.  N.   E.   395,   187    111.    281,   aff'g   88 

Wheeler,  supra;  J.  A.  &  N.  R.  Co.  111.  App.  151. 

v.  Velie,  140  111.  59,  29  N.  E.  706;         40— C.  B.  &  Q.  R.  Co.  v.  Murow- 

L.  N.  A.  &  C.  Ry.  Co.  v.  Red,  154  ski,  179   111.  77,  aff'g  78  111.  App. 

id.  95,  39  N.  E.  1086.  661,  53  N.  E.  572. 

39— Pine    v.    Phoenix    M.    L.    I.         41— Garrett  v.  Farwell  Co.,  102 

Co.,   17   Maine   497;    Alexander  v.  111.  App.  31. 
Sadler,  4  U.  S.  App.  324;  McGreg- 


§  262.] 


MOTION    TO    DIRECT    A    VERDICT. 


199 


fusal  of  the  court  to  give  the  instruction,  the  Supreme  Court 
has  not  before  it  any  legal  question  for  determination.42 

§  262.  Waiving  Points  Not  Included  in  Motion  for  New 
Trial.  Where  a  party  moving  for  a  new  trial  files  points  in 
writing  specifying  the  grounds  of  his  motion,  he  waives  all  ex- 
isting causes  for  a  new  trial  not  specified  in  his  motion,  and  on 
appeal  is  confined  to  those  specified  in  the  court  below.43 

§  263.  Directing  a  Verdict  in  Criminal  Cases.  The  courts 
may  direct  the  jury  to  find  a  defendant  "not  guilty,"  but  in 
no  circumstance  is  it  known  that  any  court  at  common  law 
could  direct  the  jury  to  find  a  defendant  guilty  when  he  has 
pleaded  not  guilty.  The  following  instruction  was  held  er- 
roneous : 

"You  are  instructed  that  under  the  charge  contained  in  this 
information  you  may  find  the  defendant  guilty  of  murder  in 
the  first  degree,  murder  in  the  second  degree,  or  you  may  find 
him  guilty  of  voluntary  manslaughter,  or  of  involuntary  man- 
slaughter; but  you  cannot  find  him  not  guilty."44 


42— W.  C.  St.  R.  R.  Co.  v.  Fos- 
ter, 175  111.  396,  398,  51  N.  E.  690; 
Cal.  El.  St.  R.  Co.  v.  Cbristenson, 
170  111.  383,  48  N.  E.  962;  Swift  & 
Co.  v.  Fue,  167  id.  443,  47  N.  E. 
761;  Wenona  Coal  Co.  v.  Holm- 
quist,  152  id.  581,  38  N.  E.  946; 
Pierce  v.  Walters,  164  111.  560,  45 
N.  E.  1068;  W.  C.  St.  R.  R.  Co.  v. 
Yund,  169  id.  47,  48  N.  E.  208; 
Gilbert  v.  Watts  de  Golyer  Co.,  id. 
129,  48  N.  E.  430;  C.  &  N.  W.  Ry. 
Co.  v.  Delaney,  id.  581,  48  N.  E. 
476. 

43— Laverenz  v.  Ch.  R.  Co.,  53 
Iowa  321,  5  N.  W.  156. 

In  C.  C.  R.  Co.  v.  Hyndshaw, 
116  111.  App.  367,  373,  "the  de- 
fendant moved  for  a  new  trial 
in  the  court  below,  and  filed 
his  reasons  in  writing  there- 
for. He  did  not  assign  the 
giving  of  instructions  for  plaintiff 
among  those  reasons.  It  is  true 
it  was  held  in  I.  C.  R.  R.  Co.  v. 
O'Keefe,  154  111.  508,  39  N.  E.  606, 
that  the  action  of  the  trial  court 


in  giving  and  refusing  instruc- 
tions may  be  reviewed  without  a 
motion  for  a  new  trial,  but  the 
Krueger  case,  cited  below,  in  ef- 
fect holds  that  this  principle  does 
not  apply  if  a  motion  for  a  new 
trial  has  been  made  and  points 
filed  omitting  that  subject.  This 
is  manifestly  because  whatever 
is  omitted  from  the  specified 
points  assigned  on  the  motion  for 
a  new  trial  is  thereby  waived. 
O.  O.  &  F.  R.  V.  R.  R.  Co.  v.  Mc- 
Math,  91  111.  104;  W.  C.  St.  R.  R. 
Co.  v.  Krueger,  168  111.  586,  48  N. 
E.  442;"  Mackey  v.  Baltimore  R. 
Co.,  19  D.  C.  282;  Maclen  v. 
Bloom,  54  Miss.  365. 

44— State  v.  Koch,  33  Mont.  490, 
85  Pac.  272,  273. 

In  holding  the  instructions  er- 
roneous, the  court  said: 

"We  think  the  great  weight  of 
reason  and  authority  supports  the 
view  that  the  court  may  not  in 
any  case  upon  a  plea  of  not  guilty 


200 


INSTRUCTIONS    TO    JURIES. 


[§  268 


coerce  the  jury  by  a  mandatory 
instruction  to  return  a  verdict  of 
guilty.  While  the  jury  should 
take  the  law  as  laid  down  by  the 
court  and  be  governed  by  it,  ex- 
cept in  libel  cases,  wherein  they 
are  the  judges  of  the  law  and  fact 
(Const,  art.  3,  §  10;  Paxton  v. 
Woodward,  31  Mont.  195,  78  Pac 
215),  the  person  accused  may  not 
be  deprived  of  his  absolute  right 
to  have  the  question  of  his  guilt 
or  innocence,  not  only  of  the  par- 
ticular crime  charged,  but  of  any 
included  therein,  determined  by 
the  jury  without  coercion  by  the 
court." 

In  State  v.  Thomas,  50  La.  148, 
23  So.  250,  in  a  similar  case  the 
court  said: 

"We  are  of  the  opinion,"  said 
the  court  in  State  v.  Jones,  46  La. 
Ann.  1398,  16  So.  369,  'that  on 
all  trials  for  murder  it  is  the 
duty  of  the  district  judge,  ex  pro- 
prio  motu,  without  request  from 
counsel,  to  charge  the  jury  that 
among  the  verdicts  which  they  are 
permitted  by  law  to  return,  under 
an  indictment  charging  a  person 
with  murder,  is  a  verdict  of  man- 
slaughter,   as   much    so   as   to   in- 


form them  that  under  an  indict- 
ment for  murder  it  is  lawful  for 
the  jury  to  qualify  their  verdict 
by  adding  thereto,  'without  cap- 
ital punishment,'  and  that  it  is 
reversible  error  in  any  case  that 
the  judge  should  have  failed  to  so 
inform  them;  and  if  this  be  so, 
how  much  stronger  is  the  case 
where  a  judge  not  only  fails  to 
give  such  information,  but  ex- 
pressly declares  that  in  the  case 
before  him  such  a  verdict  would 
not  be  applicable.'  The  court 
cited,  in  support  of  this  position, 
State  v.  Brown,  40  La.  Ann.  725, 
4  South.  897,  and  State  v.  Brown, 
41  La.  Ann.  411,  6  So.  670. 
Under  this  view,  the  failure  to  in- 
struct the  jury  as  stated  was  not 
a  mere  omission  to  charge,  it  was 
a  misdirection.  Upon  this  point 
':he  case  is  absolutely  exceptional 
and  entirely  sui  generis.  It  does 
not  apply  to  lesser  grades  in  mat- 
ter of  other  crimes  charged.  It 
only  applies  to  trials  for  murder, 
and  is  limited  in  those  cases  to 
informing  the  jury  that  a  verdict 
of  guilty  of  the  crime  of  the  lesser 
grade  (manslaughter)  may  be 
found." 


CHAPTER  XIV. 

UNANIMOUS   OR  MAJORITY  VERDICTS— SPECIAL  FINDINGS 
AND  VERDICTS  IN  GENERAL. 


§264. 
§  265. 

§266. 
§267. 


268. 


§269. 
§270. 


Unanimity  of  verdict. 

Unanimous  and  majority 
verdicts. 

Majority    verdict    discussed. 

Verdict  found  by  casting- 
lots — Compromise  and 
quotient   verdicts    invalid. 

Special  verdicts  distinct 
from  answers  to  special 
interrogatories. 

Special    interrogatories. 
Where    the    general   verdict 

and    the    special    findings 

are  inconsistent. 


§  271.  Failure  of  jury  to  repor+ 
special  finding  requested 
— Special  findings  not 
conclusive. 


§  272.  Being  signed  by  foreman 
and  read  in  court,  will 
constitute  a  valid  verdict. 

§  273.  Presence  of  parties  when 
the  verdict  is  returned. 

§  274.  Must  follow  instructions,  be 
consistent  with  and  de- 
cisive upon  the  issue. 

§  275.  Certainty  as  to  whom  it  is 
found  in  favor  of. 

§  276.  Certainty  as  to  what  the 
jury  intended  to  award. 

§  277.  Power  of  court  to  amend  a 
verdict. 

§  278.  Power  of  the  jury  to  amend 
or  correct  a  verdict 

§  279.  Sealed  verdicts. 

§  280.  Verdict  returned  on  the 
Sabbath  day  may  be 
oral  or  written. 


§  264.  Unanimity  of  Verdict.  Unanimity  was  a  requisite  of 
a  valid  verdict  rendered  by  a  jury  either  in  civil  or  criminal 
cases  at  common  law  and  under  constitutions  of  most  of  the 
states  of  the  Union.  The  unanimity  referred  to  relates  solely 
to  the  ultimate  and  final  conclusion  reached,  and  has  no  refer- 
ence to  the  method  by  which  it  was  reached,  or  the  facts  upon 
which  the  different  jurors  based  their  conclusions.1 

Judge  Cooley  characterized  unanimity  of  verdict  as  a  relic 
of  barbarism  and  superstition,  and  "repugnant  to  all  experi- 
ence  of  human  passions,    conduct   and   individuality."     The 

1 — C.   &  N.  W.  Ry.  Co.  v.  Dun-  320,  the  court  held  that  the  whole 

leavy,  129  111.  132,  22  N.  E.  15.  twelve  jurors  must  approve  of  and. 

In  Duncan  v.  City  of  Grand  Rap-  agree  to  all  and  every  one  of  the 

ids,   121   Wis.   626,   99  N.  W.  317,  answers  made  and  returned. 

201 


202  INSTRUCTIONS    TO    JURIES.  [§  265. 

United  States  Supreme  Court,  in  the  person  of  one  of  its  jus- 
tices, has  passed  condemnation  upon  this  rule.  It  seems 
strange  that  for  a  long  time  and  at  least  up  to  the  year  1860, 
none  of  the  nations  of  Europe  adopted  the  trial  by  jury  in  any 
civil  case,  but  nearly  all  adopted  it  in  criminal  cases,  and  all 
rejected  the  English  common  law  idea  of  unanimity. 

The  government  of  the  Island  of  Hawaii  has  adopted  the 
practice  of  allowing  a  verdict  of  nine  jurors  to  be  brought 
in.  Twelve  jurors  have  been  held  not  to  be  necessary  to  due 
process  of  law,  as  this  means  simply  a  requirement  of  trial 
according  to  law.  The  Fourteenth  Amendment  of  the  United 
States  Constitution  does  not  affect  the  validity  of  a  verdict 
rendered  by  a  majority  of  the  jury,  nor  is  the  power  of  the 
states  limited  by  this  amendment.  Due  process  of  law  is  a 
term  which  requires  that  the  trial  shall  be  conducted  accord- 
ing to  law,  both  as  to  the  nature  of  the  charge  and  the  mode 
of  procedure,  but  does  not  determine  what  crime  is,  or  what 
the  mode  of  procedure  should  be.  It  certainly  does  not  pre- 
vent changes  from  being  made  in  the  mode  of  procedure.2 

§  265.  Unanimous  and  Majority  Verdicts.  The  common 
law  right  of  trial  by  jury  of  twelve  men  who  must  render 
unanimous  verdict  may  undoubtedly  be  changed  by  statute, 
so  that  a  less  number  than  twelve  may  constitute  a  jury,3  yet 
it  cannot  be  left  to  the  discretion  of  the  court  or  to  other  con- 
tingencies to  excuse  some  one  or  more  jurors  and  to  proceed 
with  less.4 

It  is  also  held  proper  for  the  parties  in  action  triable  by 
jury  at  any  time  before  final  submission  of  a  case  to  agree  to 
take  the  verdict  of  the  majority,  which  agreement  being  stated 

2— State  v.  Bates,  14  Utah  293,  29  N.  W.  911;  Gut  v.  State,  9  Wall. 

47  Pac.  78,  43  L.  R.   A.  33  n.  35;  Duncan  v.  Mo.,  152  U.  S.  377, 

In    the    recent    constitution    of  14   Sup.  Ct.   57;    Calder  v.  Bull,  3 

Utah  it  is  provided  that  "In  courts  Dall  386. 

of  general  jurisdiction,   except   in         3 — Muirhead  v.   Evans,   6  Exch. 

capital  cases,  a  jury  shall  consist  447;  Bullard  v.  State,  38  Tex.  504; 

of  eight  jurors  and  in  civil  cases  Davis  v.   State,  9  Tex.  App.   634; 

three-fourths  may  find  a  verdict."  Hill  v.  People,  16  Mich.   351;   Mc- 

In  Wyoming  the  courts  have  ad-  Rae  v.  Grand  Rapids  L.  R.  D.  Co., 

vanced  a  step  further,  so  to  speak,  93  Mich.  399,  53  N.  W.  561,  17  L. 

and   have   allowed    women    as   ju-  R.  A.  750. 

rors,  not  only  in  civil  but  in  crim-         4 — Logan  v.   Field,   192  Mo.  52, 

inal    cases    and    upon    the    grand  90   S.    W.    127;    Saxton   N.   Bk.   v. 

jury  also.  Bennett,    138    Mo.    494,    40    S.    W. 

Marion    v.    State,    20    Nev.    233,  970. 


§266.]  UNANIMOUS    OR    MAJORITY    VERDICTS.  203 

to  the  court  and  entered  on  the  records  bind  the  parties  and  in 
such  cases  a  verdict  signed  by  seven  or  more  and  duly  ren- 
dered, when  read  and  not  disapproved  by  said  majority,  in 
every  particular  is  as  binding  as  if  made  by  a  full  jury.5 

The  majority  verdict  just  referred  to  is  only  authorized  by 
virtue  of  statutory  provisions,  and  then  only  by  agreement  of 
both  parties,  and  applied  for  in  the  manner  provided. 

A  law  authorizing  less  than  twelve  jurors  to  render  a  ver- 
dict as  where  a  juror  has  become  ill  has  been  held  unconstitu- 
tional. The  jury  must  be  the  common  law  jury  of  twelve 
men.6  Where  a  juror  is  ill  and  unable  to  deliberate  with  the 
others,  the  verdict  is  a  nullity,  as  it  is  not  the  verdict  of  all.7 
If  a  juror  becomes  ill  during  a  trial  another  juror  should  be 
called  in  his  place  and  the  trial  ordered  to  proceed  de  novo.8 

Where  a  jury  is  discharged  and  a  new  trial  ordered  on  ac- 
count of  the  death  or  illness  of  one  of  the  members,  an  ob- 
jection against  having  any  of  the  old  jury  on  the  new  panel  is 
a  matter  for  the  court  to  pass  upon  in  its  discretion.9 

§  266.  Majority  Verdict  Discussed.  The  verdict  of  twelve 
men  is  considered  more  likely  to  be  correct  than  that  of  a  less 
number,  although  a  majority.  If  a  majority  verdict  were  valid 
it  would  oftentimes  result  in  a  verdict  upon  first  ballot.  If 
the  first  ballot  taken  should  show  a  majority  for  either  side, 
and  this  result,  considered  final,  the  minority  would  have  no 
chance  to  express  their  views  upon  the  verdict. 

The  fact  that  it  is  otherwise  gives  opportunity  for  investiga- 
tion and  deliberation  and  oftentimes  the  correct  views  of  the 
minority  have  providentially  prevailed  in  bringing  others  to 
their  point  of  view.  Under  a  majority  verdict  there  is  also 
great  opportunity  for  jurors  to  conceal  the  stand  they  have 
taken.  There  should  be  a  right  to  question  a  juryman  upon 
his  courage  to  back  up  his  convictions  with  his  vote. 

5 — Code   Iowa.  law.  In  France  it  was  introduced 

6 — Kelsh  v.  Dyersville,  68  Iowa  in   1791,   and   provides   for  a  ma- 

137,  26  N.  W.  38.  jority    verdict;     so    also    in    Ger- 

7— Denman  v.  Baldwin,  3  N.  J.  many.      In    Scotland    a    mode    of 

Law,  945.  getting  at  the  facts  is  used  called 

8 — City      of      Shawneetown      v.  "precognition,"     a     procedure    by 

Mason,  82  111.  337.  the  sheriff;  jury  trial  is  an  excep- 

9 — Sorenson    v.    Oregon   P.    Co.,  tion.     By   Victoria  17-18   s.   59,   a 

47  Ore.   24,   82   Pac.  10.  verdict    of  nine   was  taken   as    a 

In   Belgium,   trial   by  jury  was  good    verdict    if    whole    of    jury 

established  in  1830,  decision  of  could  not  agree  in  twelve  hours, 
the     majority     was     allowed     by 


204  INSTRUCTIONS    TO    JURIES.  [§267. 

On  the  other  hand,  when  a  unanimous  verdict  of  twelve  must 
concur,  a  sufficiently  obstinate  juror  can  oftentimes  acquit  or 
convict  even  against  the  combined  reason  of  the  others  who 
are  lacking  in  force  of  character  in  maintaining  their  views. 

It  is  generally  held  that  the  parties  to  a  civil  action  may 
waive  a  trial  by  a  full  jury  of  twelve  and  that  a  verdict  by  a 
less  number  may  be  consented  to  and  the  verdict  upheld,10 
and  in  some  states  it  is  provided  that  a  jury  of  less  than  twelve 
may  be  had  in  courts  not  of  record.11 

§  267.  Verdict  Found  by  Casting  Lots,  Compromise  and 
Quotient  Verdicts,  Invalid.  A  jury  should  bring  to  bear  upon 
the  case  the  strength  of  their  judgment  and  reason;  they  are 
trusted  to  bring  in  a  verdict  after  honest  deliberation  and  as  a 
result  of  their  conviction  as  to  the  rights  of  the  parties,  as 
based  upon  the  evidence  and  governed  by  the  instructions.  A 
verdict  which  is  found  by  the  casting  of  lots  is  no  verdict  and 
should  be  set  aside.12  For  the  same  reason  a  verdict  which  is 
obtained  as  a  result  of  a  compromise  or  a  quotient  verdict,  is 
also  invalid.13 

§268.  Special  Verdicts  Distinct  from  Answers  to  Special 
Interrogatories.  A  special  verdict  is  distinct  from,  though 
often  confused  with,  what  are  known  as  answers  to  special 
interrogatories.  A  special  verdict  is  one  finding  a  certain  set 
of  facts  to  be  true  and  leaving  the  court  to  determine  the  con- 
clusion of  the  law  upon  these  facts.  Special  findings  should 
only  be  asked  upon  ultimate  and  not  purely  evidential  facts.14 
Special  interrogatories  may,  however,  be  asked  upon  any  par- 
ticular feature  of  the  case  and  answered  by  the  jury  in  con- 
nection with  the  rendition  of  their  general  verdict. 

§  269.  Special  Interrogatories — Under  Certain  Conditions 
the  Parties  May  Submit  Special  Interrogatories  for  the  Jury  to 
Answer.  The  trial  court  may  upon  its  own  motion  submit 
special  questions  to  the  jury,  but  the  statute  in  Illinois  does 

10— Scott  v.  Russell,  39  Mo.  407,  Ferry,  etc.,  17  Cal.  510;   Huffman 

8  Ohio  N.  S.  205;    State  v.  Bates,  v.  State,  89  Ala.  33,  8  So.  28;  City 

14  Utah  293,  47  Pac.  78,  43  L.  R.  of    Beardstown    v.    Clark,    104    111. 

A.  33.  App.  568;    Crouch  v.  Denmore,   59 

11— North   Dakota,  Washington,  Iowa   43,   12   N.   W.    759;    Walker 

Utah  and  Missouri.  v.   Dewing,   8    Pick.    (Mass.)    520; 

12— Mitchell   v.   Ehle,    10   N.  Y.  Buckley    v.     Great    Western    Ry. 

Wend.  595.  Co.,  IS  Mich.  121;    State  v.  Watts, 

13— Roy  v.  Goings,  112  111.  656.  10    Ired.     (N.    C.)    369;    Morse    v 

14— Lee     v.     Campbell,     4     Port.  Chase,    4    Watts    (Pa.)    456. 
(Ala.)    198:    Garfield   v.    Knight's 


§270.]  UNANIMOUS    OR    MAJORITY    VERDICTS.  205 

not  require  a  submission  of  such  special  questions  to  the  coun- 
sel on  either  side.15 

Questions  as  to  mere  evidential  facts  and  which  are  not  de- 
cisive of  the  issues  are  not  proper  to  be  submitted  to  the  jury.16 
Special  interrogatories  which  would  not  control  the  general 
verdict  may  be  properly  refused  by  the  court17  and  where  the 
answer,  "Yes  or  No,"  would  not  be  decisive  of  the  case,  such 
interrogatory  should  not  be  submitted  to  the  jury.18  The  fact 
that  a  special  interrogatory  is  leading  is  held  no  objection.19 

§  270.  Where  the  General  Verdict  and  the  Special  Findings 
Are  Inconsistent.  All  reasonable  presumptions  are  to  be  taken 
in  favor  of  the  verdict  and  nothing  will  be  presumed  in  aid  of 
the  special  findings  where  the  special  findings  and  the  verdict 
are  inconsistent.20 

The  general  verdict  will  control  where  the  special  findings 
are  inconsistent  as  between  themselves,21  otherwise  where  the 
special  findings  are  inconsistent  with  the  general  verdict,  judg- 
ment should  be  rendered  on  these  special  findings.  The  gen- 
eral verdict  must  not  only  be  inconsistent  with  the  special  find- 
ings, but  the  inconsistency  must  be  irreconcilable.22  The  gen- 
eral verdict  and  the  special  findings  are  inconsistent  when  the 
general  verdict  and  the  special  findings  do  not  warrant  the 
rendering  of  the  same  judgment  thereon. 

No    special    verdict   inconsistent    with    the    admitted    facts 

15— Erwin    v.    Clark,    13    Mich.  548,  58  Pac.  238;   People  v.  Wells, 

10;   Riley  v.  Wolfey,  60  Kan.  855,  8  Mich.   104. 

55   Pac.   461;    State  v.  Moore,  107  19— C.  C.  Ry.  Co.  v.  Bucholz,  90 

N.  Car.  770,  12   S.  E.   249;    Bryan  111.  App.  440. 

v.     Lamson,     88     111.     App.     261;  20— Conroy  v.   Chicago,   etc.,  R. 

Bower    v.    Bower,    146    Ind.     393,  Co.,    96   Wis.    243,    70    N.   W.    486; 

45   N.   E'.    595;    Williams  v.   Love,  Smyth   v.   Marsich,    4    N.   Y.   App. 

1  Ind.   Ter.  585.  Div.  171;   Carman  v.  Ross,  64  Cal. 

16— Nelson  v.  Fehd,  104  111.  App.  249,   29   Pac.   510;    Kerr  v.   Goetz, 

114;     Pickett    v.    Handy,    5    Colo.  88  111.  App.  41. 

App.  295,  38   Pac.  606;   Schultz  v.  21— Boos  v.  State,  11  Ind.  App. 

Cremer,   59   la.   182,   13   N.  W.   59.  257,  39  N.  E.  197;    State  v.  Curtis, 

17 — Locke    v.    Merchants    Nat'l  71    N.   C.    56;    Comm.   v.   Wagner, 

Bank,  66  Ind.  353;  Boyce  v.  Snow,  13S    Ind.    609,    38    N.    E.    171;    Mc- 

187  111.  181,  58  N.  E.  403.  Lean  v.  Capper,  3  Call   (Va.)   367; 

18 — Erwin      v.      Clark,      supra:  Moore   v.    Moore,    67    Tex,    293,    3 

Jackson    v.    German    Ins.    Co.,    27  S.  W.  284. 

Mo.  App.  62;  Wm.  Graver  Tank  22— C.  &  N.  W.  Ry.  Co.  v.  Dun- 
Works  v.  O'Donnell,  91  111.  App.  leavy,  129  111.  132,  22  N.  E.  15; 
524;   Allen  v.  Lizer,  9  Kan.  App.  Case  v.  C.  M.  &  St.  P.  Ry.  Co.,  100 


206  INSTRUCTIONS    TO    JURIES.  [§  271. 

should  be  allowed  to  stand,23  but  where  the  proofs  sustain  the 
special  finding  the  court  may  render  a  judgment  on  the 
special  finding,  although  it  is  contrary  to  the  general  verdict.24 

§  271.  Failure  of  Jury  to  Report  Special  Finding  Requested 
— Special  Findings  Not  Conclusive.  Where  the  jury  do  not 
agree,  or  fail  to  report  a  special  finding,  especially  where  it 
would  involve  the  material  issues  of  the  case,  the  court  should 
not  render  judgment  upon  the  general  verdict.25 

A  party  is  not  precluded  or  estopped  from  questioning  the 
correctness  of  the  replies  in  answer  to  questions  propounded 
on  a  request  for  special  findings  from  the  jury.26 

§  272.  Being  Signed  by  Foreman  and  Read  in  Court,  Will 
Constitute  a  Valid  Verdict.  It  is  a  sufficient  return  of  the  ver- 
dict that  it  be  signed  by  the  foreman  alone  and  announced 
in  open  court  by  the  judge  or  clerk.  The  jurors  should  be 
asked  if  it  is  their  verdict,  but  it  is  not  necessary  that  it  should 
be  signed  by  all  of  the  jurors.27  The  verdict  as  read  by  the 
court  and  assented  to  by  the  jurors  constitutes  their  verdict.28 
The  only  proper  verdict  in  the  case  is  that  verdict  which  has 
been  rendered  in  open  court  and  to  which  the  jury  have  re- 
sponded affirmatively  as  to  whether  it  was  their  verdict  or 
not ;  any  other  verdict  copied  by  the  clerk  into  the  record,  con- 
trary thereto,  will  not  stand.29 

§  273.  Presence  of  Parties  When  the  Verdict  Is  Returned. 
In  all  criminal  trials  the  verdict  should  be  returned  in  open 
court  and  in  presence  of  the  parties  and  their  attorneys,30  and 

la.    487,    69    N.    W.    538;    Kerr   v.  111.  466,  95  111.  App.  471,  63  N.  B. 

Goetz,  supra.  1029. 

23— Murphy    v.    Weil,    89    Wis.  28— Catholic    O.    of   F.    v.    Fitz, 

146,    61    N.    W.    315;    Kullman    v.  1S1  111.  206,  aff'g  81  111.  App.  389, 

Greenebaum,    84    Cal.    98,    24    Pac.  54  N.  E.  952. 

49;     Stodder    v.    Powell,    1    Stew.  29— Catholic    O.    of    F.    v.   Fitz, 

(Ala.)    287.  supra. 

24— Fitzgerald   v.    Hedstrom,   98  30— Waller  v.  State,  40  Ala.  252; 

111.    App.    109;     Benson    &    Judd  State  v.  Kelly,  91  N.  C.  405. 

Grain  Co.  v.  Becker,  76  Mo.  App.  Defendant   must   be    present   at 

375,  30  S.  E.  347;  Roberts  v.  Rob-  the   plea   and    arraignment.     Hall 

erts,  122  N.  C.  782.  v.  State,  40  Ala.  698. 

25 — Tourtelotte  v.  Brown,  1  The  courts  hold  that  the  de- 
Colo.  App.  408,  29  Pac.  130.  fendant    must    be    present    when 

26 — 111.   S.  Co.  v.  Mann,  197  111.  the      jury      is      impanelled      and 

186,    affd.    100    111.    App.    367;    64  sworn.      Rolls   v.    State,    52   Miss. 

N.  E.  328.  391. 

27— C.  C.  Ry.  Co.  v.  Cooney,  196  The  presence  of  the   defendant 

during  the  examination  and  tak- 


§  274.  J  UNANIMOUS    OR    MAJORITY    VERDICTS.  207 

especially  so  in  capital  cases.  The  presence  of  the  defendant 
is  necessary  at  all  stages  of  the  trial,  as  the  rendering  of  a  ver- 
dict is  as  much  a  part  of  the  trial  as  the  giving  of  evidence.  In 
civil  cases,  as  a  general  rule,  the  rendering  of  a  verdict  may 
properly  take  place  in  the  absence  of  the  parties. 

§  274.  Must  Follow  Instructions,  Be  Consistent  with  and 
Decisive  upon  the  Issue.  To  be  a  valid  verdict  it  should  fol- 
low the  instructions  of  the  court,  otherwise  it  should  be  set 
aside  as  contrary  to  law.31  It  should  be  based  upon  and  con- 
sistent with  the  issues  in  the  ease  and  be  decisive  upon  the 
point  in  issue.32  The  verdict  should  not  contradict  the  admis- 
sions contained  in  the  pleadings  nor  should  it  make  imma- 
terial findings,  but  should  decide  upon  a  material  point  which 
would  settle  the  rights  of  the  parties  involved  in  the  case. 

§  275.  Certainty  as  to  Whom  It  Is  Found  in  Favor  of.  The 
verdict  should  also  be  certain  as  to  which  party  it  was  in  favor 
of  or  against,  as  the  case  may  be,  either  naming  them  distinct- 
ly as  plaintiff  or  defendant  or  otherwise,  so  there  may  be  no 
mistake.33 

§  276.  Certainty  as  to  What  the  Jury  Intended  to  Award. 
The  verdict  must  be  certain  as  to  what  the  jury  intended  to 
award,  otherwise  it  would  be  so  uncertain  as  to  be  no  verdict 
at  all.  It  is  construed  with  as  much  liberality  as  possible  in 
order  to  ascertain  the  meaning,  but  reason  would  not  be 
stretched  to  the  point  of  imagination  in  order  to  discover  any 
ambiguous  meaning.  A  verdict  that  there  was  no  cause  of 
action  would  be  construed  as  a  verdict  in  favor  of  the  defend- 
ant.34   Mere  conjecture  cannot  be  resorted  to. 

A  verdict  should  state  the  amount  assessed  by  the  jury  as 

ing   of  testimony   is   certainly  re-  443,  59  N.  W.  534. 

quired.     People  v.  Kohler,  5   Cal.  32 — Pumphrey  v.  Walker,  75  la. 

72.  408,    39    N.    W.    671;    Fromne    v. 

So   also  must  the  defendant  be  Jones,     13     la.     474;      Miller     v. 

present  when   the   court  instructs  Shackleford,    4    Dana    (Ky.)    271; 

the  jury.     Bonner  v.  State,  67  Ga.  Mays  v.  Lewis,  4  Tex.  39. 

510;  when  the  verdict  is  returned,  33 — Westfield   Gas   Co.   v.    Aber- 

Waller  v.   State,   40   Ala.   325,  and  nathy,    8    Ind.    App.    73,    35    N.    E. 

when     sentence     is     to     be     pro-  399;   Alexandria  Co.  v.  Painter,  1 

nounced,  Harris  v.  People,  130  111.  Ind.     App.    116,     28    N.     E.     113; 

457.  22  N.  E.  826.  Howard    v.    Johnson,    91    Ga.    319, 

31— Baker  v.  Thompson,  89  Ga.  18    S.   E.    132;    Daft   v.   Drew,    40 

486,    15    S.    E.    644;    Hallentack   v.  111.    App.    266;    Elter    v.    Hughes, 

Hoskins,     12     la.     109;     State    v.  41  Pac.   790. 

West,    45    La.    Ann.    925,    13    So.  34— Glaze  v.  Keith,  55  Neb.  593, 

173;  Valerius  v.  Richard,  57  Minn.  76  N.  W.  15;   Smith  v.  Mohn,  87 


208  INSTRUCTIONS    TO    JURIES.  [§  277. 

damages,  unless  there  are  means  by  which  the  court  can  com- 
pute the  same,  or  where  there  is  no  dispute  in  the  evidence 
concerning  the  amount  involved,  if  a  liability  existed  at  all. 

§277.  Power  of  Court  to  Amend  a  Verdict.  A  trial  court 
of  record  possesses  power  to  amend  its  verdicts  and  to  put  them 
in  such  form  as  to  show  what  the  jury  intended,35  and  any 
irregular  and  informal  verdict  rendered  by  a  jury  will  be  sus- 
tained, if  from  looking  into  the  record  it  can  be  seen  that  it  is 
responsive  to  the  issues  in  the  case.36 

The  court  may  correct  a  mere  formal  omission  in  a  verdict 
or  other  informality  to  conform  it  in  substance  to  the  apparent 
intent  of  the  jury,37  but  the  court  cannot  alter  or  correct  a 
verdict  in  any  substantial  manner  so  as  to  change  its  effect.38 
Where  the  verdict  is  not  in  the  form  intended  by  the  jury,  the 
court  should  direct  the  jury  to  retire  and  correct  the  same  in 
accordance  with  their  intention,39  and  when  the  court  sends 
the  jury  out  again  to  bring  in  a  verdict  proper  in  form,  it  is 
held  proper  and  competent  for  a  jury  to  change  a  verdict  be- 
fore it  is  finally  recorded.40  The  court  may  amend  a  verdict 
in  a  mere  matter  of  form,  even  where  the  jury  has  been  dis- 
charged.41 

§  278.  Power  of  the  Jury  to  Amend  or  Correct  a  Verdict.  It 
is  said  that  a  verdict  is  not  valid  and  final  until  pronounced 
and  recorded  in  open  court.42    It  is  the  recorded  verdict  and 

Cal.  489,  25  Pac.  696;   McGupp  v.  Fathman  v.  Tumilty,  34  Mo.  App. 

State,     88     Ala.     147,     7     So.     35;  236;    Cox   v.   Bright,    65   Wis.   417. 

Strawn    v.    State,     14     Ark.    549;  38— Sheehy  v.  Duffy,  89  Wis.  6, 

Taylor  v.  Talman,  2  Root  (Conn.)  61  N.  W.  295;   Crich  v.  Williams- 

291;   Russel  v.  Mark,  32  Fla.  456,  burg    City    F.    Ins.    Co.,    45    Minn. 

14   So.  40.  444,  48  N.  W.  198. 

35— Swofford    Bros.     v.     Smith,  39— Strickland     Wine     Co.     v. 


etc.,  1  Ind.  Ter.  314,  37  S.  W.  103 
Armstrong  v.  Pierson,  15  la.  476 
State  v.  Underwood,  2  Ala.  744 
Harrison  v.  Jaquers,  29  Ind.  218 


Hayes,  94  111.  App.  476;  Clough  v. 
State,  7  Neb.  320;  State  v.  Ander- 
son, 24  S.  C.  109;  Ulley  v.  Smith, 
32  S.  W.  906. 


McKinney    v.    Armstrong,    97    111.  40 — People  v.  Jenkins,  36  Cal.  7; 

App.   208.  Arnold  v.  Kilchmann,  80  111.  App. 

36— State    v.    Craige,    89    N.    C.  229;Straughan   v.    State,    16    Ark. 

475;  Allard  v.  Hamilton,  58  N.  H.  37. 

416;   W.  C.  St.  Ry.  Co.  v.  Home,  41— Ezell  v.  State,  103  Ark.  216; 

100  111.  App.  259;   Wolfe  v.  Good-  Alton  v.  Dooley,  16  Mo.  App.  448; 

hue  F.  Ins.  Co.,  43  Barb.   (N.  Y.)  Gordon  v.  Higley,  Morris  (la.)  13; 

400.  Italian-Swiss  A.   C.   v.   Pease,   194 

37— People  v.  Jenkins,  56  Cal.  4;  111.  98,  62  N.  E.  317. 

O'Brien    v.    Palmer,    49    111.    72;  42— Levells    v.    State,    32    Ark. 


§  279.]  UNANIMOUS    OR    MAJORITY    VERDICTS.  209 

not  the  paper  returned  by  the  jury  into  court  which  consti- 
tutes the  finding  of  the  jury.43  For  this  reason  until  a  verdict 
is  recorded  it  is  held  to  be  within  the  power  of  the  jury  to 
change,  amend  or  correct  it,  but  not  after  it  has  been  record- 
ed.44 The  jury  may  be  allowed  to  correct  the  verdict  in  open 
court.45 

In  the  state  of  Iowa  it  is  held  that  a  sealed  verdict  is  equiv- 
alent to  a  rendition  and  recording  in  open  court,46  and  for  this 
reason  such  a  verdict  cannot  afterwards  be  corrected  by  the 
jury.    It  is  held  otherwise  in  various  jurisdictions.47 

§  279.  Sealed  Verdicts.  It  is  held  proper  for  a  jury,  under 
certain  conditions,  to  seal  their  verdict  and  separate  and  re- 
turn later  to  the  court  to  render  it,  and  a  separation  does  not 
void  a  verdict  in  absence  of  prejudice.  It  is  necessary  for  the 
entire  jury  to  be  present  in  person  and  to  deliver  the  verdict 
in  the  presence  of  the  judge.  It  is  not  proper  for  the  judge  to 
receive  it  by  an  agent,  such  as  an  attorney-at-law,  and  it  must 
be  before  adjournment  of  court  and  during  an  open  session  of 
the  court.48 

§  280.  Verdict  Returned  on  the  Sabbath  Day  May  Be  Oral 
or  Written.  A  verdict  which  has  been  made  up  and  the  de- 
liberations of  the  jury  closed  on  the  Sabbath  day  is  not  ob- 
jectionable.49 Generally  it  is  held  that  a  verdict  handed  in  on 
the  Sabbath  day  is  a  good  verdict.50  However,  in  some  courts 
it  has  been  held  that  such  a  verdict  is  not  good.51 

Unless  required  by  statute  to  be  in  writing,  an  oral  verdict 
is  valid.  The  validity  of  a  verdict  does  not  depend  upon  its 
being  reduced  to  writing.52 

585;    Settle  v.   Alison,   8   Ga.   208;  46— Miller  v.  Mabon,  6  la.  456. 

Garrett  v.   Farwell,   102   111.   App.  47— Loudy    v.    Clark,   '45    Minn. 

31.  477,  48  N.  W.  25. 

43 — Clark     v.     Lamb,     8     Pick.  48 — Jessup    v.    Chicago    R.    Co., 

(Mass.)   415;    Frederick  v.  Mecos-  82    la.    24,    48    N.   W.    77;    Ander- 

ta,    52   Mich.    529,   18   N.   W.    343;  son    v.    Hulet,    4    Colo.    App.    448, 

Brewer   &   Hoffmann   Brg.    Co.   v.  36     Pac.     309;      Pierce     v.     Has- 

Hermann,  187  111.  40,  affd.  88  111.  brouch,  49  111.  23;  Chicago  v.  Rog- 

App.  285,  58  N.  E.   397.  ers,  61  111.  188;  Stewart  v.  People, 

44— Kirk  v.  Senzig,  79  111.  App.  23  Mich.  63. 

251;  Mills  v.  Com.,  7  Leigh  (Va.)  49— Stone  v.  Bird,  10  Kan.  488. 

757;    Brooks   v.    Stephans,   100   N.  50— McCorkle   v.    State,   14    Ind. 

C.   297.  6   S.   E.   81.  39;   Baxter  v.  People,  8  111.  385. 

45 — Twomey    v.    Linnehan,    161  51 — Bass  v.  Irwin,  49  Ga.  436. 

Mass.    91,   36   N.   E.    590;    State  v.  52— Griffen    v.    Larned,    111    111. 

Baldwin,   14   S.   C.   135;    Stead  v.  432. 
Com.,  19  Graft.    (Va.)    812. 


CHAPTER   XV. 


APPEALS  AND  WRITS  OF  ERROR. 


§  281.  Appeals  and  writs  of  error     §  306. 
— Historical. 

§  282.  Right  of  appeal  purely  stat- 
utory. 

§  283.  Use  of  the  word  "appeal" 
in   modern   practice. 

§  284.  Mandamus. 

§  285.  Certification  of  questions,  a 
mode   of   appeal. 

§  286.  Writ  of  certiorari. 

§  287.  Same  subject,   continued. 

§  288.  Writ  of  certiorari  in  the 
various  States. 

§  289.  Certiorari  and  writ  of  er- 
ror  distinguished. 

§  290.  Writ  of  prohibition  and  mo- 
tion  in  error. 

§  291.  Meaning  of  word  "appeal" 
in  various  States. 

§  292.  Common  remedies  of  ap- 
peal and  error  —  Special 
remedies. 

§  293.  Notice  of  appeal. 

§  294.  Time   for   appeal. 

§  295.  Who   may  appeal. 

§  296.  Preparation  for  appeal. 

§  297.  Jurisdiction. 

§  298.  Default  and  satisfied  judg- 
ment not  appealable. 

§  299.  Grounds  for  reversal. 

§  300.  Necessity  of  making  ex- 
ceptions. 

§  301.  Bills  of  exception. 

§  302.  Office  and  purpose  of  bills 
of  exception. 

§  303.  Preparation,  signing  and 
sealing  bills  of  exception. 

§  304.  Extending  time  for  settling 
bills   of  exception. 

§  305.  Amending  bills  of  excep- 
tion. 

210 


§  308. 
§  309. 

§310. 

§311. 
§312. 

§313. 


§314. 

§315. 

§316. 
§317. 
§318. 

§319. 
§320. 
§  321. 

§  322. 
§323. 

§324. 

§325. 

§326. 


Parties  joining  in  excep- 
tions. 

Record  to  contain  all  the 
evidence 

Assignment   of   errors. 

Record  should  contain  in- 
structions. 

Presumption  in  favor  of  in- 
structions. 

Conflicting   instructions. 

Instructions  based  on  for- 
mer decisions. 

Instructions  must  be  preju- 
dicial to  be  complained 
of. 

Favorable  instructions,  or 
those  requested,  can  not 
be   complained   of. 

Erroneous  instructions  as 
affecting  appeal  remitti- 
tur. 

Abstract  of  record — What  it 
should  contain. 

Purpose  of  abstract — Must 
be  filed. 

Abstract  must  show  the  ob- 
jection to  be  considered. 

Abstract   taken   as   true. 

Brief — Requisites. 

Failure  to  file  brief — Amend- 
ments. 

Contents  of  briefs. 

Matters  reviewed  on  ap- 
peal. 

Writ  of  error  a  supersed- 
eas at  common  law. 

Application  for  supersedeas 
— How  and  when  granted. 

Separate  and  successive  ap- 
peals— Dismissals. 


§  281.]  APPEALS  AND   WRITS  OF  ERROR.  211 

§281.    Appeals  and  Writs  of  Error — Historical.     The  law 

has  usually  considered  it  an  essential  right  of  the  parties  to 
have  an  examination  of  the  judgment  upon  their  rights  in 
an  upper  court,  whenever  they  consider  themselves  to  have 
been  aggrieved  by  the  lower  tribunal.  Under  the  old  Eng- 
lish common  law  this  was  accomplished  by  bringing  the  judg- 
ments of  the  courts  of  common  pleas  and  other  inferior 
tribunals  under  review  of  the  King's  Bench  by  writ  of  error 
which  was  the  only  remedy  then  used  for  the  review  of  judg- 
ments of  these  courts,  aside  from  certain  instances  where  a 
writ  of  certiorari  or  a  writ  of  false  judgment  was  allowed.1 

The  right  to  appeal  was  unknown  to  the  common  law.  It 
had  its  origin  in  the  statutes  of  Westminster  II.2  It  is  a  pure- 
ly statutory  right  existing  only  by  reason  of  statutory  or  con- 
stitutional provisions,3  and  does  not  exist  otherwise  except 
where  specifically  provided  for,4  so  that  where  a  statute 
authorizes  appeals  only  in  equity  suits,  an  appeal  would  not 
lie  to  review  any  other  action.5 

Where  appellate  jurisdiction  extends  only  to  the  review  of 
questions  of  law,  the  determination  of  the  trial  court  on  ques- 
tions of  fact  is  conclusive,  such  findings  can  not  be  reviewed6 
except  where  the  Appellate  Court,  as  in  equity  cases,  has 
power  to  try  the  whole  case  anew  on  appeal,  both  as  to  law 
and  facts.  The  extent  of  such  power  depends  upon  statutory 
provision  to  a  large  extent. 

§282.  Right  of  Appeal  Purely  Statutory.  The  right  of 
appeal  being  purely  of  statutory  origin  and  unknown  to  the 
common  law,  does  not  exist  except  where  expressly  conferred 
by  statute.     It  is  held  not  to  be  in  conflict  with  the  constitu- 

1— Ex  parte  Henderson,  64  Fla.  v.    Bloomfield    St.    Bank,  —   Neb. 

279;    Coke's   Littleton,    288.  — ,  95  N.  W.  790;  Detroit  &  T.  S.  L. 

2—12  Edward  1,  Chap.  31;   Con-  R.  Co.  v.  Hall,   133  Mich.  302,  94 

row    v.    Schloss,    55    Pa.    St.    28;  N.  W.  1066;   City  of  Davenport  v. 

Hake  v.   Strubel,   121   111.   321,   12  The  D.  &  St.  P.  R.  Co.  37  la.  624. 

N.  E.  676.  5— Mauck    v.    Brown,    59     Neb. 

3— State  v.  Chittenden,  127  Wis.  382,  81  N.  W.  313;  Wilson  v.  Wall, 

468,     107     N.     W.     500;     Mau    v.  2   Wash.    376,    7   Pac.    857;    Mont- 

Stoner,  14   Wyo.   83,  83   Pac.  218;  gomery  v.  Thomas,  40  Fla.  450,  25 

McGaugh    v.    Halliday,     142    Ala.  So.   62. 

185,  37  So.  935;   Sullivan  v.  Haug,  6— Schendel    v.    Stevenson,    153 

82  Mich.  548,  553,  46  N.  W.  795.  Mass.   351,   36  N.  E.   689;    Cook  v. 

4— Capaul  v.  Railway,  26  Ohio  Cooper,  59  S.  C.  560,  38  S.  E.  218. 
C.  C.  578,  5  Ohio  H.  S.  262;   State 


212  INSTRUCTIONS    TO    JURIES.  [§283. 

tion  to  deny  this  right  to.  a  party,  especially  where  the  right  of 
review  on  a  writ  of  certiorari,  or  writ  of  error,  can  be  ob- 
tained.7 

The  legislature  of  the  state  may  thus  withdraw  or  regulate 
the  right  of  review  in  a  higher  court.8  The  practices  of  the 
various  states  are  conducted  under  a  great  diversity  of  stat- 
utory provisions,  but,  in  all  of  these  the  right  of  review  by 
writ  of  error  or  appeal  exists  in  some  form  or  other,  together 
with  other  special  statutory  proceedings  such  as  the  writ  of 
habeas  corpus,  bill  of  review,  certiorari,  audita  querela,  writ 
of  review,  writ  of  mandamus,  all  of  which  are  considered 
more  or  less  as  being  in  the  nature  of  appellate  procedure.9 

§283.  Use  of  the  Word  "Appeal"  in  Modern  Practice. 
The  word  "appeal"  is  used  under  our  modern  practice  in  dif- 
ferent senses.  In  its  original  and  technical  sense  it  was  a 
proceeding  in  the  civil  law  subsequently  adopted  into  equity 
practice  for  the  removal  of  a  case  from  the  lower  to  the  high- 
er court,  there  to  be  tried  de  novo.  It  virtually  amounted  to 
a  new  trial  without  any  reference  to  the  former  judgment 
or  determination  of  the  inferior  court  from  which  it  was 
removed.10 

An  appeal  removed  the  entire  case,  subjecting  the  facts  as 
well  as  the  law,  for  re-examination,  thus  differing  from  the 
common  law  writ  of  error  which  removed  nothing,  save  ques- 
tions of  law.11  In  its  most  extensive  meaning  the  word  "Ap- 
peal" includes  all  proceedings  of  any  nature  whereby  a  suit, 
action,  or  matter  of  controversy  is  reviewed  by  another  and 
higher  tribunal. 

While  there  is  a  remedy  for  every  wrong,  it  may  be  more 
ample  and  capable  of  being  pursued  further  in  some  cases  than 
in  others.  For  this  reason  it  might  be  held  that  a  trial  with- 
out any  review  would  fulfill  the  maxim.12 

§  284.  Mandamus.  The  writ  of  mandamus  cannot  take 
the  place  of  appeal  or  a  writ  of  error  and  cannot  be  resorted 

7_City  of  Minn.  v.  Wilkin,   30  10— State  v.  Doane,  35  Neb.  707, 

Minn.   140-4,  14  N.  W.   581;    Tier-  53   N.  W.   611;    U.   S.  v.   Wonson, 

ney  v.  Dodge,  9  Minn.  153,  166.  28  Fed.  675. 

g — Kepler  v.  Reinhardt,  162  Ind.  11— Works    v.    Leavenworth,    52 

504,    70    N.    E.    806;    McGaugh    v.  Neb.  418,  72  N.  W.  592. 

Halliday,  14  Ala.  185,  37  So.  935;  12— Fleshman  v.  McWhorter,  — 

Capaul  v.  Ry.,  26  O.  C.  C.  578.  W.  Va.  — ,  46  S.  E.  118. 

9— People    v.    Bacon,    18    Mich. 
247. 


§284.]  APPEALS  AND  WRITS   OF  ERROR.  213 

to  where  the  remedy  by  appeal  may  be  had13  Mandamus  is  in 
the  nature  of  supervisory  judicial  control  and  may  be  classed 
as  appellate  action  where  it  issues  to  direct  the  action  of  a 
legal  tribunal.14 

Mandamus  when  thus  used  may  be  defined  as  a  command 
issuing  from  a  court  of  law  of  competent  jurisdiction,  di- 
rected to  some  inferior  court,  requiring  them  to  do  some  par- 
ticular thing.  It  is  a  prerogative  writ  designed  to  afford  a 
remedy  where,  without  it,  the  party  would  be  subjected  to 
serious  injustice.15 

Where  it  thus  issues  to  direct  the  action  of  a  legal  tribunal, 
it  is  an  exercise  of  supervisory  judicial  control.  In  all  other 
cases  it  is  generally,  if  not  always,  considered  an  exercise  of 
original  jurisdiction.  In  this  sense  the  writ  is  regarded  as 
binding  on  the  judge  officially,  whoever  he  may  be,  at  the  time 
the  writ  is  issued  to  the  court  in  question.16 

The  writ  of  mandamus  may  issue  from  the  supreme  or  ap- 
pellate courts,  commanding  the  lower  court  to  sign  the  bill 
of  exceptions  and  correct  and  properly  present  it  within  the 
prescribed  time,17  although,  on  the  contrary,  it  has  been  held 
that  it  will  not  lie  to  command  a  judge  of  a  lower  court  to 
seal  a  bill  of  exceptions  under  the  statute  of  Westminster 
II,  but  that  the  proper  practice  is  to  have  a  special  writ  issue 
to  cover  this  exigency,  in  which  the  circumstances  of  the  case 
are  set  forth  and  the  judges  are  commanded  to  affix  their  seal, 
if  the  same  is  true.18 

The  usual  method  of  procedure  in  procuring  the  writ  of 
mandamus  is  by  petition  or  motion  to  show  cause  against  a 
person  to  whom  the  proceedings  are  directed.  The  modern 
practice  is,  after  notice  has  been  served  on  a  party  ordered 
to  do  some  particular  act,  to  present  a  petition  setting  forth 

13— Rector  v.    St.  Clair  Circuit  Marbury    v.    Madison,    1    Cranch 

Judge,   139  Mich.  156,   102   N.  W.  137. 

643;    Horton  v.   Gill,  —  I.  T.  — ,  17— People  v.  Zane,  105  111.  662; 

82   S.  W.  718.  People  v.  Anthony,  129  id.  218,  21 

14— People   v.   Bacon,    18   Mich.  N.  E    780;   Hawes  v.  People,  129 

247    (252).  id.    123,    21    N    E.    770;    People  v. 

15 — State   v.   Williams,    69    Ala.  Williams,    91    id.    87:     People    v. 

311;     King    v.    University,    1    W.  Prendergast,   117  id.  588,   6  N.  E. 

Black   K.   B.    552;    Rex   v.    Baker,  695;    People    v.    Donnelly,    59    111. 

3   Burn.    1265.  App.   413. 

16— People     v.     Bacon,     supra;  18 — Conrow   v.    Schloss,    55    Pa. 

St.   28. 


214  INSTRUCTIONS    TO    JURIES.  [§  285. 

a  clear  right  to  have  the  act  performed  and  showing  that  the 
same  is  within  the  power  of  the  person  to  do  this  act,  to- 
gether with  all  material  facts  upon  which  the  party  relies.19 

§  285.  Certification  of  Questions  a  Mode  of  Appeal.  Certifi- 
cation of  questions  was  a  provision  made  by  the  Act  of  Con- 
gress, providing  that,  upon  failure  of  the  judges  to  agree  upon 
questions  arising  during  the  course  of  the  trial,  such  ques- 
tions might  be  certified  for  decision  by  the  Supreme  Court. 
It  seems  that  the  reason  for  this  provision  arose  from  the 
fact  that  the  Circuit  Court  consisted  of  only  two  judges  and 
was  made  to  obviate  the  difficulty  which  might  arise  from 
their  failure  to  agree.20 

With  the  written  consent  of  the  parties  as  provided  by 
statute,  in  Connecticut,  questions  of  law  may  be  certified  to 
the  Supreme  Court  for  advice,  which  will  govern  the  lower 
court  in  its  judgment,  decree  or  decision.21 

In  Illinois  there  is  a  similar  provision,  when  the  majority  of 
the  judges  of  the  Appellate  Court  are  of  the  opinion  that  a 
case  decided  by  them  involving  questions  of  law  of  im- 
portance, wherein  the  judgment  is  less  than  $1,000.00,  they 
may  grant  a  certificate  of  importance,  when  an  application  is 
made  within  the  time  limit  for  appeal.22 

In  Iowa  the  trial  court  must  certify  that  the  cause  is  one 
in  which  appeal  should  be  allowed  where  the  amount  in  con- 
troversy does  not  exceed  $100.00. 23  This  certificate  must  state 
that  it  involves  the  determination  of  questions  of  law  and 
indicate  what  such  questions  are,24  and  such  certificate  must 
be  set  forth  in  the  abstract.25 

Similar  provisions  are  found  in  Kansas,26  also,  in  Indiana,27 
Maine,28  and  Massachusetts — where  it  is  provided  "that  ques- 

19_People  v.  Mayor  Ch'go,   51  W.  395;   Sibley  v.  McCausland,  81 

111.  28.  la.  757,  46  N.  W.  1072. 

20— U.    S.    Rev.    St.    1878,    Sec.  24— Benge  v.  Eppard,  110   Iowa 

651;    17  U.  S.  Stat.  196.  86,   81  N.  W.  183. 

21 — N.  Y.  &  C.  Ry.  Co.  v.  Boston  25 — Barnes  v.  Ind.  Dist,  51  Icwa 

Ry.,   36   Conn.   196;    Dowd   v.   En-  700,  1  N.  W.  618. 

sign,  68  Conn.  382,   36  Atl.   810.  26— Mo.  Pac.  R.  Co.  v.  Kimball, 

22— Kirkwood   v.   Steel,   168    111.  48  Kan.  384,  29  Pac.  604;   Loomis 

177,   49   N.   E.   193;   McLachlan  v.  v.  Base,  48  Kan.  26.  28  Pac.  1012. 

McLaughlin,  126  111.  427,  18  N.  E.  27— Woodard  v.  Baker,  116  Ind. 

544.  152,  18  N.  E.  524. 

23— Iowa  Code,  Sec.  4110;  John-  28— Me.    Rev.    St.,    Ch.    77,    Sec. 

son  v.  Marshall,  —  la.  — ,   80  N.  75. 


§  286.J  APPEALS   AND   WRITS   OF   ERROR.  215 

tions  of  law  may,  by  consent  of  parties,  be  reported  to  the 
Supreme  Court  for  determination  before  verdict."29 

In  the  federal  courts  certification  of  questions  of  the  lower 
court  to  the  Supreme  Court  is  in  use.30 

§  286.  Writ  of  Certiorari.  Where  a  party  has  been  de- 
prived of  his  right  of  appeal  without  fault  on  his  part  in  re- 
gard thereto,  as,  for  instance,  where  his  failure  to  appeal  was 
caused  by  some  act  on  the  part  of  the  opponent  and  not  with- 
in his  control,  it  is  held  that  an  appellate  court  will  take 
cognizance  of  his  case  and  review  the  same  by  writ  of  cer- 
tiorari.31 

At  common  law  a  writ  of  certiorari  was  an  original  writ 
which  issued  out  of  chancery  or  the  court  of  King's  Bench  to 
the  judges  of  inferior  courts,  commanding  them  to  return  the 
record  of  a  cause  pending  before  them,  in  order  that  the  party 
might  have  the  more  sure  and  speedy  justice.32 

It  was  not  a  substitute  for  an  appeal,  nor  intended  for  the 
purpose  of  correcting  errors  of  fact.33  In  its  nature  it  was  a 
revisory  remedy  for  the  correction  of  errors  of  law  appearing 
on  the  records,34  and  indeed,  if  the  appeal  was  based  on  the 
facts  or  merits  of  the  case,  a  writ  of  certiorari  would  not  lie, 
for  in  this  case  an  appeal  is  the  proper  remedy.35  Certiorari 
should  not  be  used  where  a  remedy  by  appeal  exists.36 

In  order  to  use  the  writ  of  certiorari,  it  is  essential  that 
the  applicant  be  a  party  to  the  record,  or  that  he  be  in  a  posi- 
tion so  that  the  decision  is  directed  against  him  or  his  prop- 
erty, or  be  a  party  constructively  in  that  the  enforcement  of 
the  decision  would  involve  special,  immediate  and  direct  in- 

29— Cowley  v.  Train,  124  Mass.  32— Dean  v.  State,  63  Ala.  153 

226,  Stat.  1869,  Ch.  438.     See  also  Smith  v.  Jones  Co.,  30  Iowa  531 

Minn.  Stat.  1894,  Sec.  1589;   N.  Y.  Hamilton   v.    Spiers,   2   Utah   225 

Code  Civ.  Pr.,  Sec.  190;  Wis.  Laws  Drawne  v.  Stimpson,  2  Mass.  441 

1897,  Ch.  1S3;  Rosenow  v.  Gardin-  Smith   v.   Smith,   101   Mo.  174,   14 

er,  99  Wis.  358,  74  N.  W.  982.  S.  W.   108. 

30— Fed.   Stat.  Mch.   3,   1891,  26  33— Dean  v.  State,   63  Ala.   153. 

U.  S.   Stat.  At.  L.  Ch.  517;   17  U.  34— Lamar   v.    Comm's,    21    Ala. 

S.  Stat,  et  al.  196,  U.  S.  Stat.  Rev.  7?2;   Qlaze  y    make>  56  Ala    379; 

Sec.     650;      Bartholomew     v.     H.  Dean  y    gtate>  63  Ala<  153 


35— Dean  v.   State,  63  Ala.  153; 
2   Bac.  Abr.   165. 


School  Trustees,  15  Fed.  304,  105 
U.  S.  6. 

31— Graves  v.  Hines,  166  N.  C. 
323,  11  S.  E.  362;  Hygienic  P.  I.  36— Clark  v.  Rosier,  10  Ida.  348, 
Mfg.  Co.  v.  Rawley  A.  L.  Ry.  Co.,  78  Pac.  358;  State  v.  Leche,  36 
125  N.  C.  17,  34  S.  E.  100.  So.   868. 


216  INSTRUCTIONS    TO    JURIES.  [§287. 

jury  to  his  interests.37  As  a  general  rule  this  writ  will  lie 
in  all  cases  where  no  other  adequate  remedy  exists  by  which 
an  erroneous  determination  can  be  reviewed.38 

§  287.  Same  Subject — Continued.  In  the  courts  of  Eng- 
land the  writ  of  certiorari  was  awarded  to  remove  any  case 
from  the  lower  courts  to  the  court  of  King's  Bench  which  had 
a  superintendence  over  all  inferior  courts  of  criminal  juris- 
diction. The  reason  for  the  existence  of  this  writ  lies  in  the 
fact  that  every  indictment  was  brought  at  the  instance  of  the 
King,  and,  consequently,  in  him  rested  the  prerogative  of  re- 
moving a  suit  to  whatever  court  he  pleased.39 

The  general  power  of  supervision  which  thus  pertains  to 
the  court  of  King's  Bench  in  England,  also  pertains  in  general 
to  the  various  courts  of  the  several  states.40  • 

The  supervising  court  from  which  the  writ  issues  must  stand 
in  the  relation  of  a  superior  court  to  an  inferior;  thus,  a  writ 
cannot  be  sued  out  from  the  federal  court  to  remove  proceed- 
ings in  a  state  court  at  the  instance  of  a  foreigner,  not  a  party 
to  the  original  suit,  for  the  reason  that  the  state  court  is  not 
an  inferior  court  to  the  federal  court  in  jurisdiction.41 

§  288.  Writ  of  Certiorari  in  the  Various  States.  In  Massa- 
chusetts it  is  held  that  the  Supreme  Court  has  as  extensive 
powers  in  respect  to  the  issuance  of  such  writs  as  the  court  of 
King's  Bench  in  England.42       So  also,  in  New  Jersey,43   in 

37— Chate     v.     Chittenden,     127  So.    947;    Price   v.    Doan,   —  Ari. 

"Wis.  468,  107  N.  W.  500-9;   People  — ,   60  Pac.   893;    Lyons  v.  Green, 

v.  Andrews,  52  N.  Y.  445;   People  6S  Ark.  205,  56   S.  W.  1075;    Peo- 

v.  Wagner,  7  Lans.    (N.  Y.)    467;  pie  v.  County  Judge,  40  Cal.  479; 

Palmer  v.  Circuit  Judge,  83  Mich.  Indiana,  etc.,  R.  Co.  v.  McCoy,  23 

528,   47  N.  W.  355;    Strong  v.  Co.  111.  App.  143. 

Coram.,    31    Me.    578;     People    v.  39 — Ex   parte    Vallandigham,    1 

Knowles,   47  N.  Y.   415;    Stone  v.  Wall.   (U.  S.)   249. 

Miller,  60  Iowa  243,  14  N.  W.  781;  40— Faut  v.  Mason,   47   Cal.   8; 

Groves  v.  Richmond,  53  Iowa  570,  Miliken    v.    Huber,    21    Cal.    169; 

5    N.    W.    763;    Welch    v.    County  Stuttmeister    v.    Superior    Ct,    71 

Court  of  Wetzel  Co.,  29  W.  Va.  63,  Cal.  323,   12  Pac.   270. 

1   S.  E.   337;    Miller  v.   Jones,  80  41— Washington     v.     Huger,     1 

Ala.   89;    Tallon  v.  Mayor  of  Ho-  Desaussure    (S.   C.)    360. 

boken,  60  N.  J.   Law  212,  37  Atl.  42— Att'y    Gen'l    v.    Boston,    123 

895;    Wood  on  Mandamus,  p.   151.  Mass.  471. 

38— Independent     Pub.     Co.     v.  43— Whitehead  v.  Gray,  12  N.  J. 

Am.  Press  Ass'n,  102  Ala.  475,  15  L.    36-41. 


§  288.]  APPEALS   AND   WRITS   OF   ERROR.  217 

North  Carolina,44  in  Pennsylvania,45  Tennessee,46  and  also,  in 
the  Federal  Courts.47 

In  Missouri  and  Massachusetts  the  writ  is  in  the  nature  of 
a  writ  of  error  and  operates  in  a  similar  manner.48  In  Mass- 
achusetts these  writs  are  issued  to  correct  errors  in  all  pro- 
ceedings that  are  not  according  to  the  courts  of  the  common 
law.49  It  is,  in  reality,  a  writ  in  the  nature  of  a  writ  of  error, 
addressed  to  an  inferior  court,  whose  procedure  is  not  accord- 
ing to  the  courts  of  the  common  law,  and  upon  its  return  the 
record  must  be  inspected  in  its  entirety  and  the  court  is  bound 
to  determine  whether  or  not  the  proceedings  are  legal  or  er- 
roneous. It  is  not  granted  as  a  matter  of  course,  but  only 
where  the  court  is  satisfied  that  substantial  justice  requires  it. 

In  New  York  the  writ  performs  the  same  duty  as  a  writ  of 
error,  at  least  in  courts  of  inferior  summary  jurisdiction.50 

Wherever  it  shall  appear  that  the  court  has  exceeded  its 
jurisdiction,  and  the  party  aggrieved  has  no  other  mode  of 
appealing  to  a  higher  tribunal,  a  writ  of  certiorari  may  be 
asked,  usually  by  motion,  or  petition,  or  by  the  filing  of  affi- 
davits. After  the  writ  has  been  ordered  and  served  on  the 
inferior  court  it  devolves  upon  such  court  to  transmit  a  com- 
plete transcript  of  the  record  of  the  proceedings  to  the  court, 
granting  the  writ.51  Upon  the  return  of  the  writ  the  cause 
is  reviewed  on  the  record  only.  The  writ  of  certiorari  will 
lie  in  all  cases  where  the  petition  alleges  want  of  jurisdiction 
of  the  parties  or  subject  matter.  All  questions  of  fact  cannot 
be  reviewed  by*  writs  of  certiorari. 

In  Texas  it  was  held  that  after  an  appeal  has  been  submit- 
ted the  record  may  be  perfected  by  certiorari  so  as  to  incor- 
porate therein  the  judgment  of  the  trial  court  which  had  been 
omitted  and  thereby  give  the  appellate  court  jurisdiction  of 
the  appeal.52 

44— State  v.    Swepson,   83  N.  C.  49— Gen.  Stat.  Mass.,  c.  145,  S  8; 

587.  Farmington     v.     Co.     Corn's,     112 

45— Com.  v.   Balph,   111   Pa.   St.  Mass.    206-212. 

365,  3  Atl.  220.  50— Stone    v.    N.    Y,    25    Wend. 

46— Bab.     v.      State,      2      Yerg.  (N.  Y.)    167. 

(Tenn.)    173.  51— Dooly     v.     Martin,    28    Ind. 

47— U.    S.    Stat,   at  Large,   1889-  189;    Hay  v.   Lewis,   39  Wis.   364; 

91,  p.  828,  c.  517,  §  6.  Evans     v.     Morris,     6     Mich.     69; 

48— C.    R.    I.    &    P.    R.    Co.    v.  Wood  v.  Newkirk,  15  Ohio  St.  295. 

Young,  96  Mo.  39.  43,  8  S.W.  776;  52— St.    L.    R.    Co.    v.    Wills,    — 

Farmington     v.     Co.     Corn's,     112  Tex.  Civ.  App.  — ,  30  S.  W.  248. 
Mass.  206-212. 


218  INSTRUCTIONS    TO    JURIES.  [§  289. 

Wherever  an  omission  or  defect  appears  in  the  record,  the 
court  of  review  may  of  its  own  motion  issue  a  writ  of  certiorari 
to  the  lower  court  to  make  the  necessary  corrections.53  Where 
notice  has  been  served  on  opposing  party  and  statements  show- 
ing defects  in  record  have  been  filed  with  the  upper  court, 
the  writ  of  certiorari  will  be  issued.54 

§  289.     Certiorari  and  Writ  of  Error  Distinguished.    It  may 

be  held  as  a  general  proposition  that  a  writ  of  error  lies  where 
the  proceedings  are  according  to  the  common  law.  In  all  other 
cases  the  proper  writ  to  review  the  action  is  that  of  certiorari. 
These  two  writs  are  similar  in  that  no  one  but  a  party  to  the 
record  has  a  right  to  maintain  them,  the  one  being  a  matter 
of  right  while  the  other,  the  writ  of  certiorari,  is  a  mere  mat- 
ter for  the  sound  discretion  of  the  court  to  grant  or  refuse.55 

§  290.  Writ  of  Prohibition  and  Motion  in  Error.  A  motion 
in  error  which  is  in  use  in  Connecticut  can  scarcely  be  dis- 
tinguished from  a  writ  of  error,  excepting  that  it  is  held  in 
some  respect  more  convenient  and,  perhaps,  less  expensive.56 
Prohibition  will  not  lie  where  appeal  or  error  can  be  used  as 
a  remedy.57 

The  common  practice  in  relation  to  the  procuring  of  a  writ 
of  prohibition  is  upon  a  motion  to  show  cause  served  upon 
the  adverse  party,  why  the  writ  should  not  issue,58  and  in  the 
absence  of  statutory  provisions59  this  practice  is  still  appli- 
cable.60 

The  usual  modern  practice  is  that  any  person  aggrieved 
may  apply  to  the  court  empowered  to  issue  such  writs  by 

53 — Porter   v.    Garrett,   1   Green  burg,     11     Mass.     379;     Grant    v. 

(la.)    3CS;    Franklin   Academy    v.  Chamberlain,  4  Mass.  611;  Haines 

Hall,  16  B.  Mon.   (Ky.)  377;  State  v.   Corlis,   4   Mass.  659;    Glover  v. 

v.  Becile,   119   N.  C.  809,   25   S.   E.  Heath,  3  Mass.  252. 

815;  Toledo,  etc.,  R.  Co.  v.  Chenoa,  56 — Finch     v.     Ives,     24     Conn. 

43  111.    209;    Phelps  v.   Osgood,   34  387. 

Ind.    150;    Green   v.    Bulkley,    23  57— State  v.  Tallman,  38  Wash. 

Kan.    130.  132,   80  Pac.  272. 

bl — Brown  v.  Lathrop,  84  Iowa  58 — Stadford  v.  Neale,  Stra.  482. 

431;  Allen  v.  McLendon,  113  N.  C.  59— S.     C.     Soc.    v.    Gurney,     3 

319,    18    S.    E.    205;    Waterman  v.  Rich.  S.  C.   (N.  S.)   51. 

Raymond,  40  111.  63.  60 — Buggin     v.     Bennett,     Burr 

55 — Bath  Bridge  Tp.  Co.  v.  Ma-  2037;    ex  parte   Williams,   4   Ark. 

goun,   8  Me.  292;   Porter  v.  Rum-  537. 
ery,  10  Mass.  64;  Shirley  v.  Lunen- 


§291.]  APPEALS  AND   WRITS  OF   ERROR.  219 

petition  or  information,  verified  by  affidavit01  and  upon  hear- 
ing of  the  matter  involved,  the  court  will  grant  such  writs 
prohibiting  the  inferior  court  from  further  proceeding  in  the 
matter  in  question.62 

The  effect  of  this  rule  upon  subordinate  courts  was  to  stay 
all  proceedings  therein  and  upon  the  return  thereof  the  rule 
would  be  made  absolute  or  discharged,  as  might  be  deemed 
proper,63  and  if  the  point  involved  appeared  doubtful,  the  pe- 
titioner might  be  ordered  to  state  facts  upoa  which  he  relies, 
so  they  could  be  either  admitted  or  denied  by  the  adverse 
party.  The  petition  should  show  a  clear  right,  that  the  peti- 
tioner has  no  other  legal  remedy,64  and  that  the  act  requested 
is  within  the  power  of  the  inferior  court  to  perform.65 

The  usual  course  of  pleadings  would  then  follow  and  the 
matter  be  decided  either  upon  plea,  demurrer  or  on  its 
merits.  If  it  then  appeared  to  the  court  that  there  was  a  suf- 
ficient ground  for  the  petition  in  point  of  law,  it  would  be 
granted.66 

Habeas  Corpus  can  not  be  used  where  the  remedy  by  appeal 
is  adequate.67 

§291  Meaning  of  Word  "Appeal"  in  Various  States.  The 
word  appeal  under  the  various  statutory  provisions  is  used  to 
designate  a  review  by  writ  of  error  or  a  proceeding  by  appeal 
in  equity  and  differs  greatly  in  the  various  jurisdictions. 

In  Arkansas  it  is  held  that  the  word  appeal  refers  to  actions 
at  law,  although  it  is  a  term  expressly  derived  from  the  civil 
law,  which  is  purely  statutory.68  In  Connecticut  the  word 
appeal  has  been  used  to  designate  the  procedure  for  review  of 
questions  at  law.69    In  New  York  it  is  held  that  an  appeal  is  a 

61 — Ex  parte   Williams,   4   Ark.  had    no    jurisdiction    or    has    ex- 

537;    Birch  v.    Hartung,   23    Gratt.  ceeded   its   jurisdiction. 

51;     Doughty    v.    Walker,    54    Ga.  Ex  parte  Smith,  23  Ala.  94;   ex 

595.  parte  Reid,   50  Ala.   439;    State  v. 

62— Mayo  v.  James,  12  Gratt.  17.  Rightor,  44  La.  Ann.  298;   State  v. 

63-People  v.  Thompson,  25  Probate  Ct<  19  Minn'  117-'  State 
Barb    73  v.    Ward,    70   Minn.    58,   72   N.   W. 

825;  Walcott  v.  Wells,  21  Tex.  47; 
64-People  v.  Mayor  of  Ch'go,  51     people  y   Westbrook>  89  N_  Y  152> 

I1L  28"  67— Gillespi    v.    Rump,    163    Ind. 

65 — Ex   parte   Williams,   4   Ark.     457    72  n.  E.  138. 
637.  6g — Carnall  v.  Crawford    County, 

66 — Wherever    on    the    face    of     11   Ark.   604. 
the    record    it    appears    the    court         69 — White    v.    Howd,    66    Conn. 

264,  33  Atl.  915. 


220  INSTRUCTIONS    TO    JURIES.  [§292. 

substitute  for  the  writ  of  error.  "It  is  the  method  by  which 
all  mistakes  in  the  judgment  of  an  inferior  court  are  rectified, 
except  when  otherwise  provided."70 

In  Nebraska  the  word  appeal  is  confined  under  the  statutes 
to  suits  in  equity  and  does  not  extend  to  actions  at  law.71  "It 
designates  the  particular  form  of  review  whereby  a  case  is 
transferred,  after  decision,  to  a  higher  court  for  re-examination 
of  the  whole  proceeding  and  for  final  judgment  or  decree,  in 
accordance  with  $ie  result  of  such  re-examination."72 

In  Ohio  the  appeal  itself  ' '  vacates  the  whole  proceeding  as  to 
findings  of  fact  as  well  as  law,  and  the  case  is  heard  upon  the 
same  or  other  pleadings  and  upon  such  competent  testimony 
as  may  be  offered  in  that  court.  The  whole  subject  is  taken 
up  de  novo  in  respect  to  pleadings,  necessary  .parties,  trial  and 
judgment,  in  like  manner,  as  if  the  cause  had  never  been  tried 
before."73 

In  Pennsylvania  it  has  been  held  that  the  appeal  brings  up 
the  whole  case  and  not  merely  the  records.74 

§  292.  Common  Remedies  of  Appeal  and  Error — Special 
Remedies.  The  supreme  courts  have  conferred  upon  them  ap- 
pellate jurisdiction  only  in  cases  of  chancery  and  are  courts 
for  the  corrections  of  errors  in  actions  at  law.75  As  a  general 
rule,  this  may  be  said  to  be  true  of  all  appellate  courts,  and, 
aside  from  this,  they  have  especially  conferred  upon  them,  ap- 
pellate jurisdiction  from  all  inferior  courts  and  tribunals,  to- 
gether with  a  supervisory  control  over  the  same.  They  also 
have  the  power  to  issue  writs  of  habeas  corpus,  mandamus,  in- 
junction, quo  warranto,  certiorari,  and  all  other  writs  neces- 
sary to  give  them  general  control  over  inferior  courts  and 
tribunals.76 

If  the  common  remedies  of  appeal  and  error  are  adequate, 
they  should  be  used  and  it  is  considered  obligatory  upon  the 

70 — People    v.    Justices,    2    Abb.  74— Springer     v.     Springer,     43 

Pr.  N.  Y.  126.  Pa.    St.    518. 

71 — Cary  v.  Kennedy  Natl.  Bank,  75 — Sherwood    v.    Sherwood,    44 

59  Neb.  169,  80  N.  W.  484;  Whalen  Iowa  192;    Const,  of  Iowa,  Art.  5, 

v.  Kitchen,  61  Neb.  329,  85  N.  W.  §    4;     Mauck    v.    Brown,    59    Neb. 

278;   State  v.  Bloomfield  St.  Bank,  382,  81  N.  W.  313;  Wilson  v.  Wall, 

_  Neb.  — ,  95  N.  W.  7S0.  2    Wash.    376,    7    Pac.    857;    Mont- 

72 — Neb.  L.  &  T.  Co.  v.  Lincoln  gomery  v.  Thomas,  40  Fla.  450,  25 

R.  Co.,  53  Neb.  246,  73  N.  W.  546.  So.  62. 

73 — Mason     v.      Alexander,      44  76 — Const,   of  Wis.,   Art.  7,   Sec. 

Ohio  St.  318,  7  N.  E.  435.  8;    Const,  of  Mich.,  Art.  6,  Sec.  8. 


§  293.] 


APPEALS   AND    WRITS   OF   ERROR. 


221 


parties  to  use  such  remedies  and  not  the  special  or  extraordi- 
nary methods  of  review.77 

In  the  absence  of  any  provision  making  an  appeal  the  sole 
remedy  of  the  common  law  the  right  of  writ  of  error  may  still 
be  used,78  but  where  the  method  provided  by  statute  is  ex- 
clusive it  supersedes  all  others  and  writs  of  error  cannot  be 
used.70  The  suing  out  of  a  writ  of  error  is,  in  reality,  the  be- 
ginning of  a  new  suit.80 

§293.  Notice  of  Appeal.  A  notice  of  appeal  is  usually 
made  to  the  opposite  party  when  the  appeal  is  prayed  in  open 
court.  It  may,  however,  be  served  and  returned  in  the  same 
manner  as  an  original  notice  in  a  similar  action,  and  filed  in 
the  office  of  the  clerk  of  the  court  in  Which  the  judgment  ap- 
pealed from  was  rendered.81 

This  has  been  held  merely  directory  and  not  affecting  the 
appeal  by  non-compliance  therewith,82  and,  where  one  is  not 
thus  served,  the  appeal  cannot  be  prosecuted  as  to  him.83  The 
notice  must  be  signed  by  the  appellant  or  his  attorney  or  the 
appeal  will  be  invalid  and  the  court  without  jurisdiction,  even 
though  the  notice  is  accepted  by  attorney  for  the  appellee.84 
The  service  of  notice  of  appeal  and  its  return  follows  very 
closely  the  general  method  in  civil  actions.  A  failure  to  give 
such  notice  does  not  always  cause  a  dismissal,85  neither  does  a 
defective  return  cause  a  dismissal.86 


77— State  v.  J.  C.  of  Tp.  No.  1, 
31  Mont.  258,  78  Pac.  498;  State 
v.  D.  C.  of  Ramsey  Co.,  40  Minn.  5, 
40  N.  W.  889. 

78— Molony  v.  Dows,  6  N.  Y. 
Abb.   Pr.   86. 

79 — Munson  v.  Mudgett,  14 
Wash.  666,  45  Pac.  306. 

80— Eau  Claire  C.  Co.  v.  W.  Br. 
Co.,  213  111.  561,  73  N.  E'.  430. 

81— Code  of  Iowa  1897,  Sec. 
4115;    R.  S.  Wis.  Sec.  3049. 

82— Littleton  Sav.  Bank  v.  Os- 
ceola Land  Co.,  76  Iowa  660,  39 
N.  W.  201. 

83 — Baxter  et  at.  v.  Rollins,  110 
Iowa  310,  81  N.  W.  586. 

84 — State   Sav.  Bank  v.  Ratcliffe, 

112  Iowa  662;   Hogueland  v.  Arts, 

113  Iowa  634,  85  N.  W.  18;  Amer- 


ican Emigrant  Co.  v.  Long,  105  id. 
194,  74  N.  W.  940;  Yates  v.  Shep- 
adson,  37  Wis.  315;  Koch  v.  Hus- 
tis,  110  Wis.  62,  85  N.  W.  643. 

85 — Failure  to  give  notice  of  ap- 
peal is  held  not  a  jurisdictional  de- 
fect and  in  regard  to  appeals  in 
chancery,  it  does  not  entitle  the 
appellee  to  a  dismissal  as  a  matter 
of  right. 

Simpson  v.  Mansfield,  etc.,  R.  R. 
Co.,  38  Mich.  626;  Garratt  v.  Litch- 
field, 10  Mich.  451;  Shook  v. 
Proctor,  26  Mich.  283. 

86 — An  improper  return  has 
been  held  a  cause  for  dismissal. 
Tenney  v.  Madison,  99  Wis.  539, 
75  N.  W.  979;  Ryan  v.  Philippi, 
108  Wis.  254,  83  N.  W.  1103. 


222  INSTRUCTIONS    TO    JURIES.  [§  294. 

§  294.  Time  for  Appeal.  The  time  within  which  an  appeal 
must  be  prayed  and  perfected  is  regulated  by  statute.87  An 
appeal  not  perfected  within  the  prescribed  time  in  absence  of 
any  statutory  provision  or  excuse  relieving  such  party,  will 
be  dismissed.88 

This  prescribed  time  is  in  the  nature  of  a  statute  of  limita- 
tion and  will  bar  further  appeal.89  It  is  generally  held  that 
infants,  married  women,  and  lunatics,  and  persons  who  are 
under  disability,  are  not  concluded  by  this  statute.  In  order 
to  secure  the  benefit  from  such  disability  it  must  be  especially 
pleaded  on  appeal.90  Appeal  may  be  prayed  at  any  time  dur- 
ing the  term  of  the  court  at  which  the  judgment  was  ren- 
dered.91 In  computing  the  time  within  which  the  transcript 
of  the  record  must  be  filed,  the  day  on  which  the  judgment 
was  rendered  and  not  the  last  day  of  the  term  is  taken.92 

The  time  within  which  an  appeal  must  be  taken  is  computed 
from  the  day  on  which  judgment  was  rendered  and  excluding 
it.93  The  general  rule  seems  to  be  that  the  time  for  appealing 
can  not  be  extended  by  the  court  of  appeals,94  and  also,  it  is 
held  that  the  lower  court  is  without  power  to  extend  the  statu- 
tory time,  unless  such  power  is  specially  granted  by  statute.95 

Negligence  of  counsel  causing  a  delay  is  no  excuse  for  a  fail- 
ure to  perfect  the  appeal  in  time.  In  some  jurisdictions  it  is 
held  that  the  time  for  appealing  may  be  extended  by  agree- 
ment of  parties.96  In  other  states  it  is  held  no  such  agreement 
extending  time  for  appeal  will  be  recognized,97  and  an  ex- 
pected agreement  for  extension  of  time  will  not  excuse  per- 
fecting the  appeal  in  time. 

87— Smith  v.   Boswell,   117  Ind.  92— T.  P.  &  W.  R.  v.  Coomers, 

565,   20  N.  E.   263.  40    111.    27. 

88 — Young    v.    Rann,    111    Iowa  93 — Bennett   v.    Keene,    67   Wis. 

253,  82  N.  W.  785;   James  v.  Dex-  154,     29    N.    W.     207;     Ritche   .v. 

ter,  112  111.  489.  Fisher,  85  Iowa  560,  52  N.  W.  505. 

89 — Young   v.    Rann,    111    Iowa  94 — Burns   v.   Pinney,   53   Minn. 

2E3,    82    N.    W.    785;     Carney    v.  432,  55  N.  W.  540;   Van  Steenwyck 

Baldwin,   95  Mich.  442,   54  N.  W.  v.  Miller,  18  Wis.  320. 

1081.  95— Atty.    Gen.    v.    Barber,    121 

90— Vordermark    v.     Wilkinson,  Mass.  568. 

147  Ind.  56,  46  N.  E.  336.  96— Adams  v.  Reeves,  74  N.   C. 

91— Balance  v.   Frisby,   1   Scam.  406. 

595;    McMillan  v.   Bethold,   40   111.  97— Hall     v.     Gilman,     90    Wis. 

34;    I.    C.    R.    v.    Johnson,   40    111.  455,  63  N.   W.  1044;   Louisville  v. 

35.  Boland,     70    Ind.    595;     Tootle    v. 

Shiry,  52  Neb.  674,  72  N.  W.  745. 


§  295.]  APPEALS   AND   WRITS   OF   ERROR.  223 

The  extending  of  time  for  a  bill  of  exceptions  is  not  the  same 
as  extending  the  time  fixed  by  statute  for  appealing.98 

As  a  general  rule  the  failure  of  an  officer  to  do  an  act  not 
required  by  law  of  him  will  not  extend  the  time  for  an  ap- 
peal." So,  also,  the  failure  of  the  clerk  to  make  out  a  tran- 
script in  time  will  not  excuse  a  party  who  has  failed  to  perfect 
his  appeal  in  proper  time.100  Nor  will  the  fact  that  there  was 
some  difficulty  in  finding  the  judge  before  whom  the  bill  should 
be  signed.1 

The  general  rule  seems  to  be  that  in  order  for  the  appellee 
to  take  advantage  of  the  defense  that  the  appeal  was  not  taken 
in  proper  time,  a  motion  to  dismiss  must  be  made,2  but  where 
it  appears  from  the  face  of  the  record,  it  has  been  held  in  some 
jurisdictions,  the  court  will  of  its  own  motion  dismiss  such 
appeal.3 

§  295.  Who  may  Appeal.  As  a  general  rule  only  those  may 
appeal  who  are  the  original  parties  or  their  legal  representa- 
tives of  record,4  but  the  real  test  goes  further  and  takes  in  per- 
sons who  are  aggrieved  or  who  have  some  interest  of  a  sub- 
stantial nature  adverse  to  the  judgment.5  Thus,  an  executor  is 
held  to  be  a  party  who  may  appeal  from  an  order  of  distribu- 
tion where  the  estate  is  not  sufficient  to  meet  the  claim,6  but 
persons  who  suffer  no  loss  by  the  judgment,  or  who  are  in  no 
manner  affected  thereby,  can  not  appeal.7  A  legal  interest 
must  exist  which  may  be  affected  by  the  judgment  appealed 
from.8 

In  some  states  the  statutes  expressly  confer  upon  "every 
person  aggrieved  by  any  final  judgment  or  decree  in  any  civil 
cause"  the  right  to  appeal  therefrom.9 

98 — Jackson   v.    Hasely,   87   Fla.  guson   v.   Lucas   County,   44    Iowa 

205,   9   So.  648.  701;  People  v.  Ry.  Com.,  160  N.  Y. 

99— Cameron  v.  Calkins,  43  202,  54  N.  E.  697;  State  v.  Bloom- 
Mich.   191,  5  N.  W.  292.  field   St.  Bank,  —  Neb.  — ,  95  N. 

100--Redway    v.    Chapman,    48  W.   791. 

Mo.   218.  5 — Harrigan     v.     Gilchrist,      — 

1— Reliable  v.  Goldstein,  110  Ga.  Wis.  — ,  99  N.  W.  909. 

265,  34  S.  E.  279.  6— In    re   Murphy's   Estate,    145 

2— Teller    v.    Willis,     12    Mich.  Cal.  464,  78  Pac.  960. 

268;   Telford  v.  Ashland,  100  Wis.  7 — Demarest     v.     Holdman,     34 

238,  75  N.  W.  1006.  Ind.     App.     685,     73     N.     E.     714; 

3 — Marder   v.    Campbell   P.   Co.,  Heidbreder  v.   Sup.    In.   Stor.   Co., 

76    111.    App.    431;    Atty.    Gen.    v.  —  Mo.  — ,  83  S.  W.  469. 

Barber,  121  Mass.  568.  8— Abb.  App.  97  Me.  278,  54  Atl. 

4 — Shabanaw  v.   Thompson   Co.,  755. 

80  Iowa  621,  50  N.  W.  781;    Fer-  9— Cir.  Pro.    (N.   C),   Sec    '347: 


224  INSTRUCTIONS    TO    JURIES.  [§  295. 

In  the  County  Courts  of  Illinois  a  similar  right  to  appeal 
seems  to  obtain,10  but  the  statutory  privilege  of  appeal  is  held 
in  that  state  to  extend  only  to  the  parties  to  the  suit.11 

A  party  seeking  to  reverse  a  judgment  must  have  been  in 
some  manner  injured  thereby.  The  fact  that  error  is  com- 
mitted will  not  be  sufficient  to  warrant  him  in  making  an  ap- 
peal, unless  he  has  suffered  some  disadvantage  thereby.12  For 
this  reason  it  is  held  that  a  party  who  has  parted  with  all  his 
interest  in  the  controversy  can  not  appeal.  His  right  is  ter- 
minated whenever,  during  the  progress  of  the  case,  his  interest 
is  at  an  end.13 

One  who  is  not  a  party  is  under  the  necessity  to  make  him- 
self a  party  to  the  suit  in  order  to  prosecute  an  appeal  either 
on  motion  or  otherwise,  and  if  his  motion  is  denied,  he  may 
properly  appeal  from  such  decision  and  in  this  way  bring  him- 
self within  the  jurisdiction  of  the  court,14  and,  even  though 
the  persons  are  the  real  parties  in  interest,  as  for  instance,  an 
action  should  be  brought  by  "A"  for  the  use  of  "B,"  yet  such 
unnamed  person  would  not  be  entitled  to  bring  an  appeal.15 

The  only  remedy  for  one  who  is  not  a  party  to  secure  a  hear- 
ing on  appeal  is  to  secure  a  substitution  of  his  name  upon  the 
record  in  place  of  the  party.  It  is  requisite,  however,  that  such 
substituted  party  make  a  showing  that  he  is  aggrieved  by  the 
judgment  or  ordinance  appealed  from,  and  before  he  can  be 
said  to  be  thus  aggrieved,  it  must  be  shown  that  the  judgment 
of  which  he  complains  had  some  binding  force  upon  his  person, 
his  property  or  his  rights.  It  must  affect  him  in  a  greater 
measure  than  a  mere  remote  or  contingent  liability.16 

It  has  already  been  stated  that  only  the  actual  party  to  the 
record,  or  the  aggrieved  party,  may  appeal.  Not  infrequently, 
however,  it  transpires  that  both  parties  find  cause  for  appeal 
by  reason  of  some  ruling  or  error  occurring  in  the  trial,  and 

Mo.   Rev.   Stat.,   Sec.   3710;    Nolan  Fund  Society,  24  Ind.  78;  Masonic 

v.    Johns,   108   Mo.   431,   18   S.  W.  Temp.    Co.   v.    Com.,   11    Ky.   Law 

1107.  Rep.   383,   12   S.  W.   143;    Bush  v. 

10— Weir  v.  Gand,   88   111.   490.  Rochester  City  Bk,  48  N.  Y.  659. 

11— Anderson  v.  Steger,  173  111.  14— People  v.  Grant,  45  Cal.  9~7. 

112,  50  N.  E.  665.  15— Yarish  v.  Cedar  Rapids  Ry. 

12— Morrison    v.    N.    Y.    El.    Ry.  Co.,    72    Iowa    556,    34    N.    E.    417; 

Co.,  57  N.  Y.  St.  Rep.  246;  Hooper  Union  Nat.   Bk.  v.  Barth,  179  111. 

v.  Beecher,  109  N.  Y.  609,  15  N.  E/  83,  53  N.  E.  615,  afl'g  74  111.  App. 

742.  383. 

13— Traders'  Ins.  Co.  v.  Carpen-  16— Ross  v.  Wigg,  100  N.  Y.  243- 

ter,  85  Ind.  350;  Meikel  v.  Gr.  Sav.  3  N.  E.  180. 


§295.]  APPEALS   AND   WRITS   OF   ERROR.  225 

both  parties  secure  a  re-examination  of  their  respective  con- 
tentions in  the  appellate  court.  Where  the  one  party  has  prose- 
cuted an  appeal  to  a  final  determination,  the  other  party  is  pre- 
cluded thereby  and  can  not  afterwards  have  an  appeal,17  nor 
can  a  party  who  has  appealed  again  bring  up  the  case  for  re- 
view after  a  final  determination  thereon  in  the  absence  of  the 
occurrence  of  new  proceedings  in  the  case.18  This  rule,  of 
course,  does  not  affect  the  right  of  appeal  for  the  second  time 
in  the  same  case  where  a  new  trial  has  been  ordered  on  the 
first  appeal.19 

A  party  may  prosecute  a  writ  of  error  to  reverse  a  judg- 
ment in  his  own  favor,  or  may  appeal  from  the  same,  as,  for 
instance,  where  he  has  not  obtained  all  he  thinks  himself  en- 
titled to,20  but,  as  a  usual  rule,  where  the  decree  is  in  the 
party 's  favor,  he  is  not  entitled  to  an  appeal  and  if  he  does  ap- 
peal the  judgment  will  not  be  reversed  when  made  upon  a 
finding  of  facts,21  nor  can  he  review  findings  of  facts  in  his 
own  favor.22 

An  appeal  cannot  be  allowed  merely  for  the  reason  that  the 
appellant  is  without  a  remedy,  as  the  court  has  no  such  inherent 
power  in  the  absence  of  statutory  provisions.23  The  right  to 
appeal  is  a  creature  of  the  legislature,  created  by  and  subject 
to  regulation  or  withdrawal  at  any  time  by  the  legislature,  and 
its  withdrawal  is  retroactive  in  effect  upon  all  pending  cases. 
It  is  held,  however,  that  the  withdrawal  of  the  right  of  appeal 
has  no  application  to  cases  upon  which  final  judgment  has 
been  rendered  prior  to  the  taking  effect  of  such  act,  unless 
the  terms  of  the  statute  specifically  show  such  intent.24 

Under  this  theory  that  the  right  of  appeal  is  purely  statutory 

17— Mooney  v.  Brinkley,  9  Ark.  92;   D.  &  T.   S.  L.  R.  Co.  v.  Hall, 

449;    Page  v.   People,   99    111.   418;  136  Mich.  302,  94  N.  W.  1066. 

Home   v.    Harness,    18    Ind.    App.  21 — Williams    v.    Breitung,    216 

214,    47   N.    E.   688.  111.  299,  76  N.  E.  1060. 

18— Ford  v.  David,  13  How.  Pr.  22— In   re  Jenks,  129   Iowa  139, 

N.    Y.    193;    Smith    v.    Shafer,    50  105   N.  W.  396. 

Md.    132;    Davis    v.    Alexander,    1  23— Darnell  v.  Lafonte,  113  Mo. 

Iowa   Gr.   86;    Meikel   v.   Gr.   Sav.  App.  282,  89  S.  W.  784. 

Fund,    24   Ind.  78.  24— Keplar  v.  Reinhart,  162  Ind. 

19— Ford   v.   David,   supra.  504,  70  N.  E.  806;   Evansville  Ry. 

20— Fleshman    v.    McWhorter,  46  v.    Terre    Haute,    161  Ind.    26.    67 

S.  E.  116,  54  W.  Va.  161;    Maxon  N.    E.    86;    McGaugh    v.    Holiday, 

v.  Gates,   118  Wis.   238,   95  N.  W.  —  Ala.  — ,  37  So.   935;    Cooley  v. 

Penn.     R.,     81     N.     Y.     Sup.     692; 

15 


226  INSTRUCTIONS    TO    JURIES.  [§  296. 

in  its  origin,  it  is  held  that  all  the  requirements  of  the  statute, 
in  order  to  secure  and  perfect  an  appeal,  must  be  strictly  com- 
plied with.25 

§  296.  Preparation  for  Appeal.  To  successfully  prosecute 
an  appeal  it  is  necessary  that  the  party  appealing  should  have 
laid  a  foundation  for  such  action,  or,  in  other  words,  should 
have  the  errors  complained  of  appear  in  the  record  clearly  and 
distinctly.  There  may  be  errors  omitted  in  the  trial  of  the  case 
which  cannot  be  brought  up  for  review  on  appeal,  mainly  for 
the  reason  that  there  is  nothing  appearing  in  the  record  to 
show  such  errors. 

Care  should  be  taken  to  make  the  objections  offered  as  spe- 
cific as  possible  and  also  to  have  the  ruling  of  the  court  upon 
such  objections  appear.  A  decision  of  some  sort  must  be  se- 
cured from  the  court  upon  the  objections,  motions,  or  requests, 
or,  if  there  is  a  refusal  to  decide,  it  must  be  shown  that  such 
refusal  was  wrong.  It  can  hardly  be  said  that  the  court 
wrongfully  refused  to  decide,  unless  the  matter  was  brought 
to  the  attention  of  the  court  in  the  proper  manner.26 

The  ruling  upon  the  objection  complained  of,  in  order  to 
constitute  a  valid  ground  of  complaint,  must  have  been  inter- 
posed by  the  complaining  party.27 

It  is  further  necessary  that  the  objection  should  be  followed 
by  an  exception  to  the  ruling  of  the  court  thereon,  when  ad- 
verse. An  exception  is,  in  reality,  a  formal  notice  or  state- 
ment, indicating  that  the  party  intends  to  abide  by  his  objec- 
tion and  to  present  the  question  to  an  appellate  court  for  re- 


view.28 

The  objection  must  call  forth  and  secure  a  decision  or  ruling 
and  the  exception  must  then  follow,  or,  as  a  rule,  it  will  be 
unavailing  on  appeal. 

§  297.  Jurisdiction.  Matters  which  are  merely  discretion- 
ary and  not  final  in  the  case,  are  held  not  appealable.  Thus, 
it  has  been  held  that  a  motion  to  vacate  a  verdict  is  not  appeal- 

Capaul  v.  Ry.,  26  Ohio  C.  C.  578;  27— Carr  v.  Boone,  108  Ind.  241, 

Carr  v.  Miner,  40  111.  33;    City  of  9  N.  E.  110. 

Dvpt.  v.   The   D.   &   St.   P.  R.  Co.,  28— Johnson    v.    McCullough,    89 

37  Iowa  624.  Ind.  270;    Hull  v.  Louth,  109   Ind. 

25— Ark.  Ry.  v.  Powell,  104  Mo.  315,  10  N.  E.  270;   Augusta  Co.  v. 

App.  362,  80  S.  W.  336.  Andrews,  89  Ga.  653,  16  S.  E.  203; 

26— Gilbert  v.  Hall,  115  Ind.  549,  State  v.  Cent.  R.  Co.,  17  Nev.  259, 

18  N.  E.  28.  30  Pac.  887. 


§  298.]  APPEALS   AND   WRITS   OP   ERROR.  227 

able.29  The  character,  value,  or  subject  matter  of  the  action 
determines  whether  or  not  a  case  is  appealable  and  according 
to  the  circumstances,  a  case  may  either  go  to  the  intermediate 
or  highest  court.  Consent  of  parties  will  not  confer  juris- 
diction upon  the  appellate  courts,30  and  an  appeal  from  the 
court  which  had  no  jurisdiction  over  the  case  will  confer  no 
jurisdiction  upon  the  appellate  court.31 

It  is  held  competent  for  parties  or  their  attorneys  to  stipulate 
even  in  advance  of  the  trial,  that  there  will  be  no  appeal  from 
the  judgment  rendered  and  such  agreements  have  been  held 
binding  and  not  against  public  policy.32 

A  default  judgment  can  not  be  appealed  from,33  nor  is  a 
judgment  by  consent  appealable.34  To  be  appealable  the 
merits  of  the  case  must  be  involved.  Thus,  it  is  held  that  mere 
irregularities,  as,  for  instance,  a  refusal  to  quash  the  array  of 
jurors,  are  not  appealable.35 

§298.     Default  and    Satisfied    Judgments    not    Appealable. 

Default  judgment  cannot  be  appealed  from,36  although,  where 
the  default  occurred  by  reason  of  defective  service  of  process 
and  appellant  shows  by  affidavit  the  failure  to  serve  the  sum- 
mons, an  appeal  may  be  allowed  on  default.37  Nor  can  judg- 
ment by  default  be  appealed  from  by  consent,38  but  the  fact 
that  defendant  confesses  judgment  would  not  operate  to  bar 
another  interested  person  from  appealing  in  the  proper  in- 
stance.39 

In  order  to  be  appealable  the  merits  of  the  case  must  be  in- 
volved and  mere  irregularity,  as,  for  instance,  the  refusal  of 
the  court  to  quash  the  array  of  jurors,  is  held  not  to  be  ap- 
pealable.40 

29— Stern     v.      Bensington,     —  35— Rhodes  v.  S.  R.  C,  68  S.  C. 

Md.  — ,  60  Am.  Dec.  17.  494,  47  S.  E.  689. 

30— Middler  v.  Lose,  91  N.  Y.  148.  36— Cataline  v.  N.  B.  &  M.  Co., 

31— Ch.  R.  Co.  v.  Salem,  162  Ind.  99  N.  Y.  Sup.  524;   Hill  v.  Martin, 

428,   70   N.   E.   530;    City  Windsor  88  N.  Y.  Sup.  708. 

v.  Clev.  R.,  105  111.  App.  546.  37— King  v.  King,  215  111.  110,  74 

32— Hoste   v.   Dalton,    137    Mich.  N.  E.  89;   Weber  v.  Costigan,  139 

522,  100  N.  W.  750;  Lehy  v.  Stone,  Mich.  146,  102  N.  W.  666. 

115  111.  App.  138.  38— Rhodes  v.  So.  Ry.  Co.,  68  S. 

33— Hill  v.  Martin,  88  N.  Y.  Sup.  C.  494,  47  S.  E.  689. 

708.  39— In    re    Black's     Estate,     32 

34— King  v.   King,    215   111.    110,  Mont.  51,  79  Pac.  554. 

74    N.   E.   89;    Weber  v.   Costigan,  40 — St.  Louis  v.  Nelson,  108  Mo. 

139  Mich.  146,  102  N.  W.   666.  App.  210,  83  S.  W.  271. 


228  INSTRUCTIONS    TO    JURIES.  [§299. 

A  satisfied  judgment  cannot  be  appealed  from.41  A  party 
cannot  accept  the  benefits  of  a  judgment  and  also  appeal  there- 
from, but  where  a  party  has  received  part  of  a  fund  to  which 
he  is  absolutely  entitled,  he  may  properly  appeal  from  a  judg- 
ment awarding  part  or  balance  of  the  fund  if  it  is  awarded  to 
another;42  and,  where  the  judgment  is  severable,  a  part  may 
be  appealed  from,  although  the  other  part  may  be  acquiesced 
in.43 

§  299.  Grounds  for  Reversal.  Where  a  judgment  was 
given  against  a  person  over  whom  the  trial  court  had  no  juris- 
diction it  will  be  reversed,44  so,  also,  where  no  jurisdiction  is 
acquired  of  a  party,  necessary  to  the  appeal,  it  will  be  ground 
for  reversal  ;45  where  the  trial  court  had  no  jurisdiction  of  the 
subject  matter,  it  too,  will  be  ground  for  reversal.46 

Where  it  appears  that  a  judgment  was  granted,  without 
fault  of  the  party  aggrieved  and  there  having  been  prejudicial 
error,  the  cause  will  be  reversed.47  Even  where  it  appears 
that  there  is  no  error  but  that  injustice  has  been  done,  the 
court  will  reverse  the  judgment.48  Wherever  it  appears  that 
the  evidence  does  not  sustain  the  judgment,  the  same  will  be 
reversed  and  remanded;  for  the  improper  admission  of  testi- 
mony,49 also  the  exclusion  of  proper  testimony;50  also  giving 
erroneous  instructions;51    and  where  the  judgment  is  in  ex- 

41— Ziadi  v.  I.  St.  R.,  97  N.  Y.  Litt     (Ky.)     347;     Armstrong    v. 

137,  89  N.  Y.   Sup.   606.  Hagerstown,    32    Md.    54;    Lindsay 

42 — A   party   who   has   accepted  v.  Kan  C.  R.  Co.,  36  Mo.  App.  51; 

benefits  of  a  judgment  or  decree  is  People  v.  Ferris,  34  How.  Pr.   (N. 

precluded    from    appealing    there-  Y.)   189. 

from.     N.  Y.  S.  Co.  v.  Thurmond,  47— McArthur  v.  Starrett,  42  Me. 

186    Mo.   410,  85   S.  W.   333.     The  345. 

fact  that  he  may  have  received,  or  48^Curley  v.  Tomlinson,  5  Daly 

been  paid  money  on  his  judgment  ,^  Y  .   2g3> 
in  the  belief  that  it  would  not  af- 
fect his  right  of  appeal  is  not  ma- 
terial. 

43— M.    B.    L.    v.    Simpson,    163 
Ind.  10,  71  N.  E.  31. 

44-Houghton    v.    Tibbetts,    126  50-Armstrong  v.    High,   supra; 

Cal.   57,   58   Pac.   318;    Sullivan  v.  McClure  v.  Mo.  R.,  etc.,  R.  Co.,  9 

La  Crosse  S.  P.  Co.,  10  Minn.  386;  Kan.  373;  Bascom  v.  Smith,  31  N. 

Choate  v.    Spencer,   13   Mont.   127,  Y-  595- 

32  Pac.   651;    McCoy  v.   McCoy,   9  51— Hures  v.  Traultham,  27  Ala. 

W.  Va.  443.  359;  Nolen  v.  Palmer,  24  Ala.  391; 

45— McCoy  v.  McCoy,  supra.  Morgan    v.    Taylor,    55    Ga.    224; 

46— Harper    v.    Montgomery,    5  Potts  v.  House,  6  Ga.  324;  Doyle  v 


49 — Armstrong  v.  High,  106  Ga. 
508,  32  S.  E.  590;  Clapp  v.  Engle- 
don,  72  Tex.  252,  10  S.  W.  462; 
Doty  v.  Moore,  16  Tex.  591. 


§300.]  APPEALS  AND   WRITS  OF  ERROR.  229 

cess  of  the  amount  demanded  by  plaintiff52  will  all  be  grounds 
for  reversal. 

§  300.  Necessity  of  Making  Exceptions.  Exceptions  must 
be  made  at  the  right  time53  and  in  accordance  with  the  rules 
of  the  court.54  Objections  to  instructions  will  not  be  consid- 
ered unless  exceptions  thereto  were  taken  in  the  lower  court,55 
nor,  in  fact,  will  errors,  not  assigned  on  a  motion  for  a  new 
trial.50 

Instructions  which  are  erroneous  in  form  should  be  specif- 
ically excepted  to.57  Thus  it  was  held  that  special  exceptions 
must  be  taken  to  an  instruction  which  assumed  a  controverted 
fact.58 

The  exception  to  the  charges  should  show  the  errors  com- 
plained of,59  and  on  a  refusal  to  give  instructions  no  error  can 
be  predicated  where  no  special  reason  for  the  giving  of  the  same 
are  pointed  out.60 

The  party  does  not  waive  exceptions  made  to  erroneous 
charges  by  reason  of  the  fact  that  no  request  is  made  by  him  for 
a  proper  one.01  And,  it  is  not  necessary  to  make  an  exception 
to  the  reasons  given  by  the  court  in  refusing  an  instruction.02 

§  301.  Bills  of  Exception.  Bills  of  exception  were  first  in- 
troduced into  the  English  practice  by  the  statute  of  West- 
minster,03 whereby  the  judge  signing  the  bill  was  required  to 
come  into  the  appellate  court  and  there  confess  or  deny  his  seal 

Kiser,  12  Ind.  474;  Newman  v.  Morisette  v.  Can.  Pac.  R.,  76  Vt. 
Cincinnati,  18  Ohio  323;  Burke  v.  267,  56  Atl.  1102;  Quinn  v.  Bald- 
Ellis,  105  Tenn.  702,  58  S.  W.  855.  win  Star  C,  19  Colo.  App.  497,  76 

52— Hall   v.    Hall,    42    Ind.    585;  Pac.    552. 

Stewart    v.    Tevis,    7    T.    B.    Mon.  56— Kehl  v.  Warren,  210  111.  218, 

(Ky.)     109;     Cumming    v.    Arch-  71  N.  E.  347. 

ward,  1  La.  Ann.  279;   Showles  v.  57 — Davis  v.  Richardson,  76  Ark. 

Freeman,    81    Mo.    540;    Lester   v.  348,  89  S.  W.  318. 

Barnett,  33  Miss.  584.  58— McElvaney     v.     Smith,      76 

53— Chicago    Live    Stock    Co.    v.  Ark.  468,  88  S.  W.  981. 

Fix,  —  Okla.  — ,  78  Pac.  368.  59 — Penn    v.    Trompen,    —  Neb. 

54— Denver     v.     Strobridge,     19  — ,  100   N.  W.  312. 

Colo.  App.  435,  75  Pac.  1076;    Do-  60— Miller  v.  John,  208  111.  173, 

herty  v.  Ark.,  etc.,  R.,  —Ind.  Ter.  70  N.  E.  747. 

— ,  82  S.  W.  899;  Metcalf  v.  Low-  61— Biff  v.  Mo.  R.  Co.,  —  Tex. 

enstein,  35  Tex.  Civ.  App.  119,  81  Civ.  App.  — ,  84  S.  W.  663. 

S.  W.  362.  62— Chessman  v.  Hale,  31  Mont. 

55— Wonderhast     Brew.     Co.     v.  577,  79  Pac.  254. 

Amrhine,  98  Md.  406,  56  Atl.  833;  63—13  Edw.  1,  chap.  3. 


230 


INSTRUCTIONS    TO    JURIES.  [§302. 


to  the  bill;  this  was  later  simplified  by  statute.  Bill  of  ex- 
ception must  show  upon  its  face  that  the  exception  was  taken 
at  the  time,  and  the  bill  signed,  sealed  and  filed  during  the 
term.  But,  to  meet  the  varying  exigencies  and  for  the  con- 
venience of  bench  and  bar,  the  practice  early  obtained  of  al- 
lowing time  in  which  to  present  the  bill  of  exceptions  by  an 
order  entered  of  record  in  the  cause,  or  by  written  stipulation 
of  parties  filed  in  the  case,  and  the  time  thus  allowed  often 
extended  beyond  the  term,  and  the  correctness  of  this  practice 
has  been  repeatedly  sanctioned  by  the  court.64 

To  bring  before  the  court  for  revie^v,  these  exceptions  taken 
upon  the  adverse  rulings  of  the  court  against  the  objections  of 
the  appealing  party,  it  was  necessary  in  order  that  such  mat- 
ters might  be  understood,  to  reduce  them  to  the  form  of  a  bill 
of  exceptions.  In  the  absence  of  any  rules  of  court  or  statu- 
tory provisions  the  general  doctrines  of  the  common  law  pre- 
vail in  all  of  the  state  and  federal  courts,  excepting,  perhaps, 
those  states  in  which  the  civil  law  prevails.05 

§  302.  Office  and  Purpose  of  Bill  of  Exception.  The  object 
of  a  bill  of  exceptions  is  to  preserve  and  make  part  of  the 
record  such  matters  as  transpired  in  the  progress  of  the  trial 
that  otherwise  would  not  become  a  part  thereof.00  Matters 
that  are  properly  constituent  parts  of  the  record  proper, 
should  not  be  brought  into  the  bill  of  exceptions  as  it  is  not 
designed  to  take  the  place  of  any  part  of  the  record.67 

The  pleadings,  rulings  thereon,  motions,  verdicts,  and  the 
judgment,  are  parts  of  the  record  and  do  not  require,  nor 
should  they  be  incorporated,  into  the  bill  of  exceptions.68 

In  order  to  determine  whether  or  not  a  bill  of  exceptions  is 
required,  the  records  should  be  examined  to  see  whether  or  not 
the  errors  complained  of  appear  therein,  and  if  so,  a  bill  of 
exceptions  is  unnecessary. 

64— Evans  v.  Fisher,  5  Gilm.  53;  66— Van  Stone  v.  Mfg.  Co.,  142 

Burst     v.     Wayne,     13     111.     664;  U.    S.    128;    Chateaugay   Co.,   peti- 

Brownfield    v.    Brownfield,    58    id.  tioner,  128  U.  S.  544,  citing  Whal- 

152;    Goodrich  v.   Cook,   81   id.   4;  en  v.  Sheridan,  18  Blatchford  324; 

Hake  v.    Strubel,   121   111.   321-326,  Bronson    v.    Schulten,    104    U.    S. 

12  N.  E.  676.  410;   Whiting  v.  Fuller,  22  111.  33. 

65— Van  Stone  v.  Mfg.  Co.,  142  67— Brown  v.  State,  29  Fla.  494. 

U.    S.    128;    Chateaugay   Co.,   peti-  68 — McKey     v.     Montana,     etc., 

tioner,  128  U.  S.  544,  citing  Whal-  Co.,  13  Mont.  15,  31  Pac.   999. 
en     v.     Sheridan,     IS     Blatchford 
324. 


§303.]  APPEALS   AND   WRITS   OP  ERROR.  231 

§303.  Preparation,  Signing  and  Sealing  Bills  of  Excep- 
tion. The  preparation  of  the  bill  of  exceptions  is  mere  clerical 
work,  nor  is  the  form  of  great  importance.  As  the  supreme 
court  of  the  United  States  said:  "Whatever  brings  upou  the 
record  properly  verified,  by  the  attestation  of  the  judge,  mat- 
ters of  fact  occuring  at  the  trial  on  which  the  point  of  law 
arises,  which  enters  into  the  ruling  and  decision  of  the  court, 
excepted  to,  answers  sufficiently  the  proper  description  of  a 
bill  of  exceptions."69 

The  settling  and  allowance,  signing  and  sealing,  a  bill  of  ex- 
ceptions, under  the  law,  considered  as  a  single  act,  is,  in  its 
nature,  both  judicial  and  ministerial.  It  is  judicial  in  this, 
that  the  trial  judge  must  adjudge  whether  the  bill  presented  is 
under  the  law,  a  proper  bill  for  him  to  sign;  while  the  mere 
act  of  signing  and  sealing  a  bill  after  the  judicial  act  of  settling 
and  allowing  it  has  been  performed  by  the  judge,  is  purely 
ministerial,70  and  mandamus  will  lie  to  compel  a  judge  to  set- 
tle and  sign  a  properly  presented  bill  of  exceptions  presented 
within  the  proper  time.71 

The  time  for  tendering  a  bill  of  exceptions  is  in  theory  held 
to  be  at  the  very  time  such  exceptions  are  taken.  This,  how- 
ever, has  not  been  considered  essential  or  practical.  It  is  gen- 
erally held  that  the  bill  may  be  tendered  at  any  time  during 
the  term  of  court  when  the  ruling  took  place.72 

Whether  or  not  these  exceptions  should  be  reduced  to  writ- 
ing and  time  allowed  by  the  court  for  this  purpose  is  a  mat- 
ter largely  of  statutory  regulation.  Generally,  the  court  has 
the  right  and  discretion  to  allow  this.73 

§304.  Extending  Time  For  Settling  Bill  of  Exceptions. 
An  order  extending  the  time  for  the  settling  of  the  bill  of  ex- 
ceptions seems  under  the  greater  weight  of  authority  to  be  re- 
quired to  be  made  during  the  term  at  which  the  case  was  tried 
and  the  ruling  complained  of,  occurred.  And,  when  not  then 
made,  the  bill  cannot  afterwards  be  allowed. 

The  bill  itself,  is,  of  course,  deemed  the  act  of  the  judge  and 

69— Kleinschmidt  v.  McAndrews,  103  N.  W.  15;  Cadillac  State  Bank 

117  U.  S.  282.  v.     Wexford     Circuit    Judge,     139 

70— Emerson  v.   Clark,  2   Scam.  Mich.  126,  102  N.  W.  667. 

489;    People   v.   Pearson,   2   Scam.  72— Croft    v.     Ferrall,     21    Ala. 

189;  Dent  v.  Davison,  52  111.  109;  351;    Armstrong   v.   Mock,   17    111. 

Hake  v.  Strubel,  121  111.  321,  329,  166;  U.  S.  v.  Carey,  110  U.  S.  51. 

12  N.  E.   676.  73— Goodwin    v.    Smith,    72   Ind. 

71— State  v.  Kelly,  94  Minn.  407,  113;   Bank  v.  Bartlett,  8  Neb.  398. 


232  INSTRUCTIONS    TO    JURIES.  [§305. 

must  be  attested  by  him,  or  what  is  known  as  the  act  of  set- 
tling the  bill  of  exceptions.  The  bill  must  be  settled  and  ap- 
proved by  the  judge  who  tried  the  case.  This  act  cannot  be 
delegated  or  performed  by  another,  excepting  where  so  pro- 
vided by  statute,  as  in  cases  where  the  death  or  absence  of  the 
judge,  or  where  it  is  impossible  to  have  him  act  thereon.74 
The  making  of  the  order  allowing  appeal  and  fixing  the  amount 
of  the  bond,  and  the  time  in  which  the  bond  and  bill  of  ex- 
ceptions in  the  cause  shall  be  presented  and  filed,  is  a  judicial 
act,  which  can  only  be  performed  by  the  judge  in  term  time, 
and  when  sitting  as  a  court.  A  letter  written  by  the  trial 
judge  during  vacation,  to  the  appellant's  attorney  extending 
the  time  for  presenting  the  bill  of  exceptions  and  authorizing 
another  judge  to  note  the  extension  on  the  judge's  docket,  is 
held  invalid.75 

Where  a  bill  of  exceptions  is  not  presented  to  the  judge,  nor 
settled  and  allowed  by  him,  and  filed  within  the  time  fixed  in 
the  order,  the  act  of  settling  and  allowing  the  bill  is  then  a 
nullity  and  the  matters  contained  in  such  bill  do  not  become  a 
part  of  the  record ;  and  where  this  appears  affirmatively  from 
the  record,  advantage  may  be  taken  thereof  by  motion  to 
strike  the  bill  from  the  record.76 

This  is  so  even  though  a  stipulation  of  record  has  been  en- 
tered into  after  the  term  or  time  fixed  in  the  order  has  ex- 
pired.77 

§  305.  Amending  Bill  of  Exceptions.  Bills  of  exceptions 
under  the  common  law  are  required  to  be  complete  at  the 
time  when  the  judge  signs  the  same.78  It  is  held  that  the  bill 
of  exceptions  properly  allowed  duly  attested  and  filed,  can  not 
afterwards  be  disputed.  It  imports  absolute  verity.79  It  may, 
however,  be  amended  or  corrected  by  the  court  that  allowed 
the  bill.  But  the  parties  cannot  incorporate  new  matter  in  the 
bill,  under  the  cloak  of  a  correction.80  Not  only  must  the 
party  desiring  a  correction  make  a  clear  showing,  but  it  must 

74— McCoy  v.  Able,  131  Ind.  417,  78— Mills   v.    Simmons,   10   Ind. 

31  N.  E.  453;   People  v.  Anthony,  464. 

129  111.  218,  21  N.  E.  780.  79— Thomas,  etc.,  Co.  v.  Beville, 

75— Hake    v.    Strubel,    121    111.  100  Ind.  309;  Fisher  v.  Fisher,  131 

321,  12  N.  E.   676.  Ind.    462,    29    N.    E.    31;    Davis    v. 

76— Magill  v.  Brown,  98  111.  235;  Kleine,  96  Mo.  401,  9  S.  W.  724. 

Hake  v.  Strubel,  121  111.  321.  80— Martin  v.  St.  L.,  etc.,  Co.,  53 

71— Ibid.  Ark.  250,  13  S.  W.  765. 


§300.]  APPEALS  AND   WRITS  OF  ERROR.  233 

appear  that  the  error  or  imperfection  did  not  occur  through 
his  own  negligence  or  fault.81 

Amendment  to  the  bill  of  exceptions  made  by  appellee  is 
held  a  waiver  of  irregularities  in  taking  appeal  on  the  part  of 
the  appellant.82 

§  306.  Parties  Joining  in  Exceptions.  The  rule  that  parties 
cannot  avail  themselves  of  any  objection  other  than  those  of- 
fered by  themselves,  does  not  preclude  them  from  joining, 
however,  where  their  interests  are  mutual  or  joint.  This  is 
merely  designed  to  preclude  a  party  from  taking  advantage  of 
his  adversary's  objections.83 

Where  the  interests  of  the  parties  are  not  joined  it  is  held 
that  separate  exceptions  must  be  made.84 

§307.  Record  to  Contain  all  the  Evidence.  In  order  to 
consider  an  assignment  of  error  in  giving  or  refusing  instruc- 
tions, it  is  generally  held  that  the  record  must  contain  all  the 
evidence,85  and  this  rule  applies  where  the  error  complained  of 
is  as  to  the  court's  ruling  in  directing  a  verdict.86 

In  Illinois  it  has  been  held  that  errors  can  be  assigned,  al- 
though the  bill  of  exceptions  does  not  purport  to  contain  all  the 
evidence  in  the  case,87  but  in  determining  whether  there  was 
any  error  in  giving  or  refusing  an  instruction  to  return  a  cer- 
tain verdict,  it  has  been  held  that  the  bill  of  exceptions  must 
show  that  all  of  the  evidence  has  been  set  forth.88 

It  is  proper  to  refuse  certain  instructions  asked  by  appellant 
where  the  bill  of  exceptions  fails  to  set  forth  any  evidence 
which  is  applicable,89  but  where  the  instruction  is  erroneous 

81— Rogers    v.    Roberts,    88    Ga.  Ross  v.  Ry.,  —  Ala.  — ,  39  So.  583. 

150,  13  S.  E.  962;  Roblin  v.  Yaggy,  86— Marvin  v.  Bowlby,  135  Mich. 

35  111.  App.  537.  640,    98    N.    W.    399;    Kitzman    v. 

82— Cooley  v.  P.  R.  Co.,  81  N.  Y.  Kitzman,  115  Iowa  227,   88  N.  W. 

Sup.  692.  341. 

83— Soper  v.  Manning,  158  Mass.  87— Regan  v.  McCarthy,  119  III. 

3S1,  33  N.  E.  516;  Walter  v.  Wal-  App.   578. 

ter,    117    Ind.    247,    20   N.    E.    148;  88— Rockwell  v.  Capital  Tr.  Co., 

Carroll  v.  Little,  73  Wis.  52,  40  N.  25  App.  D.  C.  98. 

W.  582;  Turner  v.  People,  33  Mich.  89— Crandell  v.  Classen,  25  App. 

363.  D.   C.    5;    Geroldman  v.   C.   G.   W. 

84— Bosley   v.    Nat.    Co.,    123   N.  Ry.  108  Iowa  177,  78  N.  W.   855; 

Y.  550,  25  N.  E.  990.  Martin  v.  Curtis,  119  Mich.  169,  77 

85— Citizens'  Bank  &  S.  Co.  v.  N.  W.  690;  Wright  v.  Grif- 
Spencer,    46    Fla.    255,    35    So.    73;  fey,    146    111.    394,    34    N.    E.    941; 


234  INSTRUCTIONS    TO    JURIES.  [§308. 

under  any  and  every  condition,  such  instruction  may  be  re- 
viewed whether  the  evidence  appears  or  not.90  The  rule  seems 
to  be  in  some  states  that  the  record  should  show  so  much  of 
the  evidence  as  is  necessary  to  determine  the  correctness  of  the 
rulings  of  the  court  in  giving  or  refusing  of  instructions."1 

There  is  no  presumption  that  any  evidence  was  produced 
which  does  not  appear  in  the  record,  which  is  applicable  to 
and  supports  instructions,92  and  where  the  evidence  is  not 
given  it  cannot  be  presumed  that  an  instruction  was  unneces- 
sary or  incorrect,93  the  rule  being  that  a  general  exception 
only  raises  the  question  of  the  correctness  of  the  instruction 
as  embodying  the  correct  proposition  of  law  and  not  that  suf- 
ficient evidence  was  produced  to  support  it.94  Evidence  will 
not  be  reviewed  where  the  bill  of  exceptions  does  not  contain 
a  certificate  that  it  contains  it  all.95 

If  the  transcript  or  brief  is  not  filed  within  the  time  limited 
by  the  rules  of  the  supreme  court,  a  motion  to  dismiss  the  ap- 
peal for  such  failure  will  be  granted,90  and  where  alleged  er- 
rors are  not  properly  identified  or  referred  to  and  are  not  dis- 
cussed in  the  briefs,  they  will  not  be  considered.97 

§308.  Assignment  of  Errors.  Except  perhaps  in  actions 
de  novo,  no  question  will  be  considered  by  the  supreme  court 

Frost  v.  Grizzely  Bluff  Cream  Co.,  ger,  88  N.  Y.  Sup.  966.     "No  case 

102  Cal.  525,  36  Pac.  929.  brought  to  the  Supreme  Court  by 

90 — Frost      v.      Grizzely      Bluff  appeal  or  on  error  shall  be  placed 

Cream   Co.,   supra.  on   the   court   docket   for   hearing 

91 — Parsons  v.  Parsons,  66  Iowa  unless   the   record   is   filed   within 

754,    21    N.    W.    570;    Saunders    v.  the   time   now   prescribed   by   law, 

Claudd,    117   Mich.    130,    75   N.   W.  or  within  the  further  time  allowed 

295;  Sidwell  v.  Lobley,  27  111.  438;  by  the  court  for  filing  the  record, 

Roberts  v.  McGraw,  38  Wis.  52.  except  in  extraordinary  cases,  the 

92 — Lawler    v.    Norris,    28    Ala.  court,     upon     special     application 

675.  may  order  a  cause  to  be  placed  on 

93 — Bowman  v.  Ware,  18  La.  597.  the  hearing  docket." — Rule  10,  111. 

94— Perrins  v.   Serrell,   30  N.  J.  Sup.  Court. 

L.    454;    Gardner   v.    Peaslee,    143  96— Moultrie  v.  Tarpio,  147  Cal. 

Mass.   382,    9  N.  E.   833;    Soper  v.  376,    81    Pac.    1073;    Puckhaber   v. 

Hall,  22  Neb.  168;   Harris  v.  Prya,  Henry,  147  Cal.  424,  81  Pac.  1105; 

18    N.    Y.    Sup.    128,    44   N.   Y.    St.  Brownlee  v.  Reiner,   147  Cal.  641, 

495;    Alexander   v.    Alexander,    71  82  Pac.  324;  Garcia  v.  Brown,  146 

Ala.    295;     Stone    v.    Pennock,    31  Cal.    68,    79    Pac.    590;     Coats    v. 

Mo.  App.  544.  Coats,  146  Cal.  443,  80  Pac.  694. 

95— Lombard    v.    Holdman,    115  97— Bird  v.  Pottsr,  146  Cal.  286, 

111.  App.   458;    Mayer  v.  Hornbur-  79  Pac.  970. 


§309.]  APPEALS   AND   WRITS   OF   ERROR.  235 

unless  pointed  out  by  the  assignment  of  errors.  These  need 
not  follow  any  stated  form,  but  should  clearly  and  specifically 
indicate  the  errors  complained  of.  and  where  several  points  are 
relied  upon,  they  must  be  separately  stated.  The  supreme 
court  considers  only  such  errors  as  are  assigned,  and  is  under 
obligation  to  decide  upon  those  stated,98  nor  can  errors  be 
considered,  although  raised  in  the  argument,  unless  they  be 
assigned. 

In  equitable  actions  an  assignment  of  error  is  not  considered 
essential."  Where,  however,  the  equitable  action  is  not  tried 
de  novo,  assignments  of  error  may  be  received  as  in  an  action 
at  law.100  A  general  assignment  of  error  will  not  be  con- 
sidered,1 such  as  stating  "that  the  court  erred  in  rendering 
judgment  on  the  verdict"  or  "that  the  verdict  is  contrary  to 
law."2  The  assignment  of  error  should  point  out  the  particu- 
lar ruling  objected  to,  the  name  of  the  witnesses  if  any,  and 
the  page  of  abstracts,  where  found.3 

Where  a  party  complains  of  an  instruction  the  court  will 
not  determine  whether  it  states  a  correct  principle  of  law  or 
not,  unless  a  specific  assignment  of  error  is  made.4  Where  an 
instruction  includes  different  and  independent  subjects,  a  gen- 
eral exception  thereto  cannot  be  considered  unless  it  is  incor- 
rect as  a  whole.5 

§  309.  Record  Should  Contain  Instructions.  It  is  almost  a 
universal  rule  that  in  order  to  complain  or  assign  as  error  the 
giving  or  refusal  of  an  instruction,  the  entire  charge  of  the 
trial  court  should  appear  in  the  record.6     Instructions    which 

98— Code   Iowa  1897,   Sec.  4136;  3— Monattys   v.   Scott,    106  Iowa 

Roberts    v.    Cass,     27     Iowa    285;  203,   76  N.  W.  717. 

Wood  v.  Whitton,  66  Iowa  295,  19  4— Mulhern  v.  Kennedy,  120  Ga. 

N.  W.   907.  1080,  48  S.  E.  437. 

99 — Clearfield  Bank  v.  Olin,  112  5— Matthews  v.  Daley  W.  M.  Co., 

Iowa  476,  84  N.  W.   508;   Clark  v.  27  Utah  193,  75  Pac.  722. 

Raymond,  84   Iowa  251,  50  N.  W.  6— Traeger  v.  Jackson  C.  Co.,  142 

1068.  Ind.  164,  40  N.  E.  907;  Kreuger  v. 

100— Schmelz     v.     Schmelz,     52  Sylvester,  100  Iowa  647,  69  N.  W. 

Iowa   512,   3    N.   W.    526;    Reed   v.  1059;    Dann   v.    Cudney,    13   Mich. 

Larrison,    77   Iowa   399,   42   N.  W.  239;  Bean  v.  Green,  330  O.  St.  444; 

333.  Holland  v.  U.  Co.,  68  Iowa  56,  25 

1 — Casey  v.  Ballou  B.  Co.,  98  N.  W.  927;  Germantown  v.  Good- 
la.   107,   67  N.  W.  98.  ner,   56   111.  App.   598;    Thomas  v. 

2— Hamilton  Buggy  Co.  v.  Iowa  Parker,  69  Ga.  283;  C.  &  E.  I.  Ry. 

Buggy  Co.,  88  Iowa  364,  55  N.  W.  v.  Jones,  161  111.  47,  43  N.  E.  613, 

364.  Ritchie   v.    Schenck,   7   Kan.    170; 


23G 


INSTRUCTIONS    TO    JURIES. 


[§309. 


have  been  requested  and  refused  and  which  have  not  been  set 
out  in  the  record,  bill  of  exceptions7  or  abstract8  will  generally 
not  be  considered.  This  is  especially  true  where  the  error 
complained  of  is  of  such  a  nature  that  it  might  be  cured  by  an- 
other instruction,9  the  presumption  being  that  the  instructions 
omitted  qualify  the  one  objected  to.10 

In  order  that  instructions  might  be  properly  reviewed  the 


Blades  v.  Robbins,  9  Ky.  L.  R.  197. 

It  is  necessary  to  either  set  out 
the  instructions  complained  of  or 
a  succinct  statement  thereof,  or 
they  will  not  be  considered.  Wood- 
ward v.  Dobyzkoski,  34  Ind.  App. 
658,  73  N.  E.  607;  Perdue  v.  Gill, 
35  Ind.  App.  99,  73  N.  E.  S41;  Chi- 
cago Term.  T.  R.  Co.  v.  Vanden- 
burg,  164  Ind.  470,  73  N.  E. 
990;  Garrigue  v.  Keller,  164 
111.  676,  74  N.  E.  523;  Buel- 
na  v.  Ryan,  139  Cal.  630, 
73  Pac.  466;  Dornbrook  v. 
Rumely  Co.,  120  Wis.  36,  97  N. 
W.  493;  City  of  Pueblo  v.  Froney, 
18  Colo.  App.  351,  71  Pac.  893; 
Baker  v.  Gowland,  —  Ind.  App.  — , 
76  N.  E.  1027;  Gumaer  v.  White 
Pine  Lumber  Co.,  11  Idaho  591,  83 
Pac.  771;  State  v.  Kirkpatrick,  — 
la.  — ,  105  N.  W.  121;  Grantz  v. 
Deadwood,  —  S.  D.  — ,  107  N.  W. 
832. 

7 — Chambers  v.  Milner  Coal  & 
R.  Co.,  143  Ala.  142,  39  So.  170; 
Hartin  Co.  Min.  Co.  v.  Pelt,  176 
Ark.  177,  S8  S.  W.  929. 

8 — Shorter  Univ.  v.  Franklin 
Bros.,  75  Ark.  571,  88  S.  W.  587. 

9 — Pittsburg,  etc.,  Ry.  Co.  v. 
Smith,  207  111.  486,  69  N.  E.  873; 
Van  Vleve  v.  Clark,  118  Ind.  61, 
20  N.  E.  527;  111.  Cent.  Ry.  v. 
Sanders,  58  111.  App.  117;  Rood- 
house  v.  Christian,  158  111.  137,  41 
N.  E.  748;  Dann  v.  Cudney,  13 
Mich.  239;  Krueger  v.  Sylvester, 
100  Iowa  647,  69  N.   W.  1059. 

Stating  the  legal  effect  of  an  in- 


struction held  insufficient,  in 
Buehner  Chair  Co.  v.  Feulner,  164 
Ind.  36S,  73  N.  E.  816,  and  the 
omission  can  not  be  supplied  in 
the  reply  brief.  C.  &  E.  R.  Co. 
v.  Rain,  —  Ind.  App.  — ,  72  N.  E. 
539. 

10— Hanson  v.  Stinehoff,  139 
Cal.  169,  72  Pac.  913;  Milwaukee 
Har.  .Co.  v.  Tysnish,  68  Ark.  225, 
58  S.  W.  252;  Halsey  v.  Darling, 
13  Colo.  1,  21  Pac.  913;  Maddox  v. 
Morris,  110  Ga.  309,  35  S.  E.  170; 
Ricketts  v.  Coles,  97  Ind.  602; 
White  v.  Jordan,  27  Me.  370. 

Requested  instructions  not  shown 
to  have  been  refused  will,  if  neces- 
sary, to  support  the  judgment  be 
presumed  to  have  been  given,  Don- 
nell  v.  Jones,  17  Ala.  689,  52  Am. 
Dec.  194;  Seal  v.  State,  28  Tex. 
491;  Hood  v.  Maxwell  1  W.  Va. 
219. 

Where  no  written  instructions 
were  given  and  none  are  in  the 
record,  the  presumption  is  that 
proper  oral  instructions  were 
given,  or  that  by  agreement  the 
case  was  submitte'd  without  in- 
structions. Musselman  v.  Wil- 
liams, 21  Ky.  L.  R.  1077  54   S.  W.   3. 

Where  only  a  portion  of  the  in- 
structions are  shown,  the  presump- 
tion is  that  proper  instructions 
were  given  as  to  all  other  points 
in  the  case.  Hewey  v.  Nourse,  54 
Me.  256;  Tex.  R.  Co.  v.  Lowry,  61 
Tex.  149;  Brabbits  v.  Ch.  R.  Co., 
38  Wis.   289. 


§310.]  APPEALS   AND   WRITS   OF   ERROR.  237 

record  should  also  disclose  the  pleadings,11  and  where  the  com- 
plaint is  that  the  verdict  is  contrary  to  the  instructions,  the 
same  must  be  set  out  in  the  record.12 

It  is  necessary  in  order  to  consider  a  failure  to  instruct,  that 
the  request  was  made ;  that  the  trial  court  made  a  ruling ;  and 
that  the  complaining  party  excepted  thereto  at  the  proper 
time.13  It  has  been  held  that  the  bill  of  exceptions  should 
show  what  party  objected  to  the  instructions  which  were 
given.14 

The  record  must  also  show  whether  the  requested  instruc- 
tions were  given  or  refused,  as  a  failure  to  show  this  will  be 
ground  for  not  considering  them,15  and  if  instructions  are 
given  in  reference  to  arguments  made  by  counsel  the}'  will 
not  be  reviewed  unless  the  records  show  that  counsel  so  made 
an  argument,16  and  the  rule  that  the  instructions  must  appear 
in  the  record  applies  when  the  review  is  on  the  rulings  on  mo- 
tion for  a  new  trial.17 

§  310.  Presumption  in  Favor  of  Instructions.  If  the  evi- 
dence is  not  included  in  the  record  the  instructions  will  be 
approved  if  they  are  correct  and  applicable  to  any  evidence 
that  would  be  admissible  under  the  pleadings,18  upon  the  same 
principle  a  refused  instruction  will  be  presumed  to  be  inap- 

11 — Anderson  v.  Kramer,  93  Ind.  Aukland  v.  Lawrence,  19  Col.  291, 

170;    Joliet    St.    Ry.    v.    McCarthy,  74  Pac.  794. 

42  111.  App.  49;   Holland  v.  Union  14— Martin  v.  C.  &  M.  Elect.  Ry. 

Co.,  6S  Iowa  56,  25   X.  W.  927.  Co.,  220  111.  97,  77  N.  E.  86. 

12— Howell   v.    Snyder,   39    Iowa  15— Texas    Cotton    Prod.    Co.    v. 

610;    Larkin    v.    Beattie,    111    Ala.  Deney    Bros.,    —    Tex.    Civ.    App. 

303;    William   v.    Woodworth    Co.,  — ,  78  S.  W.  557. 

106  Ala.  254,  17  So.  517;    Everett  16— North  Chicago  St.  R.  Co.  v. 

v.  Collinsville  Z.  Co.,  41  111.  App.  Wellner,  206  111.  272,  69  N.  E.  6. 

552.  17— Baggett  v.  Savannah,  Ft.  W. 

13— Corrigan    v.    Conn.    F.    Ins.  R.  Co.,  41  Fla.  673,  27   So.  1024. 

Co.,    122    Mass.    298;     Neufield    v.  IS— Mankin  v.  Pa.  Co.,  160  Ind. 

Radiminski,  41  111.  App.  144;  Mor-  447,  67  N.  E.  229;  Ball  v.  Marquis, 

ris  v.  Morris,  119  Ind.  341,  21  N.  122  Iowa  665,  98  N.  W.  496;  Gran- 

E.  918;  German  Ins.  Co.  v.  Stiner  berry   v.   Mussman,   —   Tex.    Civ. 

—   Neb.   — ,    96   N.   W.    122;    Fox-  App.   — ,   90   S.   W.    533;    Guyer  v. 

worth  v.   Crown,   114   Ala.   291,   21  Snow,  —  Tex.  Civ.  App.  — ,   90  S. 

So.  413;    Spant  v.  Reilly,  15  N.  Y.  W.    71;    Neal   v.   Randall,   100  Me. 

App.  Div.  190,  44  N.  Y.   Sup.  238;  574,  62   Atl.  706;    Grantz  v.  Dead- 

wood,  —  S.  D.  — ,  107  N.  W.  832. 


238  INSTRUCTIONS    TO    JURIES.  [§311. 

plicable  to  the  evidence.19  The  burden  is  on  the  appellant  to 
show  that  the  evidence  did  not  justify  the  instruction  com- 
plained of,  as  the  presumption  is  in  favor  of  the  correctness 
of  the  instruction.20 

§  311.  Conflicting  Instructions.  Where  conflicting  instruc- 
tions are  asked  a  party  can  not  complain  of  the  refusal  of  the 
trial  court  to  give  one  of  them.21  Where  conflicting  instruc- 
tions are  requested  party  can  not  complain  of  the  action  of 
the  trial  court  in  modifying  them  for  the  purpose  of  reconcil- 
ing them,22  or,  where  the  instructions  requested  are  er- 
roneous.23 

But  where  the  court  modifies  the  instruction  asked  by  the 
appellant  it  is  held  that  the  modification  may  be  complained 
of  on  appeal  where  the  same  is  erroneous.24 

§  312.  Instructions  Based  on  Former  Decisions.  Instruc- 
tions which  are  given  in  accordance  with  the  decision  rendered 
on  a  former  appeal  in  the  same  case  will  not  be  re-examined 
upon  a  subsequent  appeal,25  but  instructions  based  on  prin- 
ciples which  were  not  considered  on  a  former  appeal  may  be 
examined  on  a  subsequent  appeal.26 

§  313.    Instructions  Must  be  Prejudicial  to  be  Complained  of. 

Instructions  complained  of  are  not  sufficient  grounds  for  re- 
versal unless  prejudice  resulted  to  the  party  complaining  by 
reason  of  these  instructions.27  Where  instructions  are  such  as 
will  not  mislead  a  jury,  a  new  trial  will  not  be  awarded.28 
Where  an  erroneous  instruction  is  given  and  was  not  prejudi- 
cial to  the  party  complaining  the  ease  will  not  be  reversed.29 
Where  instruction   is  complained  of  as  error,  party  must 

19— Diamond      Bl.      C.      Co.      v.         25 — Evansville  v.  Schachenn,  — 

Cuthbertson,  —  Ind.    App.  — ,    67  Ind.  App.  — ,  59  N.  E.  863;   Kuhn 

N.  E.  558.  v.    DeC,    etc.,    R.    92    Hun    74,    36 

20— Flinn    v.    Crooks,    —    Colo.  N.  Y.  Sup.  339,  71  N.  Y.  St.  233. 
App.  — ,  83  Pac.  812.  26— N.  Y.  L.  I.  Co.  v.  Clemmit, 

21— Mo.   Pac.  R.   v.   Fox   Co.,   60  77  Va    336 
Neb.    531,  83   N.  W.  744;    Clark  v.         27^Chg0   n.   T    Co.   v.    Q.BTien> 

Pearson,  83  111.  App.  310.  m  m    App>  m 


22— Funk  v.  Babbitt,  156  111.  408, 
41  N.  E.  166. 


28— Elkins    v.    Metcalf,    116    111. 


23— C.    &   A.    Ry.    v.    Tracy,    109  App'    29" 

111.   App.   563.  29 — Reuss    v.    Monroe,    115    111. 

24— Norfolk  R.  C.  v.  Mann,  99  APP-  !0- 
Va.  18,  37  S.  E.  849. 


§  314.  J  APPEALS  AND   WRITS   OF  ERROR.  239 

show  that  the  same  was  prejudicial  to  him,30  and  affected  the 
merits  of  the  case.31 

Nor  will  a  party  be  permitted  to  complain  of  error  in  in- 
struction where  the  same  was  given  from  consideration  of 
incompetent  evidence  offered  by  him.32 

In  Hill  v.  Nicholls,  Alabama,  it  was  held,  "nor  will  ap- 
pellant be  allowed  to  claim  that  an  instruction  was  erroneous 
because  of  the  want  of  proof  on  a  point  covered  by  the  in- 
struction when  a  defect  in  the  evidence  was  caused  by  an  ex- 
clusion had  at  his  instance.  The  appellant  can  not  complain 
of  an  instruction  given  as  to  the  rule  of  damages  when  same 
was  given  at  his  instance."33  Thus  it  was  held  in  a  case  that 
where  a  referee  makes  a  ruling  at  defendant's  request,  adopt- 
ing a  rule  for  measuring  damages,  the  defendant  can  not  on 
appeal  challenge  its  correctness. 

"Where  the  court  and  parties  assumed  that  certain  facts  ex- 
isted the  appellant  can  not  complain.34  A  party  can  not  com- 
plain of  inaccurate  instructions  where  the  verdict  shows  that 
even  if  the  jury  considered  the  instruction  corrected  the  re- 
sult would  be  the  same.35 

§  314.  Favorable  Instructions  or  Those  Requested  Can  Not 
be  Complained  of.  An  instruction  which  is  more  favorable 
to  the  appellant  than  his  pleadings  would  authorize,  can  not  be 
taken  advantage  of  or  assigned  as  error.36  The  submission 
of  an  issue  which  the  uncontroverted  evidence  showed  to  be  a 
fact  is  not  prejudicial  to  the  party  to  whom  such  submission 
was  favorable.37 

So,   also,   where   certain   defenses  set  up   by   the   opponent 

30 — Doherty  v.   Arkansas  R.  R.  34 — Van  Rennselaer  v.  Mould,  77 

Co.,  —  Ind.  Ter.  — ,  82  S.  W.  899;  Hun    (N.    Y.),    553,    60    N.    Y.    St. 

Byer  v.  Herman,  173   Mo.  295,  73  394. 

S.  W.  164.  35— Prather  v.  Ch.  S.  R.  Co.,  221 

31— McKinstry      v.      St.      Louis  111.  191   (198),  77  N.  E.  430. 

Transit   Co.,    108   Mo.   App.   12,   87  36— McAfee  v.  Dix,   91  N.  Y.   S. 

S.  W.  1108.  464;  Stewart  v.  N.  Car.  Ry.,  136  N. 

32— Phoenix  I.   Co.  v.  Wilcox  &  C.  385,  48  S.  E.  793;    Delaware  & 

Co.,    65    Fed.    Rep.    724;     Hill    v.  H.      Co.      v.      Mitchell,      211      111. 

Nicholls,  50  Ala.  336.  379,   71    N.   E.    1026;    Schimilovits 

33— Vail    v.    Reynolds,    42    Hun  v.  Bares,  75  Conn.  714,  55  Atl.  560. 

(N.   Y.)    647;    Andrews  v.   Ch.   R.  37— Hoar  v.  Hennessey,  29  Mont. 

A.,  86  Iowa  677,  53  N.  W.  399.  253,  74  Pac.  452. 


240 


INSTRUCTIONS    TO    JURIES. 


[§314, 


are  taken  from  the  consideration  of  the  jury  by  the  instruc- 
tions, the  appellant  will  have  no  reason  for  complaint.38 

An  appellant  or  plaintiff  in  error  cannot  complain  of  in- 
structions which  are  given  at  his  own  request  by  the  trial 
court,39  neither  can  he  complain  of  an  instruction  given  at 
the  request  of  his  opponent  where  he  has  requested  a  similar 
or  substantially  similar  instruction  ;40  and  this  is  true  even 
though  his  instructions  were  refused41   or  erroneous.42 

An  instruction  modified  by  the  court  at  the  appellant's  own 
request  would  come  under  the  same  rule  that  an  appellant  can- 
not complain  of  error  in  the  instructions  asked  by  himself.43 
Instructions  expressly  recognized  as  correct  when  given  can- 
not be  urged  as  error.44 

A  party  is  estopped  from  urging  objection  where  instruc- 


38— Central  Tex.,  etc.,  R.  Co.  v. 
Gibson,  35  Tex.  Civ.  App.  66,  79 
S.  W.  351;  Vincent  v.  Willis 
26  Ky.  L.  842,  82  S.  W.  583;  York 
v.  Farmers'  Bank,  165  Mo.  App. 
127,  79  S.  W.  968;  Shippers'  Com- 
pressed W.  H.  Co.  v.  Davidson,  35 
Tex.  Civ.  App.  558,  80  S.  W.  1032. 

39— Woodworth  v.  Mills,  61  Wis. 
44,  20  N.  W.  728;  Worley  v.  Moore, 
97  Ind.  15;  Duncombe  v.  Powers, 
75  Iowa  1S5,  39  N.  W.  261;  111. 
Steel  v.  Novae,  184  111.  501,  56  N. 
E.  966;  Palmer  v.  Meriden  B.  Co., 
188  111.  508,  59  N.  E.  247;  Contin- 
ental Ins.  Co.  v.  Horton,  28  Mich. 
173;  Benson  v.  Maxwell,  105  Pa. 
St.  274;  McCarvel  v.  Phenix  Ins. 
Co.,  64  Minn.  193,  66  N.  W.  367.  In 
Belcher  v.  Mo.,  etc.,  Ry  Co.,  92  Tex. 
593,  50  S.  W.  559,  it  was  held  that 
a  party  is  not  estopped  from  as- 
serting error  on  the  ground  that 
instructions  were  given  at  his  re- 
quest unless  such  instructions 
were  written  and  signed  by  him. 

Gray  v.  Eschen,  125  Cal.  1,  57 
Pac.  585;  Denver  v.  Stein,  25  Colo. 
125,  53  Pac.  283;  Water  Works  v. 


Brown,  8  Kan.  App.  725,  50  Pac. 
966. 

40 — Horgan  v.  Brady,  155  Mo. 
659,  56  S.  W.  294;  Franks  v.  Mat- 
son,  211  111.  344,  71  N.  E.  1011; 
St.  L.,  etc.,  R.  Co.  v.  Baker,  67 
Ark.  531,  55  S.  W.  941;  Taylor  v. 
Warner,  —  Tex.  Civ.  App. 
— ,  60  S.  W.  442;  Phelps  v. 
Salisbury,  161  Mo.  1,  61  S.  W.  582; 
C.  C.  C.  &  St.  L.  v.  Alfred,  113 
111.  App.  239;  Renner  v.  Thorn- 
burg,  111  Iowa  515,  92  N.  W.  950; 
Phillips  v.  Wis.  St.  Ag.  Society,  60 
Wis.  401,  19  N.  W.  377;  Egbers  v. 
Egbers,  177  111.  82,  50  N.  E.  285; 
Stevens  v.  Crane,  116  Mo.  408,  22 
S.  W.  783;  Carnwright  v.  Gray, 
127  N.  Y.  92,  27  N.  E.  835. 

41 — Citizens'  Ry.  Co.  v.  Wash., 
—  Tex.  Civ.  App.  — ,  58  S.  W. 
1042;   Davis  v.  Brown,  67  Mo.  313. 

42 — Tucker  v.  Baldwin,  13  Conn. 
136,  33  Am.  Dec.  384;  Egbers  v. 
Egbers,  supra. 

43 — Regensburg  v.  Nassau  Elect. 
Ry.  Co.,  58  N.  Y.  App.  566.  69  N. 
W.  147. 

44 — Wiley  v.  Lindley,  —  Tex. 
Civ.  App.  — ,  76  S-  W.  208. 


§315.]  APPEALS  AND   WRITS   OF  ERROR.  241 

tion  containing  similar  instruction  was  given  at  his  request.45 
It  is  not  error  to  refuse  instruction  if  the  substance  embodied 
is  in  others  given,40  or  is  identical  in  principle.47 

When  a  party  offers  several  instructions  containing  the 
same  principle  of  law  he  cannot  complain  if  the  one  refused 
by  the  trial  court  is  the  one  he  considers  most  important.48 

§  315.  Erroneous  Instruction  as  Affecting  Appeal — Re- 
mittitur. An  excessive  verdict,  which  is  given  on  account  of  an 
erroneous  instruction,  may  be  cured  by  a  remitter,  obviating 
the  necessity  of  a  reversal  because  of  the  error,49  and  where  it 
appears  that  under  a  correct  instruction  the  same  conclusion 
would  have  resulted,  the  error  of  the  instruction  will  not  be 
considered.50 

An  instruction  on  the  question  of  damages  becomes  immate- 
rial on  a  verdict  being  rendered  for  defendant  on  the  main 
issue.51  Erroneous  instructions  as  a  general  proposition  can 
only  be  cured  by  their  withdrawal  in  proper  time  and  by 
proper  means.52  The  giving  of  the  correct  instruction  subse- 
quently will  not  cure  an  incorrect  instruction.53 

An  instruction  that  it  was  incumbent  on  the  company  to  use 
all  reasonable  care  to  prevent  injury,  would  not  cure  an  in- 
struction that  a  street  car  company  has  the  paramount  right 
of  way.54     Where  the  facts  in  a  particular  case   are   close, 

45— Franks   v.   Matson,   211    111  552;  Conant  v.  Jones,  120  Ga.  568, 

346,  71  N.  E.  1011.  48  S.  E.  234. 

46— Kibe  v.  People,  215  111.  256,  51— Wilhelm  v.  Donegan,  43  Cal. 

74    N.    E.    146;    Chi.    City    Ry.    v.  50)  70  Pac.  713;    Southern  R.  Co. 

Mattheson,   212   111.   299,   72   N.   E.  v.    Oliver,    102    Va.    710,    47    S.   E. 

443;   Chi.  Elec.  Trans.  Co.  v.  Kin-  862. 

nare,  115  111.  App.  115;  Chi.  U.  T.  52-Evansville,  etc.,  Ry.  v.  Clem- 
Co.    v.    Leach,    117    111.    App.    167,  ents>   32   Ind_   App_   658>   70   R   E 


554. 

53— Ball  v.  Dolan,  18  S.  D.  558, 
101  N.  W.  719;  Cresler  v.  Ashe- 
ville,  134  N.  C.  311,  46  S.  E.  738; 
Bertenstein  v.  Schrack,  31  Ind. 
App.  200,  67  N.  E.  547. 


174. 

47— Chi.  U.  T.  Co.  v.  Jacohson, 
217  111.  408,  75  N.  E.  508. 

48— Ind.  I.  &  I.  Ry.  Co.  v. 
Otstch,  212  111.  429,  436,  72  N.  E. 
815. 

49 — Hayden  v.  Florence  Swg. 
Mach.  Co.,  54  N.  Y.  221;  Buetzier  54— Saloman  v.  Buffalo  R.  Co., 
v.  Jones,  85  Iowa  721,  51  N.  W.  96  App.  Div.  487,  89  N.  Y.  99; 
242;  Hartford  Dep.  Co.  v.  Calkins,  Texas  Midland  R.  Co.  v.  Booth, 
186  111.  104,  57  N.  E.  863.  35    Tex.    Civ.   App.    322,    80    S.   W. 

50 — Quinn  v.  Baldwin  Star  Coal     121;    Baker    v.    Independence,    106 
Co.,    19    Colo.    App.    497,    76    Pac.     Mo.  App.  507,  81  S.  W.  501. 
16 


242  INSTRUCTIONS    TO    JURIES.  [§315. 

an  incorrect  instruction  cannot  be  cured  by  a  correct  one  sub- 
sequently given.55 

Error  in  making  a  city  liable  for  a  defective  sidewalk,  if  the 
defective  condition  was  known  before  the  accident,  without 
requiring  it  to  be  known  a  sufficient  length  of  time  to  have 
enabled  the  city  to  have  it  repaired,  is  not  rendered  harmless 
by  the  fact  that  the  case  was  tried  on  the  theory  of  construc- 
tive notice.56 

An  inadvertent  reference  to  an  outside  issue  immediately 
qualified  in  such  manner  to  destroy  its  force  is  not  held  error. 
An  erroneous  instruction  that  the  plaintiff  claimed  that  cer- 
tain of  his  injuries  were  permanent,  is  cured  by  an  instruc- 
tion to  not  allow  damages  for  permanent  injuries  of  any 
kind.57 

The  refusal  of  a  correct  instruction  is  not  cured  by  referring 
to  the  matters  in  a  negative  way  with  which  the  offered  instruc- 
tion concerns  itself,  but58  instructions  on  the  same  point  may 
cure  other  instructions  that  are  incomplete.59  The  refusal  to 
give  correct  instructions  will  be  deemed  harmless  where  no 
substantial  rights  were  prejudiced.60 

An  instruction  cannot  be  cured  by  merely  stating  that  they 
are  to  be  considered  in  connection  with  other  instructions.61 
Nor  can  instructions  be  cured  by  subsequent  instructions62 
which  do  not  refer  thereto. 

Where  there  is  a  refusal  of  a  corrected  instruction  the  same 
is  cured,  it  has  been  held,  where  the  charge  as  a  whole  con- 
veys the  same  idea.63  As  a  general  rule  it  may  be  said  that 
where  the  jury  has  not  been  misled  by  an  erroneous  instruc- 
tion, and  no  prejudice  resulted,  it  will  not  be  held  reversible 
error,64    although    it   has   been    held    that    instructions    com- 

55— In    re    Knoxville,    123    Iowa  60— Brown  v.  St.  L.  Tr.  Co.,  108 

24,  94  N.  W.  468.  Mo.  App.  310,  78  S.  W.  660. 

56— Baker       v.       Independence,  61— Klimpel    v.   Met.    St.    R.    R. 

supra;   McDonald    v.    Nugent,    122  Co.,  92  App.  Div.  291,  87  N.  Y.  Sup. 

Iowa   651,    98    N.  W.    506;    Chi.   &  39. 

C.   R.   C.   v.   Appell,  103    111.   App.  62_Tex.  So.  R.  R.  Co.  v.  Long, 


35  Tex.  Civ.  App.  339,  80  S.  W.  114. 
63 — Monsette   v.    Can.    Pac.    Co., 
74   Vt.   232,   56  Atl.   1102. 


185 

57 — S.  Kas.  R.  Co.  v.  Sager,  — 
Tex.  Civ.  App.  — ,  80  S.  W.  1038. 

58— Allen  v.  St.  L.  C,  183  Mo. 
396    81  S    W    1142.  64— Beidler  v.  King,  209  111   302 

59— Quinlan    v.    Kan.,    104    Mo.     70  N-  E-  763- 
App.  616,  78  S.  W.  660. 


§316.]  APPEALS  AND   WRITS   OF   ERROR.  243 

plained  of  as  error  on  appeal  are  presumed  to  have  been 
understood  by  the  jury  and  to  have  influenced  them.65 

The  showing  necessary  to  evidence  the  fact  that  the  jury 
had  not  been  misled  would  seem  to  require  that  the  verdict 
should  have  been  in  accordance  with  the  weight  of  evidence, 
so  that  a  verdict  should  have  been  directed  in  favor  of  the 
party  or  that  the  instruction  was  on  an  immaterial  point  and 
not  decisive  of  the  issue. 

§316.  Abstract  of  Record,  What  It  Should  Contain.  Ab- 
stracts of  record  should  contain  all  that  is  necessary  for  the 
court  to  understand  the  errors  complained  of.66  An  abstract 
in  the  form  of  a  mere  index  will  not  be  considered  by  the 
court,67  but  so  much  must  be  contained  in  the  abstract  of 
pleading  or  of  a  judgment,  as  to  make  the  meaning  clear  to  the 
court.68 

The  names  of  the  parties  and  nature  of  the  proceedings,  as 
well  as  testimony  or  evidence,  or  so  much  thereof  as  to  make 
it  intelligible,  must  always  be  given,  and  the  evidence  will  not 
be  reviewed  where  there  has  been  no  effort  made  in  good  faith 
to  abbreviate  or  abstract  it,  as  required.69 

Although  it  has  been  held  that  the  abstract  might  be  criti- 
cised as  being  too  full  or  voluminous,  it  is  not  fatal.70  It  has 
also  been  held  that  where  an  amended  abstract  is  largely  a 
transcript  of  the  testimony  by  questions  and  answers  at 
length,  the  abstract  will,  on  motion,  be  stricken  from  the  file.71 

In  an  Iowa  case  it  was  stated  in  the  opinion  that  the  court 
recognized  the  necessity  and  advantage  at  times  to  set  out  the 
questions  and  answers  as  to  some  particular  point,  but  that 
the  case  discussed  was  not  within  this  necessity.72 

The  general  rule  may  be  said  to  be  that  although  the  ap- 

65 — Conrad  v.  Cleveland  R.  Co.,  70— N.    Y.    Store    v.    Thermond, 

34  Ind.  App.  133,  72  N.  E.  489.  —  Mo.  — ,  S5  S.  W.  333. 

66 — Hickson  v.  Carqueville  Lith.  Abstract  not  sufficiently  con- 
Co.,  115  111.  App.  427.  densed,    was   criticised    in    Austin 

67— Henlon     v.     Phol.,     130     111.  v.  Bacon,   28  Wis.  416;    Butler  v. 

App.  100.  Ry.   Co.,   28   Wis.    487-493;    South- 

68— Metzler  v.   Crabbin,   20   Col.  mayd    v.     I.     Co.,    47    Wis.    517; 

App.   404,  79  Pac.  301.  Cook  v.  Ry.   Co.,   98   Wis.    624,   74 

69— St.    Amand    v.    Lemand,    —  N.  W.  561. 

Ga.  — ,  47  S.  E.  949.    What  a  good  71— State    v.    Hull,    83    la.    112, 

abstract  of  record  should  contain,  114,   48   N.   W.   917. 

given  in  Chapin  v.  Clapp,  29  Ind.  72 — Vaugh  v.  Smith,  58  id.  553, 

611.  12  N.  W.  604;  Tootle  v.  Taylor,  64 

id.  629,  21  N.  W.  115. 


244  INSTRUCTIONS    TO    JURIES.  f§316. 

pellant  may  be  successful,  he  should  not  be  allowed  the  full 
cost  of  an  abstract  containing  necessary  matter,  but  the  court 
should,  in  its  discretion,  apportion  the  costs  between  the  liti- 
gants.73 

The  abstract  should  be  a  concise  summary  of  the  substance 
of  the  record  and  not  a  mere  reprint.74  It  has  been  held  that 
an  entire  disregard  of  the  court  rules  may  affirm  the  judg- 
ment below,75  or  authorize  a  dismissal.76  A  non-compliance 
has  been  held  to  result  in  the  striking  out  of  the  abstract  or 
brief,  although  the  party  might  obviate  this  by  amending 
within  the  specified  time.77  On  the  other  hand  it  is  held  that 
a  motion  to  strike  out  will  not  be  entertained,  but  that  ob- 
jecting party  should  set  forth  in  his  abstract  or  brief  the  omit- 
ted matter  and  the  court  will,  upon  appeal,  determine  the  cor- 
rectness or  genuineness  of  the  abstract  or  brief.78 

It  is  held  under  the  statutory  provisions  modifying  the  com- 
mon law,  that  matters  properly  identified  by  the  bill  of  excep- 
tions are  a  part  thereof.79  Such  instruments  must  be  clearly 
identified  in  the  bill  and  the  original  instruments  would  not  be 
made  a  part  of  the  bill  by  merely  attaching  them  as  exhibits.80 
Proposed  pleadings  or  amendments  are  not  a  part  of  the 
record.81 

The  manner  of  preparing  an  abstract  of  record  is  usually 
set  forth  in  the  statutes  of  the  various  states,  or  in  the  rules 
of  the  Supreme  Court,  and  these  statutes  and  rules  are  to  be 
consulted.82 

73— Chi.    &    A.    R.    Co.    v.    Bell,  78— Singlemeyer  v.   Wright,    124 

209  111.  25,  70  N.  E.  754;  Donahue  Mich.  230,  82  N.  W.  887. 

v.  McCosh,  70  la.  733-8,  30  N.  W.  79— Stratton  v.  Kennard,  74  Ind. 

14;    Baldwin  v.   Foss,    71    la.    389,  302. 

30    N.   W.    389;    Chandler   v.    Fre-  80— Chicago,  etc.,  Co.  v.  Harper, 

mont    Co.,    42    id.    58;     Brown    v.  128    111.    384,    21    N.    E.    561;    Cin- 

Byam,    59   id.   52,    12   N.   W.   770;  cinnati,    etc.,    Co.    v.    Clifford,   113 

McWhirter    v.    Crawford,    104    id.  Ind.  480,  15  N.  E.  524. 

550;    Fox  v.  Grey,  105  la.  433,  75  81— Norman    v.    Cen.    Ky.    Asy- 

N.  W.  339.  lum,  26  Ky.  L.  71,  80  S.  W.  781. 

74 — McLimans   v.   Lancaster,   63  82 — Iowa — "Printed  abstracts  of 

Wis.  590,  23  N.  W.  689.  the  record  shall  be  filed  in  accord- 

75 — Long  v.  Long,  96  Mo.  180,  6  ance  with  rules  established  by  the 

S.  W.  766.  supreme  court,   and   shall  be   pre- 

76 — Heath    v.    Silverthorn   Lead  sumed  to  contain   the  record,  un- 

Mining  Co.,  39  Wis.  146.  less  denied  or  corrected  by  subse- 

77 — Arnold    v.    Chamberlain,    39  quent  abstract.     If  any  denial  or 

S.  W.  201,  14  Tex.   Civ.  App.  634.  abstract  is  filed  without  good  and 


§317.] 


APPEALS   AND   WRITS   OF   ERROR. 


24; 


§  317.  Purpose  of  Abstract — Must  be  Filed.  The  purpose 
of  an  abstract  or  a  printed  case,  as  it  is  called  in  Wisconsin, 
is  to  present  correctly  the  material  parts  of  the  record  for  the 


sufficient  cause,  the  costs  of  the 
same  or  any  part  thereof,  and  of 
any  transcript  thereby  made  neces- 
sary, shall  be  taxed  to  the  party 
causing  the  same." — Sec.  4118. 
Code  of  Iowa. 

Illinois — "In  all  cases  the  party 
bringing  a  cause  into  this  court 
shall  furnish  a  complete  abstract 
or  abridgment  of  the  record,  re- 
ferring to  the  pages  of  the  record 
by  numerals  on  the  margin.  And 
where  the  record  contains  the  evi- 
dence, it  shall  be  condensed  in 
narrative  form  in  the  abstract,  so 
as  to  clearly  and  concisely  present 
its  substance.  The  abstract  shall 
contain  a  complete  index  alpha- 
betically arranged  giving  the 
page  where  each  paper  or  exhibit 
may  be  found,  with  the  names  of 
the  witnesses  and  the  pages  of  the 
direct,  cross  and  re-direct  exam- 
ination. Provided,  that  in  cases 
brought  from  the  appellate  court 
the  abstracts  filed  in  such  court 
under  its  rules  may  be  filed  here 
by  changing  the  cover  to  conform 
to  the  rule,  and  filing  therewith 
a  printed  abstract  of  the  record 
of  the  appellate  court  and  an  in- 
dex. The  abstract  must  be  suffi- 
cient to  fully  present  every  error 
and  exception  relied  upon,  and  it 
will  be  taken  to  be  accurate  and 
sufficient  for  a  full  understanding 
of  the  questions  presented  for  de- 
cision, unless  the  opposite  party 
shall  file  a  further  abstract,  mak- 
ing necessary  corrections  or  addi- 
tions. Such  further  abstract  may 
be  filed  if  the  original  abstract  is 
incomplete    or    inaccurate   in   any 


substantial  part." — Rule  14,  111. 
Sup.   Court. 

"Abstracts  and  briefs  of  plain- 
tiff in  error  or  appellant  must  be 
filed  in  the  clerk's  office  on  or  be- 
fore the  time  required  for  filing 
the  transcript  of  record,  with 
proof  of  service  of  a  copy  of  such 
abstracts  and  briefs  on  the  oppo- 
site party  or  his  counsel,  person- 
ally or  by  mail;  and  in  case  either 
the  abstract  or  brief  is  not  so 
filed  within  the  time  prescribed, 
the  judgment  of  the  court  will, 
on  the  call  of  the  docket,  be 
affirmed.  The  defendant  in  error 
or  appellee  shall  file  his  brief, 
with  like  proof  of  service  within 
ten  days  after  the  time  so  fixed 
for  the  filing  of  briefs  by  appel- 
lant or  plaintiff  in  error,  unless 
the  time  for  the  filing  of  the  brief 
of  the  appellant  or  plaintiff  in 
error  shall  have  been  extended,  in 
which  case  he  shall  have  ten  days 
from  the  day  on  which  the  brief 
of  appellant  or  plaintiff  in  error  is 
actually  filed.  Appellant  or  plain- 
tiff in  error  shall  then  have  five 
days  in  which  to  file  a  reply 
brief,  at  the  expiration  of  which 
the  cause  will  stand  for  decision 
and  no  further  arguments  will  be 
received." — Rule  27,  111.  Sup. 
Court. 

Wisconsin — "Hereafter  in  calen- 
dar causes,  a  case  shall  be  made 
and  printed  by  the  appellant  or 
plaintiff  in  error,  which  shall  con- 
tain a  complete  abstract  or 
abridgment  of  so  much  of  the 
record  mentioned  in  the  forego- 
ing rules,  as  may  be  necessary  to 


246  INSTRUCTIONS    TO    JURIES.  [§318. 

convenience  of  the  court.83  The  various  states  usually  have 
statutes  or  rules  of  the  supreme  court  on  the  subject,  and 
where  the  rules  are  held  to  be  mandatory  an  appeal  can  only 
be  preferred  on  abstract,84  and  the  appellee  cannot  waive  com- 
pliance of  this  rule.85  Failing  to  comply  with  the  rule  it  is 
generally  held  that  the  case  will  either  be  affirmed86  or  the 
appeal  dismissed.87 

§  318.  Abstract  Must  Show  the  Objection  to  be  Considered. 
The  abstract  should  always  show  the  objections  made,  other- 
wise the  review  court  will  not  consider  it.88  So,  in  an  appeal 
from  an  order  denying  a  motion  for  a  re-taxation  of  costs,  the 
record  must  show  what  items  are  objected  to  and  also  the 
grounds  of  objection;89  and,  in  order  to  obtain  a  review  of  an 
alleged  error  in  instruction,  the  exception  must  appear  in  the 
record  or  abstract.90 

Additional  Abstracts.  It  is  not  unusual  to  allow  parties 
to  file  amended  abstract  when  they  discover  that  their  cases 
were  not  fully  presented  in  the  original  abstract.  This,  of 
course,  is  always  done  before  the  cause  is  submitted  and  at 
such  times  as  the  other  parties  would  not  be  prejudiced  there- 
by.91 No  leave  of  court  or  notice  to  appellee  is  generally  nec- 
essary in  order  to  file  an  amended  abstract,92  provided  the 
cause  has  not  been  submitted,  but  after  the  cause  has  been 
submitted,  as  where  appellee  has  argued  his  case,  appellant 
cannot  amend  his  abstract  without  leave  of  court  and,  if 
granted  at  all,  will  only  be  on  such  terms  as  seem  proper  under 
the  circumstances.93 

a  full  understanding  of  the  ques-  App.  209,  29  Pac.  1135;  Gottlieb  v. 

tions     presented     for     decision."—  Frost,  6  Colo.  App.  452,  41  Pac.  508. 

Rule  8,  Sup.  Court  Wis.  88— Shaw  v.  Bryan,  39  Mo.  App. 

83— Hay  v.  Lewis,  39  Wis.  364;  523. 

Ballard  v.  Cheney,  19  Neb.  58,  26  89 — Thomas  v.  International  Sil- 

N.    W.    587;    Alexander    v.    Irwin,  ver  Co.,  84  N.  Y.  S.  612. 

20  Neb.  204,  29  N.  W.  385;   Payntz  90 — Auckland    v.    Laurence,    19 

v.    Reynolds,    37    Fla.    533,    19    So.  Colo.  App.  291,  74  Pac.  794. 

649.  91— Wells  v.   B.   C.   R.    &   N.   R. 

84— Habbie  v.  Andrews,  111  Ala.  Co.,    56    la.    520-2,    9    N.    W.    364; 

176,  19  So.  974;    May  v.   Dyer,   57  Frost  v.  Parker,  65  la.  178-180,  21 

Ark.  541,  21  S.  W.  1064;  Williams  N.  W.  507. 

v.  Nottingham,  27  Ind.  461.  92— Frost  v.  Parker,  supra. 

85— Cox.  v.  Behm,  26  Ind.  307.  93— In  re  Caywoods  Will,  56  la. 

86— Jayne  v.  Wine,  98  Mo.   404,  301-2,  9  N.  W.  228;    Betts  v.  City 

11   S.   W.   969;    Liter  v.   Ozokerite  of  Glenwood,   52   id.   124,  2  N.  W. 

Min.  Co.,  7  Utah  487,  27  Pac.  690.  212 ;  Watson  v.  Burroughs,  104  id. 

87— Mayer    v.    Helland,    2    Colo.  745,  73  N.  W.  866. 


§319.]  APPEALS  AND  WRITS  OF   ERROR.  247 

Where  appellee  claims  appellant's  abstract  does  not  contain 
all  the  evidence,  he  should  point  it  out  in  an  additional  ab- 
stract.94 It  has  been  held  in  Iowa  that  if  it  appears  the  sub- 
mission of  the  case  was  not  delayed  or  that  prejudice  has  re- 
sulted the  additional  abstract  will  not  be  stricken  from  the 
files,  although  not  filed  within  the  time  prescribed  by  the 
rules.95 

§319.  Abstract  Taken  as  True— Time  of  Filing  Extended. 
In  absence  of  an  additional  abstract  by  appellee  the  abstract 
filed  by  appellant  will  be  regarded  as  true.96  This  rule  holds 
good  where  appellee  does  not  appear,  especially  in  so  far  as 
it  purports  to  set  forth  the  record.97 

On  application  the  court  may  extend  the  time  for  filing 
of  abstract,  provided  the  application  is  made  before  the  time 
given  by  the  statutes  has  expired,98  but  in  such  case  notice  of 
the  application  should  be  served  on  the  adverse  party  or  his 
attorney.99 

§  320.  Briefs  Requisite.  The  courts  almost  universally  re- 
quire that  parties  shall  file  briefs  for  the  information  of  the 
court  and  embody  therein  the  points  of  law  desired  to  be 
established,  together  with  the  arguments  and  authorities  upon 
which  the  contention  is  based.100  This  cannot  be  waived  by 
any  agreement  of  the  parties.1  It  is  also  incumbent  that  coun- 
sel for  the  appellee  should  file  a  brief  in  support  of  the  finding 
or  judgment  of  the  lower  court  and  the  correctness  of  the  pro- 
ceedings therein.2  Points  not  raised  in  the  trial  court,  or 
specified  in  the  assignment  of  errors,  are  not  considered  by 
the  appellate  court,  although  they  may  be  set  forth  and  dis- 
cussed in  the  brief.3     The  brief  should  contain  the  authorities 

94— Harrison  v.  C.  M.  &  St.   P.  97— Ruble  v.  Helm,  57  Ark.  304, 

Ry.  Co.,  6  S.  D.  100,  60  N.  W.  405.  21    S.   W.   470;    Daniels  v.  Knight 

95— Tucker   v.    Carlson,   113    la.  Carpet   Co.,    15   Colo.    56,    24    Pac. 

449,   85  N.  W.   901;    Clark  v.  Ells-  572. 

worth,  104  la.  442,  73  N.  W.  1023;  98— Newbury    v.    Getchell,    etc., 

Frank  v.  Levi,  110  la.  267,  81  N.  Co.,  106  la.  140,  76  N.  W.  514. 

W.    459;    Sanders    v.    O'Callaghan,  99 — Newburg  v.  Getchell,  id. 

Ill  id.   574,  82  N.  W.  969;    Salva-  100— Haberlau  v.  L.  Sh.  Ry.,  17 

dor  v.  Feeley,  105  id.  478,  75  N.  W.  111.   App.   261. 

476.  1— Disse   v.   Frank,   52   Mo.   551. 

96 — Van  Rees  v.  Witzenburg,  112  2 — Chamberlain     v.     Leslie,     39 

la.  30,  83  N.  W.  787;    Kearney  v.  Fla.    452,   22    So.   736. 

Ferguson,     50    id.    72;     Hardy    v.  3— Nail  v.  Wabash  Ry.,   97  Mo. 

Moore,  62  id.  65,  17  N.  W.  200.  68,  10  S.  W.  610. 


248  INSTRUCTIONS    TO    JURIES.  [§321. 

cited  in  support  of  the  contention  and  their  applicability  to 
the  error,4  and,  if  the  authorities  cited  in  the  brief  do  not  sup- 
port the  reasons  assigned  there  can  be  no  sufficient  ground 
for  complaint  involving  the  striking  of  the  brief  from  the  fT.es.5 

§  321.  Failure  to  File  Brief — Amendments.  Briefs  are  usu- 
ally required  by  the  rules  of  the  court  and  a  failure  to  tile  a 
brief  has  been  considered  a  waiver  of  the  right  to  be  heard,6 
and  will  result  in  an  affirmance  of  the  judgment7  or  dismissal 
of  the  appeal,8  or  at  least  in  a  continuance,9  but  a  delay  of 
but  short  time,  as  of  a  few  hours,  has  been  considered  as  in- 
sufficient to  warrant  affirmance  ;10  and  even  when  the  brief 
was  filed  a  month  after  the  appeal  was  perfected,  though  not 
served  for  several  days  afterwards,  the  court  held  it  not  a 
ground  for  affirmance.11  Errors  argued  for  the  first  time  in 
the  reply  brief  will  be  disregarded;12  so  also,  objections  raised 
for  the  first  time  in  the  supreme  court  will  not  be  consid- 
ered;13 but  this  rule,  however,  seems  not  to  apply  in  criminal 


cases 


14 


A  party  has  a  right  to  amend  his  brief  to  the  extent  of 
citing  different  authorities;  it  has  been  held,15  however,  that 
after  the  motion  attacking  the  brief  for  not  conforming  to  the 
rules  has  been  made,  an  amendment  will  not  be  allowed.16  A 
contrary  rule,  however,  seems  to  obtain  in  the  federal  courts.17 

§  322.  Contents  of  Briefs.  As  a  general  rule  it  may  be 
stated  that  errors  not  specifically  referred  to  in  the  brief, 
although  they  may  have  been  included  in  the  assignment  of 
errors  in  the  abstract,  will  not  be  noticed  by  the  reviewing 

4 — Peele  v.  Provident  Fund.,  147  11 — Wood  v.  Fisk,  45   Ore.   615, 

Ind.    543,    44    N.    E.    66;    Kerr    v.  77  Pac.  198. 

Smiley,  77  111.  App.  88.  12— Fink   v.    Des   Moines,   — la. 

5— Fishback  v.  Brammel,  6  Wyo.  — ,  80  N.  W.  28. 

293,  44  Pac.  840.  13— Bayne  v.  Lettisville,  103  la. 

6— Le    Breton    v.    Swartzell,    14  481,    72    N.   W.    693;    Eastland   v. 

Okla.  521,  78  Pac.  323.  Summerville,    111    la.    164,    82    N. 

7— Rayner  v.  Rayner,  77  la.  282,  W.  475. 

42  N.  W.  184.  14— State  v.   Nine,   105   la.   131, 

8— Schulz  v.  Buederick,  —  Tex.  74  N.  W.  945. 

Civ.  App.  — ,  81  S.  W.  384.  15— Peck   v.   Peck,  —  Tex.  Civ. 

9— In  re  Haase,   91  N.   Y.   Sup.  App.  — ,  83  S.  W.  257. 

373.  16— Ibid. 

10 — Buesthner  v.  Creamery  Co.,  17 — The     Kawailani,     128     Fed. 

—  la.  — ,  100  N.  W.  345.  879. 


§322.j  APPEALS   AND   WRITS   OF   ERROR.  240 

court  and  will  be  considered  as  having  been  waived;18  and  for 
the  same  reason  evidence  bearing  on  the  issue  should  be  set 
forth  where  it  is  complained  that  the  verdict  failed  to  suffi- 
ciently find  upon  the  issue. 

The  mere  statement  that  the  court  erred  without  pointing 
out  the  error  complained  of,  is  in  the  nature  of  a  conclusion 
and  is  insufficient.19  So  also  a  statement  that  the  judgment 
is  excessive  is  a  mere  conclusion.20  And  where  it  is  com- 
plained that  the  hypothetical  questions  are  erroneous  in  as- 
suming evidence  not  admitted,  it  must  be  pointed  out.21 

The  fact  that  such  errors  were  observed  in  oral  argument 
before  the  court  does  not  sufficiently  bring  the  matter  before 
the  court  where  they  are  not  included  in  the  briefs  filed.-2 
Errors  complained  of  should  be  specifically  designated.23  It 
is  not  the  duty  of  the  reviewing  court  to  search  for  errors. 
Thus,  it  is  held  that  the  particular  evidence,  the  admission  or 
rejection  of  which  is  complained  of,  should  be  pointed  out 
or  referred  to  in  such  a  way  as  to  be  clearly  designated.24  It 
is  insufficient  to  merely  state  that  the  allegations  or  the  ver- 
dict is  unsupported  by  evidence;25  the  very  pages  in  which 
such  evidence  is  found  should  be  specifically  cited.26 

Instructions  which  are  complained  of  as  erroneous  should 
be  set  out  in  the  abstract,  and  where  error  is  complained  of 
in  refusing  instructions  the  brief  should  point  out  wherein 
the  evidence  warrants  the  giving  of  such  instruction.27 

The  language  of  the  brief  should  not  be  disrespectful  or 
abusive,  either  towards  the  judge  or  the  parties,  and  if  so, 
such  matter  may  be  stricken  out;28  but  it  is  held  that  only 

18— Roberts     v.     Wilkinson,     34  445,  75  N.  W.  80;    Joyce  v.  White, 

Mich.  129;   Lewis  v.  King,  180  111.  95  Cal.  336,  30  Pac.  524. 

259,  54  N.  E.  330;  Ferry  v.  Nolen,  24— Bowman     v.     Simpson       68 

135  Ind.  80,  34  N.  E.  710.  md.    229;    Gregg  v.   Kommers,    22 

19— Chicago,     etc.,     Ry     Co.     v.  Mont.  511,  57  Pac.  92. 

Hunter,  128  Ind.  213,  27  N.  E.  477;  25-Wolverton  v.  Taylor,  54  111. 

Chicago  v.  Spoor,  91  111.  App.  472.  A        38Q 

20— Chicago    v.     Spoor,    91     111.  "         "  _.  no  _. 

.„»  26— Conger  v.  Dmgman,  9S  Wis. 

APP-  472-  417    74  N    W    1"5 

21— Xenia    Real    Estate    Co.    v.     *   ''  ' 

Dock,  140  Ind.  259,  39  N.  E.  870.  27~Le  Ro^  etc-  R*  v-  Crum>  39 

22— Dodge  v.  McMahan  61  Minn.  Kan-  642,  18  Pac.  944. 

175,  63  N.  W.  487.  28 — Rosenberg   v.    Stein,    77    111. 

23— New  Albany  Gas  Lt.  Co.  v.  App.    248;     Mathews    Appeal,    101 

New  Albany,  139  Ind.  860,  39  N.  E.  Pa.    St.    444;    Eureka    Steam    Htg. 

462;  Wirehauser  v.  Early,  99  Wis.  Co.  v.    Sloteman,   69  Wis.   398,   34 


250  INSTRUCTIONS    TO    JURIES.  [§323. 

in  extreme  cases  should  the  brief  be  stricken  from  the  files 
for  such  reasons.29 

There  is  a  difficulty  arising  in  the  holding  of  the  courts  as 
to  the  consequences  of  striking  the  brief  from  the  file,  some 
courts  holding  that  the  appeal  would  then  be  dismissed,  al- 
though it  is  usual  to  grant  leave  for  another  brief  to  be  filed 
within  a  certain  time.30 

§323.  Matters  Reviewed  on  Appeal.  Eulings  on  evidence 
cannot  be  considered  or  reviewed  upon  appeal  unless  excep- 
tions thereto  were  urged  in  the  case,31  and  if  evidence  is  to  be 
reviewed,  the  bill  of  exceptions  would  show  that  all  of  the 
evidence  is  included  therein.32  However,  it  is  held  that  where 
it  is  clear  that  the  record  contains  all  of  the  evidence  the  su- 
preme court  will  review  same  on  appeal  although  an  express 
statement  to  that  effect  is  omitted.33 

The  sufficiency  of  pleadings  will  not  be  reviewed  unless  the 
same  are  included  in  the  record,34  and  where  the  only  excep- 
tion is  that  there  is  no  cause  of  action,  it  is  held  sufficient  to 
include  the  pleading  assailed,  together  with  the  exception 
and  judgment  thereon.35  For  the  same  reason  the  overrul- 
ing of  demurrers  cannot  be  considered  where  the  record  does 
not  contain  any  pleadings  and  the  demurrers  and  rulings 
thereon  are  not  set  forth. 

In  order  to  present  an  alleged  error  the  record  must  show 
the  ruling  complained  of,  the  objection  and  exception  thereto, 
and  so  much  of  the  evidence  as  to  make  the  matter  intelligible. 

§  324.  Writ  of  Error  a  Supersedeas  at  Common  Law.  The 
writ  of  supersedeas  is  designed  to  supersede  the  judgment  of 
law  brought  up  for  review  by  writ  of  error.  It  was  a  writ 
directed  to  an  officer  commanding  him  to  cease  from  enforc- 
ing the  execution  of  the  writ  which  he  may  have  in  his  hands. 
It  is  now  used  synonymous  with  the  stay  of  proceedings  in 
the   enforcements   of  judgments.36 

N.   W.   387;    Scroggins   v.   Brown,  32 — Grand  Lodge  I.  O.  O.  F.  S. 

14  111.  App.  338.  O.  I.  v.  Onstein,  110  111.  App.  312. 

29— People     v.     Parke,     28    Col.  33— Fisher  v.  C.   C.  R.  Co.,  114 

322,  57  Pac.  692.  111.  App.  217. 

30 — Scroggins  v.   Brown,   14   111.  34 — Consolidated       St.       C.       v. 

App.    338;    Sears    v.    Starbird,    75  Staggs,  164  Ind.  331,  73  N.  W.  695. 

Cal.  91,  16  Pac.  531.  35— Succession     of    Buque,     112 

31— Atl.  &  B.  R.  C.  v.  Rabinowitz  La.  1046,  136  So.  849. 

120  Ga.  864,  4S  S.  E.  326;   Tex.  &  36— Dulin  v.  Pac.  Woods  Co.,  98 

P.  R.  C.  v.  Birdwell,  —  Tex.   Civ.  Cal.  304,  33  Pac.  123. 
App.  — ,  86  S.  W.  1067. 


§325.  J  APPEALS  AND   WRITS  OF  ERROR.  251 

It  is  the  suspension  of  the  power  below  on  the  judgment  ap- 
pealed from,  and  if  a  writ  of  execution  has  issued  upon  such 
judgment,  it  is  a  prohibition  of  the  execution  of  the  writ.37 

Originally  a  writ  of  error  in  common  law  operated  as  super- 
sedeas of  all  proceedings.38 

Writs  of  error  were  made  use  of  to  a  large  extent  under  the 
common  law  for  the  purpose  of  delay  until  various  acts  of 
Parliament  were  passed  requiring  security 'to  be  furnished  in 
order  that  the  writs  might  have  the  effect  of  a  stay.39  So, 
also,  an  appeal,  as  well  as  a  writ  of  error,  operated  per  se  as 
a  supersedeas  under  the  former  practice  in  chancery.40 

For  this  reason  it  is  generally  held  that  unless  a  statute 
provides  that  some  security  or  bond  be  given,  the  appeal  or 
writ  of  error  will  in  itself  be  a  supersedeas.41 

The  writ  of  supersedeas  was  originally  a  writ  directed  to  an 
officer  commanding  him  to  cease  from  enforcing  the  execution 
of  the  writ  he  was  about  to  execute  or  which  might  after- 
wards come  into  his  hands  for  execution.  It  is  an  auxiliary 
process  to  suspend  the  enforcement  of  the  judgment  which  has 
been  brought  up  by  a  writ  of  error  for  review,  or,  in  other 
words,  it  supersedes  the  judgment  and  is  used  synonymous 
with  a  stay  of  proceedings. 

An  appeal  does  not,  of  itself,  suspend  or  supersede  the  en- 
forcement of  the  judgment,  per  se.42 

The  supersedeas  operates  to  preserve  the  matter  in  status 
quo  pending  the  determination  of  the  appeal  and  suspend  all 
further  proceedings  therein.43 

§  325.  Application  for  Supersedeas,  How  and  When  Granted 
— Bond  for,  When  Waived,  and  Exemptions  From.  An  appli- 
cation for  a.  stay,  or  supersedeas,  should  be  made  by  a  motion 
and  the  applicant  must  pay  the  cost  of  such  application.  No 
notice  to  the  adverse  party  is  required  of  such  an  application 
in  the  absence  of  statute.44     The  granting  of  this  writ  is  held 

37— Mabray    v.    Ross,    1  Heisk  Hovey  v.  McDonald,  109  U.  S.  150. 

(Tenn.)   769.  41 — Hudson  v.   Smith,  sup?-a. 

38 — Bacon's    Abridgment  of   Su-  42 — Hovey   v.    McDonald,    supra. 

persedes,  D.  4.;    Hudson  v.  Smith,  43— Street  v.  Hiles,  77  Wis.  475, 

9   Wis.   122;    Hotel  v.  Kountz,  107  46  N.  W.  810;  Hyatt  v.  Clever,  104 

U.  S.  378.  la.  338,   73  N.  W.  831. 

39 — Hudson     v.     Smith,  supra;  44 — Matthew  v.  Nance,   49  S.  C. 

Hotel  v.  Kountz,  supra.  389,  27  S.  E.  100. 

40 — Hudson     v.     Smith,  supra; 


252  INSTRUCTIONS    TO    JURIES.  [§326, 

to  be  a  matter  for  the  discretion  of  the  court,  and  in  this  view 
of  the  case  the  court  may  affix  such  conditions  as  is  considered 
right  and  proper  to  protect  the  rights  of  the  party.45 

It  is  provided  in  some  states  that  executors,  administrators, 
receivers,  trustees  and  other  parties,  as  well  as  parties  in 
forma  pauperis,  are  exempt  from  the  giving  of  bond  to  secure 
a  supersedeas.46  So,  also,  is  the  United  States  or  the  state  or 
state  board  of  public  works,  usually  exempt  from  the  giving 
of  such  a  bond.47 

It  appears  that  such  a  bond  may  be  waived  by  the  adverse 
party,  but  the  mere  appearance  of  counsel  for  appellee  can- 
not be  considered  as  a  waiver  of  the  stay  bond.48 

§  32G.  Separate  and  Successive  Appeals.  Separate  and  dis- 
tinct causes  of  action  not  consolidated  in  the  trial  court  can- 
not be  brought  up  for  review  by  one  appeal  or  writ  of  error, 
thus,  where  separate  suits  and  separate  pleadings  were  filed, 
but  the  records  show,  however,  that  by  agreement  the  evi- 
dence being  identical  in  both  cases  was  heard  at  the  same  time 
on  both  cases  and  with  the  same  effect  as  if  heard  separately 
in  each  case,  it  was  held  that  both  cases  could  not  be  incor- 
porated in  one  transcript  and  heard  together  on  appeal,  as 
the  cases  were  not  actually  consolidated  in  the  trial  court;49 
neither  can  the  parties  by  agreement  or  consent  authorize 
their  separate  cases  to  be  tried  together  on  appeal,50  and 
where  an  attempt  has  been  made  to  thus  unite  two  appeals 
the  court  should  dismiss  them  for  duplicity.51 

A  party  who  can  obtain  all  the  relief  to  which  he  is  entitled 
upon  one  appeal  can  not  be  permitted  to  bring  two  appeals,52 
although  under  the  statutory  system  of  procedure  a  party  has 
been  held  entitled  to  avail  himself  of  both  remedies  of  appeal 
and  writ  of  error,  and  one  party  to  the  case  may  bring  a  writ 
of  error  and  the  other  appeal.53 

45 — Home  Fire  Ins.  Co.  v.  Dutch-  49 — Roach    v.    Baker,    145    Ind. 

er,  48  Neb.  755,  67  N.  W.  766;    N.  330,  43  N.  B.  932. 

Y.   Sec.  Co.  v.   Saratoga,  etc.,  Co.,  50 — Mohr  v.    Cochrane,   20   Tex. 

39  N.  Y.  Sup.  486.  Civ.     App.     183,     49     S.    W.     677; 

46— Leach  v.  Jones,  86  N.  C.  404;  Brown   v.    Spafford,   95  U.    S.   474. 

Smith  v.  Dennison,  94  111.  582.  51 — Ballou  v.   Chicago,   etc.,   Ry. 

47— Treadway     v.     Sempill,     28  53  Wis.  150,  10  N.  W.  87. 

Cal.  652.  52— Hopkins  v.  Hopkins,  39  Wis. 

48 — Otterbach  v.  Alexandria  Ry.  166. 

Co.,   26   Gratt.    (Va.)    940.  53— Harding   v.    Larkin,    41    111. 

413. 


§  326.J  APPEALS  AND   WRITS   OF  ERROR.  253 

On  the  other  hand,  it  is  hold  that  a  party  cannot  split  an 
appeal  into  fragments  and  appeal  from  a  part.  He  may  only 
appeal  from  the  final  judgment,54  but  where  several  judg- 
ments are  rendered,  separate  and  distinct,  there  may  be  ap- 
peal from  one  and  not  from  the  other.55 

It  seems  that  under  the  statutory  system  of  procedure  a 
party  may  avail  himself  of  both  remedies  of  appeal  and  writ 
of  error,  one  party  may  appeal  and  the  other  bring  a  writ  of 
error  on  the  same  subject.56  But  where  a  party  can  obtain 
all  the  relief  to  which  he  is  entitled  upon  one,  he  will  not  be 
permitted  to  bring  two  appeals.57 

Separate  and  distinct  causes  not  consolidated  in  the  trial 
court  cannot  be  brought  up  for  review  by  one  appeal  or  one 
writ  of  error.  Thus  it  was  held  that  where  separate  suits  and 
separate  pleadings  were  filed,  and  the  record  showed,  how- 
ever, that  by  agreement,  the  evidence  being  the  same,  was 
heard  at  the  same  time  on  both  matters  and  with  the  same 
effect  as  if  found  separately  in  each  case,  but  the  cases  were 
not  consolidated  in  the  trial  court,  both  cases  could  not  be 
incorporated  in  one  transcript  and  heard  together  on  appeal.58 

So,  also,  parties  cannot  authorize  their  separate  cases  to  be 
tried  together  by  agreement.59 

Dismissal  of  Appeals.  The  law  seems  to  be  well  settled 
that  a  party  may  dismiss  or  withdraw  his  appeal  and  be- 
gin another  within  the  time  limited60  for  taking  an  appeal. 
The  first  appeal  should  be  dismissed  if  pending,  as  there  can 
be  no  second  appeal  while  the  first  is  still  in  court,  without  a 
clear  abandonment  of  the  first  appeal,  and  where  the  first  ap- 
peal is  not  dismissed,  or  the  intention  so  to  do  clearly  evi- 
denced from  the  second  appeal,  the  courts  hold  that  the  second 
appeal  should  be  dismissed.61     The  beginning  of  a  second  ap- 

54 — Anderson  v.  Moberly,  46  Mo.  59 — Mohn    v.    Cochrane,    supra; 

191;    McGee  v.   Tucker,  122  N.  C.  Brown  v.   Spafford,  supra. 

186,  29  S.  E.  833.  60— Johnson  v.  Jennison,  18  La. 

55— Constantine     v.     Fresh,     17  Ann-    190>*    Stutsman   v.    Sharpies, 

Tex.  Civ.  App.  444,  43  S.  W.  1045.     125  Ia-  335-  101  N-  W-  105;  Groen- 

dike  v.  Musgrave,  123  Ia.   535,  99 


56 — Harding  v.    Larkin,    41    111. 
413. 


N.  W.  144. 

61 — Newberry    v.    Getzel    et    al. 
57— Hopkins  v.   Hopkins,  supra.     106   Ia    140.    76  N    w    514;    Dor. 

58— Roach    v.    Baker,    145    Ind.     mand    v.    McDonald,    47   Fla.   252, 
330,  43  N.  E.  932.  36  So.  52. 


254  INSTRUCTIONS    TO    JURIES.  [§326. 

peal  will  operate  only  as  a  dismissal  of  the  first,  per  se,  when 
the  intention  is  clearly  evident.62 

The  proceeding  cannot  be  brought  up  again  for  review  after 
a  final  determination  secured  upon  the  first  appeal03  unless 
some  new  matter  has  arisen  in  the  case  sufficient  to  warrant 
such  action.64 

While  an  appeal  may  again  be  prosecuted  in  the  same  case 
where  there  has  been  new  proceedings  occurring  in  the  case, 
it  is  held  that  this  applies  only  as  to  points  not  passed  upon 
in  the  first  instance.05 

An  appeal  will  be  dismissed  upon  the  mere  request  of  the 
appellant  or  upon  the  stipulation  of  the  appellant  and  appellee, 
especially  where  the  public  is  not  considered  a  party  or  the 
rights  of  other  persons  not  parties  to  the  record  will  not  be 
affected  thereby.00 

It  is  customary  that  the  appellant  withdraw  only  as  to  him- 
self and  not  as  to  his  co-appellants.  In  this  case  it  was  held 
that  where  the  several  defendants  are  so  identified  that  a 
judgment  against  one  cannot  be  disturbed  without  affecting 
all  the  defendants,  a  dismissal  as  to  one  would  operate  as  a 
dismissal  as  to  all.  In  all  cases  of  appeal  the  leave  of  court 
must  first  be  obtained  in  order  that  the  case  may  be  dis- 
missed,07 and  in  some  cases  it  is  also  considered  necessary  to 
obtain  the  consent  of  the  appellee.68 

An  appeal  which  has  not  been  perfected  may  be  abandoned 
and  recommenced,  provided  the  prescribed  limitation  of  time 
within  which  to  appeal  has  not  expired.69  This  rule  has  been 
held,  however,  not  to  apply  where  the  appeal  is  abandoned  by 
reason  of  not  being  perfected  within  the  proper  time,  or  where 
the  parties  fail  to  file  the  record  within  the  proper  time.70 

62— Da  Costa  v.  Dibble,  45  Fla.  67— Hyde     v.      Tracy,      2     Day 

225,  33   So.  52.  (Conn.)    491;    Merrill   v.    Deering, 

63— State  v.  Judges,  33  La.  Ann.  24  Minn.   179;   Cartlidge  v.  Sloan, 

151.  124  Ala.  569,  26   So.  918. 

64-Bridendolph     v.     Zeller,     5  68-Wolf  v.  Poirier,  19  La.  Ann. 

Md.    58;    Masonic    Temple    Co.    v.  j03. 


69 — Osborne  v.  Logus,  28  Ore. 
302,  37  Pac.  456;  Ward  v.  Hollins, 
14  Md.  158. 


Com.,  11  Ky.  L.  383,  12  S.  W.  143. 

65— Hendon  v.  N.  C.  Ry.,  127 
N.  C.  110,  37  S.  E.  155;  Johnson 
v.  Von  Kettler,  84  111.  315. 

66-Mitchell  v.  Maupin,  3  T.  B.         ™-Cahill  v.   Cantwell,   31  Neb 
Mon.   (Ky.)   185;  Walz  v.  N.  O.  R.     158'  47  N"  W'  849" 
Co.,  35  La.  628. 


§326.1  APPEALS   AND    WRITS   OF   ERROR.  255 

An  appeal  which  is  taken  before  the  final  judgment  has  been 
rendered  in  the  lower  court  is  a  mere  nullity  and  does  not  in 
any  way  affect  the  right  to  a  subsequent  appeal  within  proper 
time.71 

It  is  generally  held  that  the  failure  to  comply  with  some 
requirement  concerning  the  perfecting  of  an  appeal,  the  ren- 
dering it  effective  and  causing  its  dismissal,  does  not  bar  a  sec- 
ond appeal  when  taken  in  due  time.72  It  is  held  in  Illinois, 
however,  that  where  an  appeal  is  dismissed  either  by  agree- 
ment of  parties,  or  by  any  other  method,  excepting  that  the 
appeal  was  not  perfected  in  proper  form,  that  such  dismissal 
will  bar  another  appeal.73  Mere  insufficiency  in  the  perfect- 
ing of  an  appeal,  as  for  instance,  where  the  petition  in  error 
was  dismissed  on  the  ground  that  the  record  attached  was  in- 
sufficient, is  usually  not  held  to  bar  a  second  appeal.74  Nor 
is  the  mere  lack  of  the  certificate  required  by  statute  suffi- 
cient to  bar  the  taking  of  a  second  appeal.75 

The  continued  existence  of  a  controversy  is  essential  and  for 
this  reason  the  transfer  or  extinguishment  of  the  appellant's 
right  is  generally  considered  sufficient  for  the  dismissal  of  the 
case.  Thus,  where  there  is  no  litigable  right,  as  where  the  re- 
lationship out  of  which  the  controversy  arose  has  ceased  to  ex- 
ist,76 or  where  the  case  involved  the  right  to  an  office  of  which 
the  term  has  since  expired.77 

When  it  appears  that  the  court  has  no  jurisdiction  it  is 
within  the  power  of  the  appellate  court  to  dismiss  the  ap- 
peal,78 or,  where  the  proceedings  do  not  comply  with  the 
rules  of  the  court  by  reason  of  defects  in  the  proceedings.79 

71— Matter  of  Rose,  80  Cal.  166,  76— Stein   v.   Kesselgrew,   91   N. 

22   Pac.   86;    Hook  v.  Richardson,  Y.   Sup.   64. 

106   111.    392;    Stokes  v.    Shannon,  77— Riggins  v.  Richards,  97  Tex. 

55  Miss.  583.  526,  80  S.  W.  524. 

72— Culliford    v.    Gadd,    131    N.  78— Doyle  v.  Wilkinson,  120  111. 

Y.    632,    32    N.    E.    136;    Karth    v.  430,    11    N.    E.    890;     Gunther    v. 

Light,    15    Cal.    324;    State   v.   Sil-  Mason,   125   Ala.   644,   27    So.   843; 

verstein,  77  Mo.  App.  304.  Rose  v.  Richmond,  58  la.  54,  12  N. 

73— Evans  v.  People,  27  111.  App.  W.    80;    Vandermark   v.    Jones,    4 

616.  Kan.  App.  666,  46  Pac.  53. 

74 — Weeks  v.  Meddler,   20  Kan.  79— McManus    v.    Swift,    76    la. 

57.  576;  Talbot  v.  Davis,  6  Kan.  App. 

75— Good  v.  Dalland,  119  N.  Y.  640;     Dietrich    v.    Adams,    9    W. 

153,  23  N.  E.  474.  Notes   (Pa.)   492;    Smith  v.  Parks, 


256  INSTRUCTIONS    TO    JURIES.  [§326. 

Wherever  it  appears  that  a  controversy  has  ceased  to  ex- 
ist, the  court  will  usually  dismiss  an  appeal  or  writ  of  error 
of  its  own  motion.80 

It  is  held  that  an  appeal  dismissed  for  want  of  prosecution 
leaves  the  case  in  the  court  below  and  does  not  bar  a  subse- 
quent appeal  taken  within  due  time.  Under  this  rule  the  fail- 
ure to  file  a  transcript  of  record  within  the  proper  time  would 
not  bar  a  subsequent  appeal.sl  On  the  contrary,  however,  it 
is  held  that  the  dismissal  of  an  appeal  or  writ  of  error  oper- 
ates as  an  affirmance  of  a  judgment  and  bars  any  subsequent 
appeal.82 

On  this  subject  it  is  held  in  Missouri  that  where  a  party 
has  appealed  but  for  any  reason  has  lost  the  benefit  of  his  ap- 
peal that  the  lower  court  has  lost  jurisdiction  and  that  further 
proceedings  can  only  be  had,  if  at  all,  by  writ  of  error.83 

The  dismissal  of  a  writ  of  error  to  the  supreme  court  is  held 
to  be  equivalent  to  a  non-suit  and  cannot  prevent  further  pro- 
ceedings which  are  a  matter  of  right  until  they  have  been 
barred  by  statutory  provisions.84  A  second  writ  of  error  has 
been  held  proper  to  be  sued  out  after  the  first  has  been  dis- 
missed.85 

55    Tex.    82;     Phenix    Ins.    Co.    v.  82— Ry.  Co.  v.  Belt,  36  Ohio  St., 

Hedrick,  69  111.  App.  194.  93;    Rowland   v.   Kreyenhagen,    24 

80— McAdam  v.   People,  179   111.  Cal.   52;    Casnova  v.   Kreusch,   71 

316,  53  N.  E.   1102;   Ames  v.  Wil-  W.  Va.  720. 

liams,  73  Miss.  772;   Berks  Co.  v.  83— Brill  v.  Meek,  20  Mo.  358. 

Jones,  21  Pa.  St.  4134.  84 — Garrick   v.   Chamberlain,   97 

81— Marshall    v.    Milwaukee    R.  111.  620. 

Co.,  20  Wis.  644;   Williams  v.  La-  85— Power  v.  Frick,  2  Pa.  306. 
penotiere,  26  Fla.  333. 


PART   II. 

FORMS  OF  INSTRUCTIONS. 

The  forms  of  instructions  given,  have  been  held  to  state  the  law  cor- 
rectly in  the  cases  cited  and  may  readily  be  modified  so  as  to  make  them 
applicable  to  other  cases,  bearing  in  mind  that  an  instruction  is  never 
proper  unless  based  upon  the  evidence  in  the  case. 

CHAPTER  XVI. 


CREDIBILITY  OF  WITNESSES  IN  GENERAL. 
See  Erroneous  Instructions,  same  chapter  head  in  Vol.  III. 


§  327.  Credibility  and  weight  of 
testimony  questions  of  fact. 

§  328.  Credibility — What  the  jury 
should  consider. 

§  329.  Where  the  evidence  is  con- 
flicting. 

§  330.  Duty  of  jury  to  reconcile 
conflict    of    testimony. 

§  331.  Equal  number  of  witnesses 
to  the  same  point  on  each 
side. 

§  332.  Conflicting  testimony,  what 
jury  should   consider. 

§  333.  The  jury  have  no  right  to 
disregard  the  testimony  of 
any   witness   without   cause. 


§  334. 


§335. 


§  336. 


Credibility  of  witnesses,  how 
determined. 

Credibility  of  witnesses,  pre- 
ponderance, how  deter- 
mined. 


Affirmative      evidence      com- 
pared   with    negative. 

§  337.  Former  life   of  witness. 

§  338.  Interest   of  witnesses. 

§  339.  Probability  of  testimony 
of  disinterested  witnesses — 
Means    of    information. 

§  340.  Uncontroverted  testimony  of 
credible    witness. 


§  327.  Credibility  and  Weight  of  Testimony  Are  Questions  of 
Fact,  (a)  The  Jury  are  sole  judges  of  the  facts  and  the  credibility 
of  the  witnesses,  and  the  weight  to  be  given  their  testimony.1 

(b)  You  are  the  exclusive  judges  of  the  facts  proven,  of  the 
credibility  of  the  witnesses,  and  the  weight  to  be  given  to  the  testi- 
mony.2 

(c)  You  are  the  sole  judges  of  the  credibility  of  the  witnesses 
and  of  the  weight  to  be  given  to  their  testimony.3 

(d)  You  are  the  exclusive  judges  of  the  credibility,  of  the 
weight  of  the  evidence,  and  all  the  facts  proved.4 


1 — Paxton  et  al.  v.  Knox  et  al., 
123  Iowa  24,  98  N.  W.  468. 

2— Nite  v.  State.  41  Tex.  Crim. 
App.  340,  54  S.  W.  763. 

3— Parkins  v.   Mo.   Pac.  R.   Co.,  4 


Neb.  unof.,  93  N.   W.   197;   C.   &  A. 
R.  R.  Co.  v.  Fisher,  38  III.  App.  33. 
4 — Bingon   v.   State,  —    Tex.   Civ. 
App.  — ,  56  S.  W.  339. 


17 


257 


258  FORMS  OF  INSTRUCTIONS.  [§  327, 

(e)  You  are  the  sole  judges  of  the  credibility  of  the  witnesses 
and  of  the  weight  to  be  given  to  the  testimony.5 

(f)  You  are  the  judges  of  the  credibility  of  the  witnesses,  and 
the  weight  to  be  attached  to  the  testimony  of  each  and  all  of 
them.6 

(g)  The  jury  are  the  sole  judges  of  the  facts  in  this  case,  and 
they  are  to  determine  this  case  upon  their  understanding  of  the 
facts  introduced  in  evidence  solely,  without  regard  to  any  other 
person's  opinion  thereon,  no  matter  whoever  they  may  be.7 

(h)  The  court  does  not,  in  any  of  the  instructions  which  it  is 
giving  you,  mean  or  intend  to  tell  you,  or  even  to  intimate  to  you, 
what  any  of  the  facts  in  this  case  are,  but  you  are  the  sole  judges 
of  what  the  facts  in  this  case  are;  and  also  the  court  does  not  in 
any  of  its  instructions  to  you,  mean  or  intend  to  say,  or  even  to 
intimate,  what  your  verdict  in  this  case  should  be.8 

(i)  The  jury  are  by  law  made  the  sole  and  responsible  judges 
of  the  evidence;  it  is  their  duty  to  determine  the  weight  and  effect 
of  the  evidence  as  a  whole  and  as  necessary  to  such  determination 
to  recall  and  weigh  the  testimony  of  each  witness  and  judge  his  or 
her  credibility  as  best  they  can  in  the  light  of  the  whole  facts  as 
disclosed  by  the  evidence.9 

(j)  You  are  the  exclusive  judges  of  the  credibility  of  the  wit- 
nesses examined  on  this  trial,  and  you  will  determine  for  your- 
selves the  weight  that  should  be  given  to  the  testimony  of  each  one 
of  them,  and  to  each  fact  and  circumstance  in  evidence  in  the  case, 

5— Galveston,  H.  &  S.  A.  Ry.  Co.  sion    that    they    are   at    liberty    to 

v.  Williams,  26  Tex.  Civ.  App.  153,  decide    the   case   regardless   of   the 

62  S.  W.  808.  instructions    and    of   the    evidence. 

6— State    v.    McPhail,    39    Wash.  If    it    be    admitted    that    this    in- 

199,  81  Pac.  683.     In  approving  the  struction   is   defective  in  not  stat- 

above  instruction  the  court  said:  ing  to  the  jury  that  they  were  to 

"The  appellant  contends  that  the  find  the  facts  from  the  evidence, 
jury  should  have  been  instructed  and  in  not  telling  them  that  in  de- 
that  they  were  the  sole  judges  of  termining  the  facts  they  were  to 
the  facts.  The  charge  given  was  be  guided  by  the  instructions  of 
correct  as  far  as  it  went,  and  if  the  court,  such  defect  is  not  neces- 
the  appellant  desired  a  more  spe-  sarily  reversible  error.  Instruc- 
cific  charge,  or  a  charge  in  the  tions  are  to  be  considered  as  a 
language  of  the  statute,  he  should  single  series,  and  when  so  con- 
have  requested  it.  There  was  no  sidered.  if,  as  a  whole,  they  state 
error  in  the  charge  given  "  the   law  correctly,   it   is   sufficient, 

7-Zube    v.    weber,    67  *Mich.    52,  even  though  one  or  more  of  them, 

34  N    W   °64  standing   alone,    might   be    errone- 

The    court    held    the    refusal    to  ?£%11Ce£t,,;alaRy-  ?°'  ll  Bannister, 

~ive  the  above  instruction  was  re-  i?5  I1L  50-       Ses  also  State  v-   Mc" 

™  ZimI   ^JrZ     mstrucuon  was  re  Carver,   194   Mo.    717,   92   S.   W.   684; 

versiDie  error.  state    y    Morgan>   27   utah   103>    74 

8— W.    C.    St.    R.   R.    Co.   v.   Vale,  pac.     526;      State      v.      Burton,      27 

117    111.    App.    155.       The    court    in  Wash.    528,    67    Pac.    1097;    State    v. 

commenting     on     the      above     in-  Todd,    194    Mo.    377,    92    S.    W.    674; 

struction  said:     "Appellant  asserts  Goodwine  v.  State,  5  Ind.  43,  31  N. 

thnt   this  instruction  is  misleading  E.  554. 

nnd   erroneous,  because  it  tends  to  9— Cupps    v.    State,    120    Wis.    504, 

make  the  jury  independent  of  the  97    N.    W.    Rep.    210,    102    Am.    St. 

court,  and  to  give  them  the  impres-  Rep.    996. 


§328.]  CREDIBILITY  OF  WITNESSES.  259 

and  after  carefully  weighing  and  considering  all  the  evidence,  facts 
and  circumstances,  you  will  determine  for  yourselves  what  allega- 
tions contained  in  the  complaint  have  been  proven  by  a  preponder- 
ance of  the  evidence  and  what  have  not.10 

§  328.  Credibility — What  the  Jury  Should  Consider  in  Passing 
Upon,  (a)  You  are  the  sole  judges  of  the  credibility  of  the  wit- 
nesses, and  of  the  weight  to  be  given  their  testimony.  You  may 
take  into  consideration  their  interest,  bias,  or  prejudice,  if  any, 
their  relationship  to  the  parties  and  to  the  case,  if  any,  the  proba- 
bility or  improbability  of  the  story  related  by  them,  and  any  and  all 
other  facts  and  circumstances  in  evidence  which  in  your  judgment 
would  add  to  or  detract  from  their  credibility  or  the  weight  of 
their  testimony.11 

(b)  The  jury  are  sole  judges  as  to  the  credibility  of  witnesses, 
and,  in  determining  whether  witnesses  will  be  believed  or  not,  they 
are  not  bound  by  the  opinions  of  other  witnesses,  but  have  a  right 
to  consider  all  the  testimony  of  the  case,  the  motives  and  the  inter- 
ests of  the  witness,  the  nature  of  his  testimony,  and  all  the  facts  in 
evidence  throwing  light  upon  the  point.12 

(c)  The  jury  are  instructed  that  in  determining  what  facts  are 
proven  in  this  case,  they  should  carefully  consider  all  the  evidence 
before  them,  with  all  the  circumstances  of  the  transaction  in  ques- 
tion as  detailed  hy  the  witnesses,  and  they  may  find  any  fact  to  be 
proven  which  they  think  may  be  rightfully  and  reasonably  inferred 
from  the  evidence  given  in  the  case,  although  there  may  not  be  any 
direct  testimony  as  to  such  fact.13 

§  329.  Where  the  Evidence  is  Conflicting,  (a)  The  court  in- 
structs the  jury  that  the  credibility  of  the  witnesses  is  a  question 
exclusively  for  the  jury,  and  the  law  is  that  where  a  number  of  wit- 
nesses testify  directly  opposite  to  each  other,  the  jury  are  not  bound 
to  regard  the  weight  of  the  evidence  as  evenly  balanced.  The  jury 
have  a  right  to  determine  from  the  apj^earance  of  the  witnesses  on 
the  stand,  their  manner  of  testifying,  their  apparent  candor  and  fair- 
ness or  lack  thereof,  the  reasonableness  or  unreasonableness  of  the 
story  told  by  them,  their  apparent  intelligence  or  lack  of  intelligence, 
and  from  all  the  surrounding  circumstances  appearing  on  the  trial, 
which  witnesses  are  more  worthy  of  credit,  and  to  give  credit  ac- 
cordingly.14 

10 — Kreag     v.      Anthis,      2     Ind.  established   by   the   evidence.      No 

App.  482,   28  N.  E.   773.    In  approv-  right   of   appellant    was   prejudiced 

ins?     this      instruction      the     court  by  the  instruction." 

said:      "This  fairly  left  the   whole  11 — Dysart-Cook      Mule      Co.      v. 

matter   to   the   jury   upon   the   evi-  Reed     &      Heckenlively,      114    Mo. 

dence,     without      intimation      that  App.  296,  89  S.  W.  591. 

anv      particular     fact     had      been  12 — Brown  v.    State,   75   Miss.   842, 

proved.        It    could    be    said    with  23    So.   422. 

equal    force    that    the    instruction  13 — Herring-  v.  Ervin,  48  111.  App. 

assumed   that  some  of  the  allega-  369    (371). 

tions    of    the   complaint    were    not  14— Wallace    v.     State,     28     Ark. 


260  FORMS  OF  INSTRUCTIONS.  [§  330. 

(b)  You  are  instructed,  that  it  does  not  necessarily  follow  that 
a  plaintiff  has  failed  to  establish  his  case  (or  a  defendant  his  de- 
fense) by  a  preponderance  of  proof,  because  he  has  testified  to  a  state 
of  facts  which  are  denied  by  the  testimony  of  the  opposite  party. 
In  such  a  case,  in  arriving  at  the  truth,  you  have  a  right  to  take  into 
consideration  every  fact  and  circumstance  proven  on  the  trial,  such  as 
the  situation  of  the.  parties ;  their  acts  at  the  time  of  the  transaction 
and  afterwards,  so  far  as  they  appear  in  evidence ;  their  statements  to 
third  parties  in  relation  to  the  matters  in  question,  as  well  as  their 
statements  to  each  other  in  the  presence  of  third  parties,  if  any  such 
statements  have  been  proved;  also  their  appearance  on  the  witness 
stand,  and  their  manner  of  testifying  in  the  case.15 

(c)  If  you  find  different  witnesses  contradicting  each  other,  then 
as  reasonable,  intelligent  men,  weigh  the  testimony  of  the  state  going 
to  show  the  falsity  of  defendant's  statement  against  the  evidence 
showing  its  truth,  and  try  and  determine  which  you  must  believe.16 

§  330.  Duty  of  Jury  to  Reconcile  Conflict  of  Testimony,  (a)  The 
court  instructs  the  jury  to  consider  all  the  testimony  in  the  case  bear- 
ing on  the  issues  of  fact  submitted  to  them,  to  reconcile  any  and  all 
apparently  conflicting  statements  of  the  witnesses,  and,  if  practicable, 
to  deduce  from  the  evidence  any  theory  of  the  case  which  will  har- 
monize the  testimony  of  all  the  witnesses ;  and  it  should  be  your  duty 
to  adopt  that  theory  rather  than  one  which  would  require  them  to 
reject  any  of  the  testimony  as  intentionally  false.17 

(b)  You  are  the  exclusive  judges  of  the  weight  of  the  evidence 
before  you,  and  of  the  credit  to  be  given  to  the  witnesses  who  have 
testified  in  the  case.  If  there  is  a  conflict  in  the  testimony,  you  must 
reconcile  it,  if  you  can.  If  not,  you  may  believe  or  disbelieve  any  wit- 
ness or  witnesses,  according  as  you  may  or  may  not  think  them  en- 
titled to  credit.  In  civil  cases  the  jury  is  authorized  to  decide  accord- 
ing as  they  may  think  the  evidence  preponderates  in  favor  of  one  side 
or  another.18 

531;     Halloway    v.    Com.,    11    Bush  affg.    65    111.    App.    435.      Fisher    v. 

(Kv.)    344;    Stampofski   v.    Steffens,  State,   77  Ind.   46;    N.    C.    St.    R.   R. 

79  ill.  303;  State  v.  Shields,  55  Conn.  Co.  v.  Welner,  206  111.  272,  69  N.  E. 

256;    Shellabarger  v.  Nefas,  15  Kan.  6,    affg\    105    111.    App.    652;    Pressed 

547;     Halloway    v.    Com.,    12    Bush  Steel    Car    Co.    v.    Herath,    110    111. 

334;   H.  P.  Ry.  Co.  v.  Ward,  4  Colo.  App.    596    (59S). 

37;    Winchester    v.    King,    48    Mich.  15— Mathews     v.     Story,     54     Ind. 

280,  8  N.  W.  722.  417;    Klassen    v.    Reiger,    26    Minn. 

An      instruction      was      approved  59;  Prowattain  v.  Tindale,  80  Penn. 

which  told  the  jury  that  in  weigh-  St.    295;    Stampofski   v.    Steffens,   79 

ing  the  testimony  of  the  witnesses  111.   303;    K.    P.   R.   Co.   v.   Little,   19 

they  had  a  right  to  take  into  con-  Kans.  267. 

sideration      the      apparent     intelli-  *      16 — McClerkin    v.    State,    105   Ala. 

gence  or  lack  of  intelligence  of  the  107,    17   So.   123. 

witnesses.      Approved    City    of    La  17 — H.   Hirschberg  O.   Co.  v.  Mich- 

Salle  v.    Kostka,   190   111.   130,   60   N.  aelson,    —  Neb.   — ,   95    N.   W.     461 

E.   72.  (463). 

An    instruction    of    substantially  18 — In  Houston  &  T.  Cent.  R.  Co. 

the   same  import  was  approved   in  v    Bell,  —  Tex.   Civ.  App.  — ,  73  S. 

Chicago    &    Alton    R.     R.     Co.    v.  W.   56    (62),   the   court  said:      "The 
Winters,   175  111.   293,   51  N.   E.  901, 


§331.]  CREDIBILITY  OF  WITNESSES.  261 

§  331.  Equal  Number  of  Witnesses  On  the  Same  Point  On  Each 
Side,  (a)  The  court  instructs  you,  as  a  matter  of  law,  that  where 
two  witnesses  testify  directly  opposite  to  each  other  on  a  material 
point,  and  are  the  only  ones  that  testify  directly  to  the  same  point, 
you  are  not  bound  to  consider  the  evidence  evenly  balanced  or  the 
point  not  proved;  you  may  regard  all  the  surrounding  facts  and  cir- 
cumstances proved  on  the  trial,  and  give  credence  to  one  witness  over 
the  other,  if  you  think  such  facts  and  circumstances  warrant  it.19 

(b)  If  two  witnesses  of  equal  credibility  testify  in  conflict  with 
each  other,  the  jury  may  look  to  the  opportunity  of  the  two  witnesses 
to  know  the  facts  about  which  they  testify  in  determining  which  wit- 
ness they  will  believe. 

(c)  If  there  is  a  conflict  in  the  evidence  then  the  jury  may  look  to 
the  opportunities  and  means  of  knowledge  of  the  various  witnesses  in 
determining  which  of  them  they  will  believe.20 

(d)  The  court  further  instructs  the  jury  that  where  witnesses  tes- 
tify directly  opposite  to  each  other  on  a  material  point,  the  jury  are 
not  bound  to  consider  the  point  not  proved.  The  jury  has  a  right  to, 
and  may  regard,  all  surrounding  circumstances  proved  on  the  trial, 
and  give  credence  to  one  witness  over  the  other,  if  the  jury  think  such 
facts  and  circumstances  warrant  it.  So,  in  this  case,  although  the 
plaintiff,  upon  the  question  whether  she  fell  from  the  car  on  the  street, 
may  testify  one  way,  and  the  conductor  and  policeman  may  swear  the 
other  way,  the  jury  are  not  bound  to  consider  the  point  not  proven. 
The  jury  may  give  credence  to  the  plaintiff  upon  this  point,  if  the 
jury  believe  the  facts  and  circumstances  bearing  on  the  point  in  evi- 
dence warrant  their  doing  so.21 

(e)  The  court  instructs  you  that  where  two  witnesses  testify  di- 
rectly opposite  to  each  other  on  a  material  point,  you  are  not  bound 
to  consider  the  evidence  evenly  balanced  so  far  as  those  two  witnesses 
are  concerned,  but  that  you  may  regard  all  the  surrounding  facts  and 
circumstances  and  other  evidence,  if  any,  and  give  credence  to  one 
witness  over  the  other  if  you  think  such  facts,  circumstances  and  evi- 
dence warrant  it.22 

§  332.  Conflicting  Testimony— What  Jury  Should  Consider,  (a) 
You  are  the  exclusive  judges  of  the  credibility  of  the  witnesses,  and 
it  is  your  duty  to  reconcile  any  conflict  that  may  appear  in  the  evi- 

instruction    is    an    exact    copy    of  21— W.  C.  S.  R.  R.  Co.  v.  Lieser- 

that   which  was  given   in  the   case  owitz,  99  111.  App.   594. 

of   Railway   Co.    v.    Ende,    65   Tex.  22— Chi.    &    E.    111.    R.    R.    Co.    v. 

124  ••  Rains.  106  111.  App.   538,  aff.  203  111 

19— Miller    v.    Balthasser,    78    111.  417,  67  N.  E.  840.    Durant  v.  Rogers, 

302-    Durant   v.   Rogers,   87   111.   508;  supra,    the    court    said:      "This    m- 

Lawrence  v.  Maxwell,   58  Barb.  (N.  struction    correctly    states    the   law 

Y.)     511;     Delvee    v.    Boardman,    20  as   we   understand   it.     In   cases   of 

Iowa  446;    Johnson   v.   Whidden,    32  this    character    of    the    one    at    bar, 

Me     930  this     instruction     has     often     been 

20— Jones   v.    Ala.    M.    R.    R.    Co.,  given,    and    so    far    as    we   are    ad- 

107  Ala.  400,  18  So.  30  (32).  vised    has    always    been    approved 

and  never  condemned." 


262  FORMS  OF  INSTRUCTIONS.  [§  332. 

dence,  as  far  as  may  be  in  your  power,  upon  the  theory  that  each  wit- 
ness has  sworn  to  the  truth.  When  this  cannot  be  done,  you  may  con- 
sider the  conduct  of  the  witnesses  upon  the  stand,  the  nature  of  the 
evidence  given  by  them,  how  far  they  are  corroborated  or  contra- 
dicted by  other  testimony,  their  interest,  if  any,  in  the  cause,  their 
relation  to  the  parties,  and  such  other  facts  appearing  in  the  evidence 
as  will,  in  your  judgment,  aid  you  in  determining  whom  you  will  be- 
lieve, and  you  may,  also,  in  considering  who  you  will,  or,  will  not, 
believe,  take  into  account  your  experience  and  relations  among  men.23 

(b)  It  is  your  duty  to  weigh  the  evidence  carefully,  candidly  and 
impartially,  and  in  so  weighing  it  you  should  be  careful  to  draw 
reasonable  inferences,  not  to  pick  out  any  particular  fact  and  give  it 
undue  weight,  but  you  should  give  it  such  weight  as  you  think  it  is 
entitled  to  as  reasonable  men  looking  at  it  impartially.  You  should 
consider  the  evidence  all  together.  Where  there  is  a  conflict  in  the 
testimony,  you  should  reconcile  it,  if  you  can,  upon  any  reasonable 
hypothesis.  If  you  cannot  reconcile  their  testimony,  then  you  must 
determine  whom  you  will  believe.  You  are  the  sole  judges  of  the 
facts.24 

(c)  The  credibility  of  witnesses  that  have  been  examined  in  your 
hearing  is  for  you  to  determine,  and,  where  witnesses  have  testified 
directly  the  opposite  to  each  other,  it  is  your  duty  to  say  from  the 
appearance  of  such  witnesses,  while  so  testifying,  their  manner  of 
testifying,  their  apparent  candor  and  fairness  or  want  of  candor  or 
fairness,  their  apparent  intelligence  or  want  of  intelligence,  their  in- 
terest or  want  of  interest  in  the  result  of  the  litigation,  and  from 

23 — In  Jenney  Electric  Co.  v.  apply  the  tests  of  credit  to  the 
Branham,  145  Ind.  314,  41  N.  E.  heart  and  mind  of  the  witness, 
448,  33  L.  R.  A.  395,  the  court  in  but  whatever  qualification  that 
approving-  the  above  said:  "Jurors  experience  gives  should  be  em- 
should  be,  and,  as  a  rule,  are,  se-  ployed  to  the  end  that  the  whole 
lected  because  of  their  extensive  truth  may  be  known  and  acted  up- 
experiences  among  men.  The  on.  While,  as  we  understand  the 
school  of  experience  which  men  charge,  it  did  not  tell  the  jurors 
attend  in  their  varied  relations  that  they  should  employ  it,  they 
among  men  imparts  a  keenness  of  were  told  that  it  was  proper  to 
mental  vision  which  enables  them  employ  it;  not,  as  counsel  for  ap- 
the  more  readily  to  see  the  mo-  pellant  contend,  as  allowing  a 
fives  and  to  judge  of  the  selfish  or  juror  to  bring  forward  some  spec- 
unselfish  interests  of  men.  This  ial  experience  or  some  special 
education,  be  it  much  or  little,  is  business  transaction  within  his 
a  part  of  the  juror,  and  should  observation,  bearing  some  simi- 
not,  if  possible,  be  laid  aside  in  larity  to  the  question  on  trial, 
passing  upon  the  inducements  and  which  had  miscarried,  and  to 
which  may  surround  a  witness  to  conclude,  therefore,  that  some 
speak  falsely.  It  is  this  education  phase  of  the  present  case  should 
which  to  a  great  extent  enables  a  miscarry.  The  instruction  was 
juror  to  discover  in  the  faltering  confined  to  the  tests  of  credit  and 
manner  or  the  downcast  eye  the  weight  of  the  evidence  of  the 
whether  the  statement  of  the  wit-  witnesses,  and  the  clause  in  ques- 
ness  is  made  in  modesty  or  the  tion  was  to  be  construed  with  ref- 
guilt    of   falsehood.  erence    alone    to    its    bearing    upon 

"The   value   of   experience   is   not  those   tests." 

to  be   given   up  when  the  man  be-  24 — Rio    Gr.    W.    R.    Co.    v.    Leak, 

comes,  a  juror,   and   is   required  to  63  U.  S.  2S0  (2S3),  16  S.   C.  1020. 


§  333.J  CREDIBILITY  OF  WITNESSES.  263 

these  and  all  the  other  surrounding  circumstances  appearing  in  evi- 
dence on  the  trial,  which  of  such  witnesses  are  the  more  worthy  of 
credit,  and  to  give  credit  accordingly.-"' 

§  333.  The  Jury  Have  No  Right  to  Disregard  the  Testimony  of  Any 
Witness  Without  Cause,  (a)  You  are  instructed,  that  if  the  testi- 
mony of  a  witness  appears  to  be  fair,  is  not  unreasonable,  and  is  con- 
sistent with  itself,  and  the  witness  has  not  been  in  any  manner  im- 
peached, then  you  have  no  right  to  disregard  the  testimony  of  such 
witness  from  mere  caprice  or  without  cause.  It  is  the  duty  of  the 
jury  to  consider  the  whole  of  the  evidence,  and  to  render  a  verdict  in 
accordance  with  the  weight  of  all  the  evidence  in  the  case.26 

(b)  The  jury  are  instructed  that  they  have  no  right  to  disregard 
the  testimony  of  any  of  the  defendant's  witnesses  through  capi'ice 
or  without  cause,  merely  for  the  reason  that  they  are  in  the  employ 
of  a  railroad  company.  The  credibility  of  defendant's  witnesses 
should  be  judged  by  the  jury  precisely  the  same  as  they  judge  the 
credibility  of  other  witnesses.27 

(c)  A  witness  is  presumed  to  speak  the  truth.  This  presumption, 
however,  may  be  repelled  by  the  manner  in  which  he  or  she  testifies, 
by  the  character  of  his  or  her  testimony,  or  by  his  or  her  motives, 
or  by  contradictory  evidence.  You  are  instructed  that  your  power  of 
judging  of  the  effect  of  evidence  is  not  arbitrary,  but  to  be  exercised 
with  legal  discretion  and  in  subordination  to  the  rules  of  evidence. 
The  jury  are  the  exclusive  judges  of  the  credibility  of  the  witnesses 
and  the  weight  to  be  given  their  testimony.28 

§  334.  Credibility  of  Witnesses — How  Determined,  (a)  You  are 
the  sole  judges  of  the  credibility  of  the  witnesses,  of  the  weight  of 
the  evidence,  and  of  the  facts.  It  is  your  right  to  determine  from 
the  appearance  of  witnesses  on  the  stand,  their  manner  of  testifying, 
their  apparent  candor  or  frankness  or  the  lack  thereof,  which  wit- 
nesses are  more  worthy  of  credit,  and  to  give  weight  accordingly. 
In  determining  the  weight  to  be  given  to  the  testimony  of  the  wit- 
nesses you  are  authorized  to  consider  their  relationship  to  the  parties, 
when  the  same  is  proved,  their  interest,  if  any,  in  the  event  of  the 

25— First    Nat.    Bank    v.    Carson,  Min.   R.  Co.  v.  Jones,  114  Ala.  519, 

30    Neb.    104,    46    N.    W.    276    (278).  21  So.  507,  62  Am.  St.  Rep.  121. 

In  Jenney  Elec.   Co.  v.   Branham,  26 — City    Bank,    etc.    v.    Kent,    57 

145  Ind.   314,   41  N.   E.   448,  33  L.   R.  Ga.  283;    Smith  v.   Grimes,  43  Iowa 

A.    395,    the   court    said    of  this    in-  356;    Rockford,   R.   I.   &  St.    L.    Rd. 

struction:  Co.   v.   Coultars,   67   111.   398;    Oliver 

"There    was    no    error    in    giving  v.  Pate,  43  Ind.  132. 

this  charge.  It  stated  the  law  cor-  27 — In  Hintz  v.  Mich.  Cent.  R.  R. 

rectly,     citing    Rex.     v.     Roeser,     7  Co.,  140  Mich.  565.  104  N.  W.  23,  the 

Car  &  P.,   648,   32  Eng.  Com.   Law,  court    said:      "This    request    might 

670;  Johnson  v.  Hillstrom,  37  Minn,  have  very  properly  been  given.  See 

122,    33     N.    W.     547;     Kitzinger     v.  Gregory     v.      Det.      Un.      Ry.      Co. 

Sanborn,    70   111.    146;    Dunlop  v.   TJ.  138   Mich.    368.   101  N.   W.   546.     But 

S.,    165   U.    S.    486,    17    Sup.    Ct.    375,  it  does  not  follow  that  it  was  error 

41  L.   Ed.  799;   Sanford  v.  Gates,  38  to  refuse  it." 

Kan.   405,   16  Pac.   807;    Rosenbaum  28— State    v.     Dotson,     26     Mont, 

v.    State,    33    Ala.    354;    Schmidt    v.  305,   67  Pac.  93S   (940). 
Insurance   Co.,   1   Gray   529."     Ala. 


264  FORMS  OP  INSTRUCTIONS  [§  334. 

suit,  their  temper,  feeling  or  bias,  if  any  has  been  shown,  their  de- 
meanor on  the  stand,  their  means  of  information  and  the  reasonable- 
ness of  the  story  told  by  them,  and  to  give  weight  accordingly.29 

(b)  You  are  instructed  that  the  credibility  of  the  witnesses  is  a 
question  exclusively  for  the  jury  to  exclusively  determine.  You  can 
give  to  the  testimony  of  each  witness  just  such  weight  as  you  think 
it  is  entitled  to,  and,  in  determining  the  weight  to  be  given  to  the 
testimony  of  the  several  witnesses,  you  should  take  into  considera- 
tion their  interest  in  the  result  of  the  suit,  if  any  such  interest  is 
proven;  their  conduct  and  demeanor  while  testifying;  their  apparent 
fairness  or  bias,  if  any  such  appears;  their  opj^ortunity  for  seeing  or 
knowing  the  things  about  which  they  testify;  the  reasonableness  or 
unreasonableness  of  the  story  told  by  them;  and  all  the  evidence  and 
facts  and  circumstances  proven  tending  to  corroborate  or  contradict 
such  witness,  if  any  such  appear.30 

(c)  The  jury  are  instructed  that,  in  determining  the  weight  to  be 
given  the  testimony  of  a  witness,  you  will  take  into  consideration  the 
intelligence  of  the  witness,  the  circumstances  surrounding  the  witness 
at  the  time  concerning  which  he  testifies,  his  interest,  if  any,  in  the 
event  of  the  suit,  his  bias  or  prejudice,  if  any;  his  manner  on  the 
witness  stand,  his  apparent  fairness  or  want  of  fairness,  the  reason- 
ableness of  his  testimony,  his  means  of  observation  and  knowledge, 
the  character  of  his  testimony — whether  negative  or  affirmative,  of 
any  fact,  and  all  matters  and  facts  and  circumstances  shown  on  the 
trial,  bearing  upon  the  question  of  the  weight  to  be  given  to  his  tes- 
timony, and  give  each  witness'  testimony  such  weight  as  to  you  it 
may  seem  fairly  entitled  to.31 

(d)  You  are  the  sole  judges  of  the  evidence  in  the  case.  It  is 
your  sole  duty  to  determine  the  weight  and  credibility  of  the  tes- 
timony; and  in  weighing  the  testimony  of  the  witnesses  you  have  a 
right  to  consider  the  interest  the  witnesses  have  in  the  verdict,  their 
candor  and  fairness,  their  manner  and  bearing  while  testifying  before 
you,  the  reasonableness  of  their  story,  the  means  and  opportunity  of 
knowing  the  facts  about  which  they  testify,  the  consistency  of  their 
testimony  with  other  known  facts  in  the  case,  and  any  other  matter 
that  tends  to  impress  your  minds  with  the  truth  or  untruth  of  their 
testimony.     If  there  is  a  conflict  in  the  testimony  of  witnesses,  it 

29— In   State  v.   Morgan,   27  Utah  you  should  take  into  consideration 

103,  74  Pac.  526,  the  court  said:  "In  the    appearance    of    the    witnesses 

the   case   of   the   United    States   v.  upon     the     stand,     their    apparent 

Bassett,  5  Utah  131,  13  Pac.  237,  an  candor    or    the    want    of    candor, 

instruction   substantially   the   same  their    interest    in    the    outcome    of 

as     the   one    under     consideration,  the    case,    their     relation     to     the 

and    in    which    this    language    oc-  parties  interested  in  any  way,  and 

curred:     'You   are   the   sole   judges  all    the    facts    and    circumstances 

of   the    facts,    of   the    credibility   of  surrounding    the    witnesses.'  " 

the    witnesses    and    of    the    weight  30— State     v.     Burton,     27     Wash, 

of  the  evidence,  and  in  determining  528,    67   Pac.    1097. 

the    credibilitv    of     the    witnesses  31— C.  B.  &  Q.  v.  Pollock,  195  111. 

and    the   weight    of   the   testimony  156    (162),    62    N.    E.    831. 


§  335.]  CREDIBILITY  OP  WITNESSES.  265 

is  your  duty  to  say  where  the  truth  lies.  You  are  not  bound  to 
accept  as  true  the  statements  of  witnesses  where  they  are  unreason- 
ably inconsistent  with  each  other,  or  with  known  facts  in  the  ease. 
You  are  not,  however,  to  reject  the  testimony  of  a  witness  without 
reason.32 

§  335.  Credibility  of  Witnesses— Preponderance— How  Determined. 
(a)  In  determining-  the  weight  to  be  given  the  testimony  of  the 
different  witnesses,  you  should  take  into  account  the  interest,  or  want 
of  interest,  they  have  in  the  case,  their  manner  on  the  stand,  the 
probability  or  the  improbability  of  their  testimony,  with  all  other 
circumstances  before  you  which  can  aid  you  in  weighing  their 
testimony.33 

(b)  In  determining  upon  which  side  the  preponderance  of  the 
evidence  is,  the  jury  should  take  into  consideration  the  opportunity 
of  the  several  witnesses  for  seeing  or  ascertaining  from  their  own 
personal  knowledge  the  things  about  which  they  testify,  their  con- 
duct and  demeanor  while  testifying,  their  interest,  or  lack  of  interest, 
if  any,  in  the  result  of  the  case;  the  relation  or  connection,  if 
any,  between  the  witnesses  and  the  parties,  the  apparent  consistency, 
fairness  and  congruity  of  the  evidence,  the  probability  or  improba- 
bility of  the  truth  of  their  several  statements,  in  view  of  all  the 
other  evidence,  facts  and  circumstances  proved  on  the  trial,  and 
from  all  these  circumstances  determine  upon  which  side  is  the  weight 
or  preponderance  of  the  evidence.34 

(c)  In  considering  and  determining  what  weight  or  effect  you 
will  give  the  testimony  of  each  witness,  you  should  take  into  con- 
sideration what  interest  or  want  of  interest  the 'witness  had  in  the 
result  of  the  suit,  his  or  her  demeanor  upon  the  stand,  the  apparent 

32— Goodwine  v.  State,  5  Ind.  App.  dence    bearing    on    that    question; 

63,    31    N.    E.    554,    the    court    said:  that  is,    their    interest    or   want   of 

"It    does    not   invade   the   province  interest    in    the    case,     their    man- 

of  the  jury  to  tell  them  what  they  ner     on     the     witness     stand,     the 

have  a  right  to  consider.     The  jury  probability      or      improbability      of 

are     here     admonished     that     they  their    testimony,    with   all    the    eir- 

may   consider   these   things   in   de-  cumstances  in  evidence  which  may 

termining   the   weight    of    the   evi-  aid    them   in   weighing   such    testi- 

dence,  and  this  is  right.  The  argu-  mony.        It     is     conceded     by    the 

ment   that   the   court  had  no   right  learned    counsel    for    the    appellant 

to    assume   that    there   are   certain  that    the    instruction    was    copied 

known    facts    in    the    case    is    like-  from    an    instruction    approved    by 

wise    fallacious.      That    there    were  this   court,    and   held   good,   in   An- 

in  this  as  there  are  in  every  case,  derson  v.   State,  104  Ind.   472,  4  N. 

certain   known  facts  needs  no  ar-  E.  63,  and  5  N.  E.  711." 

gument  to   establish."  The    court     followed     the    above 

33— Deal    v.    State,    140    Ind.    354,  with   an   exhaustive   review   of  the 

39   N.   E.   930.     In   Lynch  v.    Bates,  authorities  in   the  state  of  Indiana 

139    Ind.    206,    38    N.    E.    806    (S07),  bearing  upon   instructions   relating 

in   approving   a   similar  instruction  to     the    weight     of     the     evidence, 

the    court    said:      "The    instruction  and  concluded  by  holding  that  the 

amounts  to  no   more  than   a   state-  above    instruction   was    not    erron- 

ment  that  it  is  the  duty  of  the  jury  eous. 

in  determining  the  weight  to  be  34— C.  &  G.  T.  Ry.  Co.  v.  Spur- 
given  to  the  testimony  of  the  ney,  69  111.  App.  549;  C.  &  P.  St. 
witnesses,   to   consider  all   the  evi-  Ry.  Co.  v.  Rollins,  95  111.  App.  497. 


266  FORMS  OF  INSTRUCTIONS.  [§  336. 

intelligence  or  want  of  intelligence  of  the  witness,  the  opportunity 
or  want  of  opportunity  of  the  witnesses  for  knowing  the  facts  con- 
cerning which  they  testify,  the  probability  or  improbability  of  the 
facts  related  by  the  witnesses,  and  their  apparent  candor  and  fairness, 
or  want  of  such.  Where  witnesses  directly  contradict  each  other, 
you  should  consider  all  the  testimony  in  the  case,  and,  after  con- 
sidering it  all,  and  the  surrounding  circumstances  appearing  on  the 
trial,  determine  which  of  the  witnesses  are  the  most  worthy  of 
credit,  and  give  credit  accordingly.35 

(d)  The  jury  are  instructed  that  they  are  the  sole  judges  of  the 
credibility  of  the  witnesses  and  of  the  weight  to  be  given  to  their 
testimony.  In  determining  such  credibility  and  weight  they  will  take 
into  consideration  the  character  of  the  witness,  his  manner  on  the 
stand,  his  interest  if  any,  in  the  result  of  the  trial,  his  relation  to, 
or  feeling  towards  the  parties,  the  probability  or  improbability  of 
his  statements,  as  well  as  the  facts  and  circumstances  given  in  evi- 
dence. And  in  this  connection  you  are  further  instructed  that  if 
you  believe  that  any  witness  has  wilfully  and  knowingly  sworn 
falsely  to  any  material  fact,  you  are  at  liberty  to  reject  all  or  any 
portion  of  such  witness'  testimony.36 

(e)  In  considering  the  question  of  the  alleged  negligence  of  the 
defendant,  you  are  to  take  into  consideration  all  of  the  evidence, 
the  number,  character  and  appearance  of  the  witnesses,  the  interest, 
if  any,  which  any  of  them  may  have  in  the  event  of  the  suit,  the 
manner  of  their  giving  their  testimony,  their  apparent  fairness  and 
candor,  and  the  probability,  in  connection  with  all  of  the  evidence 
and  the  circumstances  surrounding  the  matters  testified  to,  and  of  the 
truth  of  the  matters  testified  to,  by  the  several  witnesses.  This  is  not 
only  applicable  to  the  witnesses  for  the  defendant,  but  is  applicable 
to  all  the  witnesses  that  have  testified  in  this  case.  You  are  to  judge 
of  the  amount  of  credibility  that  is  to  be  given  to  the  testimony,  as 
given  here  under  oath,  by  their  appearance  and  by  the  interest  that 
they  may  appear  to  have,  and  by  the  motives  that  they  may  seem 
to  be  influenced  by.  You  are  not  at  liberty  to  reject  the  testimony 
of  any  witness,  except  for  a  good  and  substantial  reason,  which 
convinces  your  mind  that  his  or  her  testimony  has  been  substantially 
untrue,  or  improbable  or  unreliable.37 

§  336.  Affirmative  Evidence  Compared  with  Negative,  (a)  The 
court  charged  the  jury,  that  affirmative  evidence  is  rather  to  be 
believed  than  negative,  when  witnesses  testifying  to  affirmative  and 
negative  facts  are  equally  reliable,  and  are  shown  to  have  had  equal 

opportunities  for  observation The  jury  are  the  sole  and 

exclusive  judges  of  the  evidence,  and  it  is  the  duty  of  the  jury  to 

35 — Jessen    v.    Donahue,    —    Neb.  held    to    be    error    to    refuse    the 

— ,  96  N.  W.  639.  above  instruction. 

36— In    Titterington    v.     State,    —         37— Hardy    v.    Mil.    St.    Ry.    Co., 

Neb.  — ,  106  N.  W.  421   (422),  it  was  89   Wis.    183,   61   N.  W.   771. 


§336. 


CREDIBILITY  OF  WITNESSES. 


267 


weigh  the  testimony  of  all  witnesses,  and  it  is  in  the  province  of 
the  jury  to  accept  or  reject  all  or  any  part  of  the  testimony  of  any 
witness,  and  it  is  for  the  jury  to  judge  of  the  credibility  of  wit- 
nesses.38 

(b)  The  positive  testimony  of  one  credible  witness  to  a  fact  is 
entitled  to  more  weight  than  the  testimony  of  several  witnesses 
equally  credible,  who  testify  negatively  or  to  collateral  circum- 
stances merely  persuasive  in  their  character  from  which  a  negative 
may  be  inferred.39 

(c)  You  are  instructed  that  the  evidence  of  witnesses,  one  or 
more,  to  the  effect  that  they  passed  over  the  sidewalk  in  question, 
and  that  they  did  not  see  any  loose  plank  or  planks,  is  negative 
in  character,  and  is,  in  itself,  entitled  to  comparatively  little  weight, 
as  compared  to  testimony  of  equally  credible  witnesses,  if  such  there 
were,  who  testified  to  passing  over  said  sidewalk  at  about  the  same 
time  and  found  loose  plank  or  planks,  if  such  witnesses  so  testi- 
fied.40 


38— State  v.  Weston,  107  La.  45, 
31  So.   383. 

"Taking  the  charge  as  a  whole 
we  can  see  in  it  no  error  of  law. 
It  is  not  incorrect  to  say  that  'af- 
firmative evidence  is  rather  to  be 
believed,  than  negative  evidence, 
when  witnesses  testifying  to  af- 
firmative and  negative  facts  are 
equally  reliable,  and  are  shown  to 
have  had  equal  opportunities  for 
observation.'  State  v.  Chevalier, 
36  La.  Ann.  84;  State  v.  Dorsey, 
40  La.  Ann.   742,  5  So.  26. 

And,  also,  it  is  not  incorrect  to 
say  'that  the  jury  are  the  sole 
and  exclusive  judges  of  the  evi- 
dence, and  that  it  is  the  duty  of 
the  jury  to  weigh  the  testimony 
of  all  witnesses,  and  that  it  is  in 
the  province  of  the  jury  to  accept 
or  reject  all  or  any  part  of  the 
testimony  of  any  witness,  and 
that  it  is  for  the  jury  to  judge  of 
the  credibility  of  witness.'  The 
charge  may  be  objectionable,  in 
that  it  does  not  explain  what  is 
meant  by  'negative  evidence'  as 
contradistinguished  from  affirma- 
tive evidence;  and  it  is  possible 
that  the  witnesses  giving  negative 
testimony  had  not  only  enjoyed 
equal  opportunities  for  observa- 
tion, but  had  exercised  the 
opportunities,  so  that  under 
the  doctrine  of  the  cases  of  Chev- 
alier and  Dorsey,  cited  above, 
their  testimony  was  entitled  to 
equal  weight  with  the  affirmative 
testimony;  but  if,  in  these  re- 
spects, and  in  the  other  respects 
specified     in     defendant's     second 


bill,  the  charge  was  defective  and 
objectionable,  these  were  matters 
which  the  trial  judge  could  have 
rectified  if  his  attention  had  been 
called  to  them,  and  which  the  de- 
fendant cannot  take  advantage  of, 
he  having  failed  to  call  the  judge's 
attention   to   them." 

39— Roedler  v.  C.  M.  &  St.  P.  Ry. 
Co.,  129  Wis.  270,  109  N.  W.  89. 
"The  law  on  the  subject  has  fre- 
quently been  discussed  by  this 
court,  and  need  not  here  be  re- 
iterated, citing  Joannes  v.  Millerd, 
90  Wis.  68  (70,  71),  62  N.  W.  916; 
Steinhofel  v.  C.  M.  &  St.  P.  Ry. 
Co.,  92  Wis.  123  (129),  65  N.  W. 
852;  Alft  v.  Clintonville,  126  Wis. 
334  (338.  339),  105  N.  W.  561;  and 
cases  there  cited.  As  said  in  the 
opinion  and  held  by  the  court  in 
one  of  these  cases:  'Whether  the 
testimony  of  witnesses  whose  at- 
tention was  called  to  the  noise  of 
the  train  and  who  were  listening 
to  it,  that  they  did  not  hear  a  sig- 
nal, is  merely  negative  testimony 
or  a  mere  scintilla  of  evidence, 
mav  be  doubted.'  92  Wis.  123 
(129),  65  N.  W.  852  (853).  We  can- 
not say  that  there  was  error  in 
submitting  such  questions  to  the 
jury,  nor  in  refusing  further  in- 
struction on  the  subject." 

40— Alft  v.  City  of  Clintonville, 
126  Wis.  334,  105  N.  W.  561. 

"The  criticism  is  that  the  portion 
of  the  charge  so  given  left  the 
jury  to  infer  that  there  were  'one 
or  more'  witnesses  who  passed 
over  the  sidewalk  in  question  and 
'did    not    see    any    loose    plank    or 


268  FORMS  OF  INSTRUCTIONS.  [§337. 

§  337.  Credibility— Former  Life  of  Witness,  (a)  The  jury  are 
the  sole  judges  of  the  credibility  of  witnesses  and  the  weight  to  be 
given  to  their  testimony,  and  in  passing  upon  the  testimony  of  any 
witness  the  jury  have  a  right  to  take  into  consideration  the  interest 
any  such  witness  may  have  in  the  result  of  this  trial,  the  manner 
of  testifying,  and  the  former  life  or  history  any  such  witness  may 
have  given  of  him  or  herself  in  this  case.41 

(b)  I  charge  you  further  that  in  weighing  the  testimony  of  a 
witness  you  should  take  into  consideration  his  general  character, 
what  his  business  is  and  has  been,  who  he  is,  where  he  comes  from, 
and  what  his  antecedents  are,  if  the  same  have  been  proven.  These 
are  all  circumstances  which  it  is  proper  for  you  to  consider  in  de- 
termining for  yourself  just  what  weight  should  be  given  to  the  testi- 
mony of  any  particular  witness,  either  for  the  state  or  for  the  de- 
fendant, who   has   testified  in   the   case.42 

§  338.  Interest  of  Witnesses,  (a)  If  you  believe  from  the  evi- 
dence that  any  witness  who  has  testified  in  this  case  is  interested  in 
the  result  of  this  suit  as  a  party  or  otherwise,  then,  in  determining 
the  credit  to  be  given  to  such  witness,  the  jury  may  take  into  con- 
sideration such  interest  as  the  evidence  shows  such  witness  has, 
together  with  all  the  other  facts  and  circumstances  disclosed  by  the 
evidence,  if  any,  which  will  aid  the  jury  in  arriving  at  and  determin- 
ing the  credit  to  which  the  testimony  of  such  witness  is  entitled.43 

(b)  You  will  consider  all  the  testimony  of  all  the  witnesses, 
taking  into  consideration  the  state  of  a  witness'  feeling  towards 
any  party  to  the  case,  or  his  or  her  interest  in  the  result  of  the 
case.  In  other  words,  consider,  is  he  or  she  interested  in  the  result 
of  the  trial,  as  such  is  shown  by  the  evidence.  All  this  is  to  be 
considered  by  you  in  determining  the  credit  to  be  given  the  testimony 
of  every  witness.  Their  manner,  interest  or  bias,  if  shown,  as  also 
the  reasonableness  or  unreasonableness  of  the  testimony  of  the  wit- 
planks,'  and  hence  their  testimony  R.  R.  Co.,  65  Wis.  323,  27  N.  W. 
was  'negative  in  character,'  and,  147;  Joannes  v.  Millerd,  90  Wis. 
comparatively,  was  not  entitled  to  68,  62  N.  W.  916. 
as  much  weight  as  the  testimony  41 — It  was  not  improper  or  pre- 
of  equally  credible  witnesses,  'if  judicial  either,  in  this  case,  to  tell 
such  there  were,  who  testified  to  the  jury  they  might  consider  the 
passing  over  said  sidewalk  about  former  life  or  history  of  any  wit- 
the  same  time  and  found  loose  ness  as  given  by  himself  or  herself 
plank  or  planks,  if  such  witnesses  in  determining  the  credibility. 
so  testified.'  Of  course,  a  person  Lancashire  Ins.  Co.  v.  Stanley,  70 
might  pass  over  a  sidewalk  with-  Ark.  1,  62  S.  W.  66  (67). 
out  observing  a  loose  plank  in  42 — State  v.  Haynes,  7  N.  D. 
case  he  failed  to  step  on  it.  We  352,  75  N.  W.  267  (269).  The  court 
are  constrained  to  hold  that  there  said:  "This  instruction  is  purely 
were  'one  or  more'  witnesses  to  cautionary,  and  is  fair  and  impar- 
whom  such  portion  of  the  charge  tial  as  between  the  witnesses  for 
was  applicable.  The  charge  so  the  state  and  those  of  the  defend- 
given    to    the    jury    is    abundantly     ant." 

justified    by    repeated    decisions    of         43 — C.   C.   Rv.   Co.    v.   Tuohey,  196 
this  court."  111.  410   (430),  63  N.  E.  997,  58  L.  R. 

See    also    Hinton    v.    Cream   City     A.  270. 


§  338.] 


CREDIBILITY  OF  WITNESSES. 


269 


ness,  may  be  considered  by  tbe  jury.  The  fact  that  a  witness  is 
jointly  indicted  for  the  same  offense  with  the  defendant,  and  for 
which  the  defendant  is  on  trial,  may  be  considered  by  yon  in  fixing 
the  credit  you  will  give  to  the  testimony  of  such  witness." 

(c)  The  jury  are  instructed  that  in  determining  the  credibility 
of  a  witness  you  may  consider  the  interest,  if  any  shown,  which  he 
may  have  in  the  result  of  the  trial,  the  probability  of  the  truthful- 
ness of  his  testimony,  and  all  the  other  things  which  ordinarily  affect 
the  truthfulness  of  evidence.45 

(d)  The  credit  of  a  witness  depends  largely  upon  two  things, 
that  is: — first,  his  ability  to  know  what  occurred  and  his  disposition 
for  telling  the  truth  as  to  the  occurrence.  Statements  by  a  witness 
having  superior  opportunities  for  knowing  what  took  place  and 
superior  intelligence  and  memory,  and  entirely  uninterested  in  the 
event  of  the  suit,  other  things  being  equal,  are  entitled  to  greater 
weight  before  the  jury.  One  of  the  tests  for  determining  the  credi- 
bility of  a  witness  is  his  interest  in  the  result  of  the  suit.  As  a 
general  rule,  a  witness  who  is  interested  in  the  result  of  a  suit  will 
not  be  as  honest,  candid,  and  fair  in  his  testimony  as  one  who  is 
not  so  interested;  but  the  degree  of  credit  to  be  given  to  each  and 
all  of  the  witnesses  is  a  question  for  the  jury  alone,  and  not  for 
the  court.46 


44— Cochran  v.  State,  113  Ga. 
726,  39  S.  E.  332   (333). 

"It  is  alleged  that  this  charge 
was  erroneous  because  'it  goes  too 
far  towards  individualizing  the 
witness,  and  is  argumentative, 
and  would  naturally  be  considered 
by  the  jury  as  singling  out  those 
witnesses  for  the  defendant  who 
were  relatives  of  the  defendant,' 
and  because  such  charge  also 
went  too  far  in  pointing  out  to  the 
jury  to  consider  whether  the  wit- 
nesses were  jointly  indicted  for 
the  same  offense  with  the  defend- 
ant, and  in  compelling  the  jury  to 
consider  this  as  a  circumstance. 
Three  of  the  witnesses  who  testi- 
fied for  the  defense  were  jointly 
indicted  with  the  prisoner  on  trial 
— two  of  them  as  principals  in  the 
crime  charged,  and  one  of  them  as 
accessory.  Two  of  these  witnesses 
were  his  brothers,  and  other  wit- 
nesses who  testified  in  his  behalf 
were  closely  related  to  him  by 
blood  or  affinity.  These  were  cir- 
cumstances which  the  jury  had  the 
right  to  take  into  consideration 
when  weighing  the  testimony  of 
these  respective  witnesses.  Where 
the  testimony  in  a  case  conflicts, 
it  is  the  duty  of  the  jury,  if  they 
cannot  reconcile  it,  to  determine 
where  the  truth  lies,  and  in  order 


to  do  this  they  must  take  into 
consideration  the  credibility  of  the 
respective  witnesses;  and  in  pass- 
ing upon  the  credibility  of  any 
witness  they  can  consider  any  cir- 
cumstance shown  by  the  evidence 
which  would  naturally  tend  to  bias 
or  prejudice  such  witness  in  favor 
of  the  one   side  or  the  other." 

45 — Mendenhall  v.  Stewart,  18 
Ind.   App.   262,   47   N.    E.    943. 

The  court  said:  "While  it  is 
true  that  it  cannot  be  said  as  a 
matter  of  law  that  because  a  wit- 
ness may  be  interested  in  the  re- 
sult of  a  litigation  less  weight 
shall  be  given  to  his  testimony, 
yet  this  instruction  is  not  directed 
to  any  particular  witness  on  either 
side,  and  tells  the  jury,  in  effect, 
that  being  Interested  in  the  result 
of  the  suit  was  a  matter  they 
might  consider  in  determining  the 
truthfulness  of  evidence.  The  jury 
were  not  told  thai  the  truthfulness 
of  evidence  depended  upon  wheth- 
er or  not  the  witness  was  inter- 
ested. The  weight  that  any  testi- 
mony has  depends  upon  the  prob- 
ability of  its  truthfulness  or  un- 
truthfulness." 

46— MePherson  et  al.  v.  Commer- 
cial Natl.  Bk.,  61  Neb.  695.  85  X. 
W.  895  (896).  The  court  said: 
"This    instruction,    in    effect,    told 


270  FORMS  OF  INSTRUCTIONS.  [§339. 

(e)  You  are  to  determine  the  questions  of  fact  which  are  raised 
by  the  testimony  in  this  case,  and  in  determining  those  questions  I 
can  give  you  no  assistance  whatever,  except  to  say  that  the  credi- 
bility of  the  witnesses,  of  all  the  witnesses  in  this  case,  is  entirely 
a  question  for  you.  You  have  heard  the  testimony  given  on  both 
sides.  You  are  to  weigh  the  testimony,  and  consider  the  testimony 
of  each  of  the  witnesses  by  the  same  rule.  You  will  consider  the 
interest  which  each  one  has  in  the  case.  You  will  consider  his 
manner  of  giving  his  testimony,  whether  it  impresses  you  as  being 
a  truthful  statement  of  what  he  knows  or  not.  You  will  consider 
the  opportunities  he  had  for  observing  because  it  appears  that  some 
of  the  witnesses  had  excellent  opportunities  for  observing  what  was 
going  on,  and  some  had  almost  no  opportunity,  saw  very  little.47 

§  339.  Disinterested  Witnesses — Means  of  Information,  (a)  The 
jury  are  instructed  that  you  may  consider  the  probability  or  im- 
probability of  the  testimony  of  the  witnesses  who  have  no  interest 
in  the  matter,  remembering  just  what  was  said  between  the  con- 
ductor and  the  plaintiff  just  prior  to  the   ejection.48 

(b)  The  court  instructs  the  jury  that  in  determining  the  credi- 
bility of  the  witnesses  you  have  a  right  to  take  into  consideration 
the  means   of   information   of   the   several   witnesses.49 

§  340.  Uncontroverted  Testimony  of  Credible  Witness,  (a)  You 
are  instructed  that  the  uncontroverted  testimony  of  a  credible  wit- 
ness ought  not  to  be  lightly  disregarded,  and  you  have  no  right  to 
substitute  a  fanciful  hypothesis  to  account  for  facts  which  are 
explained  by  direct  testimony.  Your  verdict  should  be  based  on  the 
evidence,  and  that  alone;  and  it  is  the  duty  of  the  jury  to  har- 
monize all  proven  facts,  if  possible,  with  the  conditions  found  sur- 
rounding the  case,  and  the  circumstances  proven  to  have  existed  at 
the  time  of  the  occurrence.50 

the  jury,  and  properly  so,  that  the  defendant's  prejudice.  The  in- 
credibility of  the  witnesses  was  struction  fully  and  fairly  present- 
for  them  alone  to  pass  upon,  and  ed  the  rules  for  weighing  the 
in  determining  that  question  the  evidence.  It  is  contended  that,  as 
interest  of  a  witness  is  proper  to  a  number  of  disinterested  wit- 
be  considered.  But  see  Himrod  nesses  gave  testimony  different 
Coal  Co.  v.  Clingler,  114  111.  App.  from  that  of  the  plaintiff  as  to 
568,  where  the  court  holds  the  what  occurred  between  the  plaint- 
above  instruction   erroneous.  iff  and  the  conductor,  this  part  of 

47 — People  v.  Blanchard  et  al,  136  the      instruction     was     prejudicial. 

Mich.    146,    98    N.    W.    983.  We   think,    in   view   of   the   contra- 

48— Bowsher  v.  C.  B.  &  Q.  R.  Co.,  dictions,    it    was     called     for,     and 

113  Iowa  16,   84  N.  W.   958   (960).  proper." 

"The    complaint   is    not   that   this         49— Christy  v.    Elliott,    216   111.    31, 

is   an    erroneous   statement   of  the  74   N.  E.   1035. 

law,  but  that  it  improperlv  singled         50— Card     v.     Fowler,    120    Mich, 

out  this   phase   of  the  case   to  the  646,   79   N.   W.   925    (928). 


CHAPTER  XVII. 


CREDIBILITY— SWEARING  FALSELY. 


See  Erroneous  Instructions,  same  chapter  head  in  Vol.  III. 


§  341.  Credibility,  how  determined, 
witness  swearing  falsely, 
Missouri    rule. 

§  342.  Interest  of  witnesses,  swear- 
ing   falsely. 

§  343.  Palpably  false  testimony 
may   be   disregarded. 

§  344.  Falsus  in  uno  falsus  in  om- 
nibus. 

§  345.  Duty  to  distrust  the  entire 
testimony  when  willfully 
false    in    a    material    fact. 

§  346  May  disregard  entire  testi- 
mony of  a  witness  who  has 
willfully    sworn    falsely    ex- 


cept in  so  far  as  it  has 
been  corroborated  by  other 
credible  evidence. 

§  347.  Witness  who  testifies  falsely 
may  be  distrusted  as  to  all 
the   testimony. 

§  348.  Intentionally,  corruptly,  will- 
fully and  knowingly  swear- 
ing falsely  to  a  material 
point,    Illinois   rule. 

§  349.  Knowingly  and  willfully 
swearing    falsely. 

§  350.  Willfully  and  knowingly  ex- 
aggerating. 


§  341.  Credibility — How  Determined — Witness  Swearing  Falsely — 
Missouri  Rule,  (a)  To  the  jury  alone  belongs  the  duty  of  weighing 
the  evidence  and  determining  the  credibility  of  the  witnesses.  The 
degree  of  credit  due  to  a  witness  should  be  determined  by  the  jury, 
by  his  or  her  character  and  conduct,  by  his  or  her  manner  upon  the 
stand,  his  or  her  fears,  his  or  her  bias,  or  impartiality,  the  reason- 
ableness or  unreasonableness  of  the  statements  he  or  she  makes, 
the  strength  or  weakness  of  his  or  her  recollection,  viewed  in  the 
light  of  the  other  facts  and  circumstances  in  proof;  and,  if  the  jury 
believe  that  any  witness  has  willfully  sworn  falsely  as  to  any  ma- 
terial fact  in  the  case,  they  may  disregard  the  whole  of  the  evidence 
of  any  such  witness.1 

(b)  The  jury  are  the  sole  judges  of  the  credibility  of  the  wit- 
nesses and  of  the  weight  and  value  to  be  given  to  their  testimony. 
In  determining  as  to  the  credit  you  will  give  a  witness,  and  the 
weight  and  value  you  will  attach  to  a  witness'  testimony,  you  should 
take  into  consideration  the  conduct  and  appearance  of  the  witness 
upon  the  stand,  the  interest  of  the  witness,  if  any,  in  the  result  of 
the  trial,  motives  actuating  the  witness  in  testifying,  the  witness' 
relation  to,  or  feeling  for  or  against  the  defendant,  or  the  alleged 
injured  party,  the  probability  or  improbability  of  the  witness'  state- 
ments, the  opportunity  t he  witness  had  to  observe  and  to  be  in- 
formed as  to  matters  respecting  which  such  witness  gives  testimony, 
and   the  inclination  of  the  witness  to  speak  truthfully  or  otherwise 

I— State  v.    Pollard,   174   Mo.   607,   74  S.  W.  969. 

271 


272  FORMS  OF  INSTRUCTIONS.  [§  342. 

as  to  matters  within  the  knowledge  of  such  witness.  All  these  mat- 
ters being  taken  into  account,  with  all  other  facts  and  circumstances 
given  in  evidence,  it  is  your  province  to  give  each  witness  such  value 
and  weight  as  you  deem  proper.  If  upon  a  consideration  of  all 
the  evidence,  you  conclude  that  any  witness  has  sworn  will- 
fully falsely  as  to  any  material  matter  involved  in  the  trial,  you 
may  reject  or  treat  as  untrue  the  whole  or  any  part  of  such  witness' 
testimony.2 

(c)  In  arriving  at  your  verdict  in  this  cause  it  is  your  duty  to 
take  into  consideration  all  the  facts  and  circumstances  detailed  in 
evidence,  the  interest,  if  any,  which  the  witnesses  testifying  have  in 
the  result  of  the  litigation;  and  if  the  jury  believe  that  any  witness 
has  knowingly  and  willfully  sworn  falsely  as  to  any  material  matter 
in  issue,  then  you  are  at  liberty  to  disregard  the  whole  or  any  part 
of  the  testimony  of  such  witness.3 

§  342.  Interest  of  Witnesses — Swearing  Falsely,  (a)  The  jury 
are  instructed,  that  in  determining  the  questions  of  fact  in  this  case, 
they  should  consider  the  entire  evidence  introduced  by  the  respective 
parties ;  but  the  jury  are  at  liberty  to  disregard  the  statement  of 
all  such  witnesses,  if  any  there  be,  as  have  been  successfully  im- 
peached, either  by  direct  contradiction  or  by  proof  of  having  made 
different  statements  at  other  times,  or  by  proof  of  bad  reputation 
for  truth  and  veracity  in  the  neighborhoods  where  they  live — except 
in  so  far  as  such  witnesses  have  been  corroborated  by  other  credible 
evidence,  or  by  facts  or  circumstances  proved  on  the  trial.4 

(b)  In  weighing  the  testimony  of  each  witness,  the  interest,  or 
absence  of  interest,  of  such  witness  in  the  result  of  the  trial  should 
be  taken  into  consideration  by  the  jury.  If  the  jury  believe  from 
the  evidence  that  any  witness  has  willfully  and  knowingly  sworn 
falsely  to  any  material  fact  in  this  trial,  it  is  competent  for  the 
jury  to  wholly  disregard  the  testimony  of  such  witness,  so  far  as  it 
is  in  favor  of  the  side  calling  him,  if  they  believe  his  testimony 
wholly  unworthy  of  belief.5 

2 — State   v.   Vaughan,    200   Mo.   1,  wholly  disregarded    by    the    jury, 

98    S.    W.    2;    State    v.    Darling,    199  whereas    the    rule    in    some    juris- 

Mo.    16S,    97    S.    W.    592;    State    v.  dictions    is     that     such     testimony 

Hottman,    196    Mo.    110,    94    S.    "W.  should    only    be    disregarded    in    so 

237;    State  v.  Todd,  194  Mo.   377,  92  far  as  the  same  is  not  corroborat- 

S.    W.    674;     Longan    v.    Weltmer,  ed    by    other   credible    evidence    or 

180   Mo.    322,     79    S.     W.     655     (657);  by  facts  and  circumstances  in  evi- 

State    v.    Milligan,    170    Mo.    215,    70  dence  in  the  case. 

S.  W.  473  (475);    State  v.  McCarver,  4— Miller    v.    People,    39    111.    458; 

194    Mo.    717,    92    S.    W.    684.  Bowers    v.      People,      74     111.      418; 

3— Montgomery   v.    Mo.    Pac.    Ry.  O'Rourke  v.  O'Rourke,  43  Mich.  58, 

Co.,   181  Mo.   477,  79  S.  W.  930  (934).  4   N.    W.    58. 

Similar    instructions    have    been  5 — Johnson   v.    State,   34  Neb.  257, 

repeatedly    approved    in    Missouri,  51   N.   W.    S35   (836). 

although  it  omits  the  word   "know-  The  court  said:  "By  this  instruc- 

ingly"  swearing  falsely  on  the  part  tion,  the  court  stated  a  well-recog- 

of  a  witness,  who  willfully  swears  nized  rule,   and  the  fact  that  it  is 

falsely     and    It    would     seem    that  applicable  to  a  limited  number  of 

such    witness'    testimony    may    be  witnesses    in    this     case     will     not 

make  it  an  exception  to  the  rule." 


§  343.]  CREDIBILITY— SWEARING  FALSELY.  273 

(e)  The  court  instructs  the  jury  that  they  are  the  sole  judges 
of  the  weight  of  testimony  of  any  witness  who  has  testified  before 
them  in  this  case  at  bar,  and  that,  in  ascertaining  such  weight,  they 
have  the  right  to  take  into  consideration  the  credibility  of  such 
witness,  as  disclosed  from  his  evidence,  his  manner  of  testifying 
and  demeanor  upon  the  witness  stand,  and  his  apparent  interest,  if 
any,  in  the  result  of  the  case.  And,  if  the  jury  believe  that  any 
witness  has  testified  falsely  as  to  any  material  fact,  they  have  a 
right  to  disregard  all  the  testimony  of  such  witness  so  testifying 
falsely,  or  to  give  his  testimony,  or  any  part  thereof,  such  weight 
only  as  the  same,  in  their  opinion,  may  be  entitled  to.6 

(d)  You  are  further  instructed  that  you  are  judges  of  the  credi- 
bility that  ought  to  be  given  to  the  testimony  of  the  different  wit- 
nesses, and  you  are  not  bound  to  believe  anything  to  be  a  fact 
because  a  witness  has  stated  it  to  be  so,  provided  you  believe  from 
all  the  evidence  that  such  witness  is  mistaken,  or  has  knowingly 
testified  falsely.7 

§  343.  Palpably  False  Testimony  May  Be  Disregarded.  It  is  the 
duty  of  the  jury  in  passing  upon  the  credibility  of  the  testimony  of 
the  several  witnesses  to  reconcile  all  the  different  parts  of  the  testi- 
mony if  possible.  It  is  only  in  cases  where  it  is  palpable  that  the 
witness  has  deliberately  and  intentionally  testified  falsely  as  to  some 
material  matter,  and  is  not  corroborated  by  other  credible  evidence, 
that  the  jury  is  warranted  in  disregarding  his  entire  testimony.  Al- 
though a  witness  may  be  mistaken  as  to  some  part  of  his  evidence, 
it  does  not  follow  as  a  matter  of  law  that  he  has  willfully  told  an 
untruth,  or  that  the  jury  would  have  the  right  to  reject  his  entire 
testimony.  It  is  the  duty  of  the  jury  to  consider  carefully  all  the 
testimony  in  the  case  bearing  upon  the  issues  of  fact  submitted  to 
them,  and,  if  possible,  to  reconcile  any  and  all  apparently  conflicting 
statements  of  the  witnesses.8 

6— State  v.  Staley,  45  W.  Va.  792,  Inst.     Juries,     sec.     7,    p.     35     (2nd 

32   S.    E.   198    (199).  ed.)     An  instruction  was  approved 

7— State     v.     Fenton,     30      Wash,  which    told     the     jury     that     they 

325,   70  Pac.  741   (743).  might    disregard    the    entire    testi- 

8— N.    C.    St.    R.    Co.    v.    Fitzgib-  mony    of    a    witness    if    they    be- 

bons,  79  111.  App.  632   (636),  aff.   180  lieved  that  he  had  willfully  sworn 

111.  461    (468),   54   N.   E.   483.  falsely,    etc.,     'unless    corroborated 

"The     only    objection     urged     to  by       other       unimpeaehed       testi- 

this  instruction  is  that  it  omits  the  mony.'      Bowers    v.    People,    74    111. 

word    'credible'    as    qualifying    the  418.      'When    a    witness    contradicts 

corroborating  evidence.     It  is  true  himself   in   a   material   part   of   his 

that     the     instruction     is     usually  evidence,    and    should     he     do    so 

given    in    the    form    contended    for,  willfully    and    for    the    purpose    of 

i.  e.,  the  condition  is  usually  stat-  concealing  the  truth,   he  would   be 

ed   as   'not   corroborated    by    other  unworthy   of   belief,    except   so   far 

credible  evidence.'    But  we  are  not  only  as  he  might  be  supported  by 

prepared   to  hold   that  the  instruc-  other      evidence       in       the       case.' 

tion   is   bad    as   given;    nor  that   it  Crabtree     v.     Hagenbaugh,   25     111. 

would    be    likely     to     mislead     the  233,   79  Am.   Dec.   324." 

jury.     The  precise  form   here   used  But    see    W.    C.    St.    Ry.    Co     v. 

in  this  particular  has  the  approval  Moras,  111    111.  App.  531,  where  Judge 

of    text    book    authority.      Sackett  Ball  held  that  the  use  of  the  word 

18 


274 


FORMS  OF  INSTRUCTIONS. 


[§  344. 


§  344.  Falsus  in  Uno,  Falsus  in  Omnibus,  (a)  If  you  should  find 
that  any  witness  in  this  case  has  willfully  testified  falsely  to  any 
material  fact  in  the  case,  then  you  have  the  right  to  disregard  the 
whole  of  such  witness'  testimony,  if  you  decide  so  to  do.9 

(b)  If  the  jury  believe  that  any  witness  in  this  case  has  know- 
ingly sworn  falsely  to  any  material  matter  in  this  case,  then  you 
are  instructed  that  this  would  justify  you  in  disregarding  the  testi- 
mony of  such  witness   entirely.10 

(c)  If  the  jury  believes  that  any  witness  has  willfully  sworn 
falsely  to  any  material  fact  in  the  case,  you  are  at  liberty  to  reject 
as  untrue  the  whole  or  any  part  of  the  testimony  of  such  witness.11 

(d)  If  the  circumstances  respecting  which  testimony  is  discordant, 
be  immaterial,  and  of  such  a  nature  that  mistakes  may  easily  exist, 
and  be  accounted  for  in  a  manner  consistent  with  the  utmost  good 
faith  and  probability,  there  is  much  reason  for  indulging  the  belief 
that  the  discrepancies  arise  from  the  infirmity  of  the  mind,  rather 
than  from  deliberate  error.  If,  however,  a  witness,  with  intent  to 
deceive,  falsely   testifies   as   to   a  material  fact,  which   the   witness 


"palpable"  was  reversible  error. 
Later  in  C.  C.  R.  Co.  v.  Shaw,  220 
111.  532,  77  N.  E.  139,  the  supreme 
court  of  Illinois  held:  "The  par- 
ticular complaint  made  of  this  in- 
struction is  the  use  of  the  word 
'palpable,'  contained  in  the  second 
sentence  of  the  instruction.  A 
similar  instruction  was  before  this 
court  containing  the  word  here 
complained  of,  in  the  case  of  N.  C. 
S.  R.  Co.  v.  Fitzgibbons,  ISO  111. 
466.  On  page  468  of  the  opinion  it 
is  discussed  and  held  to  be  an  in- 
accurate expression  of  the  law._  In 
that  case  the  court  took  the  view 
that  the  inaccuracy  was  not  of 
such  a  character  as  would  mislead 
the  jury  or  require  a  reversal  of 
the  case." 

9— Hurlbut  v.  Leper,  12  S.  Dak. 
321,    81    N.   W.    631    (632). 

"It  will  be  noticed  in  this  in- 
struction that  the  court  carefully 
qualified  it  by  using  the  term  'has 
willfully  testified  falsely.'  As 
qualified,  we  see  no  objection  to 
the  instruction  as  given.  In  Mc- 
Pherrin  v.  Jones,  5  N.  D.  261,  65  N. 
W.  685,  the  court,  in  commenting 
upon  an  instruction  given  by  the 
lower  court,  uses  the  following 
language:  This  instruction  should 
have  been  so  qualified  as  to  make 
it  applicable  only  in  the  event  of 
the  jury  believing  that  the  witness 
has  willfully  or  knowingly  testi- 
fied falsely.  The  instruction  in 
that   .case    had     omitted     to     state 


either  of  these  qualifications  and, 
as  given  to  the  jury  was  as  fol- 
lows: If  you  believe  that  any  wit- 
ness has  testified  falsely  as  to  any 
material  fact  in  the  case,  you  have 
the  right  to  wholly  disregard  the 
testimony  of  any  such  witness,  ex- 
cept so  far  as  it  is  corroborated 
by  other  credible  evidence  in  the 
case,  either  positive  or  circum- 
stantial. For  the  error  in  that  in- 
struction the  judgment  of  the 
court    below    was    reversed." 

10— Atkins  v.  Gladwish,  27  Neb. 
841,  44  N.  W.  37  (38). 

"The  maxim,  falsus  in  uno,  fal- 
sus in  omnibus,  is  one  of  general 
acceptation;  but  there  is  quite  a 
diversity  of  opinion  in  the  report- 
ed cases  as  to  how  It  should  be 
expressed  in  an  instruction  to  a 
jury.  It  is  not  my  purpose  to  com- 
pare the  instruction  above  quoted 
with  those  which  have  been  ap- 
proved or  disapproved  in  the 
courts  of  other  states,  but  to  say 
that  I  do  not  find  either  the  weight 
of  authority  or  the  reason  of  the 
case  to  indispensably  require  such 
charge  to  be  qualified  by  the  addi- 
tion of  'the  words  'unless  corrob- 
orated.' Indeed  if  the  witness  may 
not  be  believed  unless  corrobo- 
rated, but  may  not  be  disbelieved 
if  corroborated,  even  then  cre- 
dence is  given  alone  to  the  corrobo- 
rating testimony,  and  not  to  that 
of    the   implicated   witness." 

11— State  v.  Moore,  156  Mo.  204, 
56  S.  W.  8S3  (886). 


§  345.] 


CREDIBILITY— SWEARING  FALSELY. 


275 


knows  to  be  absolutely  false,  then  you  can  apply  to  the  testimony 
of  the  witness  the  maxim,  "Falsus  in  uno,  falsus  in  omnibus."  If 
you  find  that  either  one  of  these  parties,  the  complaining  -witness 
or  the  defendant,  has  falsely  and  intentionally  testified  to  a  material 
fact  in  this  case,  which  is  not  true,  that  this  has  been  done  inten- 
tionally, and  falsely,  knowing  it  to  be  untrue,  you  are  at  liberty  to 
apply  this  maxim  to  such  testimony.12 

§  345.  Duty  to  Distrust  the  Entire  Testimony  When  Willfully 
False  in  a  Material  Fact,  (a)  The  court  charges  you  that  if  any 
witness  examined  before  you,  or  whose  testimony  taken  elsewhere 
has  been  read  to  you,  has  willfully  sworn  falsely  to  any  material 
matter,  it  is  your  duty  to  distrust  the  entire  evidence  of  such  wit- 
ness.13 

(b)  The  court  charges  you  that,  if  any  witness  examined  before 
you  has  willfully  sworn  falsely  as  to  any  material  matter,  it  is  your 
duty  to  distrust  the  entire  evidence  of  such  witness.14 

(c)  The  court  charged  the  jury  that  if  they  believe  from  the 
evidence  that  B.  willfully  and  intentionally  swore  that  he  did  not 
have  the  conversations  with  C.  and  P.  as  testified  by  them,  then 
they  may  discard  all  that  B.  testified.15 


12— State  v.  Sexton,  10  S.  D.  127, 
72   N.    W.   84    (85). 

"Concerning  this  cautionary  in- 
struction counsel  for  the  defend- 
ant contend  that  the  court  should 
have  added  'unless  corroborated  by 
other  credible  evidence  in  the 
cause,  or  by  facts  and  circum- 
stances proved  at  the  trial.'  By  the 
foregoing-  instruction,  the  jury 
were,  in  effect,  cautioned  that  in 
the  absence  of  motive  and  willful 
intent  to  deceive,  by  testifying 
falsely  to  a  material  fact  known 
at  the  time  to  be  absolutely  false, 
discrepancies,  though  material, 
should  be  attributed  to  mistake, 
misapprehension  or  the  infirmity 
of  the  mind,  and  when  thus  ac- 
counted for,  the  maxim,  'False  in 
one  thing,  false  in  all  things,' 
should  not  be  applied.  While  the 
credibility  of  a  witness  is  a  matter 
exclusively  for  the  jury,  and  a 
province  upon  which  the  court 
must  not  trench,  a  well-guarded 
advisory  instruction  relating  to  the 
power  of  a  jury  to  wholly  dis- 
credit a  witness  who  has  knowing- 
ly and  purposely  testified  falsely 
to  a  material  fact  i.s  clearly  with- 
in the  exercise  of  a  sound  judicial 
discretion,  and  well  supported  by 
both  reason  and  authority." 
Minich  v.  People,  S  Colo.  440,  9 
Pac.  12:  Fras^r  v.  Hagsrerty,  86 
Mich.   521,   49   N.   W.   61G;    People  v. 


Sprague,  53  Cal.  491;  Wilkins  v. 
Earle,  44  N.  Y.  172,  4  Am.  Rep. 
655;  People  v.  Moett,  58  How.  Prac. 
467;  The  Santissima  Trinidad,  7 
Wheat.  2S3. 

"As  the  language  employed  in 
no  manner  invaded  the  rights  of 
the  jury,  but  left  each  member 
thereof  entirely  free  to  deal  ac- 
cording to  the  dictates  of  con- 
science, morality  and  justice  with 
the  testimony  of  the  various  wit- 
nesses, the  court  did  not  err  by 
omitting  to  modify  the  instruction 
with  the  phrase  'unless  corrobo- 
rated by  other  credible  evidence 
in  the  cause,  or  by  facts  and  cir- 
cumstances  proved   at   the  trial.'  " 

13— People  v.  Fitzgerald,  138  Cal. 
39,   70  Pac.   1014   (1017). 

Said  the  court:  "This  instruc- 
tion is  substantially  according  to 
the  Code,  which  is,  'that  a  witness 
false  in  one  part  of  his  testimony 
is  to  be  distrusted  in  others.'  " 
Cove  Civ.  Proc,  par.  2061,  subd.  3. 

14— In  People  v.  Stevens,  141  Cal. 
488,  75  'Pac.  62  (64),  the  court 
held  that  the  above  instruction 
was  proper  and  in  substantial  ac- 
cord with  the  statute  (Code  Cr. 
Proc.  par.  2061,  subd.  3)  as  con- 
strued in  People  v.  Fitzgerald, 
supra.  See,  also,  People  v.  Sprague, 
53  Cal.  491;  People  v.  Arlington, 
131  Cal.   231,  63  Pac.   347. 

15— McClellan  v.  State,  117  Ala. 
140,   23   So.   653    (655). 


276  FORMS  OF  INSTRUCTIONS.  [§  346 

(d)  It  is  the  maxim  of  the  law  that  if  a  man,  who  is  under  oath, 
testifies  falsely  in  one  particular,  you  would  be  justified  in  not  be- 
lieving him  in  anything.16 

§  346.  May  Disregard  Entire  Testimony  of  a  Witness,  "Who  Has 
Willfully  Sworn  Falsely,  Except  in  so  far  as  it  Has  Been  Cor- 
roborated by  Other  Credible  Evidence,  (a)  The  jury  are  instructed 
that  if  you  believe  from  the  evidence  that  any  witness  has  willfully 
sworn  falsely  on  this  trial  as  to  any  matter  or  thing  material  to  the 
issues  in  the  case,  then  you  are  at  liberty  to  disregard  his  entire 
testimony,  except  in  so  far  as  it  has  been  corroborated  by  other 
credible  evidence,  or  by  facts  and  circumstances  proved  on  the 
trial.17 

(b)  The  court  instructs  the  jury  that  they  are  the  sole  judges 
of  the  facts  in  this  case  and  of  the  credit  to  be  given  to  the  re- 
spective witnesses  who  have  testified,  and  in  passing  upon  the  credi- 
bility of  such  witnesses  they  have  a  right  to  take  into  consideration 
their  prejudices  or  motives  or  feelings  of  revenge,  if  any  such  have 
been  proven  or  shown  by  the  evidence  in  this  case;  and  if  the  jury 
believe,  from  the  evidence,  that  any  witness  or  witnesses  have  know- 
ingly or  willfully  testified  falsely  as  to  any  material  fact  or  point 
in  this  case,  the  jury  are  at  liberty,  unless  corroborated  by  other 
credible  evidence,  to  disregard  the  testimony  of  such  witness  or  wit- 
nesses in  toto.ls 

(c)  If  you  believe  that  any  witness  has  been  successfully  im- 
peached, then  the  testimony  of  such  witness  should  be  discredited, 
unless  it  be  corroborated  bj7  other  testimony  or  circumstances  which 
the  jury  believe  to  be  true.19 

(d)  If  you  believe  that  any  witness  who  has  testified  in  this  case 
has  willfully  and  intentionally  testified  falsely  as  to  any  material 
matter  in  the  case,  the  jury  have  a  right  to  disregard  any  or  all  of 
the  testimony  of  such  witness,  except  in  so  far  as  it  is  corroborated 
by  other  credible  evidence.20 

This   instruction,   said   the    court,  19 — Hinkle  v.  State,  94  Ga.  595,  21 

should    have   been    given   upon    the  S.   E.   595   (601). 

authority    of    Grimes    v.    State,    63  20— State   v.    De  Wolfe,   29    Mont. 

Ala.    166;    Childs    v.    State,    76    Ala.  415,  74  Pac.  1084   (1087). 

93;    Jordon    v.    State,    81   Ala.    31,    1  Section     3390,     Code     Civ.     Proa, 

So.    577;    Railroad    Co.    v.    Frazier,  which    is    applicable    to    this    case, 

93   Ala.    51,   9   So.   303.  prescribes  that  'the  jury  are  to  be 

16 — Creachen    v.    Carpet    Co.,    214  instructed    by    the     court,     on     all 

Pa.  15,  63  Atl.  195.  proper  occasions,    "that   a  witness 

17 — State  v.  Wain,  —  Idaho  — ,  80  false  in  one  part   of  his  testimony 

Pac.    221;    State   v.    Burns,    27   Nev.  is   to   be   distrusted   in   others."     In 

289,    74    Pac.    983;    Bonnie    v.    Earll,  Cameron   V.    Wentworth,    23    Mont. 

12   Mont.    241,    29   Pac.   882;    Bowers  70,    57    Pac.     648,    the     court     said: 

v.   People,  74  111.  418.  "It    is   undoubtedly   the    rule   that, 

18 — Gice    v.    Crosby,    63    111.    190;  where     a     witness     has     willfully 

Gotlieb    v.    Hartman,     3    Colo.    60;  sworn    falsely   as    to    any    material 

Munich  v.   People,  8  W.   C.   R.   588.  matter   upon  the  trial,   the  jury  is 

Held   error   to   refuse   this   instruc-  at     liberty    to    discard     his     entire 

tion.      Gorgo    v.     People,      100     111.  testimony,    except    in    so    far    as    it 

App.  130  (131)  assault.  has    been     corroborated     by    other 


§347.]  CREDIBILITY— SWEARING  FALSELY.  277 

(e)  If  you  believe  that  any  witness  has  willfully  testified  falsely 
as  to  any  material  fact  in  the  case,  you  are  at  liberty  to  disregard 
the  entire  testimony  of  such  witness,  except  in  so  far  as  it  may  be 
corroborated  by  other  credible  evidence  in  the  case.21 

(f)  If  you  believe  any  witness  on  either  side  of  this  case  has 
willfully  testified  falsely  in  any  material  matter,  then  you  have  a 
right  to  disregard  the  entire  testimony  of  such  witness,  unless  the 
witness  is  corroborated  by  other  credible  evidence.-2 

(g)  You  are  the  sole  judges  of  the  credibility  of  the  witnesses 
and  the  weight  of  their  testimony;  and,  if  you  believe  that  any 
witness  in  the  cause  has  willfully  sworn  falsely  as  to  any  material 
fact  or  matter  testified  to  by  such  witness,  you  are  at  liberty  to 
disregard  or  treat  as  untrue  the  whole  or  any  part  of  the  testimony 
of  such  witness.23 

§  347.  Witness  Who  Testifies  Falsely  May  Be  Distrusted  as  to 
All  the  Testimony,  (a)  A  witness  who  testifies  falsely  as  to  one 
fact  in  giving  his  testimony  is  to  be  distrusted  in  other  parts  of  his 
testimony.  If  you  find  that  a  witness  has  deliberately  testified 
falsely  in  one  part  of  his  testimony  in  this  case,  you  have  the  right 
to  reject  the  whole  of  the  testimony  of  that  witness  which  is  not 
shown  by  other  evidence  in  the  case  to  be  true.  I  do  not  intimate 
to  you  that  any  witness  in  this  case  has  testified  falsely,  or  that 
any  witness  has  been  impeached  in  his  testimony  in  this  case.  These 
are  matters  exclusively  within  your  province  as  jurors,  and  not  to 
be  determined  by  the  court.24 

credible    evidence."       And      again,  State    v.    Preiderich,    4   Wash.    204, 

commenting-    on    section    3390,    it    is  29    Pac.    1055,    30    Pac.    328,    31    Pac. 

said:      "As  a   statute   affecting  the  332;    Cameron    v.     Wentworth,     23 

province    of    the    jury    in    weighing  Mont.   70,    57  Pac.  648;    Faulkner  v. 

evidence,  it  requires  them  to  view  Territory,     6    N.    M.    464,     30    Pac. 

with    distrust    the    testimony    of    a  905." 

witness  who  willfully  swears  false-  22 — Rio    Grande    W.    Ry.     Co.    v. 

ly  as  to  a  material  matter.     They  Utah   Nursery   Co.   et   al.,   25   Utah 

must  distrust  such  a  witness,  and,  187,    70    Pac.    859    (860). 

under  their  general  power  of  pass-  23 — State   v.    Harper,   149  Mo.   514, 

ing   upon   the  credibility  to,  be  at-  51    S.    W.   89    (91-2). 

taehed   to   each   witness,   they  may  24 — People    v.    Dobbins,    138    Cal. 

disregard    such   testimony   entirely,  694,  72  Pac.  339  (341). 

except   in   so   far  as   it   is  corrobo-  The  court  said  "the  provision  of 

rated   by  other  credible  evidence."  the  Code  upon  which  this  instruc- 

People  v.   Durrant,   116  Cal.  179,  48  tion    is   based   is,     'that    a    witness 

Pac.  75,  37  L.  R.  A.  622.     The  same  false  in  one  part  of  his   testimony 

rule     is    announced      in    Bonnie    v.  is  to  be  distrusted  in  others.'  Code 

Earl,  12  Mont.  239,  29  Pac.  882.  Civ.   Proc.  2061,   subd.   3.     The  first 

21 — Trimble    iv.     Territory, — Ariz,  sentence  of  the  instruction  is  sub- 

--,   71  Pac.  932   (933).  stantially   in    the   language   of   the 

In   comment   the   court   said   that  Code.     In  People  v.  Plyler,  121  Cal. 

"substantially    the    same    form    of  162,   53   Pac.    553,   the   court  refused 

instruction  as  is  here  complained  of  to   give   an   instruction   which   was 

has  been  approved  in   many  cases,  an    accurate   amplification   and   ex- 

to  wit:     Hoge  v.  People,  117  111.  45,  emplification    of    the    principle    of 

6  N.  E.  796;   Pierce  v.  State,  53  Ga.  law  embraced  in   the    Code    provi- 

365;    State   v.    Kellerman,    14     Kan.  sion,  and  it  was  said  that  the  court 

HI;    Mead  v.   McGraw,   19  Ohio   St.  should    not    have    refused     the    in- 

55;    Jones    v.    People,    2    Colo.    351;  struction  because  it   was   unobjec- 


278  FORMS  OF  INSTRUCTIONS.  [§  347. 

(b)  The  court  instructs  you  that  you  are  the  sole  judges  of  the 
weight  of  the  evidence  and  of  the  credibility  of  the  witnesses,  and  if 
you  believe  from  the  evidence  that  any  witness  has  willfully  sworn 
falsely  as  to  any  material  fact  in  this  case,  you  may  unless  the  same 
is  corroborated  by  other  credible  evidence,  or  facts  and  circumstances 
in  evidence,  disregard  the  whole  or  any  part  of  the  testimony  of  such 
witness;  and  in  passing  on  the  credibility  of  any  witness  or  the 
weight  to  be  given  to  his  testimony,  you  may  consider  his  manner 
and  conduct  upon  the  stand,  his  means  of  knowledge,  the  relation- 
ship of  the  parties,  if  any,  and  the  interest  that  he  may  have  in  the 
result  of  the  case.25 

(c)  Testimony  has  been  introduced  to  impeach  certain  witnesses 
in  this  case,  tending  to  show  that  their  reputation  for  truth  and 
veracity  is  bad.  Testimony  has  also  been  introduced  tending  to 
sustain  their  reputation  for  truth  and  veracity,  and  their  general 
moral  character.  You  are  to  consider  such  testimony  as  bearing  on 
the  credibility  of  such  witnesses,  but  you  should  not,  for  such  reason 
alone,  disregard  their  testimony,  especially  in  those  particulars,  if 
any,  where  they  are  corroborated  by  other  credible  witnesses,  or  by 
facts  and  circumstances  proven  by  the  evidence  in  the  case.  You 
are  to  consider  all  their  testimony  in  the  light  of  and  in  connection 
with,  all  the  other  evidence  and  circumstances  disclosed  in  the  case, 
and  give  to  the  evidence  of  said  witnesses  such  credibility  as  you  may 
deem  it  entitled  to  receive.26 

(d)  The  jury  are  the  sole  judges  of  the  weight  of  the  evidence 
and  the  credibility  of  witnesses.  And,  in  passing  upon  the  weight 
to  be  given  to  any  witness'  testimony,  the  jury  may  consider  the 
manner  and  deportment  of  the  witness  upon  the  stand,  his  means 
of  knowing  the  facts  of  which  he  testifies,  the  interest,  if  any,  he 
manifests,  the  interest,  if  any,  he  has  in  the  result  of  the  trial,  his 
relationship,  if  any,  to  any  party  interested  in  the  result  of  the  trial, 
the  probability  or  improbability  of  his  testimony  being  true,  and 
other  matters  that,  in  the  nature  of  things,  would  add  to  or  detract 
from  the  value  of  such  witness'  testimony.  And,  if  you  believe  that 
any  witness  has  willfully  testified  falsely  to  any  material  matter  in 
this  case,  you  should  disregard  such  false  testimony,  and  you  are  at 

tionable  in  point  of  law,  and  be-  while  the  instruction  cannot  be 
cause  the  terse  language  of  our  commended  as  a  full  or  clear  ex- 
statute,  well  understood  by  jurists,  position  of  the  meaning  of  the  sec- 
might  be  misleading  to  the  non-  tion  of  the  Code,  still  it  cannot  be 
professional  mind;  that  the  false  said  that  it  was  error  for  the 
swearing-  must  be  willful,  and  up-  court,  in  giving  the  law,  to  have 
on  a  matter  material  to  the  case,  conformed  to  the  language  of  the 
But  nowhere  has  it  been  decided,  Code,  and  to  have  omitted  what 
nor  indeed  could  it  with  reason  be  that  Code  itself  omits." 
held,  that  it  is  error  for  the  court  25 — Territory  v.  Garcia,  12  N. 
to  Instruct  in  the  language  of  our  Mex.  871,  75  Pac.  34  (35). 
written  law.  This  is  substantially  26— State  v.  Olds,  106  Iowa  110, 
what   the   court   here  did;    and   so,  76  N.  W.  644  (646). 


§  348.]  CREDIBILITY— SWEARING  FALSELY.  '       279 

liberty  to  disregard  the  whole  or  any  part  of  the  testimony  of  such 
witness.27 

(e)  The  jury  being  convinced  that  the  witness  has  stated  what 
is  untrue,  not  as  the  result  of  a  mistake  or  inadvertence,  but  will- 
fully and  with  the  design  to  deceive,  must  treat  all  of  his  testimony 
with  distrust  and  suspicion,  and  reject  all,  unless  they  shall  be  con- 
vinced, notwithstanding  the  base  character  of  the  witness,  that  he 
had  in  other  particulars  sworn  to  the  truth.28 

(f)  The  jury  are  instructed  that  they  are  the  sole  judges  of  the 
credibility  of  the  witnesses  and  of  the  weight  to  be  given  to  their 
testimony.  In  determining  such  credibility  and  weight,  they  will  take 
into  consideration  the  character  of  the  witness,  his  manner  on  the 
stand,  his  interest,  if  any,  in  the  result  of  the  trial,  his  relation  to 
or  feeling  towards  the  parties  to  the  suit,  the  probability  or  im- 
probability of  his  statements,  as  well  as  the  facts  and  circumstances 
given  in  evidence.  In  this  connection  you  are  further  instructed 
that  if  you  believe  any  witness  has  knowingly  sworn  falsely  to  any 
material  fact,  you  are  at  liberty  to  reject  all  or  any  portion  of  such 
witness'  testimony.29 

§  348.  Intentionally,  Corruptly,  Willfully  and  Knowingly  Swear- 
ing Falsely  to  a  Material  Point — Illinois  Rule,  (a)  If  the  jury  be- 
lieve, from  the  evidence,  that  any  witness  has  intentionally,  cor- 
ruptly, willfully  and  knowingly  sworn  falsely  to  any  material  point 
in  the  case,  they  have  the  right  to  reject  the  entire  testimony  of 
such  witness  or  witnesses  in  matters  where  their  testimony  is  not 
corroborated  by  other  credible  evidence  or  facts  and  circumstances 
appearing  in  evidence.30 

(b)  If  you  believe,  from  the  evidence,  that  any  person  who  testi- 
fied in  this  case  has  knowingly,  corruptly,  intentionally  and  willfully 
testified  falsely  as  to  any  matter  or  thing  upon  the  existence  or 
non-existence  of  which  the  right  of  the  plaintiff  to  recover  or  the 
right  of  the  defendant  to  escape  liability  depends,  or  upon  the 
existence  or  non-existence  of  which  the  amount  of  damages,  if 
any,   to   be   recovered   by   the    plaintiff   depends,    then   you    are    at 

27 — State  v.  Hale,  156  Mo.  102,  56  sworn  falsely,'  etc.     It  is  conceded 

S.  W.  881  (882).  that    'intentionally'    is   synonymous 

28— People  v.   Kelly,  146  Cal.  119,  with    'willfully,'   but  objection   was 

79  Pac.  846  (848).  made    that    the    use    of    the    word 

29 — Nat.  T.  W.  Co.  v.  Ice  Mach.  'corruptly'  was  equivalent  to  say- 
Co.  —  Mo.  — ,   98   S.   W.  620.  ing  to  the  jury  that,  although  they 

30— C.   C.   Ry.  Co.  v.  Olis,  192  111.  should    believe    from    the    evidence 

514  (516),  61  N.  E.  459.  that   any   witness    had    intentional- 

The  court  said,  it  was  unable  to  ly,   willfully  and  knowingly  sworn 

agree   with  counsel   that  the  word  falsely    to    any    material    point    in 

"corruptly"    referred    to    the    mo-  the  case,  they  yet  had  no  right  to 

tive  of  the  witness  in  that  connec-  reject    his    testimony     unless     they 

tion  rather  than   to  the  means  by  should   also   believe   from    the   evi- 

which    his    testimony    is    obtained,  dence   that  such  witness  had  been 

"Objection  was  made  to  the  use  of  bribed  or  was  to  receive  some  sort 

the  words   'any  witness'  has  inten-  of  reward  or  gain." 
tionally,    corruptly    and    knowingly 


280  FORMS  OF  INSTRUCTIONS.  [§  349. 

liberty  to  entirely  disregard  the  testimony  of  such  person,  except 
in  so  far  as  it  may  have  been  corroborated  by  other  credible  evidence 
in  the  case  or  by  facts  and  circumstances  shown  by  the  evidence 
in  the  case. 

(c)  The  court  instructs  the  jury  that  if  you  believe,  from  the 
evidence  in  the  case,  that  any  witness  has  willfully,  corruptly,  in- 
tentionally and  knowingly  testified  falsely  as  to  any  material  matter 
in  the  ease,  then  you  are  at  liberty  to  disregard  the  testimony  of 
such  witness  entirely,  except  wherein  it  is  corroborated  by  other 
credible  evidence  in  the  case,  or  facts  and  circumstances  in  evi- 
dence.31 

(d)  It  is  only  in  cases  where  a  witness  has  willfully  and  cor- 
ruptly testified  falsely  as  to  some  material  matter,  and  is  not  cor- 
roborated by  other  credible  evidence,  that  the  jury  is  warranted  in 
disregarding  his  or  her  testimony.  Although  a  witness  may  be  mis- 
taken as  to  some  part  of  his  or  her  evidence,  it  does  not  follow 
as  a  matter  of  law,  that  he  or  she  has  willfully  told  an  untruth  or 
that  the  jury  would  have  the  right  to  reject  his  or  her  entire  testi- 
mony.32 

§  349.  Knowingly  and  Willfully  Swearing  Falsely,  (a)  If  the 
jury  believe,  from  the  evidence,  that  any  witness  in  this  case  has 
knowingly  and  willfully  sworn  falsely  on  this  trial  to  any  matter 
material  to  the  issue  in  this  case,  then  the  jury  are  at  liberty  to 
disregard  the  entire  testimony  of  such  witness,  except  in  so  far  as 
it  has  been  corroborated  by  other  credible  evidence  or  by  facts  and 
circumstances  proved  on  the  trial.33 

31 — In  C.  St.  Ry.  Co.  v.  Woodruff,  question    here     raised     has     never 

192  111.  544-45,  61  N.  E.  461  the  court  been    passed    upon    by    this    court, 

said    of    forms    "b"    and    "c"    "The  but  we   are  clearly  of  the   opinion 

.contention    is,    the    court    erred    in  that  the  criticism  is  without  force, 

modifying    the    instruction    by   the  The    instruction    would,    we   think, 

insertion   of   the   word     'corruptly.'  have  been  good  if  it  had  used  only 

In  C.   C.   R.   R.   Co.  v.  Olis,  192  111.  the  word   'willfully,'   but  the  addi- 

514,  61  N.   E.  459,  the  precise  ques-  tion    of    the    word    'corruptly'    did 

tion    was    presented    for    decision,  not    make    it   bad.      If  a    witness 

On    the    authority    of   the    decision  swears    willJully    falsely,    he    must 

in   that   cause,   and   for  the   reason  have  done   su   corruptly.     In  order 

given    in   the    opinion   filed    in    that  to    justify   a   jury    in    disregarding 

case,   the   judgment   of  the  Appel-  the  testimony  of  a  witness  it  must 

late    Court    is    affirmed."  first  appear  that  such  testimony  is 

32 — Hanchett     v.    Haas,     219     111.  false,  and  then  if  the  jury  believe 

549,   76   N.   E.   845.  that  it  was  willfully  so  they  may 

"The  objection  to  this  instruction  disregard    it,    except   in    so    far   as 

is,  that    it    uses  the  words  'willfully  corroborated.      The    instruction    as 

find  corruptly,'   whereas  it  is  said,  given    could    not    have    misled    the 

'if    a   witness    has    either   willfully  jury   to   the   prejudice    of   the   de- 

or  corruptly  testified   falsely,'  etc.,  fendant." 

the  jury  may  disregard  his  or  her  33 — United    Breweries   Co.    v.    O'- 

testimony.     It  is  well   settled   that  Donnell,  221  111.  334  (338),  77  N.  E. 

it    is    not    enough    that    a   witness  547. 

may  have  testified  falsely  to  justi-  "It    is    not    denied    that    this    in- 

fy    the    jury   in    ignoring   his    evi-  struction    lays    down    the    rule    in 

denre,   because  he   may  have  done  .conformity  with  many   decisions    of 

so   through     mistake.      The     exact  this     court,     but    it    seems    to    be 


§350/ 


CREDIBILITY— SWEARING  FALSELY. 


281 


(b)  It  is  claimed  in  this  case,  gentlemen,  that  some  of  the  wit- 
nesses have  testified  falsely.  If  you  find  that  any  witness  has  know- 
ingly and  willfully  testified  falsely,  as  to  any  material  fact,  you  may 
reject  all  of  the  testimony  as  you  may  find  not  to  be  corroborated  by 
other  credible  evidence,  or  by  facts  and  circumstances  that  may 
fairly  be   inferred   therefrom.34 

(c)  If  the  jury  believe,  from  all  the  evidence  in  the  case,  that 
any  material  witness  or  witnesses  have  willfully  sworn  falsely  to  any 
material  fact  in  this  case,  the  jury  may  disregard  the  testimony  of 
such  witness  or  witnesses  as  far  as  the  jury  may  believe  it  false.35 

§  350.  Willfully  and  Knowingly  Exaggerating,  (a)  The  jury  are 
instructed  that  it  is  a  principle  of  law  that  if  you  believe,  from  the 


thought  that  it  is  in  conflict  with 
the  later  cases  of  Chicago  and  Alton 
Railroad  Co.  v.  Kelly,  210  111.  449, 
Dunn  v.  Crichfield,  214  id.  292,  Rep. 
and  Tri-City  Railway  Co.  v.  Gould, 
217  id.  317.  Rep.  This  is  a  misappre- 
hension. In  the  Kelly  case  an  in- 
struction informed  the  jury  that 
they  could  disregard  the  entire 
testimony  of  a  witness  'except  in 
so  far  as  it  may  have  been  corrob- 
orated by  other  credible  evidence 
which  they  do  believe,  or  by 
facts  and  circumstances  proved 
on  the  trial.'  In  the  Dunn  case 
the  instruction  was  to  the  effect 
that  they  could  disregard  the 
testimony  of  a  person  'except 
in  so  far  as  it  may  have 
been  corroborated  by  evidence  in 
the  case  which  you  do  believe  to 
be  true,'  etc.  And  the  one  in  the 
Tri-City  Railway  case  was  wholly 
unlike  the  one  here  objected  to.  In 
the  first  two  cases  the  instructions 
were  condemned  because  of  the 
words  'which  you  do  believe.'  In 
the  Kelly  .case  we  said:  'It  has 
been  repeatedly  announced  as  the 
law  of  this  State,  that  the  jury  are 
at  liberty  to  disregard  the  evi- 
dence of  a  witness  who  upon  the 
trial  has  willfully  sworn  falsely  to 
a  material  fact,  except  in  so  far  as 
such  witness  has  been  .corroborat- 
ed by  other  credible  evidence  or 
by  facts  and  circumstances  proven 
upon  the  trial.'  This  language  is 
not  variant  in  any  substantial  re- 
spect from  that  of  the  instruction 
criticised.  To  the  same  effect  are 
Cicero  and  Proviso  Street  Railway 
Co.  v.  Brown,  193  111.  274,  61  N.  E. 
1093;  Hoge  v.  People,  117  id.  35,  6  N. 
E.  796.  and  Bevelot  v.  Lestrade,  153 
id.  625,  38  N.  E.  1056. 

See  also,   Pierce  v.   State,   53  Ga. 
365;    State    v.    Kellerman,     14  Kan. 


Ill;  Mead  v.  McGraw,  19  Ohio  St. 
55  (but  see  Jones  v.  The  People,  2 
Colo.  359);  Hoge  v.  People,  117  111. 
35,  6  N.  E.  796;  Kerr  v.  Hodge,  39 
111.    App.    546    (552). 

This  instruction  is  expressed  in 
language  which  was  approved  of 
by  this  court.  While  it  may  be 
true  that  the  instruction  had  no 
just  application  to  the  testimony 
of  the  witnesses  of  either  party, 
yet  there  was  some  conflict  in  the 
evidence,  and  as  the  instruction 
was  'the  assertion  of  what  was 
supposed  to  be  a  mere  abstract 
principle  of  law,'  it  could  not  have 
prejudiced  the  cause  of  the  de- 
fendant. Reynolds  v.  Greenbaum, 
80  111.  416." 

This  instruction  has  no  more  ap- 
plication to  the  testimony  of  de- 
fendant's witnesses  than  to  that 
of  plaintiff's  witnesses.  It  is  not 
faulty  in  that  it  does  not  mention 
the  names  of  any  witness.  The 
practice  of  singling  out  witnesses 
in  instructions  of  this  character  is 
justly  subject  to  criticism.  Phoenix 
Ins.  Co.  v.  La  Pointe,  US  111.  364, 
8  N.  E.  353;  City  of  Sandwich  v. 
Dolan,  141  111.  430  (435),  31  N.  E. 
416;  Strehmann  v.  Citv  of  Chica- 
go, 93  111.  App.  206  (209);  Village  of 
Wilmette  v.  Brachle,  110  111.  App. 
356;  W.  Chi.  R.  R.  Co.  v.  Liesero- 
witz,  197  111.  607  (617),  affg.  99  111. 
App.   591,  64   N.  E.    718. 

34— Colbert  v.  State,  125  Wis. 
423,   104   N.  W.   61. 

35— St.  L.  P.  &  N.  R.  R.  Co.  v. 
Rawley,  106  111.   App.   550. 

The  court  said:  "The  omission 
of  the  qualifying  clause  where  cor- 
roborated by  other  testimony  of 
other  credible  witnesses  is  not 
fatal  to  an  instruction  worded  as 
the  one  under  consideration.  If  it 
had  said    that   the   testimony   of  a 


282  FORMS  OF  INSTRUCTIONS.  [§  350. 

evidence,  that  any  witness  has  willfully  and  knowingly  sworn  falsely 
to  any  material  element  in  the  ease,  or  that  any  witness  has  willfully 
and  knowingly  exaggerated  any  material  fact  or  circumstance  for 
the  purpose  of  deceiving,  misleading  or  imposing  upon  the  jury,  then 
the  jury  have  a  right  to  reject  the  entire  testimony  of  such  witness 
unless  corroborated  by  other  credible  evidence,  or  by  facts  and  cir- 
cumstances appearing  in  evidence  in  the  case.36 

(b)  The  court  instructs  the  jury  that  it  is  a  principle  of  law 
that  if  you  believe,  from  the  evidence,  that  any  witness  has  willfully 
or  knowingly  sworn  falsely  to  any  material  element  of  the  case,  or 
that  any  witness  has  willfully  and  knowingly  exaggerated  any  fact 
or  circumstance  material  to  the  issues  in  the  case,  for  the  purpose  of 
deceiving,  misleading  or  imposing  upon  the  jury,  either  as  to  the 
origin  of  plaintiff's  alleged  ailments,  so  far  as,  from  all  the  evidence, 
you  believe  they  exist,  or  as  to  the  nature  and  extent  of  the  alleged 
injury  or  as  to  the  manner  of  the  alleged  accident  in  question,  then 
the  jury  have  a  right  to  reject  the  entire  testimony  of  such  witness, 
except  in  so  far  as  corroborated  by  other  evidence  which  you  believe 
or  by  facts  and  circumstances  appearing  in  the  case.37 

(c)  The  court  instructs  the  jury  that,  if  they  believe,  from  the 
evidence,  that  any  witness  has  willfully  and  deliberately  testified 
falsely  to  any  material  fact  in  this  case,  then  the  jury  may  entirely 
disregard  all  the  evidence  of  such  witness,  except  in  so  far  as  he 
may  be  corroborated  by  other  credible  evidence  or  by  circumstances 
and  facts  as  shown  by  the  credible  evidence  in  the  case.38 

witness    who    had    willfully    sworn  jury  believe  it  to  be  false.  This  Is 

falsely    to    any    material    point    in  the   duty   of   a   jury,    and     the    in- 

.oontroversy   could   be   entirely   dis-  struction  is  not  misleading." 

regarded,    the    case    of    Goeing    v.  36— C.   C.   Ry.  Co.  v.  Olis,  192  111. 

Outhouse,   95  111.    347,   cited   by   ap-  514   (517),   61   N.   E.   459. 

pellant,  would  apply.  What  it  does  37 — Chicago     City      Ry.      Co.      v. 

say  is,  that  if  the  jury  believe  that  Shaw,  220  111.  532  (535,  536),  77  N.  E. 

any     witness     or    witnesses     have  139. 

willfully  sworn  falsely  to  any  ma-  38 — N.  C.  St.  R.  R.  Co.  v.  Shreve, 

terial    fact,    the    jury    may    disre-  171   111.   438   (441),   affg.   70  111.   App. 

gard    the    testimony    of   such    wit-  666,  49  N.   E.  534. 
ness    or   witnesses,   so   far    as   the 


CHAPTER  XVIII. 
PREPONDERANCE    OF   EVIDENCE  AND  BURDEN  OF  PROOF. 

See  Erroneous   Instructions,   same  chapter  head,  Vol.  III. 


§  351.  Preponderance  of  evidence 
explained. 

§  352.  Preponderance  of  evidence 
sufficient. 

§  353.  Preponderance,  methods  of 
determining'. 

§  354.  Preponderance,  number  of 
witnesses  proper  element  to 
be   considered. 

§  355.  Preponderance  does  not 
necessarily  depend  on  num- 
ber of  witnesses. 

§  356.  When  the  evidence  is  equal- 
ly  balanced. 


§  357.  Fair  preponderance  of  evi- 
dence. 

§  358.  Slight  preponderance  of  evi- 
dence sufficient. 

§  359.  Burden  of  proof  and  pre- 
ponderance of  the  evidence 
explained. 

§  360.  Burden  of  proof  on  plaintiff. 

§  361.  Burden  of  proof  on  plaintiff 
— Evidence  evenly,  balanced. 

§  362.  Burden  of  proof  on  de- 
fendant. 


§  351.  Preponderance  of  Evidence  Explained,  (a)  The  law  in 
this  ease,  and  indeed  in  every  ease,  is  that  a  party  coming  into  a 
court  of  justice  must  satisfy  the  jury  by  what  is  called  a  fair  pre- 
ponderance of  evidence  as  to  the  justice  of  his  claim.  What  we 
mean  by  the  fair  preponderance  of  evidence  is  this:  Preponderance 
refers  to  something  that  may  be  weighed.  Of  course,  we  cannot  get 
a  pair  of  scales,  and  by  some  arbitrary  method  put  on  one  side  the 
testimony  of  the  plaintiff  and  on  the  other  side  the  testimony  of  the 
defendant  and  say  which  one  outweighs  the  other,  or  whether  it  is 
evenly  balanced,  but  you  are  to  try  to  do  that  mentally  as  far  as 
possible. 

The  law  says  that  unless  the  plaintiff  satisfies  you  throughout  the 
entire  case  of  the  correctness  of  his  story  to  such  an  extent  that 
it  outweighs  the  proof  of  the  defendants,  he  cannot  recover.  In 
other  words,  if  the  testimony  is  evenly  balanced,  it  shows  that  there 
is  some  doubt  in  your  mind;  that  it  is  not  sufficient;  that  is,  if 
the  testimony  of  the  plaintiff  weighs  just  the  same  as  that  of  the 
defendant  you  must  find  for  the  defendant,  that  is  the  law.  The 
plaintiff  can  only  recover  where  his  testimony  outweighs  that  of  the 
defendant  } 


1 — Roberge     v.     Bonner,     et    al., 

185  N.  Y.  265,  77  N,  E.  1023. 

"More  might  be  quoted  from  this 
charge  to  show  that  the  trial  court 
most     cogently    and     clearly     im- 


pressed upon  the  minds  of  the  jury 
their  duty  to  weigh  the  evidence 
of  the  respective  litigants,  and 
that  their  verdict  must  follow  the 
preponderance   of   the    evidence." 


283 


284  FORMS  OP  INSTRUCTIONS.  [§  352. 

(b)  Preponderance,  of  course,  means  the  most  weight ;  but  it  is 
an  abstract  idea  to  talk  about  weighing  the  testimony  between  two 
such  men  as  these  parties.  I  can  tell  you  a  sure  test  as  to  where 
the  weight  of  testimony  is  in  this  case:  it  is  just  what  you  believe 
the  truth  to  be.2 

(c)  To  determine  the  question  in  this  case  by  the  preponderance 
of  the  evidence  is  meant  that  you  are  to  put  all  the  evidence  of  the 
plaintiff  on  one  side  of  the  scale,  all  the  evidence  in  favor  of  the 
defendant  on  the  other  side  of  the  scale,  and  whichever  side  makes 
down  weight  had  the  preponderance  of  the  evidence.  Now,  evidence 
is  what  convinces  a  man  of  the  truth.  If  a  witness  swears  to  some- 
thing you  do  not  believe  to  be  true,  that  is  testimony,  and  not  evi- 
dence. If  a  witness  says  something  you  are  satisfied,  in  your  sound 
judgment,  is  not  the  truth,  then  you  are  entitled  to  disregard  it; 
and  it  is  for  you  to  determine  how  much  weight  shall  be  given  to 
testimony  of  any  witness.  It  is  for  you  to  determine,  in  case  of  a 
conflict  of  evidence,  what  witness  tells  the  truth,  and  where  the 
truth  lies.  You  are  not  to  determine  it  arbitrarily  or  through  preju- 
dice, but  weigh  it  over  carefully  and  consider  it  carefully,  and  take 
into  consideration  all  the  circumstances, — all  the  evidence  in  the 
case;  and  then  it  is  for  you  to  determine  what  the  truth  is,  and  how 
much  weight,  or  how  little,  you  should  give  to  any  witness.  But  there 
may  be  one  other  point,  perhaps,  that  some  of  the  jurors  have  in 
their  mind.  I  told  you  in  criminal  cases  the  rule  was,  in  order  to 
find  a  man  guilty,  you  must  find  beyond  a  reasonable  doubt;  but 
this  is  different  from  a  criminal  action.  This  is  a  civil  action,  and  in 
this  case  you  are  only  to  be  satisfied  from  the  preponderance  of  the 
evidence.3 

§  352.  Preponderance  of  Evidence  Sufficient,  (a)  It  is  incum- 
bent upon  the  plaintiff  to  establish  this  allegation  by  a  preponder- 
ance of  the  evidence  before  he  can  recover;  and  if  you  find  that  this 
allegation  has  been  established  by  a  preponderance  of  evidence,  then 
the  plaintiff  is  entitled  to  recover  the  amount  claimed  by  him.4 

(b)  The  jury  are  further  instructed  that  it  does  not  necessarily 
follow  that  a  plaintiff  has  failed  to  establish  his  case  by  a  prepon- 
derance of  proof  because  he  has  testified  to  a  state  of  facts  which 

2 — Thomas    v.   Paul,   87  Wis.   604,  ponderance  of  the   evidence  in  fa- 

58  N.  W.   1031.   "This  instruction  is  vor   of   it,    instead    of   making   the 

substantially      correct.          Prepon-  preponderance  of  the  evidence  the 

derance    means    the    most    weight,  cause    of    their    belief     could     not 

It  is  as  correct  a  definition  as  can  have  misled  the  jury." 

be   given,   and    the     jury     are    in-  3 — Knopke         v.          Germantown 

structed  that,  to  entitle  the  plaint-  Farmers'    Mut.    Ins.    Co.,    99    Wis. 

iff  to  recover,  there    must  be    the  289,  74  N.  W.  795.     The  court  said: 

most  weight,  or  the  preponderance  "While   the  .charge  is  not    exactly 

of   the   evidence,   that    the   defend-  a    model    in    all    respects,    we    dis- 

ant  made  the  promise.  The  obvious  cover  no  reversible   error  in   it." 

inaccuracy,   that   the  belief  of  the  4 — Mefford  v.    Sell,  —  Neb.  — ,  92 

jury  that   the   defpndant   made  the  N.  W.  148. 
promise    is    evidence    of    the    pre- 


§352.] 


PREPONDERANCE  OF  EVIDENCE. 


285 


are  denied  by  the  testimony  of  the  defendant.  In  such  a  case,  in  ar- 
riving- at  the  truth,  the  jury  have  a  right  to  take  into  consideration 
every  fact  and  circumstance  proven  on  the  trial,  such  as  the  situation 
of  the  parties,  acts  at  the  time  of  the  transaction  and  afterwards,  so 
far  as  they  appear  in  evidence;  their  statements  to  others,  if  any 
proven,  in  relation  to  the  matters  in  question,  as  well  as  their  state- 
ments to  each  other,— as  well  as  their  appearance  on  the  witness 
stand,  and  their  manner  of  testifying  in  the  case.5 

(c)  If  you  find  that  the  plaintiff  has  proved  his  ease  as  laid  in  the 
declaration,  or  any  count  thereof,  by  a  preponderance  of  the  evidence, 
then  you  should  find  the  defendant  guilty.6 

(d)  That  in  this  action,  the  plaintiff  is  only  required  to  make  out 
his  case  by  a  preponderance  of  evidence,  to  entitle  him  to  recover; 
and  any  of  the  evidence  in  the  case,  either  circumstantial  or  positive 


5— Grand    Island    Mercantile    Co. 
v.  McMeans,  60  Neb.  373,  83  N.  W. 
172.     Of   this   instruction   the   court 
said:     "This  portion  of  the  charge 
was  not,   as  suggested  by  counsel, 
in  disparagement  of  the  testimony 
of  ,  defendant,    nor    did    it    tend    to 
strengthen    that   of   plaintiff.     It  is 
true  that  he  did  not  fail   to  make 
out    his    case    by   a   preponderance 
of  the  evidence  merely  because  his 
testimony   in   every   essential   mat- 
ter  was   contradicted   by   that   ad- 
duced by  his  adversary.     The  pre- 
ponderance  of  the  evidence  is   not 
determined  by  such  a  rule.     Many 
matters  enter  into   the   solution   of 
the    question,    as     the     jury     were 
properly   advised  by  the   court   be- 
low.    The    instruction   did   not,    as 
urged    in    argument,    compare    the 
testimony  of  any  witness  or  party 
with    that    of   another    witness     or 
party.       Argabright     v.     State,     49 
Neb.  760,  69  N.  W.  102,  cited  by  the 
defendant,      is     inapplicable  _    here. 
There    the    trial    court,    in    its    in- 
structions,  specifically  named   cer- 
tain witnesses  for  the  defense,  and 
cautioned    the    jury    that,    if    they 
had  testified  faLsely  as  to  any  ma- 
terial     matters,      their     testimony 
should    be    wholly   rejected,    where 
uncorroborated    by    other    credible 
evidence.      Manifestly,    it    was    er- 
ror to  so  advise  the  jury.     But  no 
instruction     of    that      import    was 
given  in  the  case  at  bar."    See  also 
Allen- West    C.    Co.    v.    Hudgins    & 
Bro.,   74   Ark  468,   86   S.   W.   289. 

6— Mt.  Olive  C.  Co.  v.  Rade- 
macher,  190  111.  538,  60  N.  E.  888. 
"The  instruction,  which  tells  the 
jury  that,  if  they  believe  from  the 
evidence,    that     the     plaintiff     has 


proved  his  or  her  case  as  laid  in 
his  or  her  declaration,  or  either 
count  thereof,  then  they  will  find 
the  issues  for  the  plaintiff,  has 
been  held  by  this  court  to  be  un- 
objectionable in  a  number  of 
cases."  Penna.  Co.  v.  Marshall, 
119  111.  399;  Chi.  C.  Ry.  Co.  v. 
Hastings,  136  id.  251,  26  N.  E.  594; 
Ohio  &  Mississippi  Ry.  Co.  v.  Porter, 
92  id.  437;  Race  v.  Oldridge,  90  id. 
250,  32  Am.  Rep.  27;  Logg  v.  Peo- 
ple,   92   id.    598. 

In  C.  &  E.  I.  R.  R.  Co.  v.  Filler, 
195   111.    9,    62    N.    E.    919,    the   court 
said:   "The  instruction  was  not  er- 
roneous   as    submitting    the    case 
upon  the  whole  of  the  declaration, 
because,    by   the   express   terms   of 
the  instruction,  the  recovery  could 
be    under   any    one    count     of     the 
declaration.  Upon  this  subject,  the 
Appellate      Court     correctly      say: 
'We     think     there     was     evidence 
tending    to    sustain    both    the    first 
and   third    counts    of   the    declara- 
tion,  and   that  there  was  no   error 
in  giving  the  instruction.'  See  also 
N.   C.   St.  R.   R.  Co.  v.   Polkey,  203 
111.  225  (231),  67  N.  E.  793  where  the 
court    said    on    a    similar    instruc- 
tion:   It    is    not    error    to    give   an 
instruction    of    this    character    au- 
thorizing a  recovery  upon  proof  of 
the  case  stated  in  the  declaration, 
where     the     counts     each     state    a 
cause   of   action   and   there  is   evi- 
dence tending  to  sustain  them.  Mt. 
Olive  Coal  Co.  v.  Rademacher,  190 
111.    538,   60   N.   E.   888;    Central   Ry. 
Co.   v.   Bannister,   195  111.   48,  62   N. 
E.  864.     In  this  oase,  there  was  at 
least    one   count   which   there    was 
no  evidence  tending  to  prove,  and 
the   giving  was   held   erroneous." 


286 


FORMS  OP  INSTRUCTIONS. 


[§352. 


and  direct,  which  tends  to  produce  belief  in  the  mind  of  the  jury,  is 
proper  to  be  considered  by  them,  in  determining  whether  or  not  the 
defendant  is  guilty.7 

(e)  The  plaintiffs  must  satisfy  the  jury  by  a  preponderance  of  the 
evidence,  that  the  contract  relied  upon  by  them,  is  the  true  contract, 
and  unless  this  is  done,  the  defendant  is  entitled  to  a  judgment  at 
their  hands.8 

(f )  The  court  instructs  you  that  in  order  to  prove  against  one  the 
charge  of  assault  and  battery,  it  is  necessary  to  establish  by  a  pre- 
ponderance of  the  evidence  an  assaulting  and  beating  with  a  willful 
intent  to  injure  another,  proof  of  carelessness  or  negligence  is  not  suf- 
ficient and  does  not  constitute  proof  of  assault  and  battery.9 


7— Miller  v.  Balthasser,  78  111. 
302. 

8— Behrman  et  al.  v.  Newton, 
103  Ala.  525,  15  So.  838  (839). 

"Jury  cannot  be  reasonably  sat- 
isfied of  the  existence  of  a  dis- 
puted fact,  unless  there  is  a  pre- 
ponderance of  the  evidence  in  its 
favor.  In  Acklen  v.  Hickman,  60 
Ala.  568,  35  Am.  Dec.  54,  it  was 
held  that  the  preponderance,  un- 
less it  reasonably  satisfied  the 
minds  of  the  jury  is  not  enough; 
and  in  the  case  of  Vandeventer  v. 
Ford,  60  Ala.  610,  the  rule  was  laid 
down  that  a  charge  should  not  be 
given  which  instructed  the  jury 
that  they  should  base  their  verdict 
upon  a  mere  preponderance  of  the 
evidence.  In  Rowe  v.  Baber,  93 
Ala.  422,  8  South  865,  it  is  said  that 
the  true  rule  is  that,  to  justify  a 
verdict  the  evidence  must  reason- 
ably satisfy  the  minds  of  the  jury 
that  the  facts  exist  upon  which 
their  verdict  is  based.  In  Carson 
v.  Porter  (K.  C.)  22  Mo.  App.  179 
the  court  objected  to  the  instruc- 
tion because  it  required  the  plaint- 
iff to  produce  a  preponderance  of 
the  evidence  to  show  he  was  an 
innocent  indorsee  of  a  promissory 
note,  when  the  law  only  required 
a  rebuttal  of  the  prima  facie  case 
in  favor  of  the  defendant  arising 
from  the  proof  adduced  that  the 
note  was  procured  by  fraudulent 
representations  on  the  part  of  the 
payee.  None  of  the  foregoing 
cases  held  or  suggested  that  it  is 
reversible  error  in  every  case  to 
use  the  words  in  question  in  in- 
structing the  jury,  while  the  con- 
trary has  been  ruled  several  times. 
A  jury  will  always  gather  the  true 
import  of  the  expression,  unless  it 
is  used  in  a  misleading  context, 
and  .that  it  was  so  used  must 
plainly   appear   to    authorize   a  re- 


versal. Milligan  v.  Railway  Co. 
(K.  C.)  79  Mo.  App.  393;  Milling 
Co.  v.  Walsh,  37  Mo.  App.  567;  and 
in  Steinkamper  v.  McManus,  26 
Mo.  App.  51,  this  court  held  the 
use  of  the  phrase  without  ex- 
planation will  not  justify  a  re- 
versal, and  we  think  those  rulings 
were  intelligent  and  just."  Jones 
v.  Durham,  94  Mo.  51,  67  S.  W. 
976    (977). 

9— Solomon  v.  Buechele,  119  111. 
App.    595   (598-602). 

"The  appellant  strenuously  in- 
sisted that  this  instruction  was  er- 
roneous. Because  assault  and  bat- 
tery is  an  offense  under  the  crim- 
inal law  of  Illinois,  he  says  that 
its  perpetration  must,  even  in  a 
civil  action,  be  proved  beyond  a 
reasonable  doubt  before  one 
charged  with  it  can  be  legally 
held  liable.  If  this  be  so,  the 
modified  instruction  was  prejudic- 
ially erroneous."  The  court  said 
that,  the  rule  contended  for  by 
appellant,  "if  it  did  not  have  its 
origin  altogether  in  actions  of 
slander  and  libel,  where  it  was  ap- 
plied to  charges  of  crime  made  in 
pleas  of  justification,  has  found  its 
chief  expression  in  such  cases.  2 
Greenleaf  on  Evidence,  sec.  426. 
To  whatever  extent  it  goes,  it  may 
be  _  called  the  English  rule.  The 
weight  of  American  authority  out- 
side of  Illinois  is  to  the  contrary 
and  supports  the  doctrine  that  in 
civil  oases  the  commission  of  any 
crime  directly  in  issue  may  be  de- 
termined by  the  preponderance  of 
the  evidence.  Reynold's  Stephen's 
Digest  of  the  Daw  of  Evidence, 
Article  94;  2  Wharton  on  Evidence, 
sec.  1246,  and  cases  cited.  In  Illi- 
nois, however,  in  a  series  of  cases 
beginning  with  Crandall  v.  Daw- 
son, 1  Gilman,  556,  the  English 
rule   has   been   applied  .to   charges 


§  353/ 


preponderance:  of  evidence. 


287 


§  353.  Preponderance — Methods  of  Determining,  (a)  The  jury 
are  instructed  that  the  preponderance  of  evidence  in  a  case  is  not 
alone  determined  by  the  number  of  witnesses  testifying  to  a  particu- 
lar fact  or  state  of  facts.  In  determining  upon  which  side  the  pre- 
ponderance of  evidence  is,  the  jury  should  take  into  consideration 
the  opportunities  of  the  several  witnesses  for  seeing  or  knowing  the 
things  about  which  they  testify,  their  conduct  and  demeanor  while 
testifying,  their  interest  or  lack  of  interest,  if  any,  in  the  result  of 
the  suit ;  the  probability  or  improbability  of  the  truth  of  their  several 
statements,  in  view  of  all  the  other  evidence,  facts  and  circumstances 
proved  on  the  trial,  and  from  all  these  circumstances  determine  upon 
which  side  is  the  weight  or  preponderance  of  the  evidence.10 

(b)  In  determining  upon  which  side  the  preponderance  of  the  evi- 
dence is,  the  jury  should  take  into  consideration  the  opportunities  of 
the  several  witnesses  for  knowing  the  things  about  which  they  testify, 
their  conduct  and  demeanor  while  testifying,  their  interest,  or  lack  of 
interest,  if  any,  in  the  result  of  the  suit,  the  probability  or  improba- 
bility of  the  truth  of  their  several  statements  in  view  of  all  the  other 
evidence,  facts  and  circumstances  proved  on  the  trial,  and,  from  all 
these  circumstances  determine  upon  which  side  is  the  weight  or  pre- 
ponderance of  the  evidence.11 

(c)  The  court  instructs  you  that,  in  determining  where  the  weight 


of  infamous  crimes  made  in  pleas 
of  justification  in  slander  suits.  In 
Crandall  v.  Dawson  the  charge  in 
the  pleas  of  justification  was  per- 
jury. So,  too,  in  Darling  v.  Banks, 
14  111.  46.  In  Crotty  v.  Morrissey, 
40  111.  477,  it  was  grand  larceny. 
In  Harrison  v.  Shook,  41  111.  141, 
again  it  was  perjury.  These  it  will 
be  observed,  are  crimes  which  are 
both  felonious  and  infamous.  Starr 
&  Curtis  Statutes,  chapter  38,  sec. 
458.  Citing  also:  Sprague  v. 
Dodge,  4S  111.  142;  Germania  Ins. 
Co.  v.  Klewer,  129  111.  599;  Grimes 
v.  Hilliary,  150  111.  141,  36  N.  E. 
977;  First  National  Bank  v.  San- 
ford.  83  111.   App.   62." 

10— Pfaffenback  v.  L.  S.  &  M. 
S.  Ry.  Co.,  142  Ind.  246,  41  N.  E. 
Rep.  530  (530-531).  "As  we  under- 
stand the  instruction,  the  objec- 
tion made  is  not  tenable.  It  com- 
bines the  two  rules  that  the  bur- 
den rests  upon  the  plaintiff  to  es- 
tablish his  cause  of  action  by  a 
preponderance  of  the  evidence 
(not  of  the  circumstances),  and,  in 
ascertaining  where  the  preponder- 
ance of  the  evidence  (not  circum- 
stances) lies,  the  jury  should  pass 
upon  tbe  credibility  of  the  witness- 
es, considering  the  tests  given,  in 
view    of    all    the     other     evidence, 


facts  and  circumstances  proved  on 
the  trial,  and,  from  all  these  cir- 
cumstances, determine  upon 
which  side  is  the  weight  or  pre- 
ponderance of  the  evidence  (not 
circumstances).  There  is  no  af- 
firmative limitation  upon  the  duty 
of  the  jury  to  consider  the  evi- 
dence, in  considering  the  two  rules 
mentioned.  Nor  is  there  implied 
from  the  phrase  from  all  these  cir- 
cumstances that  the  evidence 
should  not  supply  a  proper  basis 
of   consideration." 

11— Chi.  U.  Tr.  Co.  v.  Yarus,  221 
111.  641,  77  N.  E.  1129;  "It  is  urged," 
said  the  court,  "that  the  effect  of 
the  word  'should'  in  said  instruc- 
tion was  to  peremptorily  instruct 
the  jury  that  it  should  consider 
only  the  elements  there  outlined  in 
determining  the  question  from  its 
consideration  the  element  of  the 
number  of  witnesses,  and  that  it 
should  have  been  stated  in  a  per- 
missive, rather  than  in  a  peremp- 
tory, manner.  In  the  case  of  Meyer 
v.  Mead,  83  111.  19,  the  word  'must' 
was  used  where  'should'  appears 
in  the  instruction  under  discus- 
sion, and  the  giving  of  said  in- 
struction was  approved  by  this 
court.  And  in  Illinois  Steel  Co.  v. 
Ryska,   102  111.   App.   347,   the  point 


288  FORMS  OF  INSTRUCTIONS.  [§  354. 

or  preponderance  of  the  evidence  lies  in  this  case,  you  have  a  right 
to  take  into  consideration  all  the  facts  and  circumstances  in  evidence, 
together  with  the  conduct  of  the  parties  to  this  suit  with  reference 
to  said  controversy,  so  far  as  the  same  has  been  shown  by  the  evi- 
dence.12 

§  354.  Preponderance — Number  of  Witnesses  Proper  Elements  to 
be  Considered,  (a)  The  jury  are  instructed  that  the  fact  that  the 
number  of  witnesses  testifying  on  one  side  is  larger  than  the  number 
testifying  on  the  other  side,  does  not  necessarily  alone  determine  that 
the  preponderance  of  evidence  is  on  the  side  for  which  the  larger 
number  testified.  In  order  to  determine  that  question,  the  jury  must 
be  moved  by  and  take  into  consideration  the  appearance  and  conduct 
of  the  witnesses  while  testifying;  their  apparent  intelligence  or  the 
lack  of  it,  their  opportunity^of  knowing  or  seeing  the  facts  or  sub- 
jects concerning  which  they  have  testified,  or  the  absence  of  such 
opportunity;  their  interest  or  the  absence  of  interest  in  the  result  of 
the  case,  and  from  all  these  facts  as  shown  by  the  evidence,  and  from 
all  the  other  facts  and  circumstances  so  shown,  the  jury  must  decide 
on  which  side  is  the  preponderance. 

After  fairly  and  impartially  considering  and  weighing  all  the  evi- 
dence in  this  case,  as  herein  suggested,  the  jury  are  at  liberty  to  de- 
cide that  the  preponderance  of  evidence  is  on  the  side  which  in  their 
better  judgment  is  sustained  by  the  more  intelligent,  the  better  in- 
formed, the  more  credible  and  the  more  disinterested  witnesses, 
whether  these  are  the  greater  or  the  smaller  number.  But  the  jury 
have  no  right  to  disregard  capriciously  the  testimony  of  the  larger 
number  of  witnesses  nor  to  refuse  to  give  whatever  consideration  in 
their  judgment  should  attach  naturally  to  the  fact  that  the  larger 
number  testified  one  way.  The  element  of  numbers  should  be  consid- 
ered with  all  the  other  elements  already  herein  suggested  for  what- 
ever in  the  judgment  of  the  jury  that  element  is  worth,  and  the  evi- 
dence of  the  smaller  number  cannot  be  taken  by  the  jury  in  preference 
to  that  of  the  larger  number  unless  the  jury  can  say,  on  their  oaths, 
that  it  is  more  reasonable,  more  truthful,  more  disinterested  and  more 
creditable.13 

(b)  The  jury  are  further  instructed  that,  while  the  preponderance 
of  evidence  does  not  consist  wholly  in  the  greater  number  of  witnesses 
testifying  the  one  way  or  the  other,  yet  the  number  of  credible  and 
disinterested  witnesses  testifying  on  the  one  side  or  the  other  of  a 
disputed  point  is  a  proper  element  for  the  jury  to  consider  in  de- 
termining where  lies  the  preponderance  of  the  evidence.14 

here  presented  was  made  on  an  in-  12 — Ingram    v.     Reiman,     81    111. 

struction    identical    with    the    one  App.    123. 

here   under   consideration,   and   the  13— Gage    v.    Eddy,     179     111.     492 

court    held    the    objection   was    not  (503),    53    N.    E.    1008. 

well  taken,  and  this  court  affirmed  14 — W.    C.    R.    R.    Co.    v.    I>ieser- 

such    judgment.     111.    Pteel     Co.    v.  owitz,  197  111.  607  (612),   affg.  93  111. 

i,   200  111.   280,   65  N.   E.   734.   It  App.    591,    64    N.    E.    718. 
was  not  error  to  give  said  instruc- 
tion." 


§355. 


PREPONDERANCE  OF  EVIDENCE. 


289 


§  355.  Preponderance— Does  Not  Necessarily  Depend  on  Num- 
ber of  Witnesses,  (a)  You  are  not  to  be  governed  by  the  number 
of  witnesses,  but  by  the  weight  and  jDreponderance  of  the  evidence.15 

(b)  The  plaintiff  must  prove  his  cause  by  the  preponderance  of 
the  testimony,  by  the  greater  weight  of  the  evidence.  That  does  not 
necessarily  mean  a  greater  number  of  witnesses  who  testify  on  any 
side  of  the  issue  or  issues  involved  in  any  ease,  but  according  to  the 
weight  you  give  to  the  testimony  of  each  witness.10 

(c)  The  preponderance  of  evidence  does  not  depend  upon  the 
number  of  witnesses,  and  does  not  mean  the  greater  number  of  wit- 
nesses. It  does  depend  upon  the  weight  of  evidence,  and  means  the 
greater  weight  of  the  evidence.17 

(d)  The  preponderance  of  the  evidence  does  not  mean  that  he 
must  produce  before  you  the  greater  number  of  witnesses,  but  that 
the  testimony  of  the  witnesses  he  does  produce  must  carry  greater 
weight  with  you — have  more  convincing  force — than  the  other.  In 
other  words,  if  the  testimony  is,  in  your  judgment,  evenly  balanced, 
your  verdict  must  be  for  the  defendant,  because  the  plaintiff  must 
establish  his  case  by  a  preponderance  of  the  evidence.18 


15 — Birmingham  Ry.  &  E.   Co.  v. 
Ellard,  135  Ala.  433,  33  So.  276  (281). 

16 — Bedenbaugh   v.    Southern  Ry. 
Co.,  69  S.  C.  1,  48  S.  E.  53  (55). 

17 — Indianapolis  St.  Ry.  Co.  v. 
Johnson,  72  N.  E.  573,  574.  Comment 
of  the  court:  "The  appellant  criti- 
cises this  for  the  reason  asserted 
that  it  does  not  state  the  law  cor- 
rectly, and  was  an  invasion  of  the 
province  of  the  jury.  They  assert 
that,  when  the  witnesses  are 
equally  credible  in  respect  to  their 
character,  the  preponderance  of 
the  evidence  does  depend  upon  the 
number  of  witnesses,  and  that  the 
preponderance  thereof  is  necessa- 
rily determined  by  the  greater 
number  of  witnesses.  As  a  gen- 
eral rule,  the  preponderance  of  the 
evidence  in  a  case  does  not  depend 
upon  or  mean  the  greater  number 
of  witnesses  testifying  upon  the 
matter  or  matters  in  issue.  Coun- 
sel mistake  the  law  in  their  con- 
tention, that,  where  the  witnesses 
in  the  case  are  equally  credible  in 
respect  to  their  character,  then  in 
such  a  case  the  preponderance  of 
the  evidence  depends  upon  the 
number  of  witnesses  testifying. 
This  certainly  is  not  the  true  test 
in  any  case.  Any  number  of  wit- 
nesses may  be  of  equal  credibility, 
and  possess  equal  information,  and 
still  differ  greatly  in  the  amount 
or  weisrht  of  their  evidence.  The 
authorities  generally  affirm  that 
19 


•the  number  of  witnesses  are  not 
to  be  counted  by  the  jury  or  court 
trying  the  case  in  order  to  de- 
termine upon  which  side  is  the 
preponderance,  but  the  evidence 
given  by  them  is  to  be  weighed, 
and  the  preponderance  thereof  does 
not  depend  on  the  greater  number 
of  witnesses  in  the  particular  case, 
citing  Wray,  Adm'r  v.  Tindall,  45 
Ind.  517;  Howlett  v.  Dilts,  4  Ind. 
App.  23,  30  N.  E.  313;  Bierbach  v. 
Goodyear,  etc.,  Co.,  54  Wis.  20S,  11 
N.  W.  514,  41  Am.  Rep.  19;  Ennis 
v.  Dudley  (City  Ct.  N.  Y.)  48  N. 
Y.  Sup.  622;  3  Jones  on  Evidence, 
902;  Savanah,  etc.,  R.  Co.  v.  Wide- 
man,  99  Ga.  245,  25  S.  E.  400;  Vil- 
lage of  N.  Alton  v.  Dorsett,  59  111. 
App.  612;  Bishop  v.  Busse,  69  111. 
403.  In  Bouvier's  Law  Diet.  vol.  2, 
p.  730,  preponderance  of  evidence 
is  defined  to  be  the  greater  weight 
of  evidence  or  evidence  which  is 
more  credible  and  convincing  to 
the  mind.  Citing  Button  v.  Met- 
calf,  80  Wis.  193,  49  N.  W.  809.  The 
instruction  in  question  is  not  open 
to  the  objections  urged  by  counsel 
for  appellant.  If  not  as  full  and 
explicit  under  the  circumstances 
as  desired,  they  should  have  ten- 
dered and  requested  an  instruction 
expressing  their  views  of  the  law 
on   the   question   involved." 

18— Hale  v.  Knapp,  134  Mich.  622, 
96    N.    W.    1060    (1061). 


290 


FORMS  OF  INSTRUCTIONS. 


[§  355. 


(e)  The  jury  are  instructed,  that  the  preponderance  of  evidence  in 
a  case  is  not  alone  determined  by  the  number  of  witnesses  testifying  to 
a  particular  fact,  or  state  of  facts.  In  determining  upon  which  side 
the  preponderance  of  the  evidence  is,  the  jury  should  take  into  consid- 
eration the  opportunities  of  the  several  witnesses  for  seeing  or  know- 
ing the  things  about  which  they  testify,  their  conduct  and  demeanor 
while  testifying,  their  interest  or  lack  of  interest,  if  any,  in  the  result 
of  the  suit,  the  probability  or  improbability  of  the  truth  of  their 
several  statements,  in  view  of  all  the  other  evidence,  facts  and  circum- 
stances proved  on  the  trial ;  and  from  all  these  circumstances  deter- 
mine upon  which  side  is  the  weight  or  preponderance  of  the  evidence.19 

(f )  By  a  preponderance  of  proof,  the  court  does  not  mean  a  larger 
number  of  witnesses  on  a  given  point.  Four  or  five  witnesses  may 
testify  to  a  fact  and  a  single  witness  testify  to  the  contrary,  but, 
under  such  circumstances  and  in  such  manner  and  with  such  an  air 
and  appearance  of  truth  and  candor  as  to  make  it  more  satisfactory 
or  convincing  to  you  that  the  one  witness,  with  the  opportunity 
knowing  the  facts  testified  to,  has  told  the  truth  of  the  matter. 
When  you  are  thus  satisfied  that  the  truth  lies  with  a  single  witness 
or  any  other  number,  you  are  justified  in  returning  a  verdict  in  ac- 
cordance therewith.     This  is  what  is  meant  by  a  preponderance  of 


19— Mayor  v.  Mead,  83  111.  19; 
Whittaker  v.  Parker,  42  la.  585; 
McRae  v.  Laurence,  75  N.  C.  289; 
Riley  v.  Butler,  36  Ind.  51.  The 
correctness  of  the  instruction  is 
sustained  by  this  court  in  the  fol- 
lowing cases: 

"We  do  not  regard  this  instruc- 
tion as  being-  open  to  the  criticism 
that  it  tells  the  jury  to  disregard 
the  number  of  witnesses  in  deter- 
mining the  point  as  to  the  pre- 
ponderance of  evidence.  It  does 
not  exclude  from  the  consideration 
of  the  jury  that  element,  but  im- 
pliedly concedes  that  it  is  a  proper 
matter  for  their  consideration. 
Similar  instructions  have  been 
held  not  to  be  erroneous.  C.  &  A. 
R.  R.  Co.  v.  Fisher,  141  111.  614-26, 
31  N.  E.  406." 

"It  is  argued  that  the  instruc- 
tion contains  a  direct  command 
made  upon  the  jury  to  determine 
on  which  side  is  the  preponderance 
of  the  evidence  by  taking  into  con- 
sideration certain  specific  things, 
viz.  first,  the  opportunity  of  the 
several  witnesses  for  seeing  and 
knowing,  etc.;  second,  the  conduct 
and  demeanor  of  the  several  wit- 
nesses while  testifying;  third, 
their  interest,  or  lack  of  interest, 
in  the  result  of  the  suit;  fourth, 
the  probability  or  improbability  of 
their   truth,    in   view   of   the   other 


evidence,  etc.  We  do  not  think 
that  the  instruction  is  fairly  sub- 
ject to  the  criticism  urged  against 
it."  Meyer  v.  Mead,  83  id.  19; 
Mitchell  v.  Hindman,  150  111.  538,  37 
N.  E.  916.  "In  C.  &  A.  R.  R.  Co. 
v.  Fisher,  supra,  the  instruction 
was  as  follows:  'That  the  prepon- 
derance of  evidence  may  not  de- 
pend entirely  upon  the  number  of 
witnesses  testifying  on  either  side 
of  the  case,'  and  it  was  there 
said  (p.  626):  'It  is  urged  that  this 
is  practically  telling  the  jury  that 
the  greater  number  of  witnesses  is 
no  better  than  the  less  number.' 
We  do  not  so  understand  it.  It 
impliedly  concedes  that,  where  all 
other  things  are  equal,  the  greater 
number  must  control.  The  words 
'may'  and  'entirely'  are  both  qual- 
ifying words."  N.  C.  St.  R.  R.  Co. 
v.  Anderson,  176  111.  635,  52  N.  E. 
21;  C.  &  A.  Ry.  Co.  v.  Winters,  65 
111.  App.  435;  Eastman  v.  W.  C.  St. 
Ry.  Co.,  79  111.  App.  585;  W.  C. 
St.  R.  R.  Co.  v.  Lieserowitz,  99  111. 
App.  591  (593),  affd.  197  111.  607,  64  N. 
E.  71S;  I.  S.  Co.  v.  Ryska,  102  111. 
App.  347,  affd.  200  111.  280,  65  N.  E. 
734;  Miller  v.  John,  208  111.  174  (ISO); 
I.  S.  Co.  v.  Wierzbickv,  107  111.  App. 
69  (78);  C.  C.  Rv.  Co.  v.  Bundv, 
109  111.  App.  637  (643),  aff'd  210  111. 
36   (47),   71  N.   E.   28. 


§  356.]  PREPONDERANCE  OF  EVIDENCE.  291 

proof.  It  is  that  character  or  measure  of  evidence  which  carries  con- 
viction to  your  minds.20 

(g)  You  are  instructed  that  the  weight  of  the  testimony  does  not 
necessarily  depend  on  the  greater  number  of  witnesses  sworn  on 
either  side  of  a  question  in  dispute,  but  you  are  at  liberty,  as  jurors, 
to  consider  all  the  facts  and  circumstances  appearing  from  the  evi- 
dence in  the  case,  and  determine  from  that,  which  of  the  witnesses 
are  worthy  of  the  greater  credit;  and  if  you  believe,  from  the  evi- 
dence, that  the  evidence  of  a  small  number  of  witnesses  on  one  side 
is  more  credible  and  trustworthy  than  the  evidence  of  the  greater 
number  on  the  other  side,  then  the  evidence  preponderates  on  the 
side  of  the  smaller  number  of  witnesses.21 

§  356.  When  the  Evidence  is  Equally  Balanced,  (a)  If,  after 
considering  all  of  the  evidence  in  the  case,  you  shall  find  that  the 
evidence  upon  any  question  is  equally  balanced,  you  should  answer 
such  question  against  the  party  who  has  the  burden  of  such  issues, 
for  in  such  case  there  would  be  no  preponderance  in  favor  of  such 
proposition.22 

(b)  If,  upon  the  whole  case,  the  jury  are  in  doubt  from  the  evi- 
dence as  to  whether  the  defendants  are  indebted  to  the  plaintiffs,  or 
if  the  evidence  leaves  the  question  evenly  balanced  as  to  whether 
the  defendants  are  indebted  to  the  plaintiffs,  then  their  verdict  should 
be  for  the  defendants.23 

(c)  If  the  evidence  in  the  case  is  evenly  balanced  as  between  the 
contention  of  the  plaintiff  and  that  of  the  defendant,  on  the  material 
issues,  the  jury  should  find  the  defendant  not  guilty.24 

(d)  The  court  instructs  the  jury,  as  a  matter  of  law,  that  the  bur- 
den of  proof  is  upon  the  plaintiff,  and  it  is  for  him  to  prove  his  case 
by  a  preponderance  of  the  evidence.     If  you  find  that  the  evidence 

20— TV.  C.  St.  R.  R.  Co.  v.  Loftus,  22— Renard  v.  Grande,  29  Ind. 
83  111.  App.  192  (195).  "This  instruc-  App.  579,  64  N.  E.  644.  "The  rule 
tion  was  criticised  because  it  is  prevails  that  a  plaintiff  must 
claimed  it  singles  out  the  plaintiff,  prove  the  material  averments  of 
and  tells  the  jury  in  substance  his  complaint  by  a  fair  preponder- 
they  may  find  their  verdict  on  his  ance  of  the  evidence,  and  the 
unsupported  testimony.  We  can-  same  rule  applies  to  the  defend- 
not  assent  to  this  contention.  The  ant  as  to  all  matters  of  afflrma- 
instruction  may  as  well  apply  to  tive  defense.  It  must  logically  fol- 
either  of  appellant's  conductors  as  low  that  if  upon  any  material 
to  plaintiff.  In  N.  C.  C.  Ry.  Co.  v.  question  pleaded,  the  jury  or  court 
Gastka,  27  111.  App.  518-23,  this  in-  should  arrive  at  the  conclusion 
struction  was  held  not  to  be  er-  that  the  evidence  is  evenly  bal- 
roneous,  and  this  decision  was  af-  anced,  then  the  party  having  the 
firmed  by  the  Supreme  Court,  12S  burden  of  such  question  must  fail, 
111.  613,  the  court  saying:  'The  for  he  had  not  established  it  by  a 
instructions  may  contain  technical  preponderance  of  the  evidence  * 
inaccuracies,  but  in  the  main  we  *  *  It  was  not  error  to  so  in- 
regard  them  as  correct.  They  con-  struct  the  jury." 
tain  nothing  calculated  to  mislead  23 — Allen-West  Com.  Co.  v. 
the  jury.'  "  Hudgins  &  Bro.,  74  Ark.  468,  86  S. 

21— St.    L.    &    O.    F.    Ry.    Co.    v.  W.    289,    291. 

Union    Bank,    209    111.    457    (460),    70  24— Alton    L.    &    T.    Co.    v.    Oiler, 

N.   E.   651.  119  111.  App.  181  (189,  190). 


292 


FORMS  OF  INSTRUCTIONS. 


[§357. 


bearing  upon  the  plaintiff's  case  is  evenly  balanced,  or  that  it  pre- 
ponderates in  favor  of  the  defendant,  then  the  plaintiff  cannot  re- 
cover, and  you  should  find  for  the  defendant.25 

(e)  If  on  any  material  fact  the  evidence  is  equal,  so  that  there  is 
no  preponderance,  you  are  not  at  liberty  to  find  and  state  that  fact  in 
your  special  verdict.26 

§  357.  Fair  Preponderance  of  Evidence,  (a)  The  court  instructs 
the  jury  that  if  you  should  find  from  a  fair  preponderance  of  evi- 
dence that  the  facts  are  as  stated  in  the  claim  of  plaintiff  just  read 
to  you,  then  she  is  entitled  to  recover  in  this  action.27 

(b)  The  court  instructs  the  jury  that  the  burden  of  proof  is  upon 
the  plaintiff  to  maintain  the  issue  in  this  case  on  his  part,  by  a  fair 
preponderance  of  evidence  as  to  whether  or  not  the  plaintiff  was  em- 
ployed by  the  defendant  to  perform  the  services  sued  for  and  testi- 
fied to  by  the  plaintiff;  and,  unless  the  jury  believe  from  the  evidence 
that  the  plaintiff  has  so  maintained  the  said  issue,  they  will  find  a 
verdict  for  the  defendant.28 

(c)  The  court  instructs  the  jury  that  many  of  the  claims  of  the 
plaintiff  as  to  just  what  occurred  have  been  denied  by  the  defend- 
ant's  witnesses,  and  you  will  be  called  upon  to  find  the  facts  you  be- 
lieve to  be  established  by  the  fair  weight  of  all  the  evidence  as 
embodied  in  the  special  verdict  submitted  to  you.29 


25— Wrigley  v.  Cornelius,  162  111. 
92  (95),  affg.  61  111.  App.  279,  44  N. 
E.  406;  Nash  v.  Cooney,  108  111. 
App.  211  (212);  C.  C.  Ry.  Co.  v. 
Osborne,  105  111.  App.  462   (468). 

26— P.  C.  C.  &  St.  L.  Ry.  Co.  v. 
Burton,  139  Ind.  357,  37  N.  E.  150 
(152).  In  comment  the  court  said: 
"Appellant  insists  that  this  was 
an  error,  and  that,  where  the  evi- 
dence fails  to  preponderate  in  fa- 
vor of  an  essential  fact,  the  ver- 
dict should  find  expressly  the  non- 
existence of  that  fact.  To  this  in- 
sistence is  cited  Gulick  v.  Connely, 
42    Ind.    134. 

"We  do  not  understand  the  rule 
to  be  as  counsel  state  it,  nor  do 
we  understand  the  case  cited  to 
have  so  held.  The  duty  of  the 
court  or  jury  stating-  the  facts 
specially  is  not  to  state  the  fail- 
ure of  one  who  assumes  the  bur- 
den of  an  issue,  but  the  failure  to 
state  the  existence  of  the  fact  is 
equivalent  to  finding  the  non-ex- 
istence of  the  fact.  A  fact  not 
found  is  a  finding  that  the  fact 
is  not  proven  by  a  preponderance 
of  the  evidence.  Coal  Co.  v.  Hood- 
let,  129  Ind.  327,  27  N.  E.  741,  and 
cases   there  cited." 

27— Sherwood    v.    Chicago    &    W. 


M.  Ry.  Co.,  88  Mich.  108,  50  N.  W. 
101    (102). 

28— Kirchner  v.  Collins,  152  Mo. 
394,  53  S.  W.  1081  (1082). 

"In  this  case,  most  learned  coun- 
sel have  favored  us  with  different 
constructions  to  be  placed  on  the 
word  'fair.'  While  it  is  to  be 
avoided,  we  are  not  disposed  to 
view  it,  under  the  circumstances 
of  this  case,  as  reversible  error, 
and  we  can  find  no  case  where  it 
has  been  regarded  of  such  weight. 
On  the  contrary,  it  has  been  ex- 
pressly ruled  insufficient  to  work 
a  reversal  in  our  sister  state  of 
Texas."  McBride  v.  Banguss,  65 
Tex.  177;  Adams  v.  Eddv,  —  Tex. 
Civ.  App.  — ,  29  S.  W.  ISO;  Cabell 
v.  Menczer,  —  Tex.  Civ.  App.  — ,  35 
S.   W.  206. 

29 — "The  criticism  is  upon  the 
use  of  the  word  'fair,'  but  the  facts 
were  'to  be  established  by  the  fair 
weight  of  all  the  evidence.'  The 
word  'establish'  ordinarily  means 
'to  settle  firmly;  to  fix  unalter- 
ably.' And  hen^e  the  facts  could 
not  be  so  'established'  except  by 
the  greater  weight  or  preponder- 
ance of  the  evidence.  Manifestly 
it  was  not  misleading."  Thomas 
v.  Paul,  87  Wis.  607,  58  N.  W.  1031; 


5  358.  j        PREPONDERANCE  OF  EVIDENCE.  293 

§  358.  Slight  Preponderance  of  Evidence  Sufficient,  (a)  By  pre- 
ponderance of  the  evidence  plaintiff  must  have  in  this  case,  I  mean 
that  the  testimony  when  put  in  as  to  the  claims  of  the  respective 
parties,  the  evidence  produced  by  the  plaintiff  must  weigh  a  little 
more  than  that  of  defendant.  It  must  be  enough  to  push  down  his 
side  of  the  scale  in  order  to  be  a  preponderance  of  the  evidence 
winch  the  law  requires  he  should  bring  here  before  you  in  order  to  be 
entitled  to  recover  in  this  case.  Now  the  verdict  is  to  be  found  in  the 
manner  in  which  I  have  indicated,  from  a  preponderance  of  the 
evidence.30 

(b)  The  court  instructs  the  jury  that,  while  as  a  matter  of  law 
the  burden  of  proof  is  upon  the  plaintiff,  and  it  is  for  him  to  prove 
his  case  by  a  preponderance  of  the  evidence,  still,  if  the  jury  find 
that  the  evidence  bearing  upon  the  plaintiff's  case  preponderates  in 
his  favor  although  but  slightly,  it  would  be  sufficient  for  the  jury  to 
find  the  issues  in  his  favor,  and  to  find  a  verdict  against  the  de- 
fendant.31 

(c)  The  jury  are  instructed  that  if  the  evidence  more  than  satis- 
fies you  that  the  claim  of  the  claimant  is  valid,  than  there  is  on  the 
other  side,  taking  everything  into  consideration,  you  will  find  for 
the  claimant;  if  there  is  not,  you  will  find  for  the  estate.32 

§359.  "Burden  of  Proof"  and  "Preponderance  of  Evidence" 
Explained,  (a)  The  court  instructs  the  jury  that  the  burden  of 
proof  is  on  the  plaintiff,  and  before  they  can  find  a  verdict  for  the 
plaintiff  the  jury  must  be  satisfied  by  a  preponderance  of  the  evi- 
dence that  the  plaintiff  did  loan  the  defendant  the  amount  of  money 
claimed  by  plaintiff,  or  some  other  amount,  at  the  time  mentioned  in 
the  account  filed  herein,  or  some  other  time;  and,  unless  the  jury 
so  find,  their  verdict  must  be  for  the  defendant.  By  mentioning  the 
burden  of  proof  and  the  preponderance  of  evidence  the  court  means 

McKeon   v.    Chicago   M.    &    St.    P.  Armour,     111    111.    App.      516    (523) 

Ry.   Co.,  94  Wis.  477,  69  N.  W.  175  where  an  instruction   substantially 

(178),  35  L.  R.  A.  252.  as    above    was    declared    erroneous 

30 — Padgett   v.    Jacobs,   128   Mich,  because   of   the   use    of   the  words 

632,   87   N.    W.   898.  "although  but  slightly." 

31— Hanchett     v.    JHaas,     219     111.  32— Taylor     v.     Taylor's     Estate, 

(546,    548),   76   N.   E.   845.     "This   in-  138   Mich.   65S,   101   N.   W.   832   (834). 

struction,    in    effect,    has   been    ap-  "Construing  it   in  connection   with 

proA-ed  by  this   court  in  Taylor  v.  the  remainder  of  the  charge,  as  it 

Felsing,   164   111.    331,   45   N.   E.   161,  certainly  should  be,  the  jury  were 

and    Chicago   City   Railway   Co.   v.  told  that,  after  rejecting  the  testi- 

Bundy,  210  id.  39,  71  N.  E.  35."     See  mony    of   witnesses    discredited    by 

Mitchell    v.    Hindman,    150    111.    538,  them,    their  verdict    should    be   for 

37  N.  E.  916,  where  the  court  says:  claimant,  if  there  was  'more'  testi- 

"The  law  only  requires  that  a  pre-  mony,   that  is,  a   preponderance  of 

ponderance  of  the  evidence  should  testimony — tending  to  establish   the 

be  in  favor  of  the  plaintiff."  validity  of  her  claim;   if  there  wis 

See,    also,    Donley   v.    Dougherty,  not,  their  verdict  should  be  for  the 

75  111.  App.   379   (380);   R.  R.  Co.  v.  estate.      As    thus     construed      the 

Karzalkierwiecz,    75    111.    App.    240;  .charge    was     correct,     and     is     not 

R.    R.   Co.   v.    Loftus,    83   111.    App.  open    to    the    objection    urged    by 

194:    Tavlor    v.    Felsing,    164,    332-5,  appellant." 
45  N.  E.   161.     But  see  O'Donnell  v. 


294  FORMS  OF  INSTRUCTIONS.  [§  360. 

merely  to  briefly  express  the  rule  of  law,  which  is  that,  unless  the 
evidence  before  you,  in  regard  to  the  facts  necessary  (under  these 
instructions)  to  a  verdict  in  favor  of  plaintiff,  appear,  in  your  judg- 
ment, more  credible  than  the  contrary  evidence  regarding  said  facts, 
or  than  the  evidence  of  the  facts  mentioned  in  these  instructions  as 
constituting  a  defense  to  plaintiff's  said  claim,  then  your  verdict 
should  be  for  the  defendant.33 

§  360.  Burden  of  Proof  on  Plaintiff,  (a)  Gentlemen  of  the  jury, 
the  burden  of  proof  is  upon  the  plaintiff  to  make  out  his  case  by  a 
preponderance  of  the  testimony.34 

(b)  If  the  jury  find  from  the  evidence  that  the  plaintiff  has 
made  out  his  case  by  a  preponderance  of  the  evidence  as  alleged  in 
the  declaration,  then  the  jury  should  find  the  defendant  guilty,  etc.35 

(e)  When  the  plaintiff  brings  a  suit  into  court,  the  burden  of  proof 
is  on  him  to  make  out  his  case  to  the  jury  to  the  satisfaction  of  the 
jury  in  every  essential  element.36 

(d)  All  the  facts  necessary  to  entitle  the  plaintiff  to  recover  in 
this  case  must  have  been  established  by  a  preponderance  of  all  the 
testimony,  for  you  are  instructed  that  the  burden  of  proof  is  upon 
him  throughout  the  case.  If  such  facts  have  not  been  so  established, 
the  defendant  is  entitled  to  your  verdict.37 

(e)  The  burden  of  proof  is  upon  the  plaintiff  to  establish  by  a 
preponderance  of  the  evidence  the  facts  necessary  to  his  recovery. 
By  a  "preponderance  of  the  evidence"  is  meant  that  which,  in  your 
opinion,  has  the  greater  weight.38 

(f)  The  court  further  instructs  the  jury  that  the  burden  rests 
on  the  plaintiff  to  prove  his  case  by  a  preponderance  of  the  evidence 
in  this  case,  and  unless  the  plaintiff  has  so  proved  his  case  by  a  pre- 
ponderance of  all  the  evidence  in  this  case,  you  should  find  the  issues 
for  the  defendant.39 

33— Stephan    v.    Metzger,    95    Mo.  E.  77;   Mt.  Olive  Coal  Co.  v.  Rade- 

609,   69   S.   W.   625   (627).  macher,    190    111.    538,    60   N.   E.    888; 

34— Bering-   Mfg.    Co.    v.    Femelat,  W.   C.    St.    R.    R   Co   v  Polkey,    203 

35  Tex.  Civ.   App.  36,   79   S.  W.  869  111.   225,   67  N.  E.   793,  W.   C.   St.   R. 

(871).  R.    Co.    v.    Lieserowitz,   197   111.    607, 

35— In  I.   C.   R.   R.   Co.  v.  Harris,  64  N.  E.  718;  Laflin  &  Rand  P.  Co. 
162   111.   200    (201),  44  N.   E.   498,   the  v.   Tearney,    131    111.    322,    23    N.    E. 
court  held,  "The  objection  made  to  38;    Ohio   &   Miss.   Ry.  Co.   v.   For- 
tius instruction  is  that  it  uses  the  ter,  92  111.  437,  19  Am.   St.  Rep.   34, 
words    'as   alleged   in   the   declara-  7  L.   R.   A.  262;   U.   S.  Brewing  Co. 
tion.'       This     form     of     instruction  v.    Stollenberg,    211    111.    531    (533-4), 
has    been    approved    by   this    court  71  N.   E.  108.     Also  see  C.   R.   I.   & 
in  a  number  of  cases,  and  it  is  un-  P.    Ry.    Co.    v.    Cleveland,    90    111. 
necessary    to    repeat   what   is   said  App.  308;  also,  Chgo.  C.  Ry.  Co.  v. 
in  those  cases.  Penna.  Co.  v.  Mar-  Manger,  105  111.  App.  579. 
shall,  119  111.  399,  10  N.  E.  220;  Chi.  36— Powell    v.    Ga.    F.    &    A.    Ry. 
Ry.    Co.    v.    Bannister,    195    111.    48,  Co.,  121  Ga.  803,  49  S.  E.  759  (761). 
62  N.  E.  864;  W.  C.  St.  R.  R.  Co.  v.  37— S.    K.    Ry.    Co.    v.    Sage,    98 
Scanlan,   168    111.    34,   48   N.    E.    149;  Tex.   438,    84    S.    W.   814. 
Chgo.    C.    Ry.    Co.    v.    Carroll,    206  38— Wells    v.     Houston,     23    Tex. 
111.   318,   68   N.   E.   1087;    City  of  La  Civ.   App.   629,  57  S.   W.   584   (589). 
Salle  v.   Kostka,   190  111.    130,   60   N.  39—1.    C.    R.    R.    Co.    v.    Prickett, 


§  361.]  PREPONDERANCE  OF  EVIDENCE.  295 

(g)  The  burden  of  proof  is  upon  the  plaintiff  in  this  case,  and  it 
is  necessary,  before  he  is  entitled  to  a  verdict  at  your  hands,  that 
he  should  establish  by  a  preponderance  of  the  evidence  the  allegations 
of  his  complaint.40 

(h)  The  burden  of  proof  is  not  upon  the  defendant  to  show  how 
the  plaintiff  came  to  fall.  If  the  preponderance  of  the  evidence  does 
not  show  that  she  fell  by  reason  of  the  car  being  negligently  and 
suddenly  started  and  moved  in  manner  and  form  as  charged  in  the 
declaration,  or  some  count,  thereof,  then  the  plaintiff  has  failed  to 
make  out  her  case  under  the  declaration  in  this  case.41 

(i)  It  devolves  on  the  plaintiff  to  prove  all  the  material  facts  in 
the  complaint  by  a  preponderance  of  the  evidence,  and  if  she  fails 
to  do  so,  you  should  find  for  the  defendant.42 

§  361.  Burden  of  Proof  on  Plaintiff — When  the  Evidence  is  Evenly 
Balanced,  (a)  The  court  instructs  you  that  the  second  principal 
issue  in  this  case  is  whether  the  defendant  was  or  was  not  indebted 
to  the  plaintiff  as  claimed  by  the  plaintiff  at  the  time  this  suit  was 
begun,  and  the  burden  of  proving  by  the  preponderance  of  all  the 
evidence  in  the  case  that  the  defendant  was  indebted  to  the  plaintiff 
as  claimed  by  him  at  the  time  this  suit  was  begun  is  upon  the  plain- 
tiff; so,  if  the  plaintiff  has  failed  so  to  prove  by  the  preponderance 
of  all  the  evidence,  then  your  verdict  upon  that  issue  should  be 
for  the  defendant;  so,  if  the  evidence  upon  that  issue  is  equally  bal- 
anced, your  verdict  should  be  for  the  defendant;  so  also  if  the  evi- 

210  111.  140  (148),  71  N.  E.  435.    "The  in  effect,  that  they  must  find  for 

court  instructs  the  jury  as  a  mat-  the   defendant   if   the   plaintiff   had 

ter  of  law  that  the  burden  of  proof  failed  to  establish  all  the  facts  al- 

is    upon    the   plaintiff   to    establish  leged  in   the  complaint.     That  is  a 

every   element   of  her  case,  and   it  very  different  thing  from  requiring 

is    for    her   to    do    this    by   a   pre-  the  plaintiff  to  prove  all   the  ma- 

ponderance    of    the    evidence;    and  terial    facts    alleged    in    the    com- 

if  the  jury  find  that  the  evidence  plaint.     In  Lime  Co.  v.  Griffin,  139 

bearing    upon    the    plaintiff's    case  Ind.   147,  38  N.  E.  411,  speaking  of 

is  evenly  balanced   or  that  it  pre-  a   similar  objection   to  an   instruc- 

ponderates    in     favor   of     the     de-  tion,      this      court      said:       'Other 

fendant,   then   the   plaintiff  cannot  charges,   stating  the  theory  of  the 

recover,  and  the  jury  will  find  for  action,    the    burden    of   proof,    and 

the  defendant."  the  requirement  that  less  than  all 

Also,    S.   R.   R.   Co.   v.   Boyd,   156  the   facts   pleaded    by   the  plaintiff 

111.  416,  affg.  57  111.  App.  535,  40  N.  would  not  support  a  recovery  were 

E.   955.  given,   when  considered  in  connec- 

40— John    Ainsfield    Co.    v.    Ras-  tion  with   that  to   which  exception 

mussen,  30  Utah  453,  85  Pac.  1002.  is    taken,    presented     the     question 

41— C.   Union  T.   Co.  v.   Olsen,  211  fairly  that  upon  the  whole  case  a 

111.  255  (257),  71  N.  E.  985.  preponderance      of     the      evidence 

42 — De  Hart  v.  Board  of  Comrs.,  must  be  found  in  favor  of  the  ma- 

143  Ind.  363,  41  N.  E.  Rep.  825  (826,  terial    facts    of    the    complaint    be- 

827).  fore    a     verdict    for    the    plaintiff 

"In    support   of  the   objection   to  could     stand.'       That     decision  <  is 

this  instruction  we  are  cited  Long  exactly  applicable   to  and  decisive 

v.  Doxey,  50  Ind.  385.  The  instruc-  of  the  objection  to  the  instruction 

tion  there  condemned  told  the  jury,  now  before  us." 


296  FORMS  OF  INSTRUCTIONS.  [§  361. 

denee  upon  that  issue  fails  to  preponderate  in  favor  of  the  plaintiff, 
your  verdict  should  be  for  the  defendant.43 

(b)  The  court  instructs  the  jury  that  the  burden  of  proving  that 
the  defendant  owed  the  plaintiff  anything  on  any  account  when  this 
suit  was  begun  is  upon  the  plaintiff,  and  unless  he  has  proved,  by 
the  preponderance  of  all  the  evidence  in  the  case,  that  defendant  was 
indebted  to  him  at  the  time  of  the  beginning  of  this  suit,  then  the 
plaintiff  cannot  recover,  and  your  verdict  should  be  in  favor  of  the 
defendant.44 

(c)  The  court  instructs  you,  as  a  matter  of  law,  that  the  burden 
of  proof  is  upon  the  plaintiff,  and  it  is  for  him  to  prove  his  case  by 
a  preponderance  of  the  evidence.  If  you  find  that  the  evidence  bear- 
ing upon  plaintiff's  case  is  evenly  balanced,  or  that  it  preponder- 
ates in  favor  of  the  defendant,  then  the  plaintiff  cannot  recover,  and 
you  should  find  for  the  defendant.45 

(d)  The  jurors  are  instructed  that  with  respect  to  the  ailments 
and  disabilities  claimed  for  the  plaintiff  in  this  case,  the  burden  of 
proof  is  upon  the  plaintiff  in  that  respect,  as  it  is  with  respect  to 
the  question  of  liability,  to  show,  by  a  preponderance  of  the  evi- 
dence, not  only  that  such  ailments  really  exist  or  have  existed,  but 
also  that  such  ailments  and  disabilities  are  the  result  of  the  accident 
in  question.  The  jury  are  further  instructed  that  they  have  no  right 
to  guess  or  conjecture  that  any  ailment  complained  of  by  the  plain- 
tiff is  the  result  of  this  accident.46 

43 — Barron  v.  Burke,   82  111.  App.  instruction  erroneous  for  the  reas- 

116.  ons  urged." 

44— Id.  46— C.   U.   T.  Co.   v.   May,   221  111. 

45— Hayward  V.  Scott,  114  111.  530  (536),  77  N.  E.  933.  The  court 
App.  531.  "This  instruction  is  said:  "Under  this  instruction,  un- 
criticised  because  of  its  use  of  the  less  the  jury  found  that  the  con- 
expression  'find  that  the  evidence  ditions  disclosed  in  the  appellee's 
bearing-  upon  the  plaintiff's  case.'  genital  organs  at  the  time  of  said 
It  is  insisted  that  the  instruction  surgical  operations  were  such  as 
omits  the  necessary  words,  'if  you  were  reasonably  certain  to  follow 
believe  from  the  evidence,'  or  'in  as  a  result  of  the  injury  corn- 
that  state  of  the  proof,'  and  directs  plained  of,  they  would  be  bound  to 
the  consideration  of  the  jury  to  disregard  them  in  making  up  their 
the  evidence  'bearing  upon  the  verdict,  otherwise  not.  (L.  S.  & 
plaintiff's  case,'  instead  of  the  evi-  M.  S.  Ry.  Co.  v.  Conway,  169  111. 
dence  'bearing  upon  the  whole  505).  The  law  requires  a  case 
case.'  The  use  of  the  expression  should  be  submitted  to  the  jury  if 
'believe  from  the  evidence'  in  the  the  evidence  on  behalf  of  the 
concluding  sentence  of  this  in-  plaintiff,  together  with  the  legiti- 
struction,  thus,  'if  you  believe  mate  inferences  which  may  be 
from  the  evidence  that  the  evi-  drawn  therefrom,  fairly  tends  to 
dence  bearing  upon  the  plaintiff's  support  the  cause  of  action  stated 
case,'  etc.,  would  be  mere  tautol-  in  the  declaration,  and  in  deter- 
ogy,  and  tend  to  confuse  rather  mining  whether  the  court  erred  in 
than  otherwise.  The  expression  declining  to  eliminnte  from  th°  con- 
'bearing  upon  the  plaintiff's  case,'  sideration  of  the  jury  the  evidence 
is  equivalent  to  'bearing  upon  the  soueht  to  be  eliminated  from  their 
plaintiff's  cause  of  action,'  the  consideration  in  this  case  by  the 
only  matter  in  controversy,  and  instruction  refused  by  the  court, 
was  manifestly  so  understood  by  the  rule  is  the  same.  If,  therefore, 
the   jury.     We   do   not   regard    the  the    testimony    of   the    plaintiff   be 


§  362.]  PREPONDERANCE  OF  EVIDENCE.  297 

§  362.  When  the  Burden  of  Proof  is  On  the  Defendant,  (a)  The 
burden  of  proof  is  upon  the  plaintiff  to  establish  by  a  preponder- 
ance of  the  evidence  each  of  the  material  allegations  of  his  petition 
not  admitted  by  the  answer,  and  the  burden  of  proof  is  upon  the  de- 
fendant to  establish  each  of  the  affirmative  allegations  of  his 
answer.47 

(b)  Under  these  pleadings,  the  burden  is  upon  the  defendant  to 
establish  his  defense  by  a  fair  preponderance  of  evidence,  and  if  he 
does  this  your  verdict  should  be  for  him,  but  if  he  fails  in  this,  then 
your  verdict  should  be  for  the  plaintiff. 

(c)  The  court  instructs  the  jury  that  the  only  question  is,  Were 
the  patterns  made  as  ordered  by  the  defendant?  If  you  find  by  a 
fair  preponderance  of  the  evidence  that  they  were  so  made,  then  your 
verdict  should  be  for  the  plaintiff,  but,  if  not,  then  your  verdict 
should  be  for  the  defendant.48 

(d)  The  plaintiff  has  replied  to  the  second  paragraph  of  the  de- 
fendant's answer  by  her  reply  of  general  denial,  thus  putting  upon 
the  defendant  the  burden  of  proving  the  allegations  of  such  answer 
by  a  preponderance  of  the  evidence  before  it  can  succeed  thereon.49 

(e)  The  court  instructs  the  jury  that,  where  the  plaintiff  proves 
by  a  preponderance  of  the  evidence  that  certain  sums  of  money 
have  been  paid  to  the  defendant,  and  the  defendant  claims  that  said 
payment  was  made  upon  some  other'  demand  or  account,  which  he 
claims  he  then  held  against  plaintiff,  the  burden  of  proof  is  on  the 
defendant  to  show  by  a  preponderance  of  evidence  that  there  then 

tak^n  as  true,  together  with  all  jury,  was  so  aggravated  as  to 
legitimate  inferences  that  may  be  make  what  was  a  harmless  con- 
drawn  therefrom, — i.  e.,  that  the  dition  prior  to  the  injury  a  dis- 
appellee  was  in  good  health  prior  tressingly  painful  one  after  the 
to  the  injury;  that  she  thereafter  injury?  We  think  they  might.  If 
was  in  poor  health;  that  she  suf-  we  are  correct  in  so  holding,  then 
fered  pain  in  her  head,  back  and  under  the  authority  of  Chicago 
left  leg  and  lower  part  of  the  ab-  City  Railway  Co.  v.  Saxby,  213  111. 
domen,  and  her  genital  organs  be-  274,  72  N.  E.  755,  104  Am.  St.  Rep. 
came  diseased,  and  an  examina-  213,  the  appellee  was  entitled  to 
tion  disclosed  a  severe  injury  to  recover  for  such  aggravated  con- 
the   lower  part    of  the   spine;    that  dition." 

she    may    have    had    ovarian    cysts  47 — City  of  South  Omaha  v.  Ruth- 

from   girlhood   and   suffered   no   in-  jen,  71  Neb.  545,   99  N.  W.  240;   See 

convenience   therefrom;    that  with-  Chi.    T.    R.    R.    Co.    v.    Schmelling, 

in  a  short  time  after  the  injury  it  197   111.    619,    64   N.    E.    714,    where   a 

was     found     that     she     did     have  similar    instruction    was    held    er- 

ovarian    cysts    and    fibroid    tumors,  r^neous. 

from    which    she    suffered    greatly,  48 — White  v.  Adams,  77  Iowa  295, 

necessitating    two    surgical    opera-  42    N.    W.    199,    200.      "Taking    the 

tions    to    remove    them, — might    not  instructions  together,  it  must  have 

ihe  jury,  from  the  admitted  facts,  been  clear  to  the  mind  of  the  jury 

have   legitimately   drawn    the   con-  that    the   burden    was    on    the    de- 

clusion     that     a    predisposition     to  fendant  to  show  that  the  patterns 

those    conditions    existed    in    appel-  were  not  made  in  accordance  with 

lee    prior    to    the    injury    but    from  the    models." 

which    she    suffered    no    inconven-  49 — C.   I.  &  E.  Ry.  Co.  v.  Patter- 

ience,    and    that    su~h    preexisMn.?  son.  26  Ind.  App.   295,  59  N.  E.  688, 

condition,    as  a  result   of  such   in-  (691). 


298 


FORMS  OF  INSTRUCTIONS. 


[§  362. 


was  a  subsisting  and  unpaid  debt  due  defendant  from  plaintiff  upon 
which  such  payment  was  applied.50 

(f)  The  court  instructs  the  jury  that  the  burden  of  proof  is  upon 
the  defendant  to  show  title  in  the  defendant  to  the  property  re- 
plevied. The  court  further  instructs  the  jury  that  if  you  believe 
from  the  evidence  that  the  evidence  bearing  upon  said  defendant's 
title  to  said  goods  is  evenly  balanced,  or  that  it  preponderates  in 
favor  of  the  plaintiff,  then  the  court  instructs  the  jury  that  you 
should  find  for  the  plaintiff.51 


50— Prall  v.  Underwood,  79  111. 
App.  451.  "It  devolved  upon  ap- 
pellee," said  the  courts,  "of  course, 
to  show  by  a  preponderance  of  the 
testimony  that  he  had  overpaid 
appellant.  But  if  upon  the  trial  it 
was  claimed  by  appellant  that  cer- 
tain money  which  the  evidence 
showed  appellee  had  paid  him  wag 
applied  on  some  other  debt  which 
appellee  owed  him,  then  the  bur- 
den of  proving  such  other  debt 
was  cast  upon   appellant." 

51— Fabian  v.  Traeger,  117  111. 
App.  176.  "Under  the  pleadings  in 
this  case  the  burden  of  proof  was 


on  defendant  to  establish  if  he 
could  prove  his  title  to  the  goods 
in  question.  Stevison  v.  Earnest, 
80  111.  513.  The  fact  that  the  in- 
struction does  not  in  express  words 
point  out  the  time  at  which  de- 
fendant should  show  title  to  the 
property  replevied,  does  not  render 
it  objectionable.  The  jury  were 
neither  misled  nor  confused  by 
this  omission." 

Note. — For  further  instructions 
on  the  burden  of  proof,  see  chap- 
ter on  General  Instructions  in 
Criminal   Cases. 


CHAPTER   XIX. 


TESTIMONY   OF   PAETIES. 


See   Erroneous   Instructions,  same  chapter  head,   Vol.   III. 


§  363.  Parties — How  their  testimony 

should  be  weighed  by  jury. 
§  364.  Parties — How      testimony     of 

plaintiff  should  be  weighed. 
8  365.  Parties — How    the     testimony 

of      defendant      should       be 

weighed. 
§  366.  Parties — Corporations  and 

individuals   stand  equal. 
§  367.  Parties — Weight    to    be    given 

testimony   of  employes. 


§  368.  Parties— Weight  to  be  given 
testimony  of  husband  for 
wife. 

§  369.  Parties — Weight  to  be  given 
testimony   of  child. 

§  370.  Oath  of  witness  not  conclu- 
sive. 

§  371.  Failure  of  a  party  to  testify. 
§  372.  Testimony    of   attorney. 


§  363.  Parties — How  Testimony  Should  be  Weighed  by  Jury, 
(a)  The  jury  are  instructed,  that  while  our  statute  renders  parties 
to  a  suit  competent  witnesses,  and  allows  them  to  testify,  still  the 
jury  are  the  judges  of  the  credibility  and  weight  of  such  testimony; 
and  in  determining  such  weight  and  credibility,  the  fact  that  such 
witnesses  are  interested  in  the  result  of  the  suit,  if  it  so  appears 
from  the  evidence,  may  be  taken  into  account  by  the  jury,  and  they 
may  give  such  testimony  only  such  weight  as  they  think  it  fairly 
entitled  to  under  all  the  circumstances  of  the  ease,  and  in  view  of 
the  interest  of  such  witnesses.1 

(b)  The  court  instructs  the  jury,  that  while  the  law  makes  the 
defendant  (or  plaintiff)  a  competent  witness  in  this  case,  yet  the 
jury  have  a  right  to  take  into  consideration  his  situation  and  inter- 
est in  the  result  of  your  verdict,  and  all  the  circumstances  which 
surround  him,  and  give  to  his  testimony  only  such  weight  as  in  your 
judgment  it  is  fairly  entitled  to.2 

§  364.  Parties — How  Testimony  of  Plaintiff  Should  be  Weighed, 
(a)  The  juiy  are  instructed  that,  while  the  law  permits  a  plain- 
tiff in  a  case  to  testify  in  his  own  behalf,  nevertheless  the  jury  have 
a  right,  in  weighing  her  evidence  and  determining  how  much  cre- 
dence is  to  be  given  to  it,  to  take  into  consideration  that  he  is  the 
plaintiff  and  his  interest  in  the  result  of  the  suit.3 


1— Hill  v.   Sprinkle,   76  N.  C.   355. 

2 — Nelson  v.  Vorce,  55  Ind.  455. 

3— In  W.  Ch.  St.  R.  R.  Co.  v.  Es- 
tep,  162  111.  130,  44  N.  E.  404,  "we 
held  the  refusal  of  the  trial  court 
to  give  a  similar  instruction  was 


not  error,  as  the  substance  of  it 
was  embodied  in  another  that  was 
given.  In  W.  Ch.  St.  R.  R.  Co.  v. 
Dougherty,  170  111.  379,  rev'g  64  111. 
App.  599,  "we  held  the  refusal  to 
give   an   instruction  identical   with 


299 


300 


FORMS  OF  INSTRUCTIONS. 


[§  364. 


(b)  While  the  plaintiff  is  a  competent  witness  to  testify  in  her 
own  behalf,  yet  the  jury,  in  determining  what  weight,  if  any,  they 
will  give  to  her  testimony,  have  a  right  to  consider  her  interest  in 
the  result  of  this  litigation,  and  what  she  has  testified  to  against 
her  interest,  if  anything,  is  to  be  taken  as  true,  and  what  she  has 
testified  in  her  own  favor  is  to  be  given  only  such  weight  as  the  jury 
may  believe  from  all  the  evidence  in  the  case  it  is  entitled  to.4 

(e)  The  court  instructs  the  jury  that  while  the  law  permits  the 
plaintiff  in  the  case  to  testify  in  her  own  behalf,  nevertheless  the 
jury  have  the  right  in  weighing  her  evidence,  to  determine  how  much 
credence  is  to  be  given  to  it,  and  to  take  into  consideration  that 
she  is  the  plaintiff,  and  interested  in  the  result  of  the  suit.5 

(d)  The  law  of  this  State  permits  the  plaintiff  to  be  a  witness  in 
his  own  behalf,  but  it  allows  the  jury  to  take  the  fact  of  his  interest 
in  the  event  of  the  suit  into  consideration,  for  the  purpose  of  affect- 
ing his  credibility  as  a  witness.6 

(e)  The  jury  are  instructed  that,  while  the  law  permits  the  plain- 
tiff in  a  ease  to  testify  in  her  own  behalf,  nevertheless  the  jury  have 
a  right,  in  weighing  her  evidence   and  determining  how  much   cre- 


this  was  cause  for  reversal,  the 
conflict  of  evidence  being  sharp, 
and  no  instruction  being  given  on 
the  question."  N.  Ch.  St.  R.  R. 
Co.  v.  Dudgeon,  184  111.  477  (489), 
affg.   83  111.   App.   528,   56  N.   E.   796. 

See  also  W.  C.  St.  R.  R.  Co.  v. 
Nash,  166  111.  528,  46  N.  B.  1082;  C. 
C.  Ry.  Co.  v.  Mager,  185  Id.  336, 
56  N.  E.  1058,  cited  in  C.  C.  Ry.  Co. 
v.  Toohey,  196  111.  410  (430),  63  N. 
E.  997,  58  L.  R.  A.  270;  C.  C.  Ry. 
Co.  v.  Mager,  1S5  111.  336,  56  N.  E. 
105S;  C.  C.  Ry.  Co.  v.  Olis,  192  111. 
514  (519),  61  N.  E.  459.  See  also  C. 
&  E.  I.  R.  R.  Co.  v.  Burridge, 
211  111.   9   (13),   71   N.   E.   838. 

4 — In  Montgomery  v.  Mo.  Pac. 
Ry.  Co.,  1S1  Mo.  477,  79  S.  W.  930 
(933),  the  court  said:  "Perhaps  no 
instruction  given  in  criminal  cases 
has  been  so  persistently  assailed 
by  counsel  for  the  defense  as  this 
instruction,  asked  by  defendant  in 
this  case.  It  has  usually  been 
given  in  cases  where  admissions  or 
confessions  of  the  defendant  have 
been  proven  wherein  while  con- 
fessing certain  damaging  facts  he 
has  at  the  same  time  sought  to 
palliate  or  excuse  his  conduct.  It 
has  been  strongly  urged  that  the 
instruction  is  in  a  sense  a  com- 
ment upon  the  evidence  by  the 
court  and  an  invasion  of  the  prov- 
ince of  the  jury  to  weigh  the  evi- 
dence, but  it  has  been  sustained. 
In    civil    cases,    while   it    has    been 


approved  in  some  cases  on  the 
state  of  facts  developed,  in  others 
it  has  been  ruled  that  where  the 
court  has,  as  it  did  in  this  case, 
given  a  general  instruction  on  the 
credibility  of  witnesses,  and  au- 
thorizing the  jury  to  take  into  con- 
sideration 'the  interest  of  the  wit- 
nesses in  the  result  of  the  litiga- 
tion,' it  has  been  ruled  not  error 
to  refuse  it,  citing  Dahlstrom  v. 
Ry.  Co.,  108  Mo.,  loc.  cit.  540,  18  S. 
W.  919;  Ephland  v.  Ry.  Co.,  137 
Mo.  loc.  cit.  198.  37  S.  W.  820,  38  S. 
W.  926,  35  L.  R.  A.  107,  59  Am.  St. 
Rep.  498.  While  this  instruction 
was  held  not  to  be  error  in  Feary 
v.  Metropolitan  Ry.  Co.,  162  Mo. 
105,  62  S.  W.  452,  there  was  no  crit- 
icism of  the  former  decisions  of 
this  court  above  noted,  and  it  was 
obviously  not  the  intention  of  the 
court   to   overrule   them." 

5— C.  U.  T.  Co.  v.  Mommsen,  107 
111.    App.    353. 

6— C.  &  G.  T.  Ry.  Co.  v.  Spur- 
ney,   69  111.   App.   549    (551). 

"The  statute  admitting  interested 
parties  to  testify  in  terms  de- 
clares, that  the  interest  of  a  wit- 
ness may  be  shown  for  the  pur- 
pose of  affecting  the  credibility  of 
such  witness,  and  the  defendant 
was  entitled  to  have  the  jury  so 
instructed,  citing  W.  C.  St.  R.  R. 
Co.  v.  Estep,  162  111.  130,  44  N.  E. 
404." 


§365.]  TESTIMONY  OF  PARTIES.  301 

denee  is  to  be  given  to  it,  to  take  into  consideration  that  she  is  the 
plaintiff,  and  her  interest  in  the  result  of  the  suit.7 

(f)  You  may  consider  in  determining  upon  the  credibility  of  the 
plaintiff's  statements,  the  motives  he  had  to  testify  in  his  own  favor.8 

§  365.  Parties — How  Testimony  of  Defendant  Should  be  Weighed. 
The  court  instructs  the  jury  that  the  defendants,  having  become 
witnesses  in  their  own  behalf,  at  once  become  the  same  as  any 
other  witnesses,  and  their  credibility  is  to  be  tested  by  and  subjected 
to  the  same  tests  as  are  legally  applied  to  any  other  witness;  and  in 
determining  the  degree  of  credibility  that  should  be  accorded  to  their 
testimony,  the  jury  have  the  right  to  take  into  consideration  the  fact 
that  they  are  interested  in  the  result  of  the  prosecution  as  well  as 
their  demeanor  and  conduct  upon  the  witness  stand ;  and  the  jury  are 
to  take  into  consideration  the  fact,  if  such  is  the  fact,  that  they  have 
been  contradicted  by  other  witnesses.  And  the  court  further  instructs 
the  jury  that  if,  after  considering  all  the  evidence  in  the  case,  they 
find  that  the  accused  have  willfully  and  corruptly  testified  falsely 
to  any  fact  material  to  the  issue  in  this  cause,  they  have  the  right 
to  entirely  disregard  their  testimony  except  in  so  far  as  their  testi- 
mony is  corroborated  by  other  credible  evidence  or  facts  and  circum- 
stances proven  in  evidence  in  the  case.9 

§  366.  Parties — Corporations  and  Individuals  Stand  Equal,  (a) 
The  court  instructs  the  jury  that  this  case  should  be  considered  by 
the  jury  as  between  two  persons  of  equal  standing  in  the  community. 
The  fact  that  one  of  the  parties  is  a  corporation  should  not  affect 
your  minds  in  any  way,  but  the  right  of  each  party  should  and  must 
be  determined  upon  the  evidence  introduced  in  the  case,  and  the  in- 
structions given  to  the  jury,  which  are  the  law,  and  only  law,  to  guide 
you  in  your  deliberations.10 

(b)  You  will  consider  also  that  men  and  women  may  be  operated 
upon  by  their  sympathies  one  way  or  another.  The  sympathies  of 
people  come  out  sometimes  very  strongly  in  favor  of  the  weaker 
party,  or  the  female  sex,  or  the  poor  man,  when  he  is  in  controversy 
with  the  rich  man,  but  jurors  have  no  right  to  act  upon  any  preju- 
dice or  any  sympathy  of  that  kind.  You  are  to  try  to  do  exact 
justice  between  the  parties,  just  as  though  they  were  two  individuals 
standing  upon  perfect  equality  in  all  respects.  Their  rights  are  the 
.same,  and  your  duties  are  the  same,  and  they  are  not  to  be  evaded.11 

7 — C.    C.    Ry.   Co.    v.   Olis,    94   111.  cases  to  sustain  the  action  of  the 

App.    323    (326),    affd.    192    111.    514,  court    in    giving    the    instruction." 

supra.     See   also   C.    C.    Ry.    Co.    v.  Siebert  et  al.   v.   People,  143  111.  571 

Mager,  1S5  111.  336.  56  N.  E.  1058.  (592),  32  N.   E.  431;    see  also  McEl- 

8— Meyer    v.    Milwaukee    El.    Ry.  roy  v.  The  People,  202  111.  473  (478), 

&  L.   Co.,   116  Wis.   336,   93  N.   W.   6.  66    N.    E.    105S. 

9 — "This  instruction  is  fully  sus-  10 — Septowsky    v.    St.    L.    Trans, 

tained    by    Hirschmann    v.    People,  Co.,  102  Mo.  110,  76  S.  W.  693  (695). 

101    111.    568,    and    Rider    v.    People,  11— McDonnell  v.  Rifle  Boom  Co., 

110    id.    11,    and    we    shall    content  71  Mich  61,  38  N.  W.  681,  comments 

ourselves     by     referring'     to     these  of  the  court:     "It  seems  to  me  that 


302  FORMS  OF  INSTRUCTIONS.  [§  367. 

(e)  The  jury  are  instructed  that  the  issues  in  this  ease  should  be 
determined  by  them  as  in  an  ordinary  suit,  where  an  ordinary  plain- 
tiff sues  an  ordinary  defendant  to  recover  money,  giving  the  verdict 
to  the  plaintiff  only  if  the  evidence  preponderates  in  favor  of  the 
plaintiff's  contention,  and,  unless  it  does  so  preponderate,  you  should 
as  readily  give  the  verdict  for  the  defendant;  and  determining  where 
the  preponderance  lies,  while  it  does  not  consist  solely  in  the  greater 
number  of  witnesses,  the  jury  are  instructed  that  the  greater  number 
of  reputable,  creditable  witnesses  on  the  one  side  or  the  other  of  any 
material  point  is  proper  matter  to  be  considered  in  determining  the 
question  of  preponderance ;  and  you  may  also  consider  the  position  of 
witnesses  at  the  time  of  the  accident,  the  point  of  view  from  which 
they  witnessed  it,  and  everything  which  appeals  to  your  judgment 
as  affecting  the  value  and  reliability  of  their  testimony.12 

§  367.  Parties — Weight  to  be  Given  Testimony  of  Employes,  (a) 
The  court  instructs  the  jury  that,  while  they  are  the  judges  of  the 
credibility  of  the  witnesses,  they  have  no  right  to  disregard  the  tes- 
timony of  an  unimpeached  witness  sworn  on  behalf  of  the  defendant 
simply  because  such  witness  was  or  is  an  employe  of  the  defendant, 
but  it  is  the  duty  of  the  jury  to  receive  the  testimony  of  such  wit- 
ness in  the  light  of  all  the  evidence,  the  same  as  they  would  receive 
the  testimony  of  any  other  witness,  and  to  determine  the  ci'edibility 
of  such  employe  by  the  same  principles  and  tests  by  which  they  would 
determine  the  credibility  of  any  other  witness.13 

(b)  The  jury  are  instructed  that  the  fact  that  any  witness  in  the 
case  is  or  has  been  in  the  employ  of  either  the  plaintiff  or  defendant, 
as  well  as  the  relations  which  exist  between  any  witness  and  either 
party  to  the  suit,  and  any  interest  a  witness  may  have  in  the  result 
of  the  suit,  so  far  as  the  same  may  be  shown  by  the  evidence,  may 
be  considered  by  the  jury  in  determining  the  weight  which  ought  to 
be  given  to  the  testimony  of  such  witness,  taking  the  same  in  con- 
nection with  all  the  other  evidence  in  the  case,  and  the  facts  and 
circumstances  proven.14 

(c)  You  may  take  the  testimony  of  these  railroad  men;  you  may 

the  court  stated  the  law  correctly  sidered  by  them  in  weighing  the 
in  both  of  these  quotations  above  value  of  his  testimony." 
noticed.  The  interest  of  a  witness  12 — "This  refused  instruction  con- 
is  to  be  always  weighed  and  con-  tained  a  correct  principle  of  law 
sidered  by  the  jury,  and  there  applicable  to  the  controversy 
could  be  no  harm  or  impropriety,  which  was  not  included  in  any  in- 
under  the  circumstances  of  this  struction  given."  C.  C.  Ry.  Co. 
case,  in  what  the  circuit  judge  v.  Osborne,  105  111.  App.  462  (466). 
said.  "When  counsel  have  referred  13 — C.  &  Pro.  St.  Ry.  Co.  v.  Rol- 
to  this  interest,  as  they  had  the  lins,  195  111.  219,  affg.  95  111.  App. 
right  to  do,  and  when  the  jury  497,  63  N.  E.  98. 
may  consider  it,  it  certainly  is  not  14 — Donley  v.  Dougherty,  75  111. 
error  for  the  court  to  instruct  the  App.  379;  C.  &  P.  St.  Ry.  Co.  v. 
jury,  as  he  did  in  this  case,  that  if  Rollins,  supra.  See  also  Chi.  U. 
the  interest  or  employment  of  a  T.  Co.  v.  Mommsen,  107  111.  App. 
witness  has  impaired  or  biased  his  353. 
judgment,   such   fact  may   be   con- 


§368.] 


TESTIMONY  OF  PARTIES. 


303 


take  into  consideration  any  interest  which  they  might  have  that 
would  in  any  way  influence  their  testimony  here,  but  no  inference 
unfair  to  men  should  be  drawn  because  they  are  in  the  employ  of 
the  railroad  company;  you  will  take  into  consideration  the  testimony 
of  the  plaintiff — and  then  weigh  up  the  testimony  on  both  sides, 
and  say  where,  in  your  judgment,  the  truth  lies,  and  what  your 
duty  would  be  in  giving  weight  to  testimony.15 

(d)  The  jury  are  instructed  that,  in  considering  the  credibility 
of  witnesses  and  in  determining  the  worth  of  their  testimony,  they 
can  take  into  consideration  the  fact  that  a  witness  is  in  the  employ 
of  defendant  railroad  company,  and  also  his  connection,  if  any,  with 
the  action  causing  the  injury  complained  of,  taking  the  same  in 
connection  with  all  other  evidence  in  this  case.16 

§368.  Weight  to  be  Given— Testimony  of  Husband  for  Wife, 
(a)  The  jury  are  instructed  that  under  the  law  of  this  state  a 
husband  is  a  competent  witness  to  testify  in  behalf  of  his  wife  in  a 
suit  brought  by  the  latter  for  personal  injuries  alleged  to  have  been 
sustained  by  the  wife.  You  are  instructed  that  if  the  testimony 
of  the  husband  appears  to  be  fair,  is  not  unreasonable,  and  is  con- 
sistent with  itself,  and  the  witness  has  not  been  in  any  manner  im- 
peached, then  you  have  no  right  to  disregard  the  testimony  of  such 
a  witness  merely  from  the  fact  that  he  is  related  by  marriage  to 
the  plaintiff  in  the  case.17 


15 — Lovely  v.  Grand  Rapids  &  I. 
Ry.  Co.,  137  Mich.  653,  100  N.  W. 
S94,    in   which   the   court   said: 

"We  see  nothing  objectionable  in 
this  language  as  a  whole.  None 
of  the  .cases  cited  by  defendant's 
counsel  supports  its  contention 
that  the  circuit  judge  was  in  this 
instruction  invading  the  province 
of  the  jury.  It  is  true  the  jury 
were  told  that  in  weighing  the  tes- 
timony of  the  witnesses  the  interest 
of  the  witnesses  might  be  consid- 
ered; but  in  the  same  connection 
the  court  cautioned  them  against 
drawing  an  unfair  inference  based 
upon  the  fact  that  these  witnesses 
were  in  the  defendant's  employ. 
The  question  is  ruled  by  McDonell 
v.  Rifle  Boom  Co.,  71  Mich.  61,  38 
N.  W.  681,  in  which  case  the  case 
nf  Railroad  Co.  v.  Kirkwood,  45 
Mich.  51,  7  N.  W.  209,  40  Am.  Rep. 
453,  relied  upon  by  counsel,  is  an- 
alyzed   and    distinguished." 

16— C.  C.  Ry.  Co.  v.  Tohey,  196 
111.  410  (429),  affg.  95  111.  App.  314, 
63  N.  E.  997,  58  L.  R.  A.  270.  Here 
the  court  said:  "This  instruction 
is  objected  to  on  the  ground  that 
it  singles  out  the  employes  of  the 
defendant  company  who  are  wit- 
nesses  and   directs  the  special  at- 


tention of  the  jury  to  their  testi- 
mony. The  court  holds  the  objec- 
tion cured  by  an  instruction  given 
on  behalf  of  defendant  that  'by 
law  the  employes  of  the  defendant 
company  are  competent  witnesses 
in  the  case,  and  that  you  have  no 
right  to  arbitrarily  reject  any  of 
their  testimony  merely  because 
they  are  such  employes,  but  it  is 
your  duty  to  receive,  consider  and 
weigh  the  same  in  connection  with 
all  the  other  testimony  and  cir- 
cumstances in  evidence  in  the 
case.'  "  (This  instruction  is  not 
recommended  as  a  form  but  is 
inserted  as  an  authority.) — Author. 
17— N.  Ch.  St.  R.  R.  Co.  v.  Well- 
ner,  206  111.  502,  affg.  105  111.  App. 
652,  69  N.  E.  6.  Comment  of  court: 
"The  complaint  is  not  that  it  does 
not  state  a  correct  rule,  but  that  it 
tended  to  give  a  weight  to  the  tes- 
timony of  the  plaintiff's  husband 
which  it  otherwise  would  not  have 
had.  The  testimony  of  the  hus- 
band of  the  plaintiff  might  prop- 
erly have  been  and  was  likely  to 
be  commented  upon  by  attorneys 
for  the  defendant  as  coming  from 
one  who  could  not  fail,  from  his 
relationship,  to  feel  interested  in 
support    of    the    plaintiff's    claim. 


304  FORMS  OF  INSTRUCTIONS.  [§  3b'9. 

§  369.  Weight  to  be  Given  Testimony  of  Child.  You  have 
also  the  testimony  of  the  boy,  and,  of  course,  you  should  give  it  such 
weight  as  in  your  judgment  it  is  worth.  Of  course  you  should  re- 
call his  youth,  and  the  extreme  liability  of  a  child  to  repeat  what 
he  has  heard,  if  he  has  been  talked  to  about  a  matter  of  that  kind. 
Further,  the  whole  matter,  the  whole  question  as  to  what  weight  his 
testimony  should  receive,  is  in  your  hands,  bearing  in  mind  these 
observations  I  have  made.is 

§  370.  Oath  of  Witness  Not  Conclusive,  (a)  The  court  in- 
structs you  that  you  are  the  sole  judges  of  the  credibility  of  the 
witnesses,  and  that  you  need  not  believe  anything  to  be  a  fact  simply 
because  a  witness  testifies  to  it  positively,  if,  from  all  the  evidence 
and  circumstances  arising  in  the  case,  the  demeanor  of  the  witness 
upon  the  stand,  the  manner  of  his  testifying,  his  apparent  candor 
and  fairness,  his  interest,  if  any,  in  said  action,  you  believe  that  he 
has  knowingly  testified  falsely.19 

(b)  You  give  credit  to  that  testimony  you  think  best  entitled  to 
credit,  under  all  the  evidence  in  the  case.  The  jury  are  not  bound 
by  the  mere  sayings  of  any  witness.     If  the  mere  sayings  of  a  wit- 

The  instruction   did   no  more  than  Keigwin,   57  Conn.   473,  478,   18  Atl. 

to    tell    the    jury    that    because    of  594.     There  is   no   error." 

such     relationship      his     testimony  19 — Chezen   v.    State,   56   Neb.   496, 

was    not    to    be    disregarded."  76    N.    W.    1056.      "The   foregoing-   is 

18 — Banks  v.  Ry.  &  Lighting  Co.,  a  correct  exposition  of  the  law,  and 
Conn.  ,  64  Atl.  14:  "In  a  charge  to  the  jury  couched  in  sub- 
thus  calling  the  attention  of  the  stantially  the  same  language  was 
jury  to  considerations  affecting  the  approved  in  Murphey  v.  Virgin,  47 
credibility  of  testimony  which  Neb.  692,  66  N.  W.  652.  Unques- 
would  have  naturally  occurred  to  tionably,  jurors  are  to  determine 
any  intelligent  juryman,  the  court  for  themselves  the  credit  to  be 
did  not  exceed  its  privilege  or  in-  given  witnesses,  and  the  weight  to 
vade  the  jury's  province,  citing  be  accorded  their  testimony.  The 
Bradley  v.  Gorman,  77  Conn.  211,  demeanor  of  a  witness  while  testi- 
213,  58  Atl.  698,  66  L.  R.  A.  934;  fying,  his  interest,  apparent  intel- 
First  Baptist  Church  v.  Rouse,  21  ligence,  candor  and  fairness,  or 
Conn.  167;  Setchel  v.  Keigwin,  57  want  thereof,  are  all  proper  mat- 
Conn.  473,  18  Atl.  594;  State  v.  ters  for  consideration;  and  the 
Rome,  64  Conn.  329,  30  Atl.  57;  triors  of  fact  are  not  required  to 
Turner's  Appeal,  72  Conn.  305,  44  accept  as  true  all  sworn  testimony, 
Atl.  310.  This  conclusion  from  the  though  not  directly  impeached  or 
character  of  the  language  objected  contradicted.  The  instruction  as- 
to  is  in  this  case  emphasized  by  sailed  does  not  purport  to  apply 
the  fact  that  it  was  accompanied  to  the  defendant  alone,  who  testi- 
by  a  careful  and  repeated  reminder  fied  in  his  own  behalf,  as  his  coun- 
that  the  question  as  to  what  weight  sel  assume,  but  was  alike  applic- 
should  be  given  to  the  child's  tes-  able  to  all  the  witnesses  in  the 
timony  was  one  for  it  alone.  'It  case,  whether  examined  on  behalf 
is  competent  in  all  cases,  and  in  of  the  prosecution  or  defense.  The 
some  highly  expedient,  for  the  court,  by  this  instruction,  in  no 
court,  not  only  to  discuss,  but  to  manner  criticized,  or  cast  reflec- 
express  its  opinion  upon,  the  tions  upon  the  testimony  of  the 
weight  of  the  evidence,  without,  accused,  but  properly  allowed  the 
h  iweyer,  directing  the  jury  how  to  jurors  to  decide  for  themselves  the 
find  the  facts;  and  this  is  a  right  weight  his  testimony  should  re- 
jarily  limited  only  by  its  own  ceive.  The  instruction  was  fair 
discretion.'      First    Baptist    Church  and  free  from  error." 

v.  Rouse,  21  Conn.  167;   Setchel  v. 


§  371.]  .  TESTIMONY  OF  PARTIES.  305 

ness  are  in  conflict  with  the  well  recognized  facts,  that  is,  the  facts 
which  appear  to  the  jury  from  the  evidence ;  if  the  testimony  of 
that  witness  is  inconsistent  with  reason  or  inconsistent  with  those 
facts,  the  jury  are  not  bound  by  the  testimony,  however  solemn 
the  oath  may  be  under  which  the  witness  gave  the  testimony.  The 
jury  find,  not  according  to  the  mere  sayings  of  the  witnesses,  but 
according  to  the  opinion  you  may  entertain  of  the  evidence.20 

(c)  The  jury  are  not  required  to  accept  as  true  the  statement 
of  any  person  merely  because  he  has  sworn  to  it;  but  you  should 
consider  the  interest  of  such  person  in  the  case  and  his  demeanor 
on  the  stand,  and  carefully  weigh  the  statement  in  the  light  of  all 
the  facts  and  circumstances  developed  in  evidence,  giving  it  such 
weight,  and  no  more,  as  you  deem  it  entitled  to.  You  are  the  sole 
judges  as  to  whether  or  not  you  believe  it.21 

§  371.  Failure  of  a  Party  to  Testify,  (a)  The  court  instructs 
the  jury,  as  a  matter  of  law,  that  while  the  statute  of  this  State 
authorizes  a  party  to  a  suit  to  go  upon  the  stand  and  testify  in 
his  own  favor,  he  is  under  no  obligation  to  do  so ;  and  if  he  fails 
to  do  so,  the  jury  have  no  right  to  infer  from  this  fact  alone  any- 
thing prejudicial  to  such  party,  and  no  intendment  should  be  made 
against  him  because  he  does  not  testify  in  his  own   favor.22 

(b)  Failure  of  Brother  to  Testify.  The  court  instructs  the  jury 
that  they  should  not  draw  any  inference  unfavorable  to  the  de- 
fendant from  the  fact  that  the  brother  has  not  appeared  as  a  wit- 
ness in  this  case  on  behalf  of  the  defendant  if,  from  the  evidence, 
the  jury  believe  that  said  brother  is  unavoidably  absent  in  Europe 
at  the  time  of  this  trial.23 

§  372.  Testimony  of  Attorney.  The  court  instructs  you,  that  an 
attorney  is  a  competent   witness  for  his  client  on  the  trial   of   a 

20— Macon    Cons.    St.    R.    Co.    v.  any   harmful   result  to   the   appel- 

Barnes,    113    Ga.    212,    3S    S.    E.    756  lant. 

(759).  "It    is    insisted    that    the    court 

21— Logan    v.    Met.    St.    Ry.    Co.,  errod    in    permitting    the    witness, 

183  Mo.  5S2,  82  S.  W.  126  (133).  over  the  objection  of  the  appellant, 

22— Lowe  v.  Massey,  62  111.  47.  that    it    was    immaterial,    to    state 

23 — Warth      v.      Loewenstein      &  why   his    brother,    L.,    had    gone   to 

Sons,   219  111.   225-226,   76   N.    E.   379.  Europe.    We  do  not  think  this  was 

"The    evidence    for    the    appellant  error.      The    correct    rule    is    stated 

showed,    and    the    brief   of    counsel  as    contended    for    by    counsel    for 

for  appellant  here  admits,  that  the  the  appellant,  that  the  mere  with- 

only     matter    said     witness     could  holding  or  failing  to   produce   evi- 

have  testified  to,  if  present,  was  as  dence    which    under    the    circum- 

to  part  of  the  negotiations  had  be-  stances,    would   be   expected    to   be 

tween  W.  acting  for  appellant,  and  produced    and    which    is    available 

said  L.  acting  for  appellee,  in  ref-  gives  rise  to  a  presumption  against 

erence  to  the  alleged  agreement  of  a  party.     (Mantonya  v.  Reilly.   \<i 

February,  1SP5.     The  verdict  of  the  111.     183.)      But    evidence    may    be 

jury    is    consistent    only    with    the  given   in   behalf  of   the  party  who 

view  they  found  that  the  contract  fails   to   produce   such   evidence   to 

was    made    and     entared     into    as  explain   such   failure,    and    thereby 

claimed  by  the  appellant,   hence  it  rebut    any    inference    or    presump- 

is    clear    the    instruction,    whether  tion     that     might     otherwise    arise 

accurate    or   not,    did    not   produce  therefrom." 
20 


306  FORMS  OF  INSTRUCTIONS.  [§  372. 

cause;  and  the  testimony  of  such  a  witness  should  not  be  disre- 
garded by  you,  simply  because  he  is  an  attorney  testifying  in 
favor  of  his  own  client.  In  such  a  case,  you  are  the  judges  of  the 
weight  and  credit  to  which  such  testimony  is  entitled.  You  may 
consider  whether  the  statements  of  the  witness  are  apparently  fair 
and  candid,  or  otherwise;  whether  they  are  consistent  with  them- 
selves, and  to  what  extent,  if  any,  they  are  corroborated  or  con- 
tradicted by  other  evidence  in  the  case,  and  give  to  the  testimony 
such  faith  and  credit  as  you  believe  it  entitled  to,  in  view  of  all 
the  facts   and  circumstances   appearing  on   the  trial.24 

24— Note. — It   is   of   doubtful   pro-  occupying  the  attitude  of  both  wit- 

fessional  propriety  for  an  attorney  ness    and    attorney    for    his    client 

to  become  a  witness  for  his  client  subjects  his  testimony  to  criticism, 

on    the    trial    of    a    cause,    without  if    not    suspicion.      Ross    et    al.    v. 

first     entirely     withdrawing     from  Demos,  45   111.   447;    Best   on   Ev.,   § 

any    further    connection    with    the  184;   1  Greenlf.  on  Ev.,   §  364,  386. 
case  as  attorney;   and  an  attorney 


CHAPTER  XX. 

IMPEACHMENT  IN  GENERAL,     GENERAL  REPUTATION, 
CONTRADICTORY  STATEMENTS. 


See   Erroneous   Instructions,  same  chapter  head,  Vol.  III. 


§  373.  Impeachment  by  general  rep- 
utation for  truth  and  ver- 
acity. 

§374.  Impeachment  —  Contradictory 
statements  as  tending  to 
impeach. 

§  375.  Weight  of  contradictory 
statements   is   for  the   jury. 

§  376.  Contradictory  statements 

must  be  matters  material 
to    the    issues. 


§  377.  Contradictory  statements — 
Test  is  not  truth  of  former 
statement  but  of  that  made 
at   the  trial. 

§  378.  Jury  need  not  disregard  the 
entire  testimony  of  im- 
peached  witness. 

§  379.  Party  cannot  impeach  his 
own    witness. 

§  380.  Attorney  talking  to  a  wit- 
ness does  not  tend  to  dis- 
credit  or  impeach. 


u  373.  Impeachment  by  General  Reputation  for  Truth  and 
Veracity,  (a)  A  person's  reputation  for  truth  is  made  by  what 
his  neighbors  generally  say  of  him  in  this  regard.  If  they  generally 
say  he  is  untruthful,  that  makes  his  general  reputation  for  truth 
bad.  Upon  the  other  hand,  if  a  man's  neighbors  say  nothing  what- 
ever about  him  as  to  his  truthfulness,  that  fact  of  itself  is  evidence 
that  his  general  reputation  for  truth  is  good.1 

(b)  The  court  instructs  the  jury  that  one  of  the  means  recog- 
nized by  law  for  impeaching  the  veracity  of  witnesses  is  the  in- 
troduction of  persons  as  witnesses  who  testify  that  they  are  ac- 
quainted with  the  general  reputation  for  truth  and  veracity  of 
the  person  sought  to  be  impeached,  in  the  neighborhood  in  which 
he  resides ;  and  if  the  jury  believe,  from  the  evidence  in  this  case, 
that  the  reputation  for  truth  and  veracity  of  any  party  or  witness 
who  has  testified  before  you,  in  the  neighborhood  where  he  resides 
is  bad,  then  the  jury  have  a  right  to  disregard  the  whole  of  such 
person's  testimony  and  treat  it  as  untrue,  except  so  far  as  it  is 
corroborated  by  other  credible  evidence  or  by  facts  and  circum- 
stances proved  on  the  trial.2 


1 — Treschman    v.    Treschman,    28     N.    E.    320.     In   this  case   the  court 


Ind.  206,  61  N.  E.  961.  "This  same 
instruction  was  approved  in  the 
case  of  Davis  v.  Foster,  68  Ind.  238. 
See  also  Conrad  v.  State,  132  Ind. 
2b4,    31    N.    E.    805." 

2— Hill    v.     Monteromerv,    184    111. 
220    (224),    affg.    84    111.    App.    300,    56 


said:  "We  think  the  law  is  well 
settled  that  where  the  general  rep- 
utation of  a  witness  for  truth  and 
veracity  is  bad  in  the  neighbor- 
hood where  he  resides,  the  jury 
may  disregard  his  evidence,  except 
in  so  far  as  it  is  corroborated  by 


307 


308  FORMS  OF  INSTRUCTIONS.  [§374. 

(e)  The  court  instructs  the  jury  that  if  you  believe  from  the 
evidence  that  the  moral  character  of  any  witness  or  witnesses 
has  been  successfully  impeached  on  this  trial,  then  that  fact  should 
also  be  taken  into  consideration  in  estimating  the  weight  which 
ought  to  be  given.3 

(d)  The  jury  are  instructed  that,  if  you  believe  from  the  pre- 
ponderance of  the  evidence,  that  the  general  reputation  for  truth 
and  veracity  of  any  person  who  testified  upon  the  trial  of  the  cause 
has  been  successfully  impeached,  or  that  any  witness  has  willfully 
sworn  falsely  as  to  any  matter  or  thing  material  to  the  issues  of 
this  case,  then  the  jury  are  at  liberty  to  disregard  the  entire  testi- 
mony of  any  such  witness,  except  in  so  far  as  the  same  has  been 
corroborated  by  other  credible  evidence,  or  by  facts  and  circum- 
stances proved  upon  the  trial  of  this  case.4 

(e)  When  it  is  successfully  shown  that  the  general  reputation 
of  witness  in  the  community  in  which  he  lives  for  truth  and  gen- 
eral moral  character  is  bad,  he  is  impeached,  and  the  jury  will  be 
warranted  in  disregarding  the  testimony  of  such  a  witness  as  un- 
worthy of  belief.  But  it  must  be  shown  that  the  bad  reputation 
is  general  in  the  community — that  is,  that  it  is  generally  so  re- 
ported and  considered  in  the  community;  and  if  it  has  not  been 
thus  impeached  the  jury  should  not  reject  it,  but  should  give  it 
proper  consideration  and  weight.5 

(f)  If  j'ou  believe  from  the  evidence  in  this  case  that  plaintiff's 
general  reputation  for  truth  and  veracity  is  bad  in  the  community 
in  which  he  lives,  then  you  have  a  right  to  disregard  his  testimony 
as  a  witness  as  being  unworthy  of  belief.  But  you  are  not  bound 
to  disregard  it.  It  is  for  you  to  say,  in  the  light  of  all  the  facts 
and  circumstances  in  the  case,  whether  any  or  all  of  his  testimony 
is  unworthy  of  belief,  and  you  will  give  it  such  weight  as  you  deem 
it  entitled  to,  or  none,  if  entitled  to  none.6 

§  374.  Impeachment — Contradictory  Statements  as  Tending  to 
Impeach,  (a)  If  you  believe  from  the  evidence  that  any  witness, 
before  testifying  in  this  case,  has  made  any  statements  out  of 
court,  concerning  any  of  the  material  matters,  materially  different 

other  evidence  or  by  facts  and  cir-  Co.,  80  Iowa  443,  45  N.  W.  737,  "say- 

cumstances    proven    on    the    trial,  ing  that  it  must  be  shown  that  the 

and    this    is    the    substance    of   this  bad    reputation    is    general    in    the 

instruction.  The  instruction  is  sus-  .community — that  it  is  generally  so 

tained    by    Freeman    v.    Easly,    117  reported     and     considered — is     not 

111.   317,  7   N.   E.   656;    Hirschman  v.  saying     that     there     must     be     the 

People,   101   111.    568;    Miller  v.   Peo-  unanimous     opinion     of    the     com- 

ple,   39   111.   457."  munity.     It   is   simply  saying  that, 

3 — Smith    v.    State,    142    Ind.    288,  unless      generally      condemned,      it 

41   N.   E.    595.  does    not   amount    to   an    impeach- 

4 — Hill    v.    Montegomery,    184    111.  ment." 

220,   56   N.   E.   320.  6— Buchholtz       v.       Incorporated 

In    Miller    v.    People,    39    111.    457,  Town   of  Radcliffe.    129   la.    274,  105 

a  similar  instruction  was  approved.  N.   W.   336. 

5 — Winter    v.    Central    Iowa    Ry. 


§374.]  IMPEACHMENT  IN  GENERAL.        •  309 

and  at  variance  with  what  he  or  she  has  stated  on  the  witness  stand, 
then  the  jury  are  instructed  by  the  court  that  these  facts  tend  to 
impeach  either  the  recollection  or  the  truthfulness  of  the  witness, 
and  the  jury  should  consider  these  facts  in  estimating  the  weight 
which  ought  to  be  given  to  his  or  her  testimony.7 

(b)  A  witness  may  be  impeached  by  showing  he  or  she  has 
made  other  and  different  statements  out  of  court  from  those  made 
before  you  on  the  trial.  Among  the  purposes  for  which  such  im- 
peaching evidence  may  be  considered  by  you  is  to  aid  you  in  de- 
termining (if  it  does  so)  the  weight  (if  any)  to  be  given  the  testi- 
mony of  such  witness,  and  his  credibility  or  otherwise ;  but  such 
impeaching  evidence  is  not  to  be  considered  as  tending  to  establish 
the  alleged  guilt  of  the  defendant.8 

(c)  The  court  charges  the  jury  that  if  they  find  from  the  evi- 
dence that  the  witness  J.  P.  has  made  contradictory  statements  as 
to  material  facts  in  this  case,  or  any  of  such  facts,  the  jury  may 
look  to  these  contradictory  statements  in  order  to  determine  what 
credence  they  will  give  to  the  testimony  of  the  said  J.  P.9 

(d)  The  court  instructs  the  jury,  that  one  of  the  modes  of  im- 
peaching a  witness,  is  by  showing  that  he  has  made  statements  out 
of  court  at  variance  with  his  statements  on  the  Avitness-stand;  and 
if  the  jury  believe  from  the  evidence  that  any  witness  has  made 
statements  at  another  time  and  place  at  variance  with  his  evidence 
in  this  case,  regarding  any  material  matter  testified  to  by  him, 
then  it  is  the  province  of  the  jury  to  determine  to  what  extent  this 

7 — In    Smith    v.    State,    142    Ind.  to  this   charge   is   that   it  uses   the 

288,    41    N.    E.    595,    the    court    said  word    'he'    in    applying   the   law   to 

that   "while   the   jury  are   the   sole  the  facts.     In  the  first  part  of  the 

judges  of  the  facts,  and  also  have  charge,   however,  we  And   that  the 

the  right,  in  criminal  cases,  to  de-  jury    were    told    that    'he'    or    'she' 

termine   the   law    (clause   5,    §    1S92,  could  be  impeached,  etc.     Our  stat- 

Rev.  St.  1894;    §  1S23,  Rev.  St.  1881),  ute  defining  terms  says  that  terms 

yet,   by  the  same  statute,   it  is  re-  denoting  the  male  gender  includes 

quired    that    the    court    charge    the  also    the    female.     We    do    not    be- 

jury  as   to   the   law,   and   also  that  lieve     that     the     jury     under     this 

in  'charging  the  jury  he  must  state  charge  were  liable  to  have  misap- 

to   them   all  masters  of  law   which  plied    it,    and    would    have    applied 

are    necessary    for    their    informa-  it    only     to     those     witnesses     who 

tion    in    giving    their    verdict.'      It  were  shown  to  have  made  different 

was  certainly  necessary  for  the  in-  statements    out    of    court    to    those 

formation    of    the    jury    that    they  testified  to  on  the  trial.     Appellant 

should    be    told    the    nature    of   the  who    testified    on    his    own    behalf, 

testimony  referred  to,  namely,  that  was  not   impeached   by  such   testi- 

it  was  impeaching;   that  it  was  not  mony;   and  the  jury  were  afforded 

introduced    to    prove    any    issue    in  no    reason   to   apply  the   charge   to 

the  case,  but  solely  tended   to  im-  him." 

peach  either  the  recollection  or  the  9 — Pitts   v.    State,   140  Ala.   70.   ?,1 

truthfulness  of  the  witness.    Other-  So.    101.      The     court     said:       "The 

wise,    and    had   the   instruction   not  charge  above  given  at   the  request 

been  so  given,  the  jury  might  have  of   the   state   was   proper.     Hale   v. 

thought   it  their  duty   to  apply  the  State,   122  Ala.  85,  26  So.  236." 

evidence  to  the  issues  in  the  case."  A    charge    similar    to    the    above 

8 — Marek    v.     State,    —    Tex.    — ,  was    approved    in    Smith    v.    State, 

94  S.  W.  469.     "The  criticism  made  118  Ala.   117,  24   So.   55. 


310  FORMS   OF  INSTRUCTIONS.  [.§  375. 

fact  tends  to  impeach,  either  his  memory  or  his  credibility,  or  de- 
tracts from  the  weight  which  ought  to  be  given  to  his  testimony.10 

(e)  Some  evidence  has  been  introduced  for  the  purpose  of  im- 
peaching the  testimony  of  certain  witnesses  who  have  testified  be- 
fore you  by  attempting  to  show  that  such  witnesses  have  made  state- 
ments out  of  court  in  conflict  with  their  testimony  in  this  case.  The 
court  instructs  you  that  a  witness  may  be  impeached  in  this  man- 
ner, but  as  to  whether  any  witness  in  this  case  has  been  success- 
fully impeached  in  this  mode,  and  if  he  has  been  so  impeached  the 
extent  to  which  this  has  been  done,  are  questions  of  which  you 
are  the  exclusive  judges.11 

(f)  If  the  jury  believe  from  the  evidence  that  any  witness, 
before  testifying  in  this  case,  has  made  any  statements  out  of  court 
concerning  any  of  the  material  matters,  materially  different  and 
at  variance  with  what  he  has  stated  on  the  witness  stand,  then 
the  jury  are  instructed  by  the  court  that  these  facts  tend  to  impeach 
either  the  recollection,  or  the  truthfulness  of  the  witness,  and  the 
jury  should  consider  these  facts  in  estimating  the  weight  which 
ought  to  be  given  to  his  testimony.12 

(g)  If  any  witness  had  given  any  testimony  at  any  other  trial, 
materially  different  from  that  given  by  him  at  this  trial,  the  jury 
should  consider  the  fact  as  bearing  upon  the  credibility  of  such 
witness  at  this  trial.13 

§  375.  Weight  of  Contradictory  Statements  is  for  the  Jury, 
(a)  The  court  instructs  the  jury  that  if  they  believe  from  the  evi- 
dence in  this  case  that  any  witness  in  this  case  has  made  a  statement 
at  this  trial,  on  the  witness  stand,  in  conflict  with  a  statement  made 
at  a  previous  trial  of  this  case,  then  such  conflict  may  be  con- 
sidered by  the  jury  for  the  purpose  of  determining  the  credibility 
of  such  witness,  and  the  weight  to  be  given  the  testimony  of  such 
witness.  You  are  the  sole  judges  of  the  credibility  of  all  witnesses, 
and  of  the  weight  to  be  given  to  the  testimony  of  each. 

(b)  The  court  instructs  the  jury  that  if  they  believe  from  the 
evidence  that  any  witness  in  this  case,  at  a  time  prior  to  this  trial, 

10— Craig  v.  Rohrer,  63  111.   32.  Clark,  100  Mass.  430:     'Wherever  a 

11 — Lynch  v.   Bates,   139   Ind.   206,  witness    has    testified    to    any    ma- 

38     N.     E.     806;     Smith     v.     State,  terial    facts,    any   acts   or   declara- 

142  Ind.  288,  41  N.  E.   595,  51  L.   R.  tions  of  his  which  appear  to  be  in- 

A.    404;    Treschman   v.    Treschman,  consistent  with   his   version   at  the 

28  Ind.  App.   206,   61  N.   E.  961.  trial  are  competent  by  way  of  con- 

12 — Glaze  v.   Whitley,  5  Ore.   164;  tradiction.'       This    rule    has    since 

1   Greenl.    on   Ev.,    Sec.   462.  been    followed.      Foster   v.    Worth- 

13— Bennett   v.    Susser,    191    Mass.  ing,    146    Mass.    607,    16    N.    E.    572; 

329,  77  N.   E.  884.     In  this  case  the  Handy   v.    Canning-,    166    Mass.    107, 

court    said:      "In    the   ruling   given  109,  44  N.  E.  118.     It  is,  however,  a 

the    judge    evidently   had    in    mind  familiar  rule  that   if  any  party  to 

the    rule    which    has    been    applied  a  cause  suborns  a  witness  to  tes- 

to  a  party  in  a  case  who  testifies,  tify  falsely,   this  may  be  shown  as 

as    well    as    to    any   other   witness,  an   admission   on   his   part   that   he 

and   which   is   thus   stated   by   Mr.  has    not    a    just    claim.      Egan    v. 

Justice     Foster     in      Brigham      v.  Bowker,  5  Allen  449." 


§  376. J  IMPEACHMENT  IN  GENERAL.  311 

had  made  a  voluntary  admission  in  regard  to  the  facts  thereof,  and 
that  such  admission  is  in  conflict  with  the  evidence  given  by  such 
witness  at  the  trial  of  this  case,  such  conflict  may  be  considered 
by  the  jury  for  the  purpose  of  determining  the  credibility  of  the 
testimony  of  such  witness,  and  the  weight  to  be  given  to  the  evi- 
dence of  such  witness.14 

(c)  The  question  is  whether  it  goes  to  the  credibility  of  B's 
testimony.  What  credit  will  you  give  a  witness  who  says  one  thing 
in  court  and  another  out?  The  fact  whether  or  not  he  did  make 
such  a  statement  brings  you  down  to  consider  the  testimony  of  Mr. 
0.  Did  he  (B.)  make  that  statement?  It  is  a  question  of  fact  for 
you  to  decide,  and  when  you  have  found  that  he  made  contradic- 
tory statements,  if  so,  you  are  to  decide  what  his  testimony  is 
worth.     How  far  you  will  believe  or  not  believe  him.15 

§376.  Contradictory  Statements  Must  be  on  Matters  Material 
to  the  Issues,  (a)  If  any  witness  in  the  case  has  at  another  time 
and  place  made  statements,  material  to  the  issues  in  this  case,  at 
variance  with  his  testimony  while  on  the  witness  stand  before  you, 
then  you  are  at  liberty  to  disregard  the  whole  of  such  witness'  tes- 
timony, except  in  so  far  as  he  is  corroborated  by  other  credible 
evidence.16 

(b)  I  charge  you  that  a  witness  may  be  impeached  by  proof  of 
contradictory  statements;  and,  if  you  believe  that  any  witness  has 
been  successfully  impeached,  why,  then  it  would  be  your  duty  to 
discard  the  evidence  of  such  witness;  but  it  is  for  you  to  say 
whether  or  not  you  will  believe  the  witness  sought  to  be  impeached 
or  the  witness  brought  to  impeach  him,  the  credibility  of  all  wit- 
nesses being  for  you  and  your  consideration.  If  you  believe  that 
any  witness  has  been  successfully  impeached  in  reference  to  con- 
tradictory statements  upon  some  material  issue  in  the  case — and  it 
must  be  some  material  issue  in  the  case — then  you  would  not  be 
authorized  to  believe  him,  unless  you  find  that  he  has  been  corrob- 
orated. He  may  be  corroborated,  or  he  may  be  sustained  by  proof 
of  good  character,  or  by  other  facts  and  circumstances  in  the  case.17 

(c)  The  court  charges  you,  that,  although  a  witness  may  be  im- 

14— Septowsky  v.   St.   L.   Tr.  Co.,  statements    of    a    witness   were    of 

102  Mo    110    76  S.  W.  693.  such  a  character  as  to  satisfy  the 

15_Parnell    v.    State,    129    Ala.    6,  jury  that  he  was  unworthy  of  be- 

29  S    W    860.  lief,   they  were  at  liberty  to  disre- 

16— Bloteky    v.    Caplan,    91    Iowa  gard    the   whole   of   his   testimony. 

352    59  N.  W.  204  (205).     "The  credit  except    as    corroborated    by    other 

of  '  a    witness    may    also    be    im-  witnesses.     This  rule  is  kindred  to 

peached  by  proof  that  he  has  made  that    which    authorizes    a    jury    to 

statements    out    of    court    contrary  disregard    all    the    testimony    of    a 

to    what    he    has    testified    at    the  witness     who     knowingly    testified 

trial.     But  it  is  only  in  such  mat-  falsely  as  to  one  or  more  material 

ters   as   are    relevant   to    the   issue  matters." 

that    the    witness    can    be    contra-  17— Powell    v.     State,    101    Ga.    9, 

dieted.       Greenl.      Ev.,     para.     462.  29  S    E.  309,  65  Am.  St.  Rep.  277. 
Surely,  if   the  discrepancies  in   the 


312  FORMS  OF  INSTRUCTIONS.  [§  377. 

peached  by  either  one  of  the  ways  known  to  the  law,  you  would 
be  authorized  to  believe  the  witness,  if  you  believe  the  witness  has 
sworn  the  truth  in  this  ease.  This  is  the  question  now  for  you.  If 
you  believe  this  witness  that  has  been  thus  impeached,  you  are 
authorized  to  believe  his  testimony,  if  you  believe  he  has  sworn  the 
truth  in  this  ease.18 

§  377.  Contradictory  Statements — Test  Is  Not  Truth  of  Former 
Statement,  but  of  That  Made  at  the  Trial,  (a)  It  is  always  compe- 
tent, as  I  have  said,  to  show  that  a  witness  had  elsewhere  made  dif- 
ferent statements  from  that  made  on  the  stand ;  and,  when  evidence 
of  that  fact  is  put  before  you,  you  are  to  take  it  into  consideration 
in  determining,  not  whether  the  statement  made  elsewhere  is  true, 
but  in  determining  whether  the  statement  made  here  is  true.  By 
way  of  illustration,  it  may  be  that  a  person  elsewhere  has  made  cer- 
tain statements  as  to  a  fact,  and  then  comes  here  and  makes  an  en- 
tirely different  statement  of  that  fact,  and  admits  that  elsewhere 
he  made  contradictory  ones.  You  might  be  entirely  satisfied  that 
the  statement  made  here  is  true,  and,  if  so,  it  is  to  govern  you.  On 
the  otuer  hand,  you  might  from  the  appearance  of  the  witness, 
and  all  the  facts  and  circumstances,  be  satisfied  that  the  state- 
ment made  elsewhere  is  true,  and  that  made  here  is  untrue.  It  is 
entirely  a  question  for  you  as  to  what  effect  it  will  have  upon  you 
here.  You  are  to  take  into  consideration  all  the  circumstances  in 
determining  whether  or  not  this  statement  is  a  correct  statement.19 

§  378.  Jury  Need  Not  Disregard  the  Entire  Testimony  of  Im- 
peached Witness,  (a)  The  testimony  of  a  witness  who  has  been 
impeached  ought  not  to  be  wholly  disregarded  by  you  if  you  feel 
justified,  from  his  deportment  upon  the  stand,  or  the  probability  of 
his  testimony,  in  believing  it,  even  if  it  receives  no  other  corrobo- 
ration.20 

(b)  You  may  properly  believe  a  witness  who  has  testified  upon 
several  matters  as  to  some  of  them,  though  you  may  believe  the  testi- 
mony false  upon  others.  You  have  not  a  right  to  reject  all  of  a  wit- 
ness' testimony  merely  because  you  conclude  that  he  testified  falsely 

18— Ector  v.  State,  120  Ga.  543,  48  mulgated  that  it  is  hardly  neces- 
S.  E.  315  (316).  The  court  said  in  sary  to  bolster  it  up  by  authority, 
comment:  "The  credibility  of  a  It  may  not  be  amiss,  however,  to 
witness  is  always  for  the  deter-  cite  a  case  where  the  conviction 
mination  of  the  jury.  His  charac-  was  upheld  although  the  sole  wit- 
ter may  be  assailed;  his  previous  ness  for  the  state  was  shown  by 
contradictory  statements  as  to  ma-  other  witnesses  to  be  a  man  of  bad 
terial  matters  relevant  to  the  case  character,  and  had  made  contra- 
may  be  brought  against  him;  but,  dictory  statements.  Davis  v.  State, 
notwithstanding  these  attacks,  his  94  Ga.  399,  19  S.  E.  243." 
credibility  is  for  the  jury  and  they  19 — Tarbell  v.  Forbes,  177  Mass. 
may  believe  him,  despite  the  evi-  238,  58  N.  E.  873. 
dence  submitted  to  impeach,  if  20. — Green  v.  Cochran,  43  la. 
they  believe  he  swears  truly.  This  544;  Addison  v.  State,  4S  Ala.  478; 
principle    has    been    so    often    pro-  City   Bk.    v.    Kent,    57   Ga.    258. 


§  ^79.]  IMPEACHMENT  IN  GENERAL.  313 

as  to  some  material  matters.  If  a  witness  willfully  testifies  falsely 
as  to  any  material  matters  in  the  trial  of  a  cause,  you  may  properly 
— but  you  are  not  bound — to  reject  all  his  evidence  which  is  not 
corroborated  by  some  other  credible  evidence.21 

(c)  While  the  law  permits  the  irupeachnient  of  a  witness  by 
proving  his  general  reputation  for  truth  and  veracity  in  the  neigh- 
borhood where  he  resides  to  be  bad,  yet,  if  you  believe  that  the 
plaintiff,  while  on  the  stand,  gave  a  truthful,  candid  and  honest 
statement  of  the  facts  and  circumstances  surrounding  the  transac- 
tion in  question,  then  the  jury  should  not  disregard  his  testimony, 
but  you  should  give  it  such  faith  and  credit  as  in  your  opinion  it 
is  entitled  to.22 

(d)  The  court  instructs  the  jury  that  they  are  not  required  by 
law  to  disbelieve  a  witness  who  has  testified  before  them  in  this 
case  because  the  general  reputation  of  such  witness  for  truth  and 
veracity  in  the  neighborhood  where  he  resides  has  been  proven  to 
be  bad,  and  said  witness  shown  not  to  be  entitled  to  credit  when 
on  oath;  but  it  is  the  province  of  the  jury  to  give  the  evidence  of 
any  witness  who  has  testified  in  this  case  such  credit  as  the  jury 
may  believe,  from  all  the  facts  and  circumstances  in  the  case,  it  is 
entitled  to ;  the  jury  being  the  sole  judges  of  the  evidence  in  the 
case,  as  well  as  the  credibility  of  the  witnesses  who  have  testi- 
fied in  this  case.23 

§  379.  Party  Cannot  Impeach  His  Own  Witness.  Where,  in  the 
trial  of  a  suit,  a  party  places  a  witness  upon  the  stand,  he  thereby 
indorses  his  reputation  for  truth  and  veracity,  and  he  will  not  be 
permitted  to  say  that  such  witness  is  unworthy  of  belief.24 

§  380.  Attorney  Talking  to  a  Witness  Does  Not  Tend  to  Discredit 
cr  Impeach.  The  mere  fact  that  a  witness  has  talked  to  an  attorney  of 
a  party  to  this  suit  and  has  told  such  attorney  what  the  said  witness 

21 — "The     last     sentence     of     this  course  at  liberty  to  disregard  such 

quotation  seems  to  be  substantially  testimony,'    but    that    before     they 

the  same  as  sanctioned  in  a  recent  would    be   justified    in    rejecting-   all 

opinion   of  this   court,   and   its   cor-  of  his   testimony   they   should   'find 

rectness  is  not  questioned.  Patnode  that    the   witness  knowingly   or  in- 

v.    Westenhaver,    114   Wis.    460,    487,  tentionally      or      corruptly      swore 

90   N.   W.   467.     The  criticism   is   as  falsely  as  to  a  material  fact.'     Lit- 

to  the  portion  of  the  charge  to  the  tie    v.    Superior    Rapid    Transit    R. 

effect  that  the  jury  had  no  right  to  Co.,  SS  Wis.  407,  40S,   60   N.   W.   705. 

reject    all    of    the    testimony    of    a  See  also  Calm  v.  Ladd,  94  Wis.  134, 

witness-  'merely  because  they  con-  6S    X.    \V.     652.      We     cannot     say 

eluded   that   some   material   portion  that     the     portion     of     the     charge 

thereof*  was    false.'      But    we    per-  quoted     was     erroneous.       Suckow 

reive  no   substantial  difference  be-  v.    State,   —  Wis.   — ,   99   N.   W.  440 

tween      that      statement     and      the  (441). 

statement   contained    in   the   quota-  22— Roy  V.  Goings,   112  111.  666. 

tion     from    the    adjudication    cited  23— State    v.    Roberts,    50   W.    Va. 

in  support  of  the  contention  to  the  422,    40    S.    E.   4S4    (4S6),    57  Am.    St. 

effect    that    if    the    jury    find    'that  Rep.   186. 

a    witness    has    testified    falsely    as  24— Campbell  v.   Holland,  22  Neb. 

to    a    material    fact    they    are    of  587,  35  N.  W.  871. 


314 


FORMS  OF  INSTRUCTIONS. 


[§  380. 


would  testify  on  this  trial,  does  not  of  itself  in  any  wise  tend  to 
impeach  or  discredit  the  testimony  of  such  witness.25 


25— N.  C.  St.  R.  R.  Co.  v.  Ander- 
son, 70  111.  App.  336,  (339),  affd.  176 
111.  635,  (639),  52  N.  E.  21.  The 
court  modified  the  above  instruc- 
tion by  adding  to  it,  as  follows: 
"But  such  fact  may  be  considered 
by  the  jury,  together  with  all  the 
other  facts  in  evidence  in  determin- 
ing- the  weight  of  such  testimony." 

The  instruction  as  asked  was 
correct,  and  it  should  not  have 
been    modified    as    it    was. 

"It  Is  not  only  the  right,  but 
the  duty  of  the  attorney  of  a  party 
to  a  cause  to  talk  to  his  witnesses 
and  to  learn  from  them  their 
knowledge  of  the  facts  and  circum- 


stances of  the  case,  and  what  their 
testimony  will  be  concerning  the 
same  before  calling  them  to  the 
stand  to  testify,  and  no  improper 
inferences  are  to  be  drawn  from 
the  performance  of  such  duty.  To 
tell  the  jury  that  such  a  circum- 
stance of  itself  goes  to  the  credi- 
bility of  witnesses  or  to  the  weight 
of  their  testimony,  is  to  tell  them 
what  is  not  the  law,  and  never 
was  the  law;  and  to  so  instruct 
a  jury  as  to  the  law,  might,  in  a 
proper  case,  be  ground  for  the  re- 
versal of  a  judgment.  See  C.  & 
G.  T.  Ry.  Co.  v.  Spurney,  69  111. 
App.   549.'  " 


CHAPTER   XXI. 


ADMISSIONS  AS  AFFECTING  CREDIBILITY. 

See    Erroneous    Instructions,   same  chapter  head,  Vol.   III. 


§  381.  Admissions  to  be  taken  as  a 
whole  but  all  parts  not  to 
be  regarded  with  equal  con- 
fidence. 

§  382.  Admissions  against  interest — 
Credibility   of  plaintiff. 

§  383.  Conditional  admissions  of  de- 
fendant at  the  time  of  ac- 
cident— Negligence. 

§  384.  Verbal  admission  to  be  re- 
ceived   with    great    caution. 


§  3S5.  Oral  admissions  received 
with  caution  and  viewed 
with  scrutiny — Regarded  as 
weak  evidence. 

§  3S6.  Admissions  of  husband  or 
wife  as  affecting  the  other. 

§  387.  Admissions  in  pleadings,  ob- 
viating necessity  of  proof. 

§  388.  Admissions  in  affidavit  for 
continuance. 

§  389.  Offer  to  compromise,  party 
not   bound   by. 

§  390.  Party  not  bound  by  state- 
ments of  his  own  witnesses. 


§  381.  Admissions  to  be  Taken  as  a  Whole  but  All  Parts  Not  to 
be  Regarded  with  Equal  Confidence.  (a)  The  admissions  of  a 
party,  when  proved,  are  evidence  against  him,  and,  although  such 
admissions  are  to  be  taken  together  as  a  whole,  the  jury  are  not 
bound  to  regard  all  parts  of  them  with  equal  confidence.  The  fact 
that  they  are  against  his  interest,  or  in  favor  of  it,  their  improba- 
bility, inconsistency,  contradiction  or  corroboration,  by  other  facts 
in  proof,  are  circumstances  proper  to  be  considered  by  the  jury  in 
determining  the  weight  to  be  given  to  such  admissions  or  to  the 
several  parts  thereof.1 

(b)  While  the  jury  are  not  required  to  give  equal  credence  to 
every  part  of  the  statements  or  admissions  of  the  defendant,  if  they 
believe,  from  the  evidence,  that  any  such  statements  or  admissions 
have  been  proved,  yet  the  whole  of  such  statements  should  be  care- 
fully weighed  and  considered  by  the  jury  in  the  light  of  all  the  sur- 
rounding circumstances  appearing  in  evidence — the  motives  which 
may  have  induced  it — its  consistency  with  the  other  evidence ;  and 
the  jury,  without  capriciously  or  causelessly  accepting  or  rejecting 
any  portion,  should  credit  such  parts  as  they  find  reason  for  believ- 
ing, and  reject  that  part  which  they  find  reason  for  disbelieving, 
in  view  of  all  the  facts  and  circumstances  proved  on  the  trial.2 

§  382.  Admissions  Against  Interest— Credibility  of  Plaintiff.  The 
plaintiff  was   a  witness   in   his  own   behalf.     The  jury   are   the  sole 


1— Riley  v.  State,  4  Tex.  Cr.  App.  Am.     Rep.      397;      Riley     v.      State, 

538.  supra;    1    Greenlf.    Ev.    §§    201,    202; 

2— Eiland    v.    State,    52    Ala.    322;  Best  on  Ev.   §   520. 
State  v.  Hollenscheit,  61  Mo.  32,  21 

315 


316  FORMS  OF  INSTRUCTIONS.  [§383. 

judges  of  his  credibility.  All  statements  made  by  him,  if  any,  which 
are  against  his  own  interest,  must  be  taken  as  true ;  but  his  state- 
ments in  his  own  favor  are  only  to  be  given  such  credit  as  the  jury, 
under  all  the  facts  and  circumstances  in  evidence,  deem  them  en- 
titled to.3 

§  383.  Conditional  Admissions  of  Defendant  at  Time  of  Accident — 
Negligence.  It  is  contended  upon  the  part  of  the  plaintiff  that  the 
defendant,  at  the  very  time  when  this  accident  occurred — when 
the  wheel  was  precipitated  into  the  pit,  and  broken  in  pieces — 
stated  that  it  was  due  to  his  own  carelessness,  and  that  he  would 
have  to  pay  for  it,  or  expected  to  pay  for  it.  If  at  that  time  the 
defendant  had  not  been  guilty  of  such  a  degree  of  negligence  upon 
his  part  as  to  render  him  liable  for  that  accident,  under  the  rules 
of  the  law  as  I  defined  them,  then  the  statement  upon  his  part  that 
he  was  liable  would  not,  in  and  of  itself,  create  any  liability.  His 
liability  is  not  dependent  upon  what  he  may  admit  or  upon  what 
he  may  deny;  but  it  is  dependent  upon  the  state  of  facts  upon  which 
due  care  or  of  any  care  is  predicated.  At  the  same  time  an  admis- 
sion of  fact  made  under  such  circumstances,  at  the  very  time  of 
the  happening  of  the  accident,  when  all  the  facts  are  fresh  and  open 
to  observation,  and  made  by  a  man  who  had  engaged  in  this  work, 
and  made  against  his  own  interest,  is  evidence  to  which  you  will 
give  such  weight,  as  an  admission  of  carelessness,  as,  in  your  judg- 
ment, it  may  be  entitled  to.  The  fact'  that  some  days  afterwards, 
after  he  had  taken  counsel  in  respect  to  his  legal  liability,  he  denied 
liability,  would  not  tend  to  lessen  the  force  of  the  admissions  of 
fact  that  he  made  at  the  time  as  evidence  of  how  he  then  considered 
the  work  had  been  done.  The  theory  of  the  defendant  is  that  he 
did  not  admit  at  the  time,  or  state,  that  it  was  due  to  his  careless- 
ness, but  that  he  did  state  at  the  time  that,  if  he  was  liable,  he 
would  pay  for  the  wheel.     The  form  in  which  he  makes  this  state- 

3 — Feary    v.     Met.     St.     Ry.    Co..  ones.     They  are  taken  as  true  for 

162  Mo.   75,    62   S.   W.   452.  the   purposes    of   the   case,   because 

"It  is  admitted,"   said   the  court,  no  man  would  make  them  if  they 

"that     a     similar     instruction     was  were   not   true.     If   confessions   are 

held    to    be    proper    in    a    criminal  enough  to   hang-  a  man  or  to  send 

case.       State     v.     Brooks,     99     Mo.  him   to  the  penitentiary  under  the 

137,  12  S.  W.  633.     But  it  is  insisted  criminal  statutes,  it  is  hard  to  see 

that  it  is  error  to  give  it  in  a  civil  why     admissions     should     not     be 

case.     No  good   reason   for   such   a  enough   to   conclude  him  in  a  civil 

distinction      occurs      to     the     legal  suit.     Green1..    Ev.    (16th  Ed.)    §   170 

mind.     Admissions   made   in    court,  says:      'The    rules    of    evidence    in 

in  the   testimony   of  a  party,   have  both  cases  are  the  same.'     In  Rod- 

the   same   effect  as  if  made   in   the  ney  v.  Railway  Co.,  127  Mo.  676,  30 

p'eadings,     and     admissions     in     a  S.    W.    150,    speaking    to    a    similar 

pleading  are  taken  as  true  for  the  instruction,     Macfarlane,     J.,     said: 

purposes      of      the      action,      citing  'He  is  conclusively  bound  by  every 

Shirts     v.     Overjohn,     60    Mo.     308;  declaration    and    admission    against 

Wright  v.   Town   of  Butler,  64  Mo.  his   interest   made   while   testifying 

165.       Statements     against     interest  before   the   court  and   jury.'     State 

Are     called      'admissions'      in     civil  v.  Brooks,  99  Mo.  142,  12  S.  W.  633, 

;a,ses,  and  'confessions'  in  criminal  and   cases  cited." 


§384.]  ADMISSIONS    AFFECTING    CREDIBILITY.  317 

merit  is  conditional.  If  he  were  liable,  then  he  would  answer  for 
the  damages,  but  if  it  should  turn  out,  in  view  of  all  the  facts 
and  the  law  of  the  case,  that  he  was  not  so  liable,  then  he  made 
no  promise  to  pay;  and,  in  view  of  the  form  in  which  he  claims  he 
made  the  statement,  it  is  not  evidence  against  him,  to  any  extent,  in 
the  absence  of  some  other  proof  of  a  distinct  liability  for  his  negli- 
gence.4 

§  384.  Verbal  Admissions  to  be  Received  with  Great  Caution, 
(a)  The  court  instincts  the  jury,  that  although  parol  proof  of  the 
verbal  admissions  of  a  party  to  a  suit,  when  it  appears  that  the  ad- 
missions were  understandingly  and  deliberately  made,  often  afford 
satisfactory  evidence.  Yet,  as  a  general  rule,  the  statements  of  a 
witness  as  to  the  verbal  admissions  of  a  party  should  be  received 
by  the  jury  with  great  caution,  as  that  kind  of  evidence  is  subject 
to  much  imperfection  and  mistake.  The  party  himself  may  have 
been  misinformed,  or  may  not  have  clearly  expressed  his  meaning. 
or  the  witness  may  have  misunderstood  him;  and  it  frequently  hap- 
pens that  the  witness,  by  unintentionally  altering  a  few  of  the  ex- 
pressions really  used,  gives  an  effect  to  the  statement  completely  at 
variance  with  what  the  party  did  actually  say.  But  it  is  the  province 
of  the  jury  to  weigh  such  evidence  and  give  it  the  consideration 
to  which  it  is  entitled,  in  view  of  all  the  other  evidence  in  the  case.5 

(b)  Evidence  of  oral  admissions  and  declarations  of  parties 
should  be  received  with  caution,  remembering  the  liability  of  the 
human  mind  to  err  in  remembering  the  statements  and  declarations 
of  parties.  When  the  declaration  of  a  party  is  brought  in,  we 
should  cautiously  receive  it.  Evidence  of  oral  admissions  and  oral 
contracts,  when  proven,  declarations  of  parties,  constitute  veiy 
strong  testimony,  of  course.  There  can't  be  anything  stronger 
when  established.  I  think  declarations  of  this  character  should  be 
cautiously  received.6 

(c)  The  court  instructs  the  jury,  that,  although  parol  proof  of 
the  verbal  admissions  of  a  party  to  a  suit,  when  it  appears  that  the 
admissions  were  understandingly  and  deliberately  made,  often  afford 
satisfactory  evidence,  yet,  as  a  general  rule,  the  statements  of  wit- 
nesses as  to  the  verbal  admissions  of  a  party  should  be  received  by 
the  jury  with  caution,  as  that  kind  of  evidence  is  subject  to  imper- 
fection and  mistake.  The  party  himself  may  have  been  misunder- 
stood, or  may  not  have  clearly  expressed  his  meaning,  or  the  wit- 
ness may  have  misunderstood  him;  and  it  frequently  happens  that 
a  witness  by  unintentionally  altering  a  few  expressions  really  used, 
gives  an  effect  to  the  statement  completely  at  variance  with  what  the 
party  did  actually  say.    But  it  is  the  province  of  the  jury  to  weigh 

4— Swift   El.    L.    Co.    v.    Grant,  90  Wis.    431;    Mauro    v.    Piatt,    62    111. 

Mich.   469,   51  N.   W.   539.  450.  But  see  §  3362. 

5 — Martin   v.    The   Town,    etc.,  40  6 — Thompson    v.    Purely,    45    Ore. 

la.     390;     Saveland     v.     Green,  40  197,   77  Pac.  113. 


318  FORMS  OF  INSTRUCTIONS.  [§  385. 

such  evidence,  and  give  it  the  consideration  to  which  it  is  entitled, 
in  view  of  all  other  evidence  in  the  case.7 

§  385.  Oral  Admissions  Received  with  Caution  and  Viewed  with 
Scrutiny — Regarded  as  Weak  Evidence,  (a)  You  are  instructed 
that  the  evidence  of  certain  witnesses  as  to  oral  admissions  or  state- 
ments of  defendant,  alleged  to  have  been  made  to  them,  should 
be  received  with  great  caution  and  viewed  with  scrutiny,  and  that 
in  considering  such  testimony  you  should  take  into  consideration 
the  surrounding  circumstances  and  surroundings  of  defendant,  and 
the  probability  or  improbability  of  his  having  made  such  statement.8 

(b)  As  to  those  statements  claimed  to  have  been  made  by  the 
plaintiff  as  to  the  cause  of  his  injury,  you  are  instructed  that  it  is 
proper  to  take  them  into  consideration  as  bearing  upon  his  credibility, 
and  also  upon  the  question  of  whether  or  not  the  injury  he  com- 
plained of  was  caused  in  the  manner  complained  of,  or  in  some  dif- 
ferent way.  In  this  connection  I  think  I  should  caution  you  that 
this  class  of  evidence — that  is,  statements  made  by  witnesses  as  of 
admissions  or  statements  made  by  the  plaintiff  to  them — should  be 
carefully  scrutinized;  not  because  witnesses  willfully  misstate  al- 
leged admissions  or  statements  they  may  have  heard,  but  because  of 
the  fact  that  we  know  so  well  by  experience  how  easy  it  is  to  be  mis- 
taken as  to  a  word  or  expression  uttered  by  a  third  person,  and  which 
we  are  undertaking  to  repeat  long  afterwards.  You  have  seen  it  ex- 
emplified in  this  case,  where  witnesses  misspeak  themselves,  and 
where  attorneys  differ  as  to  what  their  witness  has  actually  said 
here  upon  the  witness  stand.9 

(c)  Evidence  of  casual  statements  or  admissions  of  a  party, 
made  in  casual  conversations  to  disinterested  persons,  are  regarded 
by  law  as  very  weak  testimony,  owing  to  the  liability  of  the  witness 

7— Baker    v.    Borello    et    al.,    136        9— Hart  v.  Village  of  New  Haven, 

Cal.  160,  68  Pac.  591.  130    Mich.    181,    89    N.    W.    677.      Re- 

8 — People  v.  Hill,  1  Cal.  App.  414,  marks  by  court:     "It  is  urged  that 

82  Pac.  398,   (399).     The  court  said:  the  instruction  relating  to  the  tes- 

"Certain     oral     admissions     of    de-  timony     of     witnesses     offered     to 

fendant,  made  to  the  officers  soon  prove  admissions  was  injurious,  as 

after    his    arrest,    had    been    placed  it  indicated  distrust,  on  the  part  of 

in   evidence  through  the  testimony  the  court,  of  such  testimony.     The 

of    the    officers.      This    instruction  instruction     was     one     which     the 

must  be  understood  as  applying  to  authorities  justify,   but  justice  re- 

those  admissions,  and,  thus  under-  quires    care,    in    giving   instruction, 

stood,  we  cannot  see  how  it  can  be  lest  the  jurors  infer  that  it  reflects 

regarded   otherwise   than  as  favor-  an   opinion,    or  are  led   to   deny  to 

able  to  defendant.     If  it  were  con-  the    testimony    its    legitimate    and 

ceded  to  be  erroneous,  it  could  not  proper   weight.     Any   discussion   of 

have    harmed    the    defendant;    and  witnesses,   or  their  evidence,   espe- 

this   would   be   so,   even   if  it  were  cially  where  it  applies  to  individual 

directed    at    some    statement    that  witnesses,    or,    if  a   class,    to   those 

the       defendant      had      previously  upon  one  side  only,  should  be  dis- 

made,  and  upon  which  he  relied  at  passionate.     We  think  this  was  so 

the  trial   to   aid  his  defense,  citing  intended,    and   do   not  feel  justified 

People    v.    Wardrip,    141    Cal.    232,  in  concluding  that  the  jurors  were 

74  Pac.   744."  misled  by  it." 


§386.]  ADMISSIONS    AFFECTING    CREDIBILITY.  319 

to  misunderstand  or  forget  what  was  really  stated  or  intended  by 
the  party.     It  is  considered  to  be  the  weakest  kind  of  evidence.10 

§  386.  Admissions  of  Husband  or  Wife  as  Affecting  the  Other. 
Any  admissions  which  Mr.  B.  may  have  made,  not  in  the  presence 
of  Mrs.  B.,  cannot  affect  her  rights  to  maintain  her  action,  unless  you 
find  such  admissions  were  true.  His  evidence  and  admissions  are  to 
be  treated  the  same  as  the  evidence  and  admissions  of  any  other 
witness  on  the  case,  so  far  as  her  rights  3ra  concerned.11 

§  387.  Admissions  in  Pleadings,  Obviating  Necessity  of  Proof, 
(a)  The  court  instructs  the  jury  that  the  affidavit  of  the  defendant 
denying  the  execution  of  the  note  is  not  evidence,  and  they  have  no 
right  to  consider  it  in  determining  whether  the  defendant  executed 
and  delivered  the  note  in  evidence.12 

(b)  The  legal  effect  of  this  admission  is  to  relieve  the  plaintiff 
of  the  necessity  of  making  any  proof  with  reference  to  the  matters 
alleged  in  his  petition,  and  to  place  upon  the  defendants  the  bur- 
den of  establishing,  by  the  preponderance  of  the  evidence,  the  facts 
set  forth  in  their  answer,  or  such  facts  as  might  be  necessary  to 
constitute  a  defense  in  whole  or  in  part,  and  all  other  questions 
hereinafter  propounded  to  you  by  the  court  which  can  be  answered 
"Yes"  or  "No"  will  be  answered  by  you  in  the  negative,  unless 
you  believe  from  a  preponderance  of  the  evidence  deemed  credible 
by  you  that  same  should  be  answered  in  the  affirmative.13 

10 — Grotjan  v.  Rice,  124  "Wis.  253,  another  party   whose   rights   or  li- 

102    N.    W.    551.      "That   was    appli-  abilities  depend   on   the  same  facts 

cable    to    the    evidence    which    the  is  so  great  that  a  court  will  order 

jury  had  to  deal  with.     There  was  separate     trials,      when     otherwise 

considerable  evidence  of  the  nature  their  cases  would  be  tried  together, 

suggested  in  the  request.     Such  re-  When   cases   of  the   kind   are  tried 

quest   was   good    law   according   to  together,   the  jury  should  be  prop- 

the  repeated  decisions  of  this  court,  erly    instructed,    so    that    the    rules 

and   therefore  it   should  have  been  of  evidence  may  be  applied  for  and 

given  to  the  jury,  Haven  v.  Mark-  against   each   other,   as   if  but   one 

strum,    67   Wis.    493,    30    N.    W.    720;  case   was   on   trial.     The  above  in- 

Emery  et  al  v.  State,  101  Wis.  627,  struction   requested  upon   this  part 

648,   78  N.  W.  145."  of   the    case   was   correct." 

11— Broderick    v.     Higginson,     169        12— Hunter  v.   Harris,  131  111.  482, 

Mass.  482,  46  N.  E.  269,  61  Am.  St.  23     N.     E.     626.       The     court     said: 

Rep.   296.     "But   to  prove  the   facts  "The    only    effect    of    the    affidavit 

relied  on  by  him,  the  admission  of  filed    with    the    pleas    was    to    cast 

the  husband  was  competent  in  the  the    burden    on     the    plaintiffs    to 

husband's     case     and     not    in    the  prove  the  execution  of  the  note  as 

wife's.     If  her  case  was  to  be  tried  at    common    law.      The    defendant 

alone,  it  is  clear  that  her  husband's  was  not  a  competent  witness  in  his 

admissions    would    not    be    compe-  own    behalf,    the    plaintiff   suing   in 

tont.     They  were  not  made  compe-  a      representative      capacity.        In 

tent   against   her   by  the  fact   that  practice  it  is  doubtless  difficult,   if 

for  convenience  his  case  was  being  not  impossible,  to  prevent  the  jury 

tried   at  the  same  time  with  hers,  from    knowing    the    defendant    had 

It   was   the   duty   of   the   presiding  denied  under  oath  the  execution  of 

judge    to    instruct    the    jury    that  the    instrument,    and    the    instruc- 

these   admissions   might  be   consid-  tion    was    proper    as    a    matter    of 

ered   in   his   case,   but   not  in   hers,  precaution,  and  its  giving  was  not 

Sometimes    the    risk    that    a    party  error." 

who  has  made  no  admissions  may         13 — Walker     v.     Dickey.     —    Tex. 

be  prejudiced  by  the  admissions  of  Civ.   App.  — ,  98  S.   W.   658. 


320  FORMS  OF  INSTRUCTIONS.  [§  388. 

§  388.  Admissions  in  Affidavit  for  Continuance.  The  court  in- 
structs the  jury,  that  the  plaintiff,  by  admitting  the  statements  con- 
tained in  the  affidavit  for  a  continuance,  which  were  read  in  evidence 
before  you,  simply  admits  that  if  the  said  witness  A.  B.  were 
present  here  as  a  witness  testifying  in  this  case,  he  would  testify 
as  stated  in  the  affidavit;  but  the  plaintiff  does  not  admit  that  such 
testimony  would  be  the  truth;  he  has  the  same  right  to  contradict 
such  admitted  testimony  as  though  the  witness  were  present  and  had 
testified  to  the  same  matter  on  the  witness  stand.14 

§  389.  Offer  to  Compromise — Party  not  Bound  by.  The  jury  are 
instructed,  that  parties  have  a  right  to  get  together  and  buy  their 
peace,  by  making  concessions  to  each  other;  and  any  offer  or  propo- 
sition of  settlement,  if  made  for  that  purpose  merely,  will  not  be 
binding  upon  the  party  as  an  admission  of  the  amount  due  or 
claimed  at  the  time.15 

§  390.  Party  not  Bound  by  Statements  of  His  Own  Witnesses. 
The  court  instructs  the  jury,  that  when  a  party  offers  a  witness 
and  places  him  on  the  witness  stand  he  thereby  represents  him  in 
general  to  be  worthy  of  belief;  but  such  party  is  not  thereby  pre- 
cluded from  proving  the  truth  of  any  particular  fact  by  any  other 
competent  testimony,  in  direct  contradiction  to  what  such  witness 
may  have  testified  to;  and  this  is  true  not  only  when  it  appears 
that  the  witness  was  mistaken,  but  also  when  the  evidence  may  col- 
laterally have  the  effect  of  showing  that  he  was  generally  unworthy 
of  belief.16 

"Evidence  was  introduced,"  said  taken  as  a  whole,  however,  sup- 
the  court,  "by  the  parties  re-  ports  the  finding-  of  the  jury,  and 
spectively  tending  to, establish  and  it  is  clear  that  they  were  not  mis- 
to  disprove  appellant's  defense  led  by  the  charge  upon  the  bur- 
based  upon  the  alleged  contract  of  den  of  proof." 

April  10,  1895,  and  the  occasion  did  14— U.    S.    Ins.    Co.    v.    Wright,    33 

not    arise    for    a    declaration    upon  Ohio    St.    533. 

whom   the  burden   of  proof  rested.  15 — Barker    v.     Bushnell,     75    111. 

Stocksbury    v.    Swan,    85    Tex.    566,  220;    Payne  v.   Rd.   Co.,   40  N.  Y.  S. 

22   S.   W.    963.     It  was   sufficient   to  Ct.    8;    Plummer    v.    Carrier,    52    N. 

instruct   the   jury   that   the   admis-  H.  287;   Gay  v.   Bates,  99  Mass.  263. 

sions  of  appellants  relieved   appel-  16 — Skipper  v.  Georgia,  59  Ga.  63; 

lee  of  the  necessity  of  proving  the  Warren     v.     Gabriel,     51    Ala.     235; 

allegations  of  his  petition,  and  that  Gibbs     v.     Hayler,     41     N.     Y.     191; 

the   issues   should   be   decided   upon  Blackburn  v.  Com.,  12  Bush.   (Ky.) 

a,    preponderance    of    the    evidence  181;    Becker  v.  Koch,  104  N.   Y.  394, 

deemed   credible  by  the  jury.     The  10   N.    E.    701. 
preponderance      of     the     evidence, 


CHAPTER  XXII. 


EXPERT  TESTIMONY. 


See   Erroneous   Instructions,  same  chapter  head,  Vol.  III. 


§  391.  Expert   testimony — Definition. 

§  392.  Reason  for  expert  testimony 
— Valueless  when  not  sup- 
ported by  evidence  or  if  any 
facts  in  the  hypothetical 
question  are  untrue. 

§  393.  Expert  testimony  subject  to 
same  rules  of  credit  or  dis- 
credit as  other  testimony — 
Does  not  establish  truth  of 
the  facts  upon  which  they 
are  based. 


§  394.  Professional  standing  of  wit- 
ness to  be  taken  into  con- 
sideration— Testimony  not 
binding — Weight  to  be  giv- 
en. 

§  395.  Expert  testimony  not  to  be 
considered  to  entire  exclu- 
sion of  other  testimony  but 
in  connection — Must  decide 
from  all  the  evidence. 

§  396.  Jury  judges  of  expert  testi- 
mony same  as  any  other — 
Opinions   merely   advisory. 

§  397.  Hypothetical   questions. 


§  391.  Expert  Testimony — Definition.  An  expert  witness  is  one 
who  is  skilled  in  any  particular  art,  trade  or  profession,  being  pos- 
sessed of  peculiar  knowledge  concerning  the  same,  acquired  by  study, 
observation,  and  practice.  Expert  testimony  is  the  opinion  of  such 
a  witness,  based  upon  the  facts  in  the  case  as  shown  by  the  evidence, 
but  it  does  not  even  tend  to  prove  any  fact  upon  which  it  is  based, 
and,  before  you  can  give  any  weight  whatever  to  expert  testimony, 
you  must  first  find  from  the  evidence  that  the  facts  upon  which  it  is 
based  are  true.  The  jury  is  not  bound  by  expert  testimony,  but  it 
should  be  considered  by  you  in  connection  with  the  other  evidence 
in  the  case.1 


1— Smith  v.  Mo.  &  K.  Tel.  Co., 
113  Mo.  App.  429,  87  S.  W.  71,  (75). 
"The  words  'but  it  does  not  even 
tend  to  prove  any  fact  upon  which 
it  is  based,  and,  before  you  can 
give  any  weight  whatever  to  ex- 
pert testimony,  you  must  first  find 
from  the  evidence  that  the  facts 
upon  which  it  is  based  are  true' 
are  objected  to  as  containing  an 
improper  definition  and  prejudicial 
direction,  the  harmfulness  of 
which,  it  is  urged,  is  emphasized 
by  the  fact  that  some  of  defend- 
ant's witnesses  from  whom  opinion 
evidence  was  elicited  also  gave  tes- 
timony upon  basic  facts.  General- 
ly speaking,  the  opinion  of  a  wit- 
ness who,  by  reason  of  his  train- 
ing and  experience  in  a  given  art, 
profession,  or  trade,  possesses  su- 
perior knowledge  to  that  enjoyed 
bv  others,  is  received  for  the  pur- 

21  321 


pose  of  aiding  the  triers  of  fact 
in  reaching  a  conclusion  upon  an 
ultimate  fact,  not  susceptible  of 
direct  proof,  but  deducible  from 
proven  facts.  For  the  purpose  of 
obtaining  such  opinion,  the  ques- 
tioner is  permitted  to  assume  as 
proven  the  basic  facts  he  is  at- 
tempting to  establish,  and  which 
are  usually  vital  issues  in  the  case. 
The  opinion,  therefore,  is  a  de- 
pendent, a  sort  of  superstructure 
imposed  upon  an  hypothetical 
foundation,  and  stands  or  falls 
with  its  supporting  facts.  Ob- 
viously, a  conclusion  cannot  serve 
to  strengthen  the  premises  from 
which  it  arises.  Therefore  the 
statement  that  such  evidence  'does 
not  even  tend  to  prove  any  fact 
upon  which  it  is  based'  is  correct 
in   principle." 


322  FORMS  OF  INSTRUCTIONS.  [§  392. 

§  392.  Reason  for  Expert  Testimony — Valueless  When  not  Sup- 
ported by  Evidence  or  if  Any  Facts  in  the  Hypothetical  Question 
are  Untrue.  The  expert  witnesses  are  called  to  testify,  not  because 
they  were  present,  and  witnessed  any  facts  which  they  came  here 
to  tell  you  about,  but  because  they  are  supposed  to  have  given  this 
particular  branch  of  science  more  study  than  you  or  I,  or  the  at- 
torneys, and  hence  they  come  here  to  give  you  their  judgment,  based 
upon  certain  facts  which  are  supposed  to  be  proven  from  the  evi- 
dence; and,  upon  that  statement  of  those  facts,  they  give  you  their 
opinion  or  their  judgment.  Now,  gentlemen,  that  evidence,  in  the 
end,  is  subject  to  your  supervision  and  to  your  judgment.  They 
give  you  their  opinion,  as  I  have  said  before,  upon  a  supposed  state 
of  facts, — supposing  certain  things  to  exist  as  shown  from  the  evi- 
dence. Now,  it  becomes  important  for  the  jury,  just  as  far  as  you 
can,  to  look  into  evidence,  and  determine  whether  the  facts  which  are 
supposed  to  exist  in  the  hypothetical  question  that  is  asked  of  the 
doctors  do  actually  exist, — whether  there  is  any  evidence  upon  which 
to  base  them  in  this  case,  and  whether  the  fact  supposed  to  exist  be 
true  or  not — because  if  one  fact  supposed  to  be  true,  included  in  the 
question,  is  untrue,  not  supported  by  the  evidence,  then  the  opinion  of 
the  doctor  would  be  valueless.  He  gives  his  opinion  upon  a  certain 
state  of  facts  supposed  to  be  true,  and  we  don't  know  what  his 
opinion  would  be  if  one  of  those  facts  were  withdrawn.2 

§  393.  Expert  Testimony  Subject  to  Same  Rules  of  Credit  or  Dis- 
credit as  Other  Testimony — Does  Not  Establish  Truth  of  the  Facts 
Upon  Which  They  are  Based,  (a)  The  testimony  given  by  the  physi- 
cian and  expert  who  testified  in  this  case  is  to  be  taken  and  consid- 
ered by  the  jury  like  the  evidence  of  the  other  witnesses  who  testi- 
fied in  the  cause;  and  the  opinions  on  questions  of  insanity,  which 
have  been  given  by  the  medical  expert,  are  subject  to  the  same 
rules  of  credit  or  discredit  as  the  testimony  of  the  other  witnesses, 
and  are  not  conclusive  on  the  jury.  These  opinions  neither  establish  nor 
tend  to  establish  the  truth  of  the  facts  upon  which  they  are  based. 
Whether  the  matters  testified  to  by  the  witness  in  the  cause  are 
facts,  are  true  or  false,  is  to  be  determined  by  the  jury  alone;  and 
you  must  also  determine  whether  the  facts  and  matters  stated  and 
submitted  to  experts  in  the  hypothetical  questions  are  true  in  fact 
and  have  been  proven  in  this  case.3 

(b)  The  opinion  of  experts  who  have  testified  in  this  cause  is 
testimony  which  the  jury  should  consider  and  examine  in  connection 
with  all  the  other  testimony  in  this  case,  subject  to  the  same  rules  of 
credit  and  disbelief  as  the  testimony  of  other  witnesses.4 

2— People  v.   Foley,   64   Mich.  148,        4— Longan    v.    Weltmer,    180    Mo. 
SI   N.   W.    94,    (98).  322,   79   S.   W.   655,   657,   64   L.   R.   A. 

3— State    v.    Privitt,    175   Mo,  207,     969. 
75    S.    W.    457,    (461). 


394.] 


EXPERT  TESTIMONY. 


323 


§  394.  Professional  Standing  of  Witness  to  be  Taken  into  Con- 
sideration— Testimony  Not  Binding — Weight  to  be  Given,  (a)  The 
court  instructs  the  jury  that  they  are  not  bound  by  the  testimony 
of  the  expert  witnesses,  but  in  considering  such  testimony  the  pro- 
fessional standing  and  experience  of  such  witnesses  must  be  taken 
into  consideration  in  arriving  at  a  verdict.5 

(b)  The  court  instructs  the  jury  that  they  are  not  bound  to  ac- 
cept as  true  the  opinions  of  the  doctors  who  have  testified  as  experts 
in  this  case,  but  may  give  said  opinions  and  each  of  them  such  weight 
as  the  jury  may  deem  them  entitled  to,  or  altogether  disregard  such 
opinions,  in  so  far  as  the  jury,  from  all  the  facts  and  circumstances 
in  evidence,  may  believe  such  opinions  unreasonable.0 

§  395.  Expert  Testimony  Not  to  Be  Considered  to  Entire  Exclu- 
sion of  Other  Testimony,  But  in  Connection — Must  Decide  from  all 
the  Evidence,  (a)  The  opinions  of  medical  experts  are  to  be  con- 
sidered by  you  in  connection  with  all  the  other  evidence  in  the 
cause,  but  you  are  not  bound  to  act  upon  them  to  the  entire  exclu- 
sion of  other  testimony.  Taking  into  consideration  these  opinions, 
and  giving  them  just  and  proper  weight,  you  are  to  determine  for 
yourselves,  from  the  whole  evidence,  whether  the  defendant  was  or 


5 — Cosgrove  v.  Burton,  104  Mo. 
App.  698,  78  S.  W.  667.  "In  Hoy- 
berg  v.  Henske,  153  Mo.  63,  55  S. 
W.  83,  it  was  held  that  'juries  are 
in  nowise  bound  to  accept  the 
opinions  of  expert  witnesses,  if 
they  deem  them  unreasonable; 
and  an  instruction  in  a  civil  action 
which  so  states  is  not  error.'  In 
Cosgrove  v.  Leonard,  134  Mo.  419, 
33  S.  W.  777,  35  S.  W.  1137,  the  ver- 
dict was  founded  wholly  as  to  the 
value  of  plaintiff's  services  upon 
the  testimony  of  expert  witnesses. 
The  court  held  it  was  sufficient  to 
support  a  verdict.  In  Hull  v.  St. 
Louis,  138  Mo.  625,  40  S.  W.  89,  42 
L.  R.  A.  753,  which  followed  the 
holding  of  the  court  in  St.  Louis 
v.  Ranken.  95  Mo.  189,  8  S.  W.  249, 
it  was  held  proper  to  instruct  the 
jury  to  give  to  the  opinions  of  ex- 
pert witnesses  the  weight  to  which 
they  believed  they  were  entitled. 
It  is  the  opinion  of  some  jurists 
that  an  instruction  that  calls  at- 
tention to  this  testimony  of  wit- 
nesses as  a  class  ought  never  to 
be  given.  But,  as  such  is  now 
the  law,  and  as  juries  may  believe 
or  disbelieve  them  at  their  own 
will,  it  certainly  would  be  appro- 
priate for  them  to  take  into  con- 
sideration their  professional  stand- 
ing and  experience.  The  trial  court 
eught,  at  least  in  an  advisory  ca- 
pacity,  be   authorized   to  lay  down 


some  rule  for  the  guidance  of  the 
jury  in  passing  upon  the  credibil- 
ity of  such  witnesses.  And  if  the 
opinions  of  such  witnesses  are  suf- 
ficient, as  held  in  Cosgrove  v. 
Leonard,  supra,  to  support  a  ver- 
dict, it  was  certainly  not  error  to 
instruct  the  jury  that  in  making  up 
their  verdict  they  must  take  into 
consideration  their  standing  and 
experience  in  their  profession.  In 
fact  it  is  the  duty  of  jurors  in  all 
cases  not  only  to  take  into  con- 
sideration the  credibility  of  wit- 
nesses, but  also  every  other  cir- 
cumstance tending  to  weaken  or 
strengthen  their  testimony.  And 
as  the  law  is  that  the  courts  are 
authorized  to  instruct  juries  that 
they  may  disregard  the  evidence 
of  expert  witnesses,  there  can  be 
no  good  reason  assigned  why 
jurors  should  be  left  without  any 
direction  whatever  m  weighing 
the  force  of  such  evidence." 

6 — In  Day  v.  Dry  Goods  Co.,  114 
Mo.  App.  479,  89  S.  W.  903,  the 
court  said:  "The  instruction  is 
correct  in  every  particular,  except 
the  last  word  'reasonable.'  It  is 
a  clerical  error,  as  every  one  would, 
from  the  sense  of  the  instruction, 
come  to  the  conclusion  that  'un- 
reasonable' was  meant.  Such  ver- 
bal criticisms  are  usually  rejected 
by  the  courts.  Shortel  v.  City  of 
St.    Joseph,    104    Mo.    114,    16    S.    W. 


324 


FORMS  OF  INSTRUCTIONS. 


[§  395. 


was  not  of  sound  mind,  giving  him  the  benefit  of  a  reasonable  doubt, 
if  any  such  arises  from  the  evidence.7 

(b)  The  court  further  instructs  the  jury  that  the  opinions  of  the 
experts  are  to  be  considered  by  you  in  connection  with  all  the 
other  evidence  in  the  case.  You  are  not  to  act  upon  them  to  the 
entire  exclusion  of  other  testimony.  You  are  to  apply  the  same 
general  rules  to  the  testimony  of  experts  that  are  applicable  to  the 
testimony  of  other  witnesses,  in  determining  its  weight.  Taking  into 
consideration  the  opinions  of  the  experts,  and  giving  them  just 
weight,  you  are  to  determine  for  yourselves,  from  the  whole  evi- 
dence, whether  the  defendant  is  guilty,  as  she  stands  charged,  beyond 
a  reasonable  doubt.8 

(c)  The  opinions  of  the  medical  experts  are  to  be  considered  by 
you  in  connection  with  all  the  other  evidence  in  the  case,  but  you  are 
not  bound  to  act  upon  them  to  the  exclusion  of  all  other  evidence. 
Taking  into  consideration  these  opinions  and  giving  them  just  weight, 
you  are  to  determine  for  yourselves  from  the  whole  evidence  whether 
the  accused  was,  or  was  not,  of  sound  mind,  yielding  him  the  benefit 
of  a  reasonable  doubt,  if  any  such  doubt  arises.9 


397,  24  Am.  St.  Rep.  317;  Eichorn 
v.  Mo.  Pac.  Ry  Co.  130  Mo.  575,  32 
S.    W.    993." 

7— Wagner  v.  State,  116  Ind.  181, 
18  N.  E.  833.  "We  are  unable  to 
see  in  what  respect  that  instruc- 
tion invaded  the  province  of  the 
jury,  or  threw  discredit  upon  the 
testimony  of  the  expert  witnesses. 
It  seems  to  us  that  if  the  instruc- 
tion was  faulty  at  all,  the  com- 
plaint should  come,  from  the  state. 
Such  a  fault,  if  any,  could  by  no 
possibility  affect  appellant  injur- 
iously. It  is  not  necessary,  how- 
ever, to  extend  the  discussion  of 
that  instruction  as  it  seems  to 
have  been  copied  from  an  instruc- 
tion also  approved  in  the  case  of 
Goodwin  v.   State,   96  Ind.   550." 

Cosgrove  v.  Leonard,  134  Mo. 
419,  33  S.  W.  777;  Hull  v.  St.  Louis, 
138  Mo.  625,  40  S.  W.  89,  42  L.  R.  A. 
753;  Hoyberg  v.  Henske,  153  Mo. 
63,  55  S.  W.  83;  Longan  v.  Welt- 
ner,  180  Mo.  322,  79  S.  W.  655,  64  L. 
R.  A.  969;  Markey  v.  L.  &  M.  R. 
R.   Co.,   185  Mo.  348,    84   S.  W.   61. 

8— Epps  v.  State,  102  Ind.  539,  1 
N.  E.  491.  In  this  case  the  court 
said:  "It  is  complained  that  this 
instruction  told  the  jury  in  effect 
that  they  might  consider  the  tc  sti- 
mony  of  the  experts  to  the  partial 
exclusion  of  other  evidence,  and 
that  it  was  error  to  so  instruct  the 
jury.  It  does  not  necessarily  fol- 
low that  the  instruction  was  erro- 
neous,   conceding   the    construction 


of  it  contended  for.  But,  however 
that  may  be,  we  see  no  objection 
to  the  instruction  as  a  whole,  and 
can  only  regard  the  criticism  made 
upon  it  as  an  impracticable  one. 
Goodwin  v.   State,  96  Ind.   550." 

9— Goodwin  v.  The  State,  96  Ind. 
555,  (561).  In  approving  the  in- 
struction the  court  said:  "The  ob- 
jection urged  against  this  instruc- 
tion is  that  it  informs  the  jury 
that  the  testimony  of  experts  is 
not  entitled  to  greater  weight  than 
that  of  non-expert  witnesses.  We 
do  not  think  the  argument  is  cor- 
rect, either  in  point  of  fact  or  law. 
The  instruction  does  not  as  coun- 
sel assume  direct  the  jury  to  act 
upon  one  class  of  evidence  to  the 
exclusion  of  others,  but  in  plain 
terms  instructs  them  to  consider 
the  whole  evidence.  But  counsel's 
theory  of  the  law  is  radically 
wrong.  It  would  have  been  error 
for  the  court  to  tell  the  jury  that 
the  expert  witnesses  speaking 
merely  as  to  matters  of  opinion 
and  basing  their  opinions  on  hypo- 
thetical questions  were  entitled  to 
1  lore  credit  than  witnesses  who 
'....  1  knowledge  of  facts  gathered 
fro:n  personal  observation,  and 
who  based  their  opinions  on  actual 
facts,  and  not  on  supposed  cases. 
As  both  kinds  of  evidence  are  com- 
petent, the  jury  are  charged  with 
the  duty  of  determining  the  weight 
and  effect  of  the  evidence  in  each 
particular  case,  and  the  court  has 


§  395.]  EXPERT  TESTIMONY.  325 

(d)  The  court  has  allowed  in  this  case  the  introduction  of  evi- 
dence  known  as  expert  testimony,  and  has  allowed  expert  witnesses 
to  testify  as  to  what,  in  their  opinion,  was  the  cause  of  death  of  T. 
But,  gentlemen  of  the  jury,  their  opinion  so  expressed  is  not  bind- 
ing or  conclusive  on  you.  It  is  for  you  to  determine  from  all  the 
facts  and  circumstances  developed  in  this  case,  including  the  opinion 
of  said  expert  witnesses,  what  in  fact  was  the  cause  of  the  death 
of  said  T.  And  you  are  to  give  to  their  opinion  such  weight  and 
credit  as  you  shall  deem  it  entitled  to  after  taking  into  considera- 
tion their  knowledge  and  skill  as  disclosed  in  their  testimony,  and 
all  the  other  facts  and  circumstances  shown  and  developed  in  their 
testimony.10 

(e)  The  weight  to  be  attached  to  the  expert  testimony  is  also  a 
question  for  you  to  determine.  If  you  reach  a  given  conclusion, 
from  the  consideration  of  the  whole  evidence,  including  as  well  the 
opinions  of  the  experts,  as  substantive  facts  deposed  to  by  witnesses, 
whether  experts  or  non-experts,  you  are  not  to  surrender  your  con- 
clusion, which  is  your  opinion  on  the  whole  evidence,  because  the 
opinions  of  the  experts  do  not  coincide  with  yours,  but  lead  to  a 
different  result. 

To  express  the  same  thought  in  different  language,  you  are  not  to 
substitute  for  your  own  views  of  what  is  established  by  the  whole 
evidence, — substantive  and  opinion,  expert  and  non-expert — the  opin- 
ion of  expert  witnesses ;  for  to  thus  surrender  your  own  conclusions, 
and  to  substitute  instead  the  conclusions  of  witnesses  as  to  what 
has  been  proved  by  the  evidence,  would  be  to  make  such  witnesses, 
and  not  the  jury  at  all,  the  triers  of  the  cause.11 

no    right   to    charge   them    to    give  on  a  given  point  it  is   the  general 

preference  to  the  one  class  or  the  rule  that  the  jury  is  not  bound  to 

other.     Tatum  v.  Mohr,  21  Ark.  349,  treat  the  testimony  of  any  witness 

99  Am.  Dec.  701;    Chandler  v.  Bar-  as    conclusive,    no    matter    whether 

rett,  21  La.  Ann.  58."  he  was  an  expert  or  a  non-expert; 

10 — Morrow      v.      Nat.      M.      Ace.  and    this    is    in    substance    the    in- 

Assn.,    125    Iowa    633,     101     N.     W.  struction  given.    In  Brush  v.  Smith, 

468,    (470).  Ill  Iowa  217,  82  N.  W.  467,  the  trial 

"There  was  no  error,"  said  the  court  did,  in  fact,  belittle  the  ex- 
court,  "in  giving  this  instruction,  pert  testimony  by  saying  to  the 
It  announced  the  general  rule,  as  jury  that  it  ought  never  to  be  al- 
we  understand  it,  and  the  rule  of  lowed  to  overcome  clear  and  well 
this  court.  Arndt  v.  Hosford,  82  established  facts,  and  that  it  was 
Iowa  499,  48  N.  W.  981;  Aetna  Life  the  lowest  order  of  evidence — an 
Ins.  Co.  v.  Ward,  140  U.  S.  76,  11  entirely  different  instruction  from 
Sup.  Ct.  720,  35  L.  Ed.  371.  It  did  the  one  under  consideration." 
not  in  effect  even  belittle  the  testi-  11— Mo  rat  sky  v.  Wirth,  74  Minn, 
mony  of  the  physicians,  but  told  146,  76  N.  W.  1032.  "The  instruc- 
the  jury  that  it  was  not  bound  to  tions,  however,  are  not  fairly  sus- 
treat  their  evidence  as  to  the  cause  ceptible  of  the  construction  coun- 
of  death  conclusive,  and  under  the  sel  seeks  to  give  them.  They  were 
record,  this  was  true.  If  there  had  to  the  effect  that  the  weight  to  be 
been  no  conflict  on  this  question,  attached  to  expert  testimony  was 
the  jury  would  have  had  no  right  a  question  for  the  jury,  and  that 
to  disregard  this  evidence  and  find  their  conclusion  as  to  any  question 
independently  of  it.  But  when  of  fact  was  to  be  based  upon  a 
there  is  a  conflict  in  the   evidence  consideration    of    the    whole    testi- 


32: 


FORMS  OF  INSTRUCTIONS. 


;§396. 


§  396.  Jury  Judges  of  Expert  Testimony  Same  as  any  Other — 
Opinions  Merely  Advisory,  (a)  The  opinions  of  expert  witnesses 
are  entitled  to  such  weight  as  you  deem  proper  to  give  them.  You 
may  accept  or  reject  such  opinions,  as  you  may  accept  as  true,  or 
reject  as  false,  any  other  facts  in  the  case.12 

(b)  The  jury  are  instructed  that  the  opinions  of  the  witnesses 
as  experts  are  merely  advisory,  and  not  binding  on  the  jury,  and 
the  jury  should  accord  to  them  such  weight  as  they  believe  from  all 
the  facts  and  circumstances  in  evidence,  the  same  are  entitled  to 
receive.13 

§  397.  Hypothetical  Questions  Defined.  A  hypothetical  question 
is  a  question  which  assumes  a  certain  condition  of  things  to  be 
true,  a  certain  number  of  facts  to  be  proved  or  to  be  disproved, 
and  calls  upon  the  witness  to  assume  all  the  material  facts  stated 
to  be  true  and  express  his  opinion  as  to  a  certain  condition.  The 
witness  to  whom  the  hypothetical  question  is  addressed  assumes 
them  to  be  true,  and  bases  his  answer  upon  the  assumed  case.  The 
opinion  of  the  witness  must,  therefore,  be  brought  to  the  test  of  the 
facts  in  order  that  you  may  judge  what  weight  the  opinion  is  en- 
titled to.14 


mony,  expert  and  non-expert,  and 
that  they  were  not  to  surrender 
their  conclusion  so  formed  because 
the  opinion  of  the  experts  did  not 
coincide  with  such  conclusion;  that 
to  do  otherwise,  and  accept  the 
opinion  of  the  experts  as  to  what 
had  been  proven  by  the  evidence, 
would  make  them,  and  not  the 
jury,  the  triers  of  the  cause.  The 
ordinary  function  of  experts  is  to 
assist,  by  their  superior  knowledge, 
the  jury  in  reaching  a  correct  con- 
clusion from  the  facts  in  testi- 
mony before  them.  Their  opinions 
are  not,  as  a  rule,  conclusive  upon 
the  jury,  but  mere  items  of  evi- 
dence for  the  consideration  of  the 
jury.  But  in  a  case  where  the  evi- 
dence, and  the  facts  to  be  deduced 
therefrom,  are  undisputed,  and  the 
case  concerns  a  matter  of  science, 
or  specialized  art  or  other  matter, 
of  which  a  layman  can  have  no 
knowledge,  the  jury  must  base 
their  conclusion  upon  the  testi- 
mony of  the  experts.  In  such  a 
.case  it  may  be  conceded  that  it 
would  be  error  to  give  the  instruc- 
tions complained  of.  Such,  how- 
ever, is  not  the  case,  wherein 
both  the  expert  and  substantive 
evidence  was  conflicting." 

12— State  v.  Lyons,  139  La.  959,  37 
So.  890  (904).  "The  jurors  were 
the  sole  judges  of  the  credibility  of 


the  witnesses,  and  it  was  the  duty 
of  the  judge  to  so  inform  them." 

13 — Markey  v.  Louisiana  &  M. 
R.  R.  Co.,  185  Mo.  348,  84  S.  W.  61. 
"Appellant  contends  that  was  er- 
ror. In  Hoyberg  v.  Henske,  153 
Mo.  63,  55  S.  W.  83,  this  court  de- 
cided that  such  an  instruction  was 
correct,  even  in  that  case,  where 
the  expert  testimony  was  that  of 
learned  witnesses  in  reference  to 
an  abstruse  scientific  subject.  This 
instruction,  therefore,  must  be  held 
to  correctly  state  the  law  on  that 
subject,  and  the  writer  of  this  opin- 
ion must  bow  to  it,  although  he 
dissented  with  all  his  might  from 
the  decision  in  that  case."  Criti- 
cized in  Buckalen  v.  Quincy  O.  & 
K.  C.  Ry.  Co.,  107  Mo.  App.  575, 
81    S.    W.    1176. 

14 — In  re  Dolbeer's  Estate,  —  Cal. 
— ,  86  Pac.  695  (700).  'Appellant  con- 
cedes that  his  instruction  'may  be 
true  as  an  abstract  proposition  of 
law,'  but  insists  that  its  tendency 
was  to  discredit  the  testimony  of 
the  expert  physicians  whom  he  had 
called.  This  objection  is  untenable, 
and  the  reasons  which  have  been 
already  given  answer  contestant's 
exception  to  the  court's  refusal  to 
give  certain  instructions  proposed 
by  him  upon  the  subject  of  expert 
testimony." 


CHAPTER  XXIII. 


JURY— DUTIES  AND  POWERS. 

See   Erroneous   Instructions,  same  chapter  head,  Vol.  III. 


§  398.  Jury — Duties  and  powers — 
Must  be  oblivious  to  outside 
pressure  or  suggestions. 

§  399.  Object  of  juries  to  obtain 
the  truth — Law  knows  no 
creed,  condition,  color,  or 
nationality. 

§  400.  Can  not  resort  to  conjecture 
and  possibilities,  supposi- 
tions  or   imaginings. 

§  401.  Jury  must  be  governed  by  the 
instructions  above  as  to  the 
law. 

§  402.  Jury  to  look  to  the  evidence 
for  the  facts  and  to  the 
court  for  the  law. 

§  403.  Duty  of  jury  to  be  governed 
by  the  law  and  the  evi- 
dence. 

§  404.  Jury  are  to  be  guided  by  evi- 
dence not  to  consider  cost 
of  trial,  not  to  keep  cases 
out  of  court  by  their  ver- 
dicts. 

§  405.  Statements  of  counsel  sup- 
ported by  the  law,  evidence 
should   not   be   considered. 

§  406.  Emphasizing  importance  of 
the  case  to  the  jury — Im- 
portance of  their  duties. 


§  407.  Cautioning  the  jury— Advice 
to  agree — Arriving  at  ver- 
dict by  lot  or  chance. 

§  408.  Each  juror  to  be  governed  by 
his  own  conscience  but 
should  give  consideration  to 
the  views  of  his  fellow 
jurors;  should  arrive  at  a 
common  understanding. 

§  409.  Jury  should  employ  all  the 
reason,  prudence,  judgment, 
discrimination  and  caution 
they  possess — Not  to  be 
actuated  by  sentiment. 

§  410.  Attitude  of  jury— Common 
sense— Belief  to  be  reason- 
able elements  to  consider. 

§  411.  What  jury  should  consider. 

§  412.  Miscellaneous  —  Depositions 
— Weight  to  be  given  testi- 
mony of  absent  witness. 

§  413.  Jury  to  find  on  what  count 
the  defendant  guilty — Dis- 
missed counts. 

§  414.  Instruction  as  to  form  of 
verdict. 


§  398.  Must  be  Oblivious  to  Outside  Pressure  or  Suggestions,  (a) 
Now,  gentlemen,  you  are  to  consider  yourselves  set  apart  solely  for 
the  purpose  of  considering  what  you  hear  in  this  courthouse,  seeing 
what  you  see  here,  and  you  are  not  to  pay  any  attention  to  outside 
pressure.  You  must  be  oblivious  to  any  outside  pressure.  You  are 
kings  in  your  capacity,  and  mortal  man  cannot  touch  your  judgment. 
You  are  to  be  sole  judges.  You  are  to  listen  to  nothing  that  goes 
on  on  the  outside.  Your  ears  are  to  be  deaf,  and  your  eyes  blind,  to 
all  except  what  happens  here  on  this  witness  stand.  Your  duty  is 
to  inquire  as  to  the  guilt  or  innocence  of  these  parties,  as  to  what 
happens  here  in  the  courthouse,  right  here  on  the  stand.1 

(b)  In  your  jury  room  you  should  not  refer  to,  discuss  or  con- 
sider anything  in  connection  with  this  case  except  the  evidence  re- 
ceived upon  the  trial.  All'  extraneous  matters,  statements  and  sug- 
gestions should  be  carefully  discarded  by  you;  and  you  should  base 
your  verdict  solely  upon  the  evidence,  and  be  guided  by  these  instruc- 

1— State  v.   Rhodes,    44   S.   C.   325.     22  S.  E.  306,   (307). 

327 


328  FORMS  OF  INSTRUCTIONS.  [§399 

tions  alone.  By  your  verdict  the  protection  which  the  law  wisely 
throws  around  the  virtue  of  a  woman  and  the  family  relation  should 
not  be  lessened,  nor  the  rights  of  this  defendant  disregarded.2 

§  399.  Object  of  Juries  to  Obtain  the  Truth — Law  Knows  no  Creed, 
Condition,  Color  or  Nationality,  (a)  Your  object  is  to  obtain 
the  truth,  and  when  you  have  obtained  the  truth,  and  are  satisfied 
to  a  conviction  beyond  a  reasonable  doubt,  march  up  to  your  ver- 
dict with  the  same  impartiality,  and  do  your  duty. 

(b)  The  court  further  instructs  the  jury  that  the  law  knows  no 
creed  or  condition,  no  color,  no  nationality;  and  you  are  instructed 
that  every  defendant,  whether  he  be  rich  or  poor,  high  or  low,  should 
be  tried  with  perfect  impartiality.3 

§  400.  Cannot  Resort  to  Conjecture,  Possibilities,  Suppositions  or 
Imaginings,  (a)  You  cannot  resort  to  conjecture  and  possibilities, 
but  you  must  consider  only  those  injuries,  if  any,  that  the  plaintiff, 
by  a  preponderance  of  the  evidence,  has  shown  to  exist.4 

(b)  The  court  instructs  the  jury  that,  in  considering  this  case, 
they  should  not  indulge  in  any  mere  suppositions  or  imaginings  as  to 
what  may  or  may  not  have  been  done  or  occurred  at  the  time  of  the 
occurrence,  but  must  decide  the  case  upon  the  evidence  of  the  wit- 
nesses and  the  instructions  of  the  court.  And  the  court  further 
instructs  the  jury  that  they  are  the  sole  judges  of  the- credibility  of 
the  witnesses  and  the  weight  to  be  given  to  their  testimony,  and  in 
weighing  the  testimony  the  jury  should  take  into  consideration,  not 
only  what  they  have  testified  to,  but  also  their  manner  of  testifying, 
and  their  bias,  if  any  is  shown,  toward  or  against  plaintiff  or 
defendant,  their  ability  at  the  time  to  clearly  see  what  occurred, 
and  now  to  clearly  recall  and  relate  the  facts;  and  if  the  jury  be- 
lieve, from  the  evidence,  that  any  witness  has  knowingly  sworn 
falsely  to  any  material  fact,  then  the  jury  may  disbelieve  the  whole 
or  any  part  of  such  witness'  testimony.5 

(c)  The  jury  are  instructed  to  take  the  case  and  decide  it  accord- 
ing to  your  sworn  consciences,  remembering  that  you  are  to  find  a 
verdict  according  to  the  testimony  given  you  in  the  case.  You  are 
not  to  indulge  in  suppositions  upon  which  no  evidence  has  been 
given  or  offered.  Yoix  have  no  right  to  trust  your  own  opinion  in  the 
case,  unsupported  by  proof.  Jurors  have  no  right  to  in- 
dulge in  surmises  and  conjectures  on  subjects  concerning  which 
no  evidence  has  been  offered.  They  are  bound  to  take  the  testimony 
for  their  sole  guide.6 

2— State   v.    Butts,    107   Iowa   653,  3— Brown    v.    State,    105    Ga.    640, 

7S    N.    W.    687,    (688).  31   S.   E.   557,    (559). 

The    court    said    "that    sufficient  4 — Winter    v.    Central    Iowa    Ry. 

demonstration     of    the    correctness  Co.,  80  Iowa  443,  45  N.  W.  737,  (738). 

of   this   paragraph   is   found   in   its  5 — Logan  v.  Met.   St.  Ry.  Co.,  183 

bare   reading.     Value   of   argument  Mo.   5*2,   82  S.  W.   126,    (129). 

was  not  discredited,  nor  the  effect  6 — Harmon   v.   State,   70  Wis.   448, 

thereof  eliminated  by  this  charge."  36  N.  W.  1. 


§401.]  JURY— DUTIES  AND  POWERS.  329 

§401.     Jury  Must  Be  Governed  by  the  Instructions  Alone  as  to 

'2ie  Law.     (a)     The  instructions  given  to  the  jury  by  the  court  must 

ccepted  by  them  as  the  law  governing  this  case.     The  jury  will 

not  be  justified  in  finding  a  verdict  contrary  to  the  law  as  laid  down 

by  the  court  in  this  case.7 

(b)  The  court  is  the  judge  of  what  is  proper  and  competent 
testimony  and  the  court  is  also  judge  of  the  law  in  this  case.  You 
should  consider  that  only  as  law  which  has  been  given  you  by  the 
court  in  the  instructions.  It  is  as  much  your  duty  to  regard  the  law 
as  given  by  the  instructions  of  the  court  and  decide  this  case  in  ac- 
eordance  therewith,  as  it  is  to  consider  the  testimony  in  the  case, 
and  you  should  be  governed  as  to  the  law  in  the  case  entirely  by  the 
instructions  of  the  court.8 

(c)  The  instructions  given  to  the  jury  by  the  court  must  be  ac- 
cepted by  them  as  the  law  governing  the  case;  the  jury  will  not 
be  justified  in  finding  a  verdict  contrary  to  the  law  laid  down  in 
the  instructions.  While  the  jury  are  the  judges  of  the  facts  in 
this  case,  it  is  your  duty  to  determine  such  facts  under  the  law  as 
laid  down  in  the  instructions  of  the  court.9 

(d)  The  jury  are  instructed  that  the  instruction  given  to  the  jury 
by  the  court  must  be  accepted  by  them  as  the  law  governing  this 
case.  The  jury  will  not  be  justified  in  finding  a  verdict  contrary 
to  the  law  as  laid  down  in  the  instructions.10 

§  402.  Jury  to  Look  to  the  Evidence  for  the  Facts  and  to  the 
Court  for  the  Law.  (a)  In  considering  and  deciding  this  case,  the 
jury  should  look  to  the  evidence  for  the  facts,  and  to  the  instruc- 
tions of  the  court  for  the  law  of  the  case,  and  find  their  verdict 
accordingly,  without  any  reference  as  to  who  is  plaintiff  or  who  de- 
fendant.11 

(b)  In  considering  and  deciding  this  case,  the  jury  should  look 
solely  to  the  evidence  for  the  facts,  and  to  the  instructions  of  the 
court  for  the  law  of  this  case,  and  find  their  verdict  accordingly.12 

(c)  The  jury  are  the  exclusive  judges  of  the  credibility  of  the 

7 — "This  stated  a  correct  proposi-  series,  constituting-  a  single  charge, 

tion   of  law  and   should  have  been  C.  C.   Ry.  Co.   V.  Mead,  206  111.  174, 

given."      C.    &    E.    I.    R.    R.    Co.    v.  178,   69   N.    E.   19;    C.   C.   Ry.    Co.   v. 

Burridge,    211   111.    9    (15),    71    N.    E.  Bundy,   210   111.    39,  49,    71   N.   E.   28, 

838.  The   rule   is     strictly    logical.     The 

8 — C.    U.    T.    Co.    v.    O'Brien,    117  jury      when      instructed      by      the 

111.  App.  183,   (190).  court    are    not     informed,     and     it 

9— W.    C.    St.    R.    R.   v.   Vale,   117  would  be  improper  to  inform  them, 

111.  App.   155   (159,  160).  as    to    what    instructions    were    re- 

10— C.  St.  R.  R.  Co.  v.  Brown,  193  quested   by   the  plaintiff  and   what 

111.   274   (277),   affg.  89  111.  App.   318,  by    the    defendant.      The    instruc- 

61  N.  E.  1093.  tions    are    read    by    the    presiding 

11 — C.  St.  R.  R.  Co.  v.  Brown,  193  judge,  consecutively,  and  as  alto- 
Ill.  274.  (277),  affg.  S9  111.  App.  318,  gether  constituting  a  single  charge. 
61  N.  E.  1093.  "Vv'e  think  the  jury,   in   the   present 

12 — C.  U.  T.  Co.  v.  O'Brien,  117  case,  were  sufficiently  informed 
111.  App.  184  (190).  "It  is  a  settled  that  they  should  be  guided  by  the 
rule  that  instructions  to  the  jury  instructions  of  the  court  in  pass- 
are  to  be  regarded  as  a  connected  ing  on  the  facts." 


330  FORMS  OF  INSTRUCTIONS.  [§403. 

witnesses  and  weight  of  the  testimony.  The  law  they  will  receive 
from  the  court.13 

(d)  It  is  the  duty  of  the  jury  to  find  and  determine  the  facts  of 
this  ease  from  the  evidence,  and  having  done  so,  then  to  apply  to 
such  facts   the   law  as   stated  in   these  instructions.14 

§  403.  Duty  of  Jury  to  Be  Governed  by  the  Law  and  the  Evidence, 
(a)  Courts  are  established  to  minister  the  law  and  enforce  its  exe- 
cution. The  law  is  the  only  standai'd  by  which  judges  and  jurors  can 
be  governed,  and,  in  considering  their  verdict,  jurors  should  be  gov- 
erned by  the  law  as  given  them,  and  by  the  evidence.  The  only  pro- 
tection to  the  life,  liberty  and  property  of  the  citizen  is  in  a  prompt, 
honest  and  impartial  enforcement  of  the  law ;  and,  if  juries  should 
intentionally  and  willfully  disregard  the  law  then  the  law  is  useless, 
and  the  court  houses  and  jails  might  as  well  be  torn  down,  the  offices 
of  judge,  clerk  and  sheriff,  and  all  other  machinery  necessary  for  the 
administration  of  the  law,  be  abolished  and  save  the  people  tax  paid 
for  maintaining  and  carrying  on  the  courts.15 

(b)  The  court  instructs  the  jury  to  consider  the  whole  case  under 
the  evidence  and  law  as  herein  given  you,  and  return  such  a  verdict 
as  you  think  right.16 

(c)  You  have  heard  the  evidence  offered  on  both  sides  of  the 
case.  From  that  evidence  you  can  learn  what  the  facts  are.  The 
attorneys  have  had  a  wide  range  of  discussion.  They  have  had  com- 
plete freedom  of  argument  before  you  upon  all  questions  of  fact. 
It  is  their  privilege  in  the  argument  to  criticise  the  evidence, — those 
for  the  state  to  criticise  the  conduct  of  the  prisoner;  those  for  him 
to  criticise  the  conduct  of  the  witnesses  against  him,  to  impugn  their 
motives  if  the  evidence  justifies  it,  and  to  assault  the  credibility  of 
the  witnesses.  Counsel  for  the  state  have  called  your  attention  to 
the  children  of  the  deceased,  and  have   intimated  that,  because  of 

13 — Bering-   Mfg.   Co.    v.   Femelat,  of  no  consequence  upon  the  rights 

35  Tex.  Civ.  App.   36,  79  S.   W.  869,  of    the    judge    in    this    connection 

(872).  that   no    objection   had   been   made 

14 — N.  C.  St.  R.  R.  Co.  v.  Wellner,  to  these   orations   of  counsel  when 

206  111.  272,  (274),  69  N.  E.  6.  they   were   delivered.     Nor   is   it   of 

"An  instruction  containing  the  consequence  that  the  solicitor  re- 
same  direction  was  approved  by  plied  to  them.  Doubtless  he  did, 
this  court  in  N.  C.  St.  R.  R.  Co.  v.  and  efficiently,  demonstrating  the 
Kaspers,  186  111.  246,  57  N.  E.  folly  of  indulging  in  such  tirades 
1041."  when    able    counsel    are    to    follow. 

15— Williams  v.  State,  130  Ala.  Notwithstanding  this,  the  judge 
107,  30  So.  484  (487).  "The  judge,"  had  his  duty  to  discharge  in  clear- 
said  the  supreme  court,  "was  ing  the  skirts  of  justice  of  these 
well  within  his  powers  and  alien  and  baneful  contentions  of 
rights    in    thus    attempting    to    re-  counsel." 

move  from  the  minds  of  the  jurors  16 — In  McKenna  v.  Noy,  76  Iowa 

the  poison  of  the  unwarranted  ap-  322,    41    N.    W.    29,    (30),    the    court 

peals   of   counsel  to   their  passions  said:      "The   instruction   is   correct, 

and   prejudices,  and  to  bring  them  The  jury  are   told    in   substance  to 

back,   if  indeed,   they  had  been  led  return  such   a  verdict  as  they,  un- 

astray,  to  a  trial  of  the  case  upon  der   the   evidence   and   law,    regard 

the    law    and    the    evidence.      It    is  correct." 


§404.]  JURY— DUTIES  AND  POWERS.  331 

your  sympathy  for  their  fatherless  condition  you  should  punish  the 
defendant.  Counsel  for  the  defendant  have  pointed  out  to  you  the 
horrors  of  the  penitentiary  and  of  death  upon  the  gallows,  and  have 
made  appeals  to  your  mercy.  Now,  I  desire  to  impress  upon  you  that 
you  have  nothing  to  do  with  questions  of  mercy.  You  are  ministers 
of  justice.  The  administration  of  mercy  is  a  power  that  is  vested 
in  the  executive  department  of  our  state,  in  the  exercise  of  its  author- 
ity to  pardon.  It  is  absolutely  necessary  and  essential  to  the  preser- 
vation of  society  that  law  should  be  enforced,  and  especially  where 
acts  of  violence  have  been  done.  If  we  would  preserve  society  and 
the  rights  of  individuals,  the  law  must  be  obeyed,  and  violators  of 
the  law  punished;  and  you,  as  jurors,  would  be  faithless  to  your  trust 
if  you  should  return  a  verdict  of  acquittal  in  this  case  when  the 
facts  demanded  a  conviction.  And,  above  all,  it  is  important  that 
innocence  should  not  be  punished.  You  are  not  impaneled  for  ven- 
geance, but  to  subserve  the  ends  of  public  justice;  and  you  would 
be  disloyal  to  your  obligations  if  you  should  And  the  prisoner  guilty 
when  the  evidence  required  his  acquittal.  I  have  said  this  to  impress 
you  with  the  sense  of  responsibility  which  you  owe  to  your  con- 
science and  oaths,  that  your  verdict  should  be  honest,  intelligent, 
and  in  conformity  to  the  evidence  and  the  law.  Do  your  duty  hon- 
estly, conscientiously,  courageously  and  justly,  as  you  see  it,  under 
the  evidence  and  the  law  of  this  ease.17 

(d)  The  court  instructs  the  jury  that  you  should  not  consider 
any  matter,  statement  or  declaration  not  introduced  in  the  evidence 
admitted  in  the  trial,  or  fairly  applicable  thereto.18 

§  404.  Jury  are  to  Be  Guided  by  Evidence — Not  to  Consider  Cost 
of  Trial— Not  to  Keep  Cases  Out  of  Court  by  Their  Verdicts.  They 
are  guided  simply  by  the  evidence  they  hear  on  the  trial  of  the  case. 
It  is  not  for  the  jury  so  impaneled  to  decide  whether  or  not  the 
case  ought  to  be  prosecuted,  not  for  them  to  take  into  considera- 
tion the  cost  of  the  trial,  nor  for  juries  to  keep  cases  out  of  court  by 
their  verdicts.  Those  are  not  matters  to  be  considered  by  the  jury. 
They  are  proper  to  be  considered,  as  citizens,  in  our  efforts  to  per- 
fect our  laws,  and  see  that  justice  is  properly  administered,  and  the 
burden  to  the  people  not  too  great;  but,  when  you  or  I  are  sitting  as 
court  and  jury,  we  must  administer  the  law  as  w7e  find  it,  not  being 
responsible,  as  officials  of  the  court,  for  the  condition  of  affairs,  nor 
the  duties  we  have  to  perform.19 

17 — Dinsmore    v.    State,    61    Neb.  thereof    as    were    fairly    applicable 

418,    85    N.    W.    445    (452).  to    the     case.       If    a     matter    was 

18 — Richards   v.    Monroe,   85  Iowa  proven    or   admitted    that   was   not 

359,    52   N.   W.   339,    (340).     "Its  fair  fairly  applicable  to  the  case,  it  was 

construction   is  that  the  jury  were  not    entitled    to    consideration." 
not   to  consider  any  matter,  state-         19— Taylor    v.    State,    97    Ga.    361, 

ment  or  declaration  not  in  the  evi-  23  S.   E.   995,   (996). 
dence   or   admitted,   and   only  such 


332  FORMS  OF  INSTRUCTIONS.  [§-405. 

§  405.  Statements  of  Counsel  Unsupported  by  the  Law  or  Evi- 
dence Should  not  Be  Considered,  (a)  This  case  must  be  decided 
by  the  jury  on  the  evidence,  under  the  instructions  of  the  court, 
and  not  upon  the  statements  of  counsel  outside  of  the  evidence  un- 
supported by  the  evidence,  if  any  such  statements  have  been  made. 
The  evidence  and  law  alone  must  govern  your  verdict.  The  jury  are 
informed  that  the  instructions  of  the  court  are  the  law  of  the  case, 
which  must  govern  them.20 

(b)  The  court  instructs  the  jury  that,  in  considering  this  case, 
it  is  not  only  your  duty  to  decide  the  case  according  to  the  weight 
of  the  evidence,  but  it  is  also  your  duty  to  decide  it  according  to 
the  law  as  given  you  by  the  court,  applied  to  the  evidence.  While 
it  is  true  as  a  matter  of  law  that  the  attorneys  for  the  respective 
parties  may  state  to  you  what  they  believe  the  law  to  be,  and  base 
arguments  thereon,  still,  under  your  oaths  and  under  the  law,  you 
have  no  right  to  consider  anything  as  law  except  it  be  given  you  by 
the  court,  and  you  have  no  right  to  take  the  statement  of  any  attor- 
ney as  to  what  the  law  is,  except  the  court  give  you  an  instruction 
to  the  same  effect,  or,  in  other  words,  you  should  consider  only  that 
as  law,  as  given  you  by  the  court,  and  decide  the  case  accordingly.21 

(c)  The  jury  are  instructed  that  they,  the  jury,  are  the  sole  judges 
of  the  questions  of  fact  in  this  case,  and  they  should  determine  the 
same  from  the  evidence  in  the  case.  The  court  does  not  mean  by 
any  instruction  given  to  the  jury  to  tell  them  how  they  shall  find 
any  fact  in  the  case,  the  finding  of  the  facts  being  exclusively  within 
the  province  of  the  jury.  The  jury  should  not  be  influenced  as  to 
the  facts  by  any  assertion  or  statement  of  counsel  on  either  side  of 
the  ease,  unless  the  same  is  sustained  by  the  evidence  in  the  case.22 

(d)  The  facts  must  be  decided  by  the  jury  from  the  testimony 
which  is  received  in  open  court.  Offered  testimony,  to  which  objec- 
tion was  sustained,  or  which  was  stricken  out  by  order  of  the  court, 
is  not  before  the  jury  and  should  not  be  considered  in  arriving  at 
your  verdict.  Statements  of  counsel  for  either  side,  if  any,  which 
are  unsupported  by  the  testimony,  or  which  are  irrelevant  to  this 
case,  should  not  be  considered.  The  instructions  given  you  by  the 
court  are  to  be  considered  as  a  series.  The  court  has  not  expressed 
an  opinion  on  the  facts,  and  has  not  expressed  an  opinion  on  the 
credibility  or  character  of  any  witness,  and  the  court  has  no  right 
to  do  so,  and  if  the  jury  overheard  anything  said  between  the  court 
and  counsel  in  discussing  questions  of  law  or  otherwise,  the  jury 

20— C.  &  A.  R.  R.  Co.  v.  McDon-  App.    252     (257).      "The    instruction 

nell,    194    111.    82    (87),    affg.    91    111.  appears   to  us  to  be  right,  and  not 

App.   488,  62  N.  E.  308.  subject  to  the  criticism  of  counsel, 

21 — "The  instruction  was  correct."  that  the  jury  were  left  by  it  to  un- 

Voche   v.    City   of   Chicago,   20S   111.  derstand     that     plaintiff's     counsel 

192  (194),  70  N.  E.  325.  was  the  judge  of  the  questions  of 

22— Penn.    Co.    v.    Greso,    102    111.  law." 


§  406.]  JURY— DUTIES  AND  POWERS.  333 

should  not  consider  anything  but  the  evidence  introduced  before  them 
and  the  law  as  laid  down  in  the  instructions  of  this  court.23 

§  406.  Emphasizing  Importance  of  the  Case  to  the  Jury — Im- 
portance of  Their  Duties,  (a)  Gentlemen  of  the  jury,  in  commit- 
ting this  case  to  you,  the  court  desires  to  admonish  you  of  the  im- 
portant issues  involved.  The  court  desires  you  to  fully  understand 
the  responsibilities  upon  you  of  arriving  at  your  verdict  in  the 
case.  No  more  solemn  or  weighty  duty  can  devolve  upon  a  citizen 
of  the  state  than  to  pass  upon  an  issue  involving  the  life  and  liberty 
of  a  fellow  citizen.  On  the  one  hand  you  should  remember  that  a 
failure  to  perform  your  duty,  by  which  a  crime,  if  one  is  shown, 
might  go  unpunished,  and  a  criminal  escape  the  penalty  of  his  crime, 
cannot  be  corrected  by  a  new  trial,  for  the  defendant  cannot  twice 
be  put  in  jeopardy  under  our  law.  The  state  demands  and  has  a 
right  to  ask,  at  your  hands,  the  full  performance  of  your  duty  in 
the  enforcement  of  the  law,  and  no  notions  of  mere  sympathy  and 
sentimentality  should  cause  you  to  hesitate  in  the  full  performance 
of  your  duty.  And  on  the  other  hand  you  should  never  for  a  mo- 
ment forget  your  duty  to  secure  and  protect  every  right  guaranteed 
by  the  constitution  and  our  law  to  the  defendant.  You  should  not 
allow  any  outside  influence  or  pressure  or  indignation  or  sympathy 
for  the  deceased  or  his  relatives  to  influence  you  in  finding  a  verdict 
in  this  case.  You  should  fairly  and  impartially  and  coolly  and  dis- 
passionately examine  the  evidence  in  the  case,  and  after  carefully 
and  fully  examining  and  considering  it,  render  your  verdict  under 
the  law  and  the  evidence,  that  full  and  complete  justice  may  be  ren- 
dered thereby  between  the  state  and  the  defendant.2* 

23— Fitzgerald  v.  Benner,  219  111.  24— Simon  v.  State,  108  Ala.  27, 
485,  (488,  500).  76  N.  E.  709.  "It  is  18  So.  731.  "The  instruction  in 
also  said  that  the  above  instruc-  the  opinion  of  the  writer,  is  sim- 
tion,  given  for  the  appellees,  is  ilar  to  one  often  given  in  cases  of 
erroneous,  because  it  told  the  jury  this  character.  In  so  far  as  it 
'that  the  facts  must  be  decided  by  involves  rules  of  law,  the  state- 
the  jury  from  the  testimony,  ments  thereof  are  correct;  and 
which  is  received  in  open  court.'  there  was  no  error  I  think,  in 
The  word,  'testimony,'  is  said  emphasizing  the  importance  of  the 
to  signify  oral  evidence  only,  case  both  to  the  state  and  the  de- 
and  therefore  excluded  from  the  fendant.  The  defendant's  rights 
consideration  of  the  jury  the  in  the  premises  were  to  my  mind 
documentary  evidence.  Even  if  properly  guarded,  except,  perhaps 
such  be  the  correct  meaning  of  the  in  the  use  of  the  words  'the  crime' 
word  'testimony,'  it  could  not  which  are  italicised  in  the  instruc- 
have  misled  the  jury  in  the  tion  quoted;  and  with  these  words 
present  case,  for  the  reason  that  eliminated,  there  was  no  error  I 
the  concluding  sentence  of  the  in-  think  in  this  paragraph.  The  in- 
struction directs  the  jury  to  'not  struction,  except  in  the  respects 
consider  anything  but  the  evi-  mentioned  has  support  I  think  in 
dence  introduced  before  them,  and  the  following  cases:  State  v.  Deck- 
the  law  as  laid  down  in  the  in-  lotts,  19  Iowa  447;  Stout  v.  State, 
structions  of  this  court.'  It  is  90  Ind.  1;  Smith  v.  State,  4  Neb. 
admitted  that  the  word,  'evi-  288;  State  v.  Talbott,  73  Mo.  347; 
dence,*  ,is  broad  enough  to  in-  People  v.  Hawes,  98  Cal.  648,  33 
elude  the  documentary,  as  well  as  Pac.  791;  Com.  v.  Harris,  168.  Pa. 
the    oral    evidence."  619,   32   Atl.   92." 


334  FORMS  OP  INSTRUCTIONS.  [§407. 

(b)  Remember,  gentlemen,  as  I  have  already  indicated,  that 
while  the  amount  involved  here  is  neither  great  nor  very  small,  that 
it  is  a  case  which  involves  careful  discrimination.  ■  The  rights  of 
both  of  these  parties — of  all  parties  interested  in  the  result  of  this 
litigation — is  for  the  present  in  your  hands,  and  it  is  always  im- 
portant, when  men  are  selected  to  determine  questions  of  fact  which 
involve  the  property  rights  or  liberties  of  their  fellow  citizens,  that 
the  utmost  care  shall  be  taken,  and  sometimes  in  cases  of  such  a 
nature  as  this,  that  a  finer  judgment  and  keener  intelligence  must 
be  used.  This  is  a  case,  I  think,  where  the  higher  qualities  are  in- 
volved— high  qualifications  are  involved.25 

(c)  The  offense  charged  in  the  information  is  a  grave  one,  as  it 
involves  the  criminal  betrayal  and  breach  of  trust  reposed  in  a  trusted 
amploye.  The  entire  property  of  a  corporation  must  of  necessity  be 
intrusted  to,  and  its  business  carried  on  by,  its  employes,  for,  whether 
we  call  them  officers,  agents,  servants,  or  by  some  other  name,  they 
are  nevertheless  its  employes.  And  to  a  large  extent  the  property 
and  business  of  individuals  must  be  intrusted  to  employes,  such  as 
clerks,  cashiers,  and  the  like;  and  it  is  a  matter  of  great  importance 
that  all  employes  who,  by  virtue  of  some  special  confidence  reposed 
in  them,  are  intrusted  with  their  employers'  money  or  property, 
should  faithfully  care  for  and  honestly  account  for  whatever  is  com- 
mitted to  their  care,  custody,  or  possession.  Both  corporations  and 
individuals  can  protect  their  property  from  strangers  by  bolts  and 
bars  and  iron  doors,  but  not  so  with  trusted  employes.  The  crime  of 
embezzlement  involves  not  only  the  fraudulent  conversion  of  an  em- 
ployer's money,  but  also  a  wrongful  betrayal  of  the  trust  and  confi- 
dence reposed  by  the  employer  in  the  employe.  The  case  is  also  an 
important  one  on  the  part  of  the  defendant,  because  it  involves  his 
personal  liberty  and  his  reputation  and  character.  Important  to  the 
state  especially,  perhaps,  as  it  is  charged  with  the  grave  duty  of  ap- 
prehending and  convicting  and  punishing  those  who  do  commit  crim- 
inal offense,  it  is  equally  important  to  the  defendant,  because,  as  I 
have  already  suggested,  if  you  should  convict  him  it  would  take  away 
his  personal  liberty  for  a  time.  I  therefore  ask  your  careful  and 
close  attention  to  such  instructions  as  I  shall  give  to  you,  by  which 
you  are  to  be  guided  in  considering  the  evidence  and  arriving  at 
your  verdict.26 

§  407.  Cautioning  the  Jury — Advice  to  Agree — Arriving  at  Verdict 
by  Lot  or  Chance,  (a)  Although  the  verdict  to  which  a  juror  agrees 
must,  of  course,  be  his  own  verdict,  the  result  of  his  own  convictions, 
and  not  a  mere  acquiescence  in  the  conclusion  of  his  fellows,  yet,  in 
order  to  bring  twelve  minds  to  a  unanimous  result  you  must  examine 

25— Prescott  v.   Johnson  et  al.,  91        26— Secor   v.    State,    118   Wis.    621, 
Minn.    273,    97    N.    W.    891,    (892).  95  N.  W.   942,    (947). 


§408.]  JURY— DUTIES  AND  POWERS.  335 

the  questions  submitted  to  you  with  candor,  and  with  a  proper  re- 
gard and  deference  to  the  opinions  of  each  other.27 

(b)  This  case  has  occasioned  a  great  deal  of  trouble  and  much 
cost  to  the  state  and  county,  and  has  taken  up  an  unusual  amount 
of  the  time  of  the  court,  and  it  is  important,  both  to  the  state  and 
defendants,  that  the  jury  should  arrive  at  some  verdict.  The  jury 
should  agree  on  a  verdict.  No  juror  from  mere  pride  of  opinion 
hastily  formed  or  expressed  should  refuse  to  agree;  nor  on  the  other 
hand  should  he  surrender  any  conscientious  views  founded  on  the 
evidence.  It  is  the  duty  of  each  juror  to  reason  with  his  fellows 
concerning  the  facts  with  an  honest  desire  to  arrive  at  the  truth, 
and  with  a  view  of  arriving  at  a  verdict.  It  should  be  the  object 
of  all  the  jury  to  arrive  at  a  common  conclusion,  and  to  that  end  to 
deliberate  together  with  calmness.  It  is  your  duty  to  agree  upon  a 
verdict,  if  that  be  possible  without  a  violation  of  conscientious  con- 
victions.28 

(c)  The  jury  are  admonished  that  there  should  be  no  mistrial 
in  this  case,  if  it  be  possible  for  the  jury  to  agree  upon  a  verdict, 
if  they  can  do  so  without  violating  their  conscientious  convictions, 
based  on  the  evidence.  This  case  has  taken  up  a  whole  week  of  this 
term,  and  has  necessarily  been  costly  to  the  state  and  county,  and 
has  forced  the  postponement  of  other  important  cases.  The  jury 
should  therefore  lay  aside  pride  of  opinion  and  judgment,  examine 
any  differences  of  opinion  there  may  be  among  them  in  a  spirit  of 
fairness  and  candor,  reason  together  and  talk  over  such  differences, 
and  harmonize  them,  if  this  be  possible,  so  that  this  case  may  be  dis- 
posed of.29 

(d)  Gentlemen,  you  must  not  arrive  at  your  verdict  by  lot  or 
chance,  but  only  by  considering  the  evidence.30 

§  408.  Each  Juror  to  Be  Governed  by  His  Own  Conscience,  but 
Should  Give  Consideration  to  the  Views  of  His  Fellow  Jurors;  Should 
Arrive  at  a  Common  Understanding,  (a)  It  is  the  duty  of  each 
juryman,  while  the  jury  are  deliberating  upon  their  verdict,  to  give 
careful  consideration  to  the  views  his  fellow  jurymen  may  have 
to  present  upon  the  testimony  in  the  case.     He  should  not  shut  his 

27— People     v.     Engle,     118     Mich.  Cr.    App.    298,    65    S.    W.    3SS.    (391). 

287,   76   N.    W.   502    (503).  "We  fail  to  see  how  it  could  possi- 

28 — Myers  et  al.  v.   State,  43  Fla.  bly   injure  appellant   for  the  court 

500,     31     So.      275      (281).      "In     the  to  admonish  them   that  they  must 

case   of   Sigsbee   v.    State    (decided  try    appellant    alone    on    the    testi- 

at    the   present    tei'm),    43   Fla.    524,  mony,  and  not  arrive  at  their  ver- 

30    So.    816,     we    had     occasion     to  diet   by   lot   or   chance.     This   was 

consider  an   instruction   very   sim-  simply  an   admonition,   and,   it   oc- 

ilar  to  the  one  now  under  consid-  curs   to   us,   for   his   benefit,   citing 

eration,  and  upon  the  authority  of  Sargent    v.    State,    35    Tex.    Cr.    R. 

t^f  decision  in  that  case  we  do  not  325,  33  S.  W.  364;  Rumage  v.  State 

think    there     was     any     reversible  — Tex.    Cr.   App.   — ,    55    S.    W.   64." 

error    in    giving    this    instruction."  30 — Sigsbee   v.    State,   43   Fla.   524, 

29— Lankster  v.  State  Ct.,  43  Tex.  30  So.  816  (819). 


336  FORMS  OF  INSTRUCTIONS.  L§  409. 

ears,  and  stubbornly  stand  upon  the  position  he  first  takes,  regard- 
less of  what  may  be  said  by  the  other  jurymen.  It  should  be  the 
object  of  all  of  you  to  arrive  at  a  common  conclusion,  and  to  that 
end  you  should  deliberate  together  with  calmness.  It  is  your  duty 
to  agree  upon  a  verdict,  if  that  is  possible.31 

(b)  Gentlemen  of  the  jury,  however,  I  will  charge  you  that  when 
you  go  into  the  jury  room  you  may  discuss  the  case  together  and 
compare  notes  and  reason  together,  but  before  you  make  up  your 
verdict  you  must  make  up  in  your  own  mind,  without  reference  to 
the  other  jurors,  whether  or  not  the  defendant  is  guilty  and  if  guilty, 
the  degree  in  which  you  are  to  find  him  guilty.  In  short,  when  men 
are  jurors  they  sit  here  as  individuals,  so  far  as  their  individual 
verdict  is  concerned,  and  the  juror  should  be  governed  by  his  own 
conscience,  and  not  by  the  minds  and  consciences  of  his  fellow 
jurors.32 

§  409.  Jury  Should  Employ  All  the  Reason,  Prudence,  Judgment, 
Discrimination  and  Caution  They  Possess — Not  to  Be  Actuated  by 
Sentiment,  (a)  You  are  instructed  that  in  the  performance  of  this 
duty,  that  of  scrutinizing  the  evidence  and  determining  its  effect, 
you  should  exercise  the  utmost  caution,  employ  all  the  reason,  pru- 
dence and  discrimination  that  you  possess,  and  would  summon  to 
your  own  aid  in  the  most  important  affairs  of  life.  Having  clone  this, 
if  there  then  remains  in  your  mind  no  reasonable  doubt  of  defendant's 
guilt,  you  should  convict  him;  otherwise  you  should  acquit  him.33 

(b)  I  take  it  that  it  is  unnecessary  to  say  to  an  intelligent  jury 
that  we  are  not  here  in  the  administration  of  public  justice  to  be 
actuated  by  feelings  of  sentiment.  That  may  do  very  well  outside 
of  this  courthouse.  But  we  are  here  to  see  that  the  law  which  is 
laid  down  as  a  rule  of  conduct  for  all  citizens  is  enforced.  When- 
ever a  party  is  charged  with  violation  of  law  it  is  my  duty  to  give 
you  the  law.  It  is  your  duty  to  apply  the  facts  to  the  law;  and,  if 
the  state  has  established  the  guilt  of  the  party  accused  beyond  a 
reasonable  doubt,  you  should  find  a  verdict  of  guilty,  and  you  cannot 
ai'ow  your  judgments,  according  to  your  oaths,  to  be  influenced  by 
sentiment  or  anything  of  that  kind.34 

§  410.  Attitude  of  Jury — Common  Sense — Belief  to  Be  Reason- 
able— Elements  to  Consider,  (a)  Jurors  are  not  artificial  beings, 
governed  by  artificial  or  fine-spun  rules ;  but  they  should  bring  to  the 
consideration  of  the  evidence  before  them  their  every-day  common 
sense  and  judgment,  as  reasonable  men ;  and  those  just  and  reasonable 
inferences  and  deductions  which  you,  as  men,  would  ordinarily  draw 

31— Jackson     v.     State,     91     Wis.  33— Simon    v.    State,    108   Ala.    27, 

253,    64    N.    W.    838,     (843).      Citing  18   So.   731. 

Odette  v.    State,   90  Wis.   258,   62   N.  34— State   v.    Petsch,  43   S.   C.   132, 

W.   1054,  where  this  was  approved.  20  S.  E.  993,   (995). 

32— Simon    v.    State,    108    Ala.    27, 
J.8  So.  731  (732). 


§411.]  JURY— DUTIES   AND   POWERS.  337 

from  facts  and  circumstances  proven  in  the   case  you  should   draw 
and  act  on  as  jurors.30 

(b)  You  are  to  believe  as  jurors  what  you  would  believe  as 
men,  and  there  is  no  rule  of  law  that  requires  you  to  believe  as 
jurors  what  you  would  not  believe  as  men.30 

§  411.  What  Jury  Should  Consider,  (a)  In  determining  the 
issues  in  this  case,  you  should  take  into  consideration  the  whole  of 
the  evidence,  and  all  the  facts  and  circumstances  proved  on  the  trial, 
giving  to  the  several  parts  of  the  evidence  such  weight  as  you  think 
they  are  entitled  to.  And  in  determining  the  weight  to  be  given  to 
the  testimony  of  the  several  witnesses,  you  should  take  into  considera- 
tion their  interest  in  the  event  of  the  suit,  if  any  such  is  proved, 
their  conduct  and  demeanor  while  testifying,  their  apparent  fairness 
or  bias,  if  any  such  appears,  their  appearance  on  the  stand,  the  rea- 
sonableness of  the  story  told  by  them,  and  all  the  evidence  and  cir- 
cumstances tending  to  corroborate  or  contradict  such  witnesses,  if 
any  such  are  proved.37 

(b)  You  should  weigh  the  evidence  carefully,  and  consider  it  all 
together.  You  should  not  pick  out  any  particular  fact  in  evidence, 
or  any  particular  statement  of  any  witness,  and  give  it  undue  weight. 
You  should  give  such  weight  to  inferences  from  the  facts  proven  as 
in  fairness  you  think  they  are  entitled.3S 

(e)  The  jury  are  instructed  that  the  number  of  witnesses  does 
not  necessarily  determine  the  weight  of  the  evidence  in  any  case, 
but  the  jury  should  take  into  consideration  all  the  evidence  in  the 
case  and  should  consider  it  all  together,  and  determine  from  all  the 
evidence  in  the  case  and  from  all  the  circumstances  proven  on  the 
trial,  as  to  the  weight  of  the  evidence,  and  return  a  verdict  ac- 
cordingly.39 

(d)  You  are  to  take  into  account  in  weighing  the  testimony  of 
any  witness,  his  interest  or  want  of  interest  in  the  result  of  the 
case,  his  appearance  upon  the  witness  stand,  his  manner  of  testifying, 
his  apparent  candor  or  want  of  candor,  whether  he  is  supported  or 
contradicted  by  the  facts  and  circumstances  in  the  case  as  shown 
by  the  evidence.  You  have  a  right  to  believe  all  the  testimony  of 
a  witness,  or  believe  it  in  part,  or  you  may  reject  it  altogether,  as  you 
may  find  the  evidence  to  be.40 

35— State     v.     Elsham,     70     Iowa  38— Rio    G.    W.    Ry.    Co.    v.   Utah 

531,  31  N.  W.  66,  (68).  N.   Co.   et   al.,   25  Utah  187,   70  Pac. 

36— Dodge  v.   Reynolds  et  al.,  135  859    (860). 

Mi"h.   692,   98  N.   W.   737,    (738).  39— Brown  v.   People,   65  111.   App. 

37 — Evans    v.     Lipscomb,    31    Ga.  58. 

71;    French    v.    Millard,    2    Ohio    St.  40— Dodge  v.   Revnolds  et  al..  135 

44;    Sellar  v.   Clelland,   2   Colo.    539;  Mich.  692,  98  N.  W.  737. 
Richardson  &  Bovnton  Co.  v.  Win- 
ter,  38    Neb.    288,    56    N.   W.    S86. 

23 


338  FORMS  OP  INSTRUCTIONS.  [§  412. 


MISCELLANEOUS. 

§  412.  Depositions — Weight  to  Be  Given  Testimony  of  Absent 
Witness,  (a)  In  arriving  at  your  verdict  in  this  case,  you  should 
take  into  consideration  all  the  evidence  before  you,  and  you  should 
give  the  same  weight  and  consideration  to  the  testimony  of  the 
plaintiff  contained  in  depositions  as  you  would  to  said  testimony  if 
the  same  had  been  given  by  witnesses  in  open  court  before  you  in- 
stead of  by  deposition.41 

(b)  I  charge  you,  gentlemen  of  the  jury,  that  testimony  taken  by 
deposition  should  receive  the  same  consideration  and  weight  at  the 
hands  of  the  jury  as  if  the  witness  had  testified  on  the  stand  in 
your  presence.42 

(c)  It  is  your  duty  under  the  law  to  consider  the  written  testi- 
mony of  the  witnesses  .  .  .  and  give  to  it  the  same  weight  in 
making  up  your  verdict  as  if  those  witnesses  had  been  present  in 
person  and  testified  orally  in  your  hearing.43 

§  413.  Jury  to  Find  on  What  Count  the  Defendant  Guilty — Dis- 
missed Counts,  (a)  The  court  instructs  the  jury  that  if  you  find 
the  defendant  guilty,  not  on  all  the  counts  in  the  declaration,  but 
only  on  part,  then  you  should  also  find  on  which  count  or  counts  you 
find  the  defendant  guilty.44 

(b)  The  court  instructs  the  jury  that  under  the  law  and  the  evi- 
dence in  this  case  the  plaintiff  cannot  recover  on  the  2nd  and  3rd 
counts  of  her  declaration,  the  plaintiff  having  dismissed  as  to  them.45 

§  414.  Instruction  as  to  Form  of  Verdict.  The  court  instructs  the 
jury  that  if  you  find  the  issues  for  the  plaintiff,  the  form  of  your  ver- 
dict may  be:     "We,  the  jury,  find  the  defendant  guilty  and  assess 

the  damages  at  $ ,"   filling  the  blank   space  with  whatever 

amount  you  may  find,  if  any,  writing  the  same  on  a  separate  sheet 
of  paper  and  signing  the  same  by  your  foreman.46 

41— Olcese  v.  Mobile  F.  &  T.  Co.,  was  held  that  by  an  admission  to 

112    111.    App.    281,    (288).      This    in-  avoid     a     continuance,     the     other 

struction    is    in    accord    with    Sec.  party  is  entitled  to  have  the  testi- 

34,  ch.  51,  R.  S.  of  111.,  which  reads:  mony    of    the    absent    witness    re- 

"Every  deposition  may  be  read  as  ceived    and    weighed    precisely    as 

good    and    competent    evidence    in  though  he  had  appeared  as  a  wit- 

the    cause    in    which    it    shall    be  ness   and    had    sworn    to   the   facts 

taken  as  if  such  witness  had  been  stated    in    the    affidavit, 

present   and  examined   by  parol   in  44 — I.    C.    R.    R.    Co.    v.    Andrews, 

open   court  on  the  hearing  or  trial  116   111.    App.    8,    (12). 

thereof."     Hogan  v.   State,  130  Ala.  45— N.  C.   St.  Ry.  Co.  v.  Hutchin- 

104.  son,    191    111.    104,    affg.    92    111.    App. 

42— Hogan   v.    State,   130   Ala.    104,  567,  60  N.   E.   850. 

30  So.  358   (358).  46— Central     Ry.     Co.     v.     Ankie- 

43— Bloomington    &    Normal    Rv.  wicz,   213    111.    631,    115   111.   App.    380, 

Co.    v.    Gabbart.    Ill    111.    App.    147,  (383),    73    N.    E.    382.     "It   is   argued 

(149).    See  also  R.  R.  Co.  v.  Dough-  that    telling    the    jury    to    fill    the 

erty,  170   111.   379,  48  N.  E.  1000.     In  blank  space  with  whatever  amount 

Hunt    v.    Seymour,    147    111.    618,    it  you    may   find,   if   any,   was   equiv- 


414.] 


JURY— DUTIES   AND   POWERS. 


339 


alent  to  turning  the  jury  loose  to 
assess  plaintiff's  damage  on  what- 
ever basis  or  theory  they  saw  fit. 
If  such  was  the  effect  of  the  in- 
struction then  it  was  erroneous, 
as  held  by  us  in  La  Porte  v.  Wal- 
lace, 89  111.  App.  517,  where  we 
reviewed  the  Illinois  cases  upon 
that  subject.  To  the  like  effect 
is  the  later  case  of  Muren  Coal  & 
Ice  Co.  v.  Howell,  204  111.  515,  68 
N.  E.  456.  But  in  our  judgment 
this  is  not  an  instruction  upon  the 
measure  of  damages,  but  relates 
only  to  the  form  of  the  verdict. 
It  is  said  this  would  mislead  the 
jury  for  the  reason  that  there  was 
no  instruction  upon  the  measure 
of  damages.  There  was  no  such 
instruction,  though  one  given  at 
defendant's  request  suggested  com- 
pensation as  the  rule.  But  the  law 
of  this  state  is  not,  as  defendant 
contends,  that  the  trial  judge 
must  see  to  it  that  the  instructions 
cover  the  law  of  the  case,  and  es- 
pecially must  of  his  own  volition 
instruct  the  jury  upon  the  measure 
of  damages.  On  the  contrary,  it 
was  held  in  City  of  Chicago  v. 
Keefe.  114  111.  222,  2  N.  E.  267.  that 
a  party  who  permits  the  jury  to 
retire  without  an  instruction  upon 
the    measure    of    damages    cannot 


afterwards  be  heard  to  complain 
because  the  court  did  not  instruct 
as  to  the  law  upon  that  subject. 
It  is  a  general  rule  in  this  state 
that  a  party  who  desires  the  law 
upon  any  particular  subject  given 
to  the  jury  should  ask  an  instruc- 
tion embodying  what  he  conceives 
the  law  to  be.  Druru  v.  Connell, 
177  111.  43;  52  N.  E.  368;  Malott  v. 
Hood,    201    111.    202,    66    N.    E.    247. 

In  our  judgment  the  mere  fail- 
ure of  both  parties  to  ask  any  in- 
struction upon  the  measure  of 
damages  cannot  convert  into  an 
instruction  on  that  subject  what 
was  obviously  intended  by  the 
court  as  a  mere  direction  upon  the 
form  of  the  verdict  if  the  jury 
found  the  issues  for  the  plaintiff. 
But  if  the  law  were  otherwise, 
still,  as  defendant  does  not  con- 
tend in  its  brief  and  argument 
that  the  damages  awarded  were 
excessive,  no  harm  was  done  by 
a  failure  to  instruct  on  that  sub- 
ject, or  even  by  the  instruction  in 
question,  if  it  were  open  to  the 
construction  defendant  seeks  to 
put  upon  it."  From  the  opinion  in 
the  Appellate  Court,  which  was 
later  affirmed  by  the  Supreme 
Court   of  Illinois. 


CHAPTER  XXIV. 


ACCOUNT  STATED. 


See   Erroneous   Instructions,     same  chapter  head,  Vol.  III. 


415.  Statement  rendered  and  pay- 

ments made  thereon  be- 
comes  an   account   stated. 

416.  Account    must    be    left    with 

defendant,  not  merely  ex- 
hibited  to   him. 

417.  Account     rendered     kept     an 

unreasonable  time  or  not 
objected   to,   is   admitted. 

418.  Must    be    agreed    to    but   ac- 

quiescence need  not  be 
stated   in   express   terms. 

419.  Account     rendered     and     ac- 

quiesced in  becomes  a  stated 
account  and  is  conclusive 
excepting-  for  mistake  or 
fraud. 

420.  Can  only  be  opened  for  fraud 

or    mistake. 


§  421.  Same — Conclusive  in  absence 
of  mistake  or  fraud. 

§  422.  Stated  account  void  for  error 
or   want   of   consideration. 

§  423.  Account,  settlement,  mater- 
ial mistake,  fraud,  proof 
required. 

§  424.  Settlement  and  receipt  ob- 
tained   by   duress. 

§  425.  Receipt    prima    facie   .correct. 

§  426.  Contradicting    receipt. 

§  427.  Settlement  presumed  to  in- 
clude  all    items. 

§  428.  Accepting-  and  retaining  a 
less  amount  offered  in  pay- 
ment  of   a   disputed    claim. 

§  429.  Action  for  money  loaned — 
Itemized  account  of  indebt- 
edness. 


§  415.  Statement  Rendered  and  Payments  Made  Thereon  Becomes 
an  Account  Stated.  The  court  instructs  the  jury  as  a  matter  of  law 
that  where  an  itemized  statement  of  account  is  by  the  creditor  de- 
livered to  the  debtor  showing  the  aggregate  charges  in  the  creditor's 
favor  and  the  proper  credits  thereon  and  the  debtor  retains  said 
statement  of  account  and  makes  payment  upon  it  without  objection, 
it  thereby  becomes  an  account  stated  between  the  parties.1 

§  416.  Account  Must  Be  Left  with  Defendant,  not  Merely  Ex- 
hibited to  Him.  x\lthough  you  may  believe  from  the  evidence  that 
some  time  about,  etc.,  the  plaintiff  made  out  a  statement  of  account 
including  items  on  both  sides  of  the  account,  and  struck  what  he 
called  a  balance  and  showed  the  same  to  the  defendant  and  requested 
him  to  make  payment  thereon — and  further,  that  the  defendant  made 
no  objection  to  the  statement  of  account  at  that  time,  this  alone 
would  not  be  sufficient  to  constitute  an  account  stated,  provided  that 
you  further  believe  from  the  evidence  that  the  plaintiff  did  not  leave 
the  statement  with  the  defendant  and  that  no  balance  was  in  fact 
agreed  upon  by  the  parties  or  assented  to  by  the  defendant  as  the 
amount  due  from  one  party  to  the  other.2 


1 — Poppers   v. 
App.   477    (481). 


Schoenfeld,    97   111.        2— Payne  v.   Walker,   26  Mich.  60. 

340 


§417.]  ACCOUNT  STATED.  341 

§  417.  Account  Rendered  Kept  an  Unreasonable  Time  or  not  Ob- 
jected to,  is  Admitted,  (a)  Where  a  parly  sends,  by  mail,  a  state- 
ment of  account  to  another  with  whom  he  has  dealings,  which  is  re- 
ceived, but  not  replied  to  within  a  reasonable  time,  the  acquiescence 
of  the  party  is  taken  as  an  admission  that  the  account  is  correctly 
stated;  and  what  is  a  reasonable  time  in  this  connection  is  a  question 
for  the  jury  to  determine,  under  all  the  circumstances  of  the  case,  con- 
sidering- the  nature  of  the  business,  the  distance  of  the  parties  from 
each  other,  and  the  means  of  communication  between  them.3 

(b)  "When  two  parties  have  a  running  account,  and  one  makes 
a  statement  of  the  account  and  sends  it  to  the  other,  by  mail,  and 
the  latter  keeps  it  an  unreasonable  time,  without  making  any  ob- 
jection to  it,  he  must  be  held  to  have  consented  to  its  being  correct, 
and  he  will  not  afterwards  be  permitted  to  question  its  correctness, 
unless  he  can  show  that  there  is  some  error,  mistake  or  fraud  in  the 
account,  of  which  he  was  ignorant  when  he  so  consented  to  it.4 

§  418.  Must  Be  Agreed  to,  but  Acquiescence  Need  not  Be  Stated 
in  Express  Terms,  (a)  In  order  to  constitute  an  account  stated 
it  must  appear  from  the  evidence  that  the  parties  either  expressly 
or.  impliedly  agreed  upon  a  balance  due.  And  although  you  may  be- 
lieve from  the  evidence  that  at  the  time  in  question  the  parties  got 
together  and  looked  over  their  accounts  and  struck  a  balance  this 
would  not  be  binding  upon  the  parties  as  an  account  stated  unless  you 
further  believe  from  the  evidence  that  both  the  parties  then  agreed 
or  understood,  that  such  balance  should  be  regarded  as  the  amount 
due  from  the  defendant  to  the  plaintiff.5 

(b)  The  jury  are  instructed,  that  in  order  to  constitute  an  account 
stated,  it  is  not  necessary  that  the  admission  of  the  parties,  that 
the  balance  struck  is  correct,  should  be  made  in  express  terms.  If  a 
creditor  has  rendered  his  account  to  the  debtor,  exhibiting  the  items 
thereof,  and  the  amount  due  thereby,  and  the  account  is  not  ob- 
jected to  by  the  debtor  within  a  reasonable  time,  the  acquiescence 
of  the  debtor  therein  is  to  be  taken  as  an  admission  that  the  account 
was  truly  stated.6 

§  419.  Account  Rendered  and  Acquiesced  in  Becomes  a  Stated  Ac- 
count  and   is    Conclusive   Excepting    for  Mistake   or    Fraud.       (a) 

When  two  parties  have  running  accounts  with  each  other,  and  a 
statement  of  the  account  is  made  by  one  party  and  submitted  to  the 
other,  and  the  latter  acquiesces  in  its  correctness,  the  law  will  re- 
gard it  as  a  stated  account,  by  which  both  parties  will  be  bound, 
unless  it  can  be  shown  that  some  error  or  mistake  has  been  made,  or 

3— "Bailey  v.    Bensley,   87  111.    556;  5— Bernhardt    v.    Hines,    51    Mi*s. 

Darbv    v.    Lastrapes..   28    L.    Ann.  M4:    Cape   G.    Rd.    Co.   v.   Kimmel, 

605;    Powers   v.    P.   Rd.   Co.,   65  Mo.  5<?    Mo.    S3;    Stenton    v.    Jerome     54 

658.  N.   T.    408. 

4— Freas  v.   Fruitt,   2  Col.   T.  489.  6— Powell  v.  P.  R.  R.,  65  Mo.  658; 


342  FORMS  OF  INSTRUCTIONS.  [§420. 

fraud    practiced;     and   the   burden  of  proving   the   error,     mistake 
or  fraud,  is  on  the  party  alleging  it.7 

(b)  Although  you  may  believe,  from  the  evidence,  that  the  plain- 
tiff sent,  and  the  defendant  received,  the  accounts  of  sales  read  in 
evidence  on  this  trial,  and  that  the  defendant  made  no  objection  to 
them  at  the  time  they  were  received,  still,  if  you  further  believe,  from 
the  evidence,  that  said  accounts  of  sales  contained  erroneous  charges 
or  false  accounts,  and  that  the  plaintiff  knowingly  concealed  from 
the  defendant  the  fact  of  their  being  erroneous  or  false,  and  that 
the  defendant  did  not,  and  could  not,  by  the  exercise  of  reasonable 
care,  have  ascertained  or  discovered  such  errors  or  false  statements, 
then  a  failure  on  his  part  to  object  to  said  accounts,  at  the  time  of 
receiving  them,  does  not  in  law  estop  him  from  afterwards  showing 
the  truth  in  reference  to  the  matters  contained  in  such  statements.8 

§  420.  Can  Only  Be  Opened  for  Fraud  or  Mistake,  (a)  If  you 
believe,  from  the  evidence,  that  some  time  on  or  about,  etc.,  the  par- 
ties to  this  suit  met  and  looked  over  their  accounts  together,  and 
settled  all  matters  between  them,  and  struck  a  balance  and  agreed 
upon  that  as  the  amount  due  from  one  to  the  other,  then,  in  the  ab- 
sence of  mistake  or  fraud,  neither  party  will  be  allowed  to  go  be- 
hind that  settlement  for  the  purpose  of  increasing  or  diminishing 
the  amount  so  agreed  upon.9 

(b)  You  are  instructed,  that  when  two  parties  have  a  settlement 
and  adjust  all  their  accounts,  and  agree  upon  the  balance  due,  neither 
party  can  afterwards  open  the  settlement  without  first  showing  that 
there  was  some  fraud  practiced  on  him,  or  a  mistake  made  by  both 
parties;  and  the  burden  of  proof  is  upon  the  party  wishing  to  open 
the  settlement,  to  show,  by  a  preponderance  of  evidence,  that  there 
was  a  fraud  practiced  upon  him,  or  that  the  parties  were  laboring 
under  a  mistake  in  relation  to  some  matter  of  fact  which  entered 
into,  or  affected  the  settlement.10 

§421.     Same;  Conclusive  in  Absence  of  Mistake  or  Fraud.     You 

are  instructed  that  if  you  believe  from  the  evidence  that  from  time 
to  time  the  officers  or  agents  of  the  plaintiff  and  defendant  in  this 
suit  met  and  looked  over  their  accounts  together  and  settled  all 
matters  between  them  and  struck  a  balance,  and  agreed  upon  that 
as  the  amount  clue  from  one  to  the  other,  then  in  the  absence  of  mis- 
take or  fraud,  neither  party  will  be  allowed  to  go  behind  that  set- 

1  Greenleaf  Ev.,  Sec.  197;  Freeland  9—1   Am.    &   Eng.    Ency.,    2d   ed., 

v.   Heron,   7  Cranch  147;    Hayes   v.  460. 

Kelley,  116  Mass.   300.  10— Quinlan  v.  Reiser,  66  Mo.  603; 

7— Bradley       v.       Richardson,       2  Wilson  v.  Frisby,  57  Ga.  269;  Haw- 

Blackf.    (U.    S.),   354.  skins  v.  Long".  74  N.  C.  781;   Kron- 

8— Vandever  v.   Stalesir,   39   N.   J.  enberg-er    v.    Bing,    55    Mo.    121,    17 

Law    593;     Petut    v.    Crawford,    51  Am.   Rep.   645;   White  v.   Campbell, 

Miss,.  43;  Anthony  v.  Day,  52  How-  25   Mich.    463. 
ard  N.  Y.  Pr.  35;  Duffy  v.  Hickey, 
63  Wis.   312,  53  Am.    Rep.   292. 


/ 


§  422.]  ACCOUNT  STATED.  343 

tlement  for  the  purpose  of  increasing  or  diminishing  the  amount  so 
agreed  upon..11 

§  422.  Stated  Account  Void  for  Error  or  Want  of  Consideration, 
(a)  I  charge  you,  gentlemen  of  the  jury,  that,  if  you  believe  there 
was  a  stated  account  between  the  plaintiff  and  defendant  in  this 
case,  that  this  fact  would  not  preclude  the  defendant  from  showing 
either  that  the  said  account  was  either  incorrect  or  void  for  want 
of  consideration. 

(b)  I  charge  you,  gentlemen  of  the  jury,  that  if  you  believe  from 
the  evidence  in  this  case  that  the  claim  of  W.  M.  against  the  de- 
fendant in  this  case,  and  sued  on  in  this  case,  was  absolutely  and 
clearly  unsustainable  at  law  or  equity,  its  compromise  would  con- 
stitute no  sufficient  legal  consideration,  and  any  promise  of  the  de- 
fendant afterwards  made  either  to  W.  M.  or  the  plaintiff  in  this 
case,  made  in  a  spirit  of  compromise,  would  be  void  for  want  of  con- 
sideration.12 

§423.  Account;  Settlement;  Material  Mistake;  Fraud;  Proof  Re- 
quired. When  parties  who  have  had  business  transactions  between 
themselves,  meet  and  make  settlement  of  such  transactions,  the  law 
presumes  that  such  settlement  is  fair  and  legal,  and  one  seeking  to 
annul  and  set  aside  such  settlement  by  suit,  in  order  to  do  so  suc- 
cessfully, must  show  by  a  preponderance  of  the  evidence  that  a  ma- 
terial mistake  was  made  in  such  settlement  to  his  prejudice,  or  that 
there  was  fraud  or  coercion,  violence,  or  a  threat  of  such,  committed 
on  the  part  of  the  other  party  in  making  such  settlement,  and  such 
suit  should  be  brought  in  a  reasonable  time.  If  you  find  from  the 
evidence  that  the  plaintiff  and  defendant  had  a  settlement  of  their 
business  transactions  in  the  month  of  ,  and  in  which  set- 
tlement the  property  and  items  mentioned  in  the  account  sued  on 
herein,  were  considered  and  accounted  for,  then  your  verdict  should 
be  for  the  defendant,  unless  you  find  from  a  preponderance  of  the 
evidence  that  there  was  a  material  mistake  made  in  such  settlement 
to  the  prejudice  of  the  plaintiff,  by  the  omission  of  one  or  more  items 
of  their  business  transactions,  or  that  there  was  fraud  or  coercion, 
or  violence,  or  threats  of  such,  committed  by  the  defendant.  In  ar- 
riving at  your  verdict  you  are  to  be  governed  alone  by  what  was 
done  and  said  by  the  parties  at  the  time  of  the  settlement  made,  if 
you  find  that  one  was  made,  and  the  items  included  in  said  settle- 
ment, which  are  included  in  the  account  sued  on  herein.13 

§  424.  Settlement  and  Receipt  Obtained  by  Duress.  If  you  be- 
lieve, from  the  evidence,  that  at  the  time  of  the  alleged  settlement 
between  the  parties,  and  when  the  receipt  in  question  was  given,  the 

11 — Gottfried      Brewing      Co.      v.         13— Russell  v.  Stewart,  —  Ark.  — , 
Szarkowski,    79    111.    App.    583    (5S4).     94  S.  W.   49. 

12—ivy  Coal  &  Coke  Co.  v.  Long, 
139  Ala.  535,  36  So.  722  (723). 


344  FORMS  OP  INSTRUCTIONS.  [§425. 

plaintiff  was  in  embarrassed  circumstances  financially,  and  that  he 
had  money  due  to  him  from  the  defendant  and  from  other  persons, 
and  that  he  was  dependent  upon  receiving  prompt  pay  from  the 
defendant  and  from  such  other  persons,  to  save  himself  from  serious 
loss  or  financial  ruin,  that  defendant  knew  all  this,  and  if  the  jury 
further  believe,  from  the  evidence,  that  the  plaintiff  then  claimed 
that  there  was  due  to  him  from  the  defendant  a  much  larger  sum 
than  ($1,000),  and  that  the  defendant  for  the  purpose  of  compelling 
plaintiff  to  accept  ($1,000)  in  full,  of  the  amount  so  claimed  by  him, 
refused  to  pay  the  plaintiff  any  portion  of  what  was  due,  except  upon 
condition  that  the  plaintiff  should  accept  the  ($1,000)  in  full  pay- 
ment, and  give  a  receipt  in  full  of  all  demands,  and  also  threatened 
to  take  steps  to  stop  payment  to  plaintiff  by  the  other  persons  so 
indebted  to  him,  and  that  by  these  means  the  plaintiff  was  induced 
against  his  free  will  and  consent  to  accept  the  ($1,000)  and  to  give 
the  receipt  in  full,  then  the  plaintiff  was  not  bound  by  such  alleged 
settlement  nor  by  the  receipt  as  a  receipt  in  full.14 

§  425.  Receipt  Prima  Facie  Correct.  The  jury  are  instructed, 
that  a  receipt  which  says  on  its  face  that  it  is  a  receipt  in  full, 
must  be  taken  to  be  in  full  of  all  matters  which  were  claimed,  or 
could  have  been  brought  forward  at  the  time  it  was  given,  unless  it 
appears,  by  a  preponderance  of  the  evidence,  that  some  item  or  mat- 
ter of  claim  was  omitted  by  mistake  of  the  parties,  or  by  the  fraud 
of  the  person  taking  the  receipt.15 

§  426.  Contradicting  Receipt.  The  court  instructs  the  jury  that 
a  receipt  is  but  prima  facie  evidence  of  payment,  and  may  be  con- 
tradicted by  parol  testimony;  and  if  the  jury  believe,  from  the  evi- 
dence, that  the  plaintiff  did  the  extra  work  for  which  this  suit  is 
brought,  at  the  request  of  the  defendant,  expressed  or  implied, 
and  that  defendant  has  not  been  paid  for  the  same,  and  further, 
that  the  receipt  introduced  in  evidence  was  not  intended  to  cover 
that  item,  or  that  the  item  was  overlooked,  and  by  the  mistake  of 
the  parties  not  included  in  the  settlement  when  the  receipt  was 
given,  then  the  jury  should  find  for  the  plaintiff  as  to  that  item.16 

§  427.  Settlement  Presumed  to  Include  all  Items.  If  you  be- 
lieve, from  the  evidence,  that  some  time  about,  etc.,  the  plaintiff  and 
defendant  met  together,  and  looked  over  their  accounts  for  the  pur- 
pose of  settling  the  same,  and  that  they  then  settled  and  agreed  upon 
a  balance  due,  then  the  law  will  presume  that  such  settlement  em- 
braced all  the  items  that  each  had  against  the  other  that  were  then 
due;  and  in  such  case  it  devolves  upon  the  party  asserting  the  eon- 

14— Vyne   v.    Glenn,    41    Mich.   112,         15—1   Greenl.    Ev.    §  212;    Sherman 
1    N.    W.    997;    Sholey  v.    Mumford.     v.  Crosby,  11  Johns.  70. 
60  N.  Y.  498;   Stenton  v.  Jerome,  54         16—2  Pars,  on  Cont.  555;  1  Greenl. 
N.    Y.    480.  Ev.    §  305;     Branch    v.    Dawson,    36 

Minn.   193,   30  N.  W.   545. 


§428.]  ACCOUNT  STATED.  345 

trary  to  prove,  by  a  preponderance  of  evidence,  that  the  item,  etc., 
was  omitted  by  consent  of  the  parties,  or  by  accident  and  uninten- 
tionally, or  by  the  fraud  of  the  other  party.17 

§  428.  Accenting  and  Retaining  a  Less  Amount  Offered  in  Pay- 
ment of  a  Disputed  Claim,  (a)  Now,  if  the  jury  find  that  there 
was  a  dispute  between  plaintiff  and  defendant  as  to  the  amount,  and 
that  defendant,  through  his  agent,  tendered  to  plaintiff  a  certain 
amount,  in  New  York  exchange,  conditioned  that  the  same  was  ten- 
dered only  as  a  full  and  complete  satisfaction  of  all  plaintiff's  claims 
against  defendant  by  reason  of  said  cattle  transaction,  and  if  you 
further  find  that  plaintiff,  fully  understanding  that  said  amount  was 
so  tendered  and  conditioned  on  defendant's  part,  accepted,  with  or 
without  protest,  and  retained,  the  amount  so  tendered  in  New  York 
exchange,  you  will  find  for  the  defendant.18 

(b)  Gentlemen  of  the  jury,  you  are  instructed  that  if  you  find 
from  the  evidence  that  there  was  a  dispute  in  good  faith  between 
the  board  of  county  commissioners  of  defendant  county  and  the 
plaintiffs  as  to  the  amount  justly  due  them  under  said  contract,  and 
that  said  dispute  was  settled  by  such  county  board  agreeing  to  allow 

and  pay,  and  the  said  plaintiffs  to  accept  and  receive,  in  full 

settlement  and  satisfaction  of  said  claim,  and  that  in  pursuance  of 
said  claim,  and  that  in  pursuance  of  such  settlement  and  agreement, 
such  sum  or  money  was  allowed  by  such  board,  and  paid  to  and  re- 
ceived by  said  plaintiffs,  then  said  plaintiffs  cannot  recover  in  this 
action,  and  your  verdict  should  be  for  the  defendant. 

(c)  And  you  are  further  instructed  that  if  you  find  from  the  evi- 
dence that  there  was  a  disagreement  in  good  faith  between  the 
plaintiffs  and  said  board  of  county  commissioners  with  respect  of  the 
amount  due  and  owing  said  plaintiffs  under  said  contract,  and  that 

said  board  proposed  to  allow  and  pay  to  them  the  sum  of  in 

full  satisfaction  and  settlement  of  said  claim,  that  then  it  was  op- 
tional with  said  plaintiffs  to  accept  said  sum  or  to  refuse  the  same. 
But,  if  you  further  find  that  said  plaintiffs  exercised  such  option  by 
accepting  such  allowance  and  receiving  such  sivm,  then  they  would 
be  bound  by  the  condition  that  such  allowance  and  payment  was  in 
full  satisfaction  and  settlement  of  said  claim,  to  the  same  extent 
that  they  would  have  been  bound  had  they  expressly  agreed  to  such 
condition;  and  this  would  be  true  even  as  against  any  secret  or  ex- 
pressed intentions  to  the  contrary,  or  any  protests  then  or  subse- 
quently made.10 

§  429.  Action  for  Money  Loaned — Itemized  Account  of  Indebted- 
ness.   If  the  jiyors  believe  and  find  from  the  evidence  that  the  plain- 

17 — Straubher    v.    Mohler,    SO    Til.         19 — Green    v.    Lancaster    County, 

21;    Allreeht    v.    Gies,    33    Mich.    289.  61  Neb.  473,  85  N.  W.  439   (441). 

18 — Daugherty     v.      Herndon.     27 
Tex.  Civ.  App.  75,  65  S.  W.  891. 


346  FORMS  OF  INSTRUCTIONS.  [§429. 

tiff  loaned  to  the  defendant  the  amounts  of  money  itemized  in  her 
account  sued  on,  and  that  the  credits  given  to  defendant  as  shown 
by  said  account  are  for  payments  made  to  plaintiff  on  account  of  de- 
fendant's indebtedness  to  her,  and  that  the  amounts  and  dates  as 
stated  in  sa^d  account  are  correct,  then  your  verdict  should  be  for  the 
plaintiff  in  such  sum  as  you  believe  and  find  from  the  evidence  that 

the  defendant  is  indebted  to  plaintiff,  not  exceeding  dollars, 

the  amount  sued  for.20 

20— Stephan    v.    Metzger,    95    Mo.    609,  69  S.  W.  625  (627). 


CHAPTER  XXV. 


ADVERSE  POSSESSION. 


See    Erroneous    Instructions,    same  chapter  head   in  Vol.   III. 


§  430.  Adverse    possession    defined. 

§  431.  What  constitutes  adverse 
possession. 

§  432.  Proof  required — Acquiescence, 
open   and    notorious. 

§  433.  Notice   by  possession. 

§  434.  Possession,  njcessary  ele- 
ments   of. 

§  435.  Permissive  possession  not 
hostile — Must  be  hostile  in 
its   inception. 

§  436.  Possession  subservient  to  the 
true    owner. 

§  437.  What  acts  constitute  posses- 
sion— Occasional  use— Phy- 
sical occupation — Acquies- 
cence. 

§  438.  Color  of  title  defined— Plain- 
tiff entitled  to  use  as 
against  one  who  has  no 
title. 

§  439.  Quit  .claim  deed  sufficient 
color  of  title — Cutting  tim- 
ber while   in   possession. 

§  440.  Holding  adversely  under 
claim   of  taxes  paid. 

§  441.  Possession  under  color  of 
title — Actual  possession  de- 
fined. 

§  442.  Adverse  possession — Fraud — 
Color  of  title— Intent— Ex- 
tent occupied — Not  secret 
but  open. 

§  443.  Defendant  attempting  to  jus- 
tif-y  entry  against  plaintiff 
who  has  color  of  title,  as- 
sumes burden  of  proof — 
Facts  he  must  prove  to  be 
relieved    from    liability. 

§  444.  Adverse  possession — Must  re- 
cover upon  strength  of  own 
title — Burden    of   proof. 

§  445.  Assuming  title  in  Mesne 
Grantor. 

§  446.  Adverse  possession — Ele- 
ments constituting — Surveys 
— Land  covered  by  water — 
Homestead. 


§  447.  Adverse  possession — Limita- 
tion— Abandonment. 

§  448.  Admission  of  title  by  grantor 
— Boundaries. 

§  449.  When  possession  of  part  con- 
stitutes a  possession  of  the 
whole. 

§  450.  Actual  possession  of  portion 
of  land  under  deed  carries 
with  it  constructive  posses- 
sion of  balance — Two  tracts 
conveyed  in  one  deed — Rule 
— Limitations. 

§  451.  Possession  under  a  parol  con- 
tract of  sale  is  limited  to 
the  land  in  actual  possess- 
ion— When. 

§  452.  What  is  necessary  to  consti- 
tute adverse  possession  un- 
der an  oral  contract  of  real 
estate   while   in   possession. 

§  453.  Possession  presumed  to  be 
under  legal  title. 

§  454.  Title  by  presumption — With- 
out   color   of    title. 

§  455.  Possession  not  under  color 
of  title. 

§  456.  Deed  not  necessary  to  trans- 
fer possession. 

§  457.  Possession  under  claim  of 
title. 

§  458.  Entering  land  under  deed 
purporting  to  convey  title 
— Possession  for  20  years 
— Grant    presumed. 

§  459.  Entry  of  possession  under 
deed  whether  adverse  and 
whether  land  described  in 
complaint  and  title  offered 
in  evidence  is  the  same  are 
questions    for   jury. 

§  460.  Ouster,    what    required    in. 

§  461.  Time  for  minor  to  bring  suit 
— Admission   against   title. 


§  430.  Adverse  Possession  Defined.  You  are  instructed  that  ad- 
verse possession  sufficient  to  defeat  a  legal  title  must  be  hostile  in 
its  inception  and  continue  uninterruptedly  for  ten  years.  It  must 
also  be  open,  notorious,  adverse,  and  exclusive,  and  must  be  held  dur- 

347 


348 


FORMS   OF   INSTRUCTIONS. 


[§  431. 


ing  all  such  time  under  a  claim  of  ownership  by  the  occupant;  and 
all  of  these  facts  must  be  proved  by  a  preponderance  of  the  evi- 
dence.1 

§  431.  What  Constitutes  Adverse  Possession,  (a)  The  person 
who  has  been  in  the  adverse  possession  of  a  tract  of  land,  and  in 
person  and  by  his  grantors,  continuously  for  more  than  ten  years 
before  the  commencement  of  an  action  to  eject  him  therefrom  be- 
comes the  owner  thereof,  regardless  of  whether  he  had  originally  any 
title  thereto  or  not.  To  constitute  adverse  possession  such  as  to  in- 
vest a  party  claiming  it  with  title  to  and  right  of  possession  of  the 
land  in  dispute,  the  possession  must  have  been  open,  visible,  notori- 
ous, exclusive  and  adverse  for  more  than  ten  years  before  the  com- 
mencement of  this  action.  The  possession  must  have  been  such  as 
was  consistent  with  the  nature  of  the  property,  and  is  indicative  of 
an  honest  claim  of  ownership  thereof;  and  if  you  find  from  the  evi- 
dence in  this  case  that  M.  E.  by  herself  and  her  grantors,  J.  H.,  J.  E. 
and  C.  E.,  was  for  more  than  ten  years  continuously  before  the  com- 
mencement  of   this   case,   to-wit,   the   day  of  ,   in  the 

open,  visible,  notorious,  exclusive,  adverse  possession  of  the  premises 
in  dispute,  claiming  to  own  the  same,  your  verdict  must  be  for  the 
defendant.2 


1— Hoffine  v.  Ewing,  60  Neb.  729, 
84  N.  W.  93.  The  court  said:  "The 
authorities  are  uniform,  and 
grounded  on  fundamental  princi- 
ples, to  the  effect  that  such  pos- 
session must  be  in  opposition  and 
adverse  to  the  constructive  pos- 
session of  the  holder  of  the  legal 
title.  It  must  be  under  a  claim  of 
ownership  which  is  inimical  to  the 
possession  of  the  legal  proprietor 
and  all  others.  In  Horbach  v. 
Miller,  4  Neb.  31,  48,  which  may  be 
regarded  as  the  parent  case  on  the 
subject  in  this  state,  an  instruc- 
tion 'that  if  they  (the  jury)  believe 
from  the  evidence  that  the  plain- 
tiff in  error  for  ten  years  next  be- 
fore the  commencement  of  the 
action  was  in  the  actual,  contin- 
ued, and  notorious  possession  of 
the  land  in  controversy,  claiming 
the  name  as  his  own  against  all 
persons,  they  must  find  for  the 
plaintiff  in  error,  was  approved  as 
a  correct  statement  of  the  law. 
'The  possession  must  be  incon- 
sistent with  the  title  of  the  true 
owner,  and  not  subject  to  the 
rights  of  other  parties.'  Gatling 
v.  Lane,  17  Neb.  77  (79),  22  N.  W. 
227.  'Such  possession,  when  ad- 
verse, is  sufficient,  if  actual,  open, 
notorious,  and  exclusive,  to  give 
the  party  in  possession  title  to  the 
property.'      Crawford    v.    Galloway, 


29  Neb.  261  (267),  45  N.  W.  629.  'It 
is  necessary  that  he  should  act- 
ually hold  the  land  as  his  own 
during  that  period,  in  opposition 
to  the  constructive  possession  of 
the  legal  proprietor.'  In  Smith  v. 
Hitchcock,  3S  Neb.  104,  56  N.  W. 
791,  the  court  says:  'To  constitute 
her  possession  or  occupancy  ad- 
verse, she  must  have  actually  held 
and  occupied  the  property  as  her 
own,  and  in  opposition  and  hostil- 
ity to  the  concurrent  and  con- 
structive possession  of  the  owner 
of  the  legal  title.  There  is  no 
evidence  in  the  record  that  estab- 
lishes or  tends  to  establish  .  .  . 
that  she  ever  held  after  her  entry 
in  hostility  to  the  defendant  in 
error.'  Says  Lake,  C.  J.,  in  Rog- 
gencamp  v.  Converse,  15  Neb.  105 
(108),  17  N.  W.  361:  'They  claimed 
on  the  trial,  and  produced  an 
abundance  of  evidence  to  show, 
that  the  plaintiff's  possession  was 
simply  as  lessee  under  the  title 
conveyed  by  the  deed,  and  not  in 
hostility  to  it.'  From  the  excerpts 
above  given,  the  view  of  this  court 
as  to  the  character  and  requisites 
of  the  possession  required  in  order 
to  obtain  title  is  readily  discern- 
ible." 

2— Baty   v.    Elrod    et   al.,    66   Neb. 
735,  92  N.  W.  1032   (1033). 


§432.]                               ADVERSE   POSSESSION.                                      349 
(b)     If  you  believe  from  the  evidence  that  the  defendant, , 


no  less  than  ten  years  prior  to  the  commencement  of  this  suit,  en- 
tered into  possession  of  the  lands  in  controversy,  and  cultivated  said 
lands  or  fenced  the  same,  or  erected  improvements  of  any  kind  there- 
on, or  did  other  acts  of  such  character  as  to  clearly  show  that  he 
was  occupying  said  lands  and  claiming  the  same  as  his  own,  and  dar- 
ing all  of  said  ten  years  continued  to  so  occupy  said  lands,  claiming 
duiing  all  of  said  time  to  be  the  owner  of  the  same,  and 
never  during  any  of  said  period  of  ten  years  abandoning  said  lands, 
but  during  all  of  said  time  continued  openly,  notoriously,  adversely, 
and  exclusively  to  occupy  and  claim  the  same  as  his  lands,  then  you 
are  instructed  that  said  acts  on  the  part  of  said  defendant,  would 
constitute  adverse  possession,  within  the  meaning  of  the  law,  and 
would  entitle  the  defendant  to  a  verdict  at  your  hands.  But  if  the 
defendant  has  failed  to  establish  any  of  said  acts  by  a  preponderance 
of  the  evidence,  your  verdict  should  be  for  the  plaintiff.3 

§  432.  Proof  Required — Acquiescence — Open  and  Notorious,  (a) 
Adverse  possession  is  not  to  be  made  out  by  inference,  but  by  clear 
and  positive  proof. 

(b)  The  question  for  you  is  whether  the  defendants,  and  those 
under  whom  they  claim,  have  had  for  a  period  of  fifteen  years  actual, 
open,  and  exclusive  adverse  occupancy  and  possession  of  the  land 
claimed  to  be  owned  by  the  plaintiff;  such  adverse  possession  being 
known  and  acquiesced  in  by  the  real  owner,  or  so  far  notorious  as  to 
be  presumptively  within  his  knowledge.4 

§  433.  Notice  by  Possession,  (a)  That  Avhere  a  person  is  in  the 
actual,  open  and  notorious  possession  of  land,  claiming  to  own  the 
same,  this  would  afford  notice  to  the  world  of  all  his  rights  and 
equities  in  the  same.5 

(b)  That  when  a  party  is  in  the  actual,  open  and  visible  posses- 
sion of  land,  under  an  unrecorded  deed,  his  possession  will  afford 
notice  to  the  world  of  his  rights  to  the  land,  whatever  they  may  be, 

3 — In    Hoffine   v.    Ewing,    60   Neb.  the  land   as   the   owner;    that   dur- 

729,    84    N.    W.    93,    the   court    says:  ing   such   period    he   did   not   aban- 

"The  facts  which  are  -to  be  proven  don   his   possession,   but   during  all 

by    a    preponderance    of    the    evi-  the   time   continued    openly,   notor- 

dence   are    those    necessary  for  the  iously,    adversely,    and    exclusively 

defendant   to  establish   in  order  to  to  occupy  and   claim  the  property 

make  out  his  case  under  the  plead-  as  his  own.    This,  we  think,  is  sub- 

ings.      It    required    that    the    proof  stantially     the     effect     of     the     in- 

should    preponderate    in    his    favor  struction,    and    these    facts    we    re- 

as     to     adverse     possession     being  gard    as    essential    elements    to    be 

taken   ten   years  prior  to  the  com-  established   by  a  preponderance  of 

meneement  of  the  suit;  that  at  the  the   evidence   in   order   to   justify   a 

beginning,    and    under    the    posses-  verdict    for   the   defendant." 

sion  thus  entered  into,  the  defend-  4 — Merwin  v.  Morris,  71  Conn.  555, 

ant    did    some    act    or    acts — either  42   Atl.    855. 

one    or    more    of    those    mentioned  5— Strong     v.     Shea,     83     111.     575; 

in    the   instruction — of    a    character  Franklin    v.    Newsome,    53    Ga.    580. 
to    clearly    show    that    he    claimed 


350  FORMS  OF  INSTRUCTIONS.  [§  434. 

equally  with  that  which  would  have  been  given  by  the  recording 
of  his  deed.6 

§  434.  Possession,  Necessary  Elements  of.  The  court  instructs 
the  jury,  if  you  believe,  from  the  preponderance  of  the  evidence, 
that  the  grantors  of  the  plaintiff  held  open,  notorious,  adverse,  hos- 
tile, peaceable,  uninterrupted  and  continued  possession  of  the  land 
in  question  for  some  time  under  claim  of  ownership  thereto,  and  that 
they  conveyed  one  from  another  down  to  the  plaintiff  herein,  and 
that  under  said  conveyance  the  plaintiff  took  possession  of  the  land 
in  question  and  held  the  open,  notorious,  adverse,  hostile,  peaceable, 
uninterrupted  and  continuous  possession  thereof,  under  claim  of 
ownership,  from  the  time  of  such  conveyance  to  the  time  it  is  alleged 
in  the  declaration  that  the  defendant  took  possession  thereof,  and 
that  such  possession  of  the  said  grantors  of  the  plaintiff  and  the 
possession  of  the  plaintiff  together  amount  to  a  period  of  twenty 
years  or  more  prior  to  the  time  it  is  alleged  in  the  declaration  that 
the  plaintiff  took  possession  thereof,  then  the  plaintiff  would  be  the 
absolute  owner  of  said  land;  then,  if  you  further  believe,  from  the 
preponderance  of  the  evidence,  that  the  defendant  took  and  unlaw- 
fully withheld  from  the  plaintiff  the  possession  thereof,  as  alleged 
in  the  declaration,  then  you  should  find  a  verdict  for  the  plaintiff.7 

§  435.  Permissive  Possession  not  Hostile — Must  be  Hostile  in  its 
Inception,  (a)  Although  you  may  believe,  from  the  evidence,  that 
one  A.  B.,  more  than  twenty  years  before  the  commencement  of  this 
suit,  built  a  fence  around  the  land  in  question  (or  otherwise  im- 
proved it),  this  alone  does  not  show  adverse  possession  in  him.  To 
constitute  adverse  possession,  it  must  further  appear,  from  the  evi- 
dence, that  what  he  did  on  the  land  was  not  with  the  leave  or  per- 
mission of  the  owner,  but  was  done  under  a  claim  of  right  in  himself, 
and  in  hostility  to  the  right  of  the  owner.8 

(b)  The  jury  are  instructed,  that  if  a  person  enter  into  the  pos- 
session of  the  lands  of  another,  with  the  consent  of  the  owner,  for 
any  other  purpose  except  to  claim  the  land  as  his  own,  such  posses- 
sion alone,  no  matter  how  long  it  is  continued,  will  never  bar  the  right 
of  the  owner  to  take  possession  of  his  land  when  he  sees  fit  to  do  so.9 

§  436.  Possession  Subservient  to  the  True  Owner.  Where  posses- 
sion of  real  estate  is  taken  under  a  claim  consistent  with  or  in  sub- 
ordination to  the  title  of  the  real  owner,  nothing  but  a  clear,  un- 
equivocal and  notorious  disclaimer  of  the  title  of  such  owner  will 
render  such  possession  adverse.10 

§  437.  What  Acts  Constitute  Possession — Occasional  Use — Physical 
Occupation — Acquiescence.      (a)     The    possession    of    land   may   be 

6— Walden  v.  Gridley,  36  111.  523;  Foster  v.  Letz,  86  111.  412.  See  Fox 
Spitler  v.    Scofleld,  43  la.   571.  v.   Spears,  —  Ark.  — ,  93  S.  W.  560. 

7— Laurance  v.  Goodwin,  170  111.  9 — Collins  v.  Johnson,  57  Ala.  304. 
390   (395),   48   N.   E.   903.  10— Newell    on    Eject.    767;    Tyler 

8— Russeli  v.  Davis,  38  Conn.  562;  '  on    Eject.    217. 


§•±37.]  ADVERSE  POSSESSION.  351 

held  in  different  modes — by  inclosure,  by  cultivation,  by  the  erection 
of  buildings  or  other  improvements,  or  in  any  mode  that  clearly  indi- 
cates an  exclusive  appropriation  of  the  property  by  the  person  claim- 
ing to  hold  it.11 

(b)  That  where  land  is  appropriated  to  such  uses  as  it  is  naturally 
fitted  for,  and  the  manner  in  which  it  is  used,  by  the  persons  claim- 
ing title,  is  such  as  to  notify  the  public  that  such  person  has  asserted 
dominion  over  it,  this  will  constitute  possession.12 

(e)  An  occasional  use  of  the  land,  such  as  the  occasional  cutting 
of  grass  or  firewood,  will  not  be  sufficient  to  establish  adverse  pos- 
session. 

(d)  But  neither  physical  occupation,  cultivation,  nor  residence  is 
necessary  to  constitute  actual  adverse  possession,  when  the  property 
is  so  situated  as  not  to  admit  of  any  permanent  useful  improvement, 
and  the  continued  cdaim  of  the  property  has  been  evidenced  by  open, 
visible,  continuous  acts  of  ownership,  known  to  and  acquiesced  in 
by  the  real  owner,  or  so  far  notorious  as  to  be  presumed  to  be  within 
his  knowledge.13 

(e)  The  jury  are  instructed  that  under  the  issues  in  this  case  the 
burden  of  proof  rests  upon  the  plaintiff,  and  before  it  can  recover 
any  of  the  lots  in  controversy  from  the  defendant,  the  plaintiff  must 
show  to  the  satisfaction  of  the  jury,  and  by  a  preponderance  of  evi- 
dence, a  right  to  them  superior  and  better  than  that  of  the  defendant. 
Unless  the  plaintiff  has  succeeded  in  doing  this  the  jury  should  re- 
turn a  verdict  in  favor  of  the  defendant. 

(f)  In  his  answer  to  the  plaintiff's  petition  the  defendant,  H., 
has  interposed  as  a  defense  the  statute  of  limitations,  by  which  he 
asserts,  in  effect,  that  the  lots  in  controversy  have  been  under  his 
control  and  occupancy  for  the  full  period  of  ten  years  next  before 
this  suit  for  the  possession  was  commenced.  And  if  the  jury  shall 
find  from  the  evidence  that  as  to  the  lots  in  controversy,  or  any  of 
them,  H.  had  been  in  the  undisturbed,  actual,  open,  and  exclusive  oc- 
cupation and  control,  either  personally  or  by  his  servants,  agents  or 
lessees  for  ten  years  next  before  the  commencement  of  this  action, 

(which  was ),  and  under  a  claim  of  ownership,  then,  in  that 

case,  the  defendant  is  entitled  to  a  verdict  in  his  favor  as  to  all  of 
the  lots  so  occupied  and  controlled  by  him. 

(g)  No  particular  act  or  series  of  acts  were  necessary  to  be  done 
on  the  land  by  H.  in  order  to  make  his  possession  actual  and  avail- 
able to  him  in  this  case  as  a  defense.  Any  visible  or  notorious  acts 
which  the  jury  may  find  from  the  evidence  clearly  show  an  inten- 
tion on  his  part  to  claim  ownership  and  possession  will  be  sufficient 
to  establish  his  claim  of  adverse  possession ;  and  such  acts  are  equally 
available  to  him,  whether  they  were  done  either  personally  or  by 
his  lessees  or  other  privies  or  agents. 

11— Truesdale  v.  Ford,   37  111.  210.         13— Merwin    v.    Morris,    71    Conn. 
12— Hubbard  v.  Kiddo,  87  111.  578.     555,  42  Atl.   855. 


352  FORMS  OP  INSTRUCTIONS.  [§437. 

(h)  Adverse  possession  may  be  evidenced  by  such  use  of  the  lots 
in  question  by  H.  or  his  privies  as  would  indicate  to  a  passerby,  and 
to  the  owner  if  he  went  to  them,  that  they  were  used  and  claimed  by 
some  one. 

(i)  The  jury  are  instructed  that  it  is  not  necessary  that  one  who 
takes  possession  of  lands  or  lots,  and  holds  the  same  adversely  to  the 
owner,  should  have  a  deed  or  other  written  evidence  of  title  in 
order  to  cause  the  statute  of  limitations  to  run  in  his  favor;  but  it  is 
sufficient  if  he  take  actual,  open  possession,  under  a  claim  of  owner- 
ship, and  continue  it  for  the  full  period  of  ten  years.  If  he  do  so, 
his  title  and  ownership  are  complete. 

(j)  If,  as  to  any  of  the  lots  in  controversy,  the  jury  shall  find 
that  H.  took  actual  possession,  and  either  in  person,  or  by  another 
person  or  persons,  as  his  agents  or  lessees,  held  such  possession  for 
a  time,  and  then  sold  his  right  to  another,  who  continued  in  actual 
possession,  and  from  whom  he  has  since  purchased  it  back,  H.  may 
avail  himself  of  their  several  occupancies  in  this  action,  provided  that, 
taken  together,  they  continued  uninterruptedly  for  ten  years. 

(k)  If  the  jury  find  that  H.,  by  himself  or  his  employes,  lessees 
or  privies,  has  had  exclusive  control  and  actual  occupancy  of  said 
lots,  or  any  of  them,  under  a  claim  of  ownership  for  the  full  period 
of  ten  years  next  before  the  commencement  of  this  suit,  the  fact 
that  he  may  have  occupied  or  had  inclosed  with  them  other  grounds, 
or  even  portions  of  the  public  streets,  would  not  of  itself  be  sufficient 
to  prevent  a  recovery  by  the  defendant  as  to  such  lots,  provided 
the  defendant  exercised  such  acts  of  ownership  and  control  over  such 
lots  as  to  indicate  clearly  his  intention  to  claim  the  same  as  if  his 
fence  had  inclosed  only  said  lots,  and,  as  to  lots  so  occupied  and  con- 
trolled, the  jury  should  find  in  favor  of  the  defendant.14 

14 — The   above   series   of  instruc-  take.      Neither    does    the    purchase 

tions    on    adverse    possession    was  of  a  tax-deed  break  the  continuity 

approved     in     Omaha    &     Florence  of  a  possession.     Griffith  v.    Smith, 

Land    &    Trust    Co.    v.    Hansen,    32  42    Neb.    749,    42    N.    W.    Rep.    749. 

Neb.   449,   49   N.   W.   456    (457).  "Cases  may  be  found  which  hold 

The  court  said:  "In  order  to  that  the  purchase  of  such  title 
give  security  to  titles,  the  legis-  breaks  the  continuity.  We  cannot 
lature,  nearly  30  years  ago,  fixed  agree,  however,  that  such  is  the 
10  years  as  the  period  within  case.  A  party  in  possession  of 
which  an  action  to  recover  the  land  as  owner  certainly  has  a 
possession  of  land  should  be  right  to  protect  that  possession  by 
brought.  The  construction  of  this  the  purchase  of  any  outstanding 
statute  has  been  considered  in  claim  or  lien  against  the  property, 
many  cases  by  this  court,  and  the  There  is  not  thereby  any  break  in 
uniform  holding  has  been  that  the  the  possession,  nor  does  the  ad- 
statute  is  one  of  repose;  that  if  a  verse  occupant  rely  upon  his  pur- 
party  establish  in  himself,  or  in  chased  title  in  preference  to  the 
connection  with  those  under  whom  one  which  he  previously  possessed, 
he  claims  an  actual,  notorious,  He  joins  the  two  together,  and 
continuous  possession  of  land  as  possesses  whatever  title  both  may 
owner  for  a  period  of  10  years,  he  give  him.  There  is  no  error,  there- 
thereby  acquires  an  absolute  title  fore,  in  the  instructions  given  on 
to  the  land;  and  this  irrespective  behalf  of  the  defendant,  and  they 
of  any  question  of  motive  or  mis-  conform    to    the   proof.     It   is   evi- 


§438.]  ADVERSE  POSSESSION.  353 

§  438.  Color  of  Title  Defined— Plaintiff  Entitled  to  Use  as  Against 
One  Who  has  no  Title,  (a)  The  court  instructs  you  that  color  of 
title  is  anything  which  shows  the  extent  of  the  occupant's  claim, 
not  only  of  a  deed  or  plat,  but  fences,  hedges,  or  marked  lines  may 
be  sufficient  evidence  of  the  extent  of  the  claim,  and  herein  consti- 
stntes  color  of  title.15 

(b)  The  court  instructs  you  that  where,  in  an  action  like  this, 
it  is  shown  by  a  plaintiff  that  his  or  her  deed  covers  a  certain  tract 
of  land,  then  such  plaintiff  is  said  to  have  color  of  title  to  such  land, 
and  it  follows,  as  a  matter  of  law  and  right,  that  such  plaintiff  is 
entitled  to  the  use  and  occupation  of  such  land  as  against  anyone 
who  has  no  title  to  the  same.16 

§  439.  Quit  Claim  Deed  Sufficient  Color  of  Title— Cutting  Timber 
While  in  Possession.   The  court  instructs  the  jury  that  the  quit  claim 

deed  from  the Co.  to  M.,  one  of  the  defendants  in  this  case, 

embracing  the  land  in  dispute,  is  sufficient  to  constitute  color  of 
title  in  defendants;  and  you  are  further  instructed  that  if  you  find 
from  the  evidence  that  defendants,  after  obtaining  said  deed,  en- 
tered into  actual,  continuous,  visible  possession  of  said  lands,  and 
so  remained  in  possession  thereof  until  the  institution  of  the  plain- 
tiff's action  herein,  claiming  the  same  adversely  to  the  plaintiff,  and 
that  the  said  timber  and  trees  were  by  the  defendants  cut  down  and 
removed  from  the  said  lands  by  the  defendants  when  they  were 
thus  in  possession  of  the  said  lands,  then  you  will  find  the  issues  for 
the  defendants.17 

§  440.  Holding  Adversely  Under  Claim  of  Taxes  Paid.  If  the 
jury  find  from  the  evidence  that  W.  D.,  the  ancestor  of  the  defend- 
ants, bought  at  a  tax  sale  held  by  the  late  corporation  of  , 

so  called,  the  property  in  controversy  in  this  case  and  paid  the  price 

bid  by  him  at  such  sale  and  received  from  the  corporation  of 

a  deed  to  said  property,  which  was  by  him  duly  filed  for  record  and 

recorded    in   the   land   records   of   the    more    than    twenty 

years  prior  to  the  commencement  of  this  suit;  and  thereupon  the 
said  property  was  assessed  to  the  said  W.  D.  on  the  tax  books  of  the 

city  of  and  the  taxes  thereupon  from  that  time  until  the 

beginning  of  this  suit  paid  by  the  said  W.  D.  or  his  successors  in 
title,  the  defendants  in  this  case ;  that  at  a  period  of  time  more 
than  twenty  years  before  the  commencement  of  this  suit  the  said 
property  was  rented  in  behalf  of  the  defendants  to  a  person  who 
took  the  same  and  held  possession  thereof  as  tenant  of  the  de- 
dent  that  there  is  no  material  15 — Connor  v.  Johnson,  59  S.  C. 
error  in  the  record."  Where  in-  115,  37  S.  E.  240  (245). 
struetions  are  approved  as  a  series         16 — Id. 

it    does    not    follow    that    each    in-         17 — Holliday-K.    L.    &    L.    Co.    v. 
struction     if     taken     alone     would      Markham,  —  Mo.  App.  — ,  75  S.  W. 
meet    the    approval    of    the    court-     1121. 
author. 
23 


354  FORMS  OF  INSTRUCTIONS.  [§441. 

fendants  for  the  purposes  of  a  stone  yard,  paying  rent  therefor  from 
the  date  of  making  such  arrangement  with  the  defendants,  and  that, 
although  the  said  property  was  inclosed  by  a  fence,  yet  the  person 
so  renting  the  same,  either  upon  the  whole  or  a  part  thereof,  during 
his  occupancy,  deposited  stone  used  by  him  in  his  business,  and  that 
such  use  and  possession  of  the  said  property  was  continued  by  the 
occupant  thereof  actually,  adversely  and  uninterruptedly  for  a  period 
of  twenty  years  next  before  the  commencement  of  this  suit,  then  the 
jury  is  instructed  that  the  defendants  are  entitled  to  recover.18 

§  441.  Possession  Under  Color  of  Title — Actual  Possession  Defined. 
The  court  instructs  you  that  if  J.  was  in  possession  of  this  land 
under  the  color  of  title  the  plaintiff  cannot  recover  unless  he  proves 
actual  possession,  and  merely  including  land  of  a  plat  or  deed  is 
not  actual  possession.  Actual  possession  is  such  an  entry  and  holding 
of  land  as  would  make  the  party  liable  for  damages  if  his  entry  was 
unlawful.19 

§  442.  Adverse  Possession — Fraud — Color  of  Title — Intent — Ex- 
tent Occupied — Not  Secret,  but  Open,  (a)  The  court  charges  the 
jury  that  the  law  abhors  a  fraud. 

(b)  The  court  charges  the  jury  that  the  possession  of  land  which 
the  law  protects  is  open  and  notorious  possession,  and  not  a  secret 
or  furtive  possession. 

(c)  The  court  charges  the  jury  that  if  adverse  possession  is  held 
without  color  of  title,  such  possession  is  limited  to  the  portion  actu- 
ally occupied;  and  if  the  deed  from  D.  A.  G.  was  not  actually  made 
until  1894,  then  E. 's  possession  prior  to  the  time  is  limited  to  the 
part  actually  occupied  by  him. 

(d)  The  court  charges  the  jury  that  if  at  the  time  the  deed  from 
G.  to  E.  was  executed  the  defendant  or  those  under  whom  it  claimed 
was  in  the  adverse  possession  of  said  land,  then  said  deed  from  G. 
was  void  as  evidence  of  title. 

(e)  The  court  charges  you  that  the  idea  of  adverse  possession 
is  inconsistent  with  and  repugnant  to  the  idea  of  a  secret  or  furtive 
possession. 

(f)  The  court  charges  the  jury  that  if  E.  and  G.  made  the  G. 
deed  in  1894,  and  dated  it  back  to  1867,  it  was  a  gross  fraud  if  E. 
intended  to  use  such  deed  as  a  color  of  title  since  1867  against  the 
defendant. 

(g)  The  court  charges  you  that  to  constitute  adverse  possession 
there  must  be  an  actual  claim  of  present  ownership,  accompanied 
with  possession,  and  a  possession  with  mere  intent  to  claim  it  in  the 
future  is  not  adverse  possession.20 

18 — Holtzman   v.   Douglas,   168  TJ.  tions  was  approved  in  Edmondson 

S.   278    (285),    18   S.    Ct.    Rep.   65.  v.     Anniston    City    Land     Co.,     128 

19— Connor   v.    Johnson,    59    S.    C.  Ala.    589,    29    So.    596    (598).      "This 

115,  37  S.   E.  240   (245).  charge   was    not    abstract   as   there 

20 — The   above   series   of  instruc-  was  evidence  to  support  it.     If  it 


§443. J  ADVERSE  POSSESSION.  355 

§  443.  Defendant  Attempting  to  Justify  Entry  Against  Plaintiff, 
"Who  has  Color  of  Title,  Assumes  Burden  of  Proof — Facts  He  Must 
Prove  to  Be  Relieved  from  Liability.  The  court  instructs  you  that 
where  a  defendant,  in  a  case  like  this,  undertakes  to  justify  his 
entry  upon  land  in  possession  of  a  plaintiff,  who  has  color  of  title 
to  the  same,  the  burden  of  proof  is  upon  him,  and,  before  he  can 
relieve  himself  from  liability,  he  must  satisfy  the  jury,  by  the  pre- 
ponderance of  the  evidence,  of  one  or  the  other  of  the  following  facts : 
First,  that  he  entered  on  such  land  with  the  consent  of  the  plaintiff; 
or,  second,  that  he  was  in  possession  of  such  land  under  color  of 
title;  or,  third,  that  he  has  a  good  title  to  such  land.21 

§  444.  Adverse  Possession — Must  Recover  Upon  Strength  of  Own 
Title — Burden  of  Proof,  (a)  Under  the  pleadings,  the  law,  and 
the  evidence  in  this  case,  the  only  question  for  your  consideration 
is  the  question  of  adverse  possession  of  the  property  in  controversy 
set  up  by  the  defendant,  in  his  answer  herein,  wherein  he  alleges 
that  he  has  been  in  the  actual,  open,  notorious,  and  exclusive  pos- 
session of  the  land  in  controversy,  claiming  the  same  adversely  to 
the  plaintiff  and  all  the  world,  for  more  than  ten  years  next  before 
the  commencement  of  this  action ;  and  the  burden  is  upon  the  de- 
fendant to  establish  such  defense  by  a  preponderance  of  the  evi- 
dence.22 

(b)  The  court  charges  the  jury  that  the  plaintiff  must  recover 
if  at  all,  upon  the  strength  of  his  own  title,  and  therefore  if  he  has 
failed  to  satisfy  the  jury  by  a  preponderance  of  the  evidence  that 
the  land  claimed  by  him  is  covered  by  his  deed  you  should  answer 
the  first  issue  "No."  If  the  jury  find  that  the  plaintiff's  deed  covers 
the  land  in  dispute,  you  should  answer  the  first  issue,  "Yes,"  unless 
the  defendant  has  satisfied  you  by  a  preponderance  of  the  evi- 
dence that  he  has  been  in  the  actual  and  adverse  possession  thereof, 
under  known  and  visible  boundaries,  for  20  years  next  prior  to  the 
date  of  the  commencement  of  this  action.23 

(c)  Now,  you  have  heard  the  old  saying  that  "Possession  is 
nine  points  in  the  law,"  and  it  is  well  that  it  is  so.  The  law  pre- 
sumes that  those  in  possession  are  rightfully  in  possession,  and  he 
who  claims  that  they  are  unlawfully  in  possession  has  to  satisfy 
the  jury  by  the  preponderance  of  the  evidence  that  he  has  a  good 

had    any    misleading-    tendency     it  an    explanatory    charge.      Pullman 

was    the    duty    of    the   plaintiff    to  Palace  Car  Co.   v.  Adams,  120  Ala. 

have    counteracted    such    tendency  584,    24    So.    921,    74    Am.    St.    Rep. 

by  asking  an  explanatory  or  qual-  53,    45    L.    R.    A.    767;    Chandler   v. 

ifying  charge.     A  charge  which  as-  Jost,    96    Ala.    596,    11    So.    636;    Mil- 

serts    a    correct    legal    proposition  ler  v.    State,    54   Ala.   155." 

does  not  constitute  a  reversible  er-  21 — Connor   v.    Johnson,    59    S.    C. 

ror,  though  such  charge  under  the  115.   37   S.   E.    240. 

facts  of  the  case  may  have  a  ten-  22 — Hoffine  v.  Ewing,  60  Neb.  729, 

dency  to  mislead;   but  if  the  other  84   N.   W.   93. 

party  apprehends  that  such  charge  23 — Pittman    v.   Weeks,   132   N.   C. 

was   misleading  he   should   request  81,   43  S.  E.   582. 


356  FORMS  OF  INSTRUCTIONS.  [§445. 

title,  and  a  better  title  than  the  defendant.  He  is  to  recover  by  the 
strength  of  his  own  title.24 

(d)  If  a  plaintiff,  in  a  case  like  this,  shows  that  he  or  she  is  in 
possession  under  color  of  title  of  a  tract  of  land,  and  a  defendant 
conies  in  and  undertakes  to  justify  an  entry  thereon  under  a  deed 
from  a  former  owner,  the  burden  of  proof  is  upon  him,  and,  in  order 
to  relieve  himself  from  liability,  he  must  show,  by  the  preponderance 
of  the  evidence,  that  his  deed  does  cover  such  land,  and,  if  he  does 
not  do  so,  the  verdict  must  be  against  him.25 

§  445.  Assuming  Title  in  Mesne  Grantor.  The  court  instructs  the 
jury  that  if  they  believe,  from  the  evidence,  that  J.  N.   purchased 

the  lot  in  question  from  D.  K.,  on  the  first  day  of ,  and  that 

the  plaintiffs  in  the  declaration  named  are  the  heirs  at  law  of  J.  N., 
they  must  find  for  the  plaintiff,  unless  they  shall  be  satisfied,  from 
the  evidence,  that  S.  D.,  the  defendant  in  this  suit,  under  a  claim  or 
color  of  title,  has  had  actual,  open,  visible,  continuous,  exclusive,  no- 
torious, and  uninterrupted  possession  of  the  said  lot  for  a  period  of 
fifteen  consecutive  years  at  some  time  previous  to  the  institution  of 
the  suit.26 

§  446.  Adverse  Possession — Elements  Constituting — Surveys — Land 
Covered  by  Water — Homestead.  If  you  find  that  the  defendant — and 
his  grantors — have  been  for  a  period  of  more  than  fifteen  years  next 

before  the  commencement  of  this  suit,  ,  in  actual,  continued, 

visible,  notorious,  distinct  and  hostile  possession  of  the  land  in  dis- 
pute, then  your  verdict  should  be  for  the  defendants,  because  such 
long-continued  adverse  possession  gives  just  as  good  a  title  as  a  deed. 
You  are  instructed  that  when  possession  is  by  actual  occupation  of 
the  land  in  question  or  by  tenants  under  claim  of  title  in  the  land- 
lord, the  possession  is  visible,  open,  notorious,  and  distinct,  and  will 
be  presumed  to  be  hostile.  The  actual,  continued,  visible,  notorious, 
and  hostile  possession  of  land  is  tantamount  to  a  claim  of  owner- 
ship. If  you  find  that  the  defendant  and  his  predecessors  suc- 
cessively have  maintained  adverse  possession  for  more  than  fifteen 
years  up  to  the  east  line  of  the  disputed  tract,  or  up  to  the  fence 
in  question,  then  it  is  entirely  immaterial  whether  the  fence  or  the 
east  line  of  the  disputed  tract  is  on  the  surveyed  line  run  originally 
by  the  United  States  government  surveyor  as  a  dividing  line  between 
private  land  claims  105  and  106.  A  part  of  this  strip  of  land  in  ques- 
tion is  land  covered  by  water,  or  what  is  called  "water  frontage." 

You  are   instructed  that  it  is  not  necessary  that  and  his 

successive  grantors  should  have  held  this  water  front  actually  in 
possession,  or  have  of  the  water  front  what  the  law  calls  "possessio 
pedis,"  or  possession  of  the  foot.     Such  possession  is  only  required 

24— Sutton   v.  Clark,   59  S.  C.  442,  26— Atkinson  v.  Smith,  —  W.  Va. 

38   S.    E.    150,    82    Am.    St.   Rep.    848.  — ,    24   S.   E.    901. 

25 — Connor   v.    Johnson,    59   S.    C. 
115,    37   S.    E.    240. 


§447. J  ADVERSE  POSSESSION.  357 

in  the  case  of  the  solid  land,  or  the  upland;  and,  accordingly,  if  you 
find  that  the  defendant  has  had  adverse  possession,  as  hereinbefore 
explained  to  you,  of  the  upland  for  the  statutory  period  of  fifteen 
years,  this  adverse  possession  of  the  upland  would  carry  with  it  the 
enjoyment  of  the  riparian  rights  as  to  the  land  under  the  water,  so 
far  out  as  the  ownership  goes  for  anybody,  without  any  proof  fur- 
ther whatever  of  adverse  possession  of  the  water  front,  or  land  under 
the  water.  You  are  instructed  that  it  is  the  law  that  in  retracing' 
the  lines  of  a  former  survey  that  course  and  distance  shown  by  the 
field  notes  of  the  former  survey  must  yield  to  the  original  artificial 

or  natural  monuments.     The  undisputed  testimony  shows  that  

and  his  wife, ,  occupied  the  land  north  of  Portage  avenue  as 

a  homestead  at  the  time  of  the  alleged  conversation  stated  to  have 

occurred  between  and  .     You  are  instructed  that 

could   not   incumber,   bind,   or  convey   any   portion   of   his 

homestead  Avithout  the  consent  in  writing  of  his  wife  and  you  are  in- 
structed that  there  is  no  evidence  of  such  written  consent  in  this 
case.27 

§447.  Adverse  Possession — Limitation — Abandonment.  (a)  If 
the  jury  believe  from  the  evidence  that  the  defendant  entered  into 
possession  of  the  lands  in  suit  prior  to  the  year  1876,  and  continued 
in  possession  thereof  until  1889,  and  used  and  occupied  the  same  con- 
tinuously between  said  dates  openly,  notoriously,  and  under  claim  of 
ownership,  the  jury  should  return  a  verdict  in  favor  of  the  de- 
fendant. 

(b)  If  the  jury  believe  from  the  evidence  that  the  defendant  had, 

prior  to  been  in  open,  notorious,  and  continuous  possession  of 

the  land  in  suit,  claiming  to  own  it,  for  more  than  ten  years,  and 
did  not  during  such  time  recognize  the  title  or  ownership  of  anyone 
else  of  said  land,  then  the  jury  should  return  a  verdict  for  the  de- 
fendant, whether  the  defendant  recognized  title  in  the  plaintiff  in 
the  fall  of  and  subsequently  or  not. 

(c)  If  the  jury  find  from  all  the  evidence  that  W.  A.  went  into 
possession  of  the  land  in  dispute  under  an  agreement  with  his 
brother,  J.  M.,  to  make  the  Rock  Mills  and  High  Shoals  road  the 
line,  and  held  possession  of  such  lands  continuously,  claiming  to  own 
them,  for  the  ten  years  or  more  next  before  1889,  they  must  find  for 
the    defendant. 

(d)  If  W.  A.,  for  the  next  ten  years  prior  to  ■ ,  had  been  in 

possession  of  the  land  in  dispute,  intending  to  claim  up  to  the  Rock 

27— Dawson  v.  Falls  City  Boat  where  adverse  possession  is  de- 
Club,  125  Mich.  434.  84  N.  W.  618  fined  and  the  court  held  the 
(620);  Shearer  v.  Middleton,  89  words  "visible"  and  "exclusive" 
Mich.  632,  50  N.  W.  740;  Mitchell  were  not  necessary  where  the  proof 
v.  Chambers,  43  Mich.  168,  5  N.  W.  showed  that  the  defendant  had 
57.  See  also  Lempman  v.  Van  Al-  gone  upon  the  premises  year  after 
styne,    94   Wis.    417,    69    N.    W.    171,  year  and  cut   his  fire  wood. 


358  FORMS  OF  INSTRUCTIONS.  [§448. 

Mills  and  High  Shoals  road,  and  his  possession  was  open,  notorious, 
uninterrupted,  hostile,  and  under  claim  of  ownership  for  that  time, 
the  jury  must  find  for  the  defendant. 

(e)     If  the  jury  find  from  the  evidence  that  W.  A.,  in or , 

abandoned  his  claim  to  land  in  dispute,  but  that  before  such  aban- 
donment he  had  acquired  title  to  the  land  by  adverse  possession,  such 
abandonment  would  not  defeat  his  title.  They  must  find  a  verdict 
for  him  unless  such  abandonment  continued  for  ten  years.28 

§  448.  Admission  of  Title  by  Grantor — Boundaries,  (a)  But  if,  as 
is  claimed  by  the  plaintiff  here,  you  shall  find  that  the  predecessors 
of  these  defendants  in  the  claim  of  alleged  title  have  admitted  the 
title  to  be  in  the  predecessors,  or  any  of  them,  and  so  you  find  the 
title  established,  then  it  is  not  necessary  that  it  appear  that  any 
possession  has  been  exercised  on  the  part  of  the  owner. 

(b)  But  the  point  is  that  the  plaintiff  contends  that  in  certain 
deed  or  deeds  in  the  defendant's  chain  of  title  the  description  of  that 
M.  land  is'  given  with  the  boundary  on  the  south,  being  on  the  land  in 
dispute. 

(c)  Now,  I  think  it  is  my  duty  to  charge  you,  as  a  matter  of 
law,  that  that  amounts  to  an  admission  on  the  part  of  the  grantor  or 
grantors  so  describing  that  land  that  the  title  to  the  land  (being 
the  land  here  in  dispute)  is  in  the  party  so  named  in  those  deed  or 
deeds,  as  being  on  the  south  boundary  of  the  so-called  M.  land.29 

§  449.  When  Possession  of  Part  Constitutes  a  Possession  of  the 
Whole,  (a)  The  court  instructs  the  jury,  that  where  a  party  has 
title,  or  color  of  title,  to  woodland,  and  uses  the  land  for  the  purpose 
of  obtaining  wood  for  fuel  or  fencing,  for  a  farm  in  the  neighbor- 
hood, under  a  claim  of  ownership,  this  will  constitute  a  possession ; 
and  so,  if  a  person  holding  a  deed  for  land,  enters  and  clears  off, 
breaks  up  or  improves  a  part,  with  intent  to  follow  up  such  act  with 
other  improvements  on  the  land,  this  will  be  a  possession  of  the 
whole.30 

(b)  If  you  believe,  from  the  evidence,  that  some  time  on  or  about, 
etc.,  the  defendant  went  onto  a  portion  of  the  land  in  controversy, 
under  his  deed,  introduced  in  evidence,  and  broke  up  a  portion  of 
the  land,  and  that  at  that  time  there  was  no  one  else  in  the  actual 
possession  of  said  tract,  or  any  part  of  it,  then  such  breaking  and 
possession  would  extend  to  all  the  land  embraced  in  his  deed.31 

28— The   above    series    of   instruc-  liams,    108    Ala.     282,    19     So.     317; 

tions   was  approved   in  Pittman   et  Cobb    v.     Malone,     92    Ala.     630,     9 

al.    v.    Pitman,    124   Ala.   306,    27   So.  So.    738." 

242     (244).      "These    charges,"     said  29 — Merwin    v.    Morris,    71    Conn, 

the  court,  "given  at  the  request  of  555,    42    Atl.    855. 

the      defendant      asserted      correct  30— Wilson   v.    Williams,    52   Miss. 

propositions  of  law,  and  were  sup-  487;    Scott    v.    Delaney,    87   111.    146; 

ported    by    the    tendencies    of    the  Barger   v.    Hobbs,    67   111.    592;    Fu- 

c-vidence   in   the  facts  hypothesized  gate  v.  Pierce,  49  Mo.  441. 

in    each    of   them.      Jones    v.    Wil-  31— Blanchard    v.     Pratt,    37    111. 


§450.]  ADVERSE  POSSESSION.  359 

§  450.  Actual  Possession  of  Portion  of  Land,  Under  Deed,  Carries 
with  it  Constructive  Possession  of  Balance — Two  Tracts  Conveyed  in 
One  Deed — Rule — Limitation,  (a)  Possession  by  one  of  land  im- 
proved and  inclosed  holds  all  within  his  inclosure.  If  his  posses- 
sion is  under  a  deed  he  has,  in  addition  to  his  actual  possession,  con- 
structive possession  to  the  extent  of  the  boundaries  indicated  by 
his  deed. 

(b)  Gentlemen  of  the  jury,  the  deed  from  S.  C.  H.  and  L.  A.  H. 
to  W.  E.  M.  undertakes  to  convey  two  tracts  of  land.  If  you  believe 
from  the  evidence  that  the  defendant  took  actual  possession  of  one 
of  said  tracts  only,  and  that  his  actual  possession  did  not  extend  to 
the  land  in  controversy,  then  you  are  instructed  that  limitation  in  his 
favor  would  not  begin  to  run  against  the  plaintiffs,  if  at  all,  until  he 
had  actual  possession  of  the  land  in  controversy,  or  some  part  of  the 
same,  and  such  possession  must  have  been  open  and  notorious.32 

(c)  The  court  charges  the  jury  that  if  they  find  from  the  evidence 

that  defendant  has  from  the  latter  part  of  December,  A.  D.  ,  up 

to  the  ,  had  adverse  possession  of  any  portion  of  the  land 

sued  for,  that  then  he  had  adverse  possession  of  the  whole  of  it 
that  was  not  actually  occupied  and  held  adversely  to  him,  and  that 
plaintiff  would  not  be  entitled  to  recover  any  portion  of  it,  unless 
the  jury  find  from  the  evidence  that  plaintiff  has  acquired  a  title  to 
some  portion  of  it  by  adverse  possession,  and  can  say  from  the  evi- 
dence to  what  portion  plaintiff  has  acquired  title  by  adverse  pos- 
session.33 

§  451.  Possession  Under  a  Parol  Contract  of  Sale  is  Limited  to 
the  Land  in  Actual  Possession — When,  (a)  If  the  jury  believe  from 
the  evidence  that  the  plaintiff,  S.  L.,  before  the  time  that  M.  made 
his  first  survey,  did  not  know  the  description  of  the  lands  he  claimed 
in  the  northwest  quarter  of  the  school  section,  and  if  the  jury  fur- 
ther believe  from  the  evidence  that  the  land  which  S.  L.  got  from 

243;     Humphries    v.     Huffman,     33  and    boundaries   as   defined    in   the 

Ohio    St.    395;    Lynde   v.    Williams,  color   of   title,    with   the   exception 

68   Mo.   360.  that  it   may  not   embrace   such  as 

See  also  Yocham  v.  McCurdy,  95  may  be  adversely  held  by  another. 

Tex.   336,   67  S.   W.  316.  So   adverse  possession  under  color 

32 — Yarborough      v.      Mayes,      —  of  title  which  involves  the  element 

Tex.    Civ.    App.    — ,    91    S.    W.    624.  of   actual    possession.      Since   with- 

"There  is  no  conflict  in  these  out  actual  possession  there  can  be 
charges,"  said  the  court.  "The  no  adverse  possession,  the  posses- 
latter  qualifies  the  general  princi-  sion  is  co-extensive  with  the 
pie  stated  in  the  former  and  prop-  boundaries  defined  in  the  color 
erly  applies  it  to  the  evidence  in  title,  subject  to  the  exception  above 
the  case,  and  the  jury  could  not  stated.  There  was  evidence  tend- 
have  been  confused  or  misled  by  ing  to  show  adverse  possession  by 
the  two  charges."  the  defendant   under  color   of   title 

33 — Anniston    City    Land    Co.    v.  for  the   statutory  period  necessary 

Edmondson,    127    Ala.     445,     30    So.  to     constitute     a     bar,     and     above 

61    (65).  charge,     being     referable     to     this 

The  court  said:     "Actual  posses-  phase    of    the    evidence,    was    free 

sion  of  any  part  of  the  land  under  from   error." 
color  of  title  extends  to  the  limits 


360  FORMS  OF  INSTRUCTIONS.  [§452, 

his  brother  J.  L.  was  100  acres  of  the  mountain  land  of  said  quar- 
ter section,  and  that  there  were  145  acres  of  such  mountain  land  in 
said  quarter  section,  then  there  can  be  no  recovery  of  any  of  the 
uninclosed  and  uncleared  land  in  said  quarter  section  in  this  action, 
(b)  If  the  jury  believe  from  the  evidence  that  the  plaintiff,  S.  L., 
when  he  cut  the  timber  off  the  lands  sued  for,  if  the  jury  believe 
from  the  evidence  that  he  did  so  cut  it  off,  did  it  without  knowing  the 
boundaries  of  his  land,  and  without  reference  to  any  defined  boun- 
daries, then  there  can  be  no  recovery  in  this  action  for  the  unin- 
closed and  uncleared  woodland  not  included  in  the  three  fields  num- 
bered 1,  2,  and  3  on  the  map  introduced  in  evidence.34 

§  452.  What  is  Necessary  to  Constitute  Adverse  Possession  Under 
an  Oral  Contract  of  Beal  Estate,  While  in  Possession.  If  you  find 
from  the  evidence  that  the  defendant  was  in  possession  of  part  of 
the  property  in  controversy  as  a  tenant  of  W.  S.,  and  while  in 
such  possession  purchased  the  property,  then,  to  constitute  posses- 
sion under  such  purchase,  it  is  not  necessary  to  actually  change 
the  possession;  it  is  sufficient  if  the  defendant  at  once  asserted  and 
claimed  ownership  and  continued  to  do  so.  Such  acts  constitute  a 
holding  adverse  to  the  former  owner  and  landlord,  the  former  owner 
and  landlord  having  knowledge  thereof,  and  the  statute  of  limitations 
begins  to  run  from  the  time  of  such  adverse  acts.35 

§  453.  Possession  Presumed  to  Be  Under  Legal  Title,  (a)  The 
court  instructs  the  jury,  that  where  one  person  is  shown  to  have 
the  legal  title  to  land,  and  another  person  is  shown  to  be  in 
possession  of  the  property,  if  there  is  no  evidence  to  the  contrary, 
the  law  presumes  that  such  possession  has  been  with  the  consent 

34— Term.  Coal  Iron  &  R.  Co.  v.  relation  exists  between  the  par- 
Linn,  123  Ala.  112,  26  So.  245  ties  litigant  above  pointed  out. 
(250),  82  Am.   St.   Rep.   108.  Furthermore,     they     hold,     this     is 

"A  majority  of  the  court  were  the  settled  rule  of  law  in  this  state, 
of  the  opinion  that  the  doctrine  whatever  may  be  the  doctrine  in 
announced,  extending  the  adverse  other  states,  and  they  must  de- 
possession  under  a  valid  parol  con-  cijne  to  depart  from  it.  They  rely 
tract  of  sale  to  the  boundary  of  upon  Hawkins  v.  Hudson,  45  Ala. 
the  lands  as  fixed  by  the  contract,  4S2;  Bell  v.  Denson,  56  Ala  444; 
is  limited  in  its  application  as  be-  Burke  v.  Mitchell,  78  Ala.  61;  Clem- 
tween  vendor  and  vendee  or  in  ents  V-  Hay  76  Ala_  2S0  as 
case  of  execution  sale,  to  the  de-  porting.  their  views>  The  plalntiff 
fendant  in  execution  and  the  pur-  in  thig  cage  wag  t  trespasSer. 
chaser  at  such  sale;  that  when  no  He  had  id  th  chase  Vice  of 
such  relation  exists  between  the  the  ,  d  £  no  conse- 
parties  litigant  or  their  privies,  the  ouence  Whether  his  hrother  had 
possession  of  the  adverse  holder  is  <iuence  wnetner  nis  biotner  nad 
f.  .,  ,  "'  rr.  „_„„„„„:„  ~ori;„  11T1  Paid  the  purchase  money  to  the 
limited  to  his  possessio  pedis,  un-  townshi  trustee*  for  it  Tf  he 
less  he  holds  under  written  color  ?°wnsmtp  trustees  tor  it  It  ne 
of  title.  In  other  words  to  extend  £f<?  Jot>  this  ?™%  n9t.^av?,  a*" 
ad  verse  possession  beyond  the  fected  the  plaintiff's  rights  if  he 
actual  possession,  the  adverse  ^med  to  own  it,  as  he  did,  as 
holder  must  enter  upon  and  hold  'If11"8*  ^em-  Be^d  v-  R^n:,  78 
the  lands  under  a  paper  writing  Aku  37;  Taylor  v.  Dugger,  6b  Ala. 
fixing  its  boundaries;  that  color  of  444- 

title  cannot  exist  or  be   evidenced         35— Fox  v.   Spears,  —  Ark.  — ,  93 

In  any  other  way,  except  where  the  S.  W.   560. 


§  454.  j  ADVERSE   POSSESSION.  361 

of  the  owner,  and  not  in  hostility  to  his  rights ;  and  if  the  person 
in  possession  sets  up  a  claim  to  the  land  by  virtue  of  such  pos- 
session the  burden  of  proof  is  on  him  to  show  affirmatively,  by  a 
preponderance  of  the  evidence,  not  only  that  he  has  been  in  the 
open,  public,  and  notorious  possession,  but  it  must  further  appear, 
from  the  evidence,  that  such  possession  was  commenced  and  con- 
tinued in  hostility  to  the  true  owner,  and  under  a  claim  of  right  as 
against  him;  and  these  matters  must  be  shown  by  clear  and  affirma- 
tive proof  of  such  facts  as  show  that  such  possession  was  taken 
and  continued  in  hostility  to  such  owner;  they  cannot  be  made  out 
by  inference  without  such  proof.36 

(b)  The  rule  of  law  is  that  if  a  person  enters  upon  land  without 
any  title  or  claim  or  color  of  title,  the  law  will  adjudge  the  pos- 
session to  be  in  subservience  to  the  legal  owner  and  no  length  of 
such  possession  will  render  the  holding  adverse  to  the  title  of  the 
true  owner.  But  if  a  man  enters  on  land  without  title,  claim  or  color 
of  title  and  he  does  not,  in  fact,  go  in  under  the  true  owner,  and 
such  person  after  acquires  what  he  considers  a  good  title,  from  that 
moment  his  possession  becomes  adverse.37 

§  454.    Title  by  Prescription— Without  Color  of  Title— Paper  Title 

not  Necessary,  (a)  The  court  instructs  the  jury,  that  by  the  laws 
of  this  state,  if  a  person  goes  into  the  possession  of  real  estate,  under 
a  claim  of  title,  and  continues  in  the  open,  exclusive,  and  uninter- 
rupted possession  of  the  premises  under  such  claim  of  title,  for  the 
period  of  (twenty)  years,  he  will  be  deemed  to  be  true  owner 
thereof.38 

(b)  If  the  true  and  real  owner  of  land  permits  another  to  take 
possession  of  the  land,  claiming  it  as  his  own,  and  to  continue  such 
possession,  openly  and  publicly,  under  such  claim  of  title,  for  a 
period  of  (twenty)  years  or  more,  such  possession  will  ripen  into  a 
right  and  title  in  the  possessor,  and  forever  after  prevent  such  true 
owner  from  taking  possession  of  the  property;  but  in  order  to  have 
this  effect,  the  commencement  of  the  possession  must  have  been 
hostile  to  the  rights  of  the  true  owner,  and  must  be  continued,  openly 
and  publicly,  for  the  full  period  of  (twenty)  years,  under  a  claim  of 
ownership,   during  all  that  time.39 

(c)  It  is  not  essential  that  a  party,  who  takes  possession  of  lands 
and  holds  adversely  to  the  owner,  should  enter  under  a  deed,  or  other 
written  title,  to  cause  the  limitation  of  (twenty)  years  to  run  in 
his  favor.     It  is  sufficient  if  the  party  take  possession  under  claim 

36— Buckley    v.    Taggart,    62    Ind.  164;   Delong  v.   Mulcher,  47  la.  445. 

236;    Jackson   v.    Thomas,   16   John-  39— Peterson    v.    McCullough,     50 

son,  293;    Harvey  v.   Tyler,  2  Wall.  Ind.  35;  Bradley  v.  West,  60  Mo.  33; 

328.  Ambrose  v.   Ralev,  58  111.   506;   Yel- 

37— Newell    on    Eject.    753.  verton    v.    Seel,    40    Mich.    5?S;    Mc- 

38— Walbrun    v.     Ballen,     68    Mo.  Carde   v.    Barricklow,    69   Ind.    356. 


362  FORMS  OF  INSTRUCTIONS.  [§455. 

of  ownership,  and  hold  adverse  possession,  as  explained  in  these  in- 
structions, for  the  period  of   (twenty)   years.40 

§455.  Extent  of  Possession  not  Under  Color  of  Title,  (a)  The 
court  instructs  the  jury,  that  where  a  person  claims  possession  of 
re*al  estate  without  a  deed  or  instrument  in  writing  calling  for  boun- 
daries, his  possession  will  not  extend  beyond  what  he  has  inclosed 
or   actually   occupies.41 

(b)  You  are  instructed,  that  when  a  person  has  neither  the 
title  nor  color  of  title  to  an  inclosed  tract  of  land,  the  fact  that  he, 
during  several  years,  cut  fire-wood,  and  made  rails  from  the  timber 
on  it  for  the  use  of  his  farm,  does  not  necessarily  show  actual  pos- 
session. Such  acts,  if  isolated  and  only  occasional,  may  as  properly 
be  referred  to  continuous  acts  of  trespass  as  indicating  possession. 
To  constitute  possession,  such  acts  should  be  exclusive  and  under 
claim  of  title.42 

(c)  Though  you  may  believe,  from  the  evidence,  that  the  defend- 
ant went  upon  the  land  in  question  in  the  spring  of,  etc.,  for  the 
purpose  of  taking  possession  of  the  whole  tract,  and  making  improve- 
ments thereon,  claiming  the  whole  tract,  still,  if  the  jury  further 
believe,  from  the  evidence,  that  at  that  time  defendant  had  no  deed, 
lease  or  other  written  evidence  of  title  to  the  premises,  then  such 
possession,  in  law,  is  confined  to  the  quantity  of  ground  actually 
taken  possession  of  by  the  defendant.43 

§  456.  Deed  not  Necessary  to  Transfer  Possession.  The  jury  are 
instructed,  that  a  deed  is  not  necessary  to  transfer  the  possession  of 
land  held  adversely,  from  one  person  to  another,  and  when  one  per- 
son succeeds  to  the  possession  of  another,  and  it  becomes  necessary 
to  connect  the  possession  of  the  two,  in  order  to  make  the  period  re- 
quired by  law  to  bar  the  owner's  rights,  the  transfer  of  possession 
may  be  shown  by  parol  evidence ;  in  such  cases  no  deed  is  required.44 

§  457.  Possession  Under  Claim  of  Title,  (a)  The  defendants 
ask  the  court  to  charge  that  the  possession  of  a  tract  of  land  under 
a  claim  of  title  by  virtue  of  a  written  instrument,  sole  or  connected, 
for  forty  years  before  the  commencement  of  this  action  shall  be 
deemed  and  is  valid  against  the  world.  That  is  another  statute  of 
repose.  So  that,  unless  the  evidence  shows  you  that  the  plaintiff  or 
his  ancestor  or  grantor  was  actually  in  possession  of  this  property, 
or  a  part  of  it,  within  forty  years  from  the  commencement  of  the 
action,  then  his  action  would  be  barred.45 

40— Webber   v.    Anderson,    73    111.  741;   Williams  v.  Wallace,  78  N.  C. 

439.  354. 

41— Ege   v.    Medlar,    82    Penn.    St.  43— Humphries     v.     Huffman,     33 

86;  Peterson  v.  McCullough,  50  Ind.  Ohio   St.   395. 

35;   111.  C.  Rd.  Co.  v.  Ind.  &  111.  C.  44— Webber    v.    Anderson,    73    111. 

Rv.  Co.,  85  111.  211.  439. 

42— Austin    v.    Rust,    73    111.    491;  45— Sutton  v.   Clark,   59  S.   C.   440, 

Sepulveda  v.  Sepulveda,  39  Cal.  13;  38   S.  E.   150   (155),  82  Am.  St.  Rep. 

Miller    v.    E.    J.    Rd.    Co.,    71   N.    Y.  848. 
380;  Pullen  v.  Hopkins.  Eea  (Tenn.) 


458.J  ADVERSE  POSSESSION. 


363 


(b)  The  court  instructs  the  jury  that  unless  they  should  believe 
from  the  evidence  that  the  plaintiff,  or  his  vendors  under  whom  he 
claims,  owned  and  held  the  land  in  controversy  in  actual,  adverse 
possession  continuously  to  a  well  defined,  marked  boundary  line  for 
fifteen  years  prior  to  the  alleged  trespass,  they  should  find  for  the 
defendants.46 

§  458.  Entering  Land  under  Deed  Purporting  to  Convey  Title- 
Possession  for  20  Years— Grant  Presumed,  (a)  If  the  jury  find 
that  the  plaintiff  entered  into  possession  of,  the  land  in  dispute,  under 
the   paper  introduced   in   evidence   as   Exhibit   A,   purporting   to   be 

signed  by  under  a  claim  of  ownership,   and  if   they   find 

that  he  has  personally  or  by  his  tenants  continued  in  possession 
thereof  for  more  than  20  years,  then  the  jury  must  find  he  is  pre- 
sumed to  have  attained  a  grant  from  the  state.47 

(b)  The  court  instructs  the  jury  that  the  deeds  and  papers  intro- 
duced in  evidence  by  the  plaintiff  in  this  case  are  sufficient  to  base 
the  legal  title  to  the  whole  of  the  land  described  in  the  declaration 

in  the  plaintiff,  and  to  authorize  it  to  take possession  of  the 

whole  of  that  tract  of  land,  unless  the  defendants  have  shown  an 
adverse  possession  to  the  same  or  to  some  part  thereof,  as  explained 
in  this  instruction,  for  a  period  of  twenty  years  or  more  before  the 
commencement  of  this  suit,  or  some  valid  legal  right  to  the  posses- 
sion of  the  premises  claimed,  or  some  part  thereof,  by  a  preponder- 
ance of  the  evidence.48 

§  459.  Entry  of  Possession  under  Deed,  Whether  Adverse  and 
Whether  Land  Described  in  Complaint  and  Title  Offered  in  Evidence 
Is  the  Same,  Questions  for  Jury.    The  deed  from  W.  L.  to  L.  S.,  the 

46— Vincent,    et    al.    v.    Willis,    26  47— Kolb    v.    Jones,    62    S.    C.    193, 

Ky.   L,.   842,   82   S.   W.   583    (584).  40  S.   E.   168. 

The    court    said:      "It   is    claimed  48— C.  &  A.  R.  R.  Co.  v.  Keegan, 
that   this   irstruction  is  erroneous,  185  111.  70  (73),  56  N.  E.  1088. 
because    it    does    not    tell    the   jury  "We    are    of    the    opinion,"    said 
that,   in   order  to   recover,   appellee  the  court,  "that  the  refusal  of  this 
must    have    'claimed',    as    well    as  instruction  was  erroneous.     In  To- 
held     the    actual    adverse    posses-  ledo  W.   &  W.    Ry.   Co.   v.   Brooks, 
sion  of  the  land  in  controversy  for  81    111.    245,    we    said    (p.    247):      'If 
the   time   therein    indicated.      It    is  the  court  were  to  instruct  the  jury 
usual,    and,    indeed,    safer,    to    use  that    the    plaintiff's    evidence    was 
the  omitted  word  in  this  character  better  than  the  defendant's  or  the 
of  instruction,  but  we  are  of  opin-  converse,     we    presume    all    would 
ion    that   its   omission    did   not,   in  say    that   it   would   amount    to    an 
this    instance,    vitiate    the    instruc-  instruction  to   find   in  favor  of  the 
tion  for  the  reason  that  as  worded  better  evidence,  and  thus  take  the 
it    required   the    jury,    in   order    to  whole  case  from  the  consideration 
find    for    the    appellee,    to    believe  of  the  jury.     It  is  not  error  for  the 
from    the    evidence    not    only    that  court   to   thus    instruct    in    case    of 
his  possession  of  the  land  in  con-  records,  writings  or  other  evidence 
troversy    must    have    been    actual,  which    is    in    its    nature   conclusive 
and  'held'  to  a  well  defined  marked  or  cannot  be  contradicted.'     Plain- 
boundary  for  the  period  indicated,  tiff  in  error  showed  title  in   itself, 
but  that  such  possession  must  have  and    was    entitled    to    recover,    un- 
been   'adverse'    as  well;    that   is,   in  less   defendants   in   error  proved   a 
•hostile  opposition'  (for  such  is  one  possession  of  the  premises  for  the 
of    the    meanings    given    the    word  period    of    twenty    years    prior    to 
by  Webster)  to  the  claim  of  appel-  the    commencement    of    this    suit." 
lants  and   all  others." 


364  FORMS  OF  INSTRUCTIONS.  [§460. 

defendant  herein,  purports  to  convey  the  entire  estate  in  the  lands 
described  in  the  complaint.  It  is  for  the  jury  to  say  "whether  she 
entered  into  possession  of  said  land  under  said  deed,  and  whether 
the  subsequent  possession  was  adverse  to  and  exclusive  of  the  plain- 
tiff's claim.  Whether  the  land  described  in  a  particular  deed  is  the 
same  land  described  in  the  complaint  or  some  other  paper  is  a  ques- 
tion of  fact  for  your  consideration,  and  I  cannot  tell  you  whether 
both  papers  cover  the  same  land.40 

§  460.  Ouster — What  Required  in.  (a)  I  charge  you,  in  con- 
formity with  this  statute,  that,  if  you  find  that  the  defendants  had 
entered  upon  and  held  possession  of  the  premises  in  question  at  the 
time  M.  made  his  conveyance  to  the  plaintiff,  then  the  deed  must  be 
held  to  be  void,  and  the  plaintiff  cannot  by  reason  of  it  establish  a 
title.  That  is  so,  gentlemen,  with  the  qualification  that  by  the  lan- 
guage of  the  statute,  as  you  will  recollect,  the  dispossession  must 
be  by  an  ouster;  and  I  say  to  you  that  to  void  the  deed  from  M., 
the  record  title  owner,  the  ouster  must  be  of  the  same  character  as 
that  required  to  establish  adverse  possession. 

(b)  An  ouster  must  be  of  the  same  character.  It  must  be  an 
Ojjen,  visible,  exclusive  possession  that  is  to  make  an  adverse  pos- 
session. It  need  not  continue  for  fifteen  years,  but  the  character  of 
the  ouster  must  be  of  the  same  character  as  in  the  case  of  adverse 
possession  of  fifteen  years,  claiming  to  convey  title,  or  amount  to 
that.50 

§  461.  Time  for  Minor  to  Bring  Suit — Admission  Against  Title, 
(a)  If  the  plaintiff's  father  was  in  possession  of  the  lands  at  the 
time  of  his  death,  claiming  and  using  them  as  his  own,  and  plaintiff 
was  at  that  time  an  infant,  he  would  have  three  years  after  he 
reached  his  majority  within  which  to  bring  his  suit,  unless  at  the 
commencement  of  the  suit  the  defendant  had  been  in  possession  of 
the  lands,  claiming  and  using  them  as  his  own,  for  a  period  of  twenty 
years. 

(b)  The  court  charges  the  jury  that  if  they  believe  from  the  evi- 
dence that  the  defendant  did,  at  any  time  during  his  possession  of 
the  lands  sued  for,  admit  that  the  title  of  the  lands  was  in  the  plain- 
tiff, then  they  may  consider  that  admission  in  determining  the  de- 
fendant's   adverse  possession.51 

49 — Suduth   v.    Sumeral,    61   S.   C.  with    reference    to    bringing-    suits 

276,   39   S.    E.    534,    85  Am.    St.    Rep.  by    a     person    who    was    a    minor 

8S3.  when    his    right   accrued.     The   ob- 

50 — Merwin    v.    Morris,    71    Conn,  jection     that     the    charge    was     in 

555,   42   Atl.   855.  part    abstract,    if    conceded,    would 

51 — Jones    v.    Williams,    108    Ala.  not  operate  to  reverse.     We  do  not 

282,  19   So.    317.  declare  such   charges,   when  given, 

The  court  said:  "That  portion  to  be  erroneous,  unless  it  affirm- 
of  the  oral  charge  above  given  to  ati-^ely  appears  they  worked  in- 
which  exception  was  reserved  sim-  jury  to  the  complaining  party,  al- 
ply  asserts,  in  substance,  what  the  though  it  is  never  an  error  to  re- 
statute,  (Code  1886  §  2624)  pre-  fuse  such  charges." 
scribes    as    the    rule    of    limitation 


CHAPTER   XXVI. 


AGENCY. 


See    Erroneous    Instructions,  same  chapter  head,  Vol.  III. 


§  462.  Definition  of  general  and 
special  agent. 

§  463.  What  to  consider  in  deter- 
mining who  is  the  princi- 
pal. 

§  464.  Implied    powers   of    agent. 

§  465.  Third  parties  bound  to  take 
notice  as  to  agent's  au- 
thority. 

§  466.  Agent  bound  to  act  solely 
for    his    principal. 

§  467.  Sale  by  agent,  duty  to  in- 
form principal  of  consider- 
ation. 

§  468.  Secret  profits  of  agent  be- 
long   to    principal. 

§  469.  Principal  may  rely  upon  rep- 
resentations   of    agent. 

§  470.  Principal  bound  by  acts  of 
agent. 

§  471.  When  bound  by  agent's  war- 
ranty as  to  goods  sold — 
Implied   contract. 

§  472.  Principal  consents  to  usages 
of   agent's   market. 

§  473.  Estopped  by  holding  out  as 
agent. 

§  474.  Agency  presumed  to  contin- 
ue, when. 

§  475.  Notice   to   agent. 

§  476.  Notice  to  agent  usually  no- 
tice to  principal. 

§  477.  Notice  to  agent  of  two  prin- 
cipals not  notice  to  each. 
§  478.  Notice  to  chairman  not  no- 
tice to  board— Not  bound 
by  acts  of  individual  mem- 
bers. 


§  479.  Public   officer   as   agent. 

§  480.  Ratification  of  principal  of 
unauthorized    agent's    acts. 

§  4S1.  Ratification  of  former  acts 
may  prove  agency  in  simi- 
lar acts. 

§  4S2.  Ratification  by  accepting 
benefits  of  agent's  contract. 

§  483.  Ratification  by  suit— election. 

§  484.  Ratification  by  failing  to  re- 
pudiate agent's  unauthor- 
ized acts. 

§  485.  Ratification  of  assumed 
agent's  contract  must  be 
entire. 

§  486.  Knowledge  of  agent's  acts 
essential. 

§  487.  Principal's  diligence  —  How 
determined. 

§  488.  When   principal    is   liable   for  - 
agent's   torts. 

§  489.  Undisclosed  principal  bound 
by  acts   of  agent. 

§  490.  When  agent  of  undisclosed 
principal  liable  for  goods 
bought   by   sub-agent. 

§  491.  Defendant     refusing     to     ac- 
cept goods  as  plaintiffs  but 
accepts   them   as  agents. 
§  492.  False  representations  by  real 

estate  agent. 
§  493.  Investment  of  funds  for  an- 
other, general  authority  in- 
sufficient to  invest  more 
than  amount  deposited. 
§  494.  Knowledge  of  agent  perpe- 
trating   fraud    on    principal 

|         •       not    imputed    to    principal. 


§  462  Definition  of  General  and  Special  Agent.  A  person  may  act 
for  himself  or  lie  may  act  through  another.  If  he  act  through  an- 
other, that  other  is  called  the  "agent,"  and  he  is  the  principal.  The 
power  of  the  agent  may  be  general  or  it  may  be  special.  It  is  general 
when  the  agent  is  empowered  to  do  a  particular  thing  or  many  things 
in  a  way  necessary  or  proper  to  accomplish  the  end.  It  is  special 
when  the  agent  is  empowered  to  do  a  particular  thing  or  many  things 
in  a  limited  way.  The  jury  may  determine  the  character  of  the 
agency  from  the  testimony.    If  general  the  principal  is  bound,  it  the 

365 


366  FORMS  OF  INSTRUCTIONS.  [§463. 

agent  exceed  his  authority  and  the  other  party  did  not  know  it;  if 
special,  the  agent  must  follow  his  instructions,  else  the  principal  will 
not  be  bound.1 

§  463.  What  to  Consider  in  Determining  Who  is  the  Principal. 
The  court  instructs  you  that  on  the  question  of  whom  W.  acted  for 
in  the  particular  transaction,  the  jury  may  and  should  look  at  all 
the  evidence,  and  in  this  connection  should  consider  whom  W.  got 
his  pay  from,  and  whom  he  asked  to  pay  him,  and  the  evidence 
that  W.  had  authority  to  sell  the  lot  in  question  if  such  is  the  evi- 
dence.2 

§  464.  Implied  Powers  of  Agents.  The  court  instructs  the  jury 
that  every  delegation  of  authority,  or  creation  of  an  agency  unless 
the  extent  of  such  authority  or  agency  be  expressly  limited,  carries 
with  it  the  power  to  do  all  those  things  which  are  necessary,  proper, 
and  usual  to  be  done  in  order  to  effectuate  the  purpose  of  the  agency, 
and  embraces  all  the  appropriate  means  necessary  to  accomplish  the 
desired  end.3 

§  465.  Third  Parties  Bound  to  Take  Notice  as  to  Agent's  Authority. 
You  are  instructed,  that  it  is  a  rule  of  law  that  a  person  dealing 
with  one  known  to  be  an  agent,  or  claiming  to  be  such,  is  bound,  at 
his  peril,  to  see  that  the  agent  has  authority  to  bind  his  principal  in 
such  transaction,  or  that  the  agent  is  acting  within  the  scope  of  his 
apparent  authority.4 

§  466.  Agent  Bound  to  Act  Solely  for  His  Principal.  Where  an 
agent  is  employed  to  buy  or  sell  for  his  principal,  or  negotiate  a 
trade  for  him,  it  is  the  duty  of  the  agent  to  act  solely  in  the  interest 
of  the  principal,  and  should  the  agent  be  or  become  an  interested 
party,  without  disclosing  the  fact  to  his  principal,  and  sell  his  own 
property  to  his  principal,  or  buy  his  principal's  property  himself, 
or  pay  himself  or  cancel  his  own  liability  with  the  funds  or  property 
of  the  principal,  the  agent  would  be  guilty  of  constructive  fraud; 
and,  if  it  were  shown  that  the  principal  was  damaged  thereby,  the 
agent  would  be  liable  to  the  principal  to  the  extent  of  same.5 

1 — McGhee  et  al.   v.   Wells,   57   S.  ordinarily  used  in  this  connection, 

C.    280,    35    S.    E.    529    (531),    76  «Am.  was     no     doubt     inadvertent,     but, 

St.   Rep.   567.  however    this    may   be,    the    differ- 

2 — Williamson   v.   Tyson,  105  Ala.  ence  in  meaning  of  the  two  words 

644,    17    So.    336.  did   not   render  the   instruction  er- 

3 — Riverview  Land  Co.  v.  Dance,  roneous.     Used    as    it    was    in    con- 

9S   Va.   239,   35   S.    E.    720    (721).  junction    with    the    words     'neces- 

"The  instruction  is  in  almost  the  sary,'  'proper'  and  'usual',  in  de- 
identical  words  of  approved  text  fining-  the  implied  power  of  an 
writers  respecting'  the  implied  pow-  agency,  the  effect  was  to  restrict, 
ers  of  agents.  Mechem,  Ag.  §  311;  and  not  to  enlarge,  its  powers,  and 
it  correctly  stated  the  law  and  the  of  this  the  defendant  could  not 
court   did   not  err  in   giving  it.     It  complain." 

is  specially  objected  to  because  of  4 — Peabody   v.    Hord,   46   111.    242, 

the  use   of  the  word   'approximate'  92    Am.    Dec.    248. 

instead  of  'appropriate'.  The  use  of  5 — Beatty  v.  Bulger,  28  Tex.  Civ. 

the  word    'approximate'   instead  of  App.   117,   66   S.  W.   893   (896). 
'appropriate'     which    is    the     term 


[§467.  AGENCY.  367 

§  467.  Sale  by  Agent — Duty  to  Inform  Principal  of  Consideration. 
But  after  such  letter  was  written,  submitting  an  offer  for  the  lot, 
if  you  find  that  the  defendants  were  the  agents  of  plaintiff  in  the 
transaction,  they  received  an  offer  of  a  greater  sum,  then  they  in 
good  faith  were  bound  to  inform  plaintiff  of  such  fact.  On  the 
other  hand,  if  they  were  not  his  agents,  then  they  were  under  no 
such  obligation.6 

§  468.  Secret  Profits  of  Agent  Belong  to  Principal.  The  court 
instructs  the  jury,  as  a  matter  of  law,  that  if  an  agent  makes  any 
profit,  in  the  course  of  his  agency,  by  any  concealed  management, 
in  either  buying  or  selling,  or  other  transaction,  on  account  of  the 
principal,  the  profits  will  belong  exclusively  to  the  principal.7 

§  469.  Principal  May  Rely  Upon  Representations  of  Agent.  If 
you  find  from  the  evidence  that  the  defendant  H.  was  acting  for 
the  plaintiff  in  making  the  loan  for  her,  jtou  are  instructed  that  she 
was  justified  in  relying  upon  his  representations  as  to  the  character 
of  the  security  he  was  to  obtain  for  her,  and  in  accepting  the  se- 
curity furnished  by  him  as  in  everything  corresponding  to  her  in- 
structions. You  are  further  instructed  that  she  was  not  required  to 
examine  the  records  to  discover  whether  or  not  the  mortgage  obtained 
for  her  was  a  first  mortgage,  or  to  take  any  action  until  she  had 
reason  to  believe  from  knowledge  or  information  coming  to  her,  that 
her  instructions  had  been  violated.8 

§  470.  Principal  Bound  by  Acts  of  Agent.  The  court  instructs 
the  jury  as  a  matter  of  law,  that  before  a  principal  can  be  bound  by 
the  acts  of  his  agent,  it  must  be  shown  by  the  party  asserting  such 
agency  that  the  principal  authorized  such  agent  to  act  for  and  in  his 
behalf,  and  that  such  agent  carried  out  the  business  of  his  pi'incipal 
and  within  the  scope  of  his  authority  as  such  agent;  and  if  the  plain- 
tiff in  this  case  expects  to  recover,  he  must  show  by  a  preponderance 
of  the  evidence  that  he  was  acting  as  such  agent  under  the  direction 
and  authority  of  the  defendant,  otherwise  he  cannot  recover.9 

§  471.  When  Bound  by  Agent's  Warranty  as  to  Goods  Sold — Im- 
plied Contract.  (a)  The  court  further  instructs  the  jury,  that 
while  it  is  true  that  the  principal  is  not  bound  by  the  unauthorized 
acts  of  his  agent,  when  such  acts  are  beyond  the  scope  of  the  agent's 
apparent  authority,  yet  the  principal  is  bound  by  a  warranty,  made 
by  an  agent,  of  the  quality  of  an  article  sold  by  the  agent,  when  the 

6 — Hillebrant   v.    Green,    93   Iowa  peal,  it  was  urged  that  the  plain- 

661,  62  N.  W.  32  (34).  tiff,   a  broker  by  bad   faith   to  his 

7— Cotton  v.  Holliday,  59  111.  176;  principal  had  forfeited  his  corn- 
Love  et   al.   v.    Hoss,   62  Ind.   255.  missions  on   the  sale  of  stock.  Held 

8— Faust    v.    Hosford,    119    la.    97,  that     this      instruction      submitted 

93  N.  W.  58  (60).  no    such    theory    to    the    jury    and 

9 — This  was  approved   in  Hafner  that    that    defense    could    not    be 

v.     Herron,     165    111.     242     (249-251),  raised  for  the  first  time  upon  ap- 

affirming-   60   111.    App.    592    (594),    46  peal. 
N.  E.  211.     In  this  case,  upon  ap- 


368  FORMS  OF  INSTRUCTIONS.  [§472. 

buyer  is  justified,  from  the  nature  of  the  business  and  the  manner 
of  doing  it,  in  believing  that  the  authority  to  make  the  warranty  had 
been  given,  and  the  buyer  bad  no  means  of  knowing  the  limitation 
of  the  agent's  authority.10 

(b)  The  court  instructs  the  jury,  that  if  they  believe  from  the 
evidence  that  defendant  sold  the  mattresses  in  controversy  as  agents 
for  or  ,  and  not  as  their  own  property,  and  dis- 
closed their  agency  and  the  name  of  the  vendor  prior  to  and  in  the 
making  of  such  sale,  then  the  plaintiff  cannot  recover.  The  court 
instructs  you  that  you  cannot  find  for  plaintiff  unless  you  believe 
from  a  preponderance  of  the  evidence  that  the  defendants  made  an 
express  contract  to  warrant  the  condition  of  the  mattresses  sold  to 
plaintiff.  No  recovery  in  this  case  is  sought  on  an  implied  contract, 
and  even  though  you  may  believe  from  the  evidence  that  the  mat- 
tresses were  unfit  for  the  purposes  for  which  they  were  ordered,  this 
will  not  authorize  you  to  find  a  verdict  for  the  plaintiff  unless  you 
further  find  from  the  evidence  that  the  defendants  agreed  with  plain- 
tiff that  such  mattresses  were  to  be  fit  for  such  purpose,  or  unless 
they  authorized  some  one  in  their  name  to  make  such  contract  for 
them.11 

§  472.  Principal  Consents  to  Usages  of  Agent's  Market.  The  jury 
are  instructed  that  a  person  dealing  at  a  particular  market  will 
be  taken  to  have  dealt  according  to  the  custom  and  usage  of  that 
market,  and  if  he  employs  another  to  act  for  him  in  carrying  on  busi- 
ness dealings  on  such  market,  he  will  be  held  as  understanding  that 
the  business  should  be  conducted  according  to  the  general  usage  and 
custom  of  said  market;  and  this  is  the  rule  whether  he  in  fact 
knows  of  the  custom  or  not.12 

§  473.  Estoppel  by  Holding  Out  as  Agent,  (a)  The  court  in- 
structs the  jury  that  if  a  corporation  knowingly  and  voluntarily  per- 
mits a  person  to  hold  himself  out  to  the  world  as  its  agent,  said  cor- 
poration will  be  bound  as  principal  to  those  dealing  with  such  person 
to  act  upon  the  faith  that  such  agency  exists,  and  this  is  true  irre- 
spective of  whether  or  not  an  agency  in  fact  exists.13 

(b)  You  are  instructed,  that  if  a  person  knowingly  and  volun- 
tarily permit  another  to  hold  himself  out  to  the  world  as  his  agent, 
he  will  be  held  to  adopt  his  acts,  and  be  bound,  as  principal,  to  the 
person  who  gives  credit  to  the  one  acting  as  such  agent.14 

10 — 1  Parsons  on  Cont.   52;    Mur-  the    particular    trade    or    business 

ray  v.   Brooks,  41  la.   45.  are    properly     admissible     for    the 

11 — Haines    v.    Neece,    —   Mo.    — ,  purpose    of    interpreting    the    pow- 

92  S.  W.  922.  ers  given  to  an  agent.     Phillips  v. 

12— Stock  Yds.   Co.   v.   Mallory  S.  Moir,  69  111.  153;    National  Furnace 

&  Z.   Co.,  157  111.   554  (567).  reve's'g  Co.  v.  Keyston  Manufacturing  Co., 

54   111.    App.    170,     41    N.     E.     888,    48  110    111.    427." 

Am.  St.  Rep.  341.     "The  instruction  13 — Italian-Swiss  Agri.   Colony  v. 

asked    for  defendant  below   should  Pease,   194   111.   98   (105),   aff'g  96  111. 

have  been   given.     It  conforms  ex-  App.  45,  62  N.  E.  317. 

actly   to    the    ruling   made   by   this  14 — Thurber    v.    Anderson,    88   111. 

court  in   Samuels  v.   Oliver,  130  111.  167. 
73,   22    N.    E.    499.     The   usages   of 


[§  474.  AGENCY.  369 

§  474.  Agency  Presumed  to  Continue,  When.  The  jury  are  in- 
structed, that  it  is  a  rule  of  law,  that  when  a  person  is  shown  to 
have  been  an  agent  of  another  in  a  particular  business,  and  continues 
to  act  as  such  agent,  within  the  scope  of  his  former  authority,  it  will 
be  presumed  that  his  authority  continues,  and  his  acts  will  bind  his 
principal,  unless  the  person  with  whom  he  deals  has  notice  that  his 
agency  has  ceased,  or  until  after  the  lapse  of  such  a  length  of  time 
as  ought  to  put  a  reasonably  prudent  man  on  inquiry  as  to  the  con- 
tinuance of  such  agency.15 

§  475.  Notice  to  Agent,  (a)  The  jury  are  instructed,  that  it  is 
a  rule  of  law  that  notice  to  an  agent  is  notice  to  his  principal,  and 
that  what  is  known  to  an  agent  is  known  to  his  principal;  provided, 
such  notice  or  knowledge  is  received  by  the  agent  while  he  is  acting 
as  such  agent.10 

(b)  Notice  to  an  agent,  in  order  to  bind  the  principal,  must  be 
brought  home  to  the  agent,  while  engaged  in  the  business  or  negotia- 
tion of  the  principal  to  which  the  notice  relates;  and  when  it  would 
be  breach  of  trust  in  the  former  not  to  communicate  the  knowledge 
to  the  latter. 

(c)  While  it  is  a  general  rule  of  law,  that  a  notice  to  an  agent  is 
notice  to  his  principal,  still  in  order  to  bind  a  person  by  notice  to  his 
agent,  it  must  appear,  from  the  preponderance  of  the  evidence,  that 
the  alleged  agent  was  the  agent  of  the  party  sought  to  be  charged 
in  relation  to  the  very  matter  to  which  the  notice  relates,  and  that 
the  notice  or  information  came  to  the  knowledge  of  the  agent  while 
he  was  acting  as  such  agent.17 

§  476.  Notice  to  Agent  Usually  Notice  to  Principal.  The  jury  are 
instructed,  that  notice  to  an  agent  of  any  fact  concerning  the  mat- 
ters of  his  agency,  is  the  same  as  notice  to  the  principal.  The  law 
presumes  that  an  agent  transmits,  or  in  some  manner,  communi- 
cates, to  his  principal  all  information  received  by  him  relating  to 
the  matter  of  his  agency.18 

§  477.  Notice  to  Agent  of  Two  Principals  Not  Notice  to  Each— 
When  Binding  on  Agent,  (a)  The  jury  are  instructed  that  a  party 
is  not  chargeable  with  notice  of  facts  within  the  knowledge  of  his 
agent  or  attorney,  where  the  agent  or  attorney  acquires  such  knowl- 
edge while  acting  as  the  agent  or  attorney  of  another  person.19 

13 — Barkley     v.     Renssalaer     etc.  18 — Saulsbury     v.     Wlmberly,     60 

Co.,  71  N.  Y.  205;   Packer  v.  Hink-  Ga.    78;     Roach    v.     Carr,     18   Kan. 

ley,  etc..  122  Mass,  484;    Murphy  v.  329;     Tag-gs     V.     Term.     M.     Bk.     9 

Ottenheimer,   84  111.   39;   Howe,   etc.  Heisk.    479.      This    rule    is    subject 

v.    Linder.    59    Ind.    307;     Summer-  to   exceptions   noted  elsewhere,   see 

ville    v.    Han.    &    St.    Joe    Rd.    Co.,  Se<-s.    475,   477. 

62   Mo.    391.  19— Harrington      v.      McCulloum, 

16— Wade  on  Notice,    §  672;   Astor  73    111.    476;    Altman    &    T.    Co.    v. 

v.  Wells,  4  Wheat.  466.  Webber,  4  111.  App.  427. 

17— Wade    on    Notice,    §  689. 

24 


370  FORMS  OF  INSTRUCTIONS.  [§478. 

(b)  The  court  instructs  the  jury,  that  any  knowledge  that  a  per- 
son has  when  he  is  performing  an  act  as  agent  to  another  is  binding 
upon  the  person  even  though  the  party  was  at  the  time  acting  for  the 
other  party  to  the  transaction.19* 

§  478.  Notice  to  Chairman  Not  Notice  to  Board — Not  Bound  by 
Acts  of  Individual  Members,  (a)  When  the  officers  or  agents  of  a 
public  corporation  have  no  power  with  respect  to  a  given  matter, 
neither  their  acts  nor  their  individual  knowledge  in  respect  to  the 
matter  can,  in  any  way,  bind  or  affect  such  corporation.20 

(b)  The  supervisors  have  no  power  to  act  individually;  it  is  only 
when  convened  and  acting  together  as  a  board  of  supervisors  that 
they  represent  and  bind  the  county  by  their  acts ;  and  the  chairman 
of  the  board  has  no  greater  authority,  in  his  individual  capacity,  than 
any  other  member.21 

(c)  Individual  members  of  a  corporation  cannot,  unless  author- 
ized, bind  the  body  by  express  promises ;  hence  it  follows  that  a  cor- 
porate engagement  cannot  be  implied  from  their  unsanctioned  con- 
duct or  their  declarations.22 

§  479.  Public  Officer  as  Agent,  (a)  The  jury  are  instructed,  that 
it  is  a  general  rule  that  if  a  special  agent,  whose  authority  is  con- 
ferred by  statute  or  by  orders  of  court,  or  one  acting  in  the  capacity 
of  a  public  officer,  acts  outside  of  the  authority  conferred,  the  princi- 
pal will  not  be  bound  by  his  acts.23 

(b)  The  jury  are  instructed,  that  the  members  of  the  county  court 
can  only  bind  their  county,  in  matters  of  claims,  when  acting  as  a 
court,  and  their  records  are  the  only  admissible  evidence  of  their 
judicial  acts.24 

§480.  Ratification  by  Principal  of  Unauthorized  Agent's  Acts, 
(a)  As  you  have  been  told  in  the  previous  instruction,  the  plaintiff 
would  not  be  bound  by  the  act  of  an  unauthorized  agent  unless  it 
ratified  or  affirmed  said  action ;  and  if  you  find  from  the  evidence 
that  the  contract  made  by  the  said  E.,  if  such  you  find  the  fact  to 
be,  was  without  authority,  but  that  the  plaintiff  ratified  and  affirmed 
the  same,  then  the  said  contract  would  be  binding  upon  the  plaintiff. 
And  in  determining  whether  or  not  the  plaintiff  did  ratify  said 
alleged  contract  to  take  back  the  binders  in  controversy,  if  you 
shall  find  said  contract  to  have  been  made,  you  have  a  right  to  con- 
sider the  correspondence  between  the  parties,  the  delivery  of  the  ma- 
chinery if  any,  the  acceptance  by  the  plaintiff  of  compensation  for 
the  same,  the  entire  course  of  business  between  the  parties,  and  all 
the  facts  and  circumstances  surrounding  the  transaction  tending  to 

19a— Tufts     v.     Johnson,     46     111.  111.    3S4;    Harrison   v.    Liston   Dist., 

App.    191    (192).  47   la.    11. 

20— Johnson    v.    S.    Dist.,    67    Mo.  23— Dart   v.    Hercules,    57   111.    446. 

319.  24 — McDaney    v.    Co.    of    Marion, 

21— Johnson  v.   S.   Di<=f..  supra.  77  111.  488. 

22— Benton    v.    Br  a.    of    Sups.,    84 


§  481.]  AGENCY.  371 

throw  light  upon  the  question  as  to  said  alleged  ratification.  If, 
however,  you  find  from  the  evidence  that  the  agent  E.  had  no 
authority  to  make  the  said  contract,  and  plaintiff  had  no  knowledge 
of  the  same,  and  the  circumstances  were  not  such  as  to  impart  knowl- 
edge to  the  plaintiff  of  the  making  of  the  same,  then  there  would  he 
no  ratification  upon  the  part  of  the  plaintiff  company.25 

(b)  The  law  is,  that  where  a  person's  name  is  signed  to  a  prom- 
issory note  without  his  authority,  he  may  afterwards  ratify  its  exe- 
cution and  acknowledge  its  binding  validity  upon  him,  and  if  he 
does  this  his  relation  to  the  note  will  be  precisely  the  same  as  if  he 
executed  it  personally.26 

(c)  You  are  instructed,  that  although  you  may  believe,  from  the 
evidence,  that  the  said  A.  B.  was  not  authorized  to  make  a  bargain 
with  the  plaintiff  for  the  defendant,  in  relation  to,  etc.,  yet  if  you 
believe,  from  the  evidence,  that  the  said  A.  B.  did  make  the  con- 
tract for  the  defendant,  as  alleged  and  claimed  by  the  plaintiff,  and 
that  the  defendant,  with  full  knowledge  of  what  had  been  done,  rati- 
fied the  bargain  so  made,  then  the  contract  will  be  as  binding  upon 
the  defendant  as  if  he  had  authorized  the  said  A.  B.  to  make  the 
bargain  in  the  first  instance.27 

§  481.  Ratification  of  Former  Acts  May  Prove  Agency  in  Similar 
Acts.  It  is  the  law  that  any  act  of  an  assumed  agent,  and  a  recog- 
nition of  his  authority  by  the  alleged  principal,  may,  in  a  proper 
ease,  prove  the  agency  to  do  other  similar  acts.28 

§  482.  Ratification  by  Accepting  Benefits  of  Agent's  Contract. 
You  are  instructed,  that  a  principal  who,  with  the  full  knowledge  of 
all  the  material  facts  affecting  his  rights,  receives  the  benefit  of  an 
unauthorized  agreement,  made  for  him  by  one  purporting  to  be  his 
agent,  is  precluded  thereby  from  questioning  the  agent's  authority 
in  the  transaction.29 

§  483.  Ratification  by  Suit — Election.  If  defendants,  with  full 
knowledge  of  the  circumstances  attending  the  giving  of  the  due  bill 
in  question,  brought  a  suit  on  it  in  Georgia,  then  defendants  cannot 
set  off  the  value  of  the  cotton  in  question  in  this  case.30 

25— Osborne    &    Co.    v.    Ringland  30— Lytle  et  al.  v.  Bank  of  Doth- 

&  Co.,   122  Iowa  329,  98  N.  W.   116,  an,   121  Ala.   215,  26  So.   6   (10). 

118;    Williamson   v.  Tyson,  105  Ala.  "As    to    the   cotton    mentioned    in 

644,    17    So.    336    (339).  the  claim  of  set-off,  the  defendants 

26 — Paul     v.     Berry,    78    111.     158;  could   not   treat   it   as   having-  been 

Eadie  v.    Ashbaugh,   44  la.   519.  sold  by  them  to  Drewry,   and  also 

27 — City   of  Detroit   v.   Jackson,   1  as    remaining-    their    property.      It 

Doug.     (Mich.),    106;    Hall    v.    Chi-  appears   that   in   1893,   Drewry  was 

cago,     etc.,    R.     Co.,    48    Wis.     317;  sued  in  Georgia  by  defendants  for 

Stewart     v.     Maher      32    Wis.     344;  the    pri^e    of    the    cotton    as    evi- 

Drakely  v.   Gregg,   8  Wall.   (U.  S.),  denced  by  his  due  bill  given  there- 

242.  for    when    payment    of    his    check 

28 — State   v.    Ames,   90  Minn.   1S3,  was    refused,    and    judgment    was 

96  N.   W.   330    (334).  obtained   against  hirn  in  that  suit. 

29— Pike  v.   Douglass,  28  Ark.   59.  Even    if    they    had    not    previously 


372  FORMS   OF  INSTRUCTIONS.  [§  484. 

§484.  Ratification  by  Failing  to  Repudiate  Agent's  Unauthorized 
Acts.  You  are  further  instructed,  that  a  principal,  when  fully  in- 
formed of  his  agent's  acts,  must  dissent  from  them  in  a  reasonable 
time,  or  he  will  be  held  to  have  ratified  them.  And  in  this  case,  if 
you  believe,  from  the  evidence,  that  defendant  received  full  informa- 
tion of  the  acts  of  the  said  A.  B.  in  the  premises,  on  or  before,  etc., 
and  remained  silent  and  inactive  until,  etc.,  then  that  was  not  a  rea- 
sonable time  in  which  to  dissent  from  the  acts  of  the  said  A.  B.31 

§  485.  Ratification  of  Assumed  Agent's  Contract  Must  Be  Entire. 
The  jury  are  instructed,  as  a  matter  of  law,  that  if  a  person  adopts 
a  contract  made  on  his  behalf  by  an  agent,  who  had  no  authority  to 
make  it,  he  must  adopt  it  in  its  entirety;  he  cannot  adopt  it  in  part 
and  repudiate  it  in  part.32 

§  486.  Ratification — Knowledge  of  Agent's  Acts  Essential,  (a) 
The  jury  are  instructed,  that  before  a  person  can  be  bound  by  the 
ratification  of  an  act,  done  on  his  behalf  by  one  professing  to  act 
as  his  agent,  it  must  appear,  by  a  preponderance  of  the  evidence,  that 
he  was  fully  informed  of  all  the  material  facts  affecting  his  rights  in 
the  transaction,  and  unless  it  does  so  appear,  he  will  not  be  bound 
by  an  unauthorized  act,  upon  the  ground  of  ratification  alone.33 

(b)  The  court  instructs  the  jury  that,  when  the  act  of  ratifying 
the  act  of  the  agent  is  claimed  to  be  implied,  from  a  knowledge  of 
the  facts,  by  the  principal,  it  must  appear,  by  a  preponderance  of 
the  evidence,  that  the  principal  had  full  knowledge  of  all  the  facts 
affecting  his  interests  in  the  transaction.34 

(c)  The  court  instructs  the  jury,  that  it  is  a  rule  of  law,  that 
where  an  alleged  principal  does  anything  towards  ratifying  an  act 
done  in  his  behalf  by  an  unauthorized  person,  and  the  acts  of  rati- 
fication are  done  in  ignorance  of,  or  under  a  mistake  of,  any  of  the 

elected  to  treat  the  transaction  as  Heyn  v.  O'Hagan,  60  Mich.  150,  1 
a  sale,  the  institution  and  prose-  Am.  St.  Rep.  491. 
cution  of  that  suit  to  judgment  if  32 — Southern  Exp.  Co.  v.  Palmer, 
done  with  knowledge  of  the  facts  48  G-a.  85;  Widner  v.  Lane.  14 
attending  the  giving  of  the  due  Mich.  124,  90  Am.  Dec.  230;  Hen- 
bill,  amounted  to  a  conclusive  derson  v.  Cummings,  44  111.  325; 
election  on  the  part  of  defendants  Kreder  v.  Trustees,  etc.,  31  la. 
to  treat  Drewry  as  a  purchaser,  547;  Menkins  v.  Watson,  27  Mo. 
and  to  abandon  their  claim  of  163;  Saveland  v.  Green,  40  Wis. 
ownership  in  the  cotton,  citing  431;  Tasker  v.  Kenton  Ins.  Co., 
Butler  v.  Hildreth,  5  Mete.  (Mass.)  59  N.  H.  438,  47  Am.  Rep.  217; 
49;  Insurance  Co.  v.  Cochran,  27  Strasser  v.  Conklin,  54  Wis.  102. 
Ala.  228;  Nield  v.  Burton,  49  Mich.  33— Kerr  v.  Sharp,  83  111  199; 
53,  12  N.  W.  906;  Terry  v.  Munger,  Bannon  v.  Warfleld,  42  Md.  22; 
121  N.  Y.  161,  24  N.  E.  272.  18  Am.  Roberts  v.  Rumley,  58  la.  301,  12 
St.  Rep.  803,  8  L.  R.  A.  216.  There  N.  W.  323;  Aetna  Ins.  Co.  v.  N. 
was  therefore  no  error  in  giving  W.  I.  Co.,  21  Wis.  458,  94  Am.  Dec. 
this   charge."  555;    Proctor    v.    Tows,    115    111.    138, 

31— Meyer    v.     Morgan,     51    Miss.  3    N.    E.    569. 

21,    24   Am.    Rep.    617:    Hawkins   v.  34— Farwell    v.    Meyer,    35   111.    40; 

Lnnge,  22  Minn.  557;   Breed  v.  Cent  Jemison    v.    Parker.    7    Mich.    355; 

City    Bk.,    4    Col.    481;    TT.    S.    R.    S.  Connett     v.     Chicago,     114    111.     233, 

Co.    v.    Rd.    Co.,    37    Ohio    St.    450;  29   N.    E.    280;    Schollav  v.   Moffett- 

Waterson   v.    Rogers,   21   Kan.   529;  West  Drug  Co.,   17  Colo.  App.   126, 

67  Pac.   182. 


§487.]  AGENCY.  373 

material  facts  affecting  the  interests  of  the  principal,  then   the  act 
of  ratification  will  not  be  binding  on  the  principal.35 

§  487.  Principal's  Diligence — How  Determined.  In  determining 
whether  the  plaintiff  was  or  was  not  negligent  (that  is,  did  not  exer- 
cise due  diligence  to  discover  the  existence  of  a  prior  mortgage)  you 
should  consider  the  relations  existing  between  the  parties, — whether 
the  defendant  made  any  statements  or  representations  to  plaintiff  as 
to  the  mortgage  being  a  first  mortgage  while  he  was  acting  as  her 
agent — and  together  with  all  the  other  facts  and  circumstances  be- 
fore you  say  whether  she  was  or  was  not  diligent  in  discovering  the 
existence  of  the  first  mortgage  on  the  premises  in  question  at  the  time 
she  did  discover  it.36 

§488.  When  Principal  is  Liable  for  Agent's  Torts.  The  jury  are 
instructed,  that  if  a  tort  or  wrong  is  committed  by  an  agent,  in  the 
course  of  his  employment  while  pursuing  the  business  of  his  prin- 
cipal, and  it  is  not  a  willful  departure  from  such  employment  and 
business,  the  principal  will  be  liable  for  the  act,  although  it  is  done 
"vithout  his  knowledge.37 

§  489.  Undisclosed  Principal  Bound  by  Acts  of  Agent.  If  W.  acted 
for  some  one  else,  whether  the  some  one  else  knew  it  or  not,  and  the 
some  one  else  accepted  the  fruits  of  the  transaction,  then  such  per- 
son is  bound  hy  the  acts  of  the  person  acting  as  agent.38 

§  490.  When  Agent  of  Undisclosed  Principal  Liable  for  Goods 
Bought  by  Sub-Agent,  (a)  In  arriving  at  a  determination  as  to 
whether  or  not  the  plaintiffs  would  have  a  right  to  extend  this 
credit,  and  were  authorized  by  the  defendant  D.  A.  to  extend  such 
credit,  you  are  to  take  into  consideration  the  acts  and  declarations 
and  statements  of  the  defendant  D.  A.  made  at  or  about  the  time 
this  credit  was  extended  to  him;  and  I  instruct  you,  that,  if  you 
find,  as  a  matter  of  fact,  that  the  defendant  D.  A.,  together  with  Mr. 
B.,  went  to  the  plaintiffs  on  or  about  and  obtained  an  esti- 
mate upon  a  bill  of  lumber,  and  that  the  defendant  D.  A.  authorized 
Mr.  B.  to  order  the  lumber  at  such  time  as  he  might  want  it,  and  if 
you  further  find  as  a  fact  that  the  defendant  D.  A.  did  not  state 
that  the  lumber  was  to  be  charged  to  the  Traction  Company,  and  if 
you  find  as  a  fact  that  the  defendant  D.  A.  did  not  say  anything  to 
the  plaintiffs  about  whom  they  should  charge  the  lumber  to,  they 
would  have  the  right  as  a  matter  of  law  to  charge  it  to  the  de- 
fendant D.  A. 

35— Miller    v.    Board    of,    etc,    44  Ala.     644.     17     So.     336     (339).      The 

Cal.    166.  court    said: 

36— Faust    v.    Hosford.    119    Iowa  "The   charge   given    by   the   court 

97,   93   N.   W.   58    (60).  may  be   somewhat    indefinite  in  its 

37_Noble   v.   Cunninsrham.   74   111.  terms,     but    the    principle    of    law 

51;   Cooley  on  Torts.  533;   Hamilton  asserted  is   in  accordance  with  our 

v  'Third  Ave.  Rd.  Co.,  53  N.  Y.  25.  views    of   the    law."      See    also    Os- 

38— Williamson      v.      Tyson,      105  borne    &    Co.    v.    Ringland    &    Co., 

122  Iowa  329,   98    N.   W.   116  (118). 


374  FORMS  OF  INSTRUCTIONS.  [§491. 

(b)  I  further  instruct  you  that  whether  or  not  the  defendant 
D.  A.  was  acting  in  his  capacity  as  vice  president  of  the  Traction 
Company  in  ordering  the  said  lumber,  and  whether  or  not  he  was 
acting  as  its  agent  in  the  purchase  of  said  lumber,  that  the  plaintiffs 
would  not  be  bound  by  such  fact  unless  the  defendant  D.  A.  did  some- 
thing to  bring  the  fact  of  such  alleged  agency  to  the  attention  of  the 
plaintiffs  at  or  before  the  time  that  the  credit  was  extended  to  the 
defendant  D.  A.,  and  the  lumber  was  delivered  to  him,  which  deliv- 
ery was  made  at  the  time  that  the  lumber  was  loaded  upon  the  cars 
at  the  station  in  Battle  Creek.  An  agent  who  orders  goods  without 
legal  authority  for  his  principal  binds  himself,  and,  if  an  agent  orders 
goods  for  a  principal  witnout  disclosing  the  name  of  the  principal  to 
the  party  from  whom  he  orders  the  goods,  such  party  may  charge 
the  goods  to  the  agent,  and  sue  and  collect  from  him;  and  I  instruct 
you  that  whatever  may  have  been  understood  by  the  defendant  D.  A., 
as  between  himself  and  the  officers  of  the  Traction  Company,  it  would 
be  wholly  immaterial,  unless  the  same  was  communicated  to  the 
plaintiffs,  and  the  plaintiffs  were  instructed  by  the  defendant  D.  A., 
or  the  defendant  D.  A. 's  actions,  conduct  or  statements  were  such 
that  the  plaintiffs  might  have  inferred  from  such  actions,  conduct 
and  statements  made  at  or  before  the  credit  was  extended  and  the 
lumber  was  delivered,  that  such  credit  was  not  to  be  given  to  D.  A. 
himself,  but  was  to  be  given  to  the  Traction  Company. 

(c)  The  burden  of  proof  is  upon  the  plaintiffs,  and  if  you  find 
from  all  the  evidence  in  the  case  (hat  some  person  ordered  this 
lumber  for  the  defendant  D.  A.  the  burden  is  upon  the  plaintiffs 
to  show  by  fair  preponderance  of  evidence  that  such  order  was 
given  by  an  agent  of  the  defendant  D.  A.  having  the  authority  to 
bind  him.39 

§  491.  Defendant  Refusing  to  Accept  Goods  as  Plaintiff's,  But  Ac- 
cepts as  Agent's.  If  you  believe  from  the  evidence  that,  notwith- 
standing 0.  may  have,  for  plaintiff,  notified  defendant,  or  his  agents, 
that  he  was  delivering  the  piling  in  controversy  for  plaintiff,  still, 
if  defendant  refused  to  accept  said  piling  as  plaintiff's,  but  accepted 
same  as  0.  's,  and  so  notified  0.,  and  you  believe  from  the  evidence 
that  0.  was  acting  as  the  agent  of  plaintiff,  and  if,  after  said  notice, 
0.,  for  plaintiff,  continued  to  furnish  said  piling  for  plaintiff,  the 
plaintiff   cannot   recover.40 

§492.  False  Representations  by  Real  Estate  Agent,  (a)  That  if 
W.  in  dealing  with  T.  in  reference  to  the  sale  of  plaintiff's  lot, 
acted  as  plaintiff's  agent,  whether  employed  so  to  act  or  not,  or 
known  to  have  so   acted  or  not,  then  the  plaintiff  is  bound  by  all 

39 — In      Rathbun     v.      Allen,      135  had    authorized    plaintiff    to    furn- 

Mich.    699,   98    N.    W.   735   (736),   the  ish   lumber   on   his   personal   credit 

court    after    telling    the    jury    that  and   whether  plaintiffs  had  so  fur- 

the  only   question   was   whether  o>~  nished    it,     instructed    as    above. 
not     the     defendant,     D.     A.,     vice         40— Central  C.   &  C.   Co.  v.   G-ood, 

president  of  the  traction  company,  4   Ind.    T.    74,    64    S.   W.    677    (680). 


§  493.]  AGENCY.  375 

acts  of  W.  in  affecting  the  sale ;  and  if  the  defendant  was  induced 
to  make  the  contract  by  a  false  representation  made  by  W.  as  to  the 
solvency  of  McB.,  on  which  T.  relied,  in  contemplation  of  law  it  is  the 
same  as  if  plaintiff  had  made  such  representations  personally,  since 
the  plaintiff  claims  the  benefit  of  the  transaction. 

(b)  It  makes  no  difference  that  the  owner  did  not  employ  W.  as 
agent,  or  that  he  did  not  know  of  his  false  representations.  If  he 
did  in  fact  act  in  dealing  with  T.  as  such  agent  and  did  in  fact 
make  false  representations  to  induce  T.  to  buy  the  lot,  on  which 
T.  relied  and  acted,  and  the  plaintiff,  after  it  is  known,  claims  and 
holds  the  benefit  of  the  fraud  perpetrated  by  W.  this  is  a  ratifica- 
tion and  approval  of  the  agency.41 

§  493.  Investment  of  Funds  for  Another — General  Authority  In- 
sufficient to  Invest  More  Than  Amount  Deposited,  (a)  If  you  be- 
lieve from  the  evidence  that  plaintiff  left  with  defendants  $ to 

be  used  in  the  purchase  of  B.  stock,  and  the  defendants  purchased 

for  the  plaintiff  50  shares  of  B.  stock  at  the  price  of  $ per  share, 

aggregating   $ ,    and   in   paying   therefor   used   plaintiff's   $ , 

together  with  $ of  defendants'  and  charged  the  plaintiff  with  the 

entire  amount  expended  in  said  purchase,  to-wit,  $ ,  and  refused 

or  failed  on  demand  to  deliver  to  plaintiff  shares  of  said  stock  pur- 
chased of  the  value  of  said  $ ,  then  the  plaintiff  is  entitled  to 

recover,  unless  you  further  believe  from  the  evidence  of  the  prior 
dealing  between  the  parties,  and  the  agreement  between  the  parties 
as  to  the  purchase  of  shares  of  B.  L.  &  I.  Company  when  the  said 

sum  of  $ was  left  by  the  plaintiff  in   defendants'   hands,   and 

from  the  other  circumstances  of  the  ease  that  the  defendants  were 
authorized  to  purchase  more  stock  than  $ would  pajr  for. 

(b)  No  mere  general  authority  to  invest  the  money  in  defendants' 
hands  in  B.  stock  would  authorize  defendants  to  buy  and  charge 
plaintiff  with  $ stock.42 

§  494.  Knowledge  of  Agent  Perpetrating  Fraud  on  Principal  Not 
Imputed  to  Principal,  (a)  I  charge  you  that,  if  S.  [president  of 
defendant  bank]  at  the  time  he  drew  the  money  in  question  had  the 
intent  to  misappropriate  and  convert  it  to  his  own  use,  he  was  en- 
gaged in  perpetrating  an  independent  fraud  on  his  own  account, 
and  the  knowledge  of  his  own  intent  could  not  be  imputable  or  im- 
puted to  the  bank,  and  would  not  be  notice,  constructive  or  other- 
wise, to  it,  merely  because  he  was  its  president. 

(b)  That  while  the  knowledge  of  an  agent  is  ordinarily  imputed 
and  charged  to  his  principal,  there  is  an  exception  to  this  rule  in 
cases  of  such  conduct  on  the  agent's  part  as  to  raise  a  clear  pre- 
sumption that  he  would  not  communicate  the  fact  in  controversy;  as 
when   the   agent   acting  nominally  as   such  in   reality   acting  in   his 

41— Williamson  v.  Tyson,  105  42— Bradfield  et  al.  v.  Patterson, 
Ala.   644,   17   So.   336    (338).  106  Ala,   397,   17   So.   536. 


376  FORMS  OF  INSTRUCTIONS.  [§  494. 

own  or  another's  interest  and  adversely  to  that  of  his  principal,  or 
when  the  communication  of  such  fact  would  ordinarily  prevent  a 
consummation  of  a  fraudulent  scheme,  which  the  agent  was  engaged 
in  perpetrating. 

(c)  That  the  question  of  notice  to  the  bank  of  the  intention  of 
S.  to  misappropriate  the  money  drawn  out  by  him  is  a  conclusion 
to  be  arrived  at  by  the  jury  from  all  the  circumstances  detailed  in 
the  testimony.  That  they  are  not  limited  alone  to  the  knowledge  of 
S.,  obtained  by  him  as  executor,  but  the  jury  are  to  consider  the 
testimony  as  a  whole,  the  knowledge  of  the  officers  of  the  bank,  cir- 
cumstances occurring  within  their  knowledge;  and  if  they  find  from 
all  the  circumstances  of  the  ease,  that  the  officers  knew,  or  had  such 
grounds  as  would  have  been  sufficient  to  a  reasonable  man  for  know- 
ing, that  S.  intended  to  use  this  fund  so  drawn  by  him  for  his  own 
purposes,  then  that  is  sufficient  to  give  notice  to  the  bank  of  such 
knowledge.  Provided,  that  the  testimony  satisfies  you  as  a  jury 
that  S.  was  acting  officially  for  the  bank  in  the  transaction,  and  not 
acting  as  a  depositor  drawing  on  his  deposit. 

(d)  The  court  instructs  you  that  in  drawing  the  money  in  question 
out  of  the  bank,  S.  was  acting  adversely  to  the  bank,  and  not  in  its 
behalf;  and  if,  when  drawing  it,  he  intended  to  misappropriate  and 
convert  it  to  his  own  use,  notice  of  such  intent  would  not  be  imputed 
to  the  bank  merely  by  reason  of  the  fact  that  he  was  president  of 
the  bank  at  the  time. 

(e)  That,  if  S.  was  president  of  the  bank  when  he  drew  the 
money  in  question  out  of  the  bank,  and  at  the  time  had  the  intent  to 
misappropriate  and  convert  the  money  to  his  own  use,  the  mere 
fact  of  his  being  such  president  would  not  be  notice,  constructive, 
or  otherwise,  to  the  bank. 

(f)  That,  knowledge  of  an  agent  of  a  corporation  or  other  prin- 
cipal while  engaged  in  a  fraud  for  his  own  benefit  cannot  be  imputed 
to  such  corporation  or  other  principal.  Unless,  also,  the  corporation 
or  the  principal  is  benefited  by  the  fraud,  in  which  case  the  corpora- 
tion or  other  principal  would  be  liable  to  the  extent  of  its  benefit 
received  from  the  fraud. 

(g)  If  the  jury  believe  that  S.  was  president  of  defendant  bank, 
and  that  he  knew  that  the  deposit  in  said  bank  standing  in  the  name 
of  S.  and  W.  K.,  Sr.,  belonged  to  the  cestui  que  trust  under  the 
will  of  "W.  K.,  Sr.,  then  when  the  said  deposit  was  entered  in  the 
said  bank,  and  became  subject  to  his  general  supervision  as  presi- 
dent of  the  bank,  whenever  the  bank  acted  through  him,  or  with  his 
knowledge,  in  any  transaction  concerning  the  deposit,  where  that 
knowledge  Avas  material  and  applicable,  such  knowledge  of  S.  con- 
cerning the  deposit  is  the  knowledge  of  the  bank.  That  is  the  law 
which  would  govern  a  transaction  with  regard  to  the  deposit  in  which 
he  (S.)  may  have  acted  as  officer  of  the  bank  and  as  its  agent,  but 
not  if  he  acted  concerning  the  deposit  as  any  other  depositor  may 


§  494.]  AGENCY.  377 

have  done.  So,  gentlemen,  you  will  decide  from  the  testimony  in 
this  case  whether  S.  was  acting  as  an  officer  and  agent  of  the  bank 
in  drawing  out  said  deposit  or  was  acting  as  a  depositor,  such  deposit 
being  subject  to  his  checks  as  such  depositor.  And  here  I  charge 
you  that  if  S.  and  his  co-executor  originally  placed  the  money  on 
deposit  in  the  defendant  hank,  and  if  he  was,  at  the  time  he  drew 
the  money  out,  acting  as  sole  surviving  executor,  and  authorized  to 
act  as  such,  then  the  bank  was  reasonably  bound  to  pay  the  check 
of  S.  to  the  extent  of  the  deposit,  and  for  any  loss  which  the  cestui  que 
trust  may  have  suffered  by  the  misappropriation  of  the  money  by  S. 
the  bank  will  not  be  liable  in  law,  unless  the  bank  as  a  bank  was 
guilty  of  a  breach  of  trust  towards  this  cestui  que  trust  under  the 
will  of  W.  K.,  or  acted  in  collusion  with  S.  in  a  fraudulent  plan 
and  purpose  to  misappropriate  the  money  on  deposit;  and  that  de- 
pends, of  course,  entirely  upon  the  testimony,  and  it  is  for  you  to 
decide. 

(h)  If  the  jury  believe  that  S.  was  president  of  defendant  bank 
at  the  time  mentioned  in  the  complaint,  and  that  he  drew  from  said 
bank,  at  the  jDeriods  therein  stated,  the  said  amounts  alleged  to  be 
and  which  were  the  property  of  the  cestui  que  trust,  and  at  the  time 
said  deposits  were  so  drawn  he,  the  president  of  the  bank,  was  in 
the  bank,  acting  as  its  president,  with  the  general  supervision  of 
its  affairs,  including  this  deposit,  knowing  that  the  transaction  was 
concerning  said  deposit,  and  then  intended  to  misappropriate  said 
amounts  so  drawn,  and  did  in  fact  misappropriate  them,  then  his 
knowledge  of  the  same  as  a  matter  of  law  became  the  knowledge 
of  the  bank,  and  his  receipt  as  executor  cannot  discharge  the  bank 
if  such  receipt  formed  a  part  of  the  fraud.  This  is  the  law  in  this 
case,  if  the  testimony  satisfies  you  that  S.,  in  drawing  the  deposit, 
was  acting  as  president,  or  officer  or  agent  of  the  bank,  representing 
the  bank,  and  acting  for  it,  and  not  acting  as  depositor  or  as  ex- 
ecutor with  a  right  to  draw  on  the  deposit.  The  knowledge  of  S. 
as  an  executor  is  not  to  be  imputed  to  the  bank  simply  because  he 
was  president.  It  can  be  imputed  to  the  bank  and  will  bind  the 
bank  only  with  regard  to  transactions  in  which  he  acted  as  president 
or  agent  of  the  bank,  acting  in  the  business  of  the  bank,  and  in  its 
behalf.  To  illustrate :  Should  the  president  of  a  bank,  who  was 
also  executor  of  an  estate,  have  on  deposit  in  the  bank  a  fund  of 
money  as  executor,  and  should  transfer  that  deposit  from  his  ac- 
count as  executor  to  his  own  individual  account,  which  he  and  the 
bank  knew  to  be  overdrawn,  and  should  loss  ensue  to  his  cestui 
que  trust,  in  such  case  the  bank  would  be  liable  to  the  extent  of  the 
loss,  because  such  a  transaction  would  be  acting,  in  part  at  least, 
as  officer  of  the  bank  and  in  the  business  of  the  bank,  and  his 
knowledge  would  be  chargeable  to  the  bank,  which  would 
be  held  responsible  to  the  extent  to  which  it  was  benefited  by  the 
transaction,  under  the  equitable  doctrine  that  a  principal  cannot  be 


378  FORMS  OF  INSTRUCTIONS.  [§494 

allowed  to  reap  the  reward  of  the  dishonesty  of  its  agent.  The  law 
will  not  allow  the  principal  to  enjoy  the  fruit  of  its  agent's  fraud. 
If  the  principal  shares  in  its  agent's  reward,  it  must  also  carry  the 
burden  of  the  agent's  guilty  knowledge.43 

43 — The   eight    instructions   given     v.  Moffett-West  Drug  Co.,  17  Colo. 
above  were  approved  by  the  court     App.    126,    67    Pac.    182;    Schutz    v. 
in   the   case   of   Knobeloch   v.    Ger-      Jordon,    141  U.    S.    213,   11   Sup.   Ct. 
mania   Sav.   Bank,    50   S.   C.    259,   27     906,   35   L.   Ed.   705. 
S.   E.    962   (965).     See  also   Schollay 

See    "Brokers,"  chapter   XXXVII. 


CHAPTER  XXVII. 

ALIENATION    OF  AFFECTION-CRIMINAL    CONVER- 
SATION—SEDUCTION. 

See    Erroneous    Instructions,  same   chapter   head,   Vol.   III. 


§  495.  Alienation  of  affection  of 
husband. 

§  496.  Alienation  of  wife's  affec- 
tions—Proximate   cause. 

§  497.  Defendant's  acts  must  be 
controlling  cause. 

S  498  What  must  be  proved  to  sus- 
tain the  action— Character 
evidence. 


§  499.  Husband's      forgiveness      no 

defense. 
§  500.  Damages  may  be  lessened  if 

offense    is    condoned. 
§  501.  Consent     of     husband     is     a 

good    defense. 
§  502.  Seduction    defined. 
|  503.  Consent      obtained      through 

affection    and    confidence. 


§  495  Alienation  of  Affection  of  Husband.  The  great  question 
for  you  to  decide  is,  did  Mrs.  H.,  knowing  that  Mr  K  was  a  married 
man  wrongfully  alienate  or  entice  away  the  affection  of  Mr  K. 
fTm  his  wife,  and  did  she  wrongfully  and  knowingly  deprive  Mrs. 
K.  of  the  comfort,  society,  support,  love  and  affection  of  hei  hus- 
band, and  was  this  clone  by  Mrs.  H.  either  m  the  state  of  Noith 
Dakota  or  Minnesota.1 

§496.  Alienation  of  Wife's  Affections-Proximate  Canse  If  you  find 
from  a  preponderance  of  the  evidence  that  the  conduct  of  the  de- 
fendants together,  or  either  of  them  alone,  was  the  controlling  cause 
Sh  induced  the  plaintiff's  wife  to  leave  him,  and  that  without  such 
conduct  his  said  wife  would  not  have  left  him,  then  he  would  be  en- 
titled to  recover  from  that  one  of  the  defendants  whose  conduct 
SSLSl^Tea^e,  or  from  both  defendants  if  each  of  them  con- 
tributed to  such  controlling  cause,  although  there  might  have  been 
other  causes  contributing  to  the  same  results.2 

§  497  Defendant's  Acts  Must  Be  Controlling  Cause.  The  jury 
are  instructed,  that  if  the  conduct  of  the  defendant  was  the  con- 
trolling cause  which  induced  the  husband  to  leave  his  wife  the 
plaintiff,  and  if  the  jury  are  satisfied  that  but  for  the  conduct  of 
the  defendant  he  would  not  have  left  the  plaintiff,  plaintiff  is  en- 
titled to  recover,  although  there  might  have  been  other  causes  con- 
tributing to  the  same  result.3 

„    „  «    n    se      that  the  conduct  of  the  defendant 
1-King  v.  Hanson,  13   N.   D.   85,     that  tne ^coi  controlling 

99    N.    W.    1085.  nonahlie      4  cluse     and    that    if.    without    such 

2-Figg     et    'alwv-    £onahUe'     4  conduct    plaintiff's   husband    would 

NfVath   v    Ram  Neb.   -,    89  no"   nave  "left   her.  then  she  would 

N *W    J?2      TrS  court  said.     "This  be   entitled  to   recover. 

instruction    plainly    told    the    jury 

379 


380  FORMS  OF  INSTRUCTIONS.  [§498. 


CRIMINAL  CONVERSATION. 

§  498.  What  Must  Be  Proved  to  Sustain  the  Action — Character 
Evidence,  (a)  The  plaintiff's  declaration  charges  the  alienation  of 
his  wife's  affections  by  means  of  adultery  having  been  committed 
with  her  by  the  defendant.  Now,  before  the  plaintiff  can  recover 
under  this  count,  he  must  satisfy  you  that  the  defendant  committed 
adultery  with  the  plaintiff's  wife  substantially  at  the  time  and  place 
and  under  the  circumstances  alleged  by  the  plaintiff  in  his  dec- 
laration. 

(b)  In  order  to  establish  the  charge  of  adultery,  the  plaintiff 
must  first  prove  an  adulterous  disposition  on  the  part  of  the  de- 
fendant toward  Mrs.  K. ;  second,  an  adulterous  disposition  on  her 
part  toward  the  defendant;  and,  third,  the  opportunity  for  the  grati- 
fication of  this  adulterous  disposition.  If  any  one  of  these  elements 
is  lacking,  the  plaintiff  must  fail.  Mere  opportunity  is  not  suffi- 
cient; neither  is  the  adulterous  disposition  without  the  opportunity 
sufficient;  neither  would  it  be  sufficient  to  prove  an  adulterous  dis- 
position on  the  part  of  the  defendant,  coupled  with  the  opportunity, 
unless  the  plaintiff  gbes  farther,  and  proves  an  adulterous  disposi- 
tion on  the  part  of  the  plaintiff's  wife. 

(c)  The  defendant  has  offered  evidence  of  his  good  character. 
This  was  permitted  because  the  declaration  charges  him  with  com- 
mission of  a  crime,  that,  is,  intending  to  commit  the  crime  of  adul- 
tery. You  are  instructed  that  good  character,  if  established,  is  of 
importance  to  a  person  charged  with  crime.  It  is  not  usual,  perhaps, 
for  good  men  to  commit  crime,  but  it  is  possible,  and  men  who  stood 
high  have  been  guilty.  You  should  consider  whether  a  person  with 
a  good  character  would  be  less  liable  to  commit  a  crime  than  one 
with  a  bad  character.  You  will  consider  this  evidence  with  all  the 
rest,  and  give  the  defendant  all  the  benefit  of  it  that  you  believe 
him  entitled  to.4 

§  499.  Husband's  Forgiveness  no  Defense,  (a)  The  jury  are  in- 
structed that,  where  a  defendant  has  debauched  the  wife  of  a  plain- 
tiff, the  right  of  action  of  the  latter  is  complete;  and  the  mere  fact 
that  such  plaintiff  forgives  his  wife  and  continues  the  marital  rela- 

4 — The  three  instructions  given  will  apply  with  equal  force  to 
above  were  approved  in  Knicker-  this.  See  8  Am.  &  Eng.  Ency.  of 
bocker  v.  Worthing,  138  Mich.  224,  Law  (2d  Ed.)  269;  Bishop  on 
101  N.  W.  540  (7)43).  Regarding  the  Divorce,  §  619;  Freeman  v.  Free- 
first  instruction  the  court  said:  man."  Supra.  In  reference  to  the  • 
"I  think  it  a  proper  statement  of  third  instruction  the  court  said: 
the  law,  and  it,  or  its  equivalent  "This  question  was  passed  upon 
should  have  been  given.  See  Dunn  in  Adams  v.  Elseffer,  132  Mich, 
v.  Dunn.  11  Mich.  284;  Green  v.  100,  92  N.  W.  772,  under  which  de- 
creet!. 26  Mich.  4:;7:  Freeman  v.  cision  the  charge  of  the  circuit 
Freeman,  31  Wis.  235."  Regard-  judge  was  even  more  favorable  to 
ing  the  second  charge:  "What  I  the  defendant  than  it  ought  to 
have  said  as  to  the  former  request  have   been." 


500.] 


ALIENATION  OF  AFFECTION. 


381 


tion  does  not  necessarily  have  the  effect  to  establish  his  connivance 
or  assent  to  the  misconduct  of  such  defendant. 

(b)  If  the  jury  believe  from  the  evidence  that  defendant  com- 
mitted the  offense  charged  in  the  petition  herein,  and  that  plaintiff 
has  forgiven  his  wife  and  is  living  with  her,  through  the  exercise  of 
Christian  virtue,  the  influence  of  family  interest,  or  even  in  the  want 
of  what  may  be  regarded  as  a  true  manly  spirit,  that  fact  could  not 
destroy  his  right  of  action  for  the  injury  done  him  by  this  de- 
fendant.5 

§500.  Damages  May  Be  Lessened  if  Offense  is  Condoned.  The 
fact  that  the  husband,  after  learning  of  the  wrong  that  he  had  suf- 
fered, did  not  break  up  his  home  or  drive  his  wife  therefrom  or  apply 
for  a  divorce,  but  condoned  her  offense,  is  no  bar  to  his  action  against 
the  defendant  for  any  wrong  committed  by  him.  It  may  lessen  the 
damages,  but  it  does  not  take  away  the  right  of  action,  and  the 
damages,  if  any,  are  for  you  to  find;  if  you  reach  that  branch  of 
the  case.6 

§  501.  Consent  of  Husband  is  a  Good  Defense,  (a)  If  you  be- 
lieve from  the  evidence  that  the  plaintiff  was  willing,  or  contributed 


5— Smith  v.  Meyers,  52  Neb.  70, 
71    N.    W.    1006. 

"The  cohabitation  of  plaintiff 
with  his  wife  after  knowledge  of 
her  intimacy  with  the  defendant 
did  not  bar  the  right  of  action, 
nor  did  such  fact  necessarily 
prove  collusion  between  plaintiff 
and  his  wife,  citing  Verholf  v. 
Van  Houwenlengen,  21  Iowa  429; 
Stumm  v.  Hummel,  39  Iowa  478; 
Sanborn  v.  Nelson,  4  N.  H.  501; 
Sikes  v.  Tippings,  85  Ga.  231,  11 
S.    E.   662." 

6 — Smith  v.  Hockenberry,  — 
Mich.   ,    109    N.    W.    23. 

The  court  said:  "You  will  see 
that  the  question  is  thus  present- 
ed whether  the  condonation  of  the 
wife's  offense  by  the  husband  may 
be  considered  in  mitigation  of 
damages.  Plaintiff's  counsel  cite, 
in  support  of  the  claim  that  such 
testimony  is  not  to  be  received  in 
mitigation,  Heermance  v.  James, 
47  Barb.  (N.  Y.)  120,  which  was  a 
case  in  no  wise  like  the  present. 
The  Question  in  that  case  was 
whether  the  act  of  defendant,  in 
influencing  the  plaintiff's  wife  to 
refuse  to  recognize  or  receive  the 
plaintiff  as  her  husband  or  to  live 
with  him  as  his  wife,  was  action- 
able. The  holding  of  the  court  was 
that  an  action  would  lie  for  this 
wrong,  even  though  the  wife  con- 
tinued to  live  in  the  house  with 
her   husband.     It   was   with   refer- 


ence to  this  situation  that  the 
language  used  in  the  brief  of 
counsel  was  employed,  viz.: 
'Her  remaining  with  him  under 
the  circumstances  would  rather 
add  the  provocation  of  insult  to 
the  keenness  of  suffering.  It 
would  continue  before  him  a  pres- 
ent, living,  irritating,  aggravating, 
if  not  consuming  source  of  grief, 
which  even  her  absence  in  a 
measure  might  relieve.'  It  is 
obvious  at  a  glance  that  the 
court  was  not  there  dealing  with 
the  question  here  involved.  The 
authorities  bearing  directly  on 
this  question  are  not  numerous. 
Some  English  cases  are  said  to 
hold  condonation  a  bar.  3  Enc. 
p.  795.  The  current  of  authority 
is  not  so.  On  principle,  however, 
we  hold  that  the  fact  that  the 
p.'aintiff  has  continued  to  live  and 
cohabit  with  the  wife  is  a  circum- 
stance to  be  considered  in  mitiga- 
tion. The  declaration  in  such  case 
usually  as  in  the  present,  contains 
a  charge  of  loss  of  the  society, 
fellowship  and  assistance  of  the 
wife.  Why  should  it  not  be  com- 
petent to  show  that  this  was  not 
the  case  for  any  considerable 
time?  See  Morning  v.  Long.  109 
Towa  288,  80  N.  W.  390;  Ball  v. 
Marquis,  —  Iowa  — ,  92  N.  W.  691. 
We  think  the  instructions  of  the 
court  fair  in   all  respects." 


382 


FORMS  OF  INSTRUCTIONS. 


[§  502. 


in  any  degree,  to  have  his  wife  throw  herself  in  the  way  of  the  de- 
fendant, and  to  try  to  entrap  him  into  having  connection  with  her, 
the  plaintiff  cannot  recover. 

(b)  If  you  believe  from  the  evidence  plaintiff  and  his  wife  tried 
to  entrap  the  defendant  into  having  improper  relations  with  his  wife, 
for  the  purpose  of  blackmailing  him  or  getting  money  from  him, 
then  plaintiff  cannot  recover.7 

(c)  If  you  find  from  the  evidence  that  the  defendant  did  have 
sexual  intercourse  with  the  plaintiff's  wife,  and  also  find  that  prior 
to  such  intercourse  the  plaintiff  had  reason  to  know  his  wife  was 
guilty  of  improper  conduct  with  the  defendant,  suspected  her  of  it, 
and  yet  took  no  means  to  prevent  an  intercourse  between  them,  you 
may  consider  such  omission  on  his  part  in  determining  what,  if 
any,  damage  he  is  entitled  to  recover  from  the  defendant  for  seduc- 
ing his  wife.8 

SEDUCTION. 

§  502.  Seduction  Defined.  If  the  jury  believes  that  appellee  se- 
duced, debauched,  and  carnally  knew  plaintiff's  daughter,  E.  S.,  and 
that  by  reason  or  means  of  such  seduction  and  carnal  knowledge  by 


7— Smith  v.  Meyers,  52  Neb.  70, 
71  N.  W.  1006.  "Construing-  the 
foregoing  in  connection  with  the 
instructions  given  on  behalf  of 
plaintiff,  we  are  convinced  it  was 
made  plain  to  the  jury  that  there 
could  be  no  recovery  in  this  case 
if  the  adultery  charged  was  com- 
mitted by  the  wife  with  the  con- 
sent or  connivance  of  her  hus- 
band." 

8— Eee  v.  Hammond,  114  Wis. 
550,  90  N.  W.  1073  (1076).  The  court 
said:  "The  law  seems  to  be  well 
settled  that  the  husband  cannot 
'be  charged  with  connivance  or 
consent  merely  because  he  was 
negligent  in  respect  of  his  wife's 
conduct,  and  so  permitted  oppor- 
tunities for  crime  when  he  had  no 
suspicion  of  her  infidelity.'  Even 
when  he  suspects  her,  he  may,  in 
order  to  obtain  proof  of  her  un- 
chastity,  leave  open  the  oppor- 
tunities which  he  finds,  so  long  as 
he  does  not  make  new  ones  or  in- 
vite the  wronsr.'  8  Am.  &  Eng. 
Enc.  Law  (2d  Ed.)  264.  'To  con- 
stitute a  defense  to  su^h  an  ac- 
tion, the  acts  of  plaintiff  must 
have  been  such  as  to  warrant  the 
conolusion  that  he  assented  to  the 
wife's  infidelity.'  Stumm  v.  Hum- 
mel. 39  Iowa  478.  So  it  has  been 
held    in    Massachusetts    that:      'A 


husband  who  does  nothing  to  en- 
courage his  wife  to  commit  adul- 
tery, and  does  not,  directly  or  in- 
directly, throw  opportunities 
therefor  in  her  way,  but  who, 
suspecting  her  thereof,  watches 
her,  and  suffers  her  to  avail  her- 
self of  an  opportunity  which  she 
had  already  arranged  for  without 
any  knowledge  on  his  part,  is  not 
guilty  of  connivance,  even  if  in 
so  doing  he  hopes  to  obtain  proof 
which  will  entitle  him  to  a  di- 
vorce and  purposely  refrains  from 
warning  her  for  that  reason.' 
Wilson  v.  Wilson,  154  Mass.  194, 
28  N.  E.  167,  12  L.  R.  A.  524,  26 
Am.  St.  Rep.  237.  A  quite  similar 
ruling  was  made  in  Iowa,  where 
it  was  held  that:  'A  husband  is 
not  chargeable  with  collusion  in 
allowing  another  to  have  criminal 
conversation  with  his  wife  from 
the  fact  that,  after  having  his 
suspicions  aroused,  he.  for  the 
purpose  of  watching  her,  leaves 
open  existing  opportunities,  where 
he  does  not  create  new  ones  or  in- 
vite the  wrong.'  Puth  v.  Zimbl^- 
man,  99  Iowa  641.  68  N.  W.  895. 
In  that  state  it  has  been  held  that 
to  be  available,  the  plaintiff's  con- 
sent and  connivance  must  be  spe- 
ciallv  pleaded.  Morning-  v.  Eong, 
109   Iowa  288,   80  N.  W.   390." 


§  503.]  ALIENATION  OF  AFFECTION.  383 

defendant   of   said   daughter,   said   daughter  became   pregnant,   etc., 
they  should  find  for  appellant.9 

§  503.  Consent  Obtained  Through  Affection  and  Confidence.  If  an 
unmarried  man  by  his  visits  and  attentions  to  an  unmarried  female 
gains  her  affections  and  confidence  and  importunes  her  to  sexual  in- 
tercourse with  him,  and  she,  through  her  love  for  and  confidence  in 
him,  yields  to  his  solicitations,  this  is  seduction.10 

9 — Stowtrs  v.  Singer,  113  Ky.  10 — Smith  v.  Yaryan,  69  Ind.  445, 
584,   68   S    W.   637.  35    Am.    St.    Rep.    232. 

See    Seduction,    general    heading   Criminal. 


CHAPTER   XXVIII. 


ALTERATION  OF  WRITTEN  INSTRUMENTS. 

See    Erroneous    Instructions,  same   chapter  head,   Vol.   III. 


§  504.  Alteration      after      execution 
and  delivery  of  instrument. 

§  505.  Alteration    while    in    posses- 
sion by  agent. 

§  506.  Raised    check. 

§  507.  Adding-       additional       name, 
material. 


§  508.  Filling-  in  blank  space — Ma- 
terial  alteration. 

§  509.  Same  subject  —  Immaterial 
change — Where  one  of  two 
innocent  persons  must  suf- 
fer. 

§  510.  Changing  agreement  as  to 
quality  of  material  to  be 
furnished — Liability. 


§  504.  Alteration  After  Execution  and  Delivery  of  Instrument, 
(a)  You  are  instructed  that  if  you  believe,  from  the  evidence  in 
this  case,  that,  when  the  note  sued  on  was  originally  made,  it  con- 
tained the  words  "one  hundred"  written  in  the  blank  in  the  body 
of  the  note  before  the  printed  word  "dollars,"  and  that  after  it 
was  signed  and  indorsed  by  S.,  and  the  defendant  M.,  it  was  altered 
without  the  knowledge,  authority  or  consent  of  said  M.,  by  erasing 
the  word  "one"  and  writing  in  the  word  "thirteen"  where  the  word 
"one"  originally  was,  then  you  will  find  the  issues  for  the  defend- 
ant.1 

(b)  If  the  jurors  believe  from  the  evidence  that  the  alteration 
in  the  rate  and  the  time  of  drawing  interest  was  made  after  the 
delivery  of  the  note  by  the  defendant  company  to  the  payee,  without 
the  knowledge  or  consent  of  the  defendant,  then  they  should  find  for 
the  defendant.2 

§  505.  Alteration  While  in  Possession  by  Agent.  If  you  believe 
from  the  evidence  that  the  change  in  the  date  of  the  note  sued  on 
herein  was  made  with  the  knowledge  or  consent  of  the  plaintiff, 
by  his  agent,  and  that  his  agent  in  making  such  change  was  acting 
within  the  scope  of  his  authority  and  without  the  knowledge  or  con- 
sent of  the  defendants,  then  you  will  find  a  verdict  for  all  the  de- 
fendants.3 


1— Merritt  v.  Boyden  &  Son,  191 
111.  136,  60  N.  E.  907,  85  Am.  St.  246. 

2 — Humphrey  Hardware  Co.  v. 
Herrick,  —  Neb.  — ,  101  N.  W. 
1016. 

3— McDonald  et  al.  v.  Nalle,  — 
Tex.  Civ.  A  pp.  — ,  91  S.  W.  632. 
In  comment  the  court  said:  "This 
charge  is  assigned  as  error,  upon 
the  contention  that  it  required  the 


jury  to  find  all  the  facts  necessary 
to  establish  two  defenses  relied 
on  bv  the  defendants  before  they 
could  find  a  verdict  for  them: 
whereas,  the  establishment  of 
cither  would  entitle  them  to  a  ver- 
dict. In  three  instances,  and  one 
of  comparatively  recent  date,  our 
Supreme  Court  has  held  that  a 
charge  so  framed  is  not  subject  to 


384 


§506.]  ALTERATION  OF  WRITTEN  INSTRUMENTS.  385 

§  506.     Raised  Check,     (a)     The  jury  are  instructed  that,  if  they 

find,  from  the  evidence,  that  the  F.  C.  Nat.  Bank  on  or  about 

issued  its  draft  upon  the  plaintiff  for  the  sum  of  $35,  payable  to  the 
order  of  F.  H.,  and  delivered  it  to  him  for  that  sum,  but  after- 
wards the  said  draft  was  fraudulently  raised  by  said  F.  H.,  or 
some  person  unknown,  so  that  it  purported  to  be  drawn  for  the 
sum  of  $3,500  instead  of  for  the  sum  of  $35  only,  without  the  knowl- 
edge or  consent  of  the  said  F.  C.  Nat.  Bank,  the  drawer  thereof,  and 
that  afterwards  the  said  draft  so  fraudulently  raised  and  altered  as 
aforesaid  was  presented  to  the  plaintiff  for  certification  and  accept- 
ance, and  that  thereupon  the  said  plaintiff,  by  its  duly  authorized 
agent  in  that  behalf,  without  knowledge  that  said  draft  had  been 
changed  or  altered,  endorsed  upon  said  draft  the  following  words: 
"Accepted  payable  through  Chicago  Clearing  House  February  13th, 
1894,  when  properly  endorsed.  M.  Nat.  Bank,  by  P.  P.,  teller,"  and 
that  the  said  draft  was  by  the  said  F.  H.  deposited  for  credit  in  the 
Am.  T.  &  S.  Bank  of  Chicago,  and  that  the  same  was  by  said  Am. 
T.  &  S.  Bank  endorsed  and  delivered  to  the  defendant,  and  that 
afterwards  said  plaintiff  paid  to  the  defendant  in  the  usual  course 
of  business  the  full  sum  of  said  $3,500,  being  the  amount  of  said 
draft  after  the  same  had  been  so  fraudulently  changed  and  raised 
as  aforesaid,  instead  of  the  sum  of  $35,  being  the  sum  for  which 
said  draft  was  actually  drawn,  without  knowledge  of  the  fact  that 
it  had  been  so  raised  and  changed,  and  that  subsequently  and  within 
a  reasonable  time  after  the  discovery  of  the  fact  by  the  plaintiff 
that  said  draft  had  been  fraudulently  changed  and  altered  as  afore- 
said from  $35  to  $3,500  (if  the  jury  find,  from  the  evidence,  that  it 
had  been  so  fraudulently  changed  and  altered),  demand  was  made 
by  the  plaintiff  on  said  defendant  for  repayment  of  said  amount  so 
received  and  collected  on  said  draft  in  excess  of  $35,  the  sum  for 
which  it  was  originally  drawn,  and  that  payment  thereof  by  said 
defendant  was  refused,  then  the  jury  are  instructed  that  the  plaintiff 
had  a  right  to  recover  of  the  defendant  in  this  action  the  sum  of 
$3,465. 

(b)  The  jury  are  further  instructed  that  in  case  they  find,  from  the 
evidence,  the  plaintiff  is  so  entitled  to  recover  from  said  defendant 
the  sum  of  $3,465,  and  if  they  further  find,  from  the  evidence,  that 
there  has  been  unreasonable  and  vexatious  delay  in  the  payment  of 
the  sum  by  the  said  defendant  to  the  said  plaintiff,  they  may  allow 
interest  thereon  at  the  rate  of  five  per  cent,  per  annum.4 

§  507.  Adding  Additional  Name,  Material.  The  court  instructs 
the  jury  for  the  defendant,  that  under  the  plea  of  non  est  factum, 

the    criticisms   urged    in   this    case,  Co.    v.    Hill,    95   Tex.    629,    69    S.   W. 

T>x.    &    P.    Ry.     Co.    v.     Brown,   78  136." 

Tex.  402,  14  S.  W.  1034:  Saline  &  E.  4— Metropolitan     Bank     v.     Mer- 

T.   Ry.  Co.  v.  Wood,  69  Tex.  679.  7  chants    Rank.    1^2    111.    367.    aff'g   77 

S.    W.    372;    Gulf    C.    &    S.    F.    Ry.  111.    App.    316,    55    N.    E.    360. 
25 


386  FORMS  OF  INSTRUCTIONS.  [§508. 

in  this  ease,  they  must  not  only  determine  whether  the  defendant 
signed  the  note,  but  whether  the  note  has  been  materially  altered 
since  it  was  executed  and  delivered  by  the  defendant  and  his  co- 
makers to  the  plaintiff's  assignor,  and  if  the  jury  believe  from  the 
evidence  in  this  case  that  after  the   execution  and  delivery  of  the 

note   in   controversy   in   this   case,    the   said   procured   the 

signature  to   said   note  of  one  ,  without  the  knowledge  or 

consent  of  defendant,  that  such  alteration  would  be  material  and 
would  discharge  the  defendant  from  any  liability  on  the  same.  And 
if  they  so  believe,  the  jury  should  find  for  the  defendant.5 

§  508.  Filling  in  Blank  Space — Material  Alteration,  (a)  The 
jury  are  instructed  that  if  you  believe  from  the  evidence  that  the 

note  in  question  was  signed  and  indorsed  by  the  defendant  

and  one  S.,  and  delivered  by  defendant  to  S.  to  negotiate,  and  that 
at  the  time  said  note  was  so  signed  and  delivered  to  said  S.  only 
the  word  "hundred"  was  written  therein,  and  that  a  space  was  left 
blank  before  the  word  "hundred"  sufficient  to  write  therein  the 
word  "thirteen,"  and  that  said  S.  wrote  or  caused  to  be  written 
in  said  blank  space  the  word  "thirteen"  so  that  the  body  of  said 
note  read  "thirteen  hundred  dollars,"  and  then  sold  or  caused  to 
be  sold  the  said  note  to  the  said  plaintiff,  and  that  said  plaintiff 
purchased  said  note  in  the  due  course  of  business  before  maturity  for 
value  in  good  faith  and  without  notice  of  such  change;  then  the  de- 
fendant   is  liable  in  this  case  for  the  face  of  said  note  and 

interest  thereon,  and  you  should  so  find  by  your  verdict.6 

(b)  The  law  is  that,  if  a  promissory  note  is  signed  by  a  party, 
as  surety  or  guarantor,  while  blank  as  to  (time  and  place  of  pay- 
ment) and  in  this  condition  is  intrusted  to  the  principal  to  deliver 
to  the  payee,  and  the  principal  fills  up  these  blanks  differently 
from  what  had  been  agreed  upon,  then  the  surety  or  guarantor  makes 
the  principal  his  agent  for  filling  such  blanks,  and  he  will  be  bound 
by  the  note  as  thus  filled  up.7 

(c)  The  law  is,  that  if  a  party  to  a  negotiable  instrument,  intrust 

5— Soaps  v.  Eichberg,  42  111.  App.  48;    Sheriff  v.   Suggett,  9  B.  Mon.  8 

375.      The    court    said:      "The   addi-  (Ky.)." 

tion    of    another   maker    to    a    note  6 — Merritt   v.    Boyden   &   Son,   191 

may    operate    to    greatly    damage  111.   136.    aff'g   93   111.     App.     613,    60 

and     prejudice     all     other     payors,  N.  E.  907,  85  Am.   St.   256.     "In  the 

and  when,  as  in  this  case,  the  ad-  hands   of  a  bona-fide   holder  with- 

dition  is  made  with  the  assistance  out     notice,     a     negotiable     instru- 

and    complicity    of    the    holder,    it  ment    may    be    enforced    if    a    sum 

must   be   deemed   and   held   a   ma-  in   excess   of  what  was  authorized 

terial  alteration  and  to  destrov  the  by     the    maker    is     inserted     in    a 

validity    of    the    note    as    evidence,  blank   left    for    the   amount   of   the 

2  Parsons   on  Notes  and  Bills,   557,  instrument.    *  *  *     Abbott   v.   Rose, 

561,      571     and     581;      Nicholson     v.  62   Me.   194,   16   Am.    Rep.   427;    For- 

Combs.    90    Ind.    515,    46    Am.    Rep.  dyce    v.    Kozminski.    49    Ark.    42.    4 

?°9;     Hamilton    v.    Hooper.    46    la.  Am.    St.    Rep.   18;    Angle   v.   N.   TV. 

n5,    26   Am.    Dec.    161;    Addison   on  Mutual  Life  Ins.  Co..  92  TJ.  S.  340." 

Contracts,     Sec.     1280;     Haskell     v.  7— Gottrupt     v.     Williamson,     61 

'•hanion,    30    Mo.    136:     Wallace    v.  Ind.   599. 
Jewell,  21  Ohio  St.  163,  8  Am.  Rep. 


§  509.]         ALTERATION1  OF  WRITTEN  INSTRUMENTS.  387 

it  to  the  custody  of  another  with  blanks  not  filled  up,  whether  it  be 
for  the  accommodation  of  the  person  to  whom  it  is  intrusted,  or  to  be 
used  for  his  own  benefit,  the  instrument  carries  on  its  face  an  im- 
plied authority  to  fill  up  the  blanks  and  perfect  the  instrument. 
As  between  such  party  and  an  innocent  third  party,  the  person  to 
whom  the  note  was  intrusted,  must  be  deemed  to  be  the  agent  of 
the  party  who  committed  the  instrument  to  his  custody.8 

§  509.  Same  Subject — Immaterial  Change — "Where  One  of  Two 
Innocent  Persons  Must  Suffer,  (a)  If  you  find  the  note  sued  upon 
in  this  ease  was  drawn  up  with  the  words  "in  a  Bank  at  Elkhart, 
Ind.,"  leaving  a  blank  space  before  the  word  "Bank"  in  said  note, 
then  the  payee  of  the  note  would  have  had  the  legal  right  to  add  the 
words  "First  National"  before  the  word  "Bank";  and  if  that  is  all 
he  did,  your  verdict  will  be  for  the  plaintiff.  This  he  could  do  with- 
out committing  forgery,  with  or  without  the  consent  of  the  maker. 

(b)  If  one  of  two  innocent  people  must  suffer,  the  one  must 
lose  who  put  it  in  the  power  of  another  to  fill  up  the  blank  and  sell 
it  to  innocent  purchasers.9 

§  510.  Changing  Agreement  as  to  Quality  of  Material  to  Be  Fur- 
nished— Liability.  (a)  The  jury  are  instructed  that  the  parties 
had  the  right  to  make  as  many  agreements  as  they  chose  for  the 
delivery  of  the  material  specified  in  the  petition,  and  to  change 
their  agreements  as  to  the  quality  of  the  material  to  be  furnished, 
and  as  to  the  prices  to  be  paid  therefor,  from  time  to  time,  and 
both  parties  would  be  bound  thereby. 

(b)  Both  parties  would  be  bound  by  any  agreement  made  for 
the  delivery  of  material,  both  as  to  quality  and  price,  and  all  other 
respects,  until  such  agreement  was  changed  by  mutual  consent, 
and  all  deliveries  of  material  by  the  plaintiffs  to  the  defendant  will 
be  referred  by  you  to  the  agreement  which  may  have  been  in  force 
between  the  parties  at  the  time  of  such  delivery.10 

8— Bank  of  P.  v.  Neal,  22  How.  Bank,  23  Ind.  App.  210,  54  N.  E. 
96.  S35    (838). 

9 — Pope    v.    Branch    County    Sav.         10 — Clarke  v.  Van  Court,  34  Neb. 

54,   51  N.  W.  756. 


CHAPTER  XXIX. 


ARCHITECTS. 


See    Erroneous    Instructions,  same   chapter  head,   Vol.   III. 


§  511.  Architect's  certificate — Con- 
dition precedent  to  recov- 
ery. 

§  512.  Architect  fraudulently  re- 
fusing-   final    certificate. 

§  513.  Contractor  may  recover 
when  architect  fraudulent- 
ly   withholds    certificate. 

§  514.  Architect  cannot,  without 
cause,  withdraw  acceptance 
of  work. 


§  515.  Reasonable  charge  for  serv- 
ices— Requisites   in  suit  for. 

§  516.  Guarantee  of  skill — Negli- 
gence or  want  of  skill  caus- 
ing loss. 

§  517.  Proof  of  plans  having  been 
made — Circumstantial  evi- 
dence   defined. 


§  511.  Architect's  Certificate — Condition  Precedent  to  Recovery, 
(a)  The  court  instructs  you  that  by  the  terms  of  the  contract  in- 
troduced in  evidence  the  plaintiffs  were  to  do  the  brick  work  and 
plastering  on  the  defendant's  building  therein  mentioned  under  the 
superintendence  of  the  architect  therein  named,  and  payments  were 
to  be  made  upon  estimates  by  such  architect,  from  time  to  time,  as 
the  work  should  progress,  not  exceeding  eighty-five  per  cent,  upon 
the  work  done,  and  when  all  the  work  should  be  done  and  completed 
and  so  certified  to  by  the  architect,  then  the  whole  amount  of  the 
contract  price  or  balance  thereof  unpaid,  should  be  paid,  and  in 
order  to  entitle  the  plaintiffs  to  recover  for  any  final  balance  under 
such  contract  or  for  any  additional  work  done  under  the  direction 
of  such  architect  under  the  provision  of  the  contract,  it  is  incum- 
bent upon  the  plaintiffs  to  prove  that  such  final  certificate  was 
issued  by  the  architect  and  that  the  same  had  been  presented  to  the 
defendant  and  payment  thereunder  demanded.1 

(b)  The  law  is  that  where  a  contract  for  building  a  house  pro- 
vides that  the  work  shall  be  done  under  the  direction  of  an  archi- 
tect therein  named,  the  price  agreed  upon  to  be  paid  upon  his  cer- 
tificate that  the,  etc.,  then  the  certificate  of  such  architect  made 
in  compliance  with  the  agreement,  is  conclusive  on  the  rights  of  the 
parties.  And  if  such  contract  also  provides  that  the  architect's 
opinion,  decision  and  certificate,  shall  in  all  matters  pertaining  to 
such  contract  and  the  erection  of  such  building  be  binding  and 
conclusive,  then  the  certificate  of  such  architect,  if  made  in  com- 
pliance  with   such   contract,   is    conclusive   on    the   parties,    and    his 

1— Schenke     v.     Rowell.     7     Dalv     (N.   T.)    286;    Sullivan  v.   Byrne,   10 
S.    C.    122,    30   Am.   Rep.    37. 

388 


§512.  J  ARCHITECTS.  389 

decision  cannot  be  varied  or  appealed  from  unless  for  fraud  or  mis- 
take on  the  part  of  the  architect.2 

§  512.  Architect  Fraudulently  Refusing  Final  Certificate.  If  you 
believe  from  the  evidence  in  this  case  that  the  plaintiffs  have 
failed  to  prove  by  the  preponderance  or  greater  weight  of  the  evi- 
dence that  the  architect,  J.,  fraudulently  and  in  collusion  with 
the  defendant,  F.,  refused  to  issue  a  final  certificate  to  the  plaintiffs, 
then  your  verdict  should  be  for  the  defendant.3 

§  513.  Contractor  May  Recover  "When  Architect  Fraudulently 
Withholds  Certificate,  (a)  If  you  believe  from  the  evidence  and  the 
instructions  of  the  court  that  the  architect  or  superintendent  named 
in  the  contract  in  this  case  accepted  the  work  performed  by  the 
plaintiffs  as  the  work  progressed,  as  required  by  the  contract,  and  if 
you  further  find  from  the  evidence  that  such  contract  was  completed 
in  accordance  with  the  terms  thereof,  and  you  further  believe  from 
the  evidence  that  after  the  contract  was  completed  the  architect 
accepted  the  work  performed  by  the  plaintiffs,  and  if  you  further 
believe  from  the  evidence  and  instructions  of  the  court  that  the  archi- 
tect withheld  or  refused  to  deliver  to  the  plaintiffs  his  statement 
or  certificate  in  writing  showing  the  amount  due  the  plaintiffs,  if 
anything,  either  because  the  defendant,  the  owner,  directed  him,  the 
said  architect,  to  withhold  or  not  to  deliver  the  same,  or  for  any 
other  reason  not  in  accordance  with  the  terms  of  the  contract  be- 
tween said  parties  if  shown  by  all  the  evidence  in  this  case,  then 
you  are  instructed  if  you  find  such  facts  proven  from  the  evi- 
dence, that  the  plaintiffs  would  not  be  bound  to  produce  such  cer- 
tificate before  they  were  entitled  to  recover  in  this  case.4 

2 — Schenke     v.     Rowell,     7     Daly  there    is    any    such    assumption   in 

(N.   T.)    286;    Sullivan   v.   Byrne,   10  the    instruction    when    its    language 

S.     C.     122.      That     producing     the  is      construed      according      to      its 

architect's   •    certificate       may       be  natural      and      obvious      meaning, 

waived,    see    Hayden    v.    Coleman,  The   second   objection   mad.e   to  the 

73  N.   Y.  567.  instruction  is  that  it  told  the  jury 

3 — Fitzgerald    v.    Benner,    219    111.  in    effect    that    if    the    work    was 

(497),    76   N.    B.    709.  actually    completed    in    accordance 

4 — Fitzgerald  v.  Benner,  219  111.  with  the  terms  of  the  contract  and 
497,  76  N.  B.  709,  aff'g.  120  111.  App.  the  architect  erroneously  decided 
447  (453).  "This  instruction,"  said  that  it  was  not,  then  the  jury 
the  Appellate  Court,  "is  vigor-  should  disregard  the  decision  of 
ously  attacked  by  appellant.  It  is  the  architect  and  find  a  verdict 
said  to  assume  'the  important  and  for  the  plaintiff,  whereas  the  law 
closely  disputed  proposition  of  is  that  as  the  contract  makes  the 
fact'  that  'the  owner  directed'  the  architect  the  final  arbiter  of  all 
architect  'to  withhold  or  not  to  disputes  between  the  parties,  no 
deliver'  his  certificate.  Although  recovery  could  be  had  without 
this  contention  is  strenuously  showing  actual  fraud  on  the  part 
pressed  and  numerous  cases  in  of  the  architect.  This  objection 
this  court  and  in  the  Supreme  rests  on  the  use  of  the  words  'or 
Court  are  brought  to  our  atten-  for  any  other  reason  not  in  ac- 
tion where,  as  it  is  urged  by  ap-  cordance  with  the  terms  of  the 
pellant,  a  similar  construction  has  contract,'  as  it  is  evident  that  if 
been  given  in  similar  words,  we  the  architect  were  by  the  contract 
are    entirely    unable    to    see    that  the    final    arbiter    of    all    disputes 


390 


FORMS   OP   INSTRUCTIONS. 


[§  513. 


(b)  The  court  instructs  the  jury  that  if  you  believe  from  the 
evidence  that  the  architect,  J.,  in  this  case  inspected  the  work  in 
question  and  knew  its  character  and  quality,  and  that  said  archi- 
tect accepted  the  work  done  and  materials  furnished  by  the  plain- 
tiff as  being  in  compliance  with  and  in  full  performance  of  the  con- 
tract on  plaintiff's  part,  and  if  you  further  believe  from  the  evi- 


concerning  payments  and  re- 
fused to  deliver  it,  the  action 
would    be    fraudulent. 

To  excuse  the  production  of  the 
architect's  certificate  the  burden 
of  proving-  bad  faith  and  a  fraud- 
ulent purpose  on  his  part  was  up- 
on the  plaintiffs.  The  instructions 
must  be  regarded  as  a  series  and 
together,  and  the  jury  was  so  in- 
formed." 

When  the  case  reached  the  Su- 
preme Court,  the  following  com- 
ment  was    delivered: 

"This  instruction  is  objected  to 
upon  the  alleged  ground  that  it 
assumes,  as  a  fact,  that  appellant 
directed  the  architect  to  withhold 
and  not  deliver  the  final  certifi- 
cates to  the  appellees.  The  in- 
struction is  not  justly  subject  to 
the  criticism  made  upon  it.  The 
part  of  the  instruction,  which  is 
said  to  contain  the  assumption 
complained  of,  is  preceded  by 
the  words:  'If  you  further  be- 
lieve from  the  evidence,'  etc.,  and 
is  followed  by  the  words,  'if 
shown  by  all  the  evidence  in  this 
case.*  The  jury  were  thus  told  to 
find  from  the  evidence  whether  or 
not  the  architect  refused  to  de- 
liver the  certificate,  and  were  not 
directed  to  assume  the  non-deliv- 
ery of  such  certificate  as  a  fact. 
Shannon  v.  Swanson,  203  111.  52, 
69  N.  E.  869;  Chicago  City  R.  Co. 
v.  O'Donnell,  20S  Id.  267,  70  N.  B. 
294,  299;  Smith  v.  Henline,  174  Id. 
184,  51  N.  E.  227;  Term.  R.  R.  Co. 
v.  Thompson,  210  Id.  226,  71  N.  E. 
328;  Gerke  v.  Fancher,  158  Id.  375, 
41    N.    E.    982." 

"The  instruction  is  further  crit- 
icised upon  the  alleged  ground 
that  it  ignores  the  defense  of  the 
appellant,  which  defense  is  that 
the  liauidated  damages  for  the  ap- 
pellant amounted  to  more  than  the 
entire  claim  of  the  appellees,  com- 
puted at  the  rate  of  $50.00  a  day 
for  the  total  period  of  delay.  On 
this  point  counsel  for  the  appel- 
lant say:  'The  appellees  were  in 
default  from  September  29,  1892, 
until  February  15,  1893.  being  a 
delay  in  all  of  (139)  one  hundred 
and     thirty     nine     days,     and     the 


liquidated   damages  for  the  delays 
under    the    terms    of    the    contract 
amounted  to  $6,950.00.     Now  the  to- 
tal amount  of  the  appellees'  claim 
was   only   $6,408.63,    so   if   the    testi- 
mony of  the  defendants'  witnesses 
was  true,  even  if  the  contract  was 
completed       in      accordance      with 
terms    thereof,    there   was   nothing 
due  to  the  appellees.'    The  instruc- 
tion   was    not    erroneous    in    omit- 
ting   the    question    of   damages   by 
way  of  set  off,  as  it  is  not  always 
necessary    to    negative    mere    mat- 
ter    of     defense.       The    instruction 
does  not  assume  to  enumerate  all, 
or   any   of,    the    elements    essential 
to  a  recovery  by  the  appellees.     It 
simply    relates    to   the    question    of 
excuse    for    the    non-production    of 
the    architect's    certificate.      I.    C. 
R.    R.    Co.    v.    Smith,    208    111.    608, 
70  N.    E.   628.     An  instruction,   con- 
taining all   the  elements  necessary 
to   a   recovery   upon   the   plaintiffs' 
theory,    is   sufficient    without    nega- 
tiving   defensive    matter    or    theo- 
ries.     C.    U.    T.    Co.    v.    Leach,    215 
111.   184;    Mt.    Olive  C.  Co.   v.   Rade- 
macher,   190  Id.    538,   60  N.   E.   888." 
"This   instruction   is   also  object- 
ed to  upon  the  ground  that  it  told 
the     jury     that,     if     the     plaintiffs 
completed  the  work  in  accordance 
with    the    terms    of    the    contract, 
then    they    could    recover,    without 
any  reference  to  the   fraud  of  the 
architect,    it    being   the    contention 
of  the  appellant  that  the  contract 
makes  the  architect  the  final  arbi- 
ter   of    all    disputes    between    the 
parties,  so  that  his  decision  is  con- 
clusive,  and   no   recovery  could   be 
had  without  showing  fraud  on  his 
part.     Whether  or  not  the  contract 
between  the  parties,   made  W.  the 
architect,     arbitrator     of     all     dis- 
putes   and    questions    of    payment 
of  money  due  under  the  contract, 
is    a    question    which    we    do    not 
deem    it    necessary    to    decide,    be- 
cause,   even    if    appellant's    conten- 
tion   upon    this    subject    is    correct, 
at    least    four    instructions,    given 
for    the    appellant,    announced    the 
construction    of    the    contract    con- 
tended   for." 


§  513.]  ARCHITECTS.  391 

denee  and  under  the  instructions  of  the  court  that  said  contract  was 
completed  in  accordance  therewith,  and  you  further  believe  from  the 
said  evidence  that  said  architect  in  bad  faith  and  without  just 
cause  refused  to  deliver  to  the  plaintiffs  a  final  certificate  showing 
such  completion  and  the  balance  due  the  plaintiffs,  if  any,  then  the 
plaintiffs  are  entitled  to  recover  whatever,  if  anything',  the  jury 
shall  find  from  the  evidence  is  due  upon  the  contract.5 

(c)  The  court  further  instructs  the  jury  that,  if  you  believe 
from  the  evidence  that  the  architect,  J.,  in  this  case  inspected  the 
work  in  question  and  knew  its  character  and  quality,  and  that  said 
architect  accepted  the  work  done  and  materials  furnished  by  the 
plaintiffs  as  being  in  compliance  with  and  in  full  performance  of 
the  contract  on  plaintiff's  part,  and  if  you  further  believe,  from  the 
evidence,  and  under  the  instruction  of  the  court,  that  said  contract 
was  completed  in  accordance  therewith,  and  you  further  believe  from 
the  evidence  that  said  architect  in  bad  faith  and  without  just  cause 
refused  to  deliver  to  the  plaintiffs  a  final  certificate,  showing  such 
acceptance  and  completion  and  the  balance  due  the  plaintiffs,  if  any, 
then  the  plaintiffs  are  entitled  to  recover  whatever,  if  anything,  the 
jury  shall  find  from  the  evidence  is  due  upon  the  contract.6 

(d)  If  the  jury  believe  from  the  evidence  that  the  architect  and 
superintendent  named  in  the  contract  fraudulently  and  willfully  re- 
fused to  accept  said  work,  without  a  cause,  and  fraudulently  and 
willfully  refused  to  give  the  plaintiffs  an  estimate  showing  the 
amount  due  them  for  performing  the  work  done  under  the  contract 
in  this  case  (if  you  believe  from  the  evidence  they  did  so  perform 
such  work),  and  you  further  believe  from  the  evidence  the  plaintiffs 
did  perform  the  work  and  completed  the  building  according  to  the 
plans  and  specifications,  then  you  will  find  for  the  plaintiffs,  and 
assess  their  damages  for  such  sum,  if  any,  as  you  may  believe  from 
the  evidence  remains  due  them.7 

5 — Fitzgerald  v.  Benner,  supra,  roneous  upon  the  alleged  ground 
"We  do  not  agree  with  appellant's  that  it  told  the  jury  that,  if  the 
contention  that  this  instruction  architect  refused  to  deliver  to  the 
was  erroneous.  The  ordinary  con-  appellees  a  final  certificate  'in  bad 
struction  of  language  applied  to  it  faith  and  without  just  cause,'  ap- 
relieves  it  from  the  objections  pellees  were  entitled  to  recover, 
urged  against  it.  If  the  architect  The  instruction  is  charged  with 
first,  on  full  inspection  of  the  being  defective,  as  not  stating  to 
work,  adjudged  it  to  be  'in  com-  the  jury  what  facts  constituted 
pliance  with  and  full  performance  'bad  faith  and  without  just  cause.' 
of  the  contract'  (it  actually  being  "We  think  the  instructions,  taken 
so),  and  then  in  bad  faith  refused  as  a  whole,  clearly  informed  the 
to  give  the  plaintiffs  a  certificate,  jury  what  facts,  under  the  circum- 
certainly  the  plaintiffs  were  enti-  stances  of  this  case,  would  amount 
tied,  without  such  a  certificate,  to  to  bad  faith  and  the  absence  of 
recover  'whatever,  if  anything,  just  cause.  If  the  architect  in- 
was  due  on  the  contract.'  The  in-  spected  the  work  and  accepted  it 
struction  plainly  enough  means  as  being  in  compliance  with  the 
this  and  nothing  more,  and  the  ob-  contract,  and  then  refused  to  de- 
jections made  to  it  are  hypercrit-  liver  the  certificate,  he  was  guilty 
leal."  of  bad   faith." 

6 — Fitzgerald    v.    Ber.ner,    supra.  7 — Limman   v.   Clark,   73  111.   App. 

"This  instruction  is  said  to  be  er-  659.    "We  think  there  was  evidence 


392  FORMS   OF   INSTRUCTIONS.  [§  514. 

§  514.  Architect  Cannot  Without  Cause  Withdraw  Acceptance  of 
Work.  If  you  believe  from  the  evidence  that  the  superintendent 
named  in  the  contract  in  this  case  accepted  the  work  performed  by 
the  plaintiff,  as  the  work  progressed,  as  required  by  the  contract,  and 
was  satisfied  with  it,  and  you  further  believe  from  the  evidence  that 
after  the  contract  was  completed,  he  accepted  the  work  performed  by 
the  plaintiff,  except  as  to  the  brick  work  and  some  other  work  which 
he  had  accepted  prior  to  the  completion  of  the  contract,  then  you 
are  instructed  that,  in  law,  this  was  an  acceptance  of  the  whole ;  that 
the  architect,  when  he  once  accepted  the  work,  would  have  no  right 
to  withdraw  his  acceptance  without  good  cause  and  refuse  to  accept 
the  work.8 

§  515.  Reasonable  Charge  for  Services — Requisites  in  Suit  For. 
(a)  You  are  instructed  that  if  one  person  requests  another  to  per- 
form certain  services  for  him,  and  the  person  so  called  upon  performs 
such  services  in  reasonable  compliance  with  such  request,  and  no 
amount  of  compensation  is  agreed  upon  between  the  parties  to  be 
paid  and  received  for  the  performance  of  such  services,  then  the  per- 
son performing  such  services  in  reasonable  compliance  with  the  re- 
quest made  of  him  is  entitled  to  recover  from  the  person  for  whom 
he  performs  such  services  the  reasonable  value  of  the  services  so 
performed  by  him.9 

(b)  *  *  *  If  you  find  that  the  plaintiff  was  employed  to  make, 
prepare  and  furnish  to  and  for  the  defendant  L.  plans  and  specifica- 
tions for  the  proposed  erection  and  construction  of  two  certain  flat 
buildings,  then,  in  order  to  entitle  said  plaintiff  to  recover  any  com- 
pensation therefor,  he  must  show  the  delivery  of  such  plans  and 
specifications  to  the  defendant  L.  or  a  tender  of  them  to  the  defend- 
ant L.  I  further  instruct  you  that  the  burden  of  proof  is  upon  the 
plaintiff  that  the  contract  relating  to  the  flat  buildings  was  actually 
made  and  that  the  minds  of  both  parties  actually  met. 

(c)  If  your  minds,  gentlemen,  are  satisfied  by  a  preponderance  of 
all  the  evidence  in  the  case  that  the  parties  did  contract,  as  the 
plaintiff  contends  they  did,  and  as  set  forth  by  the  court  in  its  charge 
— that  is  to  say  if  the  minds  of  the  parties  plaintiff  and  defendant 
met  on  the  proposition  contended  for  by  the  plaintiff,  then  your  ver- 
dict should  be  for  the  plaintiff.  But  if,  from  a  preponderance  of  the 
evidence  in  the  case  your  minds  are  not  so  satisfied  or  convinced,  then 
your  verdict  should  be  for  the  defendant. 

If  you  believe  from  a  preponderance  of  all  the  evidence  in  the 
case  that  the  minds  of  the  parties  did  not  meet  as  to  the  new  work 
— that  is  to  say  as  to  the  flat  buildings — and  that  there  was  no  agree- 
that  warranted  giving-  this  in-  8 — Lauman  v.  Clark,  73  111.  App. 
struction     and     that     it     correctly     659. 

states   the   law."    citing1   Fowler  v.         9 — Buckler   v.    Kneezell,    —   Tex. 
Deakman,    84  111.   130;   Cook  Co.   v.     Civ.  App.  — ,   91   S.   W.   367   (370). 
Harms,   108   111.   151. 


§  516.]  ARCHITECTS.  393 

ment  consummated  as  to  the  same,  then  your  verdict  should  be  for 
the  defendant.10 

§516.  Guarantee  of  Skill— Negligence  or  Want  of  Skill  Causing 
Loss,  (a)  Uncontradicted  and  admitted  facts  in  this  case  are  that 
defendants  are  architects,  and  as  such  engaged  themselves  to  plaintiffs 
to  draw  plans  for  and  superintend  the  construction  of  plaintiffs'  mule 
barn.  Now,  by  such  engagement  the  defendants  guarantied  to  plain- 
tiffs that  they  (defendants)  had  and  possessed  the  necessary  skill, 
and  that  they  would  use  proper  care,  to  draw  said  plans  and  superin- 
tend the  construction  of  said  building  in  a  workmanlike  manner,  and 
if  they  did  not  possess  such  skill,  or  if  they  were  negligent  in  their 
conduct  in  the  premises,  and  such  want  of  skill  or  such  negligence 
caused  a  loss  to  plaintiffs  in  the  particulars  complained  of,  then 
defendants  are  liable  to  plaintiffs  for  such  loss. 

(b)  If  you  find  from  the  evidence  that  defendants  drew  the  plans 
and  submitted  them  to  plaintiffs,  and  that  the  plans  so  submitted  were 
agreed  upon  between  them,  and  that  the  building  was  afterward  con- 
structed in  accordance  with  such  plans,  except  changes  mutually 
agreed  upon,  then  plaintiffs  cannot  recover,  even  though  there  may 
have  been  a  misunderstanding  between  them  as  to  the  particulars 
complained  of,  unless  such  misunderstanding  was  caused  by  a  want  of 
skill  or  by  negligence  on  the  part  of  the  defendants. 

(c)  If  you  find  from  the  evidence  that  plaintiffs  explained  to 
defendants  the  elevation  they  desired  for  the  floor  of  said  barn  and 
of  the  "mule  alley"  thereof,  and  instructed  them  to  place  the  same 
upon  a  certain  level,  and  to  have  the  same  constructed  on  a  level 
plane,  with  a  raise  of  three  inches  at  the  door  from  the  curb  level  in 
front,  and  with  another  raise  of  six  inches  at  the  south  end  of  the 
mule  alley,  and  if  you  further  find  from  the  evidence  that  defendants 
undertook  and  agreed  to  cause  the  floor  to  be  constructed  in  such 
manner,  and  if  you  further  find  from  the  evidence  that  defendants,  by 
any  want  of  skill,  or  by  any  negligence  on  the  part  of  either  of  them, 
caused  said  floor  to  be  constructed  in  such  manner,  and  if  you  further 
find  that  they  were  put  to  a  greater  outlay  in  excavating  and  filling, 
and  in  the  building  of  walls  than  they  would  have  been,  had  the 
floor  been  placed  as  agreed  upon,  then  plaintiffs  are  entitled  to  re- 
cover of  defendants  the  amount  of  such  unnecessary  outlay.  And  if, 
under  such  circumstances,  the  building  as  constructed  is  less  valuable 
than  the  same  would  have  been  if  constructed  according  to  such 
agreement,  then  plaintiffs  are  entitled  to  recover  of  the  defendants  an 
amount  equal  to  such  difference  in  value.  It  is  incumbent  on  the 
plaintiffs  to  prove  the  facts  necessary  to  a  recovery  as  above  set 
forth  by  a  preponderance  or  greater  weight  of  the  evidence;  and, 
unless  they  have  done  so,  your  verdict  should  be  for  the  defendants.11 

10— Graf  v.  Laev,  120  Wis.  177,  97     Reed    et    al.,    114    Mo.    App.    2K     S9 

N.  W.   898.  S.    W.    591.      "The    plaintiffs    criti- 

11— Dysart-Cook     Mule       Co.      v.     cism   of   the   first    instruction   is  as 


391 


FORMS  OF  instruction: 


[§517. 


§  517.  Proof  of  Plans  Having  Been  Made — Circumstantial  Evidence 
Defined.  The  facts  as  to  whether  or  not  the  plaintiff  made  the  plans, 
drawings,  specifications,  etc.,  charged  for  at  the  request  of  C.  N.  B., 
and  they  were  prepared  as  directed  by  him,  and  were  placed  at  his 
disposal  for  use  by  or  for  him,  may  each  and  all  be  established  by 
circumstantial,  as  well  as  direct,  evidence.  Direct  evidence  is  proof 
of  the  facts  by  witnesses  who  saw  the  acts  done  or  heard  the  words 
spoken.  Circumstantial  evidence  is  the  proof  of  collateral  facts  and 
circumstances  from  which  the  mind  arrives  at  the  conclusion  that  the 
main  facts  sought  to  be  established  in  fact  existed;  and  if  all  the 
facts  and  circumstances  introduced  in  evidence,  taken  together,  lead 
your  minds  to  the  conclusion  that  the  facts  above  stated  existed,  you 
will  so  find.12 


follows:  (a)  The  instruction  is 
vague,  and  leaves  the  jury  to 
guess  at  what  the  court  meant  by 
the  language  'or  if  they  were  neg- 
ligent in  their  conduct  in  the 
premises.'  (b)  The  term  'proper 
care'  is  not  explained  or  defined 
in  the  instruction  or  any  other  in- 
struction, (c)  It  entirely  over- 
looks the  allegation  of  the  peti- 
tion that  defendants  represented 
the  plans  to  be  of  a  character  dif- 
ferent from  what  they  were  in 
fact,  (d)  It  limits  liability  of  de- 
fendants to  want  of  skill  in  draw- 
ing the  plans,  or  to  want  of  skill 
in  superintending  the  building,  or 
to  negligence  in  drawing  plans,  or 
to  negligence  in  superintending  the 
work.  Whereas  they  are  liable,  if 
they  misrepresented  the  plans,  no 
matter  how  skillfully  the  plans 
were  drawn,  and  no  matter  how 
skillfully  the  work  may  have  been 
done.  And  they  are  liable,  even  if 
the  plans  were  skillfully  drawn, 
and    even    if   the   work    was    skill- 


fully done,  if  the  completed  work 
did  not  give  plaintiff  the  building 
contracted  for.  This  may  not 
have  been  the  result  of  negli- 
gence. There  is  nothing  vague  or 
uncertain  in  the  language  of  the 
instruction.  If  there  are  terms 
which  plaintiff  thought  should  be 
explained  to  the  jury,  why  did  it 
not  ask  an  instruction  properly 
defining  such  terms?  Why  lie  by 
and  wait  the  chances  of  a  favor- 
able verdict  before  making  com- 
plaint, if  it  apprehended  that  the 
jury  would  not  understand  the 
meaning  of  terms  used  in  the  in- 
struction as  given,  which  is  not 
erroneous?  In  these  circumstances 
plaintiff  must  abide  the  result. 
Merrill  v.  City  of  St.  Louis,  12  Mo. 
App.  loc.  cit.  479;  Construction  Co. 
v.  Wabash  R.  R.  Co.,  71  Mo.  App. 
626;  Wheeler  v.  Bowles,  163  Mo. 
398,   63   S.   W.   675." 

12 — Buckler    v.    Kneezell,    —   Tex. 
Civ.   App.  — ,   91    S.   W.   367   (370). 


See    also    chapter    on   Building   Contract. 


CHAPTER  XXX. 
ASSAULT— CIVIL. 
See    Erroneous    Instructions,   same   chapter  head,   Vol.   III. 


§  518.  Assault  defined  —  Personal 
rights— Pointing'  loaded  re- 
volver. 

§  519.  Assault   and   battery  denned. 

§  520.  Presence  alone  not  sufficient 
—Must  take  part  or  assent 
to   assault. 

§  521.  Injury  through  plaintiff's 
fault. 

§  522.  Voluntarily  engaging  in  con- 
flict. 

§  523.  Accidental  injury  to  tres- 
passer  not   assault. 

§  524.  Joint    liability    of    assailants 


§  527.  Justifiable  defense— Accident 
resulting    therefrom. 

§  528.  Self-defense— A  right  and  a 
duty— Expelling  disorderly 
person   or   trespasser. 

§  529.  Parent    whipping    child. 

§  530.  Entry  under  legal  process  — 
Whether  assault  was  com- 
mitted. 

§  531.  Wrongful  arrest  without 
warrant. 

§  532.  Words  of  provocation— Miti- 
gation  of  damages. 

§  533.    Justification— Retaking    stol- 


§  525    Aiding    or    encouraging — Lia-  |  en    property.  

nilitv   of  §  534.  Ejecting  person   from  store— 

§  526.  Self-defense       -       Excessive  May    use    necessary   force- 

force.  1  Series. 

§518.  Assault  Defined— Personal  Rights— Pointing  Loaded  Re- 
volver, (a)  The  court  instructs  the  jury,  that  every  person  has  a 
right  to  complete  and  perfect  immunity  from  hostile  assaults  that 
tin-eaten  danger  to  his  person— a  right  to  live  in  society  without  being 
unnecessarily  or  wrongfully  put  in  fear  of  personal  harm;  and  an 
assault  is  an  attempt  with  unlawful  force  to  inflict  bodily  injury 
upon  another,  accompanied  with  the  apparent  present  ability  to  give 
effect  to  the  attempt  if  not   prevented.1 

(b)  You  are  instructed  that  wantonly  and  recklessly  pointing  a 
revolver  at  another,  when  but  a  few  feet  away,  under  such  circum- 
stances as  would  instantly  lead  such  other  to  believe  it  to  be  loaded, 
would  be  an  assault,  whether  such  revolver  was  in  fact  loaded  or  not, 
if  you  find  from  the  evidence  that  the  act  of  the  person  holding  such 
revolver  was  such  as  to  cause  a  reasonable  person  to  believe  that  he 
intended  to  do  harm  with  it.2 

§  519.  Assault  and  Battery  Defined.  The  jury  are  instructed  that 
an  assault  and  battery  consists  in  an  injury  actually  done  to  the 
person  of  another  in  an  angry  or  revengeful,  rude  or  insolent  manner. 
Any  unlawful  beating  of  another,  however  slight,  is  an  assault  and 
battery  and  the  degree  of  bodily  pain  and  injury,  if  the  assault  and 
battery  are  proved,  is  only  important  as  affecting  the  measure  of 
damages.3 

1-Harrison  v.  Ely,  120  111.  83,  3-Harrison  v.  Ely,  120  111.  83,  11 
11  NE     324.  *  N.   E.   334. 

2— Atkins    v.    Gladwish,    27    Neb. 
816,  44  N.   W.   37   (38).  « 

395 


396  FORMS  OF  INSTRUCTIONS.  [§520. 

§520.  Presence  Alone  Not  Sufficient— Must  Take  Part  In  or 
Assent  to  Assault.  If  the  jury  find  that  the  plaintiff  went  to  the 
house  of  the  defendant  D.  without  the  use  of  force,  actual  or  threat- 
ened, to  oblige  him  to  do  so;  and  if  the  jury  further  find  that  the 
defendants  who  went  to  plaintiff's  office  went  there  without  any  pur- 
pose to  compel  him  to  go  to  D. 's  house,  against  his  will, — then  the 
defendants,  other  than  Father  D.,  are  not  responsible  or  liable  for 
any  blow  or  blows  struck,  or  acts  done  there,  merely  because  they 
were  present.  To  make  them  liable  for  what  transpired  there,  they 
must  either  have  taken  part  in  it,  or  must  have  known  beforehand 
that  it  was  to  be  done,  or  assented  to  it,  and  countenanced  it,  at  the 
time  it  was  done.4 

§  521.  Injury  Through  Plaintiff's  Fault.  If  the  jury  believe,  from 
the  evidence,  that  the  defendant  had  a  pistol  in  his  hands,  but  was 
not  attempting  to  discharge  it  towards  the  plaintiff,  and  that  the 
plaintiff  assaulted  the  defendant,  and  by  pushing  and  jostling  him, 
caused  the  pistol  to  go  off  and  thereby  received  an  injury,  without 
any  intention  on  the  part  of  the  defendant  that  the  pistol  should  be 
discharged,  then  the  defendant  would  not  be  liable  in  this  action  for 
any  injury  consequent  upon  the  discharge  of  the  pistol.5 

§  522.  Voluntarily  Engaging  in  a  Conflict.  If  plaintiff  voluntarily 
engaged  in  a  fight  with  defendant  he  cannot  recover  damages,  unless 
it  appeared  defendant  beat  him  excessively  and  unreasonably.6 

§  523.  Accidental  Injury  to  Trespasser  Not  Assault.  If  you  find 
that  plaintiff  while  unlawfully  trespassing  upon  the  lands  of  the 
defendant,  against  the  will  of  the  defendant,  and  after  the  defendant 
had  commanded  her  to  leave  his  premises,  was  accidentally  struck  by 
a  board  or  stake  while  defendant  was  removing  the  same,  then  and 
in  that  case  the  defendant  would  not  be  liable  for  the  injury  occa- 
sioned by  such  blow,  if  the  same  was  not  purposely  inflicted  by 
him.7 

§  524.  Joint  Liability  of  Assailants.  When  several  persons  unite 
in  an  act  which  constitutes  a  wrong  to  another,  intending  at  the  time 
to  commit  the  act,  or  do  it  under  circumstances  which  fairly  show 
that  they  intended  the  consequences  which  followed,  then  the  law 
will  compel  each  to  bear  the  responsibility  of  the  misconduct  of  all, 
and  the  party  injured  is  at  liberty  to  enforce  his  remedy  against  all, 
or  against  any  one  or  more  of  the  number.8 

Although  the  jury  may  believe,  from  the  evidence,  that  the  defend- 
ant C.  proved  up  his  claim  before  the  justice  of  the  peace,  as  testified 
to  by  the  plaintiff,  still,  unless  you  further  believe,  from  the  evidence, 

4— Grace    v.     Dempsey,     75    Wis.  7 — Lansing-    v.     Wessell,     5     Neb. 

313,   43   N.   W.   1127.  (unof.)    199,   97   N.    W.    815. 

5— Krai    v.    Lull,    49    Wis.    403,    5  8— Page  v.   Freeman,   19   Mo.   421; 

N.  W.  874.  Wright  v.  Lathrop.  2  Ohio  33;  Tur- 

6— Evans  v.   Elwood,  123  Iowa  92,  ner  v.  Hitchcock,  20  la.  310. 
98   N.   W.    584    (585). 


§  525.]  ASSAULT— CIVIL.  397 

that  the  said  C.  aided,  advised  or  assisted  in  the  arrest  of  the  plaintiff, 
then  you  should  find  the  said  C.  not  guilty,  unless  you  further  find, 
from  the  evidence,  that  since  the  arrest  he  has  approved  or  adopted 
the  acts  of  those  who  did  cause  it.0 

§  525.  Aiding  or  Encouraging — Liability  For.  And  if  any  one 
incites,  advises,  or  encourages  an  unlawful  assault  and  battery,  then 
he  is  also  liable  as  principal,  and  to  the  same  extent  as  though  he  had 
actually  participated  in  committing  the  assault,  and  inflicting  the 
injury.10 

§  526.  Self -Defense — Excessive  Force,  (a)  Though  the  jury 
should  believe,  from  the  evidence,  that  the  plaintiff  made  the  first 
assault  upon  the  defendants  or  some  one  or  more  of  them,  still,  if 
they  further  believe,  from  the  evidence,  that  the  defendant,  when 
so  attacked,  repelled  plaintiff's  assault  with  moi'e  force  and  violence, 
and  did  more  injury  to  the  plaintiff,  than  was  reasonably  necessary 
for  their  own  protection  from  injury  at  his  hands,  then,  as  a  matter 
of  law,  the  defendants  using-  such  excessive  force  would  be  guilty  of 
assault  and  battery,  and  you  should  so  find  by  your  verdict.11 

(b)  If  the  jury  believe,  from  the  evidence,  that  the  plaintiff 
made  the  first  assault  upon  the  defendant,  then  the  defendant  had  a 
right  to  resist  force  by  force,  and  to  use  so  much  force  as  was  reas- 
onably necessary  to  defend  himself;  and  in  case  the  jury  find,  from 
the  evidence,  that  the  plaintiff  made  the  first  assault  upon  the  defen- 
dant, then  to  warrant  a  verdict  for  the  plaintiff,  the  burden  of  proof 
is  upon  him  to  show  that  the  defendant  did  use  more  force  than  was 
reasonably  necessary  under  the  circumstances  to  defend  himself.12 

(c)  Under  the  pleadings  in  this  case,  the  only  question  for  the  jury 
to  determine  is,  whether  the  defendants,  or  either  of  them,  com- 
mitted an  assault  and  battery  upon  the  person  of  the  plaintiff,  as 
charged  in  the  declaration;  and  if  you  find,  from  the  evidence,  that 
the  defendants,  or  either  of  them,  committed  the  assault  and  battery 
complained  of,  it  cannot  be  claimed,  as  a  justification  for  such  assault 
by  the  defendant  or  defendants,  that  the  plaintiff  made  the  first 
assault.13 

(d)  The  jury  are  instructfd  that,  even  if  they  believe  that  the 
defendant  used  more  force  than  was  absolutely  necessary  at  the 
time  of  the  occurrence  complained  of,  still  there  can  be  no  recovery 
in  this  case  if  the  jury  believe,  from  the  evidence,  that  said  defendant 
acted  as  a  reasonably  careful  man  would  have  acted  under  the  same 
circumstances  and  conditions.  If  the  conduct  of  the  plaintiff  at  that 
time  was  improper  or  boisterous,  or  insulting,  or  disorderly,  and  was 

9— Cooley   on   Torts,    3d   Ed.   218;  11— Cooley  on  Torts,   3d   Ed.   277; 

Averill    v.    Williams,    4    Denio    295;  Adams  v.  Waggoner,  33  Ind.   531,  5 

Abbott     v.     Kimball,     19    Vt.     551;  Am.   Rep.   230;    Close  v.   Cooper,   34 

Snydacker  v.   Brosse,  51  111.  357.  Ohio   St.   98. 

l"o_Coolev  on   Torts,   3d   Ed.   223,  12— Ayers  v.  Bristol,  35  Mich  501. 

224,     1029;     Barden     v.     Felch,     109  13—1     Chitty     on     Plead,     501;     2 

Mass.  154;  2  Hill  on  Torts  293.  Greenl.   Ev.    §  95. 


398  FORMS  OF  INSTRUCTIONS.  [§  527. 

such  as  to  naturally  irritate,  annoy  and  excite  an  ordinarily  careful 
and  prudent  man  in  the  place  of  said  defendant  under  the  same  cir- 
cumstances and  conditions,  then  the  said  defendant  cannot  be  held  to 
the  greatest  nicety  in  the  calculation  of  the  amount  of  force  which  he 
should  use,  and  even  if  the  said  defendant  did  use  more  force  than 
was  necessary,  still  if  under  the  circumstances  he  acted  as  an  or- 
dinarily careful  and  prudent  man  under  the  influence  of  plaintiff's 
conduct,  as  you  find  it  to  be,  would  have  acted  under  the  same  cir- 
cumstances and  conditions,  then  you  should  find  the  defendant  not 
guilty.14 

§527.  Justifiable  Defense— Accident  Resulting  Therefrom.  If 
plaintiff  attempted  to  ride  his  horse  upon  or  against  the  defendant 
in  the  highway,  and  thereupon  the  defendant,  acting  as  a  reasonable 
man,  armed  himself  with  a  stick  or  similar  weapon  for  the  purpose 
of  defense  against  such  threatened  injury,  and  that  such  movement 
on  his  part  had  the  effect  to  frighten  plaintiff's  horse,  and  thereby 
plaintiff  was  injured,  then  defendant  would  not  be  liable  for  damages 
so  inflicted.15 

§  528.  Self -Defense— A  Right  and  a  Duty— Expelling  Disorderly 
Person  or  Trespasser,  (a)  The  right  of  self-defense  is  derived 
from  nature.  To  repel  force  by  force  is  the  common  instinct  of  every 
creature  that  has  means  of  defense.  Sudden  and  strong  resistance  to 
unrighteous  attack  is  not  merely  a  thing  to  be  tolerated — in  many 
cases  it  is  a  moral  duty.  Municipal  law  has  left  to  individuals  the 
exercise  of  this  natural  right  of  self-defense  in  all  cases  in  which 
the  law  is  either  too  slow  or  too  feeble  to  stay  the  hand  of  violence, 
and  it  is  to  be  considered  that  a  man  repelling  imminent  danger  can- 
not be  expected  to  use  as  much  care  as  if  he  had  time  to  act  de- 
liberately.16 

(b)  The  jury  are  instructed  that  if  the  plaintiff  leaned  over  the 
partition  fence  and  attempted  to  interfere  with  the  ladder,  the  de- 
fendant had  the  right  to  use  such  force  upon  her  as  was  reasonably 
necessary  to  cause  her  to  desist  and  to  expel  her  from  his  premises.17 

14— In   Illinois   Steel  Co.   v.  Wag--  57    S.    W.    1037    (1039).      "The   above 

nius,    101   111.    App.    535,    action   for  instruction    asked    by   the    defend- 

damages   for   assault   by    the   steel  ant,   and   refused   by  the   court,   is 

company's      watchman,      judgment  correct,     as    an     abstract    proposi- 

for  plaintiff  was   reversed   because  tion  of  law,  and  might  be  given  in 

the     above     instruction     was     not  any    case    of    assault    and    battery 

given.     The  court  cited  the  follow-  where  a  plea  of  self-defense  is  in- 

ing  cases:     Donnelly  v.   Harris,    41  terposed." 

111.  126;   Ogden  v.  Clavcomb,  52  111.         17 — Hannabalson   v.    Sessions,    116 

365;    Woodman    v.    Howell,    45    111.  la.  457,  90  N.  W.  93  (95).     The  court 

367,  92  Am.  Dec.  221;  Boren  v.  Bar-  said:      "The    general    doctrine    an- 

telsnn,  39  111.  43;   Paxton  v.  Boyer,  nounced    in    the    instruction    is    in 

67    111.    132,    16    Am.    Dec.    615,    and  our    judgment    correct.      The    mere 

Steiner    v.    People,    187    111.    244,    58  fact     that     plaintiff    did     not    step 

N.    E.    383.  across   the  boundary  line   does  not 

15 — Halley    v.     Tichenor,    120    la.  make  her  any   less  a  trespasser  if 

164,   94  N.  W.   472   (473).  she    reached    her    arm    across    the 

16 — Norris  v.   Whyte,   158  Mo.   20,  line,  as  she  admits  she  did." 


§  529. J  ASSAULT— CIVIL.  399 

(c)  If  a  person  enters  upon  the  possession  of  another,  and  is 
requested  to  depart  and  refuses  to  do  so,  the  owner  of  the  premises 
may  lawfully  eject  him  therefrom;  provided,  he  uses  no  more  force 
than  is  reasonably  necessary  for  that  purpose.18 

§  529.  Parent  Whipping  Child.  One  possessed  of  the  duty  of 
rearing  a  child  has  a  right  to  give  it  moderate  correction  and  punish- 
ment, in  a  reasonable  manner,  for  the  child's  benefit,  for  its  educa- 
tion and  discipline.  This  would  be  for  offenses  on  the  child's  part, 
such  as  disobedience,  or  where  the  child  is  guilty  of  something  bad 
or  immoral  in  its  nature.  Whipping  or  punishment,  however,  when 
administered  to  an  extent  greater  than  is  reasonably  necessary  under 
the  circumstances,  would  amount  to  assault;  and,  when  so  admin- 
istered, one  would  be  responsible  for  any  damages  arising  there- 
from as  its  proximate  result.19 

§  530.  Entry  Under  Legal  Process — Whether  Assault  Was  Com- 
mitted. If  the  jury  believe  that  the  defendant  went  to  the  house 
of  the  plaintiff  for  the  purpose  of  identifying  certain  property  to 
the  sheriff,  under  a  writ  of  replevin  issued  at  the  instance  of  the 
defendant,  and  with  no  intention  to  assault  the  plaintiff,  or  do  her 
any  injury,  and  did  not  in  fact  assault  and  beat,  or  do  any  injury 
to,  the  plaintiff  while  thus  upon  said  premises,  or  at  any  other 
times,  then  their  verdict  must  be  for  the  defendant.20 

§531.  Wrongful  Arrest  Without  Warrant,  (a)  If  the  jury  find 
that  the  plaintiff  sat  in  the  alley  quietly,  and  committed  no  breach  of 
the  peace,  and  defendants  had  no  warrant  for  the  plaintiff,  then  the 
defendants,  if  acting  in  concert,  are  liable  to  plaintiff;  and,  in  any 
event,  such  of  the  defendants  are  who  assisted  in  the  beating  of  the 
plaintiff,  if  the  jury  find  she  was  beaten,  and  her  clothing  torn.21 

(b)  The  court  instructs  the  jury,  that  the  law  is,  that  all  parties 
who  engage  in  making  an  illegal  or  unlawful  arrest,  are  trespassers; 
and  if  the  jury  believe,  from  the  evidence,  that  the  defendants,  or 
either  of  them,  restrained  the  plaintiff  of  his  liberty,  as  charged  in 
plaintiff's  declaration,  and  without  authority  of  law,  as  explained 
in  these  instructions,  then  such  persons  are  liable  to  the  plaintiff  in 
this  action.22 

(c)  If  the  jury  believe,  from  the  evidence  and  under  the  instruc- 
tions herewith  given,  that  the  defendants  M.  and  M.  were  both  en- 
gaged in  the  common  purpose  of  unlawfully  arresting  the  plaintiff, 
and  that  M.  had  laid  hold  of  the  plaintiff,  and  that  M.  immediately 
afterwards,  in  pursuance  of  said  common  purpose  of  unlawfully 
arresting  said  plaintiff,  struck  said  plaintiff  with  a  club,   and   that 

IS— Woodman    v.    Howell,    45    111.  20— Thillman  v.  Neal,  88  Md.  525, 

367;    McCarty   v.   Fremont,   23   Cal.  42   Atl.    242. 

196;    Harrison   v.    Harrison,    43    Vt.  21— Zube    v.    Weber,    67    Mich.    52, 

417;   Coolev  on  Torts,  3d  Ed.  292.  34    N.    W.    264    (269). 

19— Clasen  v.   Pruhs,   69  Neb.  278,  22— Newell,   Mai.   Pros.   371;    Bath 

95  N.  W.   640.  v.   Metcalf,   145   Mass.   274. 


400  FORMS  OF  INSTRUCTIONS.  [§  532. 

said  striking  was  done  in  the  presence  of  M.,  and  that  M.  did  not 
try  to  prevent  the  same,  but  on  the  contrary  thereof,  adopted  and 
approved  said  act  of  said  M.  in  striking  said  plaintiff,  then  the 
jury  are  instructed  that  said  M.  is  as  responsible  in  this  action  for 
said  striking  as  is  M.23 

§  532.  Words  of  Provocation — Mitigation  of  Damages,  (a)  That, 
while  words  of  provocation  do  not  justify  an  assault  and  battery, 
they  may  properly  be  considered  in  mitigation  of  damages;  and  if  the 
jury  believe,  from  the  evidence,  that,  just  before  the  assault  com- 
plained of,  the  plaintiff  used  words  to  the  defendant  calculated  to 
provoke  a  breach  of  the  peace,  and  menaced  the  defendant  with  his 
fistSj  then  such  facts  and  circumstances  may  be  considered  by  the 
jury  in  mitigation  of  damages,  in  case  they  find  the  defendant 
guilty.24 

(b)  Defendant  admits  he  struck  the  plaintiff,  but  undertakes  to 
justify  it,  as  he  expressed  it,  because  he  called  his  wife  a  "damn  liar." 
The  law  requires  me  to  charge  you  that  would  not  be  sufficient  justi- 
fication. No  one  has  the  right  to  take  the  law  in  his  own  hands,  and 
punish  some  one  who  has  done  a  real  or  imaginary  wrong.  If  the 
wife  had  been  damaged,  the  courts  were  open  to  him,  and  it  was 
his  duty  to  come  to  court  and  seek  redress  for  his  grievances.  The 
defendant  had  no  right  to  measure  the  amount  of  punishment  he 
should  inflict  upon  the  plaintiff;  therefore,  if  he  struck  and  beat  him 
for  having  called  his  wife  a  "damn  liar,"  he  violated  the  law,  and 
made  himself  liable  to  a  civil  action.  Now,  it  becomes  a  question  to 
determine,  has  he  damaged  the  plaintiff  by  beating  him,  and  if  so, 
to  what  extent?  You  heard  the  witness  detail  the  evidence  as  to 
the  injuries.  It  is  for  you  to  estimate  what  amount  of  injury  he  has 
received,  and  for  what  amount  he  should  be  compensated.  In  esti- 
mating that  damage  you  are  at  liberty  to  consider  under  what  cir- 
cumstances the  injuries  were  inflicted.  Was  it  done  with  wanton, 
reckless  disregard  of  the  rights  of  the  plaintiff?  If  so,  then  you 
are  at  liberty  to  add  smart  money  against  the  defendant  for  having 
inflicted  the  wrong,  to  hold  him  up  as  an  example  to  others,  and  to 
compensate  the  plaintiff  for  whatever  damage  he  has  sustained.25 

§  533.  Justification — Retaking  Stolen  Property,  (a)  If  the 
plaintiff  was  removing  the  plums  belonging  to  the  defendant  with- 
out lawful  right,  then  the  defendant  would  be  justified  in  attempt- 
ing to  take  them  from  her,  and  could  use  sufficient  force  to  com- 
pel the  plaintiff  to  give  them  up. 

(b)    If  the  plums,  which  are  the  property  in  question  in  this  case, 

23 — Mullin  v.  Spongenberg,  112  son,  12  Ga.  461;  Brown  v.  Swine- 
Ill.  142.  See  also  Whitney  v.  Tur-  ford,  44  Wis.  282;  Burke  v.  Melvin, 
ner,   1   Scam.    (111.)   253.  45  Conn.    243. 

24— Keyes    v.    Devlin,    3d    E.    D.  25— Hayes    v.    Sease,    51    So.    Car. 

Smith    518;     Ireland     v.     Elliott,     5  534,  29  S.  E.   259. 
Clarke   (la.)   478;    Suggs  v.   Ander- 


§  533.]  ASSAULT— CIVIL.  401 

belonged  to  the  defendant,  and  the  plaintiff  was  attempting  to  re- 
move them  without  consent  or  lawful  authority  from  the  defendant, 
and  they  belonged  or  were  under  the  control  of  defendant,  he  had  a 
right  to  prevent  her  from  so  doing.  But  in  the  case  suggested — 
thai  is,  should  you  find  that  the  plaintiff  had  no  legal  right  to  the 
plums,  and  that  the  defendant  was  seeking  to  retake  only  what 
belonged  to  him — he  would  only  have  had  a  right  to  use  sufficient 
force  to  overcome  the  force  used  by  plaintiff  in  taking  away  the 
plums.  Defendant  would  have  no  right  to  use  more  force  than  was 
reasonably  necessary,  under  all  the  circumstances,  to  retake  them; 
and,  should  you  find  that  he  did  use  more  force  than  was  reason- 
ably necessary,  he  would  be  liable  for  such  damages  as  were  oc- 
casioned by  such  excessive   use  of  force.20 

(c)  The  court  instructs  the  jury  that,  if  they  believe,  from  a  pre- 
ponderance of  the  evidence,  that  at  the  time  of  the  alleged  assault, 
the  plaintiff  had  in  his  possession  and  was  in  the  act  of  carrying 
away  from  the  defendant's  premises  a  certain  list  of  defendant's 
customers  with  the  intention  on  the  part  of  the  plaintiff  of  keeping 
the  same  and  converting  the  same  to  his  own  use,  and  if  you  further 
believe,  from  a  preponderance  of  all  the  evidence,  and  under  the 
instructions  of  the  court,  that  such  a  list  was  then  the  property  of 
the  defendant,  you  are  instructed,  as  a  matter  of  law,  that  the  de- 
fendant had  the  lawful  right  to  take  such  list  of  customers  from 
the  plaintiff's  possession,  using  such  force  in  so  doing  as  was  rea- 
sonably necessary  to  prevent  the  plaintiff  from  taking  such  list  of 
customers   away  from  defendant's  premises. 

(d)  And  if  you  further  believe,  from  a  preponderance  of  all  the 
evidence,  that  in  preventing  the  plaintiff  from  so  carrying  away 
such  list  of  customers  (without  malice  and  without  willful  intent 
to  injure  the  plaintiff,  and  using  only  such  force  as  a  reasonably 
prudent  man  would,  under  like  circumstances,  deem  sufficient  to 
prevent  such  carrying  away),  the  defendant  unintentionally  injured 
the  plaintiff,  3-011  ai*e  instructed  as  a  matter  of  law  that  the  plaintiff 
cannot  recover,  and  that  your  verdict  should  be  for  the  defendant. 

(e)  The  court  instructs  the  jury  as  a  matter  of  law  that  when  a 
person  is  without  right  in  the  act  of  carrying  away  the  property  of 
another  from  the  owner's  premises  with  the  intention  of  converting 
the  same  to  his  own  use,  he  is  a  wrongdoer,  and  the  law  does  not 
require  the  owner  to  stand  idly  by  and  allow  such  wrongful  carry- 
ing away,  and  that  in  such  case  the  owner  has  the  lawful  right  to 
demand  his  property  and  in  case  such  demand  is  refused  by  force 
to  prevent  such  carrying  away  and  to  retake  his  property,  provided 
he  uses  only  such  force  as  is  reasonably  necessary  to  prevent  such 
carrying  away  or  conversion  of  the  property  in  question.27 

26— Hamilton       v.       Arnold,       116     App.    162    (165).        The    court    said: 

Mich.   684,  75  N.   W.   133   (134).  "If   a   chattel    has    been    seized    and 

27— Winter    v.     Atkinson,    92    111.     carried  away  by  a  person  who  has 

26 


402  FORMS  OF  INSTRUCTIONS.  [§534. 

§  534.  Ejecting  Person  from  Store — May  Use  Necessary  Force — 
Series,  (a)  If  the  jury  believe  from  the  evidence  that  the  defend- 
ant violently  struck  and  beat  the  plaintiff,  then  your  verdict  will 
be  for  the  plaintiff,  unless  you  further  believe  from  the  evidence 
that  plaintiff  first  made  an  attack  upon  defendant,  and  that  de- 
fendant resisted  such  attack,  using  no  more  force  than  was  neces- 
sary to  repel  it. 

(b)  Although  the  jury  may  believe  and  find  from  the  evidence 
that  the  plaintiff  received  injuries  in  consequence  of  falling  upon 
the  floor,  or  upon  some  object  upon  the  floor,  yet,  if  you  find  for- 
the  plaintiff,  he  is  entitled  to  compensation  for  injuries  thus  re- 
ceived to  the  same  extent  as  if  they  had  been  inflicted  directly  by 
the  blow  of  the  defendant. 

(c)  If  the  jury  find  for  the  plaintiff,  they  will  assess  his  dam- 
ages at  such  sum  as  will  compensate  him  for  all  injuries,  if  any, 
he  has  sustained;  also,  for  all  bodily  pain  and  mental  anguish  he 
has  suffered,  if  any;  the  whole  not  to  exceed  the  amount  of  ten 
thousand  dollars,  as  claimed  in  the  petition. 

(d)  The  jury  are  instructed  that,  while  the  keeping  of  a  store 
for  the  sale  of  merchandise  is  an  invitation  to  the  public  to  visit 
such  store,  it  is  an  invitation  to  visit  it  only  for  proper  purposes  in 
connection  with  the  business  there  being  carried  on,  and  all  persons 
going  to  such  places  are  required  to  conduct  themselves  in  a  proper, 
orderly  and  quiet  manner,  free  from  profane  and  loud  and  boisterous 
language ;  and  where  a  person,  having  entered  a  store,  engages  in 
such  loud,  boisterous  and  profane  language,  or  invites  a  quarrel,  he 
becomes  a  trespasser  upon  the  premises,  and  may  be  requested  to 
withdraw  by  the  proprietor  or  any  person  in  his  employ.  And,  in 
case  such  trespasser  refuses  to  withdraw,  he  may  be  forcibly  re- 
moved; using  such  force  as  may  be  necessary  for  that  purpose. 

(e)  I  further  instruct  you  that  if  you  find  from  the  evidence  that 
the  witness  N.  entered  the  defendant's  store  and  engaged  in  loud, 
angry  and  profane  language,  then  the  defendant  had  the  right  to 
direct  him  to  stop  the  use  of  such  language  and  quit  his  premises; 
and  if  you  find  from  the  evidence  that,  upon  being  requested  to  stop 
the  use  of  improper  language  or  to  withdraw,  the  witness-  N.  made  a 
move  to  strike  the  defendant  with  his  hand,  then  such  movement  was 
an  assault  upon  the  defendant,  although  the  blow  may  have  been 
intercepted  or  failed  to  reach  the  defendant. 

(f)  And,  if  you  find  that  N.  did  make  such  an  offer  to  strike 
the  defendant,  then  in  that  case  the  defendant,  being  upon  his  own 
premises,  was  not  obliged  to  retreat,  but  he  had  the  right  then  and 
there  to  repel  such  attack  with  a  blow,  using  all  the  force  necessary 

no    color    of    title    to    it,    and    the  ficient  to  enable  him  to  retake  his 

owner  comes  and   demands  it,   and  property,"     citing-     1     Addison     on 

the    trespnsser    refuses    to    give    it  Torts   (Wood's  Ed.)   545;    Cooley  on 

up,   the   owner  may  use   force   suf-  Torts,    3d    Ed.,    291-293. 


§  534.]  ASSAULT— CIVIL.  403 

to  cause  N.  to  cease  his  assault.  The  party  assaulted  in  such  a 
case  is  not  required  to  use  any  close  or  nice  calculation  to  determine 
just  exactly  the  degree  of  force  necessary,  not  overstepping  such 
measurement  a  hair's  breadth  on  either  side,  but  he  may  use  all  such 
force  as  a  reasonable,  prudent  man,  under  like  circumstances  of 
excitement  and  danger,  would  use  to  repel  such  an  assault. 

(g)  And  in  case  you  find  the  defendant  was  justified  in  striking 
the  plaintiff.  X.,  then  in  that  case  he  is  not  to  be  charged  with  any 
unusual  or  unlikely  result  which  may  have  in  fact  followed  the 
blow  given  in  this  particular  case.  By  this  is  meant  that  if  you 
should  find  that  by  reason  of  any  peculiar  physical  condition  exist- 
ing at  the  time  in  N.,  which  was  not  apparent  to  W.,  and  would 
not  be  'apparent  to  persons  of  ordinary  observing  disposition,  the 
blow  struck  in  this  case  carried  with  it  consequences  and  results 
that  were  unusual  and  beyond  those  which  are  ordinarily  to  be  ex- 
pected from  such  a  blow,  then  in  that  case  the  mere  unusual  sever- 
ity of  the  consequences  will  not  make  that  liability  to  damages  in 
the  defendant  which  would  not  have  been  such  liability  had  the 
blow  been  followed  by  only  such  consequences  as  might  reasonably 
have  been  expected. 

(h)  The  law  permits  every  man  to  defend  himself  when  wan- 
tonly assailed,  and  in  such  defense  it  requires  of  him  only  such  pru- 
dence as  is  common  among  ordinarily  careful  men,  and  that,  if  un- 
usual and  not  to  be  expected  results  follow  from  a  defense  so  made, 
the  original  wrongdoer  and  aggressor  must  suffer  for  them,  and 
not  he  who  only  engaged  in  his  own  defense,  and  could  not  reason- 
ably have  foreseen  such  unusual  results. 

(i)  If  a  person  willfully  trespasses  upon  the  premises  of  another, 
and  while  so  trespassing  assaults  the  owner  thereof,  and  the  owner, 
while  defending  his  person  from  such  assault,  inflicts  an  injury  upon 
the  party  thus  making  such  assault,  the  party  thus  injured  cannot 
recover  damages  for  the  injury  so  received.28 

28 — The  series  of  nine  instruc-  duct,  using  no  more  force  than 
tions  for  plaintiff  and  defendant  was  reasonably  necessary, 
given  above  is  taken  from  Norris  The  court  said  that  these  "very 
v.  Whyte,  158  Mo.  20,  57  S.  W.  clear  and  exhaustive  instructions" 
1037  (1039),  where  the  defense  was  are  fully  supported  by  former  de- 
that  defendant  justifiably  attempt-  cisions,  citing  Morgan  v.  Durfee, 
ed  to  put  plaintiff  out  of  his  store,  69  Mo.  469,  33  Am.  Rep.  508;  State 
on  account  of  defendant's  miscon-     v.   Reed,  154  Mo.   121,   55  S.  "W.  278, 

282. 
See    Assault,    general   heading    Criminal. 


CHAPTER  XXXI. 


ATTACHMENT. 

See   Erroneous   Instructions,  same  chapter  head,   Vol.   III. 


§  535. 
§536. 
§  537. 
§538. 
§  539. 

§  540. 

§541. 


Right  of  attaching-  creditor 
— Fraud. 

Fraudulent  intent  must  be 
proven. 

About  to  depart  from  state 
— Burden    of    proof. 

Temporary  absence  from  the 
state    not    sufficient    ground. 

Debtor  about  fraudulently  to 
dispose  of  property— Bur- 
den  of  proof. 

Attachment  by  collusion  be- 
tween creditor  and  insol- 
vent debtor — Alabama  code. 

Duty  of  officer  to  release 
levy  as  to  goods  sold  by 
debtor. 


§  542.  Conveyance  to  hinder  or  de- 
lay— Retraction. 

§  543.  Sale  by  debtor  void  without 
change   of   possession. 

§  544.  Conveyance  by  partner  of 
non-partnership  property 
not   chargeable   to   firm. 

§  545.  Attachment  —  Garnishment 
of  bank — General  and  spe- 
cial deposit. 

§  546.  Right  of  debtor  to  sell  or 
give  away  if  he  has  less 
than  amount  exempted  by 
law. 


§535.  Right  of  Attaching  Creditor— Fraud.  The  court  instructs 
you  that  an  attaching  creditor  can  acquire  through  his  attachment 
no  higher  or  better  right  to  the  property  or  assets  attached  than 
the  defendant  in  the  attachment  had  when  the  attachment  was  is- 
sued, unless  the  said  creditor  can  show  fraud  or  collusion  between 
the  said  defendant  in  attachment  in  this  case,  to  injure  or  impair 
the  rights  of  said  creditor.1 

§  536.  Fraudulent  Intent  Must  Be  Proven.  The  fraud,  as  alleged, 
is  one  of  the  substantial  charges  made  by  the  plaintiff  in  the  affi- 

1— Mathews  v.  Reinhardt,  149 
111.  635  (643),  37  N.  E.  85.  "Al- 
though this  instruction  is  vigor- 
ously assailed,  we  are  unable  to 
see  any  material  error  in  it,  espe- 
cially as  applied  to  the  evidence  in 
this  case.  The  instruction  merely 
announces  the  principle  that,  an 
attaching  creditor  acquires  no  bet- 
ter right  to  the  property  attached 
than  the  defendant  in  the  attach- 
ment had  at  the  time  of  the  levy, 
unless  fraud  or  collusion  between 
him  and  his  vendee  is  shown, 
but  no  attempt  is  made  to  de- 
fine what  would  constitute  such 
fraud  and  collusion  as  would 
render  the  sale  void  as  against 
creditors.  It  in  no  way  con- 
travenes the  rule  that  notice  to 
the  vendee  of  the  fraudulent  in- 
tent of  the  vendor  makes  him 
participant  of  the  fraud.  But  even 
admitting  that  the  instruction  is 
technically  defective  in  failing  to 
recognize   the   rule,    that   notice  to 

404 


the  vendee  of  the  fraudulent  in- 
tent of  his  vendor,  would,  of  it- 
self, without  any  active  participa- 
tion on  his  part  in  the  fraud,  ren- 
der the  sale  void  as  to  creditors, 
we  find  no  evidence,  and  none  is 
pointed  out,  which,  in  our  judg- 
ment, tends  to  charge  the  plain- 
tiff with  notice  of  such  fraudulent 
intent.  It  is  true  that  plaintiff 
knew  that  P.  had  failed  in  busi- 
ness and  became  insolvent,  but 
that  fact  alone  did  not  import  a 
fraudulent  intent,  nor  was  it  suf- 
ficient to  put  the  plaintiff  on  in- 
quiry for  such  intent.  A  party 
who  has  become  insolvent,  so  long 
as  he  retains  dominion  over  his 
property,  has  a  right  to  dispose  of 
it,  and  an  intending  purchaser, 
unless  something  more  than  the 
mere  fact  of  insolvency  is  brought 
to  his  attention,  may  purchase 
and  obtain  a  good  title,  even  as 
against    creditors." 


§537.]  ATTACHMENT.  405 

davit,  and  it  must  be  proved  b}'  a  preponderance  of  the  evidence, 
as  the  law  never  presumes  fraud  without  evidence  tending  to  show 
it.  And,  although  you  may  believe,  from  the  evidence,  that  the  de- 
fendant was  then  about  to  assign  and  dispose  of  portions  of  his 
property,  still,  unless  the  plaintiff  has  proved,  by  a  preponderance 
of  the  evidence,  the  fraudulent  intent,  as  charged  in  the  affidavit, 
you  should  find  the  issues  for  the  defendant. - 

S  537.  About  to  Depart  from  State — Burdan  of  Proof.  The  court 
instructs  the  jury  that  the  burden  of  proof  is  upon  the  plaintiff  to 
establish,  affirmatively,  that  the  defendant  was  about  to  depart  from 
the  state,  with  the  intention  of  removing  his  effects  therefrom,  at 
the  date  of  the  affidavit  in  question ;  and  that  a  failure  to  establish, 
by  a  preponderance  of  proof,  either  the  intention  to  remove  from 
the  state,  or  his  intention  to  remove  his  property  from  the  state, 
Avill  entitle  the  defer  ^ ant  to  a  verdict.3 

§  538.  Temporary  Absence  from  the  State  Not  Sufficient  Ground, 
(a)  The  court  charges  the  jury  that  the  temporary  absence  of  a 
debtor  from  the  state,  though  he  does  not  inform  his  creditors,  does 
not  authorize  an  inference  prejudicial  to  his  integrity,  nor  author- 
ize an  attachment  against  him  or  his  property. 

(b)  The  court  charges  the  jury  that  the  absence  of  a  debtor 
from  his  home  does  not  subject  his  property  to  attachment  upon 
the  allegation  that  he  absconds  or  secretes  himself,  and  his  neglect 
to  inform  a  creditor  of  his  intended  absence  does  not  alone  author- 
ize the  latter  to  resort  to  the  extraordinary  remedy  of  attachment. 

(c)  If  L.  left  his  usual  place  of  business  and  abode  with  the  in- 
tention of  again  returning,  and  without  any  fraudulent  intent,  then 
his  absence  was  not  that  of  absconding  in  the  meaning  of  the  law.4 

§  539.  Debtor  About  Fraudulently  to  Dispose  of  Property — Bur- 
den of  Proof,      (a)     The   jury   are   instructed   that,   upon   the  issue 

2 — Lord     v.     Defendorf,     54     Wis.  the   state,   though   he   does   not   in- 

496,  11  N.  "W.  903.  form    his    creditors,    does    not    per 

3— Hawkins  v.  Albright,  70  111.  se  authorize  the  creditor  to  resort 
87;  Coston  v.  Paige,  9  Ohio  St.  397;  to  the  writ  of  attachment  to  col- 
Hermann  v.  Amedu,  30  La.  Ann.  lect  his  debt.  Pitts  v.  Burroughs, 
393.  6    Ala.    733.      While    the    charge    is 

4 — Vandiver  &  Co.  v.  Waller,  143  argumentative,   and   in   one  respect 

Ala.    411,    39    So.    136.      In    comment  abstract,  in  that  there  was  no  <vi- 

the    court   said   that   the   "evidence  dence    showing    that    defendant    in 

showed    that    the    defendant    in   at-  attachment  left  the  state,   this  will 

tachment    was    absent    from    Cam-  not  make  the  giving  of  the  charge 

den,  the  town  in  which  he  resided  reversible  error.     We  do  not  think 

and    did    business,    for    nearly    two  the     charge     precluded     the     jury 

weeks   before   the   attachment   was  fi'om  consideration  of  the  evidence 

sued     out.       There     was     evidence  tending    to    show   that   the    defend- 

which  tended  to  show  that  he  was  ant    in    attachment    was   absent    in 

absent  in  gocd  faith  seeking  funds  the   sense   that   he   had   absconded, 

with   which   to   pay  his   debts,    and  There     was     no     error     in     giving 

there     was     evidence     tending     to  charge     2.       The     defendant     could 

show  to  the  contrary.     It  must  be  have      corrected      any      misleading 

conceded    as    true    that    the    tern-  tendency  in  that  respect  by  an  ex- 

porary    absence    of   a   debtor    from  planatory   charge." 


406  FORMS  OP  INSTRUCTIONS.  [§540. 

formed  upon  the  affidavit  in  attachment,  the  only  question  is  whether 
at  the  time  the  attachment  writ  was  sued  out,  the  defendant  was 
about  fraudulently  to  assign,  conceal  or  otherwise  dispose  of  his 
property  so  as  to  hinder  or  delay  his  creditors  in  the  collection  of 
their    debt. 

(b)  Anyone  who  alleges  that  certain  acts  were  done  in  bad  faith 
or  for  a  dishonest  purpose,  takes  upon  himself  the  burden  of  show- 
ing by  specific  acts  and  circumstances  tending  to  prove  fraud,  that 
such  acts  were  done  in  bad  faith ;  and  in  this  case,  the  jury  would 
not  be  warranted  in  finding  a  verdict  for  the  plaintiff  upon  the  issue 
of  the  truth  of  the  affidavit  for  attachment,  unless  they  believed, 
from  the  evidence,  that  the  defendant,  at  the  time  the  attachment 
writ  was  sued  out,  was  about  fraudulently  to  assign,  conceal  or 
otherwise  dispose  of  his  property  so  as  to  hinder  or  delay  his  cred- 
itors.5 

§  540.  Attachment  by  Collusion  between  Creditor  and  Insolvent 
Debtor — Alabama  Code.  If  the  jury  believe  that  the  attachment 
was  sued  out  as  the  result  of  an  agreement  or  understanding  with 
the  attaching  creditor  by  which  he  was  to  sue  out  the  same  and 
have  it  levied  upon  the  property  of  the  debtor  and  thereby  acquire 
a  prior  lien  upon  the  property  of  the  latter  over  other  creditors, 
then  the  attachment  was  void  and  your  verdict  will  be  for  the 
plaintiffs.6 

§  541.  Duty  of  Officer  to  Release  Levy  as  to  Goods  Sold  by 
Debtor,  (a)  The  court  further  instructs  you  that,  although  you 
may  believe  from  the  evidence  that  the  marshal,  or  his  deputy  who 
executed  the  writ,  did  not  have  notice  of  the  sale  by  said  C.  to  the 
plaintiffs  before  or  at  the  time  of  said  levy,  yet  if  you  find  from  the 
evidence  that  he  afterwards  received  notice  of  such  sale,  that  then 
it  was  his  duty  to  have  separated  the  goods  belonging  to  the  plain- 
tiffs from  the  other  stock,  if  it  could  have  been  done,  and  released 
the  levy  on  them.     And  if  you  believe  that  he  had  such  notice,  and 

5— Deuber  Watch  Case  Co.  v.  109  Ala.  220  ;  19  So.  719;  Cass- 
Young,  155  111.  226  (227),  aff'g  54  enheimer  v.  Kellogg,  121  Ala.  109, 
111.   App.   383,   40  N.   E.   582.  26     So.    29;     Collier     v.     Shoe     Co., 

6— Butler  v.   Feeder,   130   Ala.  604,  122    Ala.    320,    25    So.    191;     Rice    v. 

31    So.    799    (801).      The    court    said:  Eiseman,    122    Ala.    343,    25    So.    214; 

"It   is  well   settled   'that  a  writ  of  First  Nat.  Bank  of  Montgomery  v. 

attachment    issued    collusively    be-  Acme    White    Lead    &    Color    Co., 

tween       creditor       and       insolvent  123  Ala.    344,   26    So.     354;     Stern   v. 

debtor,    for   the    purpose   of   giving  Butler,    123     Ala.     606,     26     So.    359, 

preference,   and   with   intent   to   ef-  82    Am.    St.    Rep.    146.     In   order  to 

feet   a    fraudulent    transfer   of   the  effect  a  collusive  attachment,  such 

debtor's    property    to    the    plaintiff  as  the  statute  avoids,  it  is  not  now 

in    attachment,     through    the    ma-  required    that     a    contesting    cred- 

chinery  of  the  attachment  process,  itor  shall  show  that  the  defendant 

is   a  void  suit  or  proceeding  with-  in   attachment  was  insolvent   or  in 

in     the     meaning     of     section     2156  failing   circumstances.    The   statute 

(1735)   of  the  Code.'     Cartwright  v.  makes    no    such    condition.      There 

Bamberger,     90     Ala.     405     (407),     8  was  no  error  in  giving  the  charge 

So.     264;      Comer     v.     Heidelbach,  requested  by  the  plaintiff." 


§  542.]  ATTACHMENT.  407 

refused  to  separate  the  goods,  and  release  the  levy  on  plaintiffs'  part 
of  same,  you  should  find  for  the  plaintiffs. 

(b)  Although  you  may  believe  from  the  evidence  that  the  goods 
purchased  by  plaintiffs  were  not  so  marked  or  designated  that  the 
marshal  could  have  distinguished  them  by  inspection  or  examina- 
tion, yet  if  you  believe  that  the  marshal  had  notice  of  the  sale  to 
plaintiffs  of  the  goods  sued  for  prior  to  or  at  the  time  of  the  levy, 
and  could  have  found  out  which  were  plaintiffs'  goods  after  such 
notice,  then  it  was  the  duty  of  the  marshal  to  have  separated  plain- 
tiffs' goods,  from  the  remainder  of  the  stock,  and  not  levied  upon 
them ;  and  if  you  find  from  the  evidence  that  he  had  such  notice,  and 
refused  to  separate  plaintiffs'  goods,  but  levied  upon  them,  your  ver- 
dict should   be  for  plaintiffs.7 

§  542.  Conveyance  to  Hinder  and  Delay — Retraction.  That  the 
only  issue  for  the  jury  to  try  is  the  one  formed  upon  the  affidavit  in 
attachment  and  the  plea  in  abatement  thereof,  and  that  is,  whether 
or  not,  at  the  time  the  attachment  writ  was  sued  out,  the  defendant 
was  about  to  fraudulently  assign,  conceal,  or  otherwise  dispose  of 
his  property,  so  as  to  hinder  or  delay  his  creditors  in  the  collection 
of  their  debts.s 

§  543.  Sale  by  Debtor  Void  Without  Change  of  Possession.  You 
are  instructed  that  as  against  the  attaching  creditors  of  X.,  the 
plaintiff  could  not  acquire  a  good  title  to  the  goods  in  question 
simply  by  buying  them  of  X.  and  paying  him  therefor  the  purchase 

7 — Orr  &  Lindsley  Shoe  Co.  v.  the  plaintiffs'  ownership  of  certain 
Frankenthal,  4  Ind.  Ter.  368,  69  of  the  goods  so  seized,  there  is  no 
S.  W.  906  (907).  "Upon  this  point  doubt  that  the  officer,  upon  such 
the  evidence  tended  to  show  that  notification  as  to  such  goods, 
the  agent  of  the  plaintiffs  claimed  would  be  a  trespasser,  and  liable 
the  entire  stock  of  goods:  not  only  to  the  plaintiffs  for  the  value 
the  goods  mentioned  in  the  bill  of  thereof;  and  the  jury  ought  to 
sale  in  evidence,  but  all  the  goods  have  been  properly  instructed  as 
in  the  store.  And  the  jury  might  to  these  points,  citing  Buck  v. 
believe  one  or  the  other  of  these  Colbath,  70  U.  S.  334,  18  L.  Ed.  257; 
contradictory  claims.  If  the  plain-  1  Wat.  Tresp.  474;  Murfree  Sher. 
tiffs'  agents  were  claiming  the  §  270a;  Drake,  Attachm.  (6th  Ed.) 
whole  of  the  stock  of  goods,  and  196-198  inclusive;  Harris  v.  Ten- 
as  such  agent,  on  the  part  of  ney,  85  Tex.  254,  20  S.  W.  82,  34 
plaintiffs,  he  had  a  bill  of  sale  of  Am.  St.  Rep.  796." 
only  part  of  said  stock,  this  would  S— Miller  v.  McNair,  65  Wis.  452, 
be  such  a  fraud  upon  the  officer  27  N.  W.  333;  Davison  v.  Hackett, 
that  there  could  be  no  liability  49  Wis.  186,  5  N.  W.  1459. 
whatever  in  his  seizure  under  his  McCrosky  v.  Leach,  63  111.  61, 
attachment  writ  of  the  whole  of  holds  that  a  failing  debtor's  con- 
the  stock  of  goods.  And  if  this  veyance  of  his  real  estate  to  his 
.contention  was  maintained  after  wife  which  is  never  recorded  and 
the  service  of  the  writ,  and  were  is  with  his  wife's  consent  de- 
all  of  the  goods  in  the  possession  stroyed  before  the  attachment  is 
of  the  officer,  it  would  still  be  a  sued  out  does  not  constitute  a  con- 
fraud  upon  such  officer,  and  there  veyance  to  hinder  or  delay  his 
would  be  no  liability.  But  if  the  creditors,  although  the  effect 
plaintiffs,  having  a  valid  bill  of  thereof  if  it  had  been  recorded 
sale  of  a  part  of  the  goods  seized  would  have  been  to  hinder  and  de- 
upon  under  the  writ,  notified  the  lay  his  creditors.  The  .case  was 
officer  of  such  bill  of  sale,  and  of  tried   without  a  jury. 


408  FORMS  OF  INSTRUCTIONS.  [§541 

price  agreed  upon,  but  there  must  also  be  a  change  of  possession  of 
the  goods,  and  without  a  change  of  possession,  the  sale  would,  on 
that  account,  be  void  as  against  attaching  creditors  of  X.9 

§  544.  Conveyance  by  Partner  of  Non-Partnership  Property  Not 
Chargeable  to  Firm,  (a)  Although  the  jury  may  believe  from  the 
evidence  that  G.  M.  or  D.  M.  conveyed  his  interest  in  certain  lands 
to  his  wife  for  consideration  of  love  and  affection,  which  interest 
in  lands  was  his  individual  property,  and  not  in  any  way  connected 
with  partnership  assets  or  partnership  business,  that  such  act  did 
not  authorize  an  attachment  against  said  partnership,  and  can  be 
no  defense  in  this  case. 

(b)  Although  the  jury  may  believe  from  the  evidence  that  G.  M. 
or  D.  M.  conveyed  his  interest  in  certain  lands  to  his  wife  for  con- 
sideration of  love  and  affection,  which  interest  in  lands  was  his  in- 
dividual property,  and  not  in  any  way  connected  with  partnership 
assets  or  partnership  business,  that  such  act  did  not  authorize  a 
writ  of  attachment  to  be  levied  upon  the  partnership  assets  of 
E.  &  M.  Bros.,  and  that  the  same  is  no  defense  to  the  suit.10 

§  545.  Attachment — Garnishment  of  Bank — General  and  Special 
Deposit.  The  court  instructs  the  jury  that  if  they  find,  from  the 
evidence,  that  L.  F.  had  a  deposit  account  with  the  defendant  bank 
at  the  time  of  the  service  of  the  garnishee  summons  upon  it  in  this 
cause,  and  that  L.  F.  at  that  time  had  on  deposit  with  the  defend- 
ant a  sum  of  money  equal  to  or  in  excess  of  the  amount  shoAvn  by 
the  evidence  to  be  due  on  the  judgment  in  favor  of  the  B.  Mfg.  Co. 
and  against  said  L.  F.,  upon  which  this  proceeding  is  brought,  then 
the  jury  should  find  the  issues  for  the  plaintiff,  and  assess  the  plain- 
tiff's damages  at  the  amount  shown  by  the  evidence  to  be  clue  upon 
said  judgment,  unless  you  believe,  from  the  evidence,  that  said 
moneys  were  held  by  the  bank  as  a  special  deposit  for  the  payment 
of  the  debts  of  a  special  enterprise  in  which  L.  F.  was  engaged,  and 
not  for  payment  to  L.  F.  or  his  orders  generally.11 

§546.  Right  of  Debtor  to  Sell  or  Give  Away  If  He  Has  Less 
Than  Amount  Exempted  by  Law.  The  court  charges  the  jury  that 
in  law,  when  a  party  has  less  than  $1,000  of  property,  such  party 
can  sell  at  any  price,  or  give  away  his  property,  and  his  creditors 
cannot  complain.12 

9 — Morris     v.      Coombs,     109     111.  persons  dealing  with  the  property. 

App.    176    (178).      Replevin    against  Second    Nat.    Bank    v.    Gilbert,    174 

sheriff  for  stock  of  goods  levied  on  111.    85,    51    N.    E.    584,    66    Am.    St. 

under     attachment     writs,      which  Rep.   306." 

plaintiff   claimed   had   been   sold   to  10 — Painter  et  al.  v.  Munn  et  al., 

him     by     the     debtor.       The     court  117  Ala.   322,   23  So.   83   (S5),  67  Am. 

said:       "The    instruction    correctly  St.    Rpp.    170,    action    for    wrongful 

stated  the  law.     Rapp  v.   Rush.   96  attachment. 

111.  App.  536.  The  change  in  the  11 — Bank  of  Commerce  v.  Frank- 
character  of  possession  should  be  Iin,  for  the  use,  etc.,  88  111.  App. 
indicated    by   such    outward,    open,  lf)S   (206). 

actual  and   visible  signs  as  can  be  12 — Vandiver    &    Co.    v.    "Waller, 

seen   and  known   to   the  public,  or  143  Ala.   411,  39  So.   136. 


CHAPTER   XXXII. 


ATTORNEYS. 


See  Erroneous  Instructions,  same  chapter  head,  Vol.  III. 


547.  Degree   of   care   and   skill   re- 

quired of  attorney. 

548.  Advice    of    counsel    as    a    de- 

fense— Must  be  of  licensed 
attorney. 

549.  Judge   of  Probate   Court   pro- 

hibited from  acting  as  at- 
torney in  cases  pending  be- 
fore him. 


§  550.  Recovery    for    legal    services. 

§  551.  Not  entitled  to  compensa- 
tion when  contract  is 
broken. 

§  552.  Evidence  given  by  attorneys 
as  to  value  of  services 
rendered. 

§  553.  Interest  from  date  of  de- 
mand. 


§  547.      Degree    of    Care    and    Skill    Required    of   Attorney.      The 

court  instructs  the  jury  that  an  attorney  must  be  held  to  undertake 
to  use  a  reasonable  degree  of  care  and  skill,  and  to  possess  to  a 
reasonable  extent  the  knowledge  requisite  to  a  proper  performance 
of  the  duties  of  his  profession,  and,  if  injury  results  to  the  client 
as  a  proximate  consequence  of  the  lack  of  such  knowledge  or  skill, 
or  from  the  failure  to  exercise  it,  the  client  may  recover  damages 
to  the  extent  of  the  injury  sustained;  but  we  are  all  human  beings, 
and  attorneys  are  not  responsible  for  errors  and  mistakes  that  they 
make.  If  an  attorney  is  fairly  capacitated  to  discharge  the  duties 
ordinarily  incumbent  upon  one  of  his  profession,  and  acts  with  a 
proper  degree  of  attention  and  with  reasonable  care  and  to  the  best 
of  his  skill,  he  will  not  be  responsible.  He  must,  of  course,  act  to- 
wards his  client  with  integrity  and  honesty.1 

§  548.  Advice  of  Counsel  as  a  Defense — Must  Be  of  Licensed  At- 
torney. The  jury  are  further  instructed  that  when  the  advice  of 
attorney  or  counsel  is  invoked  as  a  defense,  it  must  be  shown  that 
the  counsel  or  attorney  selected  and  advised  with  was  a  regular 
licensed  attorney  and  counselor  reputable  in  character,  and  so  con- 
sidered in  the  community,  competent  to  give  legal  advice  on  all  mat- 
ters pertaining-  to  law.  It  is  not  sufficient  as  a  defense  that  the 
person  advising  the  transaction  held  himself  out  as  an  attorney  at 
law.  and  was  believed  to  be  such  by  the  party  consulting  him.  but 
it  must  be  shown  that  the  attorney  counseled  and  advised  with  was 
a  regular  licensed  attorney  and  counselor  and  of  reputable  charac- 
ter.2 


1— Malone  v.   Gerth,   100  "Wis.  166,  attorney,     the     latter    must    be    li- 

75  N.   TV.   972,   69  Am.   St.   Rep.   906,  censed.       Davis    v.     Baker,    SS    111. 

41  L.  R.  A.  563.  App.     251     (254).       The    advice     re- 

2 — To  justify  under  advice  of  an  ferred  to  in  the  instruction  was  in 

409 


410  FORMS   OF  INSTRUCTIONS.  [§  549. 

§  549.  Judge  of  Probate  Court  Prohibited  from  Acting  as  Attor- 
ney in  Cases  Pending  Before  Him.  (a)  The  jury  are  instructed 
that  the  law  prohibits  the  judge  of  the  Probate  Court  from  acting  as 
an  attorney  and  counselor  at  law  in  all  matters  pending  in  his 
own  court,  and  that  this  prohibition  is  not  confined  merely  to  suit 
pending  in  the  Probate  Court,  but  extends  likewise  to  all  suits  pend- 
ing in  other  courts,  which  are  so  connected  with  an  estate  pending 
in  said  Probate  Court  as  to  require  of  said  Probate  Court  official 
and  judicial  action  with  respect  to  the  same,  and  when  a  suit  is 
pending  in  the  Circuit  Court  to  set  aside  a  last  will  and  testament 
of  a  person  whose  estate  is  pending  for  administration  in  the  Pro- 
bate Court,  the  judge  of  said  Probate  Court  is  prohibited  by  law 
from  soliciting  or  receiving  from  any  person  interested  in  said  estate 
any  money,  property  or  other  valuable  thing,  as  compensation  for 
inducing  the  executor  of  said  estate  to  make  a  settlement  or  com- 
promise of  such  will  suit,  and  this  is  so,  notwithstanding  his  mo- 
tives were  intended  to  accomplish  what  should  be  for  the  best  in- 
terests of  all  parties  concerned,  without  any  wrong  intention  what- 
ever in  so  doing.3 

§  550.  Recovery  for  Legal  Services.  The  court  instructs  you  in 
this  case  that,  if  you  believe  from  the  evidence  that  the  defendant 
performed  for  and  rendered  to  the  plaintiff  legal  services,  and  that 
there  was  an  agreement  between  them  either  before  or  after  they 
were  performed  as  to  the  price  or  compensation  for  such  services, 
then  the  defendant  has  a  right  to  recover  for  such  sexwices  at  the 
agreed  price.4 

§  551.  Not  Entitled  to  Compensation  When  Contract  Is  Broken. 
You  are  instructed  that  when  a  client  employs  an  attorney  for  a 
specific  action,  that  is  an  entire  contract;  and  if  you  find  that  the 
attorney  broke  the  contract  himself,  or  acted  in  such  a  manner  as 

reference   to    suing-   out   a    writ   of  if    not    the    letter   of    the    statute, 

attachment.  But    even   without   any   statute   on 

3 — Evans  v.   Funk,  151  111.   650,  38  the  subject,  the  right  of  anyone  to 

N.    E.    230.      "It    seems    to    us    the  act  as  both  judge  and  attorney  at 

very    statement    of    the    claim    and  different  times   in  the   same  cause, 

proposition   suggests  the   only  pos-  or    in    collateral    questions    arising 

sible  answer  that  can  be  given  to  out  of  the  same  cause  of  action,  is 

it.    Nor  can  it  be  material  whether  so    clearly    incompatible    with    an 

he  was  an  attorney  in  the  case  as  impartial,  pure  and  unfettered  ad- 

a     peacemaker     or     otherwise,     or  ministration  of  public  justice  in  the 

whether  his  motives  were  good  or  .courts,  and  so  contrary  to  the  prin- 

bad,  if  he  was  there  in  his  own  in-  ciples    of   public   policy,   that   such 

terest,     and     for     hire,     both     the  claim    can    not    be    allowed    under 

statute    and     principles    of    public  any  pretense  whatever.     There  was 

policy  alike  forbid   that   he  should  no  error,  therefore,   in  the  instruc- 

asrain     act    as    judge    in     his    own  tion   which   informed  'the  jury  that 

court  where  such  cause  or  any  of  appellant    could    not    lawfully    en- 

the  matters  involved,    directly  or  in-  gage  in   that  will  controversy,  and 

directly.     .     .     .    We  think  this  pro-  had  no  right  to  demand  or  receive 

hibition     against    appellant's    right  the  money  for  his  services." 
to   act   as   an   attorney  in    the   will        4— Bingham  v.  Spruill,  97  111.  App. 

contest  is  clearly  within  the  spirit,  374. 


552.  J  ATTORNEYS. 


411 


to  make  the  relation  of  attorney  and  client  no  longer  possible,  you 
must  find  that  the  attorney  is  not  entitled  to  any  compensation.5 

§  552.  Evidence  Given  by  Attorneys  as  to  Value  of  Services  Ren- 
dered, (a)  The  court  instructs  you  that  the  evidence  given  by 
attorneys  as  to  the  value  of  the  plaintiff's  services  does  not  pre- 
clude you  from  exercising  your  own  knowledge  upon  the  value  of 
such  services.  It  is  your  duty  to  weigh  the  testimony  of  the  attor- 
neys as  to  the  value  of  plaintiff's  services,  if  any,  by  reference  to 
their  nature,  the  time  occupied  in  their  performance,  and  other 
attending  circumstances,  and  you  may  apply  to  it  your  own  ex- 
perience and  knowledge,  if  any,  of  the  character  of  such  services.6 

(b)  The  jury  are  instructed  that  M.,  without  conflict,  appears 
to  have  had  the  management  of  defendant's  business  in  all  the  liti- 
gation referred  to  in  this  case,  for  which  the  plaintiff  seeks  to  re- 
cover; and  that  the  bargain,  either  under  plaintiff's  or  defendant's 
version,  was  made  by  and  between  plaintiff  and  M. ;  and  that,  if 
the  jury  believe  from  M. 's  testimony  that  some  time  after  plaintiff 
came  to  Detroit  in  the  interest  of  M.  in  the  murder  case,  and  that 
this  was  after  all  the  services  were  performed  by  plaintiff,  and  that 
M.  called  at  the  office  of  B.,  and  there  requested  the  plaintiff  to  show 
his  books,  and  make  a  settlement,  and  that  plaintiff  refused  to  do 
so,  claiming  that  it  was  unnecessary,  as  he  (plaintiff)  had  looked 
his  books  over,  and  found  that  he  was  indebted  to  defendant,  having 
received  enough  moneys  to  pay  him  for  all  his  services,  then  and  in 
such  case  the  plaintiff  cannot  recover,  and  the  verdict  of  the  jury 
must  be  for  defendant. 

(c)  Plaintiff  has  introduced  testimony  tending  to  show  the  value 
of  his  services,  and,  if  he  relies  upon  value,  rather  than  upon  his 
express  contract  as  alleged,  he  must  stand  by  the  actual  value  of 
his  services,  and  must  accept,  under  the  law,  such  amounts  as  those 
services  were  reasonably  worth ;  and  if  from  all  the  testimony  in 
this  case  the  jury  believe  the  amounts  which  he  has  received,  and  of 
which  he  acknowledges  credits,  were  sufficient  in  amount  to  com- 
pensate him  for  his  services,  then  and  in  such  case  he  cannot  re- 
cover, and  the  verdict  of  the  jury  must  be  for  the  defendant.7 

5— Cahill  v.  Baird,  138  Cal.  691,  72  35  S.  W.  1137;    State  v.  Witten,  100 

Pac.  342.  Mo.  525,  13  S.  W.  871;  City  of  K>n- 

6 — Rrownriarg  v.  Massensrale,  97  sas  v.  Street,  36  Mo.  App.  666:  W. 
Mo.  App.  190.  70  S.  W.  1103.  The  TJ.  Tel.  Co.  v.  Guernsey  &  Scud- 
rourt  s<iid  in  comment  that  "the  der  Elec.  Lis"ht  Co.,  46  Mo.  Apn. 
testimony  of  experts  is  only  ad-  120;  Head  v.  Hararrave,  105  IT.  S. 
visory.  and  the  jury  is  not  required  45,  26  L.  Ed.  1028;  Randall  v.  Pack- 
to  surrender  their  .-judgment,  or  to  ard,  142  N.  Y.  47,  36  N.  E.  823;  Roar, 
pive  a  controlliner  influence  to  the  Exp.  Test.,  par.  204." 
oninion  of  expert  witnesses,  but  7 — Rabbi+t  v.  Rumpus,  73  Mich, 
rmv  exercise  an  independent  judg-  331,  41  N.  W.  417-19,  16  Am.  St.  R^n. 
ment  from  their  own  knowledge  585.  "We  think  these  reque«+s 
fnd  experience,  is  well  settled  law  state  the  law  applicable  to  the 
^re  and  elsewhere.  Cosgrove  v.  facts  in  this  case  in  terse  and  suc.- 
Leonard,  134  Mo.  419,  33  S.  "W.  777,  cinct  language,  and  we  can  see  no 


412 


FORMS   OF   INSTRUCTIONS. 


[§  553. 


§  553.  Interest  from  Date  of  Demand.  If  your  verdict  is  for  the 
plaintiff,  you  will  find  for  him  in  such  sum  as,  considering  all  the 
circumstances  in  evidence,  you  believe  is  the  fair  and  reasonable 
value  of  his  services,  together  with  interest  thereon  at  the  rate  of 

per  cent,  from  the   date  of  any  demand  you  may  believe  was 

made  of  defendant  by  plaintiff  for  payment.8 


reason  why  they  should  not  have 
been  given;  and  their  substance 
was  really  not  given  in  the  general 
charge,  or,  if  it  was,  it  was  in  a 
manner  that  might  be  easily  mis- 
understood by  the  jury.  A  party 
has  the  right  to  have  the  law  of 
his  case  go  to  the  jury  in  its  plain- 
est simplest  form;  and  if  it  is 
properly  embodied  in  a  request  in 
that  form,  prepared  by  counsel, 
and     furnished     to     the     court,     it 


ought  to  be  thus  given,  and  the  re- 
quest should  not  be  ignored  by  the 
court.  We  have  had  occasion  to 
allude  to  this  subject  before,  and 
when  the  court  declines  to  give 
such  requests  it  must  appear  that 
the  substance  of  them  has  been  as 
well  given  by  the  court  in  its  own 
language,  or  the  omission  will  be 
error." 

S — Brownrigg    v.    Massengale,    97 
Mo.  App.  190,  70  S.  W.  1103  (1105). 


CHAPTER   XXXIII. 


BAILMENTS  AND  WAREHOUSEMEN. 

See  Erroneous  Instructions,  same  chapter  head,   Vol.    III. 


BAILMENTS. 

§  554.    Bailee    cannot    deny   bailor's 

title. 
§  555.    Hired  horse— Degree  of  care 

required  of  bailee. 
§  556.    Trial  of  a  horse  with  option 
of  purchase  is  a  bailment — 
Degree  of  care  required. 
§  557.     Liability  of  bailee  for  money 

converted  to  his  own  use. 
§  558.     Degree    of    care    required    in 

a     bailment     for     the     sole 

benefit   of   the  bailor. 

WAREHOUSEMEN. 

§  559.    Defining  warehousemen. 


§  560.  Equal  duty  towards  all  pa- 
trons. 

§  561.  Negligence  not  presumed 
from  mere  fact  of  loss  of 
goods — Burden  of  proof. 

§  562.  Ordinary  care  required — 
Definition  of. 

§  563.  Duty  to  remove  goods  when 
flood  threatens. 

§  564.  Warehouse  receipts,  assign- 
able—Tender of— Equivalent 
to   delivery. 

§  565.  Warehouse  receipts— Con- 
structive possession. 

§  566.  Where  storage  due  is  great- 
er than  value  of  goods. 


BAILMENTS. 

§554.  Bailee  Cannot  Deny  Bailor's  Title.  The  court  instructs 
the  jury,  that  if  they  believe,  from  the  evidence,  that  the  defendant 
borrowed  the  property  in  controversy  from  the  plaintiff  for  a  tem- 
porary use  or  purpose,  with  the  understanding  that  he  would  return 
the  property  when  demanded,  and  that  afterwards,  and  before  the 
commencement  of  this  suit,  the  plaintiff  made  such  demand,  and  that, 
upon  such  demand,  the  defendant  refused  to  deliver  up  the  posses- 
sion of  the  property,  then  the  jury  should  find  the  right  of  prop- 
erty in  the  plaintiff,  and  the  defendant  guilty  of  a  wrongful  deten- 
tion of  the  same.1 

§  555.  Hired  Horse— Degree  of  Care  Required  of  Bailee,  (a)  If 
the  jury  find  from  the  evidence  that  the  plaintiff  hired  his  mare  to 
the  defendants  for  the  purpose  of  being  used  by  them  in  pulling 
street-cars  on  and  upon  the  street  railroad  of  the  city  of  F.  W.,  the 
plaintiff  thereby  engaged  and  bound  himself  that  the  mare  was  rea- 
sonably fit  and  suitable  for  such  purposes  and  such  uses.  If,  there- 
fore, you  find  that  the  mare  so  hired  was  injured  while  in  the  use 
of  the  defendants  in  pulling  their  street-cars,  without  their  fault, 
and  through  the  nervousness  and  fretfulness  of  said  mare,  or  be- 

l_Simpson  v.  Wrenn,  50  111.   222.  bailee  actually  owned  the  property 

The     above     instruction     was     ap-  which    had    previously   been   stolen 

proved,    even    though    it    was    dis-  from  him. 
closed    by    the    evidence    that    the 

413 


414  FORMS  OF  INSTRUCTIONS.  [§556. 

cause  of  her  diseased  condition  at  the  time  the  plaintiff  hired  her 
to  the  defendants,  or  because  of  her  unfitness  to  pull  said  street- 
cars, then  you  should  find  for  the  defendants. 

(b)  Although  it  is  true  that,  by  hiring  his  mare  to  the  defend- 
ants for  such  use  on  the  street  ears,  the  plaintiff  impliedly  engaged 
that  she  was  reasonably  fit  for  that  purpose,  this  gave  the  defend- 
ants no  right  to  use  her  after  it  became  manifest  to  them  that  by 
reason  of  her  nervousness  or  fretfulness  or  diseased  condition  she  was 
not  fit  for  such  work.  They  had  no  right  to  abuse  her.  If  her  board 
devolved  upon  them,  it  was  their  duty  to  supply  her  with  plentiful 
food  and  water,  and  at  the  proper  time.  It  was  their  duty  also  not 
to  require  her  to  do  more  work  than  it  was  manifest  she  could 
perform  without  injury,  and  if,  during  such  use,  it  was  plainly  evi- 
dent to  the  defendant's  employes  that  she  was  exhausted,  overheated 
or  suffering  by  reason  of  disease,  and  her  continued  use  was  dan- 
gerous to  her  health  and  life,  it  was  their  duty  then  to  abstain  from 
further  use  of  her  without  obtaining  the  plaintiff's  consent  to  the 
same;  and  if,  without  so  doing,  they  negligently  persisted  in  such 
use,  and  by  reason  of  the  same  she  was  so  injured  that  she  died, 
the  defendants  are  liable.2 

§  556.  Trial  of  a  Horse  with  Option  of  Purchase  is  a  Bailment — 
Degree  of  Care  Required,  (a)  If  the  jury  believe  from  the  evi- 
dence in  this  case  that  the  plaintiff  gave  the  defendant  an  option 
to  purchase  the  horse  in  question  if  he  liked  it,  and  if  you  further 
believe  from  the  evidence  that  the  defendant  received  such  horse 
from  said  plaintiff  for  the  purpose  of  making  such  trial,  then  such 
transaction  constituted  a  bailment  and  not  a  sale,  and  so  imposed  on 
the  defendant  only  the  duty  of  ordinary  care  in  keeping  and  re- 
turning the  horse. 

(b)  The  court  further  instructs  the  jury,  that  if  they  believe 
from  the  evidence  that  the  defendant,  and  his  agent  or  agents, 
exercised  ordinary  care  in  the  use  of  such  horse  while  on  such  trial 
(ordinary  care  meaning  such  care  as  an  ordinarily  prudent  man 
would  give  to  his  own  horse  under  such  circumstances)  and  if  the 
death  of  the  horse  resulted,  then  the  defendant  is  not  liable  for  the 
value  of  the  horse  while  in  his  control  for  the  purpose  of  making 
such  trial.3 

§  557.  Liability  of  Bailee  for  Money  Converted  to  His  Own  Use. 
The  court  instructs  you,  that  if  you  believe  from  the  preponderance 
of  the  evidence  that  defendants  .  .  .  agreed  with  the  plaintiff 
that  they,  the  defendants,  would  jointly  settle  up   and  pay  off  the 

2 — Bass  et  al.  v.   Cantor,  123  Ind.  omission    of   the    conjunction    'and' 

444,  24  N.  E.   147.  between    the    two    gives    rise    to    a 

3— Small   v.    Roberts,    43   111.   App.  trifling-     ambiguity     which     disap- 
577    (578).     The   court   said:      "It  is  pears  when  the  words  are  all  con- 
very    clear    that    both    paragraphs  sidered." 
constitute  but  one  instruction.    The 


§558.]  BAILMENTS   AND   WAREHOUSEMEN.  415 

debts  of  the  estate  of out  of  the  proceeds  that  they  might 

receive  from  the  farm  in  question,  and  out  of  moneys,  notes  and 
personal  property  of  plaintiff,  and  if  you  further  believe  from  the 
preponderance  of  the  evidence  that  defendant  received  money,  notes 
and  personal  property  of  and  belonging  to  the  plaintiff,  for  that  pur- 
pose, and  if  you  further  believe  from  a  preponderance  of  the  evi- 
dence that  defendants  converted  any  of  said  money,  notes  and  per- 
sonal property  to  their  own  use,  and  did  not  use  and  apply  the  same 

in  settling  up  the  estate  of ,  or  in  paying  off  the  debts  of 

said  estate,  that  then  the  plaintiff  would  be  entitled  to  recover  the 
value  of  said  notes  or  property  thus  converted,  if  the  evidence  shows 
that  the  same  was  converted.4 

§  558.  Degree  of  Care  Required  in  a  Bailment  for  the  Sole  Bene- 
fit of  the  Bailor.  The  jury  are  instructed  that,  if  you  believe,  from 
a  preponderance  of  the  evidence,  that  the  defendants  held  the  bonds 
of  the  plaintiff  exclusively  for  the  benefit  of  the  plaintiff,  then  the 
only  obligation  resting  upon  them  was  to  exercise  reasonable 
and  ordinary  care  over  the  same.  What  constitutes  such  reason- 
able and  ordinary  care  is  a  question  of  fact  for  the  jury  to  deter- 
mine from  all  the  evidence  in  the  case.  It  will  vary  with  the  nature, 
value  and  situation  of  the  property.  The  person  who  holds  or  has 
the  charge  of  the  property  of  another  under  such  circumstances  is 
required  to  exercise  the  care  usually  and  generally  deemed  necessary 
in  the  community  for  the  security  of  a  similar  property  under  like 
circumstances,  but  nothing  more.  It  is  for  you  to  say  what  the  evi- 
dence is,  what  it  proves,  tends  to  prove  or  fails  to  prove,  and  the 
court  has  no  right  to,  and  must  not  be  understood  to,  intimate  any 
opinion  as  to  any  question  of  fact.  If,  from  all  the  evidence,  you 
find  and  believe  that  the  defendants  did  not  exercise  over  the  bonds 
of  the  plaintiff  reasonable  and  "ordinary  care,  but  were  guilty  of 
gross  negligence  in  their  keeping,  and  that  by  reason  thereof  the 
bonds  were  lost  to  the  plaintiff,  then  you  will  find  the  defendants 
guilty.5 

WAREHOUSEMEN. 

§  559.  Defining  Warehousemen.  I  instruct  you  that  a  warehouse- 
man is  one  who  receives  into  a  warehouse  for  storage,  goods,  in  con- 
sideration of  hire  or  money  paid  for  that  service.6 

§  560.  Equal  Duty  Towards  all  Patrons.  The  jury  are  instructed 
that  the  defendant  was  not  bound  to  single  out  plaintiff's  cotton 
and  save  it  before  all  other  cotton  in  the  warehouse  of  defendant. 
It   was  the  duty  of  the  defendant  to  use  such  diligence   and  make 

4— Ellis  v.    Petty,   51  111.   App.   636     111.    179,    35   N.    E.    810,    32   L.    R.    A. 
(639).  769,  39  Am.   St.  Rep.  172. 

5_Gray    et    al.     v.    Merriam,    148         6— Foster  v.  Pac.  C.  L.,  30  Wash. 

515,  71  Pac.   48   (49). 


416  FORMS  OF  INSTRUCTIONS.  [§  561. 

such  efforts  to  save  all  the  cotton  in  its  care  and  custody  as  would 
under  all  the  circumstances  be  reasonable,  or  as  would  have  been 
made  under  all  the  circumstances  by  men  of  ordinary  prudence.  If, 
therefore,  you  believe  from  the  evidence  that  the  defendant  com- 
pany used  ordinary  care  or  diligence  in  its  efforts  to  save  the  plain- 
tiff's cotton  from  damage  by  flood,  your  verdict  must  be  for  the 
defendant.7 

§  561.  Negligence  not  Presumed  from  Mere  Fact  of  Loss  of  Goods 
— Burden  of  Proof,  (a)  I  instruct  you  that  negligence  will  not  be 
presumed  from  the  mere  fact  of  the  loss  of  the  oats,  but  the  fact 
of  negligence  must  be  shown  by  plaintiff  by  a  fair  preponderance 
of  the  evidence  under  the  rules  and  in  accordance  with  the  instruc- 
tions that  I  have  heretofore  given  you.8 

(b)  The  burden  of  proving  any  negligence  on  the  part  of  the  de- 
fendant— that  is  to  say,  the  burden  of  proving  that  defendant  did 
not  exercise  ordinary  care  as  explained — rests  upon  the  plaintiff, 
and,  unless  the  plaintiff  has  established  by  a  preponderance  or 
greater  weight  of  evidence  that  the  defendant  was  negligent  as  ex- 
plained, your  verdict  must  be  for  the  defendant.9 

§  562.  Ordinary  Care  Required — Definition  of.  (a)  The  court 
instructs  the  jury  that  the  defendant  company  is  not  liable  to  plain- 
tiff for  any  damage  to  his  cotton  unless  caused  by  the  negligence 
of  the  defendant  company  as  explained.  The  court  further  instructs 
you  that  the  defendant  company  is  not  liable  for  any  loss  or  dam- 
age to  plaintiff's  cotton  caused  by  reason  of  the  flood  or  high  water, 
unless,  under  all  the  circumstances  shown  in  evidence,  you  find  by 
the  exercise  of  ordinary  care  the  defendant  could  have  foreseen  the 
danger  by  flood,  and  by  the  exercise  of  ordinary  care  and  dili- 
gence could  have  prevented  or  avoided  the  damage  to  plaintiff's 
cotton. 

(b)  Ordinary  care,  foresight  and  diligence  mean  such  foresight 
and  diligence  as  a  person  of  ordinary  sense  or  prudence  engaged 
in  the  same  or  similar  business  might  reasonably  be  expected  to  use 
under  the  same  or  similar  circumstances.10 

(c)  The  court  instructs  the  jury  that  if  you  believe,  from  the  evi- 
dence, that  the  plaintiff  stored  wheat  in  defendant's  mill  for  safe- 

7 — Prince   &   Co.   v.    St.   L.    C.    C.  Kaiser    v.    Latimer,    40    App.    Div. 

Co.,   112   Mo.   App.  49,  86  S.  W.   873  149,  57  N.   T.   Supp.  833,   the  princi- 

(877).  pie  of  the  case  is  very  well  assert  - 

8 — Foster  v.  Pac.  C.  L.,  30  Wash,  ed  in  the  syllabus:  "The  negligence 
515,  71  Pac.  48  (49).  "It  would  seem  of  a  warehouseman  will  be  pre- 
that  the  nature  of  the  accident  sumed  where  the  goods  were  de- 
may  raise  the  presumption  of  neg-  stroyed  by  the  collapse,  from  no 
ligence  under  some  circumstances,  external  violence,  of  the  building 
See  Holt  Ice  &  Cold  St.  Co.  v.  Ar-  in  which  he  stored  them.'  " 
thur  Jordan  Co.,  25  Ind.  App.  314,  9— Prince  &  Co.  v.  St.  L.  C.  C. 
57  N.  E.  575;  Davis  v.  Job  Printing  Co.,  112  Mo.  App.  49,  86  S.  W.  873 
Co..    70     Minn.     95,     72    N.     W.     808;  (877). 

Russell    Mfg.    Co.    v.    New    Haven  10— Prince   &  Co.   v.   St.   L.   C.   C. 

Steamboat    Co.,    50    N.    Y.    121.       In  Co.,    supra. 


§563.]  BAILMENTS   AND   WAREHOUSEMEN.  417 

keeping    (and   without   reward),   then   the   defendant   is   bound   only 
to  use  ordinary  care  in  keeping  and  caring  for  said  wheat.11 

§  563.  Duty  to  Remove  Goods  When  Flood  Threatens,  (a)  The 
court  instructs  the  jury  that  between  May  and  June  the  defendant 
company  was  a  public  warehouseman  engaged  in  the  business  of 
storing  cotton  for  hire,  and,  as  such,  it  was  the  duty  of  its  officers 
and  employes  to  exercise  such  reasonable  care  and  foresight,  and 
to  make  such  diligent  and  energetic  efforts  to  prevent  damage  or 
injury  to  the  cotton  of  plaintiff  which  was  stored  with  it,  as  men 
of  ordinary  prudence  and  foresight  would  have  exercised  in  caring 
for  their  own  property  of  the  same  kind  in  the  same  situation,  and 
under  the  same  or  similar  circumstances  and  conditions,  whether 
requested  by  plaintiff  to  do  so  or  not.  The  court  further  instructs 
you  that  if  you  find  from  the  evidence  that  on  and  after  May  the 
said  warehouse  No.  1  of  defendant  was  known  by  its  officers  to  be 
in  continually  increasing  danger  of  being  flooded  or  overflowed  by 
the  waters  of  the  Mississippi  River,  then  the  degree  of  care,  fore- 
sight, and  diligence  required  of  said  officers  and  employes  of  de- 
fendant in  protecting  said  cotton  from  said  flood,  or  in  removing  it 
to  a  place  of  safety,  increased  in  proportion  as  the  clanger  to  said 
cotton  increased;  and  if  you  believe  and  find  from  the  evidence 
that  said  officers  and  employes  of  defendant,  or  any  of  them,  failed 
at  any  time  between  May  and  June  to  exercise  such  a  degree  of  care, 
foresight,  and  diligence  in  protecting  said  cotton  from  the  said  flood, 
or  in  removing  it  to  a  place  of  safety,  as  men  of  ordinary  prudence 
and  foresight  would  have  exercised  in  protecting  their  own  property 
of  the  same  kind  in  the  same  situation  and  under  the  same  or  sim- 
ilar circumstances  and  conditions,  and  that  by  reason  of  said  failure 
plaintiff's  cotton  was  damaged,  then  your  verdict  should  be  for 
plaintiff. 

(b)  The  court  instructs  the  jury  that  though  they  may  find  from 
the  evidence  that  the  damage  to  plaintiff's  cotton  was  caused  by  the 
high  water  or  flood  mentioned  in  the  evidence,  yet  if  they  believe 
from  the  evidence  that  the  cotton  of  plaintiff  might  have  been  saved 
from  any  damage  by  the  exercise  of  ordinary  care  by  the  defendant 
or  its  employes,  then  the  defendant  is  liable  for  the  damage  done  or 
the  loss  suffered  by  the  plaintiff,  and  the  jury  are  instructed  that 
the  degree  of  care  or  effort  required  of  the  defendant  was  such  as 
could  be  reasonably  expected  of  persons  of  ordinary  common  sense 
and  prudence  engaged  in  the  same  or  similar  business  as  defendant, 
and  under  the  same  or  similar  circumstances,  as  shown  by  the 
evidence.12 

11 — Mayer  v.   Gersbacher,  207    111.  he  was  only  held  to  reasonable  dili- 

296    (303),    69   N.    E.   789.     The  court  genee  in  caring-  for  the  wheat,  and 

said:   "There   was   evidence  to   sus-  the     instruction     accurately     stated 

tain  the  conclusion  that  the  appel-  the  law." 

lee's    intestate    was    but    a    bailee  12— Prince   &    Co.    v.    St.   L,.    C.   C. 

without   reward,   and   in  such  case  Co.,    supra.       For   further   instruc- 


418  FORMS  OP  INSTRUCTIONS.  [§  564. 

§  564.  Warehouse  Receipts,  Assignable — Tender  of — Equivalent  to 
Delivery-  The  jury  are  instructed  that  by  the  laws  of  this  State, 
warehouse  receipts  are  assignable  by  indorsement  and  the  delivery 
of  a  receipt  properly  indorsed  is  equivalent  to  a  delivery  of  the  grain 
called  for  by  the  receipt  and  a  tender  or  offer  of  a  warehouse  re- 
ceipt properly  indorsed  is  equivalent  to  a  tender  of  the  grain  called 
for  by  the  receipt.13 

§  565.  Warehouse  Receipts — Constructive  Possession.  If  the  jury 
believe  that  the  warehouse  receipts  were  issued  by  the  warehouse- 
man to  the  sellers,  and  by  the  sellers  delivered  to  the  bank  upon  the 
payment  of  the  checks  of  D.  &  Co.  for  the  purchase  money  of  the 
cotton,  and  that  neither  the  receipts  nor  the  cotton  had  ever 
been  in  the  possession  of  D.  &  Co.,  but  were  held  by  the  bank  to  se- 
cure the  payment  of  the  purchase  money  advanced  by  the  bank  to 
buy  the  cotton  in  controversy,  and  that  said  purchase  money  had  not 
been  paid  to  the  bank,  then  they  should  find  for  the  claimant.14 

§  566.  Where  Storage  Due  is  Greater  Than  Value  of  Goods.  The 
court  instructs  the  jury  that  if  you  believe,  from  the  evidence,  that 
the  balance  of  the  storage  due  was  more  than  the  value  of  the 
goods  at  the  time  of  the  sale,  then  the  jury  should  find  for  the  de- 
fendant.15 

tions  on  this  subject,   see  chapters  The  cotton  or  the  receipt  was  at  no 

on    Negligence,  time    in    the    possession    of   D.      It 

13 — Gregory  v.  Wendall,  40  Mich,  (the    cotton)    was    not    acquired    or 

432;    Davis   v.    Russell,    52   Cal.    611;  used  by  him  in  his  business.     Durr 

Van  Zile  on  Bailments,  2d  Ed.,  145.  v.     Hervey,     44    Ark.     301,    51    Am. 

14 — Longino    v.     Delta     Bank,     75  Rep.    594;    Benj.    Sales,    §  174;    Me- 

Miss.   407,   24   So.    901.      "The   cotton  chem   Sales,    §  1507." 
was   at   no  time  in   the  possession,         15 — Gerold  v.  Guttle,  106  App.  630 

actual    or    constructive,    of    D.      It  (634).      The    court    said:      "Even    if 

was  in  the  actual  possession  of  the  it  should  be  conceded  that  the  at- 

owner    until    delivered    by    him    to  tempted   sale  of  the   goods   by  ap- 

the  compress  and  storage  company,  pellants    to    themselves    amounted 

and     thereafter    in    its    possession,  to  a  conversion  of  property  (which 

The   receipt   gave   the   constructive  we  have  carefully  avoided  holding) 

possession  to  the  owner  until  deliv-  the  refusal  of  the  court  to  give  the 

ered  by  the  owner  to  the  bank,  and  instruction     was     error    for    which 

thenceforward  it  was  in  the  bank,  judgment  should  be  reversed." 

For  instructions  on  liens  by  warehousemen,  see  chapter  on  Mortga- 
ges and  piens. 


CHAPTER  XXXIV. 
BANKS  AND  BANKING. 


See  Erroneous  Instructions,  same  chapter  head,   Vol.    III. 


§  567. 
§  568. 
§  561). 

§  570. 

§571. 

§  572. 


Deposit  in  bank  to  credit 
of  another — Return  to  de- 
positor. 

Receipt  of  deposit  knowing 
it  to  be  the  money  of  third 
person. 


Appropriation 
ance    due    a 

payment    of 
to  the  bank. 

Appropriation   of  money 
ceived      illegally      and 
forgery      to      payment 
other  sums  embezzled. 

Authority  of  cashier  may  be 
inferred  by  acquiescence  in 
his  acts  for  long  time. 

Repudiation  of  agreement — 
Diligence. 


of  a  bal- 
depositor  to 
a,   note   owing 


re- 
by 
of 


§  573.  Deposit  of  bonds  of  exag- 
gerated value  among  the 
bank's  assets — Intent  to  de- 
fraud   defined. 

§  574.  Failure  of  the  bank  as  prima 
facie  evidence  of  knowl- 
edge on  part  of  the  de- 
fendants. 

§  575.  A  series  of  instructions  on 
the  question  of  the  owner- 
ship of  a  check  placed  on 
deposit  for  collection. 

§  576.  Series  on  wrongful  reception 
of  deposits  by  bank  in  fail- 
ing circumstances — knowl- 
edge of  such  circumstances 
b'y  officer  of  bank. 


§  567.  Deposit  in  Bank  to  Credit  of  Another — Return  to  Depositor. 
The  court  instructs  the  jury  that,  when  one  person  deposits  money 
in  a  bank  to  the  credit  of  another,  the  bank  has  no  right  to  return 
it  to  the  person  who  made  the  deposit,  without  the  consent  of  such 
other.1 

§  568.  Receipt  of  Deposit  Knowing  it  to  be  the  Money  of  Third 
Person.  The  jury  are  instructed  that,  if,  from  a  preponderance  of 
evidence  whether  direct  or  circumstantial,  they  believe  the  defendants 
at  the  time  they  received  the  money  mentioned  in  the  evidence  from 
V.  B.  had  notice  or  knowledge  that  such  money  was  not  the  money  of 
said  V.  B.,  but  was  the  money  of  the  plaintiff  bank,  then  such  notice 
or  knowledge  would  make  the  receipt  of  said  money  an  act  of  actual 
bad  faith  by  the  defendants.2 

§  569.  Appropriation  of  a  Balance  Due  a  Depositor  to  Payment  of 
a  Note  Owing  to  the  Bank.  The  jury  are  instructed,  that  in  order 
for  the  holder  of  a  check  to  maintain  an  action  thereon  against  the 
bank  on   which  it  is   drawn,  he  must  show   that  when  it  was  pre- 


1— Drumm-Flato  Com.  Co.  v. 
Gerlach  Bank,  107  Mo.  426,  81  S. 
W.    503. 

2— Merchants'  Loan  &  Trust  Co. 
v.  Damson.  90  111.  App.  18  (23).  The 
court  said:     "This  was  but  an  ab- 


stract declaration  of  law,  and,  as 
such,  was  no  doubt  correct.  It 
was.  perhaps,  sufficiently  timely. 
Citin.e;  Yore  v.  Transfer  Co.,  147 
Mo.  687,  49  S.  W.  855." 


419 


420  FORMS  OF  INSTRUCTIONS.  [§570. 

sented  for  payment  the  bank  owed  the  drawer  a  sufficient  sum  to 
pay  it;  and  that,  therefore,  in  this  case,  if  they  find  from  the  evi- 
dence that  on  June  2,  ,  the  drawer  had  a  credit  balance  in  its 

account  as  a  depositor  with  the  defendant  of ,  or  thereabouts, 

but  that  the  defendant  on  that  day  or  thereafter,  prior  to  the  pre- 
sentation of  the  checks  in  suit  to  the  defendant  for  payment,  ap}3ro- 
priated  the  said  balance  as  a  payment  on  account  of  a  note  of  said 
drawer  to  the  defendant,  payable  on  demand,  in  consequence  of 
which  appropriation  there  were  no  funds  of  said  drawer  in  the 
hands  of  the  defendant  for  payment  of  checks  when  said  check 
was  presented  for  payment,  then  the  law  is  that  the  defendant  had 
the  right  to  make  such  appropriation,  and  moreover  had  the  right 
to  make  it  without  first  demanding  payment  of  the  note,  and  the 
verdict  should  be  for  the  defendant,  and  the  form  of  the  verdict 
should  be,  "We,  the  jury,  find  the  issues  for  the  defendant."3 

§  570.  Appropriation  of  Money  Received  Illegally  and  by  Forgery 
to  Payment  of  Other  Sums  Embezzled.  If  the  jury  believe,  from  the 
evidence,  that  X,  claiming  to  act  as  the  agent  of  defendant,  obtained 
money  from  the  plaintiffs  upon  the  sale  or  pledge  of  the  shares  of 
stock  in  the  Y  company  mentioned  in  the  evidence  with  endorse- 
ments of  said  defendant  upon  their  back,  which  endorsements  had 
been  previously  forged  by  said  X,  and  that  said  X  used  portions 
of  such  moneys  so  obtained  to  replace  moneys  previously  embezzled 
by  him  from  said  defendant,  and  the  balance  of  such  moneys  or 
some  portion  thereof  for  the  use  and  benefit  of  said  Y  in  his  legiti- 
mate business,  then  the  jury  are  instructed  that  said  defendant  is 
liable  to  said  plaintiffs  in  this  action  for  so  much  of  said  moneys  as 
were  used  by  said  X  to  replace  money  previously  embezzled  by  him 
from  said  defendants,  also  for  so  much  of  the  balance  thereof  as  was 
used  by  said  X  for  the  use  and  benefit  of  said  defendant  in  his 
legitimate  business.4 

§  571.  Authority  of  Cashier  May  Be  Inferred  by  Acquiescence  in 
His  Acts  for  Long  Time.    The  authority  of  a  cashier  may  be  inferred 

3 — First  Nat'l  B.  of  Chi.  v.  Kel-  portion  of  the  money  collected 
say,  54  111.  App.  660.  "It  is  to  be  upon  the  checks  given  by  appel- 
assumed  that  acts  done  in  the  ordi-  lants  was  paid  and  used  for  ap- 
nary  course  of  business  in  a  bank,  pellee's  benefit  and  to  pay  his 
by  an  officer  of  a  bank,  are  within  debts.  If  it  be  true  that  a  por- 
his  authority  and  therefore  what  tion  of  that  money  was  so  used, 
thr>  vice  president  commenced  on  then  appellants  were  entitled  to  re- 
the  2d,  was  then  an  appropriation  cover  the  same  from  appellee,  be- 
of  the  credit  balance,  as  it  might  cause  it  was  so  used,  without  re- 
turn out  to  be  in  fact,  to  the  pay-  gard  to  the  question  of  whether  it 
ment   of  the  note."  came    rightfully   into    the    bank    to 

4— Slaughter  v    Fay,   80   Til.   App.  the     credit     of    appellee.      See    the 

105    (122).       The    court    said,    in    re-  O'Beirne    case,    121    111.    25,    7    N.  _E. 

versing    above    case    for   refusal   to  85.     The  jury  should  have  been  in- 

give   this   instruction:      "There  was  structed      upon      this      point,      and 

testimony     tending    to     show,     and  should   have  been  permitted  to  de- 

which  it  is  contended  by  appellants  termine  what  the  facts  are  in  that 

conclusively     established,      that     a  regard." 


§  572.]  BANKS  AND   BANKING.  421 

from  the  general  manner  in  which,  for  a  period  sufficiently  long-  to 
establish  a  settled  course  of  business,  he  has  been  allowed,  without 
interference,  to  conduct  the  affairs  of  the  bank.  It  may  be  implied 
from  the  conduct  or  acquiescence. of  a  corporation  as  represented  by 
its  board  of  directors.  When  during  a  series  of  years  and  in  numer- 
ous business  transactions  he  has  been  permitted  without  objection, 
and  in  his  official  capacity,  to  pursue  a  particular  course  of  con- 
duct, it  ma}'  be  presumed,  as  between  his  bank  and  those  who  in 
good  faith  deal  with  it,  upon  the  basis  of  his  authority  to  repre- 
sent the  corporation,  that  he  has  acted  in  conformity  with  instruc- 
tions received  from  those  who  have  the  right  to  control  its  operation. 
His  authority  is  to  be  implied  from  the  acquiescence  of  the  directors 
in  permitting  an  officer,  during  a  series  of  years,  to  pursue  a  par- 
ticular course  of  conduct,  and  this  acquiescence  is  derived  from  their 
actual  knowledge,  or  from  what  should  have  been  their  knowledge 
of  the  conduct,  of  the  course  of  business  of  the  officers.5 

§  572.  Repudiation  of  Agreement — Diligence.  If  the  jury  believe 
that  the  defendant  went  within  a  reasonable  time,  and  on  his  first 
opportunity,  he  saw  the  vice-president  of  the  bank,  and  told  him 
that  this  slip  Avas  not  the  agreement  the  bank  made  with  him,  and 
told  him  the  transaction,  then  this  was  a  repudiation  of  the  paper, 
and  the  defendant's  keeping  the  paper  after  this  would  make  no 
difference.6 

CRIMINAL. 

§  573.  Fraud  Inferred — Deposit  of  Bonds  of  Exaggerated  Value 
Among  the  Bank's  Assets — Intent  to  Defraud  Defined,  (a)  The 
rule  of  law  in  regard  to  intent  is  that  intent  to  defraud  is  to  be  in- 
ferred from  willfully  and  knowingly  doing  that  which  is  illegal,  and 
which,  in  its  necessary  consequences  and  results,  must  injure  an- 
other. The  intent  may  be  presumed  from  the  doing  of  the  wrongful 
or  fraudulent  or  illegal  act,  and  in  this  case,  if  you  find  that  the 
defendant  placed  that  which  was  worthless  or  of  little  value  among 
the  assets  of  the  bank  at  a  greatly  exaggerated  value  and  had  that 
exaggerated  value  placed  to  his  own  personal  account  upon  the  books 
of  the  bank,  from  such  finding  of  fact  you  must  necessarily  infer 
that  the  intent  with  which  he  did  that  act  Avas  to  injure  or  defraud 
the  bank,  but  this  inference  or  presumption  is  not  necessarily  con- 
clusive. There  may  be  other  evidence  which  may  satisfy  the  jury 
that  there  Avas  no  such  intent,  but  such   an  inference  or  presump- 

5 — Rankin    \r.    Chase    Nat'l    Bank,  objectionable    as    referring    to    the 

188  U.  S.  557  (563),  23  S.  Ct.  372.  jury  the  question  of  what  was  'rea- 

6 — Bank  of  Guntersville  a-.  Webb,  sonable  time,'   but,   with  the  added 

108     Ala.     132,     19     So.     14     (15-17).  words,    'and    on   his  first  opportun- 

"Without    the    words    'on    his    first  ity,'    that   \'ice  is   taken   away,   and 

opportunity,'  this  charge,  given  for  altogether,  the  charge  is  free  from 

the    defendants,    might    haA'e    been  error." 


422  FORMS   OP   INSTRUCTIONS.  [§574. 

tion  throws  the  burden  of  proof  upon  the  defendant,  and  the  evi- 
dence upon  him  in  rebuttal  to  do  away  with  that  presumption  of 
guilty  intent  must  be  sufficiently  strong  to  satisfy  you  beyond  a  rea- 
sonable doubt  that  there  was  no  such  guilty  intent  in  such  trans- 
action. 

(b)  The  court  instructs  the  jury  that  there  is  testimony  to  show 
that  the  defendant  at  the  time  he  was  thus  depositing  the  bonds, 
gave  a  guarantee  that  the  bonds  were  good,  and  that  he  would  guar- 
antee the  payment  of  principal  and  interest.  You  can  take  that  into 
consideration,  and  such  guarantee  can  only  be  considered  as  determin- 
ing the  value  of  those  bonds  at  that  time  and  the  intent  of  the  party 
in  such  transaction.  *  *  *  As  I  say  again,  the  only  difficult  ques- 
tion for  you  to  determine  is  the  intent  of  the  accused.  The  ques- 
tion of  the  intent  is  to  be  determined  by  the  facts  and  circumstances 
and  the  surroundings  at  the  time  of  the  transaction;  but  the  law 
presumes  that  every  party  who  in  any  way  attempts  anything  by  any 
guarantee  or  anything  of  that  kind  which  is  dependent  upon  future 
successful  operations,  takes  the  risk  of  the  success,  and  that  if  a 
person  commits  an  offense  with  the  intent  of  temporarily  injuring 
or  defrauding  another  party  or  a  banking  institution,  although  it 
may  be  his  intent  at  the  time  to  finally  recompense  or  prevent  any 
injury  resulting  from  such  act,  he  is  not  protected  by  such  intent  to 
finally  correct  the  temporary  wrong  deed;  or,  in  this  case,  if  you 
are  satisfied  that  at  the  time  he  placed  those  bonds  there  he  knew 
that  they  were  worthless  or  of  a  very  small  value  and  had  a  large 
value  charged  to  the  bank  and  placed  to  his  account;  if  he  did  that 
with  the  intent,  for  the  time  being,  to  injure  the  bank  and  take  a 
wrongful  advantage  of  the  credit  of  the  bank,  no  matter  if  at  that 
time  he  had  an  intent  to  in  the  future  remedy  any  injury  that  might 
come  to  the  bank,  it  would  not  protect  him  in  your  finding  or  from 
your  finding,  what  the  intent  was  at  that  time.7 

§  574.  Failure  of  the  Bank  as  Prima  Facie  Evidence  of  Knowl- 
edge on  Part  of  the  Defendants — Burden  of  Proof.  The  court  in- 
structs the  jury  that  although  by  the  statute  the  failure  of  the  bank 
is  made  prima  facie  evidence  of  knowledge  on  the  part  of  the  de- 
fendant that  the  same  was  in  failing  circumstances,  yet  the  burden 
of  proving  the  state's  case  is  not  really  changed.  The  law  enables 
the  state  to  make  a  prima  facie  case  by  proof  of  the  assenting  to 
the  creation  of  said  indebtedness  and  the  reception  of  the  money  into 
the  bank;  but  the  defendant  can  show  the  condition  of  the  bank  and 
the  circumstances  attending  the  failure,  and  any  facts  tending  to 
exonerate  him  from  criminal  liability,  and  then  on  the  whole  case, 
the  burden  still  rests  on  the  state  to  establish  the  defendant's  guilt 
beyond  a  reasonable  doubt.  The  presumption  of  innocence  with  which 
the  defendant  is  clothed,  and  never  shifts,  rests  with  him  through- 

7— Agnew    v.    United     States,    165    U.   S.  36  (49-56),  17  S.   Ct.  235. 


§  575.]  BANKS   AND   BANKING.  423 

out   the   ease,   notwithstanding  a   prima  facie   case   may   have   been 
made  out  by  the  state.8 

§  575.  Series  of  Instructions  on  the  Question  Whether  or  Not 
a  Check  Was  Deposited  for  Collection,  (a)  If  it  was  the  intent 
and  understanding  of  the  W.  bank  and  the  accused  at  the  time  the 
latter  deposited  the  check  in  question  with  the  former,  that  the 
bank  should  forward  the  same  in  the  usual  course  by  and  through 
its  correspondents  in  St.  L.  for  payment,  and  that  in  so  doing  it 
and  its  correspondents  should  act  only  as  the  agents  of  the  accused 
for  that  purpose,  then  the  final  payment  by  the  C.  company  at  St. 
L.  of  the  check  to  the  correspondents  on  the  W.  bank,  would  amount 
in  law  to  a  payment  in  St.  L.  as  charged  in  the  sixth  count,  of  the 
amount  of  the  check  to  the  accused.  If  on  the  contrary  it  was  the 
understanding  and  intent  of  the  W.  bank  and  the  accused  at  the 
time  the  latter  deposited  the  check  in  question  with  the  former  that 
the  bank  should  become  the  purchaser  of  the  check,  and  should  there- 
after be  the  absolute  owner  thereof,  and  not  act  as  just  indicated, 
as  the  agent  of  the  accused  in  the  collection  of  the  check,  then  the 
payment  at  St.  L.  by  the  C.  company  would  amount  in  law  to  a 
payment  to  the  W.  bank  and  not  to  the  accused.  In  the  latter  event 
no  crime  would  have  been  committed  by  the  accused  in  this  district, 
by  reason  of  the  check  referred  to  in  the  sixth  count  of  the  in- 
dictment. 

(b)  In  order  to  find  the  accused  guilty  on  the  sixth  count,  you 
must  find  from  the  evidence,  by  the  same  measure  of  proof  as  is 
required  in  all  criminal  cases,  that  the  check  referred  to  in  the  sixth 
count  was  deposited  by  the  accused  in  the  W.  bank  for  collection, 
and  that  the  bank  was  to  act  in  collecting  the  same,  as  the  agent  of 
the  accused,  and  not  as  the  owner  of  the  check  in  question. 

(c)  In  determining  this  issue,  you  ai'e  at  liberty  to  and  should 
consider  all  the  evidence  adduced ;  the  actual  transaction  as  it  oc- 
curred at  the  R.  bank  where  the  check  was  deposited,  the  check  it- 
self and  all  its  endorsements,  the  rights  and  privileges  which  were 
immediately  accorded  the  accused  upon  making  the  deposit,  the 
actual  conduct  and  purpose  of  the  R.  bank  in  forwarding  the  check 
to  St.  L.  for  payment,  the  customary  conduct  and  usage  of  that 
bank,  and  all  banks  in  W.  at  the  time  so  far  as  shown  by  the 
proof.  And  if  from  all  these  facts  and  all  other  facts  disclosed  by 
the  proof  you  find  that  the  check  in  question  was  in  fact  deposited  by 

8— State  v.  Darragh,  152  Mo.  522,  statute  governing  the  case  as  ex- 
54  S.  W.  226  (229).  In  comment  the  pounded  in  State  v.  Buck,  120  Mo. 
court  said:  "We  think  the  court  492,  25  S.  W.  573,  in  which  the  con- 
committed  error  in  refusing  to  give  stitutionality  of  the  statute  was 
above  instruction.  This  instruction  questioned  on  account  of  the  new 
is  a  clear  and  concise  presentation  principle  of  evidence  which  it  in- 
of  the  principle  by  which  the  jury  troduced  and  which  is  not  common 
should  have  been  governed  in  ar-  to  ordinary  criminal  cases." 
riving   at   their   verdict    under   the 


424  FORMS   OF   INSTRUCTIONS.  [§  576. 

the  accused,  with  the  intent  and  knowledge  on  his  part,  as  well  as  on 
the  part  of  the  bank  itself,  that  it  should  be  forwarded  to  St.  L.  for 
collection  for  account  of  the  accused,  the  bank  and  its  correspond- 
ents acting  as  agents  for  the  accused  to  make  such  collection,  you 
should  find  that  when  the  same  was  actually  paid  to  the  last  indorser 
on  the  check  at  St.  L.  by  the  trust  company  upon  which  it  was 
drawn,  it  was  in  contemplation  of  law  paid  to  the  accused  himself, 
(d)  If  on  the  contrary  you  find  from  the  evidence  that  the  ac- 
cused and  the  R.  bank,  at  the  time  of  the  deposit  of  the  check  in 
question,  understood  and  intended  that  the  bank  should  become  the 
purchaser  of  the  check  and  be  its  absolute  owner,  then  the  subse- 
quent forwarding  of  it  to  St.  L  for  payment  was  the  act  of  the  bank 
itself,  and  the  final  payment  of  the  check  by  the  trust  company  at 
St.  L.  was  a  payment  not  to  the  accused,  but  to  the  bank,  and  if  such 
is  the  fact  your  verdict  on  the  sixth  count  must  be  not  guilty.9 

§  576.  Series  on  Wrongfully  Accepting  Deposits  by  Bank  in  Fail- 
ing Circumstances — Knowledge  of  Such  Circumstances  by  Officer  of 
Bank,  (a)  The  court  instructs  the  jury  that  these  instructions 
contain  the  law  of  this  case.  It  is  the  duty  of  the  jury  to  apply  the 
proven  facts  of  the  case  to  the  law  here  given,  and  find  their  ver- 
dict accordingly. 

(b)  The  court  instructs  the  jury  that  if  you  shall  believe  from  the 
evidence  that  the  defendant,  at  the  county  of  Jackson  and  state  of 

Missouri,  at  any  time  within  three  years  next  before ,  was  the 

president  of  the  ,  and  that  the  same  was  a  corporation, 

and  doing  business  as  a  banking  institution  in  said  county  and 
state,  did  then  and  there  unlawfully  and  feloniously  assent  to  the 
taking  and  receiving  on  deposit  in  said  banking  institution  the  money 

of ■  to  the  amount  of  dollars  or  more,  and  that  said 

banking  institution  was  then  and  there  in  failing  circumstances, 
and  that  defendant  was  then  and  there  the  president  of  said  banking 
institution,  doing  business  as  such,  and  that  the  defendant  had 
knowledge  at  the  time  that  such  deposit  was  received  that  said  bank- 
ing institution  was  in  failing  circumstances,  you  will  find  the  de- 
fendant guilty,  and  assess  the  punishment  by  imprisonment  in  the 
penitentiary  for  any  time  not  less  than  two  years  and  not  more 
than  five  years.  "Feloniously"  as  used  in  these  instructions  means 
wickedly  and  against  the  admonition  of  the  law;  unlawfully. 

(c)  If  the  jury  believe  from  the  evidence  that  on  the 

witness,  ,  did  deposit  in  the Bank,  a  banking 

institution  doing  business  in  the  state  of  Missouri  in  the  county  of 

Jackson,    state    aforesaid,   dollars    or    any   part    thereof 

of  the   value   of dollars   or  more,  lawful   money  of  the 

United  States,  of  the  money  and  property  of  the  witness — and  shall 

9— Burton    v.    United    States,    196    U.   S.   283   (300),  25  S.   Ct.  243. 


§576.]  BANKS   AND   BANKING.  425 

further  believe  from  the  evidence  that  the  said  deposit  was  not 
taken  and  received  by  the  defendant  himself,  but  was  taken  and 
received  by  some  other  person,  but  that  such  other  person  was  then 

and  there  in  the  employ  of  the  said Bank,  and  acting  under 

the  direction  and  control  of  the  defendant  in  said  employment,  and 
that  such  other  person  had  general  power  and  authority  from  the  de- 
fendant to  receive  deposits  of  money  in  to  said  bank,  and  that  said 
bank  was  then  and  there  in  failing  circumstances,  and  the  defendant 
had  knowledge  that  said  bank  was  then  and  there  in  failing  cir- 
cumstances, they  will  find  the  defendant  guilty  as  charged. 

(d)  The  court  instructs  the  jury  that  a  banking  institution  is  in 
failing  circumstances  when  it  is  unable  to  meet  the  demands  of  its 
depositors  in  the  usual  and  ordinary  course  of  business,  and  this  is 
true  even  though  you  shall  believe  that  there  was  at  the  time  a 
stringency  in  the  money  market. 

(e)  The  court  instructs  the  jury  that  the  failure  of  the  banking 
institution  in  question  is  prima  facie  evidence  of  knowledge  on  the 
part   of  its   president   that   the   same   was   in   failing   circumstances 

.    The  court  instructs  the  jury  that  prima  facie  evidence  is 

such  that  it  raises  such  a  degree  of  probability  in  its  favor  that  it 
must  prevail  unless  it  be  rebutted  or  the  contrary  proved. 

(f)  The  jury  are  instructed  that  in  considering  the  condition  of 

the  bank  on  the  ,  you  will   not   take   into   account    the 

dollars  of  capital  stock  as  a  liability.  The  court  in- 
structs the  jury  that  the  indictment  of  itself,  is  no  evidence  of 
guilt. 

(g)  The  court  instructs  the  jury  that  in  determining  the  condi- 
tion  of   the   Bank    on ,    you   should    consider 

the  reasonable  market  value  of  the  assets  of  the  bank  on  hand  as 
compared  to  its  liabilities  on  that  day.  All  consideration  of  the  con- 
dition of  the  bank  is  confined  to  the  — ,  but  you  may  con- 
sider any  evidence  that  may  be  before  you  showing  its  condition  im- 
mediately before  that  day,  if  there  is  any  such,  to  aid  you  in  deter- 
mining its  condition  on  that  day. 

(h)  In  determining  the  guilt  or  innocence  of  the  defendant,  you 
may  take  into  consideration  all  the  facts  and  circumstances  before 
you. 

(i)  The  court  instructs  the  jury  that  it  is  not,  of  itself,  a  crime 
for  the  pi'esident  of  a  bank  to  borrow  money  from  the  bank  of  which 
he  is  president;  and  you  can  consider  the  fact  that  the  defendant 
borrowed  money  from  the  bank  in  question,  if  you  find  he  was  presi- 
dent of  the  bank,  and  did  borrow  money  from  the  bank  in  determin- 
ing  the   condition   of   the   bank,   the   ,    and   for   no   other 

purpose. 

(j)  If  3^01;  believe  that  the  money  was  deposited  in  the  name  of 
and  ,  if  you  find  it  was  so  deposited,  and  that 


426  FORMS   OF   INSTRUCTIONS.  [§576. 

C.  V.  had  possession  and  care  of  the  same,  then,  for  the  purpose  of 
this  case,  said  money  was  the  money  of  C.  V. 

(k)     In  determining  the  question  as  to  the  condition  of  the  bank 

on  the  ,  you  will  consider  the  assets  and  their  reasonable 

market  value  on  that  day,  and  without  any  reference  to  any  indorse- 
ment of  any  of  the  notes  made  after  the  . 

(1)  The  court  instructs  the  jury  that  it  is  no  offense  for  an  officer 
of  a  bank  to  assent  to  the  receipt  of  a  deposit  by  such  bank  when 
the  same  is  in  failing  circumstances,  if  at  the  time  of  receiving  such 
deposit  the  officer  did  not  at  the  time  know  it  was  in  failing  circum- 
stances;  but   in   taking  into   consideration   the   question   whether  or 

not  the  bank  in  question  was  in  failing  circumstances  on — — — , 

and  as  to  whether  or  not  the  defendant  had  knowledge  on  that  day 
of  its  condition,  you  may  consider  all  the  facts  and  circumstances 
in  evidence  before  you. 

(m)  The  court  instructs  the  jury  that  before  they  can  convict 
the  defendant  they  must  be  satisfied  of  his  guilt  beyond  a  reasonable 
doubt.  Such  doubt  to  authorize  an  acquittal  upon  reasonable  doubt 
alone,  must  be  a  substantial  doubt  of  the  defendant's  guilt  with  a 
view  to  all  the  evidence  in  the  case,  and  not  a  mere  possibility  of 
the  defendant's  innocence. 

(n)  The  court  instructs  the  jury  that  the  law  presumes  the  in- 
nocence, and  not  the  guilt  of  the  defendant;  and  this  presumption 
of  innocence  attends  the  defendant  throughout  the  trial,  and  at  the 
end  entitles  the  defendant  to  an  acquittal,  unless  the  evidence  in  the 
case  when  taken  as  a  whole,  satisfies  you  of  defendant's  guilt  be- 
yond a  reasonable  doubt  as  defined  in  these  instructions. 

(o)  The  court  instructs  the  jury  that  the  defendant  is  a  com- 
petent witness  in  this  case,  and  you  must  consider  his  testimony  in 
arriving  at  your  verdict;  but  in  determining  what  weight  and 
credibility  you  will  give  to  his  testimony  in  making  up  your  ver- 
dict, you  may  take  into  consideration,  as  affecting  his  credibility,  his 
interest  in  the  result  of  the  case,  and  that  he  is  the  accused  party 
on  trial,  testifying  in  his  own  behalf. 

(p)  If  verbal  statements  of  the  defendant  have  been  proven  in 
the  case,  you  may  take  them  into  consideration  with  all  the  other 
facts  and  circumstances  proven.  What  the  proof  may  show  you,  if 
anything,  that  the  defendant  has  said  against  himself,  the  law  pre- 
sumes to  be  true,  because  against  himself;  but  anything  you  may 
believe  from  the  evidence  that  defendant  said  in  his  own  behalf,  you 
are  not  obliged  to  believe,  but  you  may  treat  the  same  as  true  or 
false,  just  as  you  believe  it  true  or  false,  when  considered  with  a 
view  to  all  the  other  facts  and  circumstances  in  the  case. 

(q)  The  jury  are  the  sole  judges  of  the  credibility  of  the  witnesses 
and  the  weight  and  value  to  be  given  to  their  testimony.  In  deter- 
mining as  to  the  credit  you  will  give  to  a  witness,  and  the  weight 


§576.]  BANKS   AND   BANKING.  427 

and  value  you  will  attach  to  a  witness's  testimony,  you  should  take 
into  consideration  the  conduct  of  the  witness  upon  the  stand;  the 
interest  of  the  witness,  if  any,  in  the  result  of  the  trial;  the  motives 
of  the  witness  in  testifying;  the  witness's  relation  to,  or  feeling  for 
or  against  the  defendant  or  the  alleged  injured  party;  the  probabil- 
ity or  improbability  of  the  witness's  statements;  the  opportunity  the 
witness  had  to  observe  and  to  be  informed  as  to  matters  respecting 
which  such  witness  gives  testimony;  and  the  inclination  of  witness  to 
speak  truthfully  or  otherwise  as  to  matters  within  the  knowledge  of 
such  witness.  All  these  matters  being  taken  into  account,  with  all 
the  other  facts  and  circumstances  given  in  evidence,  it  is  your  prov- 
ince to  give  to  each  witness  such  credit,  and  the  testimony  of  each 
witness  such  value  and  weight  as  you  deem  proper. 

(r)  In  determining  as  to  the  guilt  or  innocence  of  the  defendant 
you  should  take  into  account  the  testimony  in  relation  to  his  char- 
acter for  honesty,  integrity  and  veracity,  and  you  should  give  to 
such  testimony  such  weight  as  you  deem  proper;  but  if  from  all 
the  evidence  before  you,  you  ai*e  satisfied  beyond  reasonable  doubt, 
as  defined  in  these  instructions,  that  the  defendant  is  guilty,  then 
his  previous  good  character,  if  shown,  cannot  excuse,  justify,  palliate 
or  mitigate  the  offense,  and  you  cannot  acquit  him  merely  because 
you  may  believe  he  has  been  a  person  of  good  repute. 

(s)  The  court  instructs  the  jury  that  in  determining  the  ques- 
tion of  whether  or  not  the  Bank  was  in  failing  circum- 
stances on ,  you  should  consider  the  liabilities  of  the  bank, 

and  the  reasonable  market  value  of  the  assets  of  the  bank  on  that 
day,  regardless  of  any  change,  if  any,  or  additional  security,  if  any 
which  may  have  been  given,  of  any,  since  that  day.  If  you  shall 
find  from  the  evidence  that  any  part  of  the  assets  of  said  bank  have 
been  proven  to  have  a  market  value,  then  you  should  give  such  as- 
sets such  intrinsic  value  as  may  have  been  shown  by  the  evidence  in 
the  case,  and  if  there  be  any  of  said  assets,  to  wit,  stocks,  bonds  or 
negotiable  paper,  that  have  not,  in  your  opinion,  from  the  evidence 
been  shown  to  have  a  market  value  nor  an  intrinsic  value,  then  such 
assets  are  presumed  to  be  worth  their  face  value.  This  will  have 
no  application  to  such  assets  as  may  have  been  shown  by  the  evi- 
dence to  have  no  value  at  all,  provided  there  is  such  evidence  as  to 
any  of  the  assets  of  said  bank. 

(t)  The  court  instructs  the  jury  that  under  of  the  by- 
laws of  the  —  Bank  and  under  the  laws  of  the  state  gov- 
erning savings  banks,  the  board  of  directors  of  the  Bank 

had  a  right  to  require  90  days'  notice  of  the  withdrawal  of  time 
deposits.10 

10— State  v.  Darragh,  152  Mo.  522,  "The    instruction    No.    5    (b)    is    a 

54    S.    "W.   226    (227).      In    approving  literal     transcript     of     the     seven- 

and    commenting-   upon   this    series  teenth  instruction  given  in  the  Sat- 

of     instructions     the     court     said:  tley   Case,   and   was   expressly   ap- 


428 


FORMS   OF  INSTRUCTIONS. 


[§576. 


proved  in  that  case,  the  court  say- 
ing: 'This  instruction  is  a  rescript 
of  the  statute,  and  was  expressly 
approved  after  an  exhaustive  ex- 
amination and  discussion  in  State 
v.  Buck,  120  Mo.  479,  25  S.  W.  573.' 
Instruction  No.  16  (p)  is  the  same 
as  instruction  numbered  7  in  the 
Sattley  Case,  in  which  this  court 
in  that  case  said:  'Instruction  No. 
7  has  been  approved  so  often  in 
this  state  that  we  must  decline  to 
enter  upon  its  defense.  State  v. 
Carlisle,  57  Mo.  102;  State  v. 
Brown,  104  Mo.  365,  16  S.  W.  406; 
State  v.  "Wisdom,  119  Mo.  539.  24  S. 
W.  1047.  By  this  Instruction  the 
jury  are  required  to  take  all  the 
statements  of  the  defendant, 
whether  for  or  against  himself,  into 
consideration  with  all  the  other 
facts  and  circumstances  proven.' 
And  while  the  criticism  to  which 
the  last  paragraph  is  subjected  by 
the  learned  counsel  for  the  defend- 
ant   in    the    present    case    may  be 


well  enough  from  the  standpoint  of 
the  critical  lawyer,  yet  when  the 
instruction  as  a  whole  is  looked  at 
from  the  standpoint  of  the  prac- 
tical juror,  for  whose  mind  it  is  in- 
tended, and  which  has  not  been 
trained  to  the  nice  distinctions  be- 
tween disputable  and  indisputable 
presumptions  it  loses  all  its  force. 
This  instruction  has  proven  to  be 
a  good  workable  instruction  for 
years,  is  not  calculated  to 
mislead  a  jury,  and  continues  to 
command  our  approval.  The  same 
may  be  said  of  instruction  No.  18 
(r)  in  regard  to  evidence  of  good 
iter,  which  is  criticized  in 
like  manner,  but  which  in  sub- 
stance has  frequently  been  ap- 
proved by  this  court.  State  v. 
Jones,  78  Mo.  278;  State  v.  Kilgore, 
70  Mo.  546;  State  v.  McMurphy,  52 
Mo.  251;  State  v.  Alexander,  66  Mo. 
148,  loc.  cit.  160.  It  is  not  subject 
to  the  criticism  on  the  instruction 
in   the  last  case." 


CHAPTER   XXXV. 
BOUNDAEIES. 

See  Erroneous  Instructions,  same  chapter   head,   Vol.   III. 


§577. 


578. 


§579. 


§  580. 

§581. 
§  582. 
§  583. 


Boundaries  a  question  of 
fact  for  the  jury  and  not 
for  the  surveyor. 

Inclosure  by  natural  ob- 
jects. 

Rules  of  location — Order  to 
be  adopted — Visible  monu- 
ments control  courses  and 
distances. 

Jury  not  bound  by  particu- 
lar   rule   of   location. 

Object   of   rules   of   location. 

Boundary  on  watercourse. 

Whether  surveyed  line  or 
agreed  line  is  the  correct 
boundary. 


§  584.  Line  fence  agreed  upon — 
What  to  consider  in  deter- 
mining boundary. 

§  585.  Division  line  agreed  upon 
through  mistake — Limita- 
tion. 

§  586.  Long  acceptance  of  a  boun- 
dary line — Adverse  posses- 
sion. 

§  587.    Field  notes  to  govern,  when. 

§  588.  Entry  upon  land  must  be 
justified  by  deed  covering 
identical    boundaries. 

§  589.  Grantor  who  adopts  plat 
warrants  land  as  described 
therein — Plat  forms  part  of 
deed. 


§  577.  Boundaries  a  Question  of  Fact  for  the  Jury  and  Not  for 
the  Surveyor.  The  jury  are  instructed  that  the  question  in  this 
case  is  not  how  would  an  accurate  survey  locate  these  lots  in  ques- 
tion, but  how  did  the  original  survey  and  stakes  locate  them.  The 
only  purpose  of  the  evidence  of  the  surveyors,  who  have  made  the 
recent  surveys,  is  to  enable  the  jury  to  locate  the  original  boun- 
daries, if  possible,  and  not  for  the  purpose  of  determining  where  they 
ought  to  have  been,  or  where  they  would  have  been  by  an  accurate 
survey.  The  original  starting  points  and  boundaries  are  questions 
of  fact  for  the  jury  to  find  from  the  evidence,  not  only  the  evidence 
of  the  surveyors,  but  all  the  other  evidence  in  the  ease  bearing  upon 
these  points.1 

§  578.  Inclosure  by  Natural  Objects.  If  the  jury  believe,  from 
the  evidence,  that  a  slough  on  the  east  side  of  the  premises  in  ques- 
tion served  substantially  for  the  purpose  of  a  fence,  and,  in  connec- 
tion with  other  fences,  made  an  inclosure  of  said  premises,  the 
slough  should  be  considered  a  fence,  and  the  field  an  inclosed  field, 
for  the  purpose  of  this  trial.2 

§  579.  Rules  of  Location — Order  to  Be  Adopted — Visible  Monu- 
ments Control  Courses  and  Distances,  (a)  The  jury  are  instructed 
that  in  determining  the  boundary  line  between  two  tracts  of  land, 
if  there  are  visible  monuments  fixed  on  the  ground  and  referred  to  in 
the  deed  as  marking  the  boundary,  and  these  can  be  ascertained,  they 

1— Diehl  v.   Zanger,  39  Mich.  601;        2— Brumagim     v.     Bradshaw,     39 
Stewart  v.   Carleton,   31   Mich.   270;     Cal.   24. 
Cronin  v.  Gore,  38  Mich.  381. 

429 


430  FORMS  OF  INSTRUCTIONS.  [§580. 

will  control  the  courses  and  distances,  if  the  line  indicated  by  the 
monuments  differs  from  that  called  for  by  the  courses  and  distances 
given  in  the  deed.3 

(b)  The  court  instructs  the  jury  that  in  locating  lands  covered  by 
a  deed,  where  there  are  no  natural  boundaries,  such  as  a  creek,  a 
river,  mounds,  etc.,  called  for  in  the  description  contained  in  the 
deed,  the  next  highest  rule  is  the  artificial  marks  made  or  adopted 
by  the  surveyor  who  ran  the  line  at  the  time  the  deed  was  executed, 
and  not  any  older  marks  which  may  be  shown  to  exist  on  a  different 
line. 

(c)  The  court  instructs  you  that  while  it  is  true  that,  in  locating 
the  lands  covered  by  a  deed,  the  following  rules  are  usually  adopted 
in  the  order  named:  First,  natural  boundaries,  such  as  creeks, 
rivers,  mounds,  etc.;  second,  artificial  marks,  which  means  the  arti- 
ficial marks  made  on  the  trees  by  the  surveyor  who  ran  the  lines 
when  the  deed  was  made,  or  such  old  marks  as  were  adopted  then; 
third,  adjacent  boundaries;  and  fourth,  courses  and  distances — yet 
it  is  also  true  the  superior  of  these  rules  must,  and  do,  yield  to  the 
inferior  when  it  appears  from  the  deed  itself  that  the  inferior  rule 
will  locate  the  land  so  as  to  carry  out  the  intention  of  the  grantor. 

(d)  The  court  instructs  you  that  in  locating  lines,  a  course  laid 
down  on  a  plat  is  less  to  be  relied  upon  than  adjacent  boundaries  and 
marked  lines,  especially  if  the  grantor  and  the  gi'antee  agree  that 
the  course  marked  on  the  plat  is  an  error,  and  that  the  true  line  is 
the  adjacent  boundary  called  for  on  the  plat.4 

§  580.  Jury  Not  Bound  by  Particular  Rule  of  Location,  (a)  The 
court  instructs  you  that  in  locating  land  covered  by  a  deed,  in  order 
to  find  out  what  land  the  grantor  conveyed,  the  jury  are  not  bound 
by  any  particular  rule  of  location.  The  rules  of  location  which 
usually  govern  must  yield  to  the  intention  of  the  grantor  as  ascer- 
tained from  the  description  of  the  land  contained  in  the  deed,  and 
not  from  any  parol  evidence  which  might  tend  to  contradict  or  vary 
its  terms. 

(b)  Even  if  it  has  been  shown  that  C.  P.  B.  did  at  one  time  have 
title  to  the  land  in  dispute,  still  the  jury  cannot  locate  the  deed  from 
B.  to  defendant  so  as  to  cover  this  land,  if  they  find  that  the  line  as 
actually  run  when  the  deed  was  made  did  not  cover  this  identical 
land.5 

§  581.  Object  of  Rules  of  Location.  The  court  instructs  you  that 
the  object  of  rules  of  location  is  to  enable  a  jury  to  find  where  the 
surveyor  went  when  he  ran  his  lines,  so  that,  in  locating  the  deed 
from  B.  to  the  defendant,  J.,  the  jury  should  try  to  ascertain  where 
the  surveyor  went,  and,  if  he  did  not  run  his  lines  so  as  to  cover  and 

3_Watson  v.  Jones,  85  Penn.  St.  4— Connor  v.  Johnson,  59  S.  C.  115, 
117;  Daniels  v.  People,  21  111.  439.         37  S.  E.  240. 

5 — Connor   v.    Johnson,    supra. 


§  582.]  BOUNDARIES.  431 

take  in  the  identical  land  in  dispute,  then  the  deed  from  B  to  the 
defendant,  if  it  was  made  in  accordance  with  such  survey,  does  not 
include  such  land,  and  the  defendant  cannot  hold  it  by  virtue  of 
such  deed.6 

§  582.  Boundary  on  Watercourse,  (a)  The  rule  of  law  is  that 
where  two  persons  own  land  adjoining,  on  the  same  side  of  the 
stream  or  river,  and  are  both  bounded  by  the  river,  the  presumption 
of  law  is  that  each  owns  to  the  middle  of  the  stream  in  front  of  his 
own  land,  and  if  the  shore  line  dividing  their  lands  does  not  strike 
the  river  at  right  angles  to  the  stream  the  boundary  line  from  the 
shore  to  the  middle  of  the  river  is  determined  by  extending  the  divis- 
ion line  at  the  point  where  it  strikes  the  shore  perpendicularly  to 
the  general  course  of  the  sti-eam  opposite  that  point,  that  is,  run- 
ning the  line  from  the  point  where  it  strikes  the  shore  to  the  nearest 
point  in  the  center  of  the  river.7 

(b)  The  court  instructs  you,  as  a  matter  of  law,  that  where  a 
stream  of  water,  such  as  a  river  or  creek,  is  the  boundary  line  be- 
tween two  adjoining  owners,  and  the  stream  alters  its  channel  from 
year  to  year,  by  a  slow,  gradual  and  almost  imperceptible  wear  upon 
one  side  and  accretion  on  the  other,  then  the  boundary  shifts  with 
the  channel ;  but  if  the  stream  changes  its  course  visibly  and  violent- 
ly, making  what  is  known  as  a  cut-off  in  high  water,  then  the  boun- 
dary does  not  change  with  the  stream,  but  it  adheres  to  the  original 
channel.8 

§  583.  Whether  Surveyed  Line  or  Agreed  Line  Is  the  Correct 
Boundary,  (a)  If  you  believe,  from  the  evidence,  that  the  line 
claimed  by  plaintiffs  as  surveyed  by  W.  B.  A.  is  the  correct  land 
line,  then  you  will  find  for  the  plaintiffs,  unless  you  further  find 
that  the  land  line  as  claimed  by  defendant  was  agreed  upon  as  the 
land  line  by  B.  &  R.,  and  upon  this  latter  proposition  the  defendants 
are  required  to  produce  the  preponderance  of  the  evidence  before 
you  can  find  for  them  on  the  alleged  agreement.9 

(b)  If  you  believe,  from  the  evidence,  that  the  fence  in  question, 
claimed  by  the  defendant  to  be  the  line  fence  between  his  land  and 
that  of  the  plaintiff,  does  not  stand  upon  the  true  survey  line  between 
said  lands;  and  if  you  further  believe,  from  the  evidence,  that  the 
fence  was  placed  where  it  now  is  by  agreement  of  the  parties,  merely 
for  the  convenience  of  working  the  land,  and  not  for  the  purpose  of 
marking  the  boundaries  according  to  title,  then  neither  party  would 
be  bound  by  the  existence  of  the  fence,  as  establishing  either  an 
agreed  boundary  line  or  adverse  possession  to  the  lands  in  contro- 
versy.10 

6— Connor  v.  Johnson,  supra.  9— "Held    that    the    words    (land 
7_Clark    v.    Campaw,     19     Mich,  line)  were  synonymous  with  'noun- 
s'^-  Bay  City  G.   K   Co.  v.  Indus-  dary    line.'     Henderson    v.    Dennis, 
trial    etc.,  28  Mich.  182.  177  111.   547  (550),  52  N.  E.  426." 

8— Collins   v.    State,    3   Tex.   App.        10— Soule  v.   Barlow,  49  Vt.  329. 
323. 


432  FORMS  OF  INSTRUCTIONS.  [§  584. 

§  584.  Line  Fence  Agreed  Upon — What  to  Consider  in  Determin- 
ing Boundary,  (a)  And  in  determining  whether  there  was  such  an 
agreement  and  establishing  of  the  line,  it  is  competent  for  you  to 
take  into  consideration  the  acts  and  statements  of  the  parties,  the 
acts  done  by  each,  and  the  fixing  and  adjustment  of  fences,  and 
improvements  by  them,  under  such  alleged  agreement,  if  any  such 
are  proved,  together  with  all  the  other  evidence  and  facts  and  cir- 
cumstances proved  on  the  trial.11 

(b)  You  are  instructed  that  the  fact,  if  proved,  that  a  line  fence 
was  built  on  the  line  claimed  by  the  defendant  as  the  agreed  line, 
and  that  the  parties  occupied  up  to  the  fence  for  a  number  of  years, 
would  not  alone  prove  that  the  fence  was  built  upon  the  true  line, 
or  that  that  line  was  established  by  agreement  of  the  parties,  or 
by  the  persons  under  whom  they  hold.  In  order  that  that  line  shall 
be  conclusive  upon  the  parties,  the  jury  must  believe,  from  the 
evidence,  either  that  the  fence  was  built  upon  the  true  line,  that  the 
adjoining  owners  in  an  honest  attempt  to  fix  the  dividing  line  be- 
tween their  lands,  agreed  upon  that  line  as  the  boundary  line  between 
them,  or  that  the  defendant,  for  twenty  years  or  more,  occupied  the 
land  in  controversy  adversely,  as  explained  in  these  instructions  upon 
that  point.12 

(c)  In  locating  a  deed,  a  jury  should  take  into  consideration  the 
number  of  acres  mentioned,  the  shape  of  the  plat,  as  well  as  other 
parts  of  the  description  contained  in  the  deed,  and  locate  the  land 
covered  by  it  so  as  to  conform  to  that  part  of  the  description  which 
the  more  certainly  shows  the  intention  of  the  grantor. 

(d)  The  court  instructs  you  that  if,  from  the  number  of  acres 
mentioned,  the  shape  of  the  plat,  as  well  as  other  parts  of  the  de- 
scription, the  jury  find  that  a  grantor  did  not  convey  a  piece  of  land 
which  is  in  dispute,  then  the  one  who  claims  under  such  deed  has 
no  title  to  such  land,  even  though  such  grantor  may  at  one  time  have 
owned  it.13 

§  585.  Division  Line  Agreed  Upon  Through  Mistake — Limitation, 
(a)  The  law  is  that  where  parties  agree  upon  a  division  line  be- 
tween their  lands,  and  they  occupy  up  to  such  line  for  a  period  of 
twenty  years,  they  will  be  held  to  the  line  so  established,  although 
the  line  be  not  the  true  line,  and  was  agreed  upon  by  mutual  mis- 
take.14 

(b)  The  law  is  that  if  two  adjoining  proprietors  occupy  on  the 
opposite  sides,  and  up  to  what  they  both  erroneously  suppose  to  be 
the  true  dividing  line,  with  no  intent  on  the  part  of  either  to  claim 

11— Cutler  v.  Callison,  72  111.   113;  13— Connor   v.    Johnson,    59   S.    C. 

Tamm     v.     Kellogg1,     49     Mo.     118;  115,  37  S.  E.  240 

Smith    v.    Hamilton,    20    Mich.    433;  14— Smith   v.   McKay,   30  Ohio  St. 

Terrv    v.    Chandler,    16    N.    T.    354;  409;  Yutzer  v.  Thoman.  17  Ohio  St. 

Joice   v.   Williams,   26  Mich.   332.  130;  Bader  v.  Zeise,  44  Wis.  96. 

12— Chapman   v.    Cooks,  41  Mich. 
595,   2   N.   W.   924. 


§  586.]  BOUXDARIES.  433 

beyond  the  true  line,  such  possession  would  not  be  an  adverse  pos- 
session of  the  land  thus  erroneously  occupied.15 

(c)  You  are  instructed,  as  a  matter  of  law,  that  where  one  of 
two  adjoining  land  owners  has  possession  for  over  twenty  years  of 
a  portion  of  the  other's  land,  by  reason  of  the  division  fence  not 
being  on  the  line,  such  possession  will  not  bar  a  recovery  of  the  land 
by  the  true  owner,  unless  the  fence  was  agreed  upon  as  the  boun- 
dary line,  and  the  possession  taken  and  held  in  pursuance  of  such 
agreement,  or  unless  such  possession  is  adverse  to  the  title  of  the 
true  owner   as  explained  in  these  instructions  upon  that  point.16 

§  586.    Long  Acceptance  of  a  Boundary  Line — Adverse  Possession. 

(a)  The  court  instructs  you  that  the  question  for  your  determina- 
tion in  this  ease  is  the  true  location  of  the  division  line  between 
the  land  owned  by  the  plaintiff  and  the  defendant.  If  you  believe 
and  find  from  the  evidence  that  the  old  fence  now  referred  to  and 
described  by  the  witnesses  is  the  true  location  of  the  division  line 
between  the  plaintiff's  and  defendant's  land,  or  was  accepted  and 
recognized  by  those  under  whom  plaintiff  and  defendant  claim,  as 
such  division  line,  or  if  you  find  from  the  evidence  that  the  line  run 
and  surveyed  by  M.  is  another  and  different  line  from  the  said  old 
fence  row,  and  is  the  true  division  line  between  plaintiff's  and  de- 
fendant's land,  but  you  further  find  that  the  plaintiff  and  those 
under  whom  he  claims,  had  and  held  peaceable  and  adverse  posses- 
sion of  the  land  claimed  by  him  in  this  suit,  extending  to  said  old 
fence  row,  cultivating,  using  or  enjoying  the  same,  for  more  than  ten 
years  next  before  the  date  of  the  entry  and  trespass,  if  any,  of  the 
defendant  on  said  land,  then  in  either  such  case  you  will  find  for  the 
plaintiff,  although  you  may  believe  the  distance  from  the  S.  W. 
corner  of  the  K —  survey,  running  east  with  its  south  boundary 
line  to  said  old  fence  row,  is  more  than  950  yards,  unless  you  find 
for  the  defendant  under  the  instructions  hereinafter  given  you.  If, 
on  the  other  hand,  you  believe  and  find  from  the  evidence  that  the 
said  line  run  and  surveyed  by  the  said  M.  is  another  and  different 
line  from  said  old  fence  row,  and  is  the  true  location  of  the  division 
line  between  plaintiff's  and  defendant's  land,  or  if  you  find  from 
the  evidence  that  W.  C.  H.,  in  his  lifetime,  and  the  defendant  agreed 
or  accepted  and  recognized  the  said  line  run  and  surveyed  by  said 
M.  as  such  division  line,  and  you  do  not  find  that  the  plaintiff  and 
those  under  whom  he  claims  had  and  held  peaceable  and  adverse 
possession  of  the  land  in  dispute,  extending  to  said  old  fence  row, 
cultivating,  using  or  enjoying  the  same,  for  more  than  ten  years 
next  before  the  entry  and  trespass,  if  any,  of  defendant  on  said  land, 
then  in  either  such  case  you  will  find  for  the  defendant.17 

15— Houx  v.  Batteen,  68  Mo.  84.  17— Rountree  v.  Haynes,  73  S.  W. 

16— McNamara  v.    Seaton,     82   111.  435    (436),   —   Tex.    Civ.    App.    — . 
46S. 

28 


434  FORMS  OF  INSTRUCTIONS.  [§587. 

(b)  The  court  instructs  the  jury  that,  if  you  find  xroni  the  evi- 
dence that  the  plaintiff  and  the  defendant  and  his  grantors,  G.  and 
H.,  recognized  a  certain  line  between  them  as  the  true  line  for  a 
period  of  10  years,  then  you  will  find  for  the  defendant,  regardless 
of  where  the  true  line  may  be  between  them.18 

§  587.  Field  Notes  to  Govern,  When.  The  court  instructs  you 
that  should  you  find  a  discrepancy  in  the  calls  for  artificial  objects, 
then  you  are  to  be  governed  by  the  call  or  calls  that  most  thoroughly 
indicate  to  your  minds  the  intention  borne  upon  the  face  of  the  field 
notes.19 

§588.  Entry  upon  Land  Must  Be  Justified  by  Deed  Covering 
Identical  Boundaries,  (a)  The  court  instructs  you  that  where  a  de- 
fendant undertakes  to  justify  his  entry  upon  land  which  has  been 
shown  to  be  in  possession  of  a  plaintiff  under  color  of  title,  by  in- 
troducing in  evidence  a  deed  which  he  claims  covers  the  land  in  dis- 
pute, then  he  is  bound  by  the  description  of  such  land  as  given  in 
such  deed,  and,  if  the  description  of  the  land  in  this  deed  does  not 
include  and  take  in  the  identical  land  in  dispute,  it  is  not  sufficient 
to  justify  such  entry. 

(b)  The  court  instructs  you  that  where  a  defendant's  only  claim 
of  title  in  a  case  like  this  to  land  in  dispute  is  a  deed  from  a  for- 
mer owner,  such  deed  is  not  sufficient  to  justify  his  entry  upon  land 
in  possession  of  another  under  color  of  title,  unless  such  deed  actually 
covers  and  includes  the  identical  land  in  dispute. 

(c)  The  court  instructs  you  that  it  is  the  duty  of  the  jury,  in  lo- 
cating land  covered  by  a  deed,  to  try  and  ascertain  what  land  the 
grantor  conveyed,  and  in  doing  this  they  must  look  to  the  deed  it- 
self, and  locate  the  land  by  that  description  in  the  deed  which  more 
certainly  shows  the  intention  of  the  grantor. 

(d)  The  court  instructs  you  that  if,  in  locating  the  deed  from 
B.  to  the  defendant,  it  appears  that  the  lines  as  actually  surveyed  and 

run  when  the  land  was  conveyed  by  B.  did  not  go  to  the  line  of , 

and  did  not  cover  the  land  in  dispute,  then  such  deed  will  not  be 
sufficient  to  justify  an  entry  by  a  defendant  upon  land  as  against  one 
who  is  in  possession  of  such  land  under  color  of  title. 

(e)  The  court  instructs  you  that  color  of  title  sufficient  to  justify 
a  defendant  for  cutting  and  removing  timber  and  trees  from  land  in 
possession  of  plaintiff  under  color  of  title  means  that  the  defendant 
must  have  a  deed  or  plat,  or  something  Avhich  defines  the  extent  of 
the  claim,  and  which  covers  and  includes  the  identical  land  in  dis- 
pute. A  mere  claim  that  such  deed  or  plat,  etc.,  covers  and  includes 
the  identical  land  is  not  sufficient,  but  the  evidence  must  satisfy  the 

IS— Williams  v.  Shepardson  et  al.,        19— Matkins     v.     State,     —     Tex. 
4    Neb.    608,    (unof.)    95    N.    W.    827     Crim.   App.  — ,    62   S.    W.    911. 
(831). 


§  589.]  BOUNDARIES.  435 

jury  that  such  deed  or  plat,  etc.,  does  cover  the  identical  land;  other- 
wise, it  is  not  sufficient  to  justify  an  entry  on  it.20 

§  589.  Grantor  "Who  Adopts  Plat  Warrants  Land  as  Described 
Therein — Plat  Forms  Part  of  Deed,  (a)  "When  a  grantor  adopts  a 
plat  attached  to  a  deed  as  the  true  description  of  the  land  sold  and 
conveyed,  he  thereby  only  warrants  the  land  sold  as  described  there- 
in, and  as  run  and  delineated  by  the  surveyor  who  surveyed  the  land 
at  the  time  the  deed  and  plat  was  made. 

(b)  Where  a  deed  refers  to  a  plat  for  a  fuller  description,  the 
plat  forms  a  part  of  the  deed;  and,  if  the  plat  calls  for  adjacent 
land  as  a  boundary,  such  boundary  is  as  much  a  part  of  the  plat  as 
the  courses  laid  down  on  the  plat.  If  such  a  plat  calls  for  adjacent 
land  as  a  boundary,  the  new  plat  cannot  cross  the  lines  of  the 
older  grant,  but  the  lines  of  the  older  grant  must  first  be  located; 
and  the  lines  of  the  plat  must  be  made  to  conform  to  the  lines  of 
the  older  grant,  even  if  the  courses  and  distances  on  the  new  plat 
must  be  corrected  so  as  to  conform  to  the  courses  and  distances 
called  for  by  the  older  grant.  This  is  not  remodeling  the  deed  or 
plat,  but  is  making  it  conform  to  the  true  boundary  called  for  by 
the  plat.  For  adjacent  boundaries  called  for  on  the  plat  control 
the  courses  and  distances,  also  called  for  on  the  plat,  and  where 
they  conflict  there  is  an  error  on  the  plat,  and  the  adjacent  boundary 
is  the  true  line. 

(c)  The  court  instructs  you  that  in  locating  land  covered  by  a 
deed,  where  it  describes  the  land  as  containing  a  certain  definite 
number  of  acres,  without  the  addition  of  the  words  "more  or  less," 
and  gives  as  boundaries  some  of  the  adjacent  lands,  and  refers  to  a 
plat  attached  to  the  deed  for  a  fuller  description  of  the  land  con- 
veyed, then,  as  a  rule,  the  land  conveyed  is  the  land  marked  and 
delineated  by  the  sui'veyor  who  run  the  lines  when  the  deed  was 
made,  and  such  deed  only  covers  the  land  so  run,  marked  and  de- 
scribed.21 

20 — Connor  v.    Johnson,    59   S.   C.        21 — Connor  v.  Johnson,  supra. 
115,  37  S.   E.   240. 


CHAPTER  XXXVI. 
BROKERS. 


See  Erroneous  Instructions,  same    chapter   head,  Vol.   III. 


§  590.  Broker's  license  as  a  requi- 
site to  recovery  of  commis- 
sions. 

§  591.  Broker  must  be  the  efficient 
cause  of  the   deal. 

§  592.  Broker  must  bring  about  a 
consummation    of   the   sale. 

§  593.  Rendering  actual  services 
resulting  in  a  sale — To  re- 
cover commission  the 
broker  must  be  the  pro- 
curing  cause — Series. 

§  594.  Bringing  the  seller  and 
buyer  together — Amount  of 
commission  due  broker 
when  owner  sells  for  a 
less  sum. 

§  595.  Right  to  compensation  for 
bringing  parties  together 
although  sale  is  concluded 
by   the    owner. 

§  596.  Right  to  commissions  where 
the  owner  refuses  to  carry 
out    the    trade. 

§  597.  Broker's  commission  for 
finding  purchasers — Aiding 
owner  to  sell. 

§  598.  Failure  of  broker  to  find  a 
purchaser  or  abandonment 
of  effort — Sale  by  owner. 

§  599.  Customary  and  usual  com- 
missions  to   be   allowed. 

§  600.  Agreement  as  to  broker's 
commission  may  be  in- 
ferred from  the  conduct 
and  declarations  of  the 
owner. 


§  601.  Terms  of  contract  affected 
by  custom — Payment  of 
commission   on   orders. 

§  602.  Agent  not  allowed  to  pur- 
chase the  property  of  his 
principal — Must  use  good 
faith   or   lose   commissions. 

§  603.  Commission  merchant — Or- 
dinary care  in  selling  prop- 
erty required. 

§  604.  Action  for  compensation — 
License — Series. 

BOARD  OF  TRADE   TRANSACTIONS. 

§  605.     Contracts    legal. 

§  606.  Putting  up  margins  held  le- 
gal— Usage  and  custom 
upon  the  board  governs  the 
transactions  in  absence  of 
express     agreements. 

§  607.  Right  to  close  out  contracts 
and  to  determine  the  loss 
when  the  defendant  ne- 
glects, refuses  or  is  unable 
to  furnish  the  required 
margins. 

§  608.  Board  of  trade  transactions 
for  the  sale  and  future  de- 
livery of  grain  held  to  be 
gambling  contracts  under 
certain   circumstances. 

§  609.  Options  on  Board  of  Trade- 
Delivery — Settlement  made 
on   difference  in  price. 

§  610.  Considerations  determining 
the  legality  of  Board  of 
Trade    transactions — Series. 


§  590.  Broker's  License  as  a  Requisite  to  Recovery  of  Commis- 
sions. The  court  declares  the  law  to  be  that  it  would  not  be  war- 
ranted in  finding  the  issues  in  this  case  for  the  defendant  because 
it  might  believe  from  the  evidence  that  at  the  time  of  the  transac- 
tions in  evidence  the  plaintiff  was  not  a  licensed  real  estate  agent  or 
broker,  and  that  at  such  time  the  city  of  had  an  ordi- 
nance imposing  a  penalty  on  any  one  acting  as  such  real  estate 
broker  or  agent  in  such  city  without  first  procuring  a  license.1 

1— Tooker  v.  Duckworth,  107  Mo.  other  states  to  the  contrary,  but 
231.  80  S.  W.  963  (964).  The  court  they  have  not  been  followedin  this 
said:      "There    are    authorities    in    state,  where  it  has  been  uniformly 

436 


§  591.]  BROKERS.  437 

§  591.  Broker  Must  Be  the  Efficient  Cause  of  the  Deal.  The  court 
instructs  the  jury  that,  if  they  believe,  from  the  evidence,  that  the 
defendant  placed  bis  property  in  the  bands  of  the  plaintiff  for  sale 
at  a  stipulated  price,  and  the  plaintiff  introduced  the  defendant  to  X. 
and  that  X.  made  a  proposition  to  exchange  property  in  P.  for  de- 
fendant's property,  which  was  declined  by  the  defendant,  and  that 
negotiations  between  X.  and  the  defendant  were  then  ended  and  defi- 
nitely abandoned  by  the  parties,  and  that  the  defendant  through  the 
efforts  of  X.  took  in  exchange  for  his  land  land  in  T.  belonging  to 

W.  and  that  W.  took  property  in  P.  belonging  to  in  exchange 

for  the  Texas  land,  the  fact  that  the  deed  was  made  from  the  de- 
fendant to  X.  would  not  entitle  the  plaintiff  to  recover,  and  you 
should  find  for  the  defendant,  unless  you  further  believe  the  plaintiff 
was  the  efficient  cause  of  the  deal.2 

§  592.  Broker  Must  Bring  About  a  Consummation  of  the  Sale, 
(a)  The  court  instructs  the  jury  that  if  you  believe,  from  the  evi- 
dence, that  the  defendant  placed  the  property  in  question  in  the 
hands  of  the  plaintiffs  for  sale,  and  further  that  the  plaintiffs 
commenced  negotiations  with  a  party  who  subsequently  purchased 
the  property,  still  you  will  find  for  the  defendant,  unless  you  also 
believe,  from  the  evidence  in  this  case,  that  the  plaintiffs  actually 
brought  about  a  consummation  of  the  sale  or  were  prevented  from 
so  doing  by  the  fraud,  procurement  or  misconduct  or  fault  on  the 
part  of  the  defendant.3 

(b)  The  jury  are  instructed  that  the  plaintiff's  cause  of  action 
in  this  case  is  a  claim  made  by  them  as  brokers  for  compensation 
by  way  of  commissions  upon  a  sale  of  certain  property  situated  in 
the  city  of  C.  known  as  the  A.  Block,  made  by  the  defendant  to  McC. 

in  the  latter  part  of ,  and  that  to  entitle  them  to  recover 

such,  or  any,  compensation  on  account  of  said  sale,  the  jury  must 
believe,  from  the  evidence  in  the  ease,  that  the  plaintiffs  were  em- 
ployed by  the  defendant  in  and  about  the  business  of  making  said 
sale,  and  that  their  services  were  instrumental  in  accomplishing  it. 

held  that  one  party  to  a  contract  out  a  license  as  required  by  an  or- 
is not  required  to  overlook  the  dinanee  or  statute  does  not  avoid 
morals  of  the  other,  or  to  refuse  to  his  contracts  for  services  rendered 
work  for  him,  or  to  sell  him  poods,  or  goods  sold,  unless  it  is  shown 
because  he  may  suspect  or  know  that  both  parties  to  such  contract 
that  the  fruits  of  his  labor  or  the  agreed  beforehand  that  the  ordi- 
goods  are  intended  to  be  used  for  nance  or  the  statute  (as  the  case 
an  immoral  purpose.  Kerwin  &  might  be)  should  be  violated,  or 
Co.  v.  Doran,  29  Mo.  App.  loc.  cit.  that  they  conspired  together  to 
406;  Michael  v.  Bacon,  49  Mo.  474,  evade  the  law.  Nothing  of  this 
8  Am.  Rep.  138;  Howell  v.  Stew-  kind  was  shown  in  the  case  at  bar. 
art,  54  Mo.  400.  To  invalidate  and  we  think  the  court  erred  in 
such  contracts  it  must  be  shown  refusing  the  declaration  of  law 
that  both  parties  to  the  contract  asked  by  the  plaintiff." 
participated  in  the  immoral  or  il-  2 — Stocks  v.  Scott,  89  111.  App. 
legal  purpose.  Cockrell  v.  Thomp-  615.  See  also  Porter  v.  Day,  44  111. 
son,  85   Mo.  510.     For  a  like  reason  App.  256. 

we  think   the  failure   of  a   real   es-  3— Day  v.  Porter.  161  111.  235  (238), 

tate   agent   or  a   merchant   to  take  affg.   60  111.  App.  3S6,  43  N.  E.  1073. 


438  FORMS   OF   INSTRUCTIONS.  [§  593. 

A  promise  by  the  defendant  to  pay  the  plaintiffs  for  services  inde- 
pendently rendered  by  a  third  person  in  no  way  associated  with 
the  plaintiffs  would  be  a  promise  without  consideration,  upon  which 
no  action  could  be  maintained  by  the  plaintiffs. 

(c)  If  the  jury  believe,  from  the  evidence,  that  upon  their  own 
request  and  solicitations,  the  plaintiffs  were  authorized  by  the  de- 
fendant to  offer  his  property  known   as  the  A.  Block  to  McC.  for 

the  sum  of  $ — ,  and  upon  no  other  terms,  and  that  they  offered 

the  said  property  to  the  said  McC.  at  that  price,  which  offer  was 
declined  by  said  McC,  and  that  fact  was  reported  by  the  plaintiffs 
to  the  defendant,  and  no  authority  was  given  by  the  defendant  to  the 
plaintiffs  to  offer  said  property  to  said  McC,  or  any  other  person, 
at  any  less  or  different  price,  then  and  in  that  case  the  jury  are 
instructed  that  the  defendant  was  fully  justified  in  regarding  and 
treating  the  authority  given  by  him  to  the  plaintiffs  as  ended,  and 
the  plaintiffs  under  such  circumstances  would  be  entitled  to  no  com- 
pensation for  the  time  and  labor  expended  by  them  in  their  endeavor 
to  make  sale  of  said  property  to  said  McC  And  the  fact  that  the 
defendant  subsequently  and  through  another  broker,  and  wholly 
without  the  interference  or  participation  of  the  said  plaintiffs,  sold 

the  same  property  to  the  said  McC  for  a  less  sum  than  $ ,  if 

the  jury  believe  from  the  evidence  that  such  was  the  fact,  would  not 
in  any  way  revive  the  relations  of  the  parties  or  give  to  the  plaintiffs 
any  right  to  commissions  or  other  compensation  on  account  of  such 
sale. 

(d)  If  the  jury  believe,  from  the  evidence,  that  the  defendant  in 

,  through  D.,  a  real  estate  broker,  offered  the  property  in 

question  to  McC  for  the  sum  of  $ ,  which  offer  was  refused,  and 

subsequently  in  October  or  November  of  the  same  year  through  the 
plaintiffs  as  brokers,  who  were  advised  of  the  previous  offer,  offered 

the  same  property  to  the  said  McC  for  $ — ,  which  offer  was  also 

refused,  and  that  thereafter  said  D.  alone,  as  broker,  at  the  instance 
of  said  McC,  opened  up  new  negotiations  with  said  McC.  for  the 
sale  of  said  property  at  a  less  price  than  $ ,  which  last  negotia- 
tions resulted  in  a  sale  of  said  property  to  said  McC,  for  certain 
securities  nominally  amounting  to  the  sum  of  $ ,  then  the  plain- 
tiffs are  not  entitled  to  commissions  upon  said  sales,  and  the  jury 
must  find  for  the  defendant.4 

§  593.  Rendering  Actual  Services  Resulting  in  a  Sale — To  Recover 
Commission  the  Broker  Must  be  the  Procuring  Cause,  (a)  The 
burden  of  proof  is  upon  the  plaintiff  to  establish  all  material  allega- 
tions of  his  petition,  which,  in  this  case,  are  that  he  procured  for 
the  defendant  a  purchaser  for  her  real  estate,  situate  in  C,  who  was 
able  and  willing,  and  who  purchased  the  same. 

(b)  If  you  believe,  from  the  evidence,  that  plaintiff  rendered 
services  as  alleged  in  his  petition,  and  defendant  was  enabled  there- 

4— These   three    instructions    were     S9   111.  App.  229   (233). 
approved   in     Fessenden   v.    Doane, 


§594.]  BROKERS.  439 

by  to  dispose  of  her  property,  the  plaintiff  would,  if  you  so  find, 
be  entitled  to  recover  for  his  services  so  rendered;  and  if  you  find 
for  the  plaintiff  you  will  assess  the  amount  of  his  recovery  at  such 
a  sum  as  you  believe  from  the  evidence,  he  is  fairly  entitled  to  re- 
ceive, not  exceeding,  however,  the  sum  of dollars,  as  claimed 

in  his  petition. 

(c)  The  jury  is  instructed  that,  to  entitle  a  real  estate  agent  to 
recover  commission  for  the  sale  or  exchange  of  property,  he  must 
procure  a  buyer  ready,  able,  and  willing  to  take  the  property  upon 
the  terms  fixed  by  the  seller. 

(d)  The  jury  is  instructed  that,  when  a  person  makes  a  sale  or 
exchange  of  property  listed  with  a  real  estate  agent,  the  agent  must 
show  that  he  was  the  procuring  cause  of  the  sale,  in  order  to  recover 
the  commission;  in  other  words,  it  must  be  shown  that  he  rendered 
actual  services  resulting  in  a  sale  or  trade,  as  a  consequence  thereof. 

(e)  If  you  find  from  the  evidence  that  the  defendant  made  the 
sale  of  her  C.  property  without  the  assistance  of  the  plaintiff,  and 
that  plaintiff  did  not  in  fact  furnish  a  purchaser  for  the  defendant's 
property,  the  verdict  will  be  in  favor  of  the  defendant.5 

§  594.  Bringing  the  Seller  and  Buyer  Together — Amount  of  Com- 
mission Due  Broker  when  Owner  Sells  for  a  Less  Sum.  (a)  The 
jury  are  instructed  as  a  matter  of  law  that  where  an  agreement  for 
the  sale  of  property  is  entered  into,  the  agent  is  entitled  to  his 
recompense  if  he  succeeds  in  bringing  the  owner  and  buyer  together, 
and  this,  too,  where  the  owner  in  dealing  personally  with  the  buyer 
agrees  to  accept  a  less  sum  than  that  mentioned  to  the  agent.  In 
such  a  case  the  agent  is  entitled  to  recover  his  commission  on  the 
amount  accepted  by  the  seller. 

(b)  The  jury  are  further  instructed  that  if  they  believe  from 
the  evidence  that  an  agreement  was  entered  into  between  the  parties 
to  this  suit  by  which  the  plaintiff  H.,  as  agent  for  the  defendant  H., 
was  to  sell  certain  property  owned  by  the  defendant  and  to  receive 
a  certain  commission  in  the  event  of  a  sale  through  his  instru- 
mentality, and  if  the  jury  believe  from  the  evidence  in  this  ease 
that  a  sale  of  said  property  was  consummated  with  the  purchaser 
procured  by  H.  the  verdict  must  be  for  the  plaintiff,  even  though 

5— Hodgman   v.   Thomas,   37  Neb.  quested  another  instruction,  which 

568,   56  N.  W.  199.     "These  instruc-  was  that  plaintiff  was  not  entitled 

tions  given,"  said  the  court,  "fairly  to  recover  upon  the  evidence  intro- 

submitted  to  the  jury,  as  essential,  duced.     It   was,   perhaps,   unneces- 

the    question    whether    or    not    the  sary  to  have  mentioned  this,  as  the 

services    of   the   plaintiff   were   the  language    employed    in    the    begin- 

inducing  cause  of  the  trade  effect-  ning    of    this     opinion    sufficiently 

ed  between  the  parties  to  the  real  meets  this  contention  of  statement 

estate  transaction.      The  court, hav-  of     the     result     of     the    evidence, 

ing  once  fairly  stated   the  law  upon  There   was   no    exception   taken   to 

this  head,  could  not  properly  be  re-  the  giving  of  any  instruction,  and 

quired  to  reiterate  its  statement,  at  hence     the     consideration     already 

the  request  of  the  defendant,  even  given    the    instructions    sufficiently 

though    such    statement    was    cor-  covers   all   the  points   that   can   be 

rect.     It   is  true  the  defendant  re-  reviewed  in   this  court." 


440  FORMS  OP  INSTRUCTIONS.  [S  59(i. 

the  defendant  accepted  a  less  sum  for  his  property  than  he  had 
given  his  agent,  unless  the  jury  believe  from  the  evidence  that  the 
said  contract,  if  any,  had  been  terminated  by  H.  prior  to  the 

(c)  The  court  instructs  the  jury  that  if  you  believe,  from  the 
evidence  in  this  case,  that  the  defendant  employed  the  plaintiff,  S., 
as  his  agent  to  negotiate  the  sale  of  his,  the  defendant's,  street  rail- 
road property,  and  that  the  plaintiff  undertook  such  employment 
and  was  instrumental  in  bringing  together  the  buyer  and  the  de- 
fendant, then  and  in  that  case  the  plaintiff  is  entitled,  as  a  matter  of 
law,  to  recover  from  the  defendant  compensation  for  his  services, 
regardless  of  the  fact  that  the  defendant  himself  concluded  the 
sale,  and  at  a  price  less  and  upon  terms  different  from  those  at  which 
the  plaintiff  was  authorized  to  sell.7 

§  585.  Right  to  Compensation  for  Bringing  Parties  Together,  Al- 
though Sale  is  Concluded  by  the  Owner.  The  court  instructs  the 
jury  that,  if  you  believe,  from  the  evidence  in  this  case,  that  the  de- 
fendants employed  the  plaintiffs  as  their  agents  to  negotiate  a  sale 
of  the  defendants'  land,  and  the  plaintiffs  undertook  said  employ- 
ment and  were  instrumental  in  bringing  together  the  buyer  and  the 
defendants,  then  and  in  that  case  the  plaintiffs  are  entitled  as  a  mat- 
ter of  law  to  recover  from  defendants  compensation  for  their  serv- 
ices, regardless  of  the  fact  that  the  defendants  concluded  the 
sale.8 

§  596.  Right  to  Commissions  "Where  the  Owner  Refuses  to  Carry 
Out  the  Trade.  The  court  instructs  the  jury  that  if  they  believe, 
from  the  evidence,  that  the  plaintiffs  were  engaged  in  business  as 
real  estate  agents  or  brokers  in  C,  that  defendant  requested  or 
authorized  them  to  sell  or  find  a  purchaser  for  the  property  in  ques- 
tion at  the  price  of  $ cash,  and  that  the  said  authority  was 

not  limited,  and  was  not  revoked,  and  that  pursuant  to  such  request 
they  did  find  a  purchaser  able  and  willing  to  buy  said  property  on 
said  terms,  and  that  defendant,  on  being  notified  that  such  purchaser 
had  been  found  and  was  ready  to  close  the  bargain  on  said  terms, 

6— Hafner  v.    Herron,  165   111.   242  "same    instruction    was    given    by 

(249-251),  46  N.  E.  211.  the  trial   court  in  Henry  v.   Stew- 

7— Henry   v.    Stewart,   185  111.   448,  art,  85    111.    App.    170,    and   was   ap- 

affg.  85  111.  App.   170,   57  N.  E.  190.  proved  by  the  appellate  court.    The 

The   court   said:      "It   seems   to   be  case  was  appealed  from  the  appel- 

jnsisted  by  counsel  that  unless  M.  late   to    the   supreme   court,   where 

was   the   agent   of   the   plaintiff   in  a  direct  attack  upon  this   instruc- 

negotiating    the    sale,    the   plaintiff  tion    was    made    by    counsel.      The 

could  not  recover.     That  is  not  so.  court    sets    out    the    instruction    in 

If   plaintiff  as  agent   for  the  defend-  full  in  its  opinion,   and  holds  it  to 

ant  offered  the  property  to  M.,  and  be  the  law.     Henry  v.  Stewart,  185 

thereby  brought  about  a  sale,  it  is  111.  448,  57  N.   E.   190.     This  holding 

held  immaterial  whether  M.   acted  is   supported   by  Wilson  v.   Mason, 

for  himself,  or  for  himself  in  con-  158  111.  304,  42  N.  E.  134;  49  Am.  St. 

nection  with  others,  or  for  a  syndi-  Rep.    162:    Hafner    v.    Herron,    165 

rate."      Citing    Hafner    v.    Herron,  111.    242.    46    N.    E.    211;    and    other 

165  111.  242,  46  N.  E.  211.  cases     in    both    the    appellate    and 

8 — Dean  v.  Archer,  103  111.  App.  the  supreme  courts  of  this  state." 
155  (456).     The  court  says  that  this 


597.] 


BROKERS. 


Ul 


refused  to  carry  out  the  trade,  then  plaintiffs  have  earned  their  com- 
mission and  are  entitled  to  recover.0 

§  597.  Broker's  Commission  for  Finding  Purchaser — Aiding  Owner 
to  Sell,  (a)  If  you  find  from  a  fair  preponderance  of  the  evidence 
that,  at  the  time  described  in  the  complaint,  the  plaintiffs  were  real 
estate  brokers  and  agents,  doing  a  general  business  in  the  city  of  I., 
and  that  the  defendant  employed  them  to  sell  for  him  the  real  es- 
tate described  in  the  complaint,  or  to  find  a  purchaser  for  the  same, 
and  you  further  find  from  a  fair  preponderance  of  the  evidence  that 
they  procured  a  purchaser  acceptable  to  the  defendant,  and  that  he 
sold  said  property  to  the  person  so  obtained  for  him  by  the  plain- 
tiffs, then  your  finding  should  be  for  the  plaintiffs;  or  if  you  find, 
from  a  fair  preponderance  of  the  evidence,  the  defendant  agreed  to 
pay  them  the  sum  described  in  the  first  paragraph  of  the  complaint 
for  the  procuring  of  a  purchaser  for  said  real  estate,  then  your  find- 
ing should  be  for  the  plaintiffs,  with  interest  at  the  rate  of  —  per 
cent,  per  annum  from  demand  thereof.10 

(b)  If  the  jury  believe  from  the  evidence  that,  after  the  expira- 
tion of  the  first  contract,  A.  agreed  with  B.,  about  ,  that  if 

they  would  write  to  G.  and  S.,  offering  the  land  at  a  certain  price, 
and  that  if  said  G.  and  S.  came  down  and  bought  the  land  said  B. 


9— Munroe  v.  Snow  et  al.,  131  111. 
126  (135),  23  N.  E.  401.  "The  objec- 
tion urged  to  the  first  instruction," 
said  the  court,  "is  that  it  author- 
izes the  plaintiff  to  recover  without 
showing"  that  an  enforceable  sale  of 
the  property  had  been  made,  or 
that  the  contract  of  sale  was  com- 
pleted by  a  conveyance.  Appellant 
contends  that  inasmuch  as  he  re- 
fused to  ratify  the  contract  of  sale, 
and  that  the  purchaser  could  not 
have  it  specifically  proved  for  want 
of  written  authority  to  the  plain- 
tiffs to  make  the  sale,  he  is  not 
bound  to  pay  the  plaintiffs  any- 
thin?  for  their  services.  We  can 
not  lend  our  sanction  to  this  view 
of  the  law.  A  real  estate  broker 
employed  to  make  a  sale  of  land, 
who  finds  a  purchaser  at  the  price 
fixed  by  the  owner,  who  is  ready, 
able  and  willing  to  take  a  convey- 
ance and  pay  the  purchase  price, 
has  earned  the  compensation 
agreed  to  be  paid  him;  or,  if  the 
compensation  is  not  fixed  by  the 
parties,  he  will  be  entitled  to  re- 
rover  the  usual  and  customary  rea- 
sonable compensation  for  the  serv- 
ices performed.  Thus  in  Mc- 
Gavoch  v.  AVoodlief,  28  Howard 
321,  the  court  said:  'The  broker 
must  complete  the  sale, — that  is, 
he  must  find  a  purchaser  in  a  sit- 
uation ready  and  willing  to  com- 
plete   the    purchase    on    the    terms 


agreed  on, — before  he  is  entitled  to 
his  commissions.  Then  he  will  be 
entitled  to  them,  though  the  ven- 
dor refuses  to  go  on  and  perfect 
the  sale.'  In  Doty  v.  Miller,  43 
Barb.  529,  it  is  said:  'The  cases 
are  to  the  effect  that  a  broker  or 
agent  who  undertakes  the  sale  of 
property  for  another  for  a  certain 
commission,  if  he  find  a  purchaser 
willing  to  purchase  at  the  price, 
has  earned  and  can  recover  his 
commissions,  though  the  sale  never 
was  completed,  if  the  failure  to 
complete  the  sale  was  in  conse- 
quence of  a  defect  in  title,  and 
without  any  fault  of  the  broker  or 
agent.'  And  so  also  in  Bailey  v. 
Chapman,  41  Mo.  537,  it  is  said:'  'A 
broker  employed  to  make  a  sale 
under  an  agreement  for  a  com- 
mission is  entitled  to  pay  when 
he  makes  the  sale  according  to 
instructions  and  in  good  faith, 
and  the  principal  cannot  relieve 
himself  from  liability  by  a  re- 
fusal  to  consummate  the  sale  or 
by  a  voluntary  act  of  his  own  dis- 
abling him  from  performance.' 
We  are  entirely  content  with  the 
views  expressed  in  the  foregoing 
citations  of  authority  and  are  of 
opinion  that  there  was  no  error 
in   giving  said    instruction." 

10 — Hammond    v.    Bookwaltor    et 
al.,   12   Ind.   App.  177,   39  N.   E.   872. 


442  FORMS  OF  INSTRUCTIONS.  [§598. 

should  be  paid  —  per  cent,  commission,  and  further,  that  said  B. 
did  write  said  letter,  and  as  a  result  of  it  said  G.  and  S.  did  come 

down  and  bought  the  property  from  said  A.  for  $ ,  then  the  verdict 

must  be  for  the  plaintiffs  for  $ ,  with  interest  from  date  of  sale.11 

§  598.  Failure  of  Broker  to  Find  a  Purchaser,  or  Abandonment 
of  Effort — Sale  by  Owner.  I  instruct  you  further,  gentlemen  of  the 
jury,  that  if  you  believe  from  the  evidence  in  this  cause  that  B.  was 
unable  to  bring  a  purchaser,  ready,  able  and  willing  to  accept  the 
terms  of  purchase  laid  down  in  his  contract  with  the  owner  of 
the  property,  and  if  you  further  believe  that  his  own  efforts  to  pro- 
cure a  purchaser  had  been  abandoned,  or  if  you  believe  that  the 
broker's  authority  had  been  terminated  in  good  faith  by  the  defend- 
ant, and  that  subsequent  to  such  abandonment  or  termination  the 
defendant  itself  opened  negotiations  with  the  final  purchaser  of 
the  property,  and  consummated  that  purchase  on  account  of  its  own 
efforts,  or  on  account  of  the  efforts  of  persons  other  than  B.,  that 
under  those  circumstances  your  verdict  would  have  to  be  for  the 
defendant  in  this  cause.12 

§  599.  Customary  and  Usual  Commissions  to  be  Allowed.  (a) 
You  are  instructed  that  it  is  admitted  by  the  defendant  in  this  case 
that  the  customary  and  usual  commissions  on  sales  of  the  character 
of  the  one  here  in  question  is  two  and  one-half  per  cent.  And  you 
are  instructed  that  if,  under  the  evidence  and  the  instructions  of  the 
court,  you  find  for  the  plaintiffs,  then  your  verdict  should  be  for  two 
and  one-half  per  cent,  on  $ ,13 

11 — Holland  v.  Howard  et  al.,  105  are  pending1,   sells   the  property  to 

Ala.   538,   17   So.   35.  that    customer,    clearly    the    owner 

12 — Von  Tobel  v.  Stetson  &  Post  is  liable  for  the  broker's  commis- 
M.  Co.,  32  Wash.  683,  73  Pac.  788  (790).  sion,  notwithstanding  the  broker 
"It  is  urged  that  the  clause,  in  had  not  found  a  purchaser  ready, 
the  above  instruction,  'and  you  able  and  willing  to  take  the  prop- 
further  believe  that  his  own  ef-  erty  at  the  terms  on  which  he  held 
forts  to  procure  a  purchaser  had  the  property  for  sale.  Such  were 
been  abandoned,'  renders  the  in-  the  facts  in  the  case  before  us,  if 
struction  obnoxious,  because  it  the  respondent's  contention  be 
compelled  the  jury  to  find  not  only  true,  and  we  think  there  was  no 
that  the  broker  had  failed  to  find  error  in  the  charge  of  the  court 
a  purchaser  ready,  willing  and  as  given,  particularly  as  the  court 
able  to  take  the  property,  but  later  on  explained  the  distinction 
that  the  defendant's  efforts  to  find  between  selling  to  the  broker's 
a  purchaser  had  been  abandoned,  customer  and  to  a  third  person." 
before  the  owner  could  sell;  while  13 — Munroe  v.  Snow  et  al.,  131 
the  law  is  that  in  either  of  these  111.  126  (135),  23  N.  E.  401.  The 
events,  and  not  necessarily  on  the  court  said:  "There  was  no  error 
happening  of  both,  the  appellant  in  giving  this  instruction.  No  tes- 
was  entitled  to  a  verdict.  It  may  timony  was  taken  of  the  value  of 
be  that,  as  an  abstract  proposition  plaintiff's  services,  and  there  was 
of  law,  the  appellant's  contention  no  conflict  upon  that  point.  The 
is  correct,  but  it  does  not  neces-  parties  had  stipulated  what  the 
sarily  follow  that  an  instruction  commissions  should  be  in  case  of  a 
in  the  form  given  by  the  court  recovery  by  plaintiffs.  That  stip- 
must  in  all  cases  be  incorrect.  If  ulation  as  found  in  the  record  is: 
the  farts  of  the  case  be  that  the  'It  is  admitted  by  the  parties  that 
broker  has  a  prospective  customer,  in  the  absence  of  an  agreement 
with  whom  he  is  negotiating,  and  the  rate  of  commissions  allowed 
the  owner,  while  such  negotiations  upon    sales    of    real   estate    of   this 


§  600.]  BROKERS.  443 

(b)  The  jury  are  instructed  that  if  they  find  the  issues  in  the 
case  for  the  plaintiff  they  should  allow  him  the  customary  charges 
for  such  services,  to-wit,  five  per  cent,  on  the  first  thousand,  and 
two  and  one-half  per  cent,  on  the  balance  of  the  purchase  price.14 

(c)  You  will  ascertain  from  the  evidence  what  amount,  if  any, 
the  plaintiff  was  indebted  to  P.  for  his  services  for  procuring  such 
loan.  This  amount  you  will  deduct  from  the  amount  of  the  loan 
still  remaining  unpaid,  and  return  a  verdict  for  the  plaintiff  for  the 
difference. 

(d)  You  will  compute  interest  on  the  amount  you  find  due  the 
plaintiff,  at  the  rate  of  —  per  cent,  per  annum  from  the  date  upon 
which  the  plaintiff  made  demand  for  the  payment  of  said  sum,  as 
shown  by  the  evidence. 

(e)  The  burden  of  proof  is  upon  the  defendant  to  show  by  a  pre- 
ponderance of  the  evidence  how  much,  if  anything,  was  due  from 
L.  to  P.15 

(f)  If  the  jury  find,  from  a  fair  preponderance  of  the  evidence, 
that  the  defendant,  X,  employed  the  plaintiff,  Y,  to  sell  the  property 
in  question,  without  naming  Z  as  a  probable  purchaser,  and  that,  in 

pursuance  of  such  employment,  Y  went  to  Z  and  got  an  offer  of  $ •, 

which  he  submitted  to  said   X,   and  that   afterwards  the   defendant 

conveyed  the  property  to  Z  for  $ ,  then,  if  you  so  find,  your 

verdict  should  be  for  the  plaintiff  for  the  customary  compensation 
for  making  such  sales,  as  shown  by  the  evidence.16 

§  600.  Agreement  as  to  Broker's  Commission  May  be  Inferred 
from  the  Conduct  and  Declarations  of  the  Owner,     (a)     The  court 

instructs  the  jury  that  one  is  concluded  not  only  by  what  he  says 
or  does,  but  by  the  natural  and  reasonable  inference  from  his 
declarations  or  conduct ;  and  the  jury  will  take  into  consideration 
the  reasonable  and  usually  customary  conduct  of  the  party,  both 
plaintiff  and  defendant,  in  arriving  at  whether  or  not  an  agreement 
by  notification  was  made  between  plaintiff  and  defendant  as  to  the 
payment  of  the  commission  for  the  sale  of  the  property. 

(b)  A  party  who  negligently  or  culpably-  stands  by  and  allows 
another  to  contract  on  the  faith  and  understanding  of  a  fact  which 

size  is  two  and  one-half  per  cent.'  case  was  tried  on  the  theory  that 
The  reasonable  charge  for  com-  plaintiff  was  entitled  to  full  com- 
missions was  not,  therefore,  a  dis-  pensation  for  finding  a  purchaser 
puted  or  controverted  fact  in  the  or  nothing.  Under  the  instruc- 
case,  and  the  court  committed  no  'tion,  there  could  have  been  no 
error  in  directing  the  jury  to  com-  recovery  on  the  theory  now  ad- 
pute  plaintiff's  damages  in  accord-  vanced  by  the  defendant.  There- 
ance  with  such  stipulation  if  they  fore,  if  the  plaintiff  did  not  show 
found  the  issues  for  the  plaintiff."  himself  entitled  to  the  usual  com- 
14— Sample  v.  Rand  et  al.,  112  la.  mission  for  finding  a  purchaser,  he 
616,  84  N.  W.  683.  The  court  said:  was  not  entitled  to  anything. 
"There  was  no  conflict  in  the  evi-  Hence  there  was  no  error  in  the 
dence    regarding    the    usual    com-  instruction." 

mission      for      finding     purchasers,  15— Kansas  Loan   &   Trust  Co.   v. 

and   that  the  usual  charge  was  as  Love,  —  Kan.  — ,  45  Pac.  953   (955). 

stated    by    the    trial    court.      The  16— Sample  v.  Rand  et  al.,  supra. 


444  FORMS  OF  INSTRUCTIONS.  [§  601. 

he  can  contradict  cannot  afterwards  dispute  the  fact  against  a  per- 
son whom  he  assisted  in  misleading  or  deceiving. 

(c)  If  a  man  is  silent  when  he  ought  to  speak  he  is  debarred 
from  speaking  when,  in  conscience,  he  will  defeat  the  rights  of 
those  who  have  acquired  rights  by  his  silence.17 

§  601.  Terms  of  Contract  Affected  by  Custom — Payment  of  Com- 
mission on  Orders.  You  are  further  instructed  that  in  case  you 
are  satisfied  by  the  evidence  that,  at  the  time  plaintiff  was  em- 
ployed by  the  defendant  to  sell  books  in  Chicago,  there  was  a  gen- 
eral custom  among  those  engaged  in  the  business  in  which  defendant 
was  engaged,  and  in  which  plaintiff  was  employed,  to  pay  commis- 
sions only  upon  such  orders  taken  by  them  that  are  actually  filled 
after  being  approved  by  the  agents  of  such  houses,  and  that  all  such 
houses  reserve  the  right  to  reject  all  orders  not  considered  reliable, 
and  that  such  was  the  custom  of  the  defendant  herein,  and  you  fur- 
ther find  that  plaintiff  had  actual  knowledge  of  such  custom,  or  that 
such  custom  was  so  well  known  among  bookmen,  and  uniformly 
acted  upon,  as  to  warrant  the  presumption  that  it  was  known  by 
both  contracting  parties,  and  that  they  contracted  with  reference 
thereto,  then  you  are  instructed  that  the  making  of  a  contract  by 
the  agent  of  the  defendant  at  Chicago  to  pay  commissions  on  all 
orders  taken  by  an  agent,  regardless  of  the  fact  whether  or  not  said 
orders  are  approved  by  the  agent,  and  books  delivered  on  said 
orders,  would  not  be  within  the  apparent  scope  of  the  agent's 
authority,  and,  to  be  binding  upon  the  principal  the  agent  must 
have  express  authority  to  make  the  contract,  or  the  principal,  with 
full  knowledge  of  the  facts,  must  by  some  act  of  his  have  ratified 
the  same;  and  the  burden  of  proof  would  be  upon  the  plaintiff  to 
establish  the  express  authority  of  the  agent  to  make  such  contract, 
or  the  ratification  by  the  principal,  and,  in  case  he  has  failed  to  do 
so,  your  verdict  should  be  for  -the  defendant.18 

§  602.  Agent  Not  Allowed  to  Purchase  the  Property  of  His  Prin- 
cipal— Must  Use  Good  Faith  or  Lose  Commissions.  The  court  in- 
structs the  jury  that  an  agent  ought,  as  far  as  possible,  to  represent 
his  principal;  and,  to  the  best  of  his  ability,  he  should  endeavor  to 
successfully  accomplish  the  object  of  his  agency.  It  is  also  his  duty 
to  keep  his  principal  fully  and  promptly  informed  of  all  the  material 
facts  or  circumstances  which  come  to  his  knowledge,  and,  since  he  is 
expected  to  represent  his  principal,  he  cannot  have  a  personal  inter- 
est adverse  to  his  principal;  and  if  he  deals  with  the  subject-matter 

17_Howe  v.  Miller,  23  Ky.  App.  in  view  of  the  fact  that  the  in- 
1610,  65  S.  W.  353  (354).  These  in-  structions  given  by  the  court 
structions  were  refused,  but  the  authorized  the  jury  to  consider 
.court  says  of  them,  "while  they  all  that  occurred  between  plain- 
contain  correct  propositions  of  tiff  and  defendant  concerning  the 
law,  we  are  not  inclined  to  hold  sale  and  purchase  in  question." 
that  the  trial  court  erred  in  re-  18 — CoPier  v.  Gavin,  —  Neb.  — , 
fusing   to   give   them    in   this   case,  ■  95    N.    W.    842    (843). 


§  603.]  BROKERS.  445 

of  the  agency  the  profits  will,  as  a  general  rule,  belong  to  the  prin- 
cipal, and  not  to  the  agent.  In  all  things  he  is  required  to  act  in  entire 
good  faith  towards  his  principal.  There  are  duties  which  the  law  im- 
poses upon  an  agent,  without  any  express  stipulations  on  the  sub- 
ject; and  one  of  these  duties  of  an  agent  is  to  keep  his  principal 
informed  of  his  acts,  and  to  inform  him  within  a  reasonable  time 
of  sales  made,  and  to  give  him  a  timely  notice  of  all  facts  and  cir- 
cumstances which  may  render  it  necessary  for  him  to  take  measures 
for  his  security.  An  agent  cannot  act  for  his  principal  and  for  him- 
self in  the  same  transaction,  by  being  both  buyer  and  seller  of  prop- 
erty, and  has  no  right  to  act  as  the  agent  for  others  for  the  pur- 
chase of  property  without  the  knowledge  or  consent  of  such  owner, 
nor  to  take  any  advantage  of  the  confidence  which  his  position  in- 
spires to  obtain  the  title  in  himself.  If  you  find  that  the  defendants 
were  the  agents  of  the  plaintiff  for  the  sale  of  the  property  men- 
tioned in  the  petition,  and  that  in  making  the  sale  they  purposely 
kept  from  the  plaintiff  any  of  the  material  facts  touching  said  sale, 
for  the  purpose  of  subserving  their  own  interest,  and  intended  to 
and  did  keep  the  plaintiff  in  the  dark  as  to  such  facts  until  after 
the  said  sale  was  consummated,  and  deed  executed  by  said  plaintiff, 
then  I  instruct  you  that  they  are  not  entitled  to  a  commission  for 
selling  the  same.19 

§  603.     Commission  Merchant — Ordinary  Care  in  Selling  Property 
Required.     The  plaintiff  cannot  be  heard  to  complain  at  this  time 

19 — Jansen  v.  Williams,  36  Neb.  from  evil,'  and  that  caused  the 
869,  55  N.  W.  279,  20  L.  R.  A.  207.  announcement  of  the  infallible 
"In  Steetnische  v.  Lamb,  18  Neb.  truth,  'A  man  cannot  serve  two 
627  (26  N.  W.  Rep.  374),  is  this  masters.'  These  quotations  we 
language:  'The  rule  is  well  set-  shall  properly  close  with  the  lan- 
tled  that  a  party  will  not  be  per-  guage  of  Story,  Ag.  §  210,  quoted, 
mitted  to  purchase  an  interest  in  with  the  approval  of  this  court,  in 
property,  and  hold  it  for  his  own  Englehart  v.  Plow  Co.,  21  Neb.  48 
benefit,  where  he  has  a  duty  to  (31  N.  W.  Rep.  391):  'In  this  con- 
perform  in  relation  thereto  which  nection,  also  it  seems  proper  to 
is  inconsistent  with  his  character  state  another  rule  in  regard  to  the 
as  a  purchaser  on  his  own  ac-  duties  of  agents,  which  is  of  gen- 
count.  This  statement  was  sus-  eral  application,  and  that  is  that, 
tained  by  several  authorities  cited,  in  matters  touching  the  agency, 
and  of  its  correctness  there  can  be  agents  cannot  act  so  as  to  bind 
no  doubt.  .  .  .  Fidelity  in  the  their  principals  where  they  have 
agent  is  what  is  aimed  at,  and,  as  an  adverse  interest  in  themselves.' 
a  means  of  securing  it,  the  law  ...  It  is  unnecessary  to  quote 
will  not  permit  the  agent  to  place  further  illustrations  of  the  cor- 
himself  in  a  situation  in  which  he  rectness  of  the  instructions  given 
might  be  tempted  by  his  own  pri-  the  jury  at  the  request  of  the  de- 
vate  interest  to  disregard  that  of  fendant  in  error.  The  same  prin- 
his  principal.'  Citing  People  v.  ciples  announced  in  these  instruc- 
Township,  11  Mich.  222.  This  doc-  tions  pervade  all  the  text  works, 
trine,  to  speak  again  in  the  beau-  and  the  decisions  of  the  courts, 
tiful  language  of  another,  'has  which  have  to  deal  with  the  rela- 
its  foundation,  not  so  much  in  the  tions  of  principal  and  agent.  In 
commission  of  actual  fraud  as  in  none  of  them  is  recognized  the 
that  profound  knowledge  of  the  right  of  the  suppression  of  impor- 
human  heart  which  dictated  that  tant  facts,  of  which  the  principal 
hallowed  petition,  'Lead  us  not  had  a  right  to  be  informed,  as  a 
into    temptation,     but     deliver    us  part    of    'the    secrets    of    the    real 


446  FORMS  OP  INSTRUCTIONS.  [§  604. 

as  to  the  prices  received  for  said  property,  and  as  to  the  matter  of 
caring  for  and  disposing  of  the  said  property,  provided  the  jury 
find  that  the  defendant  used  ordinary  care  and  prudence  in  caring 
for,  selling  and  disposing  of  said  property,  and  would  only  be  obliged 
to  account  to  the  plaintiff  for  the  proceeds  arising  from  said  sale 
after  paying  the  expenses  of  feeding  and  caring  for  said  property.20 

§  604.  Brokers — Action  for  Compensation — License — Series,  (a) 
This  is  an  action  brought  by  W.  R.,  the  plaintiff:,  against  G.  R.  and 
W.  P.,  trading  as  R.  &  P.,  the  defendants,  for  the  recovery  of  the  sum 
of  $ ,  claimed  to  be  due  and  owing  from  the  defendants  for  serv- 
ices rendered  by  the  plaintiff  in  the  month  of  March,  1903.  The 
plaintiff,  a  real  estate  broker  of  the  city  of  Philadelphia,  claims  that 
on  or  about  March  9  or  10,  1903,  he^secured  or  arranged  a  meeting 
between  the  defendants  and  the  L.  Imp.  Co.,  or  its  rejDresentative, 
which  meeting  resulted  in  the  defendants  securing  a  contract  for  the 
erection  of  127  buildings  in  this  city  at  or  near  the  corner  of  V 
ave.  and  S  st. ;  and  that  in  return  for  such  service  the  defendants 
verbally  agreed  with  the  plaintiff  that  they  would  pay  him  1  per 
cent,  of  the  gross  amount  of  the  said  contract,  that  is  to  say,  1  per 
cent,  of  the  total  amount  of  the  moneys  advanced  for  the  purchase 
of  the  ground  and  construction  of  the  houses,  and  secured  by  mort- 
gages upon  properties  covered  by  the  contract.  The  plaintiff  further 
claims  that  the  total  amount  of  moneys  so  advanced  and  so  secured 
was  the  sum  of  $ ,  and  that  his  commission,  under  said  agree- 
ment, amounts  to  the  sum  of  $ ;  that  being  1  per  cent,  of  said 

sum.  The  defendants  deny  that  they  ever  at  any  time  agreed  to 
pay  the  plaintiff  the  commissions  claimed  by  him,  or  any  sum  what- 
soever, and  also  deny  that  he  was  in  any  manner  instrumental  in 
securing  the  contract  for  the  erection  of  the  houses  aforesaid.  They 
insist,  on  the  contrary,  that  the  service  for  which  the  plaintiff  is 
seeking  to  recover  from  them  in  this  action  was  performed  by  an- 
other person,  and  one  who  had  no  connection  or  relation  at  all  with 
the  plaintiff. 

(b)  There  are  several  counts  in  the  plaintiff's  declaration;  some 
of  them  averring  that  the  defendants  agreed  with  the  plaintiff  that 
they  would  pay  him  the  commissions  claimed  in  consideration  of  his 
having  brought  them  in  contact  with  the  parties  with  whom  they 
made  the  contract  for  the  erection  of  said  houses,  and  thereby  en- 
abling them  to  secure  the  said  contract.  The  declaration  contains 
also  the  common  counts  for  work  and  labor  performed,  and  services 
rendered  by  the  plaintiff  for  the  defendants  in  and  about  the  busi- 
ness aforesaid ;  and,  upon  these  counts,  even  should  you  believe  there 
was  no  agreement  upon  the  part  of  the  defendants  to  pay  the  com- 
missions claimed,  or  any  other  sum,  the  plaintiff  would  be  entitled 

estate    business,'    as    was    claimed        20— McCready  V.  Phillips,  44  Neb. 

by   plaintiff   in   error— in  his   testi-     790,  63  N.  W.   7   (12). 

mony." 


§  604.]  BROKERS.  447 

to  recover  such  sum  as  you  believe  from  the  evidence  the  services  he 
rendered  were  reasonably  worth  to  the  defendants,  provided  you  are 
satisfied  from  a  preponderance  of  the  evidence  that  he  did  render 
services  which  resulted  in  the  defendants  securing  the  said  contract. 

(c)  We  have  been  asked  by  the  defendants  to  charge  you  that 
inasmuch  as  it  does  not  appear  from  the  evidence  that  the  plaintiff 
was  licensed  to  engage  in,  or  carry  on,  the  business  of  a  real  estate 
broker  in  Pennsylvania  at  the  time  he  claims  to  have  contracted  in 
that  capacity  to  serve  the  defendants,  that  such  contract,  if  it  was 
made,  is  not  therefore  entitled  to  have  applied  to  it  the  construc- 
tion attached  to  the  contract  of  a  licensed  real  estate  broker  in  Penn- 
sylvania. We  will  say,  in  response  to  this  request,  that  there  is  noth- 
ing in  the  evidence  to  show  that  a  real  estate  broker  is  required, 
under  the  law  of  the  state,  to  have  a  license  in  order  to  carry  on 
said  business,  and  there  is  no  averment  in  the  pleadings  that  the 
plaintiff  was  acting  as  a  licensed  real  estate  broker  in  the  transac- 
tion of  the  business  in  question.  It  is  not  essential  to  the  plaintiff's 
recovery  in  this  action  that  he  should  have  been  actually  requested 
by  the  defendants  to  bring  them  in  touch  with  the  L.  Imp.  Co.  If 
you  believe  that  the  plaintiff,  with  the  consent  of  the  defendant, 
brought  the  contracting  parties  together,  and  was  thereby  the  pro- 
curing cause  of  the  contract  actually  made  between  the  defendant 
and  said  company,  then  the  said  plaintiff  would  be  entitled  to  such 
commissions  as  he  may  have  proved  the  defendants  had  agreed  to 
pay  him  for  the  procuring  of  such  contract,  or,  in  the  absence  of 
such  proof  as  to  the  payment  of  the  commissions,  to  such  compensa- 
tions as  the  jury  may  think  he  reasonably  deserves  for  the  procur- 
ing of  such  contract. 

(d)  A  real  estate  broker  is  entitled  to  his  compensation  or  com- 
mission, either  on  a  quantum  meruit,  or  under  the  express  terms 
of  the  contract  of  agency,  whenever  he  procures  for  his  principal  a 
party  with  whom  the  principal  is  satisfied  and  who  actually  makes  a 
contract  with  the  principal  at  a  price  acceptable  to  the  principal, 
provided  that  the  broker  was  the  procuring  cause.20" 

(e)  But  if  you  believe  from  the  evidence  that  some  person  other 
than  the  plaintiff  performed  the  service  that  the  plaintiff  claims  to 
have  performed,  which  was  the  procuring  cause  of  the  contract  made 
between  the  defendants  and  the  L.  Imp.  Co.,  and  that  there  was  no 
agreement  by  the  defendants  to  pay  the  commissions  claimed,  or,  in 
other  words,  if  you  are  not  satisfied  that  the  plaintiff  did  perform 
the  service  he  claims  to  have  performed,  and  do  not  believe  the  de- 
fendants agreed  to  pay  the  plaintiff  the  said  commissions,  he  would 
not  be  entitled  to  recover  anything  in  this  case,  you  must  be  satis- 

-0i— Seabury  v.  Fidelity,  205  Pa.  Goldsmith,  16  Pa.  43;  In  re  G-ibson's 
234  54  Atl.  898;  Sweenev  v.  Oil  Co.,  Estate,  161  Pa.  177,  28  Atl.  1079; 
130  Pa  193.  18  Atl.  612;  Kevs  v.  Hippie  v.  Laird.  1S9  Pa.  472.  42  Atl. 
Johnson,    68     Pa.    42;    Edwards    v.     46:    Reed's   Ex'rs   v.    Reed,    82    Pa. 

420. 


448  FORMS  OF  INSTRUCTIONS.  [§  605. 

fied  from  a  preponderance  of  the   evidence   that  he  is   entitled  to 
recover. 

(f)  If  you  find  the  evidence  conflicting  upon  any  material  point, 
it  is  your  duty  to  reconcile  it  if  you  can,  and  if  it  is  irreconcilable 
you  should  accept  as  true  such  evidence  as  you  believe  most  entitled 
to  credit,  taking  into  consideration  the  character  of  the  witnesses, 
their  apparent  fairness  and  accuracy,  their  disinterestedness,  and  all 
the  other  circumstances  of  the  case  as  disclosed  by  the  evidence.21 


BOARD  OF  TRADE  TRANSACTIONS. 

§  605.  Contracts  Legal,  (a)  If  the  jury  believe,  from  the  evi- 
dence, that  the  defendant  employed  the  plaintiff  to  act  for  him  in 
the  capacity  of  broker  or  commission  man  to  purchase  and  sell  grain 
for  him  on  the  board  of  trade,  and  that,  acting  under  that  employ- 
ment, the  plaintiff  did  in  good  faith  contract  to  purchase  for  the  de- 
fendant 2,000  bushels  of  No.  2  corn,  to  be  delivered  during  the  then 

next  month  of  ,  then  the  fact,  if  proved,  that  the  defendant 

intended  to  resell  the  same  corn  before  the  time  of  its  delivery 
under  such  contract  of  purchase,  would  not  alone  render  the  trans- 
action a  gambling  contract  or  in  any  manner  invalidate  it.22 

(b)  The  jury  are  further  instructed,  that  if  one  of  the  parties  to 
a  contract  for  the  future  sale  and  delivery  of  grain  contemplates 
and  intends  an  actual  sale  and  delivery,  then  the  transaction  would 
be  legal  and  binding,  irrespective  of  any  illegal  purpose  entertained 
by  the  other  party;  a  contract  cannot  be  a  gambling  contract  unless 
both  parties  concur  in  the  illegal  intent.23 

§606.  Putting  up  Margins  Held  Legal — Usage  and  Custom  Upon 
the  Board  Governs  the  Transactions  in  Absence  of  Express  Agree- 
ment, (a)  If  the  jury  believe,  from  the  evidence,  that  the  plain- 
tiffs, as  commission  merchants,  did,  at  the  time  alleged,  enter  into 
contracts  upon  the  board  of  trade  in  C,  for  the  purchase  of,  etc., 
upon  the  order  of  the  defendant  and  as  ordered  by  him,  and  that  by 
the  (rules  of  the  board),  or  by  the  general  and  uniform  custom  and 
usage  prevailing  among  dealers  on  the  board,  the  plaintiffs  were  re- 
quired to  furnish  a  certain  sum  of  money  as  margins  upon  such  con- 
tracts, then  and  in  that  case  it  became  the  duty  of  the  defendant  to 
furnish  to  the  plaintiffs  a  reasonable  sum  as  such  margins,  when 
called  upon  so  to  do.  And  if  the  jury  further  believe  from  the  evi- 
dence that  the  plaintiffs  did  enter  into  such  contracts,  as  aforesaid, 
upon  said  board  and  upon  the  order  of  the  defendant,  and  were  re- 
quired by  the  (rules)  or  customs  and  usage  aforesaid  to  put  up 
margins,  and  that  they  called  upon  the  defendant  for  a  reasonable 

21— The     six     instructions     above  23— Gregory  v.  "Wendall,  40  Mich. 

Were     approved      in      Richards     v.  4*2;     Story    v.    Solomon,    71    N.    Y. 

Richman,   —  Del.   — ,  64  Atl.   238.  420;    Wall    v.     Schneider,     59    Wis. 

22— Sawyer   v.    Taggart,    14   Bush  352,   —  N.   W.  — . 
(Ky.)    727. 


§  607.]  BROKERS.  449 

sum  of  money  as  such  margins,  and  that  the  defendant  when  so 
called  upon  neglected  or  refused,  or  was  unable  to  furnish  the  same 
within  a  reasonable  time,  then  the  plaintiffs  had  the  right  to  close 
out  the  contracts  so  made  by  them,  and  thereby  determine  the  loss, 
if  any,  sustained  by  them  by  reason  of  such  contracts,  and  call  upon 
the  defendants  to  make  good  such  loss;  provided  the  jury  believe, 
from  the  evidence,  there  was  no  special  contract  or  arrangement  be- 
tween the  parties,  varying  these  rules  or  usages  and  customs. 

(b)  If  the  jury  believe,  from  the  evidence,  that  some  time  on 
and  about,  etc.,  the  plaintiff  and  the  defendant  entered  into  a  con- 
tract, whereby  it  was  in  good  faith  mutually  agreed  between  them 
that  defendant  should  sell  to  the  plaintiff  25,000  bushels  No.  2  corn, 
at  43  cents  per  bushel,  deliverable  to  the  plaintiff  at  any  time  during 
the  month  of  (November)  following,  at  the  option  of  the  defendant, 
the  plaintiff  to  j:>ay  for  the  same  at  the  price  of  43  cents  per  bushel 
on  delivery,  then  such  contract  would  be  valid  and  binding  upon  the 
parties.24 

§  607.  Right  to  Close  Out  Contracts  and  to  Determine  the  Loss 
When  the  Defendant  Neglects,  Refuses  or  is  Unable  to  Furnish  the 
Required  Margins,  (a)  If  the  jury  believe,  from  the  evidence,  that 
on  and  about,  etc.,  the  parties  in  good  faith  entered  into  a  contract 
whereby  it  was  mutually  agreed  between  them  that  defendant  should 
sell  to  the  plaintiff  25,000  bushels  of  No.  2  corn,  at  43  cents  per 
bushel,  deliverable  to  the  plaintiff  at  any  time  during  the  month 
of,  etc..  at  defendant's  election,  the  plaintiff  to  pay  for  the  same  at' 
the  price  aforesaid  on  delivery — and  if  the  jury  further  believe 
from  the  evidence  that  such  contract  was  made  between  the  parties 
as  members  of  the  board  of  trade  at,  etc.,  and  under  the  rules  of 
said  board,  and  that  it  was  one  of  the  rules  of  said  board  or 
that  there  was  any  general  and  uniform  custom  or  usage 
among  dealers  on  said  board  that  when  such  contracts  had 
been  made  and  the  price  of  the  grain  should  advance  before  the 
time  of  delivery  of  the  same,  that  then  the  purchaser  had  the  right 
to  call  upon  the  seller  to  put  up  or  deposit  a  sum  of  money  as  mar- 
gins reasonably  sufficient  to  insure  the  performance  of  the  contract 
by  the  seller  and  that  in  case  of  his  failure  so  to  do  that  the  pur- 
chaser should  have  the  right  to  go  upon  the  board  and  purchase  an 
equal  amount  of  grain  at  the  then  market  price  for  account  of  the  seller, 
charging  him  with  the  difference  between  the  contract  price  and 
such  market  price — and  if  the  jury  further  believe  from  the  evi- 
dence that  on  or  about,  etc.,  the  market  price  of  said  corn  on  said 
board  of  trade  did  advance  to  about  49  cents  per  bushel  and  that 
plaintiff  then  requested  defendant  to  put  up  such  margins,  and  de- 
fendant neglected  and  refused  to  do  so  within  a  reasonable  time  after 
such  demand,  then  the  plaintiff  had  a  right  to  go  into  the  market  and 

24— Denton    v.     Jackson,     106    111.      324;     Miller     v.     McLagan,     60     111. 
433;    Corbit    v.    Underwood,    83    111.     317. 

29 


450  FORMS  OP  INSTRUCTIONS.  [§608. 

purchase  for  the  account  of  the  defendant  25,000  bushels  of  No.  2 
corn  to  be  delivered,  etc.,  at  the  then  market  price.25 

(b)  If  the  jury  find,  from  the  evidence,  that  there  was  a  contract 
between  the  parties  as  to  the  amount  of  margins  which  plaintiff 
should  put  up  for  the  protection  of  the  defendants  in  their  deals  for 
him,  and  that  the  plaintiff:  did  not  keep  up  the  margin  which  he  had 
contracted  to  do,  and  that  demand  therefor  was  made  by  the  de- 
fendants, and  that  upon  such  demand  the  plaintiff  neglected  and 
refused  to  put  such  margins  within  a  reasonable  time  after  such  de- 
mand, then  the  defendants  would  have  a  right  to  close  out  the  plain- 
tiff's deals  in  accordance  with  the  usages  and  customs  prevailing 
among  dealers  on  the  board  of  trade,  provided  the  jury  believe,  from 
the  evidence,  that  there  was,  at  the  time,  any  general  uniform  and 
well  known  usage  or  custom  governing  such  matters  among  dealers 
on  the  board  of  trade.26 

S  608.  Board  of  Trade  Transactions  for  the  Privilege  of  Selling 
and  Future  Delivery  of  Grain  Held  to  be  Gambling  Contracts  Under 
Certain  Circumstances,  (a)  The  jury  are  instructed  that  a  con- 
tract for  the  sale  and  future  delivery  of  grain,  by  which  the  seller 
has  the  privilege  of  delivering  or  not  delivering,  and  the  buyer 
the  privilege  of  calling  or  not  calling  for  the  grain,  just  as  they 
choose,  and  which  on  its  maturity  is  to  be  filled  by  adjusting  the 
differences  in  the  market  value,  is  an  option  contract  in  the  nature 
of  a  gambling  transaction,  prohibited  by  law.  And,  if  the  jury  be- 
lieve,  from   the    evidence,    that    the   purchases    and   sales    of   grain 

involved  in  this  suit  were  made,  and  were  intended  by  both  

and  the  firm  of to  be  made,  as  a  means  of  gambling  on  the 

fluctuation  in  the  market  price  of  such  grain,  and  that  no  delivery 
or  acceptance  of  grain  was  intended  by  either  of  the  parties,  then 

the  plaintiff,   ,  is  not  entitled  to  recover  for   any   alleged 

profits  or  margins,  and  the  defendants,  ,  are  not  entitled  to 

recover  for  any  margins  upon  the  losses  alleged  to  have  been  sustained 
by  them.     Neither  can  recover  in  such  event.27 

(b)  The  jury  are  instructed,  that  a  contract  for  the  sale  and 
future  delivery  of  grain,  by  which  the  seller  has  the  privilege  of 
delivering  or  not  delivering,  and  the  buyer  the  privilege  of  calling 
or  not  calling  for  the  grain,  just  as  they  choose,  and  which,  on  its 
maturity,  is  to  be  filled  by  adjusting  the  differences  in  the  market 

25 — Follansbee    v.    Adams,    S6    111.  Schneider    v.    Turner,    27    111.    App. 

13.  220;    Same    v.    Same,   130    111.    28,    22 

26— Denton    v.     Jackson,     106    111.  N.    F.   497;    Gregory   v.   Wendell,   39 

433.  Mich.  337,  33  Am.  Rep.  390;   Yerkes 

27— Watte  v.  Costello,  40  111.  App.  v.  Salomon,  11  Hun  437;  Cunning- 
307  (309).  That  the  foregoing  is  a  ham  v.  The  Nat.  Bank  of  Augusta, 
correct  statement  of  the  law  can  71  Ga.  400,  51  Am.  Rep.  266;  Bar- 
not  be  gainsaid,  citing:  Criminal  nard  v.  Backhaus,  52  Wis.  593,  6 
Code,  Starr  &  C.  111.  Stats.;  Pick-  N.  W.  252;  Fareira  v.  Gabell,  89 
ering  v.  Cease,  79  111.  328;  Cothrnn  Pa.  St.  294;  Hawley  v.  Bibb,  69 
v.  Ellis,  125  111.  496,  16  N.  F.  646;  Ala.  52;  In  re  Green,  7  Biss.  338; 
Tenney    v.    Fcote,   4   111.    App.   594;  Rudolf  v.  Winters,  7  Neb.  125. 


§  608.]  BROKERS.  451 

value,  is  an  option  contract,  in  the  nature  of  a  gambling  transaction 
prohibited  by  law.2S 

(c)  A  dealer  on  the  board  of  trade  has  a  right  to  sell  and  agree 
to  deliver  at  some  future  time  property  which  he  does  not  own  at 
the  time  but  which  he  expects  to  go  into  the  market  and  buy,  but 
an  agreement  for  a  sale  and  future  delivery  of  grain  is  a  gambling 
contract  and  illegal  if  it  is  the  understanding  and  intention  of  both 
the  parties  at  the  time  that  there  is  to  be  no  actual  sale,  purchase, 
receipt  or  delivery  of  the  grain,  at  the  time  fixed  for  the  delivery 
thereof  but  only  that  the  parties  shall  only  then  settle  and  the  pur- 
chaser receive  or  pay  the  difference  between  the  agreed  price  and 
the  market  price  according  as  the  market  price  is  less  or  greater 
than  the  agreed  price.29 

(d)  One  of  the  questions  to  be  passed  upon  by  the  jury  is  this: 
Was  there  an  actual  bona  fide  contract  between  the  parties,  for  a 
sale  of  corn  to  be  delivered  by  the  seller  and  received  by  the  pur- 
chaser, or  was  it  understood  that  no  grain  should  be  actually  pur- 
chased or  delivered,  but  only  that  a  settlement  should  be  made  upon 
the  basis  of  the  market  price  at  the  time  mentioned  for  delivery.30 

(e)  If  the  jury  believe,  from  the  evidence  in  this  case,  that  the 
deals  or  contracts  shown  in  evidence  were  a  mere  contrivance  for 
enabling  the  parties  thereto  to  hazard  the  deposit  of  money  on  the 
fine luations  of  the  market  value  of  No.  2  spring  wheat,  and  were 
not,  in  fact,  real  contracts  for  the  sale  of  wheat  by  the  parties 
thereto,  then  the  jury  are  instructed,  as  a  matter  of  law,  that  such 
deals  or  contracts  were  illegal  and  void,  and  would  be  binding  on 
neither  party.31 

(f)  If  by  the  contract  for  the  sale  of  the  wheat  in  question 
neither  party  intended  to  deliver  or  receive  any  wheat  under  the 
contract,  but  that  the  parties  expected  thereby  to  wager  the  mar- 
gin deposited,  and  that  either  party  had  the  option  to  annul  the 
contract  at  any  time  by  refusing  to  put  up  additional  margins,  and 
that,  in  fact,  the  contract  was  a  mere  devise  for  carrying  out  a 
wager  on  the  market  value  of  the  wheat  and  was  not  a  bona  fide  sale 
or  agreement  to  sell  for  future  delivery,  then  the  jury  are  instructed 
that  such  contract  is  illegal  and  void.32 

(g)  Although  the  jury  may  believe,  from  the  evidence,  that  at  or 
about  the  time  stated,  the  plaintiff  and  defendant  entered  into  a 
contract  by  which  it  was  nominally  and  in  terms  agreed  between 
them,  etc.,  still,  if  the  jury  further  believe  from  the  evidence  that 
at  the  time  of  making  said  agreement,  neither  of  the  parties  contem- 
plated an  actual  sale  and  delivery  of  said  corn,  but  that  it  was  under- 

28— Pickering  v.  Cease,   supra;   In  31— Lowry    v.     Dillman,     59    Wis. 

re    Green,    supra;    Rudolf    v.    Win-  197,  18  N.  W.  4;    Barnard   v.   Back- 

ters    supra.  haus,    52   Wis.    593,    6  N.   W.   252. 

?9— Gregory  v.   Wendall,  40  Mich.  32— Tomblin  v.    Callen,   69  la.   229, 

432;    Ramsey   v.   Berry,   65   Mo.    574.  28   N.  W.   573;   First  Nat.  B.  v.  Os- 

30— Kirkpatrick     v.      Bousell,      72  kaloosa  P.   Co.,  66  la.  41,  23  N.  W. 

Pa.    St.    155.  255. 


452  FORMS  OF  INSTRUCTIONS.  [§  609. 

stood  between  them  that  the  said  deal  was  to  be  settled  by  the  par- 
ties by  the  payment  from  one  to  the  other  of  the  difference  between 
the  agreed  price  and  the  market  price  on  the  day  of  settlement,  then 
such  a  contract  is  in  law  regarded  as  a  gambling  transaction  and  is 
illegal  and  void,  and  neither  party  can  sustain  an  action  for  a  breach 
of  such  contract.33 

§  609.  Options  on  Board  of  Trade — Delivery — Settlement  Made 
on  Difference  in  Price.  The  jury  are  instructed  that  the  mere  fact, 
if  proven,  that  the  transactions  on  the  board  of  trade  set  out  in 
plaintiff's  declaration  were  closed  out  before  maturity  and  an  ac- 
count of  the  losses  rendered  to  defendant  upon  the  basis  of  differ- 
ence in  price,  does  not  of  itself  necessarily  prove  that  the  parties 
from  the  beginning  intended  that  the  commodities  sold  should  not  be 
delivered,  and  settlement  therefor  should  be  made  on  the  basis  of 
difference  in  price ;  and  you  are  further  instructed  that  unless  you 
believe  from  the  evidence  that  there  was  an  agreement  or  under- 
standing between  the  plaintiff  and  the  defendant  at  or  before  the 
sale  of  any  of  the  grain  in  ^  controversy,  that  no  grain  should  be 
delivered  or  received,  and  settlements  therefor  should  be  made  only 
on  differences,  then  you  should  find  for  the  plaintiff  for  such  amount, 
if  any,  as  you  believe  from  the  evidence  to  be  due  from  the  de- 
fendant.34 

§  610.  Considerations  Determining  the  Legality  of  Board  of  Trade 
Transactions — Series,      (a)      The  plaintiffs   claim  that  defendant  is 

indebted  to  them  in  the  sum  of  $ as  commission  due  them  as 

commission  merchants  in  the  purchase  of  bushels  of  wheat ; 

also  that  they  purchased  in  the  city  of five  thousand  bushels 

of  wheat  for  the  defendant,  and  by  the  terms  of  such  sale  the  de- 
fendant was  required  to  place  in  their  hands  a  sufficient  sum  of 
money  to  protect  and  indemnify  them  against  loss,  and  by  reason 
of  the  decline  in  wheat  the  sum  of  $ in  the  hands  of  plain- 
tiffs belonging  to  the  defendant  was  not  a  sufficient  protection  and 
indemnity  to  them  against  loss;  and  after  notice  to  defendant  to 
place  in  their  hands  a  greater  sum  of  money,  they  sold  the  wheat, 

which  they  claim  a  right  to  do,  at  a  loss  to  them  of  $ ,  from 

which  deducting  the  sum  of  $ — ,  made  a  clear  loss  of  $ . 

(b)     The  defendant  insists  that  they  purchased  no  wheat  nor  did 

the  plaintiff  sell  him  any  wheat,  but  that  in  the  month  of  , 

he  contracted  with  plaintiff  for  the  purchase  of  bushels   of 

wheat  to   be   delivered  in   the   month   of  ,  with  the  mutual 

understanding  that  no  wheat  was  purchased  or  sold  or  would  be  re- 
quired to  be  delivered,  but  that  the  transaction  should  be  adjusted 
between  the  parties  upon  the  basis  of  the  market  value  of  wheat  in 
C.  at  the  date  of  the  pretended  purchase  and  pretended  sale  (on 
maturity  of   the   contract)    when,   in   fact,   no  wheat   was   bought   or 

33 — Tenney   v.    Foote,    4    111.    App.         34.— Oldershaw    v.    Knoles,    6    111. 
594  App.    325:   Dillon   v.   McCrea  &  Co.,* 

59    111.    App.    505    (511). 


§  610.]  BROKERS.  453 

sold.     In  brief,  that  it  was  a  bet  or  wager  on  the  price  of  wheat  at 
a  given  time. 

(c)  If  defendant  did  purchase  of  plaintiffs  five  thousand  bushels 
to  be  delivered  to  him  at  a  future  date,  this  would  be  a  legitimate 
and  proper  transaction,  and  it  is  competent  for  parties  to  make 
such  contract. 

(d)  It  is  for  you  to  determine  from  the  evidence  whether  the 
plaintiffs  were  by  the  nature  of  the  contract  authorized  to  sell  the 
wheat  before  the  maturity  thereof,  and  whether  the  plaintiffs  should 
have  served  notice  upon  the  defendant  that  a  further  deposit  of 
money  was  demanded  from  him  to  make  his  contract  good,  and  if  in 
point  of  fact  such  notice  was  served  on  defendant.  If  by  the  terms 
of  the  contract  and  nature  of  the  business  the  plaintiffs  required  of 
the  defendant  any  sum  of  money  "to  make  his  deal  good,"  it  was 
the  duty  of  plaintiffs,  before  they  could  ' '  close  him  out ' '  or  sell 
his  wheat,  to  notify  him  of  such  fact,  and  give  him  a  reasonable 
time  to  respond.  Unless  there  was  such  a  usage  or  custom  in  the 
business  being  transacted,  and  in  connection  with  the  transaction 
out  of  which  the  alleged  indebtedness  grew  of  which  the  defendant 
was  advised  or  had  notice,  and  demand  was  waived  by  him,  then  the 
plaintiffs  by  selling  the  wheat  before  the  date  of  delivery  of  the 
wheat  or  the  maturity  of  the  contract  for  delivery,  could  not  sell 
the  same  and  charge  the  defendant  with  the  loss  thereon. 

(e)  If  the  plaintiffs  purchased  the  wheat  for  the  defendant,  and 
by  reason  of  his  failure  he  failed  to  pay  up  further  margins  to 
protect  them  after  a  "call"  therefor,  by  reason  of  such  failure  they 
did,  to  protect  themselves  from  loss  while  holding  such  wheat  for 
the  defendant,  sell  the  same,  and  a  loss  was  incurred,  this  was  within 
their  contract  and  was  contemplated  and  understood  by  them,  then 
the  defendant  must  make  the  loss  good  and  respond  in  damages 
to  the  extent  of  such  loss. 

(f)  If  the  sum  of  money  sued  for  was  paid  out  at  the  request 
of  defendant,  or  a  liability  was  incurred  by  the  plaintiff  at  the  re- 
quest of  defendant,  whereby  they  were  required  to  pay  out  such 
sum  of  money  upon  such  liability  for  his  use  and  benefit,  then  he 
should  refund  such  sum  of  money  thus  paid  out. 

(g)  If  it  was  the  mutual  contract  of  parties,  plaintiff  and  de- 
fendant and  they  so  actually  understood  the  same  that  no  wheat  was 
actually  to  be  delivered,  and  that  the  contract  was  not  in  fact  to 
be  performed,  that  the  "deal"  should  be  settled  upon  the  basis  of 
the  contract  and  market  prices,  then  the  plaintiffs  cannot  recover  in 
this  case.  But  it  is  not  sufficient  that  the  defendant  so  understood 
the  contract  or  "deal,"  but  the  plaintiffs  must  be  a  party  to  such 
contract  and  understanding.  If  it  was  a  proper  and  lawful  con- 
tract on  their  part,  and  entered  into  by  them  in  good  faith,  intending 
to  perform  the  same,  then  it  is  immaterial  as  to  the  private  under- 
standing of  the  defendant/'5 

35— Above    series     approved    in    Whitesides    v.  Hunt,   97  Ind.  191   (192). 


CHAPTER  XXXVII. 


CONTRACTS. 


See    Erroneous    Instructions,   same   chapter   head,   "Vol.    III. 


§611. 
§612. 
§613. 

§614. 

§615. 
§616. 

§617. 
§  618. 

§619. 
§  620. 

§621. 

§  622. 
§  623. 

§624. 
§  625. 
§<  626. 
§  627. 

§  628. 

§  629. 
§  630. 


What  constitutes  a  contract 
—Assent    of    parties. 

Capacity  to  contract — Pre- 
sumption. 

Degree  of  insanity  neces- 
sary to  relieve  from  con- 
sequences   of    acts. 

Mental  powers  impaired  by 
age,  weakness,  or  bodily  in- 
firmity not  sufficient  to 
vitiate   a   deed. 

When  a  man  is  held  to  be  of 
sound    mind — Improvident. 

Mental  capacity  to  make 
contract — Insane  delusion — 
Relation  of  same  to  subject 
matter. 

Insanity — Contract  entered 
into  by  reason  thereof. 

Drunkenness  —  Procurement 
by   other   party   to   contract     §  638 
— Degree    of   to   avoid. 

Minor's  contract  for  neces- 
saries. 

What  is  consideration — A 
promise  for  a  promise  is  a 
good     consideration. 

Consideration  known  or  un- 
derstood   by   parties. 

New      promise      to      perform     §  641. 
legal    obligation. 

Inhibition     against     engaging     §  642. 
in   business    in    same    city — 
Consideration     for.  §  643. 

Assignment  of  judgment — 
Amount    paid — Solvency.  §  644. 

Release  without  considera- 
tion— Nudum   pactum.  §  645. 

Failure        of        consideration     §  646. 
where   there  is  no  fraud. 

Failure       of      consideration — 
— False        representations —     §  647. 
Caveat    emptor. 

Promise    upon    valuable    con- 
sideration   from    one   person     §  648. 
to  another  to  pay  third  per- 
son—Statute   of   Frauds.  §  649. 

Construction  of  contracts  for 
the  court. 

Construction   one   of   law   for     §  650. 
the    court,    but     latent    am- 
biguities  may  be  submitted     §  651. 
to   the   jury. 

454 


Legal  effect  of  contracts — 
Meaning  of  ambiguous  con- 
tract. 

Construction  of  contract  as 
to  delivery — Goods  dam- 
aged   by    weather. 

Construction  of  contract  for 
sinking    a    well. 

Completion  of  contract — 
Test  of  work  and  postpone- 
ment of  trial  of  machine, 
construed. 

Changes  made  at  plaintiff's 
suggestion  so  as  to  be  sat- 
isfactory— Construed. 

Written  contract  controls 
verbal. 

Custom  and  usage  enter  in- 
to and  form  part  of  a  con- 
tract. 

Contract  against  public 
policy,  void — Limitation  of 
the  rule — Bona  fide  pur- 
chaser. 

Agreement  for  dismissal  of 
criminal  persecution  is 
void. 

Contract  to  testify  for  com- 
pensation held  unenforcible. 

Gaming — Action  for  money 
lost. 

Contract  made  on  Sunday — 
Illinois. 

Same  subject  —  Georgia  — 
Iowa — Indiana. 

Specific  contract  must  be 
proved — Burden     of    proof. 

Agreement  to  purchase  stock. 

Entering  upon  the  perform- 
ance of  offer  shows  accept- 
ance. 

Liability  on  agreement  to 
pay  for  merchandise  de- 
livered  to   third    person. 

Third  person  can  sue  on  con- 
tract   made   for   his   benefit. 

Claim  to  recover  from  es- 
tate for  taking  care  of  de- 
ceased. 

Rescinding  by  mutual  con- 
sent. 

Rescinding  for  non-perform- 
ance. 


§611. 


CONTRACTS. 


455 


652.  Parol      agreement      avoiding 

contract — Burden    of    proof. 

653.  Failure     of    one     to    perform 

entitling  the  other  to 
abandon    contract — When. 

654.  A       party       cannot       recover 

money  paid  where  he  him- 
self refuses  to  perform,  in 
the    absence    of    fraud. 

655.  Releasing  plaintiff  from  com- 

plete compliance — Agreeing 
to  pay  for  work  actually 
done. 

656.  Only    Act    of    God    or    public 

enemies,  will  excuse  non- 
performance— What  an  Act 
of  God. 

657.  Unforeseen  contingencies, 

sickness,  bad  weather  or 
roads,    no    excuse. 

658.  Notice     to      rescind — Reason- 

able time  after  discovery 
of  fact,  giving  right  to  re- 
scind. 

659.  Release    obtained    by    fraud. 

660.  Revocation    of    contract    with 

attorney  to  represent  an 
heir  on  a  contingent  basis — 
Series. 

661.  Plaintiff     ready    and     willing 

to  receive  subject  matter — 
Damages. 

662.  Failure       to      accept — Dimin- 

ished profits  no  excuse. 

663.  Failure   of  title  as   a  breach 

of   contract. 

664.  Breach    of    contract    for    sale 

of  good  will  of  business — 
Elements  that  must  be 
proved. 

665.  Defective       machinery — Rea- 

sonable time  to  fix. 

666.  Irrigation      contract,      breach 

of  damages — Public  utility 
corporations. 

667.  Plaintiff     must     show    readi- 

ness to  perform. 


§  668.  Defense  of  payment— Set  off 
— Burden   of   proof. 

§  669.  Retention  of  money  un- 
der an  agreement  would 
amount  to  a  payment  of 
the   indebtedness. 

§  670.  Action  for  money  loaned — 
Partial  payments— Statute 
of  limitations. 

§  671.  Wrongful  delay  in  payment 
— Money  withheld  unrea- 
sonably—Demand of — Inter- 
est allowed. 

§  672.  Application  of  money  to  one 
demand  instead  of  another. 

§  673.  Settlement    of   prior  suit. 

§  674.  What  would  constitute  a 
valid  settlement  —  What 
would    be    insufficient. 

§  675.  Payment  made  in  settlement 
of  a  disputed  claim  will 
operate  as  a  release  if  re- 
tained. 

§  676.  Settlements  out  of  court  are 
favored — Evidence  of  a  pro- 
posed settlement  is  not  to 
be  considered  as  an  admis- 
sion of  liability. 

§  677.  Composition    agreement. 

§  678.  Subscription  paper,  consid- 
eration for — Who  may  per- 
form. 

§  679.  Liability  on  subscription — 
Limited  to  the  pro  rata 
share   of  amount   expended. 

§  680.  Work  done  on  the  faith  of 
the  subscription — Liability 
for. 

§  681.  Right  to  withdraw  subscrip- 
tion after  work  is  begun — 
When  work  is  completed. 

§  682.  Substantial  compliance  suf- 
ficient— Signing  additional 
writing  demanded  by  plain- 
tiff. 


§  611.  What  Constitutes  a  Contract — Assent  of  Parties.  The  court 
instructs  the  jury,  that  before  there  can  be  a  contract  between  two 
parties,  the  minds  of  the  two  parties  must  come  together  and  agree 
upon  all  the  terms  and  conditions  of  the  contract;  or,  as  is  sometimes 
said,  the  minds  of  the  contracting  parties  must  meet.1 

§  612.  Capacity  to  Contract — Presumption,  (a)  The  jury  are  in- 
structed, that  the  law  presumes  that  all  adult  persons  have  sufficient 
intellectual  capacity  to  transact  business  with  ordinary  intelligence, 
and  the  party  alleging  incapacity  must  overcome  this  presumption  by 
a  preponderance  of  evidence.2 


1— Page  on  Cont.  Sec.  22;  1  Par-  Miller,  40  la.  402;  Davidson  v. 
sons  on  Cont.  475;  Baker  v.  Porter,  57  111.  300,  11  Am.  Rep.  15. 
Johnson    Co.,    37    la.    186;    Steel    v.        2— Page  on  Cont.  Vol.  2,  Sec.  849; 


456  FORMS  OF  INSTRUCTIONS.  [§  613. 

(b)  The  court  instructs  you,  that  the  legal  presumption  is,  that  all 
persons  of  mature  age  are  of  sound  mind  and  memory,  and  this  pre- 
sumption continues  until  the  contrary  is  shown  by  a  preponderance 
of  evidence.3 

(c)  The  jury  are  instructed  that  the  law  presumes  every  man  to  be 
sane  until  the  contrary  is  proved,  and  the  burden  of  proof  rests  upon 
the  party  alleging  insanity. 

(d)  The  jury  are  otherwise  instructed  that  the  law  presumes  every 
man  to  be  sane  and  competent  to  transact  his  business  if  of  lawful  age 
until  the  contrary  is  shown,  therefore  the  jury  must  presume  and  find 

that at  the  time  of  the  execution  of  said  deed,  bill  of  sale  and 

lease,  was  of  sound  mind  and  competent  to  execute  the  same  unless  a 
preponderance  of  the  evidence  in  this  case  proves  to  the  contrary;  and 
if,  after  considering  all  the  evidence  in  the  case,  the  jury  are  unable 

to  determine  from  the  evidence  whether  was  of  sound  mind 

and  mentally  competent  to  execute  said  papers  or  not,  they  should  find 
by  their  verdict  that  he  was  of  sound  mind  and  was  so  competent.4 

§  613.  Degree  of  Insanity  Necessary  to  Relieve  from  Consequences 
of  Acts,  (a)  The  court  instructs  you,  as  a  matter  of  law,  that  when 
the  mind  is  so  deranged  that  a  person  cannot  comprehend  and  under- 
stand the  effect  and  consequences  of  an  act,  or  the  business  in  which 
he  may  be  engaged,  then  the  law  will  relieve  him  from  the  conse- 
quences of  his  acts ;  but  so  long  as  he  is  possessed  of  the  requisite 
mental  faculties  to  transact  rationally  the  ordinary  affairs  of  life,  he 
will  not  be  released  from  the  responsibility  that  rests  upon  the  or- 
dinary citizen.5 

(b)  The  court  instructs  you  that  the  subsequent  acts  are  to  indi- 
cate the  previous  state  of  mind,  and  a  man's  capacity  is  not  to  be 
treated  on  the  scientific  theories  of  experts,  and  say  a  man  was  crazy 
a  year  ago,  because  he  has  softening  of  the  brain  today,  or  because 
he  had  softening  of  the  brain  incipient  or  to  a  considerable  extent 
before.  It  is,  no  doubt,  an  insidious  disease  of  slow  growth,  and  to 
everybody's  observation  a  man  may  be  affected  more  or  less  at  one 
time  with  that  disease  and  yet  be  as  competent  to  attend  to  business 
as  any  of  us  are ;  and  so  it  becomes  like  epileptic  fits.  It  more  or  less 
affects  the  mind,  and  every  accession  of  the  disease  or  exacerbation 
may  be  indications  of  a  certain  development,  of  its  coming  to  a  cer- 
tain point  in  the  continuous  growth;  but  until  you  get  to  a  certain 
point  the  man  may  be,  at  least  bodily,  and  the  mind,  to  some  extent, 
affected,  and  yet  he  be  competent  to  transact  his  ordinary  business  as 
well  as  anybody.  The  point  of  this  is  that  although  this  man  may  not, 
but  assuming  he  did  have   (which  is  denied),  trouble  with  his  brain, 

2    Parsons    on    Cont.    572;    McCarty  St.     Rep.     147,     citing    Menkins     v. 

v.    Kearnan,    86    111.    291.  Leightner,    18    111.    282. 

3— Silly  v.    Waggoner,   27   111.    395.  5— Harris    v.      Wamslev,      41     la. 

4— Guild   et  al.   v.   Hull  et  al.,  127  671;    Titcomb    v.     Vantyl'e,     84     111. 

111.    523    (533),    20    N.    E.    665,    11   Am.  372. 


§  614.]  CONTRACTS.  457 


softening  of  the  brain,  preceding  this  deed,  yet  if  it  was  not  of  such  a 
character,  and  did  not  go  to  such  an  extent,  as  to  unfit  him  for  ordi- 
nary business  comprehending  the  ordinary  relations  he  had  to  his  af- 
fairs and  life,  and  his  duty  to  society,  it  would  not  be  sufficient  to  set 
this  deed  aside.  If,  however,  you  think  that  it  went  to  that  extent, 
and  in  making  this  deed  he  was  not  fully  conscious  what  he  was  about, 
not  rational  enough  to  transact  the  ordinary  affairs  of  life,  of  course 
the  deed  falls.6 

In  this  case  the  plaintiff  is  entitled  to  recover  unless  they  are  rea- 
sonably satisfied  from  the  evidence  that  the  defendant  was  at  the  time 
of  making  the  contract  of  unsound  mind,  and  to  the  extent  that  he 
was  not  capable  of  attending  to  the  ordinary  affairs  of  life.7 

§  614.  Mental  Powers  Impaired  by  Age,  Weakness  or  Bodily  In- 
firmity Not  Sufficient  to  Vitiate  a  Deed.  The  jury  are  instructed  that, 
if  they  believe,  from  the  evidence,  that  the  grantor  of  the  deed  had 
memory  and  mind  enough  to  recollect  the  property  he  was  about  to 
convey,  and  the  person  to  whom  he  wished  to  convey  it,  and  the 
manner  in  which  he  wished  it  to  be  disposed  of,  and  to  know  and  un- 
derstand the  business  he  was  engaged  in,  such  person  is,  in  contem- 
plation of  law,  of  sound  mind,  and  his  age  or  bodily  infirmity  would 
not  vitiate  a  conveyance  made  by  one  possessing  such  capacity.8 

§  615.  When  a  Man  Is  Held  to  Be  of  Sound  Mind — Improvident, 
(a)  The  court  instructs  you  that  if  a  person  is  capable  of  reasoning 
correctly  on  the  ordinary  affairs  of  life,  or  is  capable  of  comprehend- 

6 — King-  v.  Humphreys,  138  Pa.  bodily  infirmity  would  not  render 
310,  22  Atl.  19.  In  this  ease  the  him  incapable  of  disposing-  of  his 
court  held  that  the  mental  trouble  property  by  deed  or  will.  As  said 
must  be  of  such  an  extent  and  in  Lindsey  v.  Lindsey,  50  111.  79: 
character  as  to  unfit  the  party  for  'The  circumstance  that  the  intel- 
ordinary  business,  comprehending'  lectual  powers  have  been  some- 
the  ordinary  relations  he  has  to  what  impaired  by  age  is  not  suf- 
society  and  life  in  order  to  set  a  ficient,  if  the  contracting  party  still 
deed  aside.  Continuing  the  lower  retains  a  full  comprehension  of 
court  said:  "Though  I  may  go  the  meaning,  design  and  effect  of 
crazy  tomorrow,  show  I  am  in-  his  acts.'  And  again:  'Under  these 
sane  today,  manifest  unmistakable  circumstances,  it  is  not  evidence  of 
symptoms  of  insanity;  yet,  if  able  either  mental  imbecility  or  undue 
to  do  what  I  am  doing  now,  if  I  influence  that  the  deceased  con- 
can  attend  to  the  ordinary  affairs  veyed  his  property  to  his  son  for 
of  life,  if  I  am  fully,  to  all  appear-  a  fraction  of  its  value,  taking  from 
ances,  rational,  and  in  my  right  him  notes  secured  by  mortgage 
mind,  it  would  be  absurd  to  say,  for  such  sum  as  he  thought  equi- 
because  I  had  a  general  stroke  of  table  for  the  benefit  of  his  other 
paralysis,  or  from  some  other  un-  children,  and  a  bond  for  his  own 
foreseen  cause,  I  become  a  raving  maintenance  during  the  remainder 
maniac  tomorrow,  and  had  to  be  of  his  life.'  See  also  in  this  con- 
^arried  to  D.  that  the  charge  or  nection  Wiley  v.  Ewalt,  66  111.  26; 
the  deed  I  had  made  today  was  Clearwater  v.  Kimler,  43  id.  273; 
bad.      That    is    not    the    law."  Trish  v.  Newell.  62  id.  196;   Meeker 

7— Dominick     v.     Randolph,      124  v.  Meeker.  75  id  260:    Stone  v.  Wil- 

Ala    557    27  So.   4S1    (4^5).  burn,  8^  id  105:   Pickerell  v.  Morss, 

8_Guiid     v.     Hull,     127     111.     523  97  id   220;   English  v.   Porter,  109  id 

(534").    20   N.   E.   665.  528:     Burley    v.     McGough,    115    id. 

"This     instruction     should     have  11,   3  N.   E.  738." 
been  given.     His  age,  weakness  or 


458  FORMS   OF   INSTRUCTIONS.  [§  616. 

ing  and  understanding  the  consequences  which  usually  accompany 
ordinary  acts,  he  will  be  held  to  be  of  sound  mind,  and  be  bound  by 
his  contracts.9 

(b)  The  fact  that  a  man  made  an  improvident  bargain;  that  he  is 
generally  unthrifty  in  his  business,  or  unsuccessful  in  one  or  more  en- 
terprises— does  not  of  itself  prove  him  to  be  non  compos  mentis.10 

§  616.  Mental  Capacity  to  Make  Contract — Insane  Delusion — Re- 
lation of  Same  to  Subject  Matter.  The  jury  are  further  instructed 
that,  although  they  may  believe  from  the  evidence  that  either  before. 
at  the  time  or  after  the  making  of  the  written  contract  in  question, 
defendant  had  insane  delusions  on  some  subjects,  yet  if  the  jury  fur- 
ther believe,  from  the  evidence,  that  such  delusion  was  in  no  way 
related  to  the  plaintiff  or  the  subject  matter  of  the  contract  here  in 
question,  and  that  in  making  such  contract  defendant  was  in  no  means 
influenced  thereby,  but  that  in  the  making  of  said  contract  he  pos- 
sessed mind,  memory  and  sense  sufficient  to  know  and  apprehend  the 
scope,  force  and  effect  of  that  contract,  then  he  was  mentally  capable 
of  making  said  contract  and  the  jury  should  so  find.11 

§  617.  Partial  Insanity — Contract  Entered  Into  by  Reason  Thereof. 
The  court  charges  the  jury  that  proof  of  partial  insanity  will  invali- 
date contracts  generally,  and  would  be  sufficient  to  defeat  an  action 
upon  a  contract,  which  contract  was  the  direct  offspring  of  partial 
insanity,  although  the  party  making  the  contract,  at  the  time  of 
making  it  was  sane  in  other  respects  upon  ordinary  subjects.12 

§618.  Drunkenness — Procurement  by  Other  Party  to  Contract — 
Degree  of  to  Avoid,  (a)  If  you  believe,  from  the  evidence,  that  the 
plaintiff  procured  intoxicating  liquors  and  influenced  the  defendant  to 
drink  of  the  same  until  he  became  so  intoxicated   that  he  lost  the 

9— Baldwin    v.      Dunton,    40     111.  of      the      mental      imbecility     that 

188.  would     invalidate   a     contract,    this 

10— Dominick     v.     Randolph,     124  court  said:     'In  the  absence  of  un- 

Ala.  557,  27  So.  481.    The  Court  said,  due   influence,   there    must  be   such 

"In   re  Carmichael,   36   Ala.   514.     It  a    degree    of    mental    weakness    as 

is  contended  by  the  appellant  that  renders   a   party   incapable   of   un- 

the   giving-   of   this    charge   was   an  derstanding     and     protecting      his 

invasion    of    the    province     of     the  own   interests;'   and   that  language 

jury.      We    do    not    so    understand  is  used  in  some  subsequent  cases." 

and  construe  it.     It  asserts  a  legal  12— Dominick     v.     Randolph,     124 

proposition     and   was     based     upon  Ala.    557,    27   So.   481    (485). 

evidence    in    the    case,    which    pre-  "Under  the  decision  of  Cotton  v. 

vented    it    from    being    abstract."  Ulmer,  this  charge  contains  a  cor- 

11— Sands    v.    Potter,    165    111.    397  rect   statement   of   the   law.     There 

(401),    aff'g    59    111.    App.    206,    46   N.  was  testimony  tending  to  show  in- 

E.  282.   56  Am.   St.  Rep.  253.  sanity,  and  also   testimony  tending 

"We  are  not  aware  that  there  is  to  show  a  species  of  mania  on  the 

any    fixed    formula    of    words     in  part   of   the   defendant   for   buying 

which   the   mental    capacity   or   in-  and   selling,   regardless  of  profit  or 

capacity    of    a    person    to    make    a  loss.      The    charge    was,    therefore, 

contract  must  be  expressed.     It  is  not   abstract,    and,    as   asserting   a 

true    that    in    the    ease    of   Lindsay  correct    legal     proposition,      shou'd 

v.  Lindsay,  50  111.   79,  109  Am.   Dec.  have    been    given,"     Cotton    v.    Ul- 

489,    in    passing   upon    the    question  mer,    45    Ala.    378. 


§619.]  CONTRACTS.  459 

rational  use  of  his  mental  faculties,  and  so  that  he  did  not  understand 
what  he  was  doing,  and,  while  he  was  in  this  condition,  procured  his 
signature  to  the  contract  in  question,  then  such  contract  would  be 
void  as  against  the  said  defendant,  and  he  is  not  bound  thereby.13 

(b)  The  court  instructs  the  jury,  as  a  matter  of  law,  that  to  ren- 
der a  transaction  voidable  on  account  of  the  drunkenness  alone  of  a 
party  to  it,  it  should  appear,  from  the  evidence,  that  he  was  so  drunk 
as  to  have  drowned  his  reason,  memory  and  judgment,  and  impaired 
his  mental  faculties  to  an  extent  that  would  render  him  wholly  idiotic 
for  the  time  being.14 

(c)  If  you  believe  the  plaintiff  has  established  each  and  all  of  the 
issues  mentioned  in  the  preceding  instruction,  by  a  preponderance  of 
the  evidence,  then  before  the  defendant  can  avoid  a  judgment  against 
him,  he  must  show  by  a  preponderance  of  the  evidence  that  said  con- 
tract was  signed  by  the  defendant  at  a  time  when  he  was  so  intoxi- 
cated that  he  did  not  have  sufficient  mental  ability  to  understand  the 
nature  of  the  contract  he  was  entering  into.15 

§  619.  Minor's  Contract  for  Necessaries.  It  has  always  been  held 
that  the  minor  might  bind  himself  by  contract  for  necessaries,  and 
that  such  contract,  when  executed,  when  completed,  if  reasonable  un- 
der the  circumstances,  or  not  so  unreasonable  as  to  be  evidence  of 
fraud  or  undue  advantage,  cannot  be  repudiated  by  him.  Now,  there 
is  no  presumption  that  any  one  acts  fraudulently  towards  a  minor. 
It  cannot  be  said  that  A.  committed  a  fraud  in  selling  a  watch, 
without  evidence ;  and  whether  everything  was  fair,  or  whether  he 
committed  any  fraud  or  deception,  is  for  the  jury  to  say;  it  cannot 
be  presumed  without  evidence.  The  party  that  comes  into  a  case, 
and  says  that  a  fraud  has  been  perpetrated,  or  undue  advantage  taken, 
or  deception  practiced,  must  produce  evidence  to  sustain  that  point. 
There  is  no  presumption  of  fraud;  so  that  if  this  watch  was  not  a 
necessity,  or  clearly  to  the  boy's  prejudice,  and  not  for  his  benefit, 
then  he  could  avoid  it,  and  he  should  not  be  charged  with  the  watch ; 
and  the  defendant  should  deal  in  good  faith  with  the  infant  if  it  was 
not  a  necessity;  and,  if  any  unfair  advantage  was  taken  of  the  boy, 
then  he  might  avoid  the  contract — then  this  contract  as  to  this  watch, 
under  the  circumstances  of  this  case,  might  be  avoided  and  repudiated 
by  the  boy.16 

§  620.  What  Is  Consideration — A  Promise  for  a  Promise  Is  a  Good 
Consideration.  (a)  The  court  instructs  the  jury,  that  whatever 
works  a  benefit  to  the  party  promising,  or  whatever  works  any  loss 
or  disadvantage  to  the  person  to  whom  the  promise  is  made,  although 

13— Mitchell   v.    Kingman,   5   Pick.  249.    12    Am.    Rep.    306;    Johnson    v. 

431;    Page    on     Cont.    Sec.     903;      1  Phifer,    6   Neb.    401. 

Pars,   on  Cont.,   383,   385.  15— Hauber    v.    Leibold,    —    Neb. 

14— Bates    v.      Ball.    72     111.     108;  — ,   107   N.    W.   1042. 

Cavender    v.    Waddingham,    5    Mo.  16 — Welch    v.    Olmsted,    90    Mich. 

App.  457;   Miller  v.  Pinley,  26  Mich.  492,   51  N.  W.   541   (542). 


460  FORMS  OF  INSTRUCTIONS.  [§  621. 

without  any  benefit  to  the  promiser,  is  a  sufficient  consideration  to 
support  a  contract  or  agreement.17 

(b)  One  promise  is  a  good  consideration  for  another  promise,  and 
if  the  jury  believe,  from  the  evidence,  that  at  the  time  of  the  alleged 
contract  the  plaintiff  promised  and  agreed  with  the  defendant  that  he 
would,  etc.,  and  that  in  consideration  thereof  the  defendant  then 
agreed  with  the  plaintiff  that  he  would,  etc.,  then  one  of  these  prom- 
ises is  a  good  consideration  for  the  other,  and  the  several  agreements 
are  binding  upon  the  respective  parties.18 

§  621.  Consideration  Known  or  Understood  by  Parties.  The  jury 
are  instructed  that  in  order  to  hold  defendants  in  this  suit  under  the 
pleadings,  it  is  incumbent  upon  the  plaintiff  to  show,  by  a  preponder- 
ance of  the  evidence,  that  the  consideration  relied  upon  for  their  con- 
tract was  made  known  to  or  understood  by  them  at  the  time  of  the 
said  contract.19 

§  622.  New  Promise  to  Perform  Legal  Obligation.  The  court  in- 
structs the  jury,  that  if  one  party  promise  another  to  do  what  he  is 
already  under  legal  obligation  to  perform,  then  such  a  promise  is  not 
a  good  consideration  for  a  promise  by  the  other  party,  and  a  promise 
by  him  upon  such  a  consideration  is  not  binding,  and  cannot  be  en- 
forced against  him  by  suit.20 

§  623.  Inhibition  Against  Engaging  in  Business  in  Same  City — 
Consideration  for.  You  are  instructed  that  one  of  the  issues  in  this 
case  is  the  consideration  of  the  contract  sued  on  in  this  case.  You 
are  instructed  in  this  connection  that  if  you  find  from  the  evidence 

that  ■  was  the  purchase  price  of  defendant's  interest  in  the 

partnership  property,  and  that  such  sale  was  actually  agreed  on  and 
reduced  to  writing  and  that  said  contract  contained  no  inhibition 
against  the  defendant  engaging  in  business  in  Nebraska  City,  Neb., 
and  that  there  was  no  further  consideration  for  the  contract  sued  on 
in  this  case,  and  in  case  you  so  find  from  the  evidence  you  will  return 
a  verdict  for  the  defendant.21 

17— Page    on    Cont.,    Vol.    I,    Sec.  is  well   founded.      The    instruction 

296;    1  Pars,   on   Cont.   430;   1  Pars,  tendered   covers   one  theory  of  the 

on   N.   &   B.   175.  defense,  namely,  that  the  contract 

18 — Dockray  v.  Dunn,  37  Me.  442;  in  suit  was  made  after  the  parties 

Keister  v.   Miller,  25  Penn.   St.  401.  had    already   bound    themselves   by 

19— McMicken   v.    Saff'ord,   197   111.  valid    contract   in   writing,    and    in 

540    (543),   aff'g  100  111.  App.   102,   64  substantially  the  same  terms,  save 

N.    E.    540.  the     stipulation     against     engaging 

20— Collins    v.    Godefrey,    1    B.    &  in  the  same  business  in  Nebraska 

Ad.   950:   Early  v.   Burt,   68  la.   716,  City,  and  without  any  new  or  ad- 

2S  N.  W.  35,  Tucker  v.  Vaughn,  —  ditional      consideration      for      such 

Minn.  — ,   23  N.    W.   846.  stipulation.      If   this   theory   be   es- 

21 — Hauber    v.    Leibold,    —    Neb.  tablished     and     as    before     stated, 

— ,   107   N.   "W.   1042    (1044).  there   is    evidence   tending   to    sup- 

"It  is  contended  that  the  port  it,  the  stipulation  is  without 
court  erred  in  refusing  to  give  the  consideration,  and  the  defendant 
instruction  hereinbefore  set  out,  is  not  bound  by  it.  It  is  well  set- 
tendered  bv  the  defendant.  We  are  tied  thit  a  partv  to  an  action  is 
of  the  opinion  that  this  contention  entitled  to  have  the  jury  instructed 


§  624.] 


CONTRACTS. 


461 


§  624.    Assignment  of  Judgment — Amount  Paid — Solvency.     It  is 

of  no  importance  in  this  case  what  consideration  plaintiff  paid  for  the 
assignment  of  this  judgment  to  him.  The  plaintiff's  rights  are  pre- 
cisely the  same,  whether  he  paid  one  cent  or  the  full  amount  of  the 
judgment,  with  interest.  And  as  I  have  said,  it  would  make  no  dif- 
ference if  in  fact  the  judgment  only  cost  the  plaintiff  a  dollar.  It  is 
of  no  importance,  either,  whether  the  assignor  C.  was,  at  the  time 
of  the  assignment,  solvent  or  insolvent.  And  if  it  was  not  agreed,  as 
the  defendant  says  it  was,  between  the  parties,  that  the  services  in 
question  should  be  accepted  in  full  satisfaction  of  the  judgment,  it 
is  of  no  importance  whether  the  defendant  in  this  case  was  solvent 
or  insolvent  when  the  assignment  was  made  or  at  any  time  since  that 
time.22 

§  625.  Release  without  Consideration — Nudum  Pactum,  (a)  The 
court  instructs  you  that  a  mere  promise  by  the  plaintiff  to  release  all 
claim  against  the  defendant  for  salary  is  what  the  law  terms  "nudum 
pactum,"  that  is  a  promise  without  consideration,  and  is  not  binding 
no  matter  how  solemnly  made,  unless  supported  by  a  consideration. 

(b)  The  court  instructs  you  that  a  mere  offer  to  release  a  valid 
claim  is  not  binding  unless  accepted,  and  a  valuable  consideration 
paid  therefor,  and  if  the  jury  believe  from  the  evidence  that  the  plain- 


with  reference  to  his  theory  of  the 
case,  when  such  theory  is  pre- 
sented and  supported  by  compe- 
tent evidence.  Boice  v.  Palmer,  55 
Neb.  389,  75  N.  W.  849,  and  authori- 
ties cited.  It  is  the  duty  of  the 
trial  court  to  instruct  the  jury  as 
to  the  issues.  Sanford  v.  Craig, 
52  Neb.  483,  72  N.  W.  864;  Kyd.  v. 
Cook,  56  Neb.  72,  76  N.  W.  524,  71 
Am.  St.  Rep.  661,  and  cases  cited." 

22 — Dalby  v.  Lauritzen,  —  Minn. 
— ,    107    N.    W.    826. 

"The  defendant  insists  that  the 
instruction  was  misleading,  er- 
roneous, and  prejudicial  to  the  de- 
fendant. Among  other  things,  he 
urges  that  the  question  of  de- 
fendant's insolvency  at  the  time  of 
the  settlement  was  not  at  all  a 
collateral  fact;  that  the  defen- 
dant's whole  defense  would  fall, 
unless  he  proved  that  there  was  a 
valid  consideration  for  the  settle- 
ment and  compromise.  To  this 
end  he  cites,  Molyneaux  v.  Collier, 
13  Ga.  406  (422),  in  which  inter 
alia,  the  doctrine  is  set  forth  that 
while  the  payment  of  a  sum  less 
than  the  amount  of  a  liquidated 
debt  under  an  agreement  of  the 
creditor  to  accept  the  same  in  sat- 
isfaction of  the  debt  forms  no  bar 
to  the  recovery  of  the  balance,  yet 
if  the  creditor  agree  with  an  in- 
solvent debtor  to  accept    his  per- 


sonal labor  in  value  less  than  the 
whole  debt,  the  agreement  would 
be  valid.  And  see  Rice  v.  Lon- 
don, 70  Minn.  77,  72  N.  W.  826.  The 
record,  however,  shows  that  the 
court  conceded  in  effect  the 
legal  sufficiency  of  the  considera- 
tion and  left  to  the  jury  the  ques- 
tion of  whether  the  parties  agreed 
to  a  compromise  as  a  matter  of 
fact.  This  might  have  been  on  the 
theory  that  any  benefit  or  even  the 
legal  possibility  of  benefit  to  the 
creditor  thrown  in  is  sufficient  to 
support  a  satisfaction  of  a  larger 
debt  by  a  smaller  sum  (Cumber  v. 
Wane,  1  Strange  426,  1  Smith's 
Lead.  Cas.  (11th  Ed.)  338,  that,  for 
example,  a  horse,  hawk  or  robe 
would  be  a  good  consideration, 
quite  regardless  of  the  amount. 
(Foakes  v.  Beer,  L.  R.  9  App.  Cas. 
605;  Jaffray  v.  Davis,  124  N.  T. 
164,  26  N.  E.  351,  11  L.  R.  A.  710.) 
So  a  promise  to  render  future 
services  though  of  a  lesser  value 
than  the  amount  of  the  judgment 
might  be  a  satisfaction.  The 
soundness  of  the  court's  theory, 
upon  which  he  held,  as  a  matter 
of  law,  that  the  compromise,  if  in 
fact  agreed  to,  would  prevent  re- 
covery by  the  plaintiff,  is  not  be- 
fore us  for  review,  and  on  this  ap- 
peal the  defendant  is  not  in  posi- 
tion  to   complain   of  its   holding." 


462  FORMS  OF  INSTRUCTIONS.  [§  626. 

tiff  merely  offered  to  release  his  salary  at  the  conversation  alleged  to 
have  been  held  ,  on  condition  that  I),  S,  W  and  P  would  pur- 
chase or  sell  3,000  shares  o<f  the  capital  stock  of  the  defendant  cor- 
poration, and  that  the  said  parties  did  not  accept  said  offer  or  make 
it  a  condition  precedent  on  which  they  would  purchase  or  sell  said 
stock,  they  must  find  for  the  plaintiff.23 

§  626.  Failure  of  Consideration  Where  There  Is  No  Fraud.  The 
court  instructs  you  that  as  a  rule,  where  there  is  no  fraud,  and  a 
party  receives  all  the  consideration  he  contracted  for,  the  contract 
will  not  be  set  aside  for  want  or  failure  of  consideration;  and  where 
the  value  of  the  consideration  is  indefinite  and  uncertain,  the  parties 
have  a  right  to  determine  it  for  themselves,  and  courts  and  juries 
ought  not  to  overturn  their  decisions  upon  its  sufficiency ;  and  whether 
one  contracts  for  the  performance  of  an  act  or  several  acts  which 
will  afford  him  pleasure,  gratify  his  ambition,  or  please  his  fancy,  his 
estimate  of  the  value  should  be  left  undisturbed.  And  the  fact  that 
love  and  affection  or  kinship  may  have  been  part  of  the  consideration 
cannot  defeat  the  plaintiff's  right  of  recovery.24 

§  627.  Failure  of  Consideration — False  Representations — Caveat 
Emptor.  The  jury  are  instructed  that  if  they  believe  from  the  evi- 
dence that  before  and  at  the  time  of  the  purchase  of  said  stock  and 
the  giving  of  said  note,  the  plaintiff  made  representations  and  state- 
ments to  the  defendant  concerning  the  value  of  such  stock  and  the 
business  being  done  by  said  company  and  its  financial  condition;  that 
said  statements  and  representations  were  false ;  that  defendant  was  a 
stranger  in  the  city  of ,  and  had  no  adequate  means  of  ascer- 
taining the  truth  or  falsity  of  said  statements ;  that  relying  upon  said 
statements  of  said  plaintiff  as  true  the  said  defendant  purchased  said 
stock  and  gave  said  note  in  payment  thereof;  and  if  you  further  be- 
lieve from  the  evidence  that  the  plaintiff  at  the  time  of  making  said 
statements  and  representations  knew  the  same  to  be  false  or  had 
reason  to  believe  that  the  same  were  tuitrue,  then,  if  you  still  further 
believe,  from  the  evidence,  that  the  defendant  had  already  paid  in 
cash  and  upon  said  note  to  the  plaintiff  all  or  more  than  said  stock 
was  fairly  and  reasonably  worth  at  the  time  of  the  purchase  thereof, 
and  that  as  to  the  balance  now  remaining  unpaid  upon  said  note,  the 

23— Florence  Cotton  &  Iron  Co.  "This  instruction,  tells  the  jury, 
v.  Field,  104  Ala.  471,  16  So.  538.  in  a  manner  unmistakably  clear, 
"These  charges,  said  the  court,  in  that  parties  may  enter  into  a 
effect  instructed  the  jury  that  the  valid  contract,  when  the  value  of 
defendant  must  make  good  the  re--  the  consideration  is  indefinite,  for 
lease  set  up.  The  contract  had  the  performance  of  one  or  several 
been  only  partly  performed,  and  acts,  and  where  love  and  kinship 
money  was  due  on  it  to  plaintiff,  may  have  been  a  part  of  the  con- 
Westmoreland  v.  Porter,  75  Ala.  sideration,  and  that  courts  and 
460;  Nesbitt  v.  McGee,  26  Ala.  juries  may  have  no  right,  in  the 
74S."  absence  of  fraud,  to  overturn  such 

24— Rav  v.   Moore,   24    Ind.    App.  a   contract." 
480,    56    N.    E.    937. 


628.' 


CONTRACTS. 


463 


consideration  for  said  note  has  failed,  then  you  should  find  for  the 
defendant.25 

§  628.  Promise  upon  Valuable  Consideration  from  One  Person  to 
Another  to  Pay  Third  Person — Statute  of  Frauds.  The  jury  is  in- 
structed as  a  matter  of  law  that  a  promise  made  upon  a  valuable  con- 
sideration from  one  person  to  another  to  pay  a  sum  of  money  to  a 
third  person  is  valid  and  binding,  and  can  be  enforced  by  said  third 
person  in  his  own  name.  In  this  case,  if  the  jury  believe,  from  the 
evidence,  that  the  defendant,  as  charged  in  the  declaration,  purchased 
the  leasehold  and  personal  property  in  the  restaurant  from  Y,  and 
as  a  part  of  the  purchase  price  agreed  and  undertook  to  pay  the  in- 
debtedness due  to  C  from  Y,  then  the  jury  must  find  the  issues  for 
the  plaintiff  for  the  sum  remaining  unpaid  or  due  at  the  time  of 
making  said  agreement,  and  interest  upon  it  at  the  rate  of  five  per 
cent.26 


25— Mayberry  v.  Rogers,  81  111. 
App.    581    (587). 

The  court  said,  "It  is  true  that 
a  vendor  has  a  right  to  extol  the 
value  of  his  own  property  to  the 
highest  point  his  antagonist's  cre- 
dulity may  bear.  'Ordinarily  state- 
ments of  an  indefinite  or  general 
character  made  by  either  of  the 
parties  pending  a  negotiation  for 
the  sale  of  property  relating  to  its 
cost  or  value,  or  offers  made  for 
it,  and  the  like,  will  not  in  the  ab- 
sence of  special  circumstances  af- 
ford any  ground  for  avoiding  the 
sale,  although  false  and  made  with 
a  fraudulent  intent.'  Dillman  v. 
Nadelhoffer,  119  111.  567,  7  N.  E. 
88. 

But  it  is  also  held  in  the  same 
cage  that  it  is  just  as  well  settled 
that  where  the  contracting  parties 
for  any  cause  are  not  on  equal 
terms,  and  such  representations 
are  gross  exaggeration  resulting  in 
an  unconscionable  bargain,  the 
above    rule   will    not    apply. 

Where  the  vendor  and  vendee 
are  not  contracting  on  an  equal 
footing,  and  the  latter  is  induced 
to  purchase  because  of  false  state- 
ments of  the  former,  the  rule  of 
caveat  emptor  has  no  application. 
Wannell  v.  Ken,  57  Mo.  478;  1 
Bigelow   on   Frauds,    528. 

We  are  of  the  opinion  that  there 
was  no  error  in  the  instruction, 
and    it    was   properly    given." 

26— Kee  v.  Cahill,  86  111.  App. 
561    (563). 

"The  case  of  Wilson  v.  Bevans, 
58  111.  232,  as  to  the  question  of 
the  statute  of  frauds  in  the  con- 
trolling facts,   is   precisely   like  the 


case  at  bar.  As  there  stated:  'The 
appellant  received  the  property 
contracted  for,  and  it  is  wholly 
immaterial  to  him  what  direction 
was  given  to  the  purchase  money. 
The  vendor  contracted  to  have  it 
paid  to  his  creditors  instead  of 
himself,  and  it  impose  no  hard- 
ship upon  the  purchaser.  It  was 
his  contract  so  to  pay  the  pur- 
chase money,  and  such  a  contract 
is  valid  and  binding  in  law,  al- 
though it  was  not  evidenced  by 
any  writing.'  Under  the  facts  as 
found  by  the  jury,  this  language 
is  directly  in  point,  and  is  con- 
trolling. The  Supreme  Court  in 
that  case  also  states  the  general 
rule  as  to  the  statute  of  frands  in 
this  state  clearly  in  these  words: 
'The  general  rule  is  that  if  the 
promise  is  in  the  nature  of  an 
original  undertaking  to  pay  a  debt 
to  a  third  party,  and  is  founded 
on  a  valuable  consideration  re- 
ceived by  the  promisor  himself, 
it  is  not  within  the  provision  of 
the  statute  and  need  not  be  in 
writing  to  make  it  valid  and  bind- 
ing. It  will  be  regarded  in  the 
light  of  a  contract  for  the  benefit 
of  a  third  party,  upon  which  said 
third  party  may  found  an  action 
for  the  breach.  The  authorities 
all  seem  to  agree  in  holding  that 
such  promise  is  not  within  the 
statute  of  frauds,  and  need  not 
necessarily  be  in  writing  to  make 
it  valid.'  The  Bevans  case  is  cited 
with  approval  as  to  this  general 
rule  in  Meyer  v.  Hartman,  72  111. 
444  and  Borchsenius  v.  Canutson, 
100  111.  82  (92). 
It  is  also  cited  and  is  followed  in 


464 


FORMS  OP  INSTRUCTIONS. 


S629. 


§  629.  Construction  of  Contracts  for  the  Court,  (a)  It  is  the 
court  that  determines  the  construction  of  a  contract.  They  do  not 
state  the  rules  and  principles  of  law  by  which  the  jury  are  to  be  bound 
in  construing  the  language  which  the  parties  have  used  in  making  the 
contract.  They  give  to  the  jury  as  matters  of  law  what  the  legal  con- 
struction of  the  contract  is,  and  this  the  jury  are  bound  absolutely  to 
take.27 

(b)  The  court  instructs  the  jury  that  what  the  terms  of  a  contract 
are  (if  not  in  writing)  is  a  question  of  fact  for  the  jury,  but  its  mean- 
ing and  legal  effect  are  questions  of  law  for  the  court.28 

§630.  Construction,  One  of  Law  for  the  Court,  but  Latent  Am- 
biguities May  Be  Submitted  to  the  Jury.  You  are  further  instructed 
that  all  contracts,  whether  written  or  oral,  that  have  been  introduced 
in  the  ease,  are  before  you  for  your  consideration  and  interpretation, 
together  with  the  circumstances  and  surroundings  of  the  parties,  and 
it  is  for  you  to  determine  from  all  the  circumstances  and  evidence  of 
the  case,  the  attitude  and  conduct  of  the  parties,  what  was  the  real 
intention  of  the  parties.29 

§  631.  Legal  Effect  of  Contracts — Meaning  of  Ambiguous  Contract, 
(a)  The  court  instructs  the  jury  that  while  instructions  should  not 
assume  the  existence  of  facts,  which  must  be  found  by  the  jury,  still 


Mathers  v.  Carter,  7  111.  App.  225, 
and  Cornell  v.  Central  Electric 
Co.,   61   111.    App.    325." 

27— Eyser  v.  Weissgerber,  2  la. 
463;  Dowry  v.  Megee,  52  Ind.  107; 
Kamphouse  v.  Gaffner,  73  111.  453; 
Curtis  v.  Martz,  14  Mich.  506;  W. 
St.  D.  &  P.  Ry.  Co.  v.  Jaggermon, 
115  111.  407,  4  N.  E.  641;  Gage  v. 
Meyers,   59   Mich.    300,   1   N.    W.   921. 

28— Goddard  v.  Foster,  17  Wall. 
123;  Thomas  v.  Thomas,  15  B. 
Mon.  (Ky.)  178;  Belden  v.  Wood- 
mansee.  81  111.  25,  25  Am.  Rep. 
255;  Lucas  v.  Snyder,  2  G.  Gr. 
499. 

29— Carstens  et  al.  v.  Earles  et 
al.,  26  Wash.  676,   67  Pac.  404   (408). 

"It  is  urged  that  the  instruction 
is  in  violation  of  the  rule  that 
contracts  are  to  be  construed  by 
the  court.  Such  is  undoubtedly 
the  general  rule  where  there  are 
no  ambiguities,  no  conflicting  con- 
tracts, and  where  there  are  no 
questions  of  abrogation  or  rescis- 
sion calling  for  an  interpretation. 
But  where  there  are  disputes  as  to 
the  intentions  of  the  parties  to 
the  written  agreement,  and  ques- 
tions of  rescission  by  disputed  oral 
agreements,  then  the  considera- 
tion of  the  written  contract  in  con- 
nection with  the  oral  contracts 
becomes   a    question    for   the   jury. 


In  Warner  v.  Miltenberger,  83 
Am.  Dec.  573,  it  is  said:  'But,  in 
our  opinion,  this  question,  as  it 
arose  in  this  case,  was  properly 
submitted  to  the  jury.  In  support 
of  this  view  we  refer  to  the  case 
of  Wooster  v.  Butler,  13  Conn.  309, 
where  the  point  was  carefully 
examined,  and  decided  in  accord- 
ance with  what  we  consider  the 
weight  of  authority.  That  case 
involved  the  construction  of  a 
grant,  and  the  court  says:  'That 
the  construction  of  written  docu- 
ments is  a  matter  of  law,  and  is 
not,  in  ordinary  cases,  to  be  sub- 
mitted to  the  jury  as  a  matter  of 
fact,  is  true;  but  where  the  doubt 
is  produced  by  the  existence  of 
collateral  and  extrinsic  facts,  not 
appearing  upon  the  instrument,  its 
consideration  ceases  to  be  a  mat- 
ter of  mere  legal  construction,  and 
the  intention  of  the  parties  is  to 
be  sought  for  by  a  recurrence  to 
the  state  of  facts  as  they  existed 
when  the  instrument  was  made, 
and  to  which  the  parties  are  to  be 
presumed  to  have  reference.  The 
ambiguity  in  such  case  is  a  latent 
one,  which  may  be  explained  by 
parol  evidence,  and  submitted  to 
the  jury.'  See,  also,  Ganson  v. 
Madigan,  15  Wis.  144,  82  Am.  Dec. 
659;    State  v.   Conklin,  34  Wis.  21." 


§632.1  CONTRACTS.  465 

it  is  proper  for  the  court  to  direct  the  jurf  as  to  the  legal  effect  of 
documentary  evidence  admitted.30 

(b)  The  court  instructs  the  jury  that  where  a  register's  certificate 
of  purchase  was  given  in  evidence,  it  was  held  proper  to  instruct  the 
jury  that  the  certificate  was  evidence  of  title  in  the  person  to  whom 
it  was  issued,  and  that  a  judgment  and  execution  against  such  person, 
together  with  a  sheriff's  deed  thereunder,  conveyed  the  title  to  the 
grantee  therein.  While  instructions  should  not  assume  the  existence 
of  facts,  still  it  is  proper  for  the  court  to  direct  the  jury  as  to  the 
legal  effect  of  the  evidence  admitted.31 

(c)  The  court  instructs  the  jury  that  if  a  contract  is  ambiguous 
in  its  terms  it  is  the  duty  of  the  court  to  determine  what  it  means 
from  the  evidence,  and  instruct  the  jury  as  to  its  meaning.32 

§  632.  Construction  of  Contract  as  to  Delivery — Goods  Damaged 
by  Weather,  (a)  This  is  a  suit  instituted  by  the  plaintiffs  against 
the  defendants  to  recover  the  value  of  a  large  quantity  of  oats  that 
were  sold  by  the  plaintiffs  to  the  defendants  under  a  written  con- 
tract. It  is  the  province  of  the  court  to  construe  that  contract,  and 
the  court  construes  that  contract  to  be  this :  That  the  plaintiffs  in 
this  case  undertook  to  sell  some  oats  to  the  defendants,  to  be  deliv- 
ered by  a  certain  time,  and  they  were  to  be  of  average  Texas  quality, 
and  they  were  sold  at  a  certain  price — thirty-two  cents  a  bushel — and 
were  to  be  delivered  at  Pensaeola,  upon  a  wharf  in  Pensacola.  Now, 
the  court  charges  you,  that  if  you  believe  that  these  oats  that  the 
plaintiffs  did  deliver  upon  a  wharf  in  Pensacola  within  the  time  stipu- 
lated in  this  contract,  and  that  they  delivered  it  upon  the  wharf 
within  the  time,  and  that  the  oats  were  in  good  order,  and  that  they 
delivered  it  when  the  weather  was  of  such  a  character  that  the  de- 
fendants could  prevent  that  property  from  damage,  it  was  their  duty 
to  have  accepted,  and,  if  they  failed  to  accept,  then  they  are  respon- 
sible for  the  damage  that  occurred. 

(b)  You  will  determine  from  the  evidence  in  this  case  whether  the 
oats  were  delivered  upon  the  wharf  in  Pensacola,  and  determine  from 
the  evidence,  in  accordance  with  the  contract,  whether  they  were  de- 
livered in  such  weather  that  the  defendants  in  this  case,  by  reason  of 
diligence,  could  protect  the  oats  from  serious  damage ;  and  if  you  be- 
lieve that  they  did,  and  delivered  them  in  such  quantity  and  manner 
upon  the  wharf  that  the  defendants  could  by  reasonable  diligence 
have  protected  the  oats  from  the  weather  or  from  damage,  it  was 
their  duty  to  do  so.  If  they  failed  to  accept  them,  then  they  are 
responsible  for  the  whole  value  of  the  oats;  and  if  delivered  in  the 
proper  kind  of  weather,  they  would  be  responsible  for  the  damage, 

30 — Stribling-  v.  Prettyman,  57  31 — Stribling  v.  Prettyman, 
111.  371,  11  Am.  Rep.  21;  Hanson  v.  supra;  State  v.  Delong,  12  la.  453. 
Eastman,  21  Minn.  509;  Lowry  v.  32— Ogden  v.  Kirby,  79  111.  555; 
Megee,    52   Ind.   107.  Stadden    v.    Hazzard,    37    Mich.    76; 

Am.   Ins.   Co.   v.   Butler,  70  Ind.  1. 

30 


466  FORMS   OF  INSTRUCTIONS.  [§633. 

if  they  could  have  protected  them  from  damage.  If,  on  the  other 
hand,  you  believe  that  they  were  delivered  on  this  wharf,  and  that 
the  weather  was  of  such  a  character  that  the  defendants  could  not 
have  protected  them  from  damage,  then  they  are  not  responsible,  and 
they  are  only  responsible  for  the  quantity  of  oats  they  received.  And 
you  are  the  judges  of  how  the  question  stands  upon  the  evidence,  and 
you  are  to  determine  it,  according  to  the  weight  of  the  evidence  and  a 
preponderance  of  the  evidence.33 

§  633.  Construction  of  Contract  for  Sinking  a  Well,  (a)  The  jury 
are  instructed  that  the  defendant  was  entitled  to  a  well  that  would 
supply  a  reasonable  and  sufficient  quantity  of  water  for  the  wants  and 
needs  of  himself  and  of  a  farm  of  that  character  in  that  neighbor- 
hood. 

(b)  Hence  you  must  consider  the  condition  of  the  parties  and  the 
circumstances  surrounding  the  matter;  the  size  of  the  farm;  the  prob- 
able needs  of  such  a  farm;  the  ordinary  uses  that  a  farm  requires  a 
well  for  in  this  neighborhood — to  determine  what  was  in  the  minds  of 
the  parties,  what  they  contemplated  when  this  well  should  be  put 
there. 

(c)  As  to  the  last  proposition,  as  to  whether  or  not  the  plaintiffs 
found  a  sufficiency  of  water — that  is,  made  a  well — evidence  on  the 
part  of  both  parties,  or,  I  might  say,  the  evidence  on  the  part  of 
neither  party,  specifies  specifically  the  quantity  of  water  that  should 
be  found. 

(d)  This  was  an  oral  contract.  I  do  not  understand  from  the  evi- 
dence that  either  party  contends  that  any  specific  quantity  of  barrels 
per  day  or  gallons  per  minute  was  to  be  the  criterion  of  whether  it 
was  a  good  and  sufficient  well  or  not.34 

§  634.  Completion  of  Contract — Test  of  Work  and  Postponement 
of  Trial  of  Machine,  Construed,  (a)  Under  the  contract  between 
the  parties  by  which  the  work  and  material  to  be  performed  and  fur- 
nished by  the  plaintiff  were  performed  and  furnished,  the  time  for  the 
completion  of  the  same  was  not  expressed.  It  was  therefore  the  duty 
of  the  plaintiff  to  perform  his  part  of  the  contract  in  a  reasonable 
time,  as  it  was  the  duty  of  the  defendant  to  be  prepared  to  make  the 
trial  provided  for  in  the  contract  within  the  time  contemplated  and 
understood  by  the  parties,  after  the  appliances  were  completed  to  the 
satisfaction  of  the  plaintiff;  that  is,  so  that  the  plaintiff  could  prop- 
erly say:  "My  work  under  the  contract  is  fully  performed.  Nothing 
remains  for  me  to  do. ' ' 

(b)  If  the  defendant  was  not  prepared  to  make  the  trial  within 
the  time  contemplated  by  the  parties,  after  the  appliances  were  so 
completed,  and  by  correspondence,  letters  and  telegrams  notified  the 
plaintiff  from  time  to  time  of  such  fact,  and  the  plaintiff  did  not  ob- 

33 — Heinberg  et  al.  v.  Cannon  et  proved  in  Richison  et  al.  v.  Mead, 
al.,   36  Fla.    601.  18   So.   714    (715).  11   S.   D.   639,   80   N.   W.   131   (133). 

34 — These    instructions    were    ap- 


§  635.]  CONTRACTS.  467 

jeet  to  the  postponement  of  the  time  for  trial,  but  impliedly  assented 
thereto,  and  when  informed  that  the  defendant  was  prepared,  came 
on  and  made  the  trial  and  test  without  objection,  then  the  fact,  if  it 
be  a  fact,  that  the  trial  was  not  made  within  two  months  after  such 
appliances  Avere  completed,  would  not  oblige  the  defendant  to  accept 
such  appliances  until  after  such  trial  had  been  made  for  such  time 
as  was  contemplated  by  the  contract.35 

§  635.  Changes  Made  at  Plaintiff's  Suggestion  So  as  to  Be  Satis- 
factory, Construed.  So  long  as  the  appliances  did  not  work  to  the 
plaintiff's  satisfaction,  and  changes  were  made  therein  at  his  own 
suggestion,  by  lowering  or  raising  the  bridges  in  the  melting  furnace, 
by  putting  on  a  blow  pipe,  or  by  lowering  the  roof  of  the  furnace  in 
order  to  increase  its  capacity  or  its  effectiveness,  if  you  find  that  such 
changes  were  made  by  plaintiff,  or  by  his  direction,  such  appliances 
cannot  be  said  to  have  been  completed  within  the  meaning  of  the 
terms  of  the  contract  between  the  parties.30 

§  636.  Written  Contract  Controls  Verbal,  (a)  The  jury  are  in- 
structed that  where  parties  have  had  verbal  negotiations,  which  have 
afterwards  been  reduced  to  writing,  the  law  presumes  that  the  entire 
agreement  was  reduced  to  writing,  and  that  the  written  agreement  will 
be  taken  to  control,  and  as  the  final  determination  of  the  parties. 

(b)  The  jury  are  instructed  that  if  you  believe  that  the  settlement 
between  plaintiff  and  defendant,  was  finally  reduced  to  writing  as 
alleged  in  plaintiff's  reply,  then  you  are  instructed  that  the  written 
contract  is  the  best  evidence  of  such  agreement,  and  of  the  under- 
standing of  the  parties,  and  in  the  absence  of  fraud  or  mistake,  the 
parties  are  bound  thereby.  You  should  determine  from  all  of  the  evi- 
dence before  you  whether  or  not  the  settlement,  was  reduced  to  writ- 
ing, and  if  you  find  that  the  same  was  reduced  to  writing,  then  such 
written  contract  was  binding  upon  the  parties  thereto;  that  if  you  so 
find,  then  it  will  be  your  duty  to  determine  whether  or  not  the  writ- 
ten contract  or  settlement  covers  the  notes  in  controversy;  and  if  you 
find  said  contract  does  not  cover  the  notes  in  controversy  your  ver- 
dict should  be  for  the  plaintiff,  unless  you  find  from  the  evidence 
that  after  the  execution  of  the  written  contract  set  forth  in  plaintiff's 
reply,  there  was  a  separate  and  independent  verbal  settlement  of  the 
notes  in  controversy  by  and  between  plaintiff  and  defendant,  as  set 
forth  in  the  answer,  and  if  you  should  so  find  your  verdict  should  be 
for  the  defendant.37 

§  637.  Custom  and  Usage  Enter  Into  and  Form  Part  of  a  Contract, 
(a)  The  court  instructs  the  jury,  as  a  matter  of  law,  that  when  a 
contract  is  entered  into,  the  parties  are  supposed  to  have  reference  to 

35 — Turner      v.      Muskegon     Ma-  chine  &  Foundry  Co.,  97  Mich.  166, 

chine  &  Foundry  Co.,  97  Mich.  166,  56  N.  W.  356. 

56   N.   W.   356    (358-9).  37— Martens    v.    Pittock,    —    Neb. 

36— Turner      v.      Muskegon      Ma-  — ,  92  N.  W.   1038   (1040). 


468  FORMS  OF  INSTRUCTIONS.  [§  638. 

the  known  usages  and  customs  which  enter  into  and  govern  the  busi- 
ness or  subject  matter  to  which  the  contract  relates,  if  there  are  any 
such  usages  and  customs,  unless  such  presumption  is  rebutted  by  the 
agreement  itself. 

Such  customs  as  are  universally  known  to  exist,  enter  into  and  form 
a  part  of  every  contract  to  which  they  are  applicable,  although  they 
are  not  mentioned  or  alluded  to  in  the  contract.38 

(b)  The  court  instructs  the  jury  that  although  the  usages  of  trade 
cannot  b<3  set  up  to  contravene  an  established  rule  of  law,  or  to  vary 
the  terms  of  an  express  contract,  yet  all  contracts  made  in  the  or- 
dinary course  of  business,  without  particular  stipulations  to  the  con- 
trary, are  presumed  to  be  made  in  reference  to  the  usages  and  cus- 
toms of  such  trade,  if  any  such  exist.39 

(c)  The  court  instructs  the  jury  that  a  usage  of  trade,  in  order  to 
be  binding  upon  the  parties,  must  be  generally  known  and  established 
among  those  who  are  engaged  in  the  business  where  the  usage  is 
claimed  to  exist,  and  so  well  settled  and  so  uniformly  acted  upon  as 
to  raise  a  fair  presumption  that  it  was  known  to  both  the  contracting 
parties,  and  that  they  contracted  in  reference  to  it,  and  in  conformity 
to  it.40 

(d)  The  court  instructs  you,  that  a  custom,  to  be  binding  as  such, 
must  be  general  and  uniform  in  the  place  or  in  the  branch  of  busi- 
ness where  it  is  claimed  to  exist.  It  must  be  certain,  reasonable,  and 
sufficiently  ancient  to  afford  the  presumption  that  it  is  generally 
known.41 

§  638.  Contract  Against  Public  Policy  Void — Limitation  of  the 
Rule — Bona  Tide  Purchaser.  If  the  contract  of  sale  under  which  this 
property  is  claimed  is  void,  it  is  because  it  is  contrary  to  public  policy. 
It  is  therefore  subject  to  all  the  limitations  which  sound  public  policy 
may  dictate;  and  courts  will  treat  such  contract  in  the  manner  which 
will  be  most  consistent  with  sound  public  policy,  and  best  calculated 
to  suppress  and  discourage  such  violations  of  law.  One  qualification 
of  the  rule  is  that  the  rule  itself  shall  not  be  made  an  engine  of 
wrong  and  injury  in  the  hands  of  a  wrong-doer  against  an  innocent 
party.  It  can  never  be  good  policy  to  punish  the  innocent  for  the 
crimes  of  the  guilty.  Hence  the  rule  cannot  be  set  up  to  the  prejudice 
of  any  party  innocent  of  all  participation  in  the  wrong,  or  whose 
rights  have  been  acquired  without  notice  of  it ;  and  it  is  a  well-settled 
principle  of  law  that  where  goods  are  obtained  by  fraud  or  under 
fraud,  or  under  circumstances  which  would  render  the  sale  void  be- 

38— Page     on     Contracts,    Vol.     2,  40— Lyon  &  Co.  v.   Culbortson,  83 

Sec.     604;     2    Pars,     on    Cont..     537;  111.  33,  25  Am.  Rep.  349;  Coffman  et 

Hughes  v.  Stanley,  45  la.  622;  Page  al.    v.    Campbell    &    Co.,    87    111.    98; 

v.    Cole,    120    Mass.    37;     Carter     v.  Couch  v.   The  Watson  Coal  Co.,  46 

Philn.    Coal    Co.,    77   Penn.    St.    286;  la.    17;    Bus?h    v.    Pollock,   41   Mich. 

Castleman    v.    S.     M.    Ins.    Co.,    14  64,   1   N.   W.   921. 

Bush.    (Ky.)    197.  41— Lesrgat  et  al.  v.  Sands  A.  Co., 

39— Lonergan    v.    Stewart,    55    111.  60  111.  158;   Randall  et  al.  v.  Smith, 

44.  63  Me.  105. 


§  639.]  CONTRACTS.  469 

tween  the  vendor  and  vendee,  and  the  vendor  has  furnished,  however 
innocently,  to  the  vendee  any  of  the  evidences  of  ownership  calcu- 
lated to  mislead  a  purchaser,  and  the  goods  are  purchased  bona  fide 
from  the  fraudulent  vendee,  relying  upon  such  evidences  of  owner- 
ship, such  innocent  purchaser  will  hold  as  against  the  original  ven- 
dor.42 

§  639.  Agreement  for  Dismissal  of  Criminal  Prosecution  Is  Void, 
(a)  You  are  instructed  that  any  agreement  that  tends  to  stop  or 
prevent  a  criminal  prosecution,  and  thereby  to  interfere  with  the 
course  of  justice,  is  void ;  whether  within  the  terms  of  the  statute  or 
not  is  against  public  policy  and  is  void.  And  in  this  case,  if  the 
jury  find  from  the  evidence  that  the  obligations  sued  on  were  signed 
under  the  agreement  that  the  plaintiffs  would  not  prosecute  the 
maker's  sons  for  the  violation  of  the  criminal  statutes,  state  or  fed- 
eral, then  and  in  that  event  their  verdict  should  be  for  the  defend- 
ant. 

(b)  You  are  instructed  that,  although  you  may  believe  from  the 
evidence  that  B.  Bros,  were  not  guilty  of  any  offense  for  which  they 
could  be  punished  criminally  either  under  the  federal  or  state 
statutes,  and  that  the  N.  County  Bank  and  B.  Dry-Goods  Co.  did  not 
intend  to  prosecute  them  criminally,  yet,  if  you  find  that  C.  H.,  act- 
ing either  as  attorney  or  agent  of  the  N.  County  Bank  and  B.  Dry- 
Goods  Co.,  represented  to  W.  B.,  that  if  he  signed  the  obligations 
sued  on  his  sons,  B.  Bros.,  would  not  be  prosecuted  criminally,  but 
if  he  did  not  sign  the  said  obligations  they  would  be  criminally  prose- 
cuted, and  you  believe  this  was  the  consideration  moving  W.  B.,  in 
the  execution  of  said  instruments,  then  in  that  event  the  said  obliga- 
tions are  void,  and  your  verdict  should  be  for  the  defendant. 

(c)  If  the  jury  find  from  the  evidence  that  C.  H.  was  the  attorney 
or  agent  for  the  plaintiffs  in  these  cases,  then  and  in  that  event  the 
plaintiffs  will  be  bound  by  all  the  statements  made  by  said  C.  H.  at 
the  time  that  said  W.  B.  signed  said  obligations.43 

42 — Hutchins  v.   Weldin,   114   Ind.  ecuted,     the    law    will    not    extend 

80,  15  N.  E.  804.  relief.'     Where  a   contract,  void  as 

"This    contract,"    said    the    court,  against     sound     morals     or     public 

"was  contra  taonos   mores,  and  void  policy,   has  been   fully  executed  by 

as    ag-ainst    public      policy,     citing  both  parties,  and  suit  brought  un- 

Root  v.   Stevenson's  Adm'r,  24  Ind.  der,    upon    or    against     such     con- 

115;    Dumont    v.     Dufore,     27     Ind.  tract,     potior   est     conditio     defen- 

263;    Davis  v.   Leonard,   69  Ind.   213.  dentis.'   " 

Upon  this  point  the  court  of  its  43 — Dry-Goods  Co.  v.  Barton,  — 
own  motion  charged  the  jury,  in  Ark.  — ,  97  S.  W.  58. 
effect,  that  if  they  believed  from  In  comment  the  court  said:  "It 
the  evidence  that  such  contract  is  not  necessary  for  a  party  to  be 
was  executed  by  the  delivery  of  under  arrest  and  actually  in  the 
the  mare  to  X  after  he  had  com-  course  of  being  prosecuted,  in  or- 
plied  with  the  terms  of  plaintiff's  der  to  enable  a  party  who  secures 
proposal,  'the  law.  in  such  a  case,  the  dismissal  or  termination  of 
will  leave  the  parties  just  where  it  the  prosecution,  for  a  moneyed 
finds  them.  *  *  *  If  the  con-  consideration  to  plead  the  illegal- 
tract  has  not  been  executed,  it  will  ity  of  such  consideration  in  bar  of 
not  be  enforced;  if  it  has  been  ex-  its     collection.      Mr.    Beach    says: 


470  FORMS   OF  INSTRUCTIONS.  [§  G40. 

§  640.  Contract  to  Testify  for  Compensation  Held  Unenforcible. 
The  court  instructs  you  that  the  law  will  not  enforce  an  illegal  con- 
tract, that  is  a  contract  made  against  the  law,  public'  policy  or  good 

morals,  and  if  the  jury  believe  from  the  evidence  that  plaintiff, -, 

had  a  contract  with  the  defendant  by  the  terms  of  which  said  

should  testify  as  a  witness  for  said  X.,  and  induce  others  to  testify 
for  said  X.,  then  the  plaintiff cannot  recover  in  this  case,  be- 
cause such  a  contract  is  illegal.44 

§  641.  Gaming — Action  for  Money  Lost.  The  court  instructs  the 
jury  that  betting  upon  a  footrace  between  two  persons  is  gaming 
within  the  meaning  of  the  statute ;  that,  in  order  for  the  plaintiff  to 
recover  under  that  statute  he  must  show  that  he  bet  his  money  upon 
the  race;  that  he  lost  his  bet;  and  that  the  defendant,  acting  by  him- 
self or  his  agents,  was  the  winner.45 

§  642.  Contract  Made  on  Sunday — Illinois.  The  court  instructs 
the  jury,  that  so  far  as  the  law  is  concerned,  parties  can  make  a  valid 
contract  as  well  on  Sunday  as  on  any  other  day.  And,  in  this  case, 
if  the  jury  believe,  from  the  evidence,,  that  the  parties  did  agree, 
the  one  to  sell  the  corn  and  the  other  to  purchase  it,  that  contract 
would  be  binding  upon  both  the  parties,  although  they  themselves 
may  have  supposed  that  to  make  the  contract  binding  they  would 
have  to  meet  on  some  other  day  to  ratify  it.46 

§  643.  Same  Subject — Georgia — Iowa — Indiana.  The  court  in- 
structs the  jury,  that  all  contracts  made  in  this  state  on  Sunday, 
though  not  absolutely  void,  are  voidable,  and  neither  party  can  be 
bound  to  perform  such  a  contract  against  his  will.47 

§  644.  Specific  Contract  Must  Be  Proved — Burden  of  Proof,  (a) 
The  defendants  have  undertaken  to  prove  a  specific  contract,  not  in 
writing,  under  which  the  property  referred  to  was  delivered  in  full 
payment  of  all  debts  owing  by  A.  to  plaintiff;  and,  if  they  fail  to 

'A    contract,    the    consideration    of  the       payee.        Citing-      Rogers      v. 

which,   in  whole   or  in   part,   is  the  Blythe,    51  Ark.    519,    11   S.    W.    S22; 

suppression    of    a    criminal    prose-  Kirkland      v.    Benjamin,      G7     Ark. 

cution,    is     without     any    legal    ef-  480,    55   S.   W.    840." 

ficacy,   either  as  a  cause  of  action  44 — Boehmer     v.     Foval,     55     111. 

or  as  a  defense   to    an    action  not  App.    71    (73). 

founded  on  or  arising-  out  of  the  45 — Jones  v.  Cavanaug-h,  149 
agreement.'  2  Beach  on  Modern  Mass.  124,  21  N.  E.  306.  Citing- 
Contracts,  Par.  1551;  Page  on  Cont.  Grace  v.  McElroy,  1  Allen  563; 
Vol.  1,  Sec.  417.  Contracts  to  sup-  Scollans  v.  Flynn,  120  Mass.  273; 
press  evidence  or  in  any  way  in-  McGrath  v.  Kennedy,  15  R.  I.  209, 
terfere   with    the   course    of   justice  2  Atl.   Rep.  438. 

whether  within   any   terms    of   any  46 — Moore    et    al.    v.    Murdock    et 

statute    or   Hot   are   ag-ainst   public  al.,    26   Cal.    514,    85   Am.    Dec.    187; 

policy    and     void.        Henderson    v.  Richmond  v.   Moore,   107  111.  429,   47 

Palmer,   22  Am.    Rep.   117;    Peed   v.  Am.    Rep.    445. 

McKee,    42   Iowa   689,    20   Am.    Rep.  47— Meriwether   v.    Smith,    44    Ga. 

631.      A    note    or   agreement    where  541;   Pike  v.   King,  16  la.  49;   Peake 

the   .consideration     is    the     preven-  v.    Conlan,    43    la.    297;    2    Pars,    on 

tion      or      dismissal     of     a     prose-  Cont.   757;    Page  on  Cont.    Sec.  455; 

cution    is    void,    even     though     the  Gilbert  v.  Vachon,  69  Ind.  372. 
amount      represents     a     debt     due 


§  645.]  CONTRACTS.  471 

show  this  specific  contract  by  a  fair  preponderance  of  evidence,  then 
your  verdict  must  be  for  the  plaintiff.48 

(b)  It  is  for  the  plaintiff  to  prove,  by  a  preponderance  of  the 
evidence,  that  there  was  a  contract  existing  between  the  plaintiff  and 
the  defendant,  as  claimed  by  the  plaintiff,  and,  unless  you  believe 
from  a  preponderance  of  the  evidence  that  the  plaintiff  has  proven 

that  on  the  ,  there  was  such  a  contract  in  effect,  it  will  be 

your  duty  to  find  for  the  defendant.49 

§  645.  Agreement  to  Purchase  Stock.  The  court  instructs  the  jury 
that  the  plaintiff  in  this  case  sues  in  the  place  and  stead,  and  for  the 

benefit  of  A.  E.  ,  and  in  order  to  recover,  he  must  prove  by  a 

preponderance  of  the  evidence  an  agreement  on  the  part  of  the  de- 
fendant to  purchase  certain  shares  of  stock  in  the   0.  C.   Co.  from 

A.  E.  ,  or  to  pay  that  company  for  certain  stock  purchased  by  it 

for  him.     And  if  you  believe  from  all  the  evidence  in  the  ease  that 

the  defendant  did  not  so  agree  with  A.  E.  ,  then  your  verdict 

should  be  for  the  defendant.50 

§  646.  Entering  upon  the  Performance  of  Offer  Shows  Acceptance. 
You  are  instructed,  that  if  one  person  makes  a  proposition  to  another, 
and  the  latter,  without  any  formal  acceptance  of  the  proposition,  en- 
ters upon  the  performance  of  it,  and  proceeds  to  avail  himself  of  its 
benefits,  he  will  be  as  fully  bound  as  if  he  had  in  terms  accepted  the 
offer.51 

§  647.  Liability  on  Agreement  to  Pay  for  Merchandise  Delivered  to 
Third  Person,  (a)  If  you  believe,  from  the  evidence,  that  plaintiff 
and  defendant  entered  into  an  agreement,  under  which  plaintiff 
agreed  to  furnish  lumber  on  the  order  of  T.,  to  be  used  in  erecting  a 
building  for  the  defendant,  and  defendant  agreed  with  plaintiff  to 
pay  him  for  the  lumber,  and  that  in  pursuance  of  such  agreement 
plaintiff  furnished  lumber,  then  plaintiff  would  be  entitled  to  recover. 

4S — National  State  Bank  v.  Dela-  pany,   or  that  an  agreement  could 

haye,  82  la.  34,  47  N.  W.  999  (1001),  not    be   by   the   jury   inferred   from 

31  Am.    St.    Rep.   458.  all     the    facts     and     circumstances 

49 — Utter    v.    Buck,    120    111.    App.  testified    to    surrounding-    the    pur- 

120.    Under  the  facts  in  the  case  at  chase   of   the   stock   and   its    deliv- 

bar  the  above  instruction  was  held  ery    to    A.,    if    they    thought    such 

erroneous.     However  in   an   action  facts    and    circumstances    as    they 

upon    an    express    contract    solely  believed    took   place   justified    such 

the  form  would  be  proper.  an     inference.      The     language     of 

50— Royal     Trust     Co.    v.     Over-  Judge  Wall  in  the  City  of  Cham- 

strom,    120  111.   App.  479.  paign  v.  Forrester,  29  111.  App.  120, 

The    court    said:      "We     do     not  cited  in  the  brief  for  defendant  in 

think  this  instruction  is  erroneous,  error,   seems   very  applicable   here. 

It  might   perhaps   have  been   more  'Possibly  the   jury,    on   a     careless 

carefully  drawn  to  avoid  any  pos-  reading,   might     give     it     frhe     con- 

sibility   of   its   proving    misleading,  struction  contended  for;  and  if  the 

but  we  do  not  think  that  in  its  fair  defendant    was    apprehensive    that 

meaning,  as  it  must  be  supposed  it  the   jury   might   so   misunderstand, 

was    probably    understood    by    the  it  was  its  privilege  to  ask  another 

jury,    it    declares    either   that    Mr.  instruction,      making      the      point 

B.s'   agreement     on    behalf  of    the  clear.'  " 
company  would  not  bind  the  com-         51 — Miller  v.   Manis,   57  111.   126. 


472  FORMS   OF  INSTRUCTIONS.  L§  648. 

(b)  The  jury  are  instructed,  that  if  you  find,  from  the  evidence 
in  this  case,  that  T.  had  contracted  with  defendant  to  build  a  house 
for  him,  and  to  furnish  all  the  materials  therefor,  including  the  lum- 
ber, and  that  T.  gave  the  order  introduced  in  evidence,  on  the  defend- 
ant, payable  to  plaintiff,  after  the  purchase  of  the  lumber  involved 
in  this  suit,  and  that  such  lumber  was  purchased  of  the  plaintiff  by 
T.,  and  not  by  the  defendant,  and  that  the  defendant  did  not  agree 
to  pay  for  the  same,  then  he,  and  not  the  defendant,  H.,  is  liable 
therefor,  and  you  should  find  for  the  defendant.52 

§  648.  Third  Person  Can  Sue  on  Contract  Made  for  His  Benefit. 
The  jury  are  instructed,  as  a  matter  of  law,  that  a  promise  made  upon 
a  valuable  consideration,  from  one  person  to  another,  to  pay  a  sum 
of  money  to  a  third  person,  is  valid  and  binding  and  can  be  enforced 
by  said  third  person  in  his  own  name.  In  this  case,  if  the  jury  be- 
lieve, from  the  evidence,  that  the  defendants,  as  charged  in  the 
declaration,  purchased  the  leasehold  and  personal  property  in  the 
restaurant  from  C.  &  Y.,  and  as  a  part  of  the  purchase  price  there- 
for agreed  and  undertook  to  pay  the  indebtedness  due  to  D.  C.  from 
the  firm  of  C.  &  Y.,  then  the  jury  must  find  the  issues  for  the  plain- 
tiff for  the  sum  remaining  unpaid  or  due  at  the  time  of  making  the 
said  agreement,  and  the  interest  upon  it  at  the  rate  of  five  per  cent.53 

§  649.  Claim  to  Recover  from  Estate  for  Taking  Care  of  Deceased. 
(a)  I  charge  you  further,  if  L.  S.  and  defendant's  wife  and  Mrs. 
B.  agreed  with  the  defendant  that  out  of  the  estate  of  J.  S.  payment 
was  to  be  made  for  the  expense  and  trouble  of  waiting  on  J.  S.,  if 
defendant  had  any  such  expense  or  trouble,  then  defendant  had  the 
right  to  take  out  of  their  part  of  the  estate  of  J.  S.  payment  for 
such  trouble  and  expense  in  waiting  on  him,  if  he  incurred  any  trou- 
ble and  expense  in  waiting  on  him.  If  you  believe  these  sisters 
agreed  with  defendant  that  out  of  the  estate  payment  was  to  be  made 
for  any  trouble  and  expense  in  waiting  on  J.  S.,  then  you  will  deter- 
mine whether  or  not  defendant  incurred  any  expense  and  trouble  in 
waiting  on  said  J.  S. ;  and,  if  so,  what  said  trouble  and  expense  was 
reasonably  worth. 

(b)  I  charge  you  that  if  these  sisters  agreed  that  out  of  the 
estate  of  J.  S.  payment  was  to  be  made  if  defendant  incurred  any 
expense  and  trouble,  then  you  will  deduct  from  the  estate  of  J.  S. 
what  said  trouble  was  reasonably  worth,  and  what  said  expenses 
were,  and  then  determine,  under  the  rules  of  law  given  you  in  charge 
by  the  court,  whether  or  not  defendant  is  liable  to  plaintiff  for  one- 
third  of  said  balance  of  said  estate,  if  he  received  any  part  of  it  be- 
longing to  L.  S. 

(c)  I  charge  you  further,  if  these  sisters  did  not  agree  with  de- 
fendant that  out  of  the  estate  of  J.  S.  payment  was  to  be  made  for 

52— Hartshorn  v.  Byrne,  147  111.  53— Rolflenwick  et  al.  v.  Cahill, 
418    (425),   35  N.   E.  622.  187   111.   218    (219),    58   N.   E.    351. 


§  650.]  CONTRACTS.  473 

such  expenses  and  trouble,  or  if  such  agreement  was  made,  but  de- 
fendant did  not  incur  any  trouble  and  expense  in  waiting  on  J.  S.- 
and  if  defendant  reserved  any  part  of  said  estate  belonging  to  L.  S., 
then  you  will  determine,  under  the  rules  given  you  in  charge  by  the 
court,  whether  or  not  defendant  is  liable  for  such  part,  without  de- 
ducting anything  for  such  trouble  and  expense,  if  it  was  incurred  by 
defendant.54 

§  650.  Rescinding  by  Mutual  Consent.  The  jury  are  instructed, 
that  all  contracts  may  be  rescinded  by  the  consent  of  all  the  contract- 
ing parties,  and  this  consent  need  not  always  be  expressed  in  words. 
If  either  party,  without  right,  claims  to  rescind  the  contract,  the 
other  party  need  not  object ;  and  if  he  permit  it  to  be  rescinded,  it 
will  be  done  by  mutual  consent.33 

§  651.  Rescinding  for  Non-Performance.  The  jury  are  instructed, 
that  when  one  party  fails  or  refuses  to  perform  his  part  of  the  con- 
tract, with  an  intention  to  abandon  it,  or  disables  himself  from  per- 
forming it,  the  other  party  may  treat  the  contract  as  rescinded.30 

The  court  instructs  you,  as  a  matter  of  law,  that  a  contract  cannot 
be  rescinded  by  one  of  the  parties  alone,  for  non-performance  by  the 
other,  unless  both  can  be  restored  to  the  condition  in  which  they  were 
before  the  contract  was  made:  and  if  one  of  the  parties  has  derived 
any  advantage  from  a  partial  performance  by  the  other,  he  cannot 
hold  the  benefit  of  this  and  rescind  as  to  the  residue,  on  the  ground 
of  the  other's  non-performance.57 

§  652.    Parol    Agreement    Avoiding    Contract — Burden    of    Proof. 

You  are  instructed  that  where  it  has  been  once  established  that  there 
has  been  a  contract  of  agreement  between  two  or  more  individuals, 
and  the  same  is  sought  to  be  avoided  by  any  parol  agreement,  that 

54— Teasley    et   al.    v.    Bradley    et  at    that   time    there    were    three    in 

al.,   120   Ga.    373,   47   S.   E.    925    (926).  life,    and    the    judge    in    his    charge 

"This    charge    was     adjusted     to  gave  the   names   of  these   children, 

the  pleadings   in  the   case.     In  the  one  of  whom  was  Mrs.   B.,   and   in 

amendment   to    his   plea  T.    alleged  effect   instructed    the   jury    that,    if 

that    prior    to    the   death    of   J.    S.,  the  contract  set  up  in  the  amend- 

and   when   he     returned    to    defen-  ment  plea  was  sustained  by  proof, 

dant's  home  to  be  taken  care  of  in  then    L.     S.     would    be    chargeable 

1873,    there    was    an    agreement    be-  with  her  share  of  the  expenses  in- 

tween    defendant    and   the   children  curred    in    pursuance    of    that    con- 

of   J.    S.    that,    in    consideration    of  tract.      There    was    nothing   in    the 

defendant    taking    care    of    said    J.  pleading   which    set    up    a    contract 

S.  and  nursing  him  while  he  lived,  between   L.   S.   and   T.'s   wife.     The 

they  would    wind   up  J.    S.'s  estate  allegation     was     that    all      of     the 

without    administration,    and    that  children   should  pay  the   defendant 

defendant  was  to  be  fully  paid  for  for   his  trouble   and   expenses,   and 

his    services    and    the    expenses    in-  the  charge  of    the    court    was   ad- 

curred  by  him  in  pursuance  of  the  justed    to    the    pleadings,    and    was 

contract,    which    amounted    to    the  free  from   error." 

sum    of   $1,000,    one-third    of   which  55—2  Par.   on  Cont.   678;    Page   on 

sum    was    properly    chargeable    to  Cont.    Sec.   317. 

L.     S.        The     amendment    did    not  56— Page    on    Cont.    Sec.    1434;     2 

state  the  names  of  the  children  of  Par.    on    Cont.    678. 

J.   S.     The   evidence  disclosed  that  57—2   Par.    on    Cont.    679. 


474  FORMS  OF  INSTRUCTIONS.  [§  653. 

the  written  agreement  is  the  best  evidence,  unless  the  parol  shall  be 
established  by  a  preponderance  of  the  evidence  satisfactory  to  your 
minds,  and  that  in  a  case  where  there  is  a  dispute  respecting  the 
change  of  a  written  agreement,  and  you  are  in  doubt  regarding  the 
truth,  that  the  burden  of  proof  to  establish  the  change  from  the 
written  agreement  to  the  oral  agreement  is  upon  the  person  who  sets 
up  the  oral  agreement  to  defeat  the  written  agreement.58 

§  653.  Failure  of  One  to  Perform  Entitling  the  Other  to  Abandon 
Contract — When.  The  court  instructs  the  jury  that  under  the  con- 
tract in  evidence,  even  if  you  believe  from  the  evidence  that  acci- 
dents happened  whereby  defendant's  light  was  affected,  or  even  if 
you  believe  from  the  evidence  said  light  became  defective  without 
apparent  cause,  it  was  the  duty  of  defendant  to  notify  plaintiff  at 
its  power  house  or  office  of  such  accident  or  defective  light,  and  to 
give  plaintiff  a  reasonable  time  to  repair  such  accident  or  remedy 
such  defect;  and  defendant  had  no  right  under  said  contract  to 
rescind  or  annul  the  same  because  of  such  accident  or  defective  serv- 
ice unless  you  believe  from  the  evidence  that  such  accident  happened, 
or  the  said  light  became  defective,  and  plaintiff  after  reasonable 
notice  neglected  or  refused  to  repair  such  accident  or  remedy  such 
defect  in  said  light.59 

§  654.  A  Party  Cannot  Recover  Money  Paid  Where  He  Himself 
Refuses  to  Perform,  in  the  Absence  of  Fraud.  The  jury  are  in- 
structed, as  a  general  principle  of  law,  that  a  party  cannot  recover 
back  any  money  paid  by  him  upon  a  contract  which  he  himself  has 
refused  to  perform  without  fraud  of  the  other  party  thereto.  And 
in  this  case,  if  the  jury  find  from  the  evidence  that  the  defendant 
was  ready  and  willing  and  offered  to  perform  the  contract  in  evi- 
dence on  his  part,  and  that  the  plaintiff  refused  to  execute  and  per- 
form said  contract  on  his  part,  then  the  plaintiff  is  not  entitled  to 
recover  any  portion  of  the  money  paid  by  him  upon  said  contract.60 

§  655.  Releasing  Plaintiff  from  Complete  Compliance — Agreeing  to 
Pay  for  Work  Actually  Done.  If  the  jury  believe  from  all  the  evi- 
dence that  defendants  did  not  revoke  the  contract  in  evidence,  but  re- 

58 — Carstens  v.   Earles,   26  Wash,  failure,    neglect   or   refusal    of   one 

676.    67  Pac.    404    (407).  party  to  comply  with   some  of  the 

"While  the  words  used  may  not  terms  of  a  contract  which  will  en- 
be  the  most  comprehensive  that  title  the  other  to  abandon  it,  up- 
might  have  been  used,  yet,  we  on  notice  to  the  delinquent  or  by 
think,"  said  the  court,  "from  the  any  other  means  he  can  use.  To 
context,  that  the  instruction,  as  a  justify  an  abandonment,  the  fail- 
whole,  is  the  equivalent  of  saying  ure  must  be  total,  that  is,  such  as 
that  when  the  existence  of  the  to  defeat  the  object  of  the  contract 
written  agreement  is  established,  or  make  it  unattainable,  citing 
and  when  it  is  sought  to  be  avoid-  Selby  v.  Hutchin,  4  Gilm.  319;  Dog- 
ed  by  oral  evidence,  certain  stated  gett  v.  Brown,  28  111.  495." 
rules  of  evidence  must  apply."  60 — Kendall     v.    Young,     141     111. 

59— Bloomington    Elec.    Light    Co.  188   (192),  30  N.   E.  538,  16  L.   R.  A. 

v.   Rodbourn,   56  111.   App.  165   (172).  492. 

The  court  said,   "It  is  not  every 


§  656.]  CONTRACTS.  475 

leased  the  plaintiffs  from  a  complete  compliance  with  said  contract, 
and  agreed  to  pay  plaintiffs  whatever  was  due  for  work  and  labor 
actually  performed;  and  if  the  jury  further  believe  from  all  the  evi- 
dence that  there  is  a  balance  clue  and  unpaid  for  work  and  labor 
actually  performed,  they  should  find  for  the  plaintiffs  for  said  bal- 
ance with  interest  from  time  it  was  due.01 

§  656.  Only  Act  of  God,  or  Public  Enemies,  Will  Excuse  Non- 
Performance — What  an  Act  of  God.  The  court  instructs  the  jury, 
that  where  a  person  makes  a  contract  to  do  a  thing  which  is  in  itself 
possible  to  be  done,  he  will  be  liable  for  a  breach  of  such  contract, 
notwithstanding  it  was  beyond  his  power  to  perform  it.62 

The  jury  are  instructed,  that  to  make  an  act  of  God  an  excuse  for 
not  performing  a  covenant,  or  for  not  complying  with  the  terms  of  a 
contract,  performance  must  be  impossible  by  or  through  any  known 
exercise  of  human  skill  or  power — something  must  occur  which  no 
ordinary  skill  or  precaution  could  have  foreseen  or  prevented.03 

§  657.  Unforeseen  Contingencies,  Sickness,  Bad  Weather  or  Roads, 
No  Excuse.  The  court  instructs  you,  as  a  matter  of  law,  that  where 
a  person  contracts  to  sell  stock  (grain  or  other  personal  property), 
and  deliver  the  same  at  a  specified  place,  upon  a  specified  day,  in- 
clemency of  the  weather,  bad  condition  of  the  roads,  sickness,  or  other 
unforeseen  contingency,  furnishes  no  excuse  for  the  non-performance 
of  the  contract,  unless  it  be  expressly  so  provided  in  the  contract.64 

§  658.  Notice  to  Rescind — Reasonable  Time  After  Discovery  of 
Fact,  Giving  Right  to  Rescind.  The  court  instructs  the  jury  that  in 
this  case,  whether  the  defendant  gave  the  plaintiff  notice  of  his  in- 
tention to  rescind  the  contract  in  question,  and  whether  such  notice 
was  given  as  soon  as  it  could  reasonably  be  done  after  the  alleged 
discovery  of  the  fact,  relied  upon  as  giving  the  right  to  rescind,  are 
questions  of  fact  to  be  determined  by  the  jury  from  the  evidence  in 
the  case.65 

§  659.  Release  Obtained  by  Fraud,  (a)  The  jury  are  instructed 
that  if  you  believe,  from  the  evidence,  that  the  release  in  this  case 
was  procured  from  the  plaintiff  by  the  defendant,  or  by  anyone  for 
it,  and  that  at  the  time  the  plaintiff  signed  the  said  paper  he  believed 
from  what  was  told  him  before  signing  it  that  it  was  for  the  purpose 
of  securing  the  services  of  a  physician,  and  that  the  parties  who 
induced  him  to  sign  said  paper  led  the  plaintiff  to  believe  that  he 
was  only  signing  a  paper  for  the  purpose  of  securing  the  services  of 
a  physician,  and  that  the  plaintiff  did  so  believe,  you  are  instructed 
that  a  release  so  procured  would  not  be  binding  upon  the  plaintiff 
and  should  not  be  considered  by  you  in  arriving  at  your  verdict. 

61 — Andrews    et   al.    v.    Tucker   et  64 — Kritzinger  v.    Sanborn,   70  111. 

al.,   127  Ala.  602,   29   So.   34   (37).  146. 

62— "Walker  v.   Tucker,   70  111.   527.  65— Parmlee    v.    Adolph,    28    Ohio 

63— Shear    v.     Wright,     60     Mich.  St.    10;    Byers    v.    Chapin,    28    Ohio 

159,  26  N.  W.  871.  St.   300. 


476  FORMS  OF  INSTRUCTIONS.  [§  660. 

(b)  You  are  instructed  that  it  is  for  the  jury  to  determine,  from 
all  the  evidence  and  circumstances  in  the  case,  whether  the  plaintiff 
understood  the  contents  of  the  release  at  the  time  he  signed  it,  and 
whether  he  intended  to  release  and  understood  that  he  was  releasing 
his  claim  and  right  of  action  against  the  defendant  in  consideration 
of  the  defendant  furnishing  him  with  a  doctor;  and  unless  you  so 
believe  you  are  instructed  that  it  would  not  release  the  defendant 
from  liability,  if  you  further  find,  from  the  evidence,  that  the  de- 
fendant is  liable,  and  such  release  should  be  disregarded  by  you  in 
arriving  at  your  verdict.66 

§  660.  Revocation  of  Contract  with  Attorney  to  Represent  an  Heir 
on  a  Contingent  Basis — Series,  (a)  If  the  jury  believe  from  the  evi- 
dence that  the  defendant  contracted  with  the  plaintiff  as  an  attorney 
at  law,  to  pay  him  20  per  cent,  of  her  interest  in  the  estate  of 
M.  J.  G.,  in  case  he  should  establish  her  right  thereto,  and  recover 
same  for  her,  and,  by  power  of  attorney,  constituted  and  appointed 
plaintiff  her  agent  and  attorney  to  procure  such  interest,  and  also 
agreed  to  pay  him  $100  for  his  services  in  making  search  for  de- 
fendant and  proving  her  identity  and  establishing  her  to  be  an  heir 
of  deceased,  and  also  promised  to  reimburse  plaintiff  for  all  sums 
expended  by  him  in  finding  her  and  all  sums  expended  in  her  interest, 
and  if  the  jury  further  believe  from  the  evidence  that  the  plaintiff 
did  make  such  search,  locate  and  develop  defendant  to  be  the  daugh- 
ter and  heir  of  the  deceased,  and  entitled  to  share  in  her  estate,  and 
if  then  the  plaintiff  while  he  was  taking  all  necessary  steps  in  her 
behalf  towards  a  recovery  of  her  interest  in  said  estate  was  pre- 
vented by  defendant  from  doing  so  by  revoking  his  employment  as 
such  attorney,  then  plaintiff  is  entitled  to  a  verdict  in  his  favor  for 
all  sums  expended  by  him  and  which  she  agreed  to  repay,  and  also 
the  sum  of  $100  for  his  services  in  making  search  for  defendant  and 
showing  her  to  be  an  heir  of  deceased,  and  is  also  entitled  to  recover 
damages  for  a  breach  of  his  contract  of  employment  in  any  sum 
which  the  jury  may  feel  warranted  from  the  evidence  in  awarding 
to  him,  not  exceeding  $1,000.  And  in  arriving  at  such  verdict  the 
jury  may  take  into  consideration  the  value  of  the  estate  of  de- 
ceased, as  it  may  have  been  proven  in  evidence. 

(b)  If  you  find  from  a  preponderance  of  the  evidence  that  de- 
fendant did  enter  into  a  contract  with  plaintiff  to  pay  him  the  sums 
of  rroney  expended  by  him  in  finding  her,  and  a  $100  fee  for  his 
services  in  that  connection,  and  the  further  sum  of  20  per  cent  of 

66— Pioneer    C.    Co.    v.    Romano-  40  N.  E.  492.    In  that  case,  the  Ap- 

wicz.  186  111.  9  (14),  aff'g  85  111.  App.  pellate    Court    said    that    a    release 

407.    57    N.    E.    864.     The   court    said  may  be  regarded  as  not  fairly  ob- 

that       while       these       instructions  tained.    and    hence    as    inoperative, 

"might    have   been   given   in   better  where  it  is   taken  from  one  unable 

form  they  are  within  the  rule  pro-  to    read    the   language,    and    is    not 

nounced    in    National    Svrup    Co.    v.  read   over  to  him,   and   he  is  made 

Carlson,    47    111.    Anp.    178.    and    re-  to    believe    that    it    is    a    paper    for 

ported  in   this   court   in  155  111.   210,  some    other   purpose." 


§  661.]  CONTRACTS.  477 

any  share  of  her  mother's  estate  which  he  might  recover  for  her,  and 
if  you  further  find  that  said  contract  was  made  in  good  faith,  and 
not  procured  by  fraud,  misrepresentation,  or  concealment  of  material 
facts  on  the  part  of  the  plaintiff,  and  that  afterwards  the  defendant 
revoked  the  power  of  attorney  executed  by  her  to  plaintiff,  then  it 
is  for  you  to  say  whether  such  revocation  was  intended  by  her  and 
understood  by  him  as  dismissing  him  from  the  case,  and  denying  him 
the  right  to  proceed  and  carry  out  his  part  of  the  contract;  if  you 
should  find  that  it  was  so  intended  and  so  understood  by  both  parties, 
then  you  should  find  for  plaintiff  such  sum  in  damages  as  you  believe 
he  is  entitled  to  recover  under  the  other  instructions  given  herein. 

(c)  If  you  find  that  the  agreement  about  which  plaintiff  testified 
was  voluntarily  entered  into  by  the  defendant  then  the  burden  of 
showing  that  her  consent  to  the  same  was  procured  by  misrepresenta- 
tion or  concealment  of  material  facts  amounting  to  a  fraud  is  upon 
the  defendant. 

(d)  The  burden  is  on  the  plaintiff  to  show  by  a  preponderance 
of  the  evidence  that  the  defendant  entered  into  the  contract  with 
him  on  which  this  action  is  based  and  for  the  breach  of  which  he 
asks  for  damages. 

(e)  Attorneys,  in  dealing  with  their  clients,  are  required  to  exer- 
cise the  highest  order  of  good  faith  and  to  disclose  to  them  all 
information  in  their  possession  as  to  the  material  facts  of  the  case 
which  would  or  might  influence  the  client  in  entering  into  or  refusing 
to  execute  the  contract  in  the  issue. 

(f)  The  court  instructs  the  jury,  if  they  believe  from  the  evidence 
that  the  plaintiff  is  entitled  to  recover,  the  measure  of  damages  is 
the  amount  of  money  he  would  have  received  had  he  been  allowed  to 
complete  the  performance  of  his  contract,  less  the  value  of  such 
services  as  he  would  have  been  required  to  render,  and  also  deducting 
any  expense  which  he  would  have  been  compelled  to  incur  in  carrying 
out  the  contract  on  his  part.67 

§  661.  Plaintiff  Ready  and  Willing  to  Receive  Subject  Matter — 
Damages.  If  you  believe,  from  the  evidence,  that  the  defendant  made 
with  the  plaintiff  such  a  contract  for  the  delivery  of  grain,  as  is  set 
forth  in  either  of  the  counts  of  the  plaintiff's  declaration,  and  that 
the  plaintiff  was  ready  and  willing  to  receive  such  grain  and  pay 
for  the  same,  as  stated  and  alleged  in  such  count;  and  if  you  further 
believe,  from  the  evidence,  that  the  defendant  failed  to  perform  his 

67 — "Weil   v.    Fineran,   78   Ark.    87,  sue    'Of    the    breach     of    contract, 

93   S.    W.   568.  and      the      measure      of      damages 

The  court  said,  "These  instruc-  therefor.  See  Brodie  v.  Watkins 
tions  properly  presented  the  law  &  wife,  supra,  and  Davis  v.  Web- 
applicable  to  the  issue  and  the  ber,  66  Ark.  190,  49  S.  W.  822.  45 
facts  in  evidence.  Citing-  Brodie  v.  L.  R.  A.  196,  74  Am.  St.  Rep.  81 
"Watkins  &  wife,  33  Ark.  545,  34  and  Thweatt  v.  Freeman,  73  Ark. 
Am.  Rep.  49.  See  also,  Van  Winkle  575,  84  S.  W.  720,  on  the  question 
v.  Satterfield,  58  Ark.  621,  25  S.  of  the  dutv  of  good  faith  from  the 
W.  1113,  23  L.  R.  A.  853,  on  the  is-  attorney   to  his   client." 


478  FORMS  OF  INSTRUCTIONS.  [§  662. 

part  of  the  contract,  as  alleged  in  the  same  count  of  the  declaration, 
without  fault  on  the  part  of  the  plaintiff,  then  the  defendant  is  liable 
in  damages  for  such  breach  of  the  contract  on  his  part,  if  any  dam- 
ages have  been  thereby  sustained  by  the  plaintiff. 

And,  in  such  case,  the  measure  of  damages  is  the  difference  be- 
tween the  contract  price  and  the  market  value  of  the  same  grain 
at  the  time  and  place  where  it  should  have  been  delivered  under  the 
contract.68 

§  662.  Failure  to  Accept,  Diminished  Profits  No  Excuse.  You  are 
instructed  that,  if  the  failure  of  the  defendant  to  take  so  much  as 
tons  of  ground  flint  per  year  was  because  the  de- 
fendant was  unwilling  to  sell  at  a  smaller  profit  than  he  had  been 
getting  before  that  time,  then  the  diminished  profits  furnish  no  excuse 
for  said  failure,  if  the  jury  should  be  of  opinion  that  he  could  still 
have  sold  the  goods  by  accepting  smaller  profits.69 

§  663.  Failure  of  Title  as  a  Breach  of  Contract,  (a)  The  jury 
are  instructed  that  if  you  believe  from  the  evidence  that  the  title 
transferred  to  G.,  as  stated  in  defendant's  answer,  failed  by  reason 
of  chattel  mortgage  given  on  said  property  by  one  S  after  the  date 
of  the  sale  described  in  defendant's  answer,  then  you  are  instructed, 
that  such  failure  comes  within  the  breach  described  in  defendant's 
answer;  and,  if  you  so  find  the  facts  to  be,  you  should  find  for  the 
plaintiffs. 

(b)  The  jury  are  instructed  that  if  you  believe  from  the  evidence 
that  H.  &  Co.,  prior  to  the  time  that  the  defendant  purchased  the 
goods  in  question,  had  a  claim  against  one  S.,  and  that  the  only 
part  that  H.  &  Co.,  took  or  had  in  the  sale  in  question  was  for  the  bet- 
ter securing  an  indebtedness  due  them,  and  that  at  said  time  the  real 
title  to  such  property  was  in  said  S.,  then  you  are  instructed  that  the 
failure  of  said  title  at  any  subsequent  time  is  not  chargeable  to  this 
plaintiff,  and  you  should  find  for  the  plaintiff.70 

§  664.  Breach  of  Contract  for  Sale  of  Good  Will  of  Business- 
Elements  that  Must  Be  Proved,  (a)  The  burden  of  proof  is  on  the 
plaintiff  in  this  case  and  before  he  can  recover  he  must  prove  by  a 
preponderance  of  the  evidence  the  following  propositions:  1.  That 
the  alleged  contract  set  up  in  his  petition  wTas  signed  at  or  about  the 

time   therein  mentioned.     2.    That  a  part   of  the  $ given  by 

plaintiff  to  defendant  was  in  consideration  of  defendant  not  again 
engaging  in  the  bakery  business  in  N.  City,  while  the  plaintiff  was 
engaged  in  that  business.  3.  That  defendant  has  engaged  in  the 
bakery  business  again  in  competition  with  plaintiff.     4.    That  plain- 

6? — Metz   v.    Albrecht,   52   111.    491.  tions  should  have  been  given.  This 

69— Moses  v.  Allen,   91   Md.   42,  46  was   the   plaintiff's     theory     of  the 

Atl.    323   (325).  case,  as  presented  by  his  pleadings 

70 — Hartwig    v.    Gordon,    37    Neb.  and   proof,    and   he  had   a   right   to 

65.   56  N.  W.  324.  have    the    case,    as     presented     by 

The  court  said:     "These  instruc-  him,  submitted  to  the  jury." 


§  665.]  CONTRACTS.  479 

tiff  has  been  damaged  in  his  business  by  reason  of  defendant  engaging 
in  the  bakery  business.  5.  The  amount  of  damages  that  plaintiff  has 
sustained,  if  any.71 

(b)  The  court  instructs  the  jury  that  the  language  of  the  con- 
tract, to-wit:  "The  said  A.  agrees  to  relinquish  his  office  for  the 
practice  of  medicine  and  surgery  to  the  said  Dr.  W.,  party  of  the 
second  part,"  simply  means  that  he  was  to  vacate  said  office  and 
leave  the  same  to  the  use  of  the  defendant  Dr.  W.,  if  he  chose  to 
occupy  it,  and  if  the  jury  believe  from  the  evidence  that  said  A. 
was  able,  ready  and  willing  to  so  relinquish,  then  the  law  is  for  the 
plaintiff,  and  the  jury  will  so  find.72 

§  665.     Defective  Machinery — Reasonable  Time  to  Fix.    If  you  find 

that  the  defendant  first  notified  the  agent,  ,  in  ,  that 

he  was  about  to  start  his  machine,  and  that  in  response  to  such 
notice  a  man  was  sent  out  by  the  plaintiff  to  assist  in  starting  the 
machine,   and   that   thereafter  the  machine   did  not  work   well,   and 

the  defendant  notified  the  agent,  ,  of  that  fact,  and  requested 

him  to  send  an  expert  to  fix  it,  he  was  bound  to  allow  the  plaintiff 
a  reasonable  length  of  time  to  get  the  expert  out  to  his  farm,  and 
give  him  a  reasonable  opportunity  to  fix  the  machine.73 

§  666.  Irrigation  Contract,  Breach  of — Damages — Public  Utility 
Corporations,  (a)  It  is  provided  by  the  contracts  introduced  in 
evidence  that  a  failure  on  the  part  of  the  plaintiff  to  furnish  de- 
fendants water  to  irrigate  their  rice  crop,  as  provided  for  in  said 
contract,  in  no  event  should  render  plaintiff  liable  for  any  sum  of 
money  in  excess  of  $4  per  acre  for  such  of  said  land  as  it  failed  to 
water;  and  also  that,  should  enough  rice  be  raised  by  defendants  to 
reimburse  them  for  their  actual  outlay,  then  the  plaintiff  should  not 
be  liable  for  any  sum  whatever. 

(b)  You  are  instructed  that  at  the  time  of  the  making  and  signing 
of  said  contract  it  was  the  right  of  the  plaintiff  and  defendant  to 
enter  into  a  contract  under  which  it  should  furnish  defendants  water, 
and  that  it  was  the  right  of  the  plaintiff  to  insert  therein  reasonable 
conditions  and  restrictions,  but  that  it  had  no  right  to  demand  un- 
reasonable conditions  or  limitations.  Therefore,  if  you  find  from  all 
the  facts  and  circumstances  existing  at  the  time  of  the  execution  of 
said  contracts  that  said  provision  in  said  contract  was  reasonable, 
then,  in  that  case,  if  you  so  find,  you  are  instructed  that  it  is  valid 
and  binding  on  the  defendants,  and,  if  you  so  find,  you  are  instructed 
that,  if  the  defendants  were  damaged  by  the  negligence  of  plaintiff 
as  alleged,  but  they  made  rice  enough  on  the  land  to  reimburse  them 
for   their    actual    outlay,   then    and   in   that   ease    defendants   would 

71— Hauber    v.    Leibold,    —    Neb.  v.   "Volkert,   81   Minn.   434,   84  N.   W. 

— .    107   N.    W.    1042.  325. 

72— Wallingford     v.     Aitkins,     24        The  court  said:   "This  instruction 

Kv.  1995.  72  S.  W.  794  (795).  was   clear  and  concise,   and  it  was 

73— McCormick    Harv.    Mach.    Co.  error  to  refuse  it." 


480  FORMS  OF  INSTRUCTIONS.  [§  666. 

not  be  entitled  to  recover  on  their  cross-bill;  and,  further,  if  you 
should  find  that  defendants  were  damaged  by  the  negligence  of  plain- 
tiffs as  alleged  in  their  cross-bill,  and  that  they  did  not  raise  rice 
enough  on  the  lands  to  reimburse  them  in  their  actual  outlay,  then 
you  are  instructed  that  their  measure  of  damage  under  said  contract 
could  not  exceed  the  sum  of  $4  per  acre  on  such  number  of  acres 
of  land  as  the  plaintiff  failed  to  furnish  water  in  its  lateral  in  suf- 
ficient quantities  to  irrigate  their  crop,  as  provided  in  said  contract. 
(c)  But  you  are  also  instructed,  in  this  connection,  that  should 
you  believe  and  find,  from  all  the  facts  and  circumstances  in  evi- 
dence, that  at  the  time  of  the  making  of  said  contract  the  paragraph 
of  the  contract  above  quoted  was  an  unreasonable  condition  or  pro- 
vision under  the  conditions  then  existing,  then,  and  in  that  case,  if 
you  so  find,  you  are  instructed  that,  if  you  find  for  defendants  on 
their  cross-bill,  you  will  ignore  said  provision  in  said  contract  in 
assessing  the  defendant's  damages,  if  any  you  find,  and  in  such  case, 
if  you  find  for  the  defendants,  you  will  find  for  them  the  difference 
between  the  market  value  of  the  crop  when  matured  that  they  would 
have  made  (if  there  be  any  difference,  and  that  they  did  make, 
if  there  was  any  difference)  and  you  will  deduct  from  this 
amount,  if  any  you  find,  such  sums  of  money  that  the  defendants 
would  have  had  to  expend,  that  they  did  not  expend,  in  maturing, 
harvesting,  threshing,  and  placing  the  said  crop  on  market,  and  also 
deduct  such  damages  as  would  have  likely  been  occasioned  by  the 
weather  and  climate  conditions,  as  existed  in  the  season  of  1904, 
and  such  losses  as  would  have  been  occasioned  in  the  handling  and 
threshing.74 

74— Col.   Canal   Co.   v.    McFarland  —    Tex.   Sup.   — ,  86  S.  W.  11.    This 

and   S.,  —  Tex.   Civ.  App.   — ,  94  S.  power   can    only   be   granted    for   a 

W.   403.  public   use,  and  when  it    is  conferred 

"We    have    no    doubt,"    said    the  by  law,  as  in  this  state  to  irrigation 

court,     "that     the     reasonableness  companies,  upon  a  corporation,  its 

of  a  contract  such  as   the  one  un-  status    and    quasi    public    is    fixed, 

der   consideration,   when   the   ques-  regardless    of   whether   it    exercises 

tion  is  properly  raised,  may  be  in-  the  power  or  not.     It  can  no  more 

quired    into.  escape   its   duty   to   the   public,   be- 

The  parties,  being  competent  to  cause  it  has  not  exercised  such 
icontract,  must  be  governed  by  power,  than  a  railway  company 
the  terms  and  stipulations  agreed  who  has  purchased  its  right  of 
upon  and  evidenced  by  their  con-  way  instead  of  exercising  its 
tract;  and  that,  unless  the  appel-  power  to  acquire  it  by  condemna- 
lant  is  of  the  class  of  quasi  public  tion  proceedings.  In  Long  on  In- 
corporations upon  whom  is  con-  rigation,  par.  130,  it  is  snid:  'Ir- 
ferred  the  right  to  exercise  the  rigation  companies  furnishing 
power  of  eminent  domain,  or  vest-  water  to  consumers  for  compensa- 
ed  with  some  other  extraordinary  tion,  although  private  corpora- 
privilege,  it  can  impose  by  con-  tions,  are  public  or  quasi-public 
tract  such  terms  and  conditions  carriers  of  water,  charged  with  a 
as  it  may  see  fit.  But  appellant  public  duty  or  trust.'  It  seems  to 
does  not  belong  to  that  class  of  us  that  this  is  applicable  to  such 
corporations  vested  with  the  companies  incorporated  under  the 
power  of  eminent  domain,  Borden  laws  of  this  state,  and  that,  what- 
v.  Trespalacious  Rice  Irr.  Co.,  -  ever  their  liability  may  be  to  the 
Tex.  Civ.  App.  — ,  82  S.  W.  461;   id.  public,  they  cannot  limit  it  by  con- 


§  667.]  CONTRACTS.  481 

§  667.  Plaintiff  Must  Show  Readiness  to  Perform.  The  court  in- 
structs the  jury,  as  a  matter  of  law,  that  in  a  suit  by  a  purchaser 
of  articles  of  personal  property,  to  be  delivered  to  him  at  a  certain 
time  and  place,  in  order  to  recover  damages  for  non-delivery,  it  is 
necessary  for  the  plaintiff  to  prove  that  he  was  ready  and  willing 
to  receive  and  pay  for  the  same  at  such  time  and  place.75 

§668.     Defense  of  Payment— Set-Off— Burden  of  Proof,    (a)  You 

observe  that  the  defendants  do  not  deny  but  that  the  plaintiff  did  sell 
the  number  of  brick  claimed,  and  at  the  price  claimed,  to  the  de- 
fendant   ;  hence  the  plaintiff  will  be  entitled  to  recover  there- 
for from  him,  unless  has  proven  his  defense  of  payment.70 

(b)  The  court  charges  the  jury  that  the  burden  of  proof  is  upon 
the  defendant  to  establish  his  set-off.77 

(c)  The   burden   of   showing  the   mortgage   given  by   the 

defendant  to  the  plaintiff  as  trustee  was  a  payment  in  full  of  the 
entire  amount  due  under  the  judgment  against  the  defendant  is  upon 
the  defendant,  and  he  must  satisfy  you,  by  a  fair  preponderance  of 
the  evidence,  that  the  giving  and  acceptance  of  such  mortgage  con- 
stituted  a  payment  in  full   of  the  dollars  sued  for   in  this 

action.78 

§  669.  Retention  of  Money  Under  an  Agreement  Would  Amount 
to  a  Payment  of  the  Indebtedness.  The  court  instructs  the  jury  that 
if  from  the  evidence  they  should  believe  that  the  saloon  property  and 
the  accounts  belonged  to  T.  at  the  time  of  his  death,  and  that  there 
was  an  agreement  between  the  plaintiff  and  defendant,  as  adminis- 
trator, of  the  estate  of  T.,  deceased,  that  the  effects  of  T.  in  plaintiff's 
hands,  and  the  proceeds  thereof,  collected  and  to  be  collected  by 
plaintiff,  should  be  applied  to  the  payment  of  the  note,  and  they 
should  further  find   that  plaintiff  did   have  in  his   hands   effects  of 

tract,  and  that  such  attempted  tainly  liable  to  each  for  the  conse- 
limitation  should  be  deemed  un-  quences  of  such  wrongful  treat- 
reasonable  and  held  void.  Such  ment.  It  cannot  be  heard  to  say- 
corporations  must  be  held  to  the  in  defense  of  an  action  by  one  for 
discharge  of  their  duties  to  the  damages  occasioned  by  such 
public,  and  they  cannot  escape  or  treatment:  'I  treated  him  just 
avoid  the  consequences  of  their  as  I  did  all  of  my  customers' — for 
failure  to  perform  them  by  limit-  a  multiplicity  of  wrongs  do  not 
ing  their  liability  by  contract,  justify  a  single  one." 
Otherwise,  they  could  place  the  75 — Kritzinger  v.  Sanborn,  70  111. 
public,  whose  servants  they  are,  at  146. 

their   mercy.      In    performing    their  76 — Fleming   v.    Stearns,    79    Iowa 

duty   to    the     public,     they     cannot  256,  44  N.  W.  376   (377). 

discriminate  in  favor  of  or  against  77 — O'Neal  v.  Curry,  134  Ala.  216, 

any     of    its     members     entitled    to  32   S.   696   (698),  92  Am.   St.   Rep.   22. 

their    service.      While     they     must  "There     was     no     error     in     thi'3 

treat    all    alike,    they    must    faith-  charge,     requested     and    given     at 

fully,  in  so  far  as  they  can  by  the  the  request  of  the  plaintiff.     Cook 

exercise  of  ordinary  care  and   dili-  v.     Malone,     128    Ala.     662,     29     So. 

gence,   discharge  their  duty  to  all.  653." 

If    such    a    company   treats    wrong  78 — Meyer     v.      Hafemeister.     119 

alike,   all  the  members  of  the  pub-  Wis.   539,  97  N.  W.  165,  100  Am.  St. 

lie  entitled  to  its  service,  it  is  cer-  Rep.   900. 
31 


482  FORMS  OF  INSTRUCTIONS.  [§  670. 

T.'s  estate,  and  that  pursuant  to  such  agreement  he  received,  as 
the  proceeds  of  the  sale  of  the  property,  and  collections  of  said 
amounts,  money  sufficient  to  pay  said  note,  then  such  receipt  and 
retention  of  the  money  under  such  agreement  would  amount  to  the 
payment  of  a  note.79 

§  670.  Action  for  Money  Loaned — Partial  Payments — Statute  of 
Limitations,  (a)  The  court  instructs  the  jury  that  if  they  find  from 
the  evidence  that  the  plaintiff  did  advance  and  loan  to  the  defendant 
the  money  or  moneys  as  claimed  hy  her  and  that  no  part  of  the 
same  has  been  repaid,  then  their  verdict  must  be  for  the  plaintiff; 
but  if  the  jury  find  from  the  evidence  that  the  plaintiff  has  re- 
ceived partial  payments  on  account  of  said  loan,  then  the  amount 
of  such  payments  must  be  deducted  from  the  amount  claimed  by 
plaintiff  by  the  jury  in  rendering  their  verdict;  but,  if  the  jury 
find  from  the  evidence  that  the  plaintiff  has  been  wholly  repaid, 
then  their  verdict  must  be  for  the  defendant. 

(b)  The  court  instructs  the  jury  that  if  they  find  from  the  evidence 
that  the  plaintiff  loaned  to  the  defendant  the  amount  claimed,  or  any 
other  sum,  at  the  time  mentioned  in  the  evidence,  that  for  a  period 

of  more  than  five  years  before  the  institution  of  this  suit  on  

,  no  payment  was  made  by  defendant,  or  any  one  for  him, 

on  account  of  said  loan,  or  in  recognition  of  a  valid  and  existing 
claim,  but  that  all  of  the  payments  made  by  the  defendant  to  the 
plaintiff  within  said  period  of  five  years  were  made  by  defendant, 
as  free  and  voluntary  gifts,  and  not  in  payment  or  recognition  of 
said  loan,  then  and  in  that  event  the  verdict  must  be  for  the  de- 
fendant.80 

§  671.  Wrongful  Delay  in  Payment — Money  "Withheld  Unreason- 
ably— Demand  of — Interest  Allowed,  (a)  The  court  instructs  you  that 
if  you  find  from  the  evidence  and  under  the  instructions  of  the  court, 
that  the  plaintiffs  are  entitled  to  recover  from  the  defendant,  and  if 
you  find  from  the  evidence  that  such  money  as  you  find  the  plain- 
tiffs are  entitled  to,  if  any,  was  withheld  by  an  unreasonable  and 
vexatious  delay  of  payment,  then  you  may  allow  the  plaintiffs  interest 
at  the  rate  of  five  per  centum  per  annum  on  such  sum,  if  any,  as 
you  believe  from  the  evidence  and  under  the  instructions  of  the 
court,  the  plaintiffs  are  entitled  to  recover  from  the  defendant  from 
the  date  the  same  became  payable,  as  may  be  shown  by  the  evidence 
in  the  case.  What  the  facts  are  you  must  determine  from  the 
evidence.81 

79 — Frank  v.  Thompson,   105  Ala.  delay  of  payment,   and   it  was  for 

211,  16  So.  634  (635).  the  jury  to  say  whether  that  delay 

80 — Stephan    v.    Metzger,    95    Mo.  was  occasioned  by  the  fault  of  the 

609,   69  S.   W.   625   (627).  appellant.     The  delay  of  the  archi- 

81 — Fitzgerald   v.   Benner,   219   111.  tect   was   the   delay    of   the   appel- 

490,    76    N.    E.    709.  lant,    as    the    architect    was    to    a 

"The    evidence    tended    to    show  certain    extent    the    agent    of    the 

an     unreasonable     and     vexatious  appellant,    and,    according    to    the 


§672.]  CONTRACTS.  483 

(b)  The  court  instructs  you  that  even  if  you  should  find  for  the 
plaintiff  you  should  not  allow  him  interest  on  the  amount  claimed  by 
him,  unless  you  believe,  from  a  preponderance  of  all  the  evidence 
in  the  case,  that  the  defendant  has  withheld  money  from  the  plaintiff 
by  an  unreasonable  and  vexatious  delay  on  his  part.82 

(c)  The  court  instructs  the  jury  that  the  plaintiff  is  not  entitled  to 
recover  interest  for  any  loans  or  advances  made  to  defendant  unless 
it  appears  from  the  evidence  that  a  demand  for  payment  of  such 
loans  or  advances  was  made  on  the  defendant  by  the  plaintiff,  and 
then  only  from  the  date  of  such  demand.83 

&  672.  Application  of  Money  to  One  Demand  Instead  of  Another. 
I  charge  you  that  .you  are  not  to  consider  the  question  as  to  whether 
any  payment  made  by  defendant  to  plaintiff  was  wrongfully  applied 
to  any  one  demand  of  the  plaintiff  against  the  defendant  rather  than 
to  another  demand.  Such  question  is  not  raised  by  the  pleadings  in 
this  case.  But  in  the  consideration  of  any  payment  made  by  de- 
fendant to  the  plaintiff,  you  are  to  inquire  only  whether  the  demand 
to  which  it  may  have  been  applied  was  correct,  just,  and  due  at  the 
time  of  said  payment.84 

§  673.  Settlement  of  Prior  Suit.  You  are  instructed  that,  if  you 
find,   from   the   evidence,   that   the   plaintiff  herein  instituted   a  suit 

against  for  the  purpose  of  recovering  the  $ involved 

in  this  suit  now  before  you,  and  that  she  made  a  settlement  of  this 
case  with  the  defendant  therein  or  anyone  else,  that  the  plaintiff  is 
barred  from  the  further  prosecution  of  this  suit,  and  the  verdict 
of  the  jury  must  be  for  the  defendant.85 

§  674.  What  Would  Constitute  a  Valid  Settlemenl^-What  Would 
Be  Insufficient.  If  you  find  from  the  evidence  that  these  parties  in 
an  effort  to  adjust  their  matters  met  together,  and  went  over  their 
claims  and  agreed  upon  the  terms  of  their  contract,  and  what  was 
included  within  the  contract,  then  the  agreement  would  be  binding 
on  them,  but  if  they  met  for  the  purpose  of  an  adjustment  and 
made  concession,  not  because  they  admitted  the  contract  required 
the  concessions,  but  in  order  to  reach  a  settlement  of  their  matters, 
and  a  settlement  was  not  consummated,  then  concessions  made  under 
those  circumstances  would  not  be  binding  upon  either  party  to  the 
case.86 

testimony    of    the    appellees,    acted  v.   Puntenney,   200   111.   9,"   65  N.   E. 

under    the    instructions   of   the   ap-  442. 

pellant    in    refusing    to    deliver   the         82 — Barron   v.   Burke,   82  111.   App. 

certificate.     The   instruction   is   not  116    (118). 

justly     subject     to     the     criticism,         83 — Stephan    v.    Metzger,    95    Mo. 

that  it  leaves  the  jury  to  estimate  609,   69   S.   W.  625   (627). 
the  amount   of  damages   according         84 — Schmidt    v.    Mitchell,    117   Ga. 

to   their  own   individual  notions  of  6,   43   S.   E.   371    (373). 
right  and  wrong,  because  it  speci-         85 — Jacob    v.    Marks,    183    111.    533, 

fically  refers  them  to  the  evidence  aff'g  S3  111.  App.  156,  56  N.  E.  154. 
under      the      instructions      of      the         86 — Rikerd    Lumber    Co.     v.    Ho- 

court,   citing   Springfield   C.    R.   Co.  ertz  &  Son,  146  Mich.  386,  109  N.  W. 

664. 


484  FORMS  OF  INSTRUCTIONS.  [§  675. 

§  675.  Payment  Made  in  Settlement  of  a  Disputed  Claim  Will 
Operate  as  a  Release  if  Retained,     (a)    The  jury  are  instructed  that 

if  the  cheek  for  $ and  three  notes  introduced  in  evidence  were 

sent  to  the  plaintiffs  by  the  defendants  at  the  same  time  and  as  a 
part  of  one  transaction,  as  a  final  settlement  of  an  honestly  disputed 
claim  between  the  plaintiffs  and  the  defendants,  then  the  plaintiffs, 
as  a  matter  of  law,  were  not  entitled  to  receive  and  appropriate  the 
check  and  collect  the  amount  thereof  and  return  the  notes;  that  a 
tender  of  such  an  amount  must  be  accepted  as  a  whole,  or  not  at  all; 
and  if  the  return  of  the  notes  was  not  acquiesced  in  by  the  de- 
fendants, but  they  have  been  tendered  back  by  the  defendants  to 
the  plaintiffs,  and  are  now  ready  to  be  delivered  by  the  defendants 
to  the  plaintiffs,  then  the  plaintiffs  cannot  recover  in  this  action.87 

(b)  If  the  jury  believe,  from  the  evidence,  that  prior  to  the 
bringing  of  this  suit  by  the  plaintiffs  against  the  defendants,  there 
was  an  honest  dispute  between  the  plaintiffs  and  the  defendants  as 
to  the  amount  due  from  the  defendants  to  the  plaintiffs,  and  whether 

the  same  was  due,  and  on  or  about  ,  in  order  to  adjust  and 

settle  the  controversy  and  the  account,  the  defendants  delivered  to 

the  plaintiffs  a  check  for  $ '■  and  three  notes,  said  check   and 

notes    aggregating   the    sum   of   $ ,    and    that    said    check    and 

notes  were  delivered  to  the  plaintiffs  with  the  statement  and  under- 
standing that  they  were  given  and  should  be  received  in  full  settle- 
ment and  payment  of  said  claim  of  the  plaintiffs  against  the  de- 
fendants, and  that  plaintiffs  received  said  check  and  collected  and 
kept  the  amount  thereof,  but  refused  to  accept  the  notes,  and  re- 
turned the  same  to  the  defendants,  and  that  the  defendants  de- 
manded back  the  said  cash  unless  the  plaintiffs  should  receive  the 
check  and  notes  in  full  settlement  of  the  account,  and  the  defendants 
now  have  said  notes  in  their  possession  and  have  tendered  the 
same  to  the  plaintiffs  on  the  trial  of  this  case,  then  the  court  in- 
structs you,  as  a  matter  of  law,  that  the  plaintiffs  cannot  recover 
in  this  action.88 

87 — Lapp    v.    Smith,    183    111.    179,  receiving-   the    money    is    an   agree- 

reversing  83  111.  App.  203,   55  N.  E.  ment  to  accept  the  same  upon  the 

717,    75    Am.    St.    Rep.    100.  conditions   under  which   it  was   of- 

In  approving  this  instruction,  fered." 
the  court  quotes  from  the  case  of  88 — Lapp  v.  Smith,  supra. 
McDaniels  v.  Bank,  29  Ver.  230,  The  court  said  in  comment  that 
"that  when  a  party  makes  an  the  "check  was  not  tendered  as  a 
offer  of  a  certain  sum  to  settle  the  payment  of  original  claim,  but  it 
claim  when  the  sum  in  contro-  and  the  notes  were  offered  to- 
versy  is  open  and  unliquidated,  gether  for  acceptance,  as,  in  rem- 
and he  attaches  to  his  offer  the  pliance  with  the  proposed  new 
condition  that  the  sum  if  taken  at  undertaking  and  agreement  then 
all  must  be  received  in  full  satis-  submitted  for  acceptance,  in  dis- 
faction  of  the  claim  in  dispute,  charge  of  the  unliquidated  debt 
and  the  party  receives  the  money,  and  disputed  claim.  The  appellees 
he  takes  it  subject  to  the  condi-  were  called  upon  to  accept  the 
tion  attached  to  it,  and  it  will  proposition  as  an  entirety  as 
operate  as  an  accord  and  satis-  made,  or  reject  it  in  toto.  citing 
faction.     .    .    .    The    mere    act    of  Ostrander    v.     Scott,    161    111.     339, 


§  676.]  CONTRACTS.  485 

§  676.  Settlements  Out  of  Court  Are  Favored— Evidence  of  a  Pro- 
posed Settlement  is  Not  to  Be  Considered  as  an  Admission  of  Lia- 
bility. The  court  instructs  the  jury  that  the  law  looks  with  favor 
upon  settlements  out  of  court  of  matters  that  involve  or  lead  to 
lawsuits  or  legislation,  regardless  of  whether  the  party  to  be  held 
is  liable  or  not.  And  the  jury  must  not  take  any  evidence  that  has 
been  given  in  this  case  in  relation  to  settlement  or  negotiation  for 
compromise  of  this  case,  as  any  recognition  whatever  on  the  part  of 
the  defendant  of  any  liability  to  the  plaintiff  for  her  alleged  injuries. 
It  would  be  improper  for  the  jury  to  consider  such  negotiations  or 
take  settlement  or  compromise  as  an  admission  on  the  part  of  the 
defendant  that  it  was  liable  for  any  of  the  alleged  injuries  to  plain- 
tiff.89 

§  677.  Composition  Agreement,  (a)  The  court  instructs  the  jury 
that  if  they  believe  from  the  evidence,  that  at  or  about  the  time  that 
the  plaintiff  signed  the  composition  agreement  in  question,  the  defend- 
ant stated  and  represented  to  the  plaintiff  that  (any  matter  as  to  his 
pecuniary  condition)  for  the  purpose  of  inducing  the  plaintiff  to  sign 
the  said  agreement,  and  that  the  said  plaintiff  believed  such  state- 
ments and  representations  to  be  true,  and  was  thereby  induced  to  sign 
the  said  agreement;  then,  if  you  further  believe,  from  the  evidence, 
that  the  said  statements  and  representations  were  not  true,  and  that 
the  defendant,  at  the  time  they  were  made,  knew  they  were  not  true, 
then  the  plaintiff  would  not  be  bound  by  the  said  agreement,  and  he 
would  have  a  right  to  sue  for  and  recover  the  full  amount  of  his 
original  claim,  less  the  amount  received  under  the  composition  agree- 
ment.90 

(b)  Where  a  composition  agreement  is  made,  the  debtor  professes  to 
deal  with  all  the  creditors  who  enter  into  it,  on  terms  of  perfect 
equality,  and  if  at  the  same  time  he  has  a  secret  agreement  with  one 
of  the  creditors,  which  gives  him  an  undue  advantage,  this  is  a 
fraud  upon  the  other 'creditors,  which  vitiates  the  composition  agree- 
ment, and  in  such  case  a  creditor,  although  he  may  have  received 
the  amount  named  in  the  composition  agreement,  may  sue  for  and 
recover  the  full  amount  of  his  original  demand,  less  the  amount  re- 
ceived under  the  composition  agreement.91 

§  678.  Subscription  Paper,  Consideration  for — Who  May  Perform. 
(a)  The  court  instructs  the  jury,  that  where  money  is  promised  to 
be  paid  upon  a  subscription  paper,  and  the  promise  is  based  upon 
the  fulfillment  of  certain  conditions,  or  the  performance  of  certain 
work,  or  the  attainment  of  certain  objects,  set  forth  in  the  instru- 

43  N.  E.  1089;  1  Beach  on  Con-  89— C.  C.  Ry.  Co.  v.  Sehuler,  111 
tracts,   §§51  and  52;    McDaniels  v.      111.    App.    470. 

Bank,  supra,  70  Am.  Dec.  406;  90 — Armstrong  v.  M.  X.  Bank,  6 
Fuller  v.  Kemp,  138  N.  Y.  238,  33  Biss.  520,  Elfelt  v.  Snow,  2  Sawyer 
N.  E.  1034,  20  L.  R.  A.   785."  94. 

91— Hefter  v.  Cahn,   73  111.  296. 


486  FORMS  OF  INSTRUCTIONS.  [§  679. 

ment  subscribed,  then  the  performance  of  the  conditions,  or  the  labor, 
or  the  attainment  of  the  object,  is  sufficient  consideration  to  support 
the  promise  to  pay.02 

(b)  The  court  instructs  the  jury  that  it  is  not  necessary  that 
the  parties  named  in  the  instrument  should  themselves  perform  the 
conditions;  it  is  sufficient  if,  upon  the  faith  of  the  subscription,  the 
condition  has  been  performed  by  some  one.93 

§  679.  Liability  on  Subscription — Limited  to  the  Pro  Rata  Share 
of  Amount  Expended,     (a)   If  you  believe,  from  the  evidence,  that 

the  defendant  attended  a  public  meeting  in  the  town  of ,  called 

for  the  purpose  of  adopting  measures  for  (building  a  church)  by 
private  subscription,  and  that  at  that  meeting  the  defendant  and 
others  publicly  announced  what  they  would  severally  give  toward 
the  undertaking  and  that  the  defendant  then  promised  that  he  would 

give  $ to  have  the  said  undertaking  accomplished,  and  that  the 

plaintiff,  relying  upon  said  promises  so  made  by  the  defendant  and 
others,  went  on  and  performed  labor,  or  expended  time  and  money, 

and  completed  the  said  ,  then  said  defendant  would  be  liable 

in  this  action;  if  you  find,  from  the  evidence,  that  he  has  not  paid 
the  amount  so  promised  by  him,  then  you  should  find  for  the  plain- 
tiff.94 

(b)  The  court  instructs  you,  that  in  this  class  of  cases,  if  all  the 
money  subscribed  was  necessarily  expended  in  securing  the  end  de- 
signed, the  several  subscribers,  if  liable  at  all  under  the  evidence, 
are  liable  for  the  full  amount  subscribed,  less  such  sums  as  they 
have  already  paid  thereon ;  but  if  the  evidence  shows  that  an  amount 
less  than  the  amount  subscribed  was  necessarily  expended,  then  the 
recovery  should  be  limited  to  the  pro  rata  share  of  the  amount 
necessarily  expended,  less  the  sums,  if  any,  already  paid.95 

§  680.  Work  Done  on  the  Faith  of  the  Subscription — Liability  for. 
If  you  believe,  from  the  evidence,  that  the  defendant  signed  the 
subscription  paper  introduced  in  evidence,  and  that  the  plaintiff, 
on  the  faith  of  that  subscription,  went  on  and  (built  the  church) 
and  became  personally  liable  for  the  cost  thereof,  and  that  the 
defendant  has  not  paid  his  subscription  or  pro  rata  share  thereof, 
you  should  find  the  issues  for  the  plaintiff.96 

§  681.  Right  to  Withdraw  Subscription  After  Work  Is  Begun — 
When  Work  Is  Completed,  (a)  The  court  instructs  the  jury  that  if 
the  defendant,  among  others,  subscribed  to  the  said  railroad  company 
for  the  purpose  of  inducing  it  to  build  its  road  into  the  town  of 
Grove,  Ind.  T.,  and  the  representatives  of  the  railroad  company  ac- 

92— McCabe    v.    O'Connor,    69    la.  Cross,  9  Vt.  289,  31  Am.  Dec.  626. 
134.                  *  94— Wilson     v.     McClure,     50    111. 

93 — Congregational    Soeietv.    etc.,  366. 
v.    Perry,    6    N.    H.    164;    Miller    v.         95— Miller    v.    Ballard,    46   111.    377. 
Ballard,    46   111.    377;    State,    etc.,    v.         96— Pryor    v.    Cain,    25    111.    292. 


§  682.]  CONTRACTS.  487 

cepted  the  subscription,  and  acted  on  the  same,  and  began  work, 
then  the  court  instructs  you  that  the  defendant  is  bound,  and  could 
not,  at  a  subsequent  date  to  the  time  the  plaintiff  acted  upon  said 
subscription,  withdraw  his  subscription,  or  release  himself  from  the 
obligation  he  had  undertaken.''7 

(b)  You  are  instructed  that  the  plaintiff,  before  it  can  recover  in 
this  case,  must  prove,  first,  that  the  writing  sued  on  by  the  plaintiff 
was  signed  by  defendant  or  his  duly  authorized  agent;  second,  that 
the  plaintiff  accepted  the  same,  or  that  defendant,  after  signing  the 
same,  allowed  the  plaintiff  to  build  and  complete  the  road  without 
notifying  the  plaintiff  that  he  would  not  abide  by  the  terms  of  said 
writing;  third,  that  the  road  was  completed  within  the  time  specified 
and  in  the  manner  specified,  and  the  grading  of  the  road  should  be 
completed  in  the  manner  specified.98 

§  682.  Substantial  Compliance  Sufficient — Signing  Additional  Writ- 
ing Demanded  by  Plaintiff,  (a)  The  court  instructs  you  that  sub- 
stantial compliance  with  the  terms  of  the  contract  was  sufficient  to 
entitle   appellee   to  collect  the  subscription." 

(b)  The  court  instructs  the  jury  that  if  the  jury  believe  from  the 
evidence  that  after  the  writing  sued  on  was  signed  by  the  defendant 
the  plaintiff  demanded  that  a  new  and  additional  writing  be  signed 
by  the  defendant,  and  that  with  the  demand  to  sign  an  additional 
writing  the  plaintiff  stated  that,  if  the  demand  of  the  plaintiff  was 
not  complied   with,  the  plaintiff  would  not  build   the  road,   the   de- 

97 — Doherty    v.     Arkansas    &     O.  the   road   constructed    without    any 

R.   Co.,  —  Ind.   T.  — ,   82  S.   W.   899  notice    to    appellee    that    appellant 

(903).  was    in    any    way    dissatisfied,     is 

The  court  said:  "This  instruc-  there  any  justice  or  equity  in  per- 
tion  is  a  clear  statement  of  the  mitting  appellant  to  say:  'I  will 
law  applicable  to  the  facts,  as  ap-  not  pay.  True  the  road  has  been 
pellee  contended  had  been  shown  constructed  according-  to  the 
in  the  evidence,  citing  1  Beach,  terms  of  my  contract  of  subscrip- 
Cont.  65;  Page  on  Cont.  Sec.  290;  tion,  and  the  town  of  Grove  has 
Philomath  College  v.  Hartless,  25  the  road.  Whatever  benefits  we 
Am.  Rep.  511;  Bates  County  v.  expected  to  secure  by  the  building 
"Winters,  112  U.  S.  327,  5  Sup.  Ct.  of  the  road,  we  have  obtained. 
157,  28  L.  Ed.  744;  Marie  v.  Garri-  But  I  will  not  pay  because  you 
son,  83  N.  Y.  26;  Ft.  Worth  &  R.  did  not  notify  me  that  you  had 
G.  Ry.  Co.  v.  Lindsey,  11  Tex.  accepted  my  subscription,  though. 
Civ.  App.  244,  32  S.  W.  716;  Arm-  by  its  terms,  you  were  not  re- 
strong  v.  Karshner,  47  Ohio  St.  quired  to  do  so.'  We  are  clearly 
276,  24  N.  E.  897;  Amherst  Acad-  of  the  opinion  that  the  instruction 
emy  v.  Cowls,  6  Pick.  427,  17  Am.  of  the  court  correctly  stated  the 
Dec.    387."  law.     Any  benefit  accruing  to  him 

98 — Doherty    v.     Arkansas    &    O.  who    makes    the    promise,    or    any 

R.    Co.,    supra.  loss,    trouble,    or    disadvantage   un- 

The    court   said:      "The   consider-  dergone     by     or     charge     imposed 

ation     for    the    promise    was    the  upon  him  to  whom   it   is   made,   is 

building    of    the    railroad,    and    it  a    sufficient    consideration    to    sus- 

was  to  be  void  if  not  completed  by  tain     a     promise,     citing    Amherst 

December  31st,   1900.     The   question  Academy  v.    Cowls,    6  Pick.   427,   17 

of    acceptance    of   the    subscription  Am.  Dec   387;   Barnes  v.  Perine,  12 

was  submitted  to  the  jury  as  a  ques-  N.   Y.   18." 

tion    of    fact,    and    when    accepted         99 — Doherty    v.    Arkansas    &    O. 

and    acted    upon    by   appellee,    and  R.   Co.,   supra. 


488 


FORMS  OF  INSTRUCTIONS. 


[§  682. 


fendant  had  a  right  to  treat  the  negotiations  as  at  an  end,  and  to 
withdraw  the  offer  contained  in  the  writing  sued  on,  and,  if  defend- 
ant did  on  such  demand,  coupled  with  such  statement,  treat  the 
negotiations  as  ended,  and  withdrew  his  promise  in  such  a  way  as 
to  notify  plaintiff,  and  never  afterwards  renewed  negotiations,  the 
plaintiff  cannot  recover.100 


100 — Doherty  v.  Arkansas  &  O. 
R.    Co.,    supra. 

To  the  above  instruction  the  fol- 
lowing' proviso  was  added:  "pro- 
vided such  demand  by  plaintiff 
and  such  withdrawal  of  promise 
by  defendant  were  made  before 
plaintiff  had  acted  thereon  by  ar- 
ranging for  and  commencing  the 
construction    of    its    road."       The 


instruction  preceding  the  ,  proviso 
was  held  unobjectionable,  but  the 
proviso  was  considered  as  unne- 
cessary and  erroneous.  However, 
the  court  from  a  consideration  of 
the  whole  case  considered  this 
error  as  insufficient  to  cause  a  re- 
versal, for  the  reason  that  it  does 
not  materially  affect  the  substan- 
tial   rights    of    appellant. 


CHAPTER   XXXVIII. 


CONTRACTS— BUILDING. 


See   Erroneous   Instructions,   same  chapter  head,  Vol.  III. 


683.  Building   according    to    speci- 
fications— Literal         compli- 
ance. 
i  684.  Substantial  compliance  — 

Rule    as    to     recovery — Ac- 
ceptance. 

685.  Fulfillment   prevented   by  de- 

fendant. 

686.  Construction    of  building — No 

time   set. 

687.  Owner   to   keep  up   necessary 

preceding   work. 


68S.  Counterclaim      for      defective 
work. 

689.  Contractor    refusing    to    sign 

written        .contract        after 
award. 

690.  View  of  the  premises  by  the 

jury. 

691.  Building         contracts — When 

recovery  may  be  had  under 
the    common    counts. 


§  683.     Building  According  to   Specifications — Literal  Compliance. 

The  court  instructs  the  jury  as  a  matter  of  law  that  in  suits  on 
building  contracts  a  literal  compliance  with  the  plans,  specifications 
and  drawings  by  the  contractor  is  not  necessary  to  a  recovery;  and 
if  you  find  from  the  evidence  that  the  plaintiff  in  good  faith  per- 
formed the  contract  on  which  recovery  in  this  suit  is  sought,  sub- 
stantially and  in  all  material  particulars  according  to  its  terms  and 
the  plans,  specifications  and  drawings  for  the  work,  without  willful 
departure  therefrom  or  omission  in  essential  points,  that  such  per- 
formance is  sufficient  to  entitle  the  plaintiff  to  maintain  its  suit.1 


1— Hart  v.  Carsley  Mfg.  Co.,  116 
111.  App.  159.  In  comment  the  court 
said:  "Complaint  is  made  of  the 
instruction  for  appellee,  because 
it  makes  no  reference  to  the  fact 
that  appellee  did  not  procure  an 
architect's  certificate,  and  there- 
fore ignores  the  principal  defense 
of  the  appellants,  and  in  effect  tells 
the  jury  that  if  the  appellee  in 
good  faith  and  substantially  per- 
formed its  contract,  that  was  suffi- 
cient to  justify  a  recovery.  We 
think  there  is  no  error  in  giving 
the  instruction.  While  it  is  true 
that  before  the  appellee  could  re- 
cover, it  was  necessary  for  it  to 
show  an  excuse  for  not  obtaining 
the  architect's  certificate,  that  was 
shown,  as  we  have  seen,  by  the 
evidence  which  formed  the  basis 
of  the  jury's  answers  to  the  spe- 
cial interrogatories.  These  an- 
swers,   in    our    opinion,    show    that 


the  criticism  of  appellants'  counsel 
of  this  and  appellee's  fifth  instruc- 
tion, also  quoted  in  the  statement, 
is  not  well  founded.  It  follows 
that  if  the  architects  were  guilty 
of  bad  faith  or  fraud,  as  found  by 
the  jury,  the  jury  could  not  pos- 
sibly have  been  misled  as  to  the 
law  of  the  case,  or  to  appellants' 
prejudice  by  either  the  second  or 
fifth  instructions.  Moreover,  as  is 
well  established,  the  instructions 
must  be  read  as  a  series  and  con- 
sidered together.  Appellants'  thir- 
teenth, fourteenth  and  fifteenth  in- 
structions fully  cover  any  question 
in  the  case  regarding  the  archi- 
tect's certificate,  and  it  necessarily 
follows,  as  we  think,  from  what  is 
stated  in  the  second  instruction, 
as  justifying  appellee's  recovery, 
that  it  would  have  been  entitled  to 
the  architect's  certificate,  and  it 
would  have  been  bad   faith  on  the 


489 


490  FORMS  OF  INSTRUCTIONS.  [§  684. 

§  684.  Substantial  Compliance — Rule  as  to  Recovery — Acceptance. 
(a)  If  you  believe,  from  the  evidence,  that  the  plaintiff,  by  the 
consent  of  the  defendant  or  by  an  agreement  with  him  during 
the  progress  of  the  work,  constructed  some  parts  of  the  building 
of  materials  different  from  that  required  by  the  written  agreement, 
or  of  a  size  and  form  different  from  that  mentioned  in  the  written 
agreement,  still  if  you  further  believe,  from  the  evidence,  that  the 
building  as  constructed  was  useful  to  the  defendant,  then  the  plaintiff 
is  entitled  to  recover  the  contract  price  for  erecting  said  building, 
less  the  difference  in  value  of  these  parts  so  constructed,  and  their 
value,  if  they  had  been  constructed  according  to  the  written  contract, 
crediting  the  defendant,  of  course,  with  such  amounts  as  you  find, 
from  the  evidence,  the  defendant  has  paid  upon  the  contract.2 

(b)  Although  you  should  believe,  from  the  evidence,  that  the 
plaintiff  did  not  fully  and  in  all  particulars  build  and  furnish  the 
house  according  to  the  contract,  still,  if  you  further  believe,  from 
the  evidence,  that  he  substantially  completed  it,  leaving  but  little 
to  be  done,  and  so  far  performed  his  contract  as  to  erect  a  house 
useful  to  the  defendant,  and  that  defendant  has  taken  possession 
and  is  using  the  same,  then  the  jury  should  allow  to  the  plaintiff 
the  contract  price  for  building  the  same,  less  such  amount  as  it 
would  take  to  construct  these  parts  omitted  or  neglected  to  be  built 
by  the  plaintiff.3 

§  685.  Fulfillment  Prevented  by  Defendant.  If  the  jury  believe, 
from  the  evidence,  that  the  plaintiff  has  furnished  the  material  and 
completed  the  building,  mentioned  in  the  contract,  in  a  good  and 
workmanlike  manner,  then,  although  the  jury  may  further  believe 
that  the  same  was  not  completed  within  the  time  limited  in  the  con- 
tract in  that  behalf,  still,  if  the  jury  further  believe,  from  the  evi- 
dence, that  the  delay  complained  of  was  caused  by  the  defendant 
himself,  and  without  fault  on  the  part  of  the  plaintiff,  then  the 
plaintiff  is  entitled  to  recover  the  balance,  if  any,  unpaid  upon  the 

contract  price,  with per  cent,  interest  thereon,  from  the  time 

the  same  was  payable  by  the  terms  of  the  contract.4 

§  686.     Construction  of  Building — No  Time  Set — Reasonable  Time. 

(a)  The  court  instructs  the  jury  as  a  matter  of  law  that  the  con- 
tract in  evidence  did  not  obligate  the  plaintiff  to  complete  the  seven 
houses  separately,  or  any  number  less  than  all,  before  the  rest,  but 
merely  required  the  completion  of  all  seven  within  a  reasonable 
time. 

(b)     The   court  instructs   the  jury  that   under  the  provisions   of 

part  of  the  architects  had  they  re-  Keown,  192  111.  339,  61  N.  E.   514. 

fused    a    certificate    in    face    of    the  2 — Goldsmith    v.     Hand.    26    Ohio 

existence   of  such   facts.     The   law  St.  101;   White  v.  Oliver,  26  Me.  92. 

bearing  upon   these   instructions   is  3 — Goldsmith  v.  Hand,  26  Ohio  St. 

stated    in    the    quotation    from    the  101. 

Foster  case,  supra."    Foster  v.  Mc-  4 — Strawn  v.   Cogswell,  28  111.  457. 


§  687.]  CONTRACTS— BUILDING.  491 

the  contract  between  the  parties  offered  in  evidence,  the  defendants 
had  the  right  to  take  the  contract  away  from  the  plaintiff,  if  the 
plaintiff  failed  to  supply  a  sufficiency  of  properly  skilled  workmen 
or  materials  of  proper  quality  or  failed  in  any  respect  to  prosecute 
the  work  with  promptness  and  diligence,  or  failed  in  the  performance 
of  or  omitted  or  neglected  to  perform  any  of  the  agreements  of 
such  contract  through  and  by  means  of  the  architect  in  charge  of  the 
work  certifying  such  refusal,  neglect  or  omission  or  failure  of  the 
contractor  as  sufficient  ground  therefor,  and  by  service  of  a  three- 
day  written  notice  in  accordance  with  said  certificate;  and  if  you 
find  from  the  evidence  that  no  such  certificate  was  made  by  the 
architect  and  no  sueh  notice  was  given  to  the  contractor,  that  the 
contractor  had  the  right  to  proceed  with  said  work  to  its  com- 
pletion, and  the  failure  of  the  defendants  and  the  architect  to  make 
such  certificate  and  give  such  written  notice  may  be  considered  by 
you  in  determining  from  the  evidence  what  was  a  reasonable  time  in 
the  contemplation  of  the  contract  for  the  performance  thereof.5 

(c)  The  court  instructs  the  jury  that  no  time  is  fixed  in  the 
contract  between  the  parties  within  which  the  work  contemplated 
was  to  be  completed,  and  that  as  a  matter  of  law  the  plaintiff  was 
entitled  to  a  reasonable  time  to  complete  the  work,  and  if  you  find 
from  the  evidence  that  the  plaintiff  did  complete  the  work  in  sub- 
stantial compliance  with  the  plans  and  specifications  within  a  reason- 
able time  after  the  execution  of  the  contract,  you  are  instructed 
that  the  defendants  are  not  entitled  to  recoup  damages  for  delay 
in  completing  the  work.  In  determining  what  was  a  reasonable  time 
you  should  consider  the  nature,  character  and  extent  of  the  work, 
the  conditions  under  which  it  had  to  be  performed,  and  every  other 
fact  and  circumstance  disclosed  by  the  evidence  which  will  aid  in 
determining  the  question.0 

§  687.  Owner  to  Keep  Up  Necessary  Preceding  Work.  The  court 
instructs  the  jury  as  a  matter  of  law  that  it  is  implied  in  all  building 
contracts,  including  the  one  offered  in  evidence,  that  the  owner  will 
keep  the  work  which  necessarily  precedes  that  covered  by  the  con- 
tract so  far  advanced  that  such  work  may  be  done.7 

5— Hart  v.   Carsley   Mfg.    Co.,   116  withholding-  a  final  .certificate,   and 

111.  App.  159   (164  and  183).  acted    in    good    faith.      We    are    of 

6— Hart  v.  Carsley  Mfg.  Co.,  supra,  opinion  that  this  criticism  is  not 
"It  is  said  that  this  instruction  is  well  founded.  The  plea  of  the  gen- 
erroneous,  in  that  it  tells  the  jury  eral  issue  was  sufficient  to  allow 
that  if  the  appellee  substantially  appellants  to  recoup  any  damages 
complied  with  its  contract,  within  which  they  suffered,  and  we  find 
a  reasonable  time  after  its  execu-  nothing  in  the  record  to  indicate 
tion,  then  the  defendants  were  not  that  they  did  not  seek  on  the  trial 
entitled  to  recoup  damages  for  de-  to  recoup  their  damages  for  delay 
lay  in  completing  the  work,  be-  of  appellee  in  completing  the  work 
cause  counsel  say  there  was  no  at-  and  for  failure  to  comply  with  the 
tempt  in  the  case  to  recoup  dam-  contract  in  several  material  re- 
ages,  and  that  the  only  purpose  in  spects." 

proving  damages  was  to  show  that  7 — Hart    v.    Carsley,    supra. 

the     architects     were     justified     in  "It   is   said   that   this   instruction 


492  FORMS  OF  INSTRUCTIONS.  [§  688. 

§  688.  Counterclaim  for  Defective  Work.  The  court  instructs  the 
jury  that  if  they  believe  from  the  evidence  that  the  plaintiff  was 
to  do  and  perform  said  work  in  good  and  workmanlike  manner,  and 
furnish  in  the  construction  of  said  building  good  and  first-class 
material,  and  if  you  further  find  from  the  evidence  that  said  work 
was  not  clone  in  a  good  and  workmanlike  manner,  and  that  the 
material  furnished  was  not  good  and  first-class,  and  that  the  de- 
fendant was  damaged  by  reason  thereof,  you  must  find  for  the 
defendant  in  such  sum  as  you  may  believe  he  is  damaged,  not  to 
exceed  dollars.8 

§  689.  Contractor  Refusing  to  Sign  Written  Contract  After  Award. 
(a)  If  the  jury  find,  from  the  evidence,  that  at  or  before  the  time 
of  the  award  of  the  contract  by  defendant  to  the  plaintiffs,  the  plain- 
tiffs were  informed  that  it  would  be  required  of  them  to  enter 
into  and  sign  a  formal  contract  for  the  doing  of  the  work,  and 
that,  after  the  award,  the  plaintiffs  refused  to  sign  and  execute  the 
contract  claimed  to  have  been  furnished  to  them,  or  to  sign  and 
execute  any  contract  for  the  work,  after  request  or  notice  so  to  do, 
then  the  jury  are  instructed  as  a  conclusion  of  law  from  such  fact  that 
the  refusal  of  plaintiffs  to  sign  and  enter  into  formal  contract  might 
properly  be  treated  by  the  defendant  as  a  refusal  of  the  work. 

(b)  If  the  jury  find  from  the  evidence  that  the  signing  of  a 
formal  contract  for  the  work  was  contemplated  by  the  parties,  at 
or  before  the  award  of  the  work  on  plaintiff's  bid,  to  be  done,  then 
the  failure  of  the  plaintiffs  to  sign  a  contract  or  to  tender  to  sign 
a  contract  for  the  work  awarded  to  them,  unless  waived  by  the 
defendant,  is  a  waiver  of  all  rights  under  the  award  so  made. 

(c)  If  the  jury  find  from  the  evidence  that  defendant  requested 
plaintiffs  to  enter  into  and  sign  a  formal  contract  for  the  work 
awarded  to  them,  and  that  they  refused  so  to  do,  or  to  tender  to 
sign  or  enter  into  formal  contract  for  the  work,  and  that,  after 
request  of  defendant  to  plaintiffs  to  enter  into  contract,  they  re- 
fused so  to  do,  or  to  tender  to  sign  a  contract  for  the  work  so 
awarded,  and  that  after  such  refusal  the  defendant  relet  the  work 
to  other  parties,  then  the  jury  will  find  for  defendant.9 

is     erroneous     because    not     based  clause   of  the   contract  referred  to 

upon   any   evidence   in    the   record,  is  immaterial,  since  the  jury  made 

and    it    ignores   a   provision   in   the  no  allowance  whatever  to  the  ap- 

contract   that  provides   that  if  the  pellee   because   of    any   delay,    and 

contractor  is  delayed  by  the  act  or  none  was  claimed.     Moreover,  it  is 

default  of  the  owner,  no  allowance  clear   from   the   evidence   that    the 

shall    be    made    therefor    unless    a  parties,   by  their  acts,   waived   the 

claim    in    writing-    is    presented    to  time    of    the    performance    of    the 

the    architect    within    twenty-four  contract." 

(24)   hours  after  the   occurrence  of  8 — Clapper    v.     Mendell,     96    Mo. 

the     cause     or     commencement    of  App.    40,   69   S.    W.   669   (671). 

such    delay.      We    think    there    is  9 — In   Hancock  v.    Stout,   28   Neb. 

ample    evidence    in    the    record    to  301,  44  N.  W.  446  (447),  an  action  by 

justify    the    instruction,    and    the  an    accepted    bidder    for    damages 

fact  that  it   does   not   mention   the  on   account   of  defendant's   alleged 


§  690.]  CONTRACTS— BUILDING.  493 

§  690.  View  of  the  Premises  by  the  Jury.  You  are  to  go  to  the 
cathedral,  and  see  the  work  done  by  the  plaintiff,  and  the  place  where 
it  was  done,  to  enable  you  the  better  to  understand  the  testimony 
given  before  you  in  the  case,  and  to  determine  what  weight  shall 
be  given  to  the  testimony;  and  you  are  to  determine,  from  the 
testimony  in  the  whole  case,  and  the  view  you  make,  whether  the 
work  was  done  in  a  good  and  workmanlike  manner.10 

§  691.  Building  Contract— When  Recovery  May  Be  Had  Under  the 
Common  Counts,  (a)  The  court  charges  the  jury  that  if  the  evi- 
dence reasonably  satisfies  them  that  there  was  an  express  contract 
between  plaintiff  and  defendant  for  the  construction  of  the  house, 
then  he  is  not  entitled  to  recover  under  the  common  counts  for  money 
due  on  account,  and  for  merchandise,  goods  and  chattels  sold,  and 
for  work  and  labor  done,  or  upon  any  of  them,  except  what  may 
be  due,  if  anything,  for  the  extra  work  done  and  extra  material 
furnished  by  him,  unless  the  evidence  also  reasonably  satisfies  the 
jury  that  he  complied  with  the  terms  of  the  contract,  or  that  de- 
fendant accepted  the  house  as  constructed.  The  burden  of  proving 
one  of  these  two  facts  rests  upon  the  plaintiff,  and  unless  he  has 
done  so  to  the  reasonable  satisfaction  of  the  jury,  they  must  find  for 
the  defendant,  except  as  to  plaintiff's  claim  for  extra  work  done  and 
•  extra  material  furnished. 

(b)  The  court  charges  the  jury  that,  except  as  to  his  claim  for 
extra  work  done  and  extra  material  furnished,  plaintiff  is  not  entitled 
to  recover  upon  any  one  of  the  common  counts  for  money  due  on 
account,  and  for  merchandise,  goods  and  chattels  sold,  and  for  work 
and  labor  done,  unless  the  evidence  reasonably  satisfies  their  minds, 
either  that  he  complied  with  the  undertakings  of  the  contract  on  his 

refusal   to   employ   him,    the   court  a  view  would  be  almost  .certain  to 

said    that    the    above    instructions  prejudice  one  side  or  the  other;  for 

should    have    been    given    in    sub-  the    jury,    after    having    seen    the 

stance.  work  itself,   could  hardly  eradicate 

10— -Fitzgerald  et  al.  v.  La  Porte,  the  impression  thereby  made  upon 

67  Ark.   263,   54   S.  W.   342    (343).  their  minds,   so  as  to   render  their 

The  court  said:     "We  are  of  the  verdict    without    reference    thereto, 

opinion  that  the  view  of  the  prem-  The    statute   permits   the    view    by 

ises  by  the  jury  is  a  species  of  evi-  the  jury,  to  enable  them  better  to 

dence,   and   must  necessarily  uper-  understand   the  testimony,  and  for 

ate  to  some  extent  upon  the  minds  the    reason    that    it    may    tend    to 

of  the  jury-     The  verdict  must  be  enlighten   their   minds   with    refer- 

supported   by  other   evidence  than  ence  to  the  issues  of  facts  involved 

the  view,   and  a  verdict  depending  in  the  case.     We  think  it  was  evi- 

upon  a  view  alone  could  not  be  up-  dence  to  be  considered  by  the  jury 

held,    but    we    do    not    think    the  in   connection    with   other   facts   in 

court  erred  in  refusing  to  tell  the  the  case.     Benton  v.  State,  30  Ark. 

jury  that  they  must  not  base  their  349;     Tully    v.     Railroad     Co.,    134 

verdict    in   any   degree    upon    such  Mass.     503;     Smith    v.     Morse,    148 

an  examination.     If  the  jury  were  Mass.  407,   19   N.   E.   393;   People  v. 

not    allowed    to    base   their   verdict  Thorne,  156   N.   Y.   286,  42  L.  R.  A. 

in  any  degree  upon  the  facts  ascer-  368,  note,  50  N.  E.  947.     On  this,  as 

tained  by  the  view,  there  would  be  well  as  on   other  points   discussed, 

little  advantage  in  allowing  a  view  we  think  the  charge  of  the  presid- 

to  be  made.     If  that  was  the  rule,  ing  judge  was  correct." 


494  FORMS  OF  INSTRUCTIONS.  [§  691. 

part,  or  that  defendant  accepted  the  house  as  contracted.  The  bur- 
den of  proving  one  of  these  facts  to  the  reasonable  satisfaction  of 
the  jury  is  upon  plaintiff.  If  the  evidence  does  not  so  satisfy  their 
minds  that  he  complied  with  his  part  of  the  contract,  but  they  find 
that  defendant  nevertheless  accepted  the  house  as  constructed,  then 
he  is  entitled  to  recover  for  work  done  and  for  the  material  fur- 
nished in  the  construction  of  the  house,  outside  such  extra  work  and 
extra  material,  only  their  actual  value,  less  payments  thereon  made 
him,  and  interest  on  such  excess  from  the  time  the  same  became 
due.11 

11 — Aarnes  v.  Windham,  137  Ala.  fit    of    the    house    without    accept- 

513,  34  So.  816,  holds  that  the  trial  ance,  it  must  be  noted  that  in  each 

judge  erred  in  refusing  to  give  the  charge,   that  word   is  accompanied 

above  instruction.     The  court  said :  with    the    words    'as    constructed,' 

"If  it  be  said  that  the  charges  are  thereby  limiting  the  acceptance  of 

misleading  in  the  use  of  the  word  the  house  to  its  condition  as  con- 

'acceptance,'    since    the    defendant  structed." 
might  have  had  the  use  and  bene- 


CHAPTER  XXXIX. 

CONTRACTS  OF  MARRIAGE,  BREACH  OF— MARRIAGE- 
PROOF   OF. 

See   Erroneous   Instructions,   same  chapter  head,  Vol.  III. 


§  692.  Breach  of  promise — How 
proved. 

§  693.  Mere  attention  not  sufficient 
— Burden   of  proof. 

§  694.  No  time  set  for  marriage — 
To  be  performed  within  rea- 
sonable  time. 

§  695  Unchastity  no   defense,  when. 

§  696.  Subsequent  illicit  relations 
between  the  parties  no  ex- 
cuse. 

§  697.  Incapacity  to  contract  other 
marriage— Woman's  knowl- 
edge of  man's  prior  mar- 
riage— Common  law  mar- 
riage. 

§  698.  Promise  to  marry  in  consid- 
eration of  sexual  inter- 
course illegal. 


§  699.  Breach  of  promise  of  mar- 
riage— Series  of  instructions 
on — Seduction — Good  faith — ■ 
Burden  on  defendant  to 
show  justifiable  cause  for 
non-performance. 

§  700.  Marriage  contract  —  How 

proved. 

§  701.  Proof  of  marriage — Presump- 
tion  of  its   continuance. 

§  702.  Marriage — Cohabitation — Pre- 
sumption,   evidence    of. 

§  703.  Marriage  record  as  evidence 
of  facts  recited. 

§  704.  Common  law  marriage  de- 
fined. 

§  705.  Common  law  marriage — 
Proof  required. 


§  692.  Breach  of  Promise — How  Proved.  The  jury  are  instructed, 
that  under  a  declaration  alleging  a  promise  to  marry  upon  request, 
direct  and  positive  proof  of  request  and  refusal  are  not  required; 
these  may  be  inferred  from  circumstances,  if  the  jury  believe,  from 
the  evidence,  that  the  circumstances  proved  are  such  as  show  that 
what  passed  between  the  parties  was  equivalent  to  a  request  and 
refusal.1 

§  693.  Mere  Attentions  Not  Sufficient— Burden  of  Proof,  (a)  The 
burden  of  proof  is  on  the  plaintiff,  and  she  must  prove  her  case, 
as  charged  in  her  petition,  by  a  preponderance  of  the  evidence ;  and, 
if  the  jury  find  from  the  evidence  that  she  has  failed  to  do  so,  they 
must  find   the  issues  for  the   defendant. 

(b)  Unless  the  jury  can  first  find  from  the  evidence  that  the 
defendant  actually  promised  to  marry  the  plaintiff,  and  that  she, 
in  earnest,  accepted  said  promise,  and  that  the  plaintiff  actually  and 
in  earnest  promised  to  marry  the  defendant,  and  he  received  her 
promise  in  earnest,  and  unless  the  jury  first  find  that  such  mutual 
promises  were  so  given  and  received,  then  the  jury  must  find  the 
issues  for  the  defendant ; .  and  in  such  case  it  makes  no  difference 


1— Southard  v.  Roxford,  6  Cowen  (N.  Y.)  254. 

495 


496  FORMS  OF  INSTRUCTIONS.  [§  694. 

whether  or  not  plaintiff  and  defendant  had  sexual  intercourse  with' 
each  other. 

(e)  If  the  jury  find  from  the  evidence  that  the  attentions,  if  any, 
which  defendant  showed  plaintiff,  were  merely  such  attentions  as 
might  be  expected  in  a  case  of  illicit  intercourse  between  a  man 
and  a  woman,  where  one  or  both  wished  prolongation  of  the  same, 
and  were  seeking  opportunities  for  sexual  gratification,  and  were 
not  prompted  by  those  feelings  of  affection  which  usually  follow 
a  marriage  engagement,  then  they  must  find  the  issues  for  the  de- 
fendant. 

(d)  The  mere  fact  that  an  unmarried  man  is  gallant  to  women, 
and  shows  to  unmarried  women  courtesies  and  attentions,  is,  taken 
alone,  no  sufficient  proof  that  he  has  marriage  in  his  purpose,  nor 
that  he  is  engaged  to  be  married.  If,  therefore,  the  jury  find  from 
the  evidence  that  defendant  was  gallant  in  his  conduct  to  plaintiff, 
and  showed  her  courtesies  and  attentions,  whether  from  a  spirit  of 
gallantry,  or  from  the  motive  indicated  in  instruction  No.  3  in 
defendant's  series  of  instructions,  but  not  for  the  purpose  of  mar- 
riage, nor  from  the  feelings  of  marriage  engagement,  then  they  must 
find  the  issues  for  the  defendant.2 

§  694.  No  Tima  Set  for  Marriage;  to  Be  Performed  Within  Rea- 
sonable Time,  (a)  You  are  instructed  that  under  a  declaration 
charging  a  promise  to  marry  upon  request,  or  within  a  reasonable 
time,  such  request  need  not  necessarily  be  made  by  the  plaintiff 
herself,  and  in  this  case  if  you  find,  from  the  evidence,  that  there 
was  a  valid  subsisting  contract  of  marriage  between  the  plaintiff 
and  defendant,  and  that  no  definite  time  was  fixed  by  the  parties 
in  the  contract,  then  the  law  would  presume  a  contract  to  marry 
within  a  reasonable  time,  and  if  you  further  believe,  from  the 
evidence,  that  after  a  reasonable  time  from  the  making  of  said 
contract,  and  before  the  commencement  of  this  suit,  the  plaintiff 
herself  or  anyone  authorized  by  her  for  that  purpose,  called  upon 
the  defendant  and  requested  him  to  marry  the  plaintiff,  and  that  he 
refused  and  neglected  to  do  so,  then  you  should  find  the  issues  for 
the  plaintiff.3 

2 — The    above    instructions    were  able  time,  the  request  need  not  ne- 

approved  in  Broyhill  v.  Norton,  175  cessarily  be  made  by  the   plaintiff 

Mo.   190,   74   S.   W.    1024    (1026-7).  herself  but  might  be  made  through 

3— Judy    v.     Sterrett,    153    111.    94  an  authorized  agent.     It  is  not  ne- 

(100),  aff'g  52  111.  App.  265  (277),  38  cessary  that  an  instruction  intend- 

N.   E.   633.  ed     to     subserve     some    particular 

"The   purpose   of  the   instruction  office  or  to  define  the  law  on  some 

was  manifestly  to  inform  the  jury  particular     branch     of     the     case 

that,    in    a    contract    of    marriage,  should   have   embodied   in   it   every 

where   no    definite    time   was    fixed  fact  or  element  essential  to  sustain 

by  the  parties  thereto  for  its  per-  the  action.    Village  of  Sheridan  v. 

formance,    the    law    will    presume  Hibbard,    119  111.    307,   9    N.    E.   901; 

that   the   contract  was   to   be  per-  C.   B.  &  Q.  R.  Co.  v.  Payne,  adm., 

formed    within    a    reasonable    time,  59    111.    534.      It    is    sufficient    if   the 

and  that  in  a  contract  to  marry  jury  were  informed  in  other  in- 
upon   request   or  within  a  reason- 


§  695.]                           CONTRACTS   OF   MARRIAGE.                                 '197 
(b)    If  the  jury  find  from  the  evidence  that  on  or  about  the  


day  of  ,  plaintiff  was  single  and  unmarried,  and  that  at  such 

time  defendant  proposed  marriage  to  plaintiff,  and  that  plaintiff 
accepted  such  proposal,  no  definite  time  having  been  fixed  for  such 
marriage;  that  thereafter  defendant  failed  and  refused  to  marry 
plaintiff,  abandoned  her,  and  declared  that  he  did  not  intend  to 
marry  her,  then  you  shall  find  for  the  plaintiff.4 

§  695.  Unchastity  No  Defense,  When.  The  court  instructs  the 
jury,  that  when  a  party  enters  into  an  engagement  to  marry  with 
a  knowledge  that  the  other  party  is  unchaste,  he  will  be  deemed 
to  have  waived  the  objection,  and  cannot  afterwards  set  it  up  as 
a  reason  for  his  refusal  to  comply  with  his  promise;  but  if  either 
party  shall  be  guilty  of  acts  of  unchastity  subsequent  to  the  en- 
gagement, the  other  party  is  absolved  from  the  contract,  whether 
such  subsequent  acts  be  known  to  the  latter  or  not.5 

§  696.  Subsequent  Illicit  Relations  Between  the  Parties,  No  Excuse. 
If  you  find  that  such  proposal  of  marriage  was  made  by  defendant 
and  accepted  by  plaintiff,  then  any  illicit  relations  that  may  there- 
after have  occurred  between  plaintiff  and  defendant,  induced  by  such 
promise,  cannot  justify  defendant  in  refusing  to  consummate  such 
marriage.6 

§  697.  Incapacity  to  Contract  Other  Marriage — Woman's  Knowl- 
edge of  Man's  Prior  Marriage — Common  Law  Marriage,  (a)  The 
court  instructs  you  that  a  mistake  or  ignorance  of  the  law  happens 
when  a  person,  having  full  knowledge  of  the  facts,  comes  to  an 
erroneous  conclusion  as  to  their  legal  effect ;  and  if  you  believe 
from  the  evidence  in  this  case  that  the  plaintiff  was  in  full  possession 
of  all  the  facts  which  have  been  brought  out  in  evidence  with  refer- 
ence to  the  relations  existing  between  the  defendant  and  his  reputed 
wife,  and  that  such  erroneous  conclusion,  as  to  the  legal  effect  of 
such  relations,  was  brought  about  by  the  fraud  or  imposition  or 
misrepresentations  of  the  defendant,  and  if  you  further  find  and 
believe  that  the  defendant  knew  the  legal  effect  of  the  relations 
which  existed  between  him  and  his  reputed  wife,  which  would  in- 
capacitate him  from  making  a  lawful  marriage  contract  with  the 
plaintiff,  and  that  he  took  advantage  of  her  ignorance  of  such  legal 
effect  of  the  facts  which  were  known  to  her,  induced  her  to  believe 
that  he  could  legally  marry  her,  and  that  she  honestly  and  in  good 
faith  believed  in  the  false  and  fraudulent  statements  thus  made  to 
her,  and  that  she  was  ignorant  of  the  legal  effect  of  the  facts  which 
were  known  to  her,  in  that  event  you  should  find  for  the  plaintiff.7 

structions    what    was    required    to  Denslow  v.  Van  Horn,  16  la.  476;  2 

constitute  'a  valid,   subsisting  con-  Pars,   on  Cont.  66. 

tract    of   marriage.'  "  6 — Broyhill     v.     Norton,     175    Mo. 

4— Broyhill     v.     Norton,     175     Mo.  190,   74  S.  W.  1024  (1026). 

190.  74  S.  W.  1024  (1026).  7— Davis  v.  Pryor,  3  Ind.  Ter.  396, 

5— Sprague    v.    Craig,    51    111.    288;  5S   S.   W.   660    (664). 
32 


498  FORMS  OF  INSTRUCTIONS.  [§  698. 

(b)  The  relations,  however,  which  existed  between  the  defendant 
and  his  reputed  wife,  and  which  incapacitated  him  from  making  a 
valid  and  binding  contract  of  marriage  on  his  part,  do  not  neces- 
sarily relieve  him  from  the  consequences  of  any  marriage  contract 
that  he  may  have  made  with  the  plaintiff  in  this  ease,  if  you  believe 
from  all  the  evidence  that  she,  when  such  alleged  promise  was  made, 
was  honestly  and  in  good  faith  of  the  opinion  and  belief  that  the 
defendant  was  free  to  contract  a  lawful  matrimonial  alliance,  and 
that  such  belief  was  induced  by  the  misrepresentations  of  the  de- 
fendant.8 

§  698.  Promise  to  Marry  in  Consideration  of  Sexual  Intercourse 
Illegal.  The  court  instructs  the  jury  that  when  a  man  promises 
to  marry  a  woman  solely  on  consideration  that  she  should  permit 
him  to  have  sexual  intercourse  with  her,  or  solely  on  the  considera- 
tion that  she  would  permit  him  to  have  sexual  intercourse  with  her, 
and  as  a  result  of  such  intercourse  she  should  become  pregnant,  is 
illegal  and  cannot  be  enforced  in  law.  And  in  this  case  if  you  tin  1, 
from  the  evidence,  that  the  defendant  did  promise  to  marry  the 
plaintiff,  as  alleged  in  the  third  count  of  the  declaration,  and  that 
there  was  no  other  consideration  for  such  promise  except  that  al- 
leged in  said  third  count  of  said  declaration,  then  you  should  find 
for  the  defendant.9 

§  699.  Breach  of  Promise  of  Marriage,  Series  of  Instructions  on — 
Seduction — Good  Faith — Burden  on  Defendant  to  Show  Justifiable 
Cause    for   Non-Performance — Plaintiff's   Instructions.      (a)      If    the 

jury   shall   believe   from   the   evidence   that   in   the   month   of  

the  plaintiff  and  defendant,  then  being  single  and  unmarried  persons, 
entered  into  a  contract  or  engagement  to  marry  each  other,  and  that 
within  twelve  months  thereafter  the  plaintiff  requested  the  defendant 
to  marry  her,  and  the  defendant,  without  justifiable  cause,  failed  and 
refused  to  do  so,  then  the  court  instructs  the  jury  that  their  verdict 
must  be  for  plaintiff. 

(b)  If  the  jury  believe  from  the  evidence  that  after  the  institu- 
tion of  this  suit  the  defendant  offered  to  marry  the  plaintiff,  but 
that  he  made  such  offer  in  bad  faith,  merely  to  avoid  liability  in 
this  action,  and  with  the  intent  or  purpose  immediately  to  abandon 
and  desert  plaintiff,  and  such  bad  faith,  intent,  or  purpose  was 
known  to  the  plaintiff,  then  the  plaintiff  Avas  under  no  obligation  to 

8 — Davis  v.  Pryor,  supra.  married;  otherwise,  there  is  no 
The  court  said:  "The  law  un-  consideration  to  support  the  con- 
questionably  is  settled  that  a  mar-  tract.  Kelley  v.  Riley,  106  Mass. 
ried  person  can  enter  into  a  con-  339;  Pollock  v.  Sullivan,  53  Vt.  507, 
tract  of  marriage,  and  thereby  be-  38  Am.  Rep.  702.  And,  while  the 
come  responsib'e  in  damages  to  foregoing  instruction  is  inaptly 
the  other  contracting  party,  pro-  stated,  we  think  it  is  not  objec- 
vided    the    party    with    whom    the  tionable." 

married   person  contracts   is   ignor-  9 — Judy    v.     Sterratt,    153    111.     94 

ant  of  the  fact   that  the  person   is  (101),  38  N.  E.  633. 


§699.]  CONTRACTS   OF   MARRIAGE.  499 

accept  such  offer,  and  the  same  constitutes  no  defense  whatever  to 
this  action. 

(c)  The  jury  are  instructed  that  if  they  find  and  believe  from 
the  evidence   that   a  mutual   promise   of  marriage   was   entered  into 

between  the  plaintiff  and  defendant  about  the  month  of ,  and 

that  prior  to  the  institution  of  this  suit  the  defendant  failed  and 
refused  to  carry  out  such  promise  and  engagement,  then  the  burden 
is  upon  the  defendant  to  establish  to  the  satisfaction  of  the  jury,  by 
the  weight  or  preponderance  of  credible  testimony,  that  he  did  have 
a  justifiable  cause  for  such  refusal  to  carry  out  his  promise. 

(d)  In  determining  the  question  of  the  good  or  bad  faith  of  the 
defendant  in  offering  to  marry  the  plaintiff  after  the  institution  of 
this  suit,  the  jury  may  take  into  consideration  the  prior  declarations, 
if  any,  of  the  defendant  touching  his  purpose  to  marry  and  then 
desert  her,  as  well  as  the  prior  act  and  conduct  of  the  defendant 
in  converting  his  property  and  estate,  if  he  did  so  convert  his  prop- 
erty, together  with  all  the  other  facts  and  circumstances  in  evidence 
in  the  case. 

(e)  If  the  jury  shall  believe  from  the  evidence  that  a  mutual 
promise  and  engagement  was  entered  into  between  the  plaintiff  and 

defendant    about   the   month   of   ,   to   marry   each   other,    and 

that  under  said  pre-existing  promise  of  marriage  defendant  induced 
and  procured  the  plaintiff  to  submit  to  sexual  intercourse  with  him, 

whereby  she  became  pregnant,  and  bore  a  child  on  the  day  of 

,  then,  in  determining  the  amount  of  damages  to  which  they 

may  believe  the  plaintiff  is  entitled,  they  may  take  those  facts  into 
consideration,  together  with  the  pain  and  anguish  of  body  and  mind 
she  may  be  shown  by  the  evidence  to  have  suffered,  together  with 
all  the  other  facts  and  circumstances  in  the  case;  and  the  jury  may 
assess  her  damages  at  any  sum  they  may  deem  proper,  not  to  exceed 
the   amount  sued  for,  namely,  $ . 

Defendant's  Instructions.  (f)  The  jury  are  instructed  that  if 
they  find  from  the  evidence  that  the  plaintiff  was  a  lewd  and  un- 
chaste woman  prior  to  the  alleged  breach  of  the  alleged  contract 
to  marry,  and  the  defendant  was  ignorant  of  the  same,  and  believed 
her  to  be  a  chaste  and  virtuous  woman,  their  verdict  must  be  for 
the  defendant. 

(g)  Although  the  jury  may  believe  from  the  evidence  that  de- 
fendant had  promised  to  marry  the  plaintiff,  and  that  different  dates 
had  been  fixed  for  the  marriage,  before  the  bringing  of  the  suit,  yet 
if  they  further  find  that,  after  the  bringing  of  the  suit,  plaintiff 
agreed  with  the  defendant  that  they  would  be  married  on  a  certain 
day,  and  that  defendant,  in  pursuance  of  such  agreement,  procured 
his  license  to  marry  the  plaintiff,  and  went,  with  a  justice  of  the 
peace  and  witnesses,  to  the  house  of  the  plaintiff's  father,  where 
she  was  staying,  for  the  purpose  of  carrying  out  his  promise,  and 
then    and   there    offered    to    marry   the   plaintiff,    and    that    plaintiff 


500 


FORMS  OF  INSTRUCTIONS. 


[§  699. 


refused  to  marry  the  defendant,  their  verdict  must  be  for  the  de- 
fendant, unless  such  offer  was  made  as  set  out  in  instruction  No.  2, 
given  on  behalf  of  plaintiff. 

(h)  If  the  jury  believe  from  the  evidence  that  any  witness  in 
the  cause  has  sworn  wilfully  false  to  any  matter  material  to  the 
issues  in  the  cause,  they  may  disregard  and  reject  the  entire  testi- 
mony of  such  witness. 

(i)  If  the  jury  find  from  the  evidence  that  defendant  promised 
to  marry  the  plaintiff  on  condition  that  she  would  permit  him  to 
have  criminal  intercourse  with  her,  and  she  did  permit  such  inter- 
course, such  promise  is  against  public  policy  and  void,  and  the  jury 
should  find  their  verdict  for  the  defendant. 

(j)  That  defendant  had  disposed  of  his  property  constitutes  no 
legal  reason  or  excuse  for  plaintiff's  refusal  to  marry  the  defendant; 
and  if  the  jury  find  from  the  evidence  that  defendant  on  the  29th 

day  of  March,  ,  proposed  to  marry  the  plaintiff  on  the  next 

day,  and  that  plaintiff  accepted  his  offer,  and  agreed  to  marry  de- 
fendant on  the  next  day;  and  further  find  that  on  the  next  day 
defendant,  with  a  license  to  marry  plaintiff,  and  an  officer  authorized 
to  solemnize  said  marriage,  went  to  the  house  of  plaintiff,  and  then 
and  there  offered  himself  in  marriage  to  plaintiff,  and  that  she  re- 
fused to  marry  him, — they  will  find  their  verdict  for  the  defendant, 
unless  such  offer  was  made  as  set  out  in  instruction  No.  2  given  on 
behalf  of  plaintiff.10 


10 — Harmon  v.  Donohoe,  153  Mo. 
263,   54  S.   W.  453. 

"Instructions  (a)  and  (c)  were 
doubtless  taken  from  the  instruc- 
tions in  Bird  v.  Thompson,  96  Mo. 
loc.  cit.  426,  9  S.  W.  788,  for  the 
same  terms,  'justifiable  cause,' 
were  used  in  that  case;  and  this 
court  pointed  out  in  that  case  that 
'while  the  instructions  when  taken 
singly,  may  be  subject  to  verbal 
criticism,  when  taken  as  a  whole 
no  intelligent  juror  could  have 
been  misled  by  them.'  That  is,  the 
other  instructions  given  explained 
what  a  justifiable  or  reasonable 
cause  for  refusing  to  marry  the 
plaintiff  was,  and  those  other  in- 
structions, read  with  the  instruc- 
tion criticised,  put  the  whole  mat- 
ter before  the  jury.  We  reached 
the  same  result  in  Liese  v.  Meyer, 
143  Mo.  loc.  cit.  560,  45  S.  W.  282. 
Instruction  No.  1  and  3  for  plain- 
tiff, when  read  in  connection  with 
instructions  (f)  and  (i)  given  for 
defendant,  show  what  cause  would 
justify  the  defendant  in  refusing 
to  marry  the  plaintiff,  to  wit,  her 
previous  unchastity,  or  that  he 
promised  to  marry  her  on  condi- 
tion that  she  would  permit  him  to 


have  criminal  intercourse  with  her. 
This  was  the  gist  and  sum  of  the 
case  as  presented  by  the  evidence, 
and  these  were  the  only  justifiable 
causes  bona  fide  asserted  by  the 
defendants.  The  jury  could  not, 
therefore,  have  misunderstood  or 
been  misled  by  these  instructions 
as  to  what  was  meant  by  justifi- 
able cause.  Moreover,  if  the  de- 
fendant was  dissatisfied  with  the 
general  character  of  the  definition 
of  'justifiable  cause,'  it  was  his 
privilege  and  duty  to  ask  a  proper 
instruction.  Browning  v.  Railway 
Co.,  124  Mo.  loc.  cit.  71,  27  S.  W. 
644.  However,  as  pointed  out,  he 
did  ask,  and  the  court  gave,  ex- 
planatory instructions,  and  the  de- 
fendant has  nothing  to  complain 
of  in  this  respect.  Instructions  No. 
5  (e)  given  for  the  plaintiff  is  sub- 
ject to  verbal  criticism,  but  it  is  in 
fuller  form  than  the  instruction  on 
the  measure  of  damages  which 
was  approved  in  Browning  v.  Rail- 
way Co.,  124  Mo.  loc.  cit.  71,  27  S. 
W.  644,  because  the  defendant  did 
not  ask  a  more  specific  instruction. 
Instruction  5  lays  the  predicate  for 
the  recovery  of  any  damages, 
specifies   what   the   jury   may   con- 


§700.]  CONTRACTS   OF   MARRIAGE.  501 

§  700.  Marriage  Contracts,  How  Proved.  The  court  instructs  the 
jury,  that  to  prove  a  contract  of  marriage  an  expressed  contract  need 
not  be  shown.  A  mutual  engagement  may  be  inferred  from  constant 
and  devoted  attention,  gladly  welcomed,  from  reciprocal  affection,  and 
the  interchange  of  letters  expressive  of  earnest  love.11 

The  court  instructs  you,  that  the  contract  to  marry  may  be  proved 
by  either  positive  or  circumstantial  evidence,  and  when  it  is  proved, 
by  one  or  the  other  mode;  unless  the  evidence  discloses  facts  absolv- 
ing the  party  from  its  observance,  the  party  must  be  held  liable  for 
its  breach  precisely  as  in  the  case  of  any  other  contract.12 

§  701.  Proof  of  Marriage  Presumption  of  Its  Continuance.  The 
marriage  may  be  proved  in  different  ways.  Evidence  of  eye-witnesses 
who  saw  the  marriage  performed  is  sufficient  (that  is,  is  sufficient 
if  you  believe  the  evidence  to  be  true)  ;  and  if  you  are  satisfied 
from  the  evidence  in  this  case  that  at  the  time  this  act  is  alleged 
to  have  been  committed  the  defendant,  J.  E.,  was  married  to  A.  E., 
that  would  be  sufficient  evidence  upon  that  part  of  the  case.  I  will 
further  say  that  if  you  are  satisfied  that  the  marriage  was  performed, 
that  the  defendant  and  A.  E.  were  married  at  some  time  prior  to  the 
time  this  offense  is  alleged  to  have  been  committed,  it  would  not 
be  necessary  for  the  state  to  go  on  and  show  that  they  continued  to 
be  husband  and  wife,  but  it  would  be  presumed  they  have  continued 
to  be  husband  and  wife,  in  the  absence  of  any  evidence  to  the  con- 
trary.13 

§  702.      Marriage    Cohabitation,    Presumptive    Evidence    of.       The 

court  charges  you  that  cohabitation  and  living  together  as,  and  rec- 
ognizing each  other  as  husband  and  wife,  speaking  of  each  other  as 
husband  and  wife,  is  only  presumptive  evidence  of  actual  marriage, 
and  that  such  presumption  is  rebutted  by  the  fact,  if  it  is  a  fact 
of  subsequent  permanent  separation  without  any  apparent  cause  after 

sider  in  determining-  the  amount  of  111.   186;    Royal  v.  Smith,  40  la.  615; 

damages,  and  then  tells  the  jurors  2  Pars,  on  Cont.   62. 

they    may    assess    'any    sum    they  12 — Wright  man       v.       Coats,       15 

may    deem    proper,    not    to    exceed  Mass.   1. 

the  amount  sued  for,  namely,  $10,-  13— State  v.   Eggleston,  45  Oregon 

000.'      If    the    instruction    had    been  346,  77  Pac.  733. 

simply    that    the    jury    might    give  The  court  said   in  comment   that 

the  plaintiff  any  sum  they  deemed  the    "solemnization    of    a    marriage 

proper,    not   to   exceed   the   amount  is  based  upon  the  mutual  assent  of 

sued   for,   it  would  have  been  sub-  the    parties    that    the    relation    en- 

ject     to     the     objection     of    uncer-  tered  into  shall  continue  until   it  is 

tainty,  urged;   but,  road  in  connec-  severed    by    the    death    of    one    of 

tion  with  what  precedes  the  words  them.    The    marriage,    however,    is 

objected    to    in    the    same    instruc-  sometimes  dissolved  by  a  decree  of 

tion,   defining  specifically  what  the  divorce,  but  this  method  of  separa- 

elements      of     plaintiffs      damages  tion      is      happily      the      exception 

must  be,  'no  intelligent  juror  could  rather    than    the    rule,    in    view    of 

have  been  misled'  by  the  plaintiff's  which     we     think     the     instruction 

instruction."  complained    of    was   proper.      Hem- 

11— Rockafellow    v.  •  Newcomb,    57  ingway  v.  State,  68  Miss.  371,  417,  8 

So.    317." 


502 


FORMS  OF  INSTRUCTIONS. 


703. 


the  marriage,  if  there  was  a  marriage  of  John  F.  with  Julia  E  shortly 
after  the  separation.14 

§  703.  Marriage  Record  as  Evidence  of  Facts  Recited.  The  mar- 
riage record  is  only  a  circumstance  to  be  considered  by  the  jury,  and 
is  not  conclusive  proof  of  the  facts  recited.15 

§  704.  Common-Law  Marriage  Denned.  A  common-law  mar- 
riage is  valid  in  the  state  of  Texas,  and  the  issuance  of  a  license 
is  not  necessary  to  constitute  a  valid  common-law  marriage.  A  com- 
mon-law marriage  exists  when  the  man  and  woman  enter  into  an 
agreement  to  become  husband  and  wife,  and  in  pursuance  of  such 
agreement  do  live  together  and  cohabit  as  husband  and  wife,  and 
hold  each  other  out  to  the  public  as  husband  and  wife.  Said  agree- 
ment to  become  husband  and  wife  may  be  express  or  implied.  An 
express  agreement  is  where  the  parties  thereto  expressly  agree ;  and 
implied  agreement  is  one  where  the  conduct  of  the  parties  with  refer- 
ence to  the  subject  matter  is  such  as  to  induce  the  belief  that  they  in- 
tended to  do  that  which  their  acts  indicate  they  have  done.  If  you 
believe  from  the  evidence  that  the  plaintiff  and  defendant  agreed 
to  become  husband  and  wife,  as  claimed  by  the  plaintiff,  and  that  in 
pursuance  of  said  agreement  they  lived  together  and  cohabited  as 
husband  and  wife,  you  will  find  for  the  plaintiff  on  this  issue.16 


14 — Moore  v.  Heineke,  119  Ala. 
627,  24   So.   374   (377). 

15 — Woods  et  al.  v.  Moten  et  al., 
129  Ala.  228,  30  So.  324. 

"This  charge  given  for  the  plain- 
tiff placed  this  marriage  record  in 
the  class  of  evidence  to  which  the 
statute  assigns  it — presumptive 
and  not  conclusive  proof  of  what 
is  required  to  be  recorded.  Civ. 
Code  1S96,  par.  2846,  2S47." 

16— Cuneo  v.  De  Cuneo,  24  Tex. 
Civ.   App.   436,   59   S.   W.   284    (2S5). 

"That  a  marriage  according  to 
common  law  is  valid  without  re- 
gard to  observance  of  statutory 
regulations,  is  now  settled  law  in 
this  state.  Ingersol  v.  MeWillie,  9 
Tex.  Civ.  App.  543,  30  S.  W.  58; 
Coleman  v.  Vollmer,  —  Tex.  Civ. 
App.  — ,  31  S.  W.  413;  Chapman  v. 
Chapman,  11,  Tex.  Civ.  App.  392, 
32  S.  TV.  564;  Chapman  v.  Chap- 
man, 16  Tex.  Civ.  App.  382,  41  S.  W. 
534;  Simmons  v.  Simmons,  (Tex. 
Civ.  App.),  39  S.  W.  639;  Cumby  v. 
Henderson,  6  Tex.  Civ.  App.  519,  25 
S.  W.  673;  Railway  Co.  v.  Cody, 
—  Tex.  Civ.  App,  — ,  50  S.  TV.  136. 
The  present  consent  and  agree- 
ment between  the  parties  is  the 
gist  of  a  common-law  marriage.  It 
requires  only  the  agreement  of  the 
man  and  woman  to  become  then 
and  thenceforth  husband  and  wife. 


When  this  takes  place  the  mar- 
riage is  complete.  Simmons  v. 
Simmons,  supra.  It  is  not  suffi- 
cient to  agree  upon  a  present  co- 
habitation and  a  future  marriage. 
1  Bish.  Mar.  &  Div.  §  262;  Cart- 
wright  v.  McGown.  121  111.  388,  12 
N.  E.  737.  It  is  required  that  the 
cohabitation  be  as  man  and  wife 
and  in  pursuance  of  the  marriage 
contract.  It  can  of  itself  be  no 
part  of  the  marriage  contract  ex- 
cept it  takes  place  after,  and  not 
before,  the  agreement.  Soper  v. 
Halsey,  85  Hun  464,  33  N.  Y.  Supp. 
105;  Farley  v.  Farley,  supra.  A 
consent  de  praesenti  is  essential  to 
such  a  marriage,  and  a  subsequent 
marriage  is  established  by  a  proof 
of  a  promise  and  a  copula,  on  the 
ground  that  the  copula  was  a  con- 
sequence and  performance  of  an 
anterior  promise.  The  coupla  does 
not  constitute  marriage,  but  it  is 
taken  when  circumstances  justify 
it,  as  evidence  of  the  performance 
of  a  previous  promise.  Rodg.  Dom. 
Rel.  §  87;  Simmons  v.  Simmons, 
supra.  Cohabitation  between  a  man 
and  woman  as  man  and  wife  is 
usually  regarded  in  law  as  evi- 
dence of  marriage,  and  entitled  to 
more  or  less  weight,  according  to 
circumstances.  The  cohabitation 
necessary   to   follow   a  contract   of 


§  705.] 


CONTRACTS    OF   MARRIAGE. 


503 


§705.  Common  Law  Marriage;  Proof  Required.  Whatever  be 
the  form  of  the  ceremony,  if  the  parties  agree  to  take  each  other  for 
husband  and  wife,  and  from  that  time  live  confessedly  in  that  rela- 
tion, proof  beyond  a  reasonable  doubt  of  these  facts  would  be  suf- 
ficient proof  of  a  marriage,  binding  on  the  parties.17 


marriage  per  verba  de  futuro, 
must  be  an  actual  dwelling  to- 
gether by  the  parties  as  husband 
and  wife,  and  a  mutual  recognition 
of  each  other  as  such  in  pursuance 
of  the  marriage  contract.  A  mere 
illicit  intercourse,  though  extend- 
ing over  a  long  period,  can  never 
have  the  effect  of  validating  or 
consummating  a  marriage  depend- 
ent upon  cohabitation  to  complete 
it.  Rodg.  Dom.  Rel.  §  96,  and  au- 
thorities cited." 

"Living  and  cohabiting  as  hus- 
band and  wife,  or  declarations  of 
the  parties  that  they  are  husband 
and  wife,  do  not  of  themselves 
constitute  a  marriage  in  fact. 
Such  acts  and  declarations  are  not 
a  substitute  for  the  marriage  con- 
tract, but  are  only  evidence  that 
may  be  sufficient  to  prove  a  lawful 
marriage.  And  when  the  evidence 
shows  that  at  the  time  of  the  com- 
mencement of  the  cohabitation  and 
conduct  which  it  is  sought  to  prove 
a  marriage,  in  fact  there  was  in 
fact  no  marriage,  their  mere  con- 
tinuance of  such  cohabitation  and 
conduct  without  something  more 
to  indicate  that  there  had  been  a 
change  in  the  relations  of  the 
parties  to  each  other,  would  not  be 
sufficient  to  show  a  marriage  in 
fact  subsequent  to  the  commence- 
ment of  such  cohabitation  and 
conduct.  But  the  presumption 
against  marriage  when  the  connec- 


tion between  the  parties  is  shown 
to  have  been  illicit  in  origin  may 
be  overcome  by  proof  showing  that 
the  original  connection  has 
changed  its  character;  and  a  sub- 
sequent marriage  may  be  proved 
by  circumstances.  The  circum- 
stances, however,  must  be  such  as 
to  exclude  the  inference  or  pre- 
sumption that  the  former  relation 
continued,  and  show  that  it  had 
been  changed  into  actual  matri- 
mony by  mutual  consent.  Williams 
v.  Williams,  46  Wis.  464,  1  N.  W. 
98,  32  Am.  Rep.  722;  2  Greenl.  Ev. 
§  464;  Jackson  v.  Claw,  18  Johns. 
346." 

17 — Hearne  v.  State,  —  Tex.  Cr. 
App.   — ,   97   S.    W.    1050. 

"There  is  no  error  in  this  charge. 
While  we  hardly  deem  it  necessary 
under  the  facts  of  this  case  for 
the  court  to  have  given  the  charge, 
still  it  could  not  have  injured  ap- 
pellant. The  first  marriage  was 
proved  by  a  marriage  certificate, 
and,  in  addition,  that  appellant 
lived  with  his  first  wife  and  held 
her  out  as  his  wife.  So,  if  there 
had  been  po  marriage  license,  still 
appellant  had  contracted  a  com- 
mon-law marriage.  Waldrop  v. 
State,  41  Tex.  Crim.  App.  194,  53  S. 
W.  130;  Simon  v.  State,  31  Tex. 
Cr.  App.  186,  20  S.  W.  399,  716.  37 
Am.  St.  Rep.  802;  Ingersol  v.  Mc- 
Willie,  9  Tex.  Civ.  App.  543,  30  S.  W. 
56." 


CHAPTER  XL. 


CONTRACTS— OF  SERVICE. 


See    Erroneous    Instructions,  same  chapter  head,  Vol.  III. 


§  706.  Neglect  to  reduce  contract  to 
writing  —  Entering  upon 
performance. 

§  707.  Written  contract  changed  by- 
subsequent  verbal  contract. 

§  708.  Legal  effect  of  writings. 

§  709.  Mere  fact  of  services  ren- 
dered creates  no  obligation 
to   pay. 

§  710.  Implied  promise  to  pay  for 
services  knowingly  accept- 
ed. 

§  711.  Extra  services  rendered  with- 
out  request. 

§  712.  Implied  promise — When  pre- 
vious  agreement   fixes  rate. 

§  713.  Employment  for  certain  pe- 
riod presumed  to  continue 
at  same  rate. 

§  714.  Rate  of  compensation 

changes— With  change  in 
work. 

§  715.  Accepting  work  as  full  per- 
formance— No  waiver  of 
unknown   defects. 

§  716.  Negotiations  for  settlement- 
Unaccepted  offer  not  bind- 
ing. 

§  717.  Failure  to  make  agreed 
monthly  payments  for 
services. 

§  718.  Quantum  meruit  recoverable 
for  substantial  perform- 
ance. 

§  719.  Entire  contract  of  hiring — 
Recovery  of  quantum  mer- 
uit after  breach  by  em- 
ployee. 

§  720.  Entirety  of  contract — Em- 
ployee forced  out  may  re- 
cover on   quantum   meruit. 


§  721.  Same  subject — Damages  for 
wrongful  discharge  —  Dili- 
gence in  seeking  new  em- 
ployment. 

§  722.  Same  subject  —  Employee 
quitting  during  term  with- 
out   cause. 

§  723.  Same  subject — Sickness  as 
cause  for  employee  s  leav- 
ing. 

§  724.  Improper  conduct  ground  for 
discharge — Association  with 
woman. 

§  725.  Want  of  skill  or  diligence — 
Right  to  discharge — Coun- 
terclaim. 

§  726.  "Ordinary  skill"  defined. 

§  727.  Counterclaim  for  goods  lost 
through  defects  in  machin- 
ery. 

§  728.  Services  by  a  member  of  the 
family — No  implied  promise 
to  pay  for. 

§  729.  Intention  or  expectation  to 
be  paid  must  be  mutual. 

§  730.  Extent  of  relationship  ac- 
quired— Rendering  of  serv- 
ices is  prima  facie  evi- 
dence of  acceptance. 

§  731.  Father  not  bound  to  pay  a 
daughter  though  of  age  for 
work  done  by  her  while  liv- 
ing at  home  and  as  a  mem- 
ber of  the  family  except  by 
agreement — Series. 

§  732.  Stranger  living  as  a  member 
of  the  family — Recovery  for 
services. 


§  706.  Neglect  to  Reduce  Contract  to  Writing — Entering  Upon 
Performance.  The  court  instructs  the  jury,  that  when  a  contract  for 
work  and  labor  is  entered  into,  and  the  terms  agreed  upon  by  the 
parties,  with  the  understanding:  that  it  shall  be  reduced  to  writing1,  and 
one  of  the  parties  to  the  agreement  enters  upon  the  performance  of  it, 

504 


§  707.]  CONTRACTS— OF  SERVICE.  505 

without  objection  from  the  other  party,  the  contract  in  all  its  terms 
Avill  be  as  binding  as  if  it  had  been  reduced  to  writing.1 

§  707.  Written  Contract  Changed  by  Subsequent  Verbal  Contract. 
A  contract  under  seal  may  be  changed  by  a  subsequent  verbal  agree- 
ment to  pay  an  additional  sum  for  the  same  work  and  materials 
mentioned  in  the  agreement.  And  in  this  case,  if  the  jury  be- 
lieve, from  the  evidence,  that  there  was  a  subsequent  verbal  agree- 
ment between  the  parties,  varying  the  terms  of  the  written  agree- 
ment, and  that  the  work  in  question  was  done  in  compliance  with 
the  latter  agreement,  it  will  be  binding  between  the  parties.2 

§  708.  Legal  Effect  of  Writings.  The  two  paper  writings  intro- 
duced in  evidence  by  the  plaintiff  are  to  be  construed  together,  and 
as  a  contract  to  employ  plaintiff  for  the  months  named  at  the  stipu- 
lated wages  on  the  part  of  the  defendant,  and  is  a  contract  for  the 
plaintiff  to  serve  the  defendant  for  the  months  named  at  the  stipu- 
lated wages.3 

§  709.  Mere  Fact  of  Services  Rendered  Creates  no  Obligation 
to  Pay.  (a)  The  jury  are  instructed,  as  a  matter  of  law,  that 
the  mere  fact  that  the  plaintiff  was  instrumental  in  securing  the 
location  of  a  factory  on  the  land  of  the  defendant,  does  not  make 
the  defendant  liable  to  the  plaintiff  for  a  commission,  and  does  not 
entitle  the  plaintiff  to  recover  in  this  suit.4 

(b)  If  you  believe,  from  the  evidence,  that  the  plaintiff  made 
his  home  at  defendant's  house  during  the  time  for  which  he  claims 
pay  for  his  services,  and  that  he  did  not,  at  that  time,  intend  to 
charge  the  defendant  for  the  services  he  rendered,  and  both  parties 
regarded  the  same  as  a-  donation,  or  as  an  equivalent  for  living  at 
defendant's  house,  then  he  cannot  recover  for  such  services  in  this 
suit.5 

(c)  Labor  done,  and  services  rendered  by  one  person  for  another, 
without  the  knowledge  or  request  of  the  person  for  whom  the  work 
is  done  or  service  rendered,  no  matter  how  meritorious  or  bene- 
ficial to  the  latter,  afford  no  ground  of  action  in  favor  of  the  person 
doing  the  work,  or  rendering  the  service.6 

(d)  And  in  this  case,  though  you  may  believe,  from  the  evi- 
dence, that  the  plaintiff  rendered  services  which  were  of  value  and 
beneficial  to  the  defendant  in  saving  his  crops,  still,  if  you  further 

1 — Miller  v.  McMannis,  57  111.  126.  take  any  part  in   the   transactions. 

2 — Cook    v.     Murphy,    70    111.    96;  It   is  the  right  of  a  party  to  have 

Seaman   v.   O'Harra,    29  Mich.   66.  an    instruction    upon   his   theory  of 

3 — McLendon     v.      Am.    Freehold  the  case   if  there  be   any  evidence 

Land    Mortgage   Co.,    119   Ala.    518,  to  support  that  theory.  Wooters  v. 

24   So.   721    (723).  King.  54  111.  343:  Peoria  Ins.  Co.  v. 

4 — In  Chicago  H.  L.  Asso'n  v.  But-  Anapow,     45     111.     86;     Kendall     v. 

ler,  55  111.  App.  461   (462).  the  court  Brown.  74  111.  232;  Parmly  v.  Head, 

said  "that  the  above  instruction  is  33  111.   App.  134 

law  cannot   he  disputed.   Tascott  v.  5 — Brnusrhton     v.     Smart.     50     Til. 

Grace,  12   111.    App..   639.     And  there  440;    Morris    v.    Barnes,    35    Mo.    412. 

was  evidence  that  the  appellee  was  6 — Bartholomew     v.     Jackson,    20 

never    emplojred     or    requested     to  John.    28. 


506  FORMS  OF.  INSTRUCTIONS.  [§  710. 

believe,  from  the  evidence,  that  such  services  were  rendered  without 
the  knowledge  or  request  of  the  defendant,  and  that  he  has  never 
agreed  to  pay  for  the  same,  then  the  plaintiff  cannot  recover  for 
such  services.7 

§  710.  Implied  Promise  to  Pay  for  Services  Knowingly  Accepted. 
(a)  I  charge  you  that  where,  in  the  absence  of  an  express  contract, 
valuable  services  are  rendered  by  one  person  to  another,  which  are 
knowingly  accepted,  the  law  will  presume  an  obligation  to  pay  there- 
for what  they  are  reasonably  worth.8 

(b)  While  one  person  cannot  make  another  his  debtor  without 
the  consent  of  the  latter,  or  recover  for  services  rendered  for  an- 
other, without  a  request  expressed  or  implied,  yet,  if  one  stands  by 
and  sees  another  doing  work  for  him,  beneficial  in  its  nature,  and 
overlooks  it  as  it  progresses,  and  does  not  interfere  to  prevent  or 
forbid  it,  but  appropriates  such  labor  to  his  own  use,  then,  in  the 
absence  of  a  special  contract,  a  request  will  be  implied,  and  the 
person  for  whom  the  work  has  been  done  will  be  liable  to  pay  for 
the  work  what  the  same  was  reasonably  worth,  unless  it  expressly 
appears,  from  the  evidence,  that  it  was  done  as  a  gift  or  gratuity.9 

(c)  The  court  instructs  you,  that  when  one  person  labors  for 
another  with  his  knowledge  and  consent,  and  the  latter  volun- 
tarily takes  the  benefit  of  such  labor,  then  the  law  will  presume  that 
the  laborer  is  to  be  paid  for  his  labor,  unless  the  contrary  is  shown 
by  the  evidence,  and  if  no  special  contract  is  proved,  fixing  the 
price,  then  the  laborer  is  entitled  to  have  what  his  services  are 
reasonably  worth.10 

(d)  When  work  and  labor  are  done  and  performed  for  the  bene- 
fit of  another,  with  his  knowledge  and  consent,  and  he  receives 
the  benefit  arising  therefrom,  then  the  law  will  presume  a  promise 
on  his  part  to  pay  for  the  same;  unless  it  appears,  from  all  the 
evidence  in  the  case,  that  such  work  and  labor  were  done  under 
a  special  contract,  or  as  a  gratuity  or  a  gift.11 

(e)  I  charge  you,  that  it  makes  no  difference  whether  the  de- 
fendant received  any  benefit  from  the  first  well  or  not,  if  defendant 
consented  expressly  or  implicitly  that  plaintiff  should  bore  the  second 

well. 

(f)  I  charge  you,  if  you  believe  that  the  defendant,  after  being 
advised  by  the  plaintiff  that  it  would  be  best  to  begin  boring  in  a 
new  place,  sent  for  a  man  to  locate  said  new  place,  that  the  man 
sent  for  did  locate  a  new  place  at  the  defendant's  instance  and 
request,    and    that    the    plaintiff    acting    upon    defendant's    conduct 

7_Coe   v.   Wager,   42   Mich.   49,   3  41   Mo.    302;    1   Page   on   Cont.    sec. 

N.    W.    248.  285. 

8— Mansfield   v.   Morgan,   140  Ala.  10— Trustees     of     Farmington,    v. 

567.   37   So.    393   (394).  Allen,   14    Mass.    172. 

9—1  Pars,   on  Cont.  445;  De  Wolf  11 — O'Connor      v.      Beckwith,      41 

v.    City    of    Chicago,    26   111.    446,    79  Mich.  657,  3  N.  W.  166. 
Am.   Dec.   385;   Allen  v.   Richmond, 


§711.]  CONTRACTS— OF  SERVICE.  507 

bored  or  drilled  a  second  well  at  said  new  place  with  defendant's 
knowledge  and  consent,  even  though  said  consent  be  implied  from 
defendant's  conduct,  you  will  find  for  the  plaintiff.12 

§  711.  Extra  Services  Rendered  Without  Request,  (a)  The  jury 
are  instructed  if  you  believe,  from  the  evidence,  that  payment  was 
made  to  the  plaintiff  for  his  services  at  the  end  of  each  month 
during  the  term  of  his  employment,  and  a  receipt  or  voucher  taken 
therefor,  and  that  there  was  no  demand  made  by  him  for  compen- 
sation for  extra  services  performed  by  him  during  such  month  or 
prior  thereto,  such  payment  and  the  receipt  and  voucher  therefor 
by  the  plaintiff  is  to  be  considered  as  a  settlement  and  payment  in 
full  of  and  for  all  demands  by  the  plaintiff  up  to  and  prior  to  the 
date  of  such  payment,  and  if  you  so  believe  and  find,  the  plaintiff 
cannot  recover  under  the  allegations  claiming  payment  for  extra 
services.13 

(b)  You  are  instructed  that  the  claimant  in  this  case  having 
applied  to  the  court  in  1900  for  an  allowance  and  order  on  the 
guardian  of  Mrs.  J.  to  pay  her  fifty  dollars-  per  month  for  care, 
maintenance,  support  and  clothing,  and  having  obtained  such  order, 
to  continue  until  the  further  order  of  the  court,  and  having  received 
and  accepted  said  allowance  according  to  said  order,  she  cannot 
recover  any  sum  or  amount  against  the  administrator  in  this  case 
for  the  work  by  her  performed  in  fulfillment  of  the  terms  and 
conditions  of  said   order.14 

§712.  Implied  Promise — When  Previous  Agreement  Fixes  Rate. 
You  are  instructed,  if  you  believe  from  the  evidence,  the  defend- 
ant agreed  to  pay  plaintiff  for  labor  and  services  furnished  by 
the  plaintiff  to  the  defendant  at  the  rate  previously  paid  to  the 
plaintiff  for  like  services  and  labor  by  the  American  G.  Co.,  then 
that  would  constitute  a  contract  fixing  the  rate  which  the  plaintiff 
could  charge  the  defendant  for  such  labor  and  services  furnished, 
and  if  such  contract  was  made,  it  can  make  no  difference  to  the 
plaintiff's  right  to  recover  in  this  action  what  rate  of  wages  he 
paid  to  his  carpenters.  He  would  have  the  right  to  recover  accord- 
ing to  the  contract,  without  regard  to  the  amount  the  labor  cost 
him.15 

§  713.  Employment  for  Certain  Period  Presumed  to  Continue  at 
Same  Rate,     (a)     The  court  instructs  the  jury  that  if  they  should 

12_Mansfield    v.    Morgan,    supra.  Riven.    This  is  the  clear  purport  of 

13_West.     M.    M.      Ins.      Co.     v.  said  words,  and  it  is  impossible  to 

Boughton,    136    111.    317    (320),    26   N.  believe    that    the    jury    could    have 

E.    591.  understood  them  as  assuming  that 

"It  is  clear  that  the  words  'term  the    plaintiff    at    the    time   he   was 

nf  his   employment*  as  used  in  the  discharged    was    serving   under   an 

instruction      were      intended      and  existing  contract   for  a  year." 

must  have  been  understood  by  the  14 — Gibson  v.  Wild,  124  la.  152,  99 

jury  to  refer  to  the  whole  term  or  N.  "W.  569. 

period    of     service     during     which  15 — Glucose  S.  R.  Co.  v.  Flinn,  184 

such  monthly  settlements  were  had  111.   123   (126),   aff'g   85  111.   App.   131, 

and     such     receipts    and    vouchers  56  N.   E.   400. 


508  FORMS  OF  INSTRUCTIONS.  [§  714. 

find  that  a  contract  for  $1,000  per  year  in  payment  for  services  was 
made,  the  agreement  would  be  presumed  to  continue  from  year  to 
year  during  the  time  the  plaintiff  should  continue  in  the  defendant's 
employ,  unless  the  contract  was  in  some  way  changed  by  an  agree- 
ment of  the  parties ;  and  the  burden  of  proving  such  change  or  modi- 
fication would  be  upon  the  party  claiming  it.16 

(b)  The  court  instructs  the  jury,  that  where  a  person  enters  the 
employ  of  another  under  a  special  contract,  fixing  the  time  of  ser- 
vice and  the  price  to  be  paid  therefor  and  he  continues  in  such  em- 
ployment after  the  term  has  ended,  without  any  new  contract  or 
agreement,  he  will  be  considered  as  holding  under  the  original  con- 
tract, so  far  as  the  price  of  his  labor  is  concerned.  17 

§  714.  Rate  of  Compensation  Changes  with  Change  in  Work.  The 
rule  that  where  a  servant  employed  at  a  definite  rate  of  wages  for  a 
specific  term  continues  after  the  expiration  of  the  term  in  the  same 
service,  the  parties  are  presumed  to  have  agreed  to  the  same  rate 
of  wages  does  not  apply  where  the  character  of  the  services  are, 
by  the  concurrence  of  both  parties,  entirely  changed,  so  that  addi- 
tional privileges  are  accorded  to  the  servant  and  the  character  of 
the  work  and  the  measure  of  responsibility  are  entirely  changed.18 

§  715.  Accepting  Work  as  Full  Performance — No  Waiver  of  Un- 
known Defects,  (a)  If  the  jury  believe,  from  the  evidence,  that  the 
defendant  inspected  the  work  in  question,  accepted  the  work  done  and 
quality,  and,  with  such  knowledge,  accepted  the  work  done  and 
materials  furnished  by  the  plaintiff  as  in  compliance  with  and  a 
full  performance  of  the  contract  on  plaintiff's  part,  then  the  plain- 
tiff is  entitled  to  recover  whatever,  if  anything,  the  jury  shall  find, 
from   the  evidence,  is  unpaid  upon  the  contract  price.19 

(b)  The  court  instructs  the  jury,  that  when  a  party  accepts 
work  done  for  him,  or  material  furnished,  he  does  not  thereby  waive 
objections  to  any  latent  defects  that  may  be  in  the  work  or  in  the 
materials,  and  which,  at  the  time  of  acceptance,  are  not  open  to 
inspection  and  are  not  known  to  him.20 

§  716.    Negotiations  for  Settlement— Unaccepted  Offer  Not  Binding. 

The   jury  are   instructed,  that  the  plaintiff  is  in   no  manner  bound 

by  any  offer  that  he  may  have  made  to  accept  $ in  settlement 

of  his  claim  provided  the  jury  believe,  from  the  evidence,  that  such 
offer  was  made  solely  for  the  purpose  of  bringing  about  an  amicable 
settlement  with  defendant,  or  by  way  of  compromise;  nor  in  such 
case  should  such  offer  be  regarded  as  an  admission  that  no  more 
than   that  sum  was   due.21 

16— Led  is- h  v.   TCeever,   5  Neb.  227  18— Ledierh  v.  Keever,  5  Neb.  207 

(unof.),  97   N.   W.    801   (802).  (unof.).  97  N.  W.   801   (803). 

17— Orover  &  Baker  S.   M.  Co.  v.  19— Strawn    v.    Cogswell,     2S     111. 

Bulkley,    48   111.   189;    Vail   v.    N.   J.,  457. 

etc..  Co.,  32  Barb.  564;  Ranck  v.  Al-  20— Korf  v.  Lull.  70  111.  420;  Gar. 

bright,  36  Benn.   St.   367.  field  v.   Huls.  54  111.  427. 

21— Monell  v.   Burns,  4  Denio  121. 


§  717.]  CONTRACTS— OF   SERVICE.  509 

§  717.  Failure  to  Make  Agreed  Monthly  Payments  for  Services. 
If  the  jury  believe,  from  the  evidence,  that  the  seiwices  claimed 
and  sued  for  in  this  suit,  were  rendered  under  a  contract  to  work 
for  a  longer  time  than  the  plaintiff  did  work,  and  that  the  defend- 
ant was  to  make  monthly  payments  for  such  services,  by  the  terms 
of  the  same  contract,  and  that  he  failed  to  make  such  payments 
as  stipulated,  then,  upon  such  failure,  the  plaintiff  had  a  right  to 
abandon  the  service  and  to  collect  of  the  defendant  what  the  serv- 
ices rendered  would  amount  to  at  the  stipulated  price.22 

§  718.  Quantum  Meruit  Recoverable  for  Substantial  Perform- 
ance, (a)  The  rule  of  law  is,  that  when  a  job  of  work  is  actually 
and  substantially  performed,  though  not  in  exact  conformity  with 
the  contract  in  immaterial  particulars,  or  with  variations  assented 
to  by  the  employer,  or  when  the  employer  accepts  the  work  as  and 
for  a  completed  performance  of  the  contract,  then  the  workman 
may  recover  for  his  work  and  labor  what  the  same  are  reasonably 
worth.23 

(b)  The  law  is,  that  when  a  party  makes  a  special  agreement  to 
do  certain  work  in  a  particular  manner,  within  a  fixed  time,  and 
he  fails  to  do  it  in  the  manner  or  within  the  time  agreed,  yet,  if  he 
acts  in  good  faith,  and  the  other  party  receives  any  benefit  from 
the  work  which  is  done,  the  law  implies  a  promise  by  him  to  pay 
such  sum  therefor  as  the  benefit  which  he  receives  is  reasonably 
worth  to  him.24 

§  719.  Entire  Contract  of  Hiring — Recovery  of  Quantum  Meruit 
After  Breach  by  Employee.  The  law  is,  that  when  a  person  agrees 
to  work  for  another  for  a  fixed  and  definite  pei'iod,  and  he  per- 
forms labor  under  such  contract  which  is  of  benefit  or  value  to  the 
employer,  and  then  leaves  before  the  expiration  of  the  term  for 
which  he  was  hired,  without  his  employer's  consent  and  without 
reasonable  cause,  although  he  cannot  enforce  payment,  according 
to  the  contract,  he  is  entitled  to  recover  what  his  services  are  reason- 
ably worth,  over  and  above  the  damages  sustained  by  the  employer 
from  the  breach  of  the  contract  by  the  laborer,  less  any  payments 
which  may  have  been  made  on  the  contract.25 

§  720.  Entirety  of  Contract — Employee  Forced  Out  May  Recover 
on  Quantum  Meruit,  (a)  The  court  instructs  the  jury,  that  while 
the  law  is  that  a  person  who  engages  to  labor  for  another  for  a 
specified  period,   at  a  given   price,   has  no   right   to  recover  for  his 

22^Folliott  v.  Hunt,  21  III.   654.  363;   Parks  v.   Steed,   1   Lea  (Tenn.) 

23— White    v.     Hewitt,    1     E.     D.  206. 

Smith    395;     Dermott    v.    Jones,    23  25—2  Pars,  on  Cont.,  38;  Pixler  v. 

How.  220;  Dutro  v.  Walter,  31  Mo.  Nichols,  8  la.  106,  74  Am.  Dec.  298; 

516.  Britton  v.   Turner,   6  N.   H.   481,   26 

24— Snow   v.   Ware,     13     Met.     42;  Am.  St.  Rep.  713;  Fenton  v.  Clarke. 

Veazie  v.  Bangor,  51  Me.  509;  Blood  11    Vt.    560;    Ralston    v.     Kohl,     30 

v.    Enos,    12   Vt.    625,    36   Am.    Dec.  Ohio  St.  92,  27  Am.  Rep.  422;  Eakin 

v.    Harrison,    4   McCord    (S.  C.)    249. 


510  FORMS  OF  INSTRUCTIONS.  [§  721. 

work,  etc.,  unless  he  performs  his  entire  contract,  or  is  excused  there- 
from by  the  employer,  or  is,  in  some  manner,  justified  in  quitting 
before  the  expiration  of  the  time;  yet  if  he  is  prevented  from  per- 
forming his  contract  by  the  ennployer,  or  is  discharged  without  reason- 
able cause  from  his  employment,  or  is,  from  ill-usage  by  his  em- 
ployer, compelled  to  abandon  the  service,  he  may  then  recover  what 
his  labor,  actually  performed,  will  amount  to  at  the  contract  price.20 
(b)  It  is  the  law  that  if  an  employer  terminates  a  contract  with- 
out any  fault  on  the  part  of  the  employee  or  contractor,  that  then 
the  employee  or  contractor  may  sue  upon  the  contract  to  recover 
damages,  or  he  may  sue  in  assumpsit  upon  the  common  counts,  as 
they  are  called — the  quantum  meruit — to  recover  what  his  serv- 
ices were  worth.  That  does  not  mean  what  they  were  worth  to  the 
employer.  It  is  their  fair  value ;  that  is,  the  market  value  of  such 
work  and  labor.  The  main  question  is  first  as  to  whether  the  con- 
tract was  performed  up  to  that  time  by  the  plaintiffs.  If  it  was 
not,  then  the  defendant  had  the  right  to  stop  the  work  and  dis- 
charge them,  and  they  could  not  recover.  Then  comes  the  question 
as  to  the  discharge.  The  burden  of  proof  is  upon  the  plaintiffs  in 
the  case,  so  that  if  you  find  [from  the  evidence]  that  the  contract 
was  performed  up  to  that  time  by  the  plaintiffs,  but  still  that  they 
were  not  discharged  but  stopped  the  contract  without  being  dis- 
charged, then  they  cannot  recover  in  this  case  at  all.  If  that  were 
the  case,  then  the  plaintiffs  could  recover  only  upon  the  ground  that 
their  work  had  been  of  value  to  the  defendant.27 

§  721.  Same  Subject — Damages  for  Wrongful  Discharge — Dili- 
gence in  Seeking  New  Employment,  (a)  I  charge  you,  gentlemen 
of  the  jury,  that  if  you  believe,  from  the  evidence,  that  plaintiff  and 
defendants  made  a  contract  whereby  plaintiff  was  to  work  for  de- 
fendants for  the  year  1897  at  the  price  of  $ and  that  plaintiff 

entered  on  the  performance  of  the  contract  without  just  excuse  or 
provocation,  the  defendants  discharged  plaintiff,  and  plaintiff  [in 
good  faith  and  with  reasonable  diligence]  tried  to  get  work  in  the 
community  of  H.  of  a  similar  kind  to  that  he  was  employed  by 
defendants  to  do  and  failed,  then  the  plaintiff  is  entitled  to  recover 
whatever  difference  there  Avas  between  the  amount  paid  to  plaintiff, 
and  the  $ agreed  to  be  paid.28 

(b)  If  you  find  that  plaintiff  was  discharged  from  his  said  em- 
ployment consider  the  second  matter  already  indicated.  After  plain- 
tiff's discharge,  if  discharged,  did  plaintiff  use  reasonable  diligence 

26 — Ang-el  v.  Hanr.a,  22  111.  429,  74  vented  from  performing  the  con- 
Am.  Dec.  161;  Mitchell  v.  Scott,  41  tract,  they  are  entitled  to  recover, 
Mich.  108;  Webb  v.  U.  M.  L.  Ins.  if  at  all,  what  their  work  and  la- 
Co.,   5  Mo.   App.  51.  bor    is    worth,    whether    it    was    of 

27 — Mooney   et   al.    v.    York   Iron  value  to  the  defendant  or  not." 

Co.,  82  Mich.   263,  46  N.  W.   376.  28— Hartsell      v.      Masterson,      132 

The   court   said:     "Where,    as   in  Ala.  275,   31   So.  616   (617). 
this    case,    the    plaintiffs*  are    pre- 


§722.]  CONTRACTS— OF  SERVICE.  511 

to  secure  employment  at  said  place?  The  burden  is  upon  plaintiff  to 
show  that  he  did.  If,  then,  upon  considering-  this  matter,  you  find 
and  believe  from  the  evidence  that  plaintiff  did  use  reasonable  dili- 
gence  to  secure   employment,   and   failed,   then  you  may   allow   him 

on   account   of   this   against   defendants   $ for   each  day   that   he 

remains  at  said  N.  after  said  discharge  and  failed  to  find  employ- 
ment. You  will  observe  that  there  will  remain  some  time  from  the 
time  plaintiff  left  N.  to  go  to  S.,  to  the  end  of  said  three  months, 
to  wit, — 1900.  Now,  as  to  that  time,  if  you  find  and  believe  from 
the  evidence  that  no  employment  could  then  have  been  had  by  the 
use   of  reasonable   diligence   at   said   C.   N.   by  plaintiff  up   to   said 

1900,  then  you  may  allow  him  on  account  of  such  time 

the  sum  of  $ per  day  for  each  day  thereof.     The  total  amount, 

if  anything,  allowed  by  you  for  plaintiff,  shall  not  exceed  the  sum 

of  20  days,  at  dollars  per  day,  with  interest  on  the  amount  so 

allowed  by  you,  if  anything. 

(c)  "Reasonable  diligence"  as  used  in  these  instructions,  as 
meant  by  them,  is  such  diligence  as  a  man  of  ordinary  care  and 
prudence,  desiring  work,  would  make,  under  the  circumstances  sur- 
rounding plaintiff  at  said  place,  to  get  it.  In  other  words,  the 
reasonable  diligence  that  plaintiff  should  have  made  at  said  place 
to  obtain  employment  is  such  care  or  diligence  as  such  a  man  at 
such  a  place,  desiring  work,  would  ordinarily  and  reasonably  make 
to  get  it.  As  to  what  such  effort  or  diligence  is  in  this  case,  you 
are  to  determine  from  the  facts  and  circumstances  surrounding  the 
matter  at  the  time  in  question.29 

§  722.  Same  Subject — Employee  Quitting  During  Term  Without 
Cause,  (a)  The  court  instructs  the  jury,  that  where  one  is  hired 
for  a  definite  time  and  leaves  his  employer  against  his  employer's 
consent,  and  without  his  fault,  before  such  time  has  expired,  he 
can  recover  nothing  for  the  work  he  has  done;  and  this  rule  holds 
as  well  where  the  wages  are  computed  by  the  month,  or  week,  as 
where  they  are  computed  for  a  gross  sum  for  the  whole  time.  The 
contract  in  such  cases  is  entire,  and  the  performance  of  the  whole 
service  is  a  condition  precedent  to  the  laborer's  right  of  recovery.30 

(b)  The  court  instructs  you,  that  a  contract  to  work  for  a  given 
number  of  months,  at  a  fixed  price  per  month,  is  an  entire  contract 
for  the  whole  number  of  months  agreed  upon,  and  when  a  person 
agrees  to  work  for  another  for  a  given  number  of  months,  and  to 
perform  such  services  as  are  incident  to  his  employment,  at  a  fixed 
price  per  month,  if  he  quits  such  service  before  the  expiration  of 
the  number  of  months  agreed  upon,  without  a  good  and  sufficient 
cause,  and  without  the  consent  of  his  employer,  he  cannot  recover 
for  the  work  which  he  has  already  performed.31 

29— Gillespie    v.    Ashford,    125    la.  dard,   34  Me.   102,   56  Am.   Dec.   638; 

729,   101  N.  W.   649.  Reab.  v.  Moor,  19  Johns.  337;  Web- 

30— 2    Pars,    on    Cont.   36;    3   Page  ster  v.  Wade,  19  Cal.  291. 

on  Contracts   §  1485,   Miller  v.   God-  31— Hensell    v.    Errickson,    28    111. 


512  FORMS  OF  INSTRUCTIONS.  [§  723, 

§  723.  Same  Subject— Sickness  as  Cause  for  Employee's  Leaving, 
The  jury  are  instructed,  that  even  if  they  believe,  from  the  evidence 
that  the  work  sued  for  in  this  case  was  done  under  a  special  con- 
tract, by  which  the  plaintiff  agreed  to  work  for  a  fixed  and  specified 
time,  and  that  plaintiff  left  defendant's  employ  before  the  ex- 
piration of  that  time,  still,  if  the  jury  further  believe,  from  the 
evidence,  that  plaintiff  was  compelled  to  so  quit  work  on  account 
of  sickness  (or  on  account  of  sore  eyes),  then  he  would  be  entitled 
to  recover  for  the  time  he  actually  did  work  at  the  agreed  price, 
if  the  jury  find,  from  the  evidence,  that  there  was  an  agreed  price 
between  the  parties;  and  if  the  jury  find  there  was  no  agreed  price, 
then  what  such  labor  was  reasonably  worth.32 

§  724.  Improper  Conduct  Ground  for  Discharge — Association  with 
Woman,  (a)  The  court  instructs  the  jury,  that  when  a  person  is 
employed  by  another  he  must,  in  his  intercourse  with  his  employer 
and  those  having  control  of  his  business,  and  with  those  doing 
business  with  such  employer,  abstain  from  all  vulgarity  and  ob- 
scenity of  language  and  conduct,  if  required  to  do  so,  and  must  be 
respectful  and  obedient  to  the  reasonable  commands  of  his  employer 
and  those  having  control  of  his  business.  And  a  failure  in  any  of 
these  requirements  would  be  good  ground  for  discharging  such  per- 
son before  his  term  of  employment  expires.33 

(b)  If  the  jury  believe,  from  the  evidence,  that  at  the  time  of 
entering  into  the  contract  plaintiff  promised,  as  a  condition  thereof, 
he  would  refrain,  during  such  employment,  from  publicly  associating 

with V ,  but  during  the  employment  did  openly  and 

publicly  associate  with  her,  the  verdict  should  be  for  the  defendant.34 

§  725.  Want  of  Skill  or  Diligence — Right  to  Discharge— Counter- 
claim, (a)  When  a  person  engages  to  work  for  another,  he  im- 
pliedly contracts  that  he  has  a  reasonable  amount  of  skill  for  the 
employment,  and  that  he  will  use  it,  as  well  as  reasonable  cai'e  and 
diligence ;  and  a  failure  to  do  so,  to  the  injury  of  his  employer,  will 
prevent  him  from  receiving  the  full  contract  price.  The  employer 
may  recoup  or  set  off  against  the  contract  price  the  damages  he  may 
sustain  for  want  of  reasonable  skill,  or  the  observance  of  reason- 
able care  and  diligence  in  the  performance  of  the  work,  if  the  same 
are  proved  by  the  evidence.35 

(b)     If  you  believe,  from  the  evidence,  that  the  plaintiff  repre- 

257;  2  Pars,  on  Cont.  36;  3  Page  on  and  the  woman  referred  to  was  one 

Contracts  1485.  to   whom    he    owed    no    legal   duty 

32 — 'Hubbard    v.     Belden,    27    Vt.  and  public   association  with   whom 

645;  Green  v.  Gilbert,  21  Wis.  395.  was  claimed  to  lessen  his  efficiency 

33 — Hamlin  et  al.  v.   Race,  78  111.  as   a  salesman.     The  court   said   it 

422;   Brink  v.   Fay,   7  Daly   (N.   T.)  knew    of   no    rule    of    public    policy 

562.  that  would  prevent  the  making  or 

34 — Gould  v.  Magnolia  Metal  Co.,  enforcement    of    such    a    contract. 

207  111.  172  (179),  69  N.  E.  896.  35—2    Pars,    on    Cont.    54;    Parker 

Plaintiff  was  a  married  man  em-  v.  Piatt,  74  111.  430. 
ployed    as   salesman   by   defendant 


§726.]  CONTRACTS— OF  SERVICE.  513 

sented  to  the  defendant  that  he  was  experienced  and  skilled  in  the 
business  of  (making  cheese),  and  that  he  Avas  employed  by  the  de- 
fendants in  that  business,  then  there  was  an  implied  warranty  on 
his  part,  that  his  work  should  be  done  in  an  ordinarily  good  and 
workmanlike  manner;  and  if  you  further  believe,  from  the  evidence, 
that  the  plaintiff  was  not  skilled  or  experienced  in  said  business,  and 
did  not  do  his  work  in  an  ordinarily  good  and  workmanlike  manner, 
then  the  defendant  had  a  right  to  discharge  him  from  such  em- 
ployment.36 

(c)  If  you  find  from  the  testimony,  that  the  plaintiff  did  this 
work  in  a  reasonably  careful  and  skillful  manner — in  such  manner 
as  dentists  of  ordinary  standing  or  good  standing  in  this  com- 
munity or  this  vicinity  would  have  done  it — and  that  the  price 
charged  is  a  reasonable  price,  then  you  should  return  a  verdict  in 
favor  of  the  plaintiff  for  the  full  amount  claimed.37 

§726.  "Ordinary  Skill"  Defined.  The  jury  are  instructed,  that 
what  is  meant  by  ordinary  skill,  in  these  instructions,  means  that  degree 
of  skill  which  men  engaged  in  that  particular  art  or  business  usually 
employ;  not  that  which  belongs  to  a  few  men  only  of  extraordinary 
endowment  and  capacities,  but  such  as  is  generally  possessed  by  men 
engaged  in  the  same  business.38 

§  727.  Counterclaim  for  Goods  Lost  through  Defects  in  Machinery. 
If  the  jury  believe,  from  the  evidence,  that  plaintiffs  were  the  owners 
of  a  clover  machine  which  they  ran  about  the  country  for  hire,  and 
that  the  defendant  employed  tliem  to  thresh  his  clover  seed  at  $2  per 
bushel,  and  that  they,  the  plaintiffs,  undertook  and  performed  said 
threshing  with  said  machine,  knowing  that  it  was  then  and  there 
defective  and  out  of  repair,  either  in  the  huller  or  otherwise,  and  that 
in  consequence  of  said  defects  a  large  part  of  defendant's  clover  seed 
was  lost,  and  that  thereby  defendant  was  damaged  in  an  amount 
equal  to  or  greater  than  the  sum  so  agreed  to  be  paid  for  said  thresh- 
ing, then  the  law  is  for  the  defendant  and  the  jury  should  so  And.39 

§  728.  Services  by  a  Member  of  the  Family — No  Implied  Promise 
to  Pay  For.  (a)  The  court  instructs  the  jury,  that  while  it  is  the 
general  rule  of  law,  that  where  one  renders  services  for  another,  which 
are  accepted  by  the  other,  the  law  will  imply  a  promise  to  pay  for 
such  services ;  yet,  if  such  services  are  rendered  by  one  who  is  a  mem- 
ber of  the  family,  receiving  support  therein  as  such,  then  no  such  im- 
plication arises ;  nor  can  a  recovery  be  had  for  services  so  rendered, 
except  upon  evidence,  showing  a  promise  to  pay  for  the  same,  or  such 
facts  and  circumstances  as  lead  the  jury  to  believe,  from  the  evidence, 
that  it  was  understood  by  the  parties  that  the  services  were  to  be 
paid  for.40 

36— Parkham    v.    Daniel,    56  Ala.         38— Waugh  v.  Shunk,  20  Penn.  St. 

604.  130. 

37— Harrington      v.      Priest,  104         39— Garfield    v.    Huls.    54    111.   427. 

Wis.   362,  80  N.  W.  442.  40— Thorp    v.    Bateman,    37    Mich. 

33 


514  FORMS  OF  INSTRUCTIONS.  [§  729. 

(b)  The  court  instructs  the  jury,  that  although  a  child  may  be 
over  age,  still,  as  long  as  the  relation  of  parent  and  child  continues  to 
exist  the  same  as  before  he  became  of  age,  the  law  raises  no  implied 
promise  to  pay  for  the  services  of  the  child.41 

(c)  If  you  believe,  from  the  evidence,  that  when  the  services  in 
question  were  performed,  the  plaintiff  lived  with  his  father,  the  same 
as  his  other  children  did,  and  apparently  the  same  as  he  had  done 
before  coming  of  age;  then  to  entitle  him  to  recover,  it  is  incumbent 
upon  the  plaintiff  to  prove,  by  a  preponderance  of  evidence,  an  ex- 
press hiring  or  promise  to  pay,  or  circumstances  from  which  such 
hiring  or  promise  may  reasonably  be  inferred.42 

§  729.  Intention  or  Expectation  to  Be  Paid  Must  Be  Mutual,  (a) 
If  you  believe,  from  the  evidence,  that  the  plaintiff  was  living  with  his 
father  as  a  member  of  his  father's  family  when  the  work  in  question 
was  done,  then  it  is  not  enough  that  the  plaintiff  intended  or  expected 
to  be  paid  for  his  labor — this  intention  or  expectation  must  have  been 
mutual.  It  is  not  necessary  that  there  should  have  been  any  express 
contract  in  so  many  words  between  the  parties,  but  besides  the  mere 
doing  of  the  work  under  the  direction  of  the  father,  in  order  to  war- 
rant a  verdict  for  the  plaintiff,  the  jury  must  believe  from  the  evi- 
dence, that  when  the  work  was  done  there  was  an  expectation  of  re- 
ceiving pay  on  the  part  of  the  plaintiff  and  an  intention  to  pay  on 
the  part  of  the  father.43 

(b)  If  the  jury  believe  from  the  evidence  that  the  plaintiff  and  her 
uncle,  N.  G.,  were  both  members  of  her  father's  family,  and  that  the 
services  of  the  plaintiff  for  which  she  here  sues  were  rendered  as  a 
member  of  the  family  and  in  contributing  towards  her  part  of  the 
work  of  the  family,  the  fact  that  N.  G.  immediately  or  incidentally 
became  the  beneficiary  of  her  said  services  will  not  authorize  a  re- 
covery by  the  plaintiff  in  this  case;  and,  before  the  jury  will  be 
authorized  to  find  for  the  plaintiff,  they  must  believe  from  the  evi- 
dence that  the  plaintiff's  said  services  were  rendered  to  and  at  the 
instance  or  request  of  said  N.  G.,  and  with  the  intention  and  expecta- 
tion or  agreement  on  the  part  of  both  of  them  that  she  should  be  paid 
by  him  therefor. 

(c)  If  the  jury  believe  from  the  evidence  that  the  plaintiff  within 
the  time  beginning — did,  at  the  instance  or  request  of  N.  G.,  render 
to  him  services  or  labor  in  the  way  of  looking  after  and  keeping  clean 
and  in  order  his  room  in  the  house  in  which  he  lived,  making  up  and 
dressing  his  bed,  mending,  washing  and  darning  his  clothing,  or  in 
cooking  for  the  family  of  which  he  was  a  part,  or  did,  after  her 
father's  family  and  said  N.  G.  ceased  to  occupy  the  same  house,  at 

fiR:    Smith  v.    Johnson,  45    la.    308;  Perkins,     43   Wis.     160;     Adams    v. 

Sprague     v.     Waldo,     38     Vt.     139,  Adams,  23  Ind.  50;  Smith  v.  Smith, 

Davis    v.    Goodenow,     27     Vt.     715;  30  N.  J.   Eq.   564. 

Hnvs  v.   McConnell,   42   Ind.  285.  42— Steel  v.  Steel,  12  Penn.  St.  64; 

41— Miller   v.    Miller,    16    111.    296;  Hiblish  v.  Hiblish,  71  Ind.  27. 

Hart  v.  Hess,  41  Mo.  441;  Wells  v.  43— Hiblish  v.  Hiblish,  71  IndL.  2.7, 


§  730.]  CONTRACTS— OF  SERVICE.  515 

the  instance  or  request  of  said  N.  G.,  cook  his  meals,  carry  them  to 
his  room  in  cold  weather,  wash  or  mend  his  clothing,  dress  and  keep 
in  order  his  room,  or  perform  such  general  housework  for  him;  and 
shall  further  believe  from  the  evidence  that  said  service  and  work, 
if  any,  was  rendered  by  the  plaintiff  with  the  intention  and  expecta- 
tion on  her  part  and  the  intention  and  expectation  or  agreement  on 
said  N.  Gr.'s  part  that  she  should  be  paid  therefor, — they  should  find 
for  the  plaintiff  the  customary  and  reasonable  value  of  her  services 
and  labor  so  rendered  by  her,  if  any,  as  shown  by  the  evidence,  to 
said  N.  G.,  not  to  exceed  $ per  month  nor  $ in  the  aggregate. 

(d)  Upon  the  other  hand,  although  the  jury  may  believe  from  the 
evidence  that  labor  and  services  were  performed  by  the  plaintiff  for 
said  N.  G.  of  the  character  described  in  her  petition,  and  at  his  in- 
stance and  request,  and  if  they  further  believe  from  the  evidence  that 
the  same  were  performed  without  any  intention  at  the  time  upon  her 
part  to  charge  her  uncle  therefor,  or  intention  or  agreement  on  his 
part  to  pay  therefor,  the  law  will  presume  that  such  labor  or  services 
were  performed  gratuitously,  and  in  that  event  the  jury  should  find 
for  defendant.44 

§  730.  Extent  of  Relationship  Required — Rendering  of  Services  is 
Prima  Facie  Evidence  of  Acceptance,  (a)  If  the  jury  find  that  the 
plaintiff  rendered  valuable  personal  services  to  and  for  the  benefit  of 

the  late during  her  lifetime,  at  her  request,  and  shall  further 

find  that  said ,  in  consideration  of  said  services,  promised 

to  reward  the  plaintiff  for  said  services,  and  did  not  perform  said 
promise,  then  the  jury  shall  find  for  the  plaintiff  against  the  admin- 
istrator of  said  for  the  value  of  said  services  according 

to  the  proof  in  the  case,  provided  the  jury  shall  find  that  said  promise 
was  made  to  take  effect  within  three  years  prior  to  the  institution  of 
this  suit. 

(b)  The  fact  that  the  plaintiff  was  a  nephew  of  the  deceased  hus- 
band of ,  if  the  jury  so  find,  does  not  make  him  a  member 

of  her  family;  and  if  the  jury  shall  find  that,  not  being  a  member  of 
her  family,  the  plaintiff  rendered  useful  and  valuable  personal  services 

to  and  for  the  benefit  of  said  during  her  lifetime,  the  fact 

of  rendering  such   services  furnishes   prima  facie  evidence   of  their 

acceptance  by  the  said ,  and,  in  the  absence  of  proof  to  the 

contrary,  of  any  express  contract,  raises  an  obligation  to  pay  what 
they  were  worth;  and,  if  the  jury  shall  find  that  such  payment  has 
not  been  made,  they  shall  find  for  the  plaintiff  in  such  a  sum,  pro- 
vided they  shall  find  that  the  defendant  is  the  administrator  of 
said  .''' 

§  731.  Father  Not  Bound  to  Pay  a  Daughter  Though  of  Age,  for 
Work  Done  by  Her  While  Living  at  Home  and  as  a  Member  of  the 
Family,  Except  by  Agreement — Series,     (a)     If  you  should   find   in 

44— Galloway's  AdnVr  v.  Gallo-  45— Gill  v.  Staylor,  93  Md.  453,  49 
way,  24  Ky.  857,  70  S.  W.  48.  Atl.  650. 


516  FORMS  OF  INSTRUCTIONS.  [§  731 

this  cause  that  the  plaintiff  is  the  daughter  of  the  defendant,  and 
that  she,  at  or  about  the  time  alleged  in  the  complaint,  went  to  live 
with  her  father  under  an  agreement  and  understanding  that  she 
should  live  with  her  father  as  a  member  of  his  family  and  for  her 
services  she  should  have  her  board  and  lodging  and  also  that  of 
her  child,  and  that  she  should  have  in  addition  what  she  could 
make  out  of  the  surplus  eggs  and  butter  and  other  truck  raised  on 
the  farm,  and  no  other  compensation ;  and  that  plaintiff  went  on 
under  such  an  agreement  and  performed  the  services  alleged  in 
the  complaint,  receiving  the  surplus  eggs  and  butter  and  other 
truck,  or  the  proceeds  thereof,  receiving  her  board  and  lodging  and 
that  of  her  child,  then,  and  in  that  case,  the  plaintiff  could  not 
recover. 

(b)  The  plaintiff  is  the  daughter  of  the  defendant,  and  that  fact 
seems  to  be  undisputed,  and  if  while  doing  the  work,  if  you  find  she 
did  the  work  for  which  she  is  claiming  pay,  she  lived  and  made  her 
home  with  her  father  after  arrival  at  the  age  of  majority,  and  as  a 
member  of  her  father's  family,  the  plaintiff  is  not  entitled  to  recover 
anything  for  such  work,  unless  the  evidence  in  the  case  shows  an 
agreement  or  understanding  between  her  and  her  father  that  she 
should  have  pay  therefor.  Ordinarily,  where  one  person  does  work 
for  another,  who  knowingly  permits  the  work  to  be  done  and  receives 
the  benefit,  the  law  raises  and  implies  a  contract  for  a  fair  compensa- 
tion ;  but  there  is  no  such  implied  contract  between  father  and  daugh- 
ter while  living  together  as  members  of  one  family,  and  one  does 
work  for  the  other.  And  if  such  was  the  relation  between  these  par- 
ties, while  the  work  was  being  done,  the  defendant  is  not  liable,  unless 
there  was  an  agreement  or  understanding  between  the  parties  that 
compensation  should  be  made.  It  was  and  is  not  enough  that  this 
plaintiff  herself  expected  or  intended  to  be  paid ;  the  understanding 
must  have  been  mutual.  But  by  this  it  is  not  meant  that  words  must 
have  been  uttered  or  passed  between  the  parties  expressing  the  inten- 
tion but  besides  the  mere  doing  of  the  work  by  the  daughter  for  the 
father  under  her  father's  direction,  if  it  was  so  done,  there  must  be  a 
proof  tending  to  show,  and  enough  to  satisfy  your  minds  of  the  fact, 
that  there  was  an  understanding  between  the  parties,  an  expectation 
of  payment  by  the  daughter,  and  an  intention  to  pay  on  the  part  of 
the  father. 

(c)  If  the  father,  at  the  time  his  daughter  after  arriving  at  ma- 
jority was  working  for  him,  knew  that  his  daughter  was  expecting 
payment  for  the  work  so  done,  and  allowed  her  to  continue  to  work 
in  the  belief,  without  notice  that  he  did  not  intend  to  pay,  he  would 
be  bound  to  pay ;  and  in  this  case  it  is  a  question  of  fact  for  you,  in 
the  light  of  all  the  facts  and  circumstances  in  proof,  to  say  whether 
there  was  any  understanding  or  agreement  between  the  parties. 

(d)  It  is  a  presumption  of  law  that  a  father  is  not  bound  to  pay 
a  daughter,  though  of  age,  for  work  done  by  her  while  living  at  home 
and  as  a  member  of  the  family,  but  this  presumption  may  be  over- 
come by  proof  of  an  agreement  or  understanding  for  compensation, 


§732.]  CONTRACTS— OF  SERVICE.  517 

and  such  understanding  may  be  inferred  from  the  circumstances 
shown  in  evidence,  if  the  jury  deem  the  inference  warranted. 

(e)  If  there  was  an  understanding  between  the  parties  that  the 
work  should  be  paid  for,  and  no  agreement  as  to  the  amount,  you 
should  allow  such  sum  as  under  the  evidence  is  shown  to  have  been 
the  ordinary  and  reasonable  compensation  for  such  work. 

(f)  Where  a  father  and  his  adult  children  live  together  as  mem- 
bers of  the  same  family,  there  is  no  implied  undertaking  on  the  part 
of  either  to  pay  for  services;  but  such  an  undertaking  may  always 
arise  not  only  from  an  express  contract,  but  it  may  be  inferred  from 
the  surrounding  circumstances.46 

§  732.  Stranger  Living  as  a  Member  of  the  Family — Recovery  for 
Services,  (a)  It  is  the  law  that  where  one  person  lives  as  one  of 
the  family  of  another,  being  provided  with  food,  clothing,  lodging 
and  care  as  one  of  the  family,  and  doing  labor  and  work  for  such 
other  person,  and  without  any  contract  relating  to  it,  such  person  can- 
not recover  for  labor  performed,  nor  can  the  other  recover  for  board, 
lodging,  clothing,  etc.  In  such  a  case,  an  action  cannot  be  maintained 
by  either  party. 

(b)     If  you  find  from  the  evidence  that  the  plaintiff,  , 

during  the  time  named  in  her  complaint  lived  in  the  family  of  X,  and 
as  one  of  the  family,  and  was  being  provided  for  by  him  as  one  of 
his  family,  and  without  any  contract  for  wages  or  compensation  for 
her  services,  or  any  understanding  between  them  to  that  effect,  then 
she  cannot  recover  for  such  services  and  labor.47 

(e)  If  the  jury  believe,  from  the  evidence,  that  the  plaintiff 
worked  for  defendant,  and  that  his  time  and  labor  were  reasonably 
worth  more  than  his  board  and  washing,  then  the  plaintiff  is  entitled 
to  recover  what  his  time  and  services  were  reasonably  worth,  over 
and  above  what  he  has  received  or  been  paid,  if  anything,  as  shown 
by  the  evidence;  unless  the  evidence  further  shows  that  the  plaintiff 
agreed  to  do  the  work  for  his  board  and  washing,  or  that  there  was 
some  other  special  contract  between  the  parties  fixing  the  price  of 
the  labor.48 

(d)  The  court  instructs  the  jury  that  where  one  is  taken  into 
the  family  of  another,  and  is  regarded  and  treated  in  every  respect  as 
a  member  of  the  household,  and  is  a  member  of  such  family,  even 
when  there  may  be  no  ties  of  blood,  there  is  no  implied  obligation  to 
pay  for  services  rendered,  on  the  one  hand,  nor  for  board,  schooling, 
clothing,  care  and  medical  attention  on  the  other.49 

46— Story    v.    Story,    1    Ind.    App.  v.  House,  6  Ind.  60;  Oxford  v.  Mc- 

284.   27  N.   E.  573   (574).  Farland,  3  Ind.  156;  Resor  v.  Jor.n- 

The    court    cited    Hilbish    v.    Hil-  son.    1   Ind.   100. 

bish,  71   Ind.  27;   Smith  v.  Denman,  47— Knight  v.  Knight,  6  Ind.  App. 

48  Ind.  65;   Webster  v.  Wadsworth,  268,   33  N.   E.  456. 

44      Ind.       283;       Daubenspeek       v.  48— Wells  v.   Perkins.  43  Wis.  160; 

Powers.   32  Ind.  43;   King  v.   Kelly,  Sword  v.  Keith,  31  Mich.  247. 

28    Ind.    89;    Cauble    v.    Ryman,    26  49— Boyd     v.     Starbuck,     18     Ind. 

Ind.   207;  Adams  v.  Adams.  23  Ind.  App.  310,  47  N.  E.  1079  (1080). 
50;  Pitts  v.  Pitts,  21  Ind.  309;  House 


CHAPTER  XLI. 


DAMAGES— MEASURE  OF. 


See  Erroneous  Instructions,   same  chapter  head,  Vol.  III. 


IN    GENERAL. 

§  733.  Damages — General  and  spe- 
cial  defined. 

§  734.  Liability  to  be  settled  first- 
Damages. 

§  735.  Question  of  appeal  if  large 
judgment  is  rendered  should 
not   be  considered   by  jury. 

§  736.  Damages  limited  to  claim 
in  complaint — Whether  in- 
terest should  be  allowed — 
Computation  of. 

§  737.  Interest  on  money  withheld 
by  an  unreasonable  and 
vexatious  delay. 

§  738.  Exemplary    damages   defined. 

ATTACHMENT — GARNISHMENT. 

§  739.  Wrongful  attachment— Ele- 
ments  of  damage. 

§  740.  Suspension  of  business, 
proper  elements  of  damage. 

§  741.  Issuance  of  attachment  with- 
out statutory  grounds  there- 
for. 

§  742.  Wrongful  attachment — Acts 
of  malice — Punitive  dam- 
ages. 

§  743.  Action  on  garnishment  bond 
— Loss  of  credit — Business 
injured. 

CONTRACTS    AND    SALES. 

§  744.  Measure  of  damages  for 
breach  of  contract  in  failing 
to  accept  goods. 

§  745.  Refusal  to  accept  personal 
property  —  Difference  be- 
tween contract  price  and 
current  price  at  the  time 
and  place  of  delivery. 

§  746.  Damages  for  breach  of  con- 
tract to  purchase  merchan- 
dise. 

§  747.  Renunciation  of  contract  to 
buy  property. 

§  748.  Refusal  to  deliver  personal 
property  —  Difference  be- 
tween contract  price  and 
market  price  at  place  of  de- 
livery. 


§  749.  Measure  of  damages  where 
property  is  not  delivered 
within    specified    time. 

§  750.  Property    bought    for     resale. 

§  751.  Plaintiff  deprived  of  oppor- 
tunity to  perform  his  con- 
tract— Gains  prevented  by 
breach. 

§  752.  Breach  of  contract  to  ship 
coal. 

§  753.  Defects  in  articles  manu- 
factured. 

§  754.  Failure  to  contribute  money 
to  joint  venture. 

§  755.  Contract  providing  against 
competitors  —  No  damages 
proven. 

§  756.  Measure  of  damages  for 
failure  to  furnish  goods  of 
the  quality  provided  for  in 
the   contract. 

§  757.  Damages  for  defective  setting 
of  furnace — Placing  furnace 
by    request    of    defendant. 

§  758.  Measure  of  damages  for  non- 
payment— Unreasonable  and 
vexatious   delay — Interest. 

§  759.  Punitive  damages  not  al- 
lowed— In  suit  on  con- 
tract. 

§  760.  Damages — Amount  expended 
in  removing  defective  pipes 
not  reasonably  fit  for  the 
purpose  intended — Series. 

§  761.  Building  contracts — Defect- 
ive  construction. 

§  762.  Discharge  of  servant — Actual 
loss  of  wages,  if  immediate 
and  direct  result,  measure 
of. 

§  763.  Discharge  of  employee — 
Tendering  employment  in 
same  city,  same  business, 
same  salary  and  same  du- 
ties,   good    defense. 

§  764.  Action  for  commissions. 

CONTRACTS      OF     MARRIAGE — BREACH 
OF. 

§  765.  Breach  of  promise  to  marry 
— What  to  consider  in  as- 
sessing damages — Length  of 
time,    etc. 


518 


DAMAGES,   MEASURE  OF. 


519 


§766. 
§767. 

§768. 

§  769. 
§  770. 

§  771. 

§772. 

§773 

§774 
§775 
§776 

§777 


Character  and  habits  of 
plaintiff— What  may  be 
shown  in   mitigation. 

Seduction  of  plaintiff  after 
contract  of  marriage  was 
made — Aggravation  of  dam- 
ages. 


CONVERSION. 
Value  of  property  at  time  of 

conversion    with    interest. 
Conversion   of   cross-ties. 
Conversion     of     timber     and 

"iron    dogs." 
Cutting,    carrying   away    and 

destroying   timber. 
Removal   of   partition  fence. 

CRIMINAL  CONVERSATION — 
SEDUCTION. 

.  What  may  be  considered  in 
assessing  damages  —  Rela- 
tions between  plaintiff  and 
his  wife — Statements  of 
wife  to  plaintiff. 

.  Wounded  feelings  and  affec- 
tions of  husband — Domestic 
and    social    relations. 

.  Debauching  plaintiff's  wife 
without  the  aid  or  procure- 
ment of  plaintiff. 

,  Compensation  for  injury  and 
damage  suffered  —  Shame 
and  ridicule,  mental  an- 
guish and  distress. 

,  Seduction — What  may  be 
considered  in  assessing 
damages. 


INTOXICATING  LIQUORS. 

§  778.  Death  from  intoxication- 
Suit  by  widow — Exemplary 
damages — Aggravating  cir- 
cumstances. 

§  779.  What  to  consider  in  deter- 
mining whether  to  give  ex- 
emplary   damages. 

§  780.  No  allowance  for  mortifica- 
tion or  mental  suffering  of 
plaintiff  or  surviving  rela- 
tive. 

§  781.  Damages  from  intoxication 
— Loss   of   support. 

LIVE     STOCK— INJURIES     TO. 

§  782.  Cattle  damaged  or  injured  in 
transportation — Overloading. 

§  783.  Same  subject — Difference  in 
value  in  their  injured  con- 
dition and  the  condition 
they  would  have  been  in  if 
not  injured  —  Enumerated 
questions   of    fact. 

§  784.  Cows  or  heifers  being  with 
calf  at  the  time  of  collision 
— Aborted  their  calves  in 
consequence. 


§  785.  Injuries  to  horses  while 
being  transported — Rule  of 
damages. 

MALICIOUS      PROSECUTION — FALSE 
IMPRISONMENT. 

§  786.  Malicious  prosecution — What 
to  consider  in  assessing 
damages. 

§  787.  Same  subject  —  Exemplary 
damages. 

§  788.  Injuries  to  feelings — Credit 
and    reputation. 

§  789.  Malicious  prosecution  for  ar- 
rest of  passenger — What 
must  be  shown  by  plaintiff 
— Shame,  mortification,  men- 
tal anguish,  pain  and  injury 
to  feelings  may  be  consider- 
ed in  determining  damages. 

§  790.  Actual  and  punitive  damages 
— Sound   discretion    of   jury. 

§  791.  Trespass  or  false  imprison- 
ment—What to  consider  in 
assessing  damages. 

NUISANCES. 

§  792.  Erection  of  boiler  near  house 
of  another — Less  comfort- 
able,   enjoyable   or  useful. 

§  793.  Defendant's  works  reducing 
selling  value  of  plaintiff's 
property. 

§  794.  Smoke,  noise,  smells,  etc., 
from  defendant's  works — 
Rise  in  selling  value  of 
plaintiff's   property. 

PERSONAL     PROPERTY     GENERALLY — 
INJURIES   TO. 

§  795.  Must  make  reasonable  ef- 
forts to  stop  or  reduce 
damages  to  business  or 
property,  to  recover  for 
loss. 

§  796.  Measure  of  damages  for  fail- 
ure to  use  ordinary  dili- 
gence, etc.,  in  drying,  cur- 
ing, packing,  and  handling 
fruit. 

§  797.  Market  value  of  destroyed 
property — Cost  of  convey- 
ing  same   to   replace   loss. 

§  798.  Escape  of  gas— Injury  to 
flowers. 

§  799.  Damages— Natural  gas  ex- 
plosion in  house — Statement 
of   agent,    negligence. 

§  800.  Goods  lost— Common  carrier 
— Market  value  when  and 
where   to   be    delivered. 

§  801.  Damages  for  proximate  con- 
sequence of  act — No  recov- 
ery for  damages  that  could 
have  been  avoided  by  plain- 
tiff by  reasonable  care. 


520 


FORMS  OF  INSTRUCTIONS. 


[§  733. 


REAL     ESTATE     GENERALLY— 
INJURIES    TO. 

§  802.  Damage  by  fire — Value  of 
land  before  and  after  the 
fire — Damage  to  growing 
timber. 

§  803.  Putting  up  telephone  wires — 
Injury  to  trees. 

§  804.  Market  value  of  acreage  for 
purposes  of    subdivision. 

§  805.  Injuries  to  dock  by  vessel. 

§  806.  Estimating  value  of  a  re- 
versionary interest. 

SHERIFFS. 

§  807.  Recovery  of  damages  for 
taking  of  property  by 
sheriff. 

§  808.  Damages  for  wrongful  seiz- 
ure of  mortgaged  goods — 
Interest. 

§  809.  Suit  on  replevin  bond. 

SLANDER    AND   LIBEL. 

§  810.  Plea  of  justification  must  be 
filed  in  good  faith. 

§  811.  Plaintiff's  bad  reputation 
may    be    shown. 

§  812.  Mental  suffering  produced  by 
the  slanderous  words — In- 
jury to  reputation  or  char- 
acter— Damages  presumed, 
when. 

§  813.  Drunkenness    in    mitigation. 

§  814.  Compensatory  damages  only 
— When  words  spoken  with- 
out malice  though  showing 
a  want  of  caution. 

§  815.  Exemplary  damages  may  be 
given   in   slander,   when. 

§  816.  Vindictive  damages — Pecuni- 
ary circumstances  of  de- 
fendant —  Reiteration  of 
slander. 

§  817.  Pecuniary  circumstances  of 
defendant. 

§  818.  Libel — What  to  consider  in 
assessing   damages. 

§  819.  Same— Wealth    of    defendant. 

§  820.  Charge  of  adultery — Measure 
of  damages. 

TRESPASS. 

§  821.  Exemplary  damages  —  In 
trespass. 


§  822.  Trespass  upon  land — "Smart 
money"  or  exemplary  dam- 
ages. 

§  823.  Smart  money  in  suit  against 

corporation. 
§  824.  Growing   crops. 
§  825.  Herding   cattle   on    plaintiff'9 

land. 
§  826.  Destroying   sign. 

VICIOUS    ANIMALS. 

§  827.  What  to  consider  in  assess- 
ing damages. 

MISCELLANEOUS. 

§  828.  Wrongful  eviction— Without 
probable  cause  and  with 
malice. 

§  829.  Eviction  —  What  damages 
should   cover. 

§  830.  Fraud  and  deceit — Exem- 
plary  damages. 

§  831.  Difference  between  actual 
value  and  represented 
value. 

§  832.  Insurance — Damaged    goods. 

§  833.  Injury  to  premises  by  fire — 
Damages. 

§  834.  Malpractice — What  may  be 
considered  in  fixing  dam- 
ages. 

§  835.  Damages  for  failure  to  de- 
liver telegrams — Notice  of 
importance  on  the  face  of 
the   telegram. 

§  836.  Damages  for  failure  of  de- 
livering telegram — May  re- 
cover 'for  mental  suffering, 
sorrow  and  anguish — Limi- 
tation of  rule. 

§  837.  Warehousemen  —  Damages — 
Difference    in    value. 

§  838.  Damage  to  goods — "Inherent 
qualities." 

§  839.  Passenger  expelled  for  re- 
fusal to  pay  excess  fare 
on  train — Allegation  of 
"Ticket  Window"  being 
closed  —  Measure  of  dam- 
ages— What  may  be  taken 
into  consideration  by  jury 
in    assessing   damages. 


IN  GENERAL. 


§  733.  Damages,  General  and  Special  Defined.  General  damages 
are  those  which  the  law  presumes  to  flow  from  an  unlawful  act.  Spe- 
cial damages  are  those  actually  shown  to  have  been  sustained.  General 
damages   may  be   recovered   without   proof   of   any  special   amount. 


§  734.]  DAMAGES,   MEASURE  OF. 


521 


Special  damages   in  order  to   be   recovered  must   be   proved   as   to 
amount.1 

§  734.  Liability  to  Be  Settled  First— Damages,  (a)  The  jury  are 
instructed  that  if,  under  the  instructions  of  the  court,  they  find  from 
the  evidence  in  this  ease  that  the  plaintiff  is  not  entitled  to  recover, 
then  they  will  not  have  occasion  to  at  all  consider  the  question  of 
damages.2  . 

(b)  The  jury  are  instructed  that  if,  under  the  instructions  of  the 
court,  they  find,  from  the  evidence  in  this  case,  that  the  plaintiff  is 
not  entitled  to  recover,  then  they  will  have  no  occasion  to  at  all  con- 
sider the  question  of  damages  or  the  character  or  extent  of  the  in- 
juries of  the  plaintiff,  whether  serious  or  slight.3 

§  735.  Question  of  Appeal  If  Large  Judgment  is  Rendered,  Should 
Not  Be  Considered  by  Jury.  In  arriving  at  the  amount  of  damages  in 
this  case,  the  jury  ought  not  to  consider  the  question  whether  the 
defendant  would  be  more  likely  to  pay  a  judgment  if  rendered  for  a 
smaller  amount  than  for  a  larger  amount,  rather  than  appeal  the 
case  to  the  Supreme  Court,  as  the  question  of  appeal  ought  not  to  be 
considered  by  the  jury  in  making  up  their  verdict  of  damages.  And  it 
ought  not  to  be  considered  at  any  stage  of  the  case.4 

§  736.  Damages  Limited  to  Claim  in  Complaint-Whether  Interest 
Should  Be  Allowed— Computation  Of.  (a)  You  are  instructed  that 
you  cannot  award  the  plaintiff  greater  damages  than  he  claims  in 

his  complaint,  which  is  $ ,  and  interest  on  the  same  at  the  rate  of 

per  cent  per  annum  from  the day  of .5 

(b)  The  court  submits  to  the  jury  a  form  of  verdict  which  the 
jury  may  use;  also  a  calculation  of  the  amount  of  interest  on  the 
amounts  sued  for  in  the  first  and  second  counts  of  the  petition,  but 
the  court  instructs  you  that  it  is  your  duty  to  calculate  the  amount  of 

l_Bibb  County  v.  Ham,  110  Ga.  Co.,  3  S.  D.  531,  54  N.  W.  596  (597), 
?ac\    ^  <=!    "F1    fi^fi  19  L-    R-   A.   653. 

.540,  6i>  fa.  a,,  ood.  instruction    is   objected   to 

2~C-    C\£7,*£?-  V-   °sborne'   105  upon  the  ground   that  it    militates 

111.  App.   462  (468).  against   section    4578,   Comp.    Laws, 

"It   is   not    a    fit    preparation   for  which  provides  that,  in  a  case  like 

the    jury    dispassionately    to    con-  this,    the    giving    of    interest    upon 

sider    the    question    of    liability,    to  the   cjarnages   found    is   in   the   dis- 

proceed    first    with    the    discussion  cretj,on   ,0,f  the   jury.     But  this   in- 

of  the  probable  and  serious  conse-  struction   does   not   attempt   to   di- 

quences    of    the    injury,    and    then  rect  or  control  the  jury  in  the  ex- 

with   sympathies   aroused   and   un-  ercjse   of   such   discretion.     It   does 

avoidably   expressed,    to    return   to  not   <jjrect   them   to    give   or   with- 

a    consideration  of  the   question  of  hol(j     interest.      In     his     complaint 

liability.      It    is    conducive    to    the  pontiff    demanded     judgment     for 

best  results  and  its  proper  caution  $g0o  an(j  interest.     In  his  evidence 

for  the  court  to  advise  the  jury  in  nis  estimate  of  the    damages    was 

the  language  -of  the  above  instruc-  given  with  some  latitude.  His  high- 

tion."  est    estimates    upon    the     different 

3_C.  C.  Ry.  Co.  v.  Allan,  169  111.  items,  if  aggregated,  would  amount 

287   (991)    48  N.  E.  414.  to   more    than    $600;    hence    the    m- 

4— Neely    v     Detroit    S.     Co.,     138  struction  that  in  their  verdict  they 

Mich     469    101    N.    W.   664    (668).  could  not  go  beyond  the  demand  of 

5— Bailey  v.  C.  M.  &  St.  P.  Ry.  the  complaint,  to  wit,  $600  and  in- 
terest." 


522  FORMS  OF  INSTRUCTIONS.  [§  737. 

interest  for  yourselves,  and  you  must  not  accept  the  statement  fur- 
nished as  being  correctly  calculated,  but  must  calculate  the  interest 
correctly  yourselves.6 

§  737.  Interest  on  Money  Withheld  by  an  Unreasonable  and  Vexa- 
tious Delay.  The  court  instructs  you  that  if  you  find  from  the  evi- 
dence and  under  the  instructions  of  the  court,  that  the  plaintiffs  are 
entitled  to  recover  from  the  defendant,  and  if  you  find  from  the  evi- 
dence that  such  money  as  you  find  the  plaintiffs  are  entitled  to,  if 
any,  was  withheld  by  an  unreasonable  and  vexatious  delay  of  pay- 
ment, then  you  may  allow  the  plaintiffs  interest  at  the  rate  of  five 
percentum  per  annum  on  such  sum,  if  any,  as  you  believe  from  the 
evidence  and  under  the  instructions  of  the  court,  the  plaintiffs  are 
entitled  to  recover  from  the  defendant  from  the  date  the  same  became 
payable,  as  may  be  shown  by  the  evidence  in  the  ease ;  what  the  facts 
are  you  must  determine  from  the  evidence.7 

§  738.  Exemplary  Damages  Defined.  Exemplary  damages  mean 
damages  given  by  way  of  punishment  for  the  commission  of  a  wrong 
willfully  or  wantonly,  or  with  some  element  of  aggravation.  They 
are  not  the  measure  of  the  price  of  the  property,  or  actual  damage 
sustained,  but  they  are  given  as  smart  money  in  the  way  of  pecuniary 
punishment,  to  make  an  example  for  the  public  good,  and  to  teach 
other  persons  not  to  offend  in  like  manner.8 

ATTACHMENT— GARNISHMENT. 

§  739.  Wrongful  Attachment — Elements  of  Damage,  (a)  If  you 
should  find  that  the  writ  of  attachment  in  this  case  was  wrongfully 
sued  out,  then  the  measure  of  defendant's  damages  on  his  counter- 
claim would  be  the  fair  cash  value  in  the  market  of  defendant 's  goods 
that  were  levied  upon  and  sold  under  said  writ  of  attachment,  esti- 
mated at  the  time  of  said  levy,  with  six  per  cent,  per  annum  interest 
thereon  from  that  time  to  the  present.  But  you  should  exclude  from 
said  estimate  any  goods  sold  under  the  foreclosure  of  the  chattel 
mortgage,  on  the  attached  property,  and  you  must  also  deduct  from 
the  sum  arrived  at  any  amount  in  the  hands  of  the  sheriff  that  is 

6 — Joplin    Co.    v.    City   of   Joplin,  mony  of  the  appellees,  acted  under 

177   Mo.   496,   76   S.   W.   960   (967).  the  instructions  of  the  appellant  in 

7 — Fitzgerald    v.    Benner,    219    111.  refusing-    to    deliver   the   certificate. 

485   (490,  499),  76  N.  E.  709.  The  instruction   is   not  justly  sub- 

The  court  in  comment  said:  "The  ject  to  the  criticism,  that  it  leaves 
evidence  tended  to  show  an  un-  the  jury  to  estimate  the  amount  of 
reasonable  and  vexatious  delay  of  damages  according  to  their  own 
payment,  and  it  was  for  the  jury  individual  notions  of  right  and 
to  say  whether  that  delay  was  wrong,  because  it  specifically  re- 
occasioned  by  the  fault  of  the  ap-  fers  them  to  the  evidence  under 
pellant.  The  delay  of  the  archi-  the  instructions  of  the  court, 
tect  was  the  delay  of  the  appel-  Springfield  Consolidated  Railway 
lant,  as  the  architect  was  to  a  cer-  Co.  v.  Puntenney,  200  111.  9,  65 
tain  extent  the  agent  of  the  appel-  N.  E.  442." 
lant,   and,    according   to    the   testi-  8 — Bates  v.   Davis,  76  111.  222. 


§  740.]  DAMAGES,  MEASURE  OF.  523 

ready  to  be  turned  over,  and  that  is  the  proceeds  of  defendant's  goods 
that  were  sold  under  said  writ  of  attachment.9 

(b)  The  court  charges  the  jury  that  the  elements  of  actual  dam- 
ages as  claimed  in  this  case  are  damages  to  the  goods,  attorney's  fees 
in  the  attachment  suit  and  in  contest  of  exemptions,  and  in  loss  of 
credit  and  business,  and  they  must  look  to  the  evidence  for  the  amount 
of  these  damages.10 

§  740.  Suspension  of  Business,  Proper  Element  of  Damage.  The 
court  instructs  the  jury,  in  case  they  find  for  the  plaintiff:,  that  in  de- 
termining the  amount  of  damages  which  the  plaintiff  is  entitled  to 
recover  they  are  to  consider  not  only  the  amount,  if  any,  which  the 
evidence  in  this  case  shows  the  goods  in  question  were  damaged  while 
in  possession  of  the  sheriff,  but  also  the  actual  loss,  if  any,  which  the 
evidence  in  the  case  shows  the  plaintiff  sustained  by  reason  of  the 
suspension  of  business  during  the  time  he  was  prevented  from  carry- 
ing it  on,  by  reason  of  the  acts  of  the  sheriff  if  the  jury  believe  from 
the  evidence  in  the  case  that  plaintiff  was  prevented  from  carrying 
on  his  business  by  the  acts  of  the  sheriff.11 

§  741.  Issuance  of  Attachment  Without  Statutory  Grounds  There- 
for, (a)  The  court  charges  the  jury  that  if  they  believe  from  the  evi- 
dence that was  not  about  to  fraudulently  dispose  of  his  prop- 
erty, and  that  no  ground  existed  for  the  issuance  of  the  attachment, 
then  would  be  liable  for  all  actual  damages  that  the  evi- 
dence shows  you  the  plaintiff  has  suffered.12 

9 — "The     charge     given     by     the  attachment  was  sued  out  upon  the 

court    expressed    the   rule    of   dam-  ground    that   the    defendant   in    the 

ages    applicable    to    cases    of    this  attachment      suit     was      about     to 

kind."      Blane    v.    Tharp,    83    Iowa  fraudulently    dispose    of    his    prop- 

665.   49  N.   W.    1044   (1046).  erty,    so    that    ordinary    process    of 

10 — Vandiver    &     Co.     v.    Waller,  law  could  not  be  served  upon  him 

143  Ala.  411,  39  So.  137.  The   breaches   of   the   bond    alleged 

11— Kyd   v.    Cook.   56  Neb.    557,   76  in   the   complaint   are   that   the   at- 

X.  W.  524  (527).  71  Am.  St.  Rep.  661.  tachment      was     wrongfully     sued 

"We  think  that  the  instruction  out;  that  it  was  wrongfully  and 
quoted  was  specific  and  definite  vexatiously  sued  out;  that  it  was 
enough.  It  limited  the  plaintiff's  wrongfully  and  maliciously  sued 
right  to  damages  to  the  deprecia-  out;  that  it  was  sued  out  without 
tion  in  value  of  the  property  the  existence  of  any  statutory 
seized,  and  the  loss  he  had  sus-  ground  for  the  issuance  of  the  at- 
tained by  reason  of  the  locking  up  tachment,  and  that  the  ground  of 
of  his  store  and  the  interruption  of  attachment  alleged  in  the  affi- 
his  business;  and  the  jury,  if  it  davit  was  untrue,  and  there  was 
awarded  the  plaintiff  any  damages  no  probable  cause  for  believing 
by  reason  of  the  suspension  of  his  the  said  alleged  ground  to  be  true, 
business,  were  bound  to  base  such  It  is  well-settled  law  that  if  an  at- 
an  award  upon  the  evidence.  What  tachment  is  sued  out  without  the 
manner  or  method  the  jury  should  existence  of  any  statutory  ground 
pursue  in  estimating  the  amount  upon  which  to  predicate  the  at- 
of  the  plaintiff's  damages  by  reas-  tachment  it  would  be  wrongfully 
on  of  the  suspension  of  his  busi-  sued  out,  and  when  wrongfully 
ness  was  by  the  court  left  to  the  sued  out  the  defendant  in  the  at- 
jury    to    determine."  tachment   suit  in   an  action  on   the 

12 — Vandiver    &    Co.    v.    Waller,  attachment  bond  would  be  entitle-l 

supra.  to     recover     all     actual     damages 

The  court  said  in  comment   "the  which    the     evidence    might    show 


524  FORMS  OF  INSTRUCTIONS.  [§  742. 

(b)  The  court  charges  the  jury  that  if  they  believe  from  the  evi- 
dence that  the  suing  out  of  the  attachment  was  wrongful,  as  has  been 
defined  by  the  court,  and  that  the  attachment  was  issued  without 
probable  cause,  punitive  as  well  as  actual  damages  can  be  recovered, 
though  the  attachment  is  sued  out  by  an  agent,  if  the  principal,  with 
full  knowledge,  ratified  the  act  of  the  agent.13 

§  742.  Wrongful  Attachment,  Acts  of  Malice,  Punitive  Damages. 
The  court  charges  the  jury  that  punitive  or  exemplary  damages 
cannot  be  proven  in  dollars  and  cents,  but  when  the  proof  shows  acts 
of  malice  and  vexation  the  jury  alone  can  fix  in  dollars  and  cents 
the  measure  of  damages  for  malicious  and  vexatious  acts,  and  they, 
the  jury,  can  fix  such  punitive  damages  as  may  seem  right  to  them, 
not  exceeding  the  amount  of  the  attachment  bond.14 

§  743.  Action  on  Garnishment  Bond — Loss  of  Credit  Business  In- 
jured, (a)  The  court  charges  the  jury  that  if  the  evidence  shall  satisfy 
their  minds  that  the  garnishment  was  sued  out  wrongfully,  but  not 
maliciously  or  vexatiously,  then  they  can  find  for  the  plaintiff- only 
such  damages  as  it  actually  sustained  from  loss  of  credit  or  destruc- 
tion of  business  by  reason  of  the  suing  out  and  serving  of  the  garnish- 
ment, and  that  the  burden  is  upon  the  plaintiff  to  prove,  first,  that 
the  plaintiff  lost  credit  or  had  its  business  injured  or  destroyed  by  the 
suing  out  or  levy  of  such  garnishment,  and,  next,  the  amount  of  the 
damage  resulting  to  it  thereby.  If  the  evidence  shall  fail  to  reason- 
ably satisfy  the  minds  of  the  jury  that  such  loss  of  credit  or  injury 
or  destruction  of  business  was  caused  by  the  suing  out  or  levy  of  the 
garnishment,  then  the  jury  cannot  give  the  plaintiff  more  than  mere 
nominal  damages. 

(b)  If  the  jury  find  from  the  evidence  that  the  garnishment  was 
sued  out  wrongfully,  but  not  sued  out  vexatiously  or  maliciously,  they 
cannot  give  plaintiff  damages  for  the  loss  of  its  credit,  unless  they 

had  accrued  to  the  defendant  in  Ala.  428,  8  So.  364;  Hamilton  v. 
the  attachment  suit  from  such  Maxwell,  119  Ala.  23,  24  So.  769; 
wrongful  suing-  out  of  the  attach-  Jackson  v.  Smith,  75  Ala.  97. 
ment.  This  is  all  that  was  as-  14 — Vandiver  &  Co.  v.  Waller,  143 
serted  by  charge  and  the  giving  of  Ala.  411,  39  So.  140. 
it  was  not  error.  Kirksey  v.  Jones,  "The  amount  claimed  in  the  com- 
7  Ala.  622;  Alexander  v.  Hutchison,  plaint  is  the  same  as  the  penalty 
9  Ala.  826;  Pollock  v.  Gantt,  69  Ala.  of  the  bond,  and  while  charge  13 
373,  44  Am.  Rep.  The  charge,  if  just,  instructed  the  jury  that  they  might 
only  tends  to  show  that  the  charge  fix  such  punitive  damages  as 
was  misleading.  If  the  defendants  might  seem  right  to  them,  not  ex- 
apprehend  that  the  jury  might,  ceeding  the  amount  of  the  attach- 
under  the  charge,  award  damages  ment  bond,  and  on  this  account  is 
that  were  not  recoverable,  this  informal,  it  is  substantially  cor- 
was  capable  of  correction  by  an  rect  in  that  respect.  The  charge 
explanatory  charge  which  should  asserts  a  correct  rule  of  damages, 
have  been  requested  by  them,  and  the  court  committed  no  re- 
Durr  v.  Jackson,  59  Ala.,  bottom  of  versible  error  in  giving  it.  Floyd 
page  210;  2  Mayfield's  Digest,  p.  v.  Hamilton,  33  Ala.  235;  A.  G.  S. 
573,   Art.   214."  Ry.  Co.  v.  Frazier,  93  Ala.  45.  9  So. 

13_Vandiver   &     Co.     v.     "Waller,  303,   30  Am.   St.   Rep.   28;   Montgom- 

supra.  ery    &    E.    Ry.    Co.    v.    Malette,    92 

Citing     Baldwn     v.     Walker,     91  Ala.  209,  9  So.  363. 


§744.]  DAMAGES,   MEASURE   OE.  525 

further  find  from  the  evidence  that  said  loss  of  credit  was  caused  by 
the  suing  out  of  said  garnishment. 

(c)  The  court  charges  the  jury  that  they  cannot  find  exemplary 
or  vindictive  damages  for  the  plaintiff,  unless  they  are  satisfied  from 
the  evidence  that  the  garnishment  was  sued  out  maliciously  or  vexa- 
tiously,  as  well  as  wrongfully. 

(d)  The  court  charges  the  jury  that,  if  they  believe  from  the  evi- 
dence that  W.  P.,  the  plaintiff  in  the  garnishment  suit  in  which  the 
bond  sued  out  in  this  case  was  executed,  believed  the  facts  to  exist 
authorizing  the  garnishment,  and  was  not  influenced  by  a  reckless  or 
vexatious  spirit,  they  cannot  find  for  the  plaintiff  other  than  its  actual 
damages  sustained  thereby.15 


CONTRACTS  AND  SALES. 

§  744.  When  Interest  Allowed  on  Contract — Money  Withheld 
Unreasonably.  The  court  instructs  you  that  if  you  find  from  the 
evidence  and  under  the  instructions  of  the  court,  that  the  plaintiffs 
are  entitled  to  recover  from  the  defendant,  and  if  you  find  from 
the  evidence  that  such  money  as  you  find  the  plaintiffs  are  entitled 
to,  if  any,  was  withheld  by  an  unreasonable  and  vexatious  delay 
of  payment,  then  you  may  allow  the  plaintiffs  interest  at  the  rate 
of  five  per  centum  per  annum  on  such  sum,  if  any,  as  you  believe 
from  the  evidence  and  under  the  instructions  of  the  court,  the 
plaintiffs  are  entitled  to  recover  from  the  defendant  from  the  date 
the  same  became  payable,  as  may  be  shown  by  the  evidence  in 
the  case.  What  the  facts  are  you  must  determine  from  the  evi- 
dence.16 

§  745.  Refusal  to  Accept  Personal  Property — Difference  Between 
Contract  Price  and  Current  Price  at  the  Time  and  Place  of  Delivery. 
The  jury  are  instructed,  that  the  rule  of  law  is,  that  when  a  pur- 
chaser of  personal  property  which,  by  the  terms  of  the  purchase,  is  to 
be  delivered  at  a  specified  time  and  place,  and  at  a  stipulated  price, 
refuses  to  receive  and  pay  for  the  property,  and  no  part  of  the  pur- 
chase price  has  been  paid,  and  if  the  price  has,  in  the  meantime,  de- 
clined, then,  in  an  action  by  the  vendor  against  the  vendee  for  refus- 
ing to  comply  with  contract,  the  proper  rule  of  damages  is  the  differ- 
ence between  the  contract  price  and  the  current  price  at  the  time 
and  place  for  delivery,  as  fixed  by  the  contract  of  sale  and  purchase.17 

15— Mobile  Furniture   Co.    v.    Lit-  v.  Jackson,  59  Ala.  204;  Flournoy  v. 

tie     108    Ala.    399,    19    So.    443    (445),  Lyon,  70  Ala.  309. 

citing  Calhoun  v.  Nannan,   87  Ala.  16— Fitzgerald   v.   Benner,    219   111. 

277    6  So    291;   Ala.   G.   &  S.  R.  Co.  490,  76  N.  E.  709;    Springfield  C.   R. 

v    Hill,  93  Ala.  514,  9  So.  722,  30  Am.  Co.   v.   Puntenney,  200  111.  9,   65     N. 

St.     Rep.     652,     9     L.     R.     A.     442;  E.   442. 

O'Grady  v.  Julian,  34  Ala.  88;  Durr  17— McNaught   v.   Dodson,    49   111. 

446. 


526 


FORMS  OF  INSTRUCTIONS. 


[§  74G. 


§  746.  Damages  for  Breach  of  Contract  to  Purchase  Merchandise. 
If  you  find,  from  the  evidence,  that  the  defendant  has  failed  and  re- 
fused to  take  a  portion  of  the  wagons  and  extra  boxes  mentioned  in 
the  contract  and  pay  for  the  same,  and  has  thereby  broken  the  eon- 
tract  in  evidence,  as  charged  in  the  declaration,  then  the  plaintiff  is 
entitled  to  recover  damages  in  this  case  from  the  defendant  for  breach 
of  such  contract  and  for  failure  to  take  and  pay  for  the  wagons  and 
extra  boxes  in  question.  The  measure  of  plaintiff's  damages  in  such 
case  is  the  difference  between  what  it  would  cost  the  plaintiff  to  make 
and  deliver  such  wagons  and  extra  boxes,  and  the  price  which  the 
defendant  agreed  in  and  by  its  contract  to  pay  the  plaintiff  therefor; 
and  whatever  the  evidence  shows  the  amount  of  these  damages  to  be, 
it  is  your  duty  to  assess  the  same  in  favor  of  the  plaintiff.18 


18— Kingman  v.  Hanna  W.  Co., 
74  111.  App.  22  (28),  aff'd  176  111.  545 
(551),    52   N.   E.  328. 

The  court  said  in  comment  that 
"the  general  rule  in  law  is  stated 
to  be  that  damages  are  to  be  as- 
sessed at  the  pecuniary  amount  of 
the  difference  between  the  state  of 
the  plaintiff  upon  a  breach  of  the 
contract  and  what  it  would  have 
been  if  the  contract  had  been  per- 
formed. In  other  words,  the  meas- 
ure of  damages  is  the  benefit  that 
the  plaintiff  would  have  received  if 
the  contract  had  been  kept.  He  is, 
so  far  as  money  can  do  it,  to  be 
placed  in  the  same  situation  as  if 
the  contract  had  been  performed. 
Leake,  Digest  of  the  Law  of  Con- 
tracts, 1044  (ed.  1878).  While  the 
general  rule  is  that  where  there  is 
a  contract  to  deliver  goods  at  a 
certain  price,  the  measure  of  dam- 
ages is  the  difference  between  the 
contract  price,  because  a  seller 
may  take  his  goods  into  the  mar- 
ket and  obtain  the  current  price  for 
them,  yet,  where,  from  the  nature 
of  the  article,  there  is  no  market 
in  which  the  article  can  be  sold, 
this  rule  is  not  applicable.  Leake, 
Digest  of  the  Law  of  Contracts, 
1060. 

Under  the  circumstances  of  this 
case,  the  plaintiff  had  no  market 
in  which  to  sell  the  wagons  manu- 
factured by  it.  The  contract  gave 
the  appellant  the  exclusive  right 
to  sell  wagons  of  the  Hanna  "Wag- 
on Company's  manufacture  in  the 
State  of  Illinois  and  many  other 
States  and  territories,  and  hence 
it  had  no  market  in  which  to  sell 
its  product,  and  therefore  the  rule 
above  mentioned  did  not  apply  and 
could  not  be  adopted  for  ascertain- 
ing the  damages. 


In  the  case  of  Masterton  v.  The 
Mayor,  etc.,  of  Brooklyn,  7  Hill. 
(N.  Y.)  61,  42  Am.  Dec.  38,  the 
plaintiff  had  contracted  with  the 
defendants  for  the  furnishing  and 
delivery  of  marble  wrought  in  a 
particular  manner  so  as  to  be  fitted 
for  use  in  the  erection  of  a  certain 
building,  and  was  prevented  from 
fully  performing  the  contract  by 
the  default  and  refusal  of  the  de- 
fendants. The  plaintiff's  claim  was 
substantially  one  for  not  accepting 
goods  bargained  and  sold.  It  was 
held  that  where  the  article  sold 
has  no  market  value,  an  investiga- 
tion into  the  constituent  elements 
of  the  cost  to  the  party  who  has 
contracted  to  furnish  it  becomes 
necessary,  and  that  compared  with 
the  contract  price  will  afford  the 
measure  of  damages.  If  the  cost 
should  equal  or  exceed  the  con- 
tract price,  the  recovery  would  be 
but  nominal;  if  the  contract  price 
exceeds  the  cost,  the  difference 
would  constitute  the  measure  of 
damages. 

The  case  of  B.  &  O.  Ry.  Co.  v. 
Stewart,  79  Md.  487,  29  Atl.  964, 
was  an  action  for  breach  of  con- 
tract made  by  the  plaintiff  with 
the  B.  &  O.  R.  R.  Co.  for  furnish- 
ing material  and  doing  masonry 
work  in  the  construction  of  a 
bridge.  The  trial  court  instructed 
the  jury  that  the  plaintiffs  were 
entitled  to  recover  such  amount  as 
the  jury  might  find  would  compen- 
sate them  for  the  loss,  if  any, 
which  they  might  have  suffered  by 
reason  of  the  stoppage  of  the  work 
by  the  defendant,  the  measure  of 
damages  being  the  difference  be- 
tween what  they  would  have  paid 
for  the  entire  work  when  com- 
pleted   at    the    contract    price    and 


§  747.]  DAMAGES,   MEASURE   OF.  527 

§  747.  Renunciation  of  Contract  to  Buy  Property.  "When  the  de- 
fendant mailed  to  plaintiff  the  letter  in  evidence,  declaring  that  he 
declined  to  have  anything  more  to  do  with  the  contract,  then  the  plain- 
tiff had  nothing  further  to  do  in  the  premises ;  this  was  a  renunciation 
of  the  contract  upon  which  the  suit  is  founded.  And  the  plaintiff  is 
entitled  to  such  damages  as  the  jury  may  believe  from  the  evidence 
he  has  sustained  by  reason  thereof,  not  exceeding  the  sum  of  $500,  the 
amount  claimed  in  the  petition.        The  measure  of  damages  in  this  cause 

is  the  difference  between  the  contract  price  of  $ to  be  paid  plaintiff 

by  defendant  under  the  contract,  and  the  market  value  of  said  prop- 
erty at  the  time  of  the  breach  of  said  contract ,  and  when 

sold  by  plaintiff  in  ,  not  exceeding  $ ,   the   amount 

claimed  in  the  petition.19 

§  748.  Refusal  to  Deliver  Personal  Property — Difference  Between 
Contract  Price  and  Market  Price  at  Place  of  Delivery.  In  this  case, 
if  the  jury,  under  the  evidence  and  the  instruction  of  the  court,  find 
the  issues  for  the  plaintiff,  then  the  measure  of  damage  is  the  differ- 
ence between  the  contract  price  and  the  market  price,  at  the  place 
of  delivery,  at  the  time  of  the  alleged  breach  of  contract  complained  of. 
And  in  arriving  at  the  amount  of  damages,  the  jury  will  estimate  the 
quantity  of  (hops)  which  has  not  been  delivered,  and  give  the  differ- 
ence between  the  market  price  and  the  contract  price  on  so  much  of 
the  contract  as  the  jury  believe,  from  the  evidence,  remains  to  be  per- 
formed.20 

§  749.  Measure  of  Damages  Where  Property  is  Not  Delivered 
Within  Specified  Time,  (a)  The  jury  are  further  instructed,  that 
upon  a  breach  of  a  contract  to  deliver  articles  of  personal  property, 
at  a  particular  place,  within  a  certain  time,  at  a  certain  price,  and 
when  the  property  has  been  paid  for, 'and  subsequently  delivered,  but 
not  delivered  within  the  specified  time,  the  measure  of  damages  is  the 

what  it  would  have  cost  the  plain-  breach     of     the     contract;     second, 

tiffs   to  do  and  complete  the  same,  that    the    plaintiff    was    not    bound 

It    was    held    that    the    instruction  to   roll   the   rails   and    tender   them 

was   proper.  to  defendant;   and,  third,    that  the 

In    Hinkley    v.    Pittsburgh    B.    S.  proper    rule    of    damages    was    the 

Co..    121    U.    S.    264,    7    S.    Ct.    875,  difference  between  the  cost  per  ton 

the  defendant  had  agreed  in  writ-  of  making  and  delivering  the  rails 

ing  to  purchase  from  the  plaintiff  and    the    $58    contract    price.      The 

rails  to  be  rolled  by  the  latter  and  court  cite  approvingly   the  case  of 

drilled    as    should    be    directed    by  Masterton    v.    Mayor   of   Brooklyn, 

the     defendant,     and     to     pay     for  supra,    following    United    States   v. 

them    $58    per   ton.      Defendant    re-  Speed,    8    Wallace    (U.    S.)    77;    and 

fused   to   give   directions    for   drill-  United   States   v.    Behan,   110   U.    S. 

ing,  and  at  its  request  the  plaintiff  338,  4  S.  C.  81." 

delayed    rolling    any    of    the    rails  19 — Wallingford     v.     Aitkins,     24 

until  after  the  time  prescribed  for  Ky.  L.  1995,  72  S.  W.  794  (795). 

their    delivery,    and    then    the    de-  20 — 1     Sutherland     on     Dam.     (3d 

fendant    advised    the   plaintiff   that  Ed.)    46;    Carney    v.    Newberry,    24 

he    should    decline    to   take    any    of  111.    203;    Bush    v.    Holmes,    53*  Me 

the    rails    under    the    contract.      It  417;    Cannon   v.    Folsom,    2   la.    101 

was  held,  first,  that  the  defendant  Crosby    v.     Watkins,     12    Cal.     85 

was    liable    in    damages    for     the  Zehner  v.  Dale,  25  Ind.  433. 


528  FORMS  OF  INSTRUCTIONS.  [§  750. 

difference  in  the  value  of  the  property  at  such  place,  at  the  time  of 
actual  delivery,  and  its  market  value  at  the  same  place  at  the  time 
fixed  in  the  contract  for  delivery. 

(b)  If  the  jury  believe,  from  the  evidence,  that  a  contract  was 
entered  into  by  the  defendant,  as  alleged,  in  plaintiff's  declaration, 

for  the  sale  of   (thirty  thousand  brick),  at  the  price  of  $ (per 

thousand),  to  be  delivered  on  demand,  and  that  the  plaintiff  demanded 
said  brick,  as  claimed  by  him,  and  that  he  was  then  ready  and  willing 
to  pay  for  the  same,  and  that  upon  such  demand  the  defendant  re- 
fused to  deliver  the  brick,  then,  if  you  further  believe,  from  the  evi- 
dence, that  the  market  price  of  the  same  kind  of  brick,  at  the  time 
and  place  of  such  demand,  was  greater  than  the  contract  price,  the 
measure  of  damages  will  be  the  difference  between  such  market  price 
and  the  price  agreed  upon.21 

§  750.  Property  Bought  for  Re-Sale.  If,  under  the  evidence  in  the 
ease  and  the  instructions  of  the  court,  you  find  for  the  plaintiffs, 
then,  upon  the  question  of  damages,  the  court  instructs  you  that  if 
you  believe,  from  the  evidence,  that  at  the  time  of  said  sale  the  plain- 
tiffs had  a  contract  for  the  re-sale  of  said  hams  at  (Salt  Lake  City), 
and  that  they  had  sold  the  same  as  of  the  quality  aforesaid,  and  that 
at  the  time  of  the  sale  to  the  plaintiffs  the  defendants  had  knowledge 
of  such  contract  of  re-sale,  and  knew  that  the  plaintiffs  pui'chased 
said  hams  to  fill  said  contract  for  re-sale,  and  that  the  hams  were 
shipped  to  the  purchaser  at  (Salt  Lake)  before  the  plaintiffs  had  no- 
tice of  their  quality,  and  that  upon  their  arrival  at  (Salt  Lake)  the 
said  purchasers  refused  to  receive  or  pay  for  the  same,  for  the  reason 
that  they  were  not,  at  the  time  of  their  shipment  to  him,  of  the 
quality  he  had  bargained  for,  then  you  will  award  to  the  plaintiffs,  as 
damages,  such  sum  of  money  as  you  may  believe,  from  the  evidence, 
the  plaintiffs  had  re-sold  the  said  hams  for,  less  such  sum  as  you  may 
believe,  from  the  evidence,  said  hams  were  actually  worth  at  the 
time  of  their  purchase  by  the  plaintiffs;  and  you  will  further  allow 
the  plaintiffs  such  sums  of  money,  if  any,  as  you  may  believe,  from 
the  evidence,  they  were  obliged  to  pay  out  on  account  of  the  transpor- 
tation of  said  hams  to  (Salt  Lake  City.)22 

§  751.  Plaintiff  Deprived  of  Opportunity  to  Perform  His  Contract — 
Gains  Prevented  by  Breach,  (a)  The  court  instructs  the  jury  that 
their  verdict  shall  be  for  the  plaintiff,  and  the  only  question  for  the 
jury  to  consider  is:  What  is  a  fair  and  adequate  compensation  to  the 
plaintiff,  as  shown  by  the  evidence,  for  the  damage  it  has  suffered  by 
being  deprived  of  its  right  to  perform  said  contract,  and  reap  the 
fruits  thereof?  The  court  instructs  the  jury  that  in  determining  this 
question  they  shall  find  for  the  plaintiff  in  such  sum  as  they  believe 
from  the  evidence  plaintiff  would  have  realized  as  profit  upon  the 
contract  in  evidence,  if  the  plaintiff  had  not  been  prevented  from  per- 

21— Sleuter   v.    Wallbaum,    45   111.        22— Thorne    v.    McVeagh,    85    111. 
43.  81;  Lewis  v.  Rountree,  79  N.  C.  122. 


§.752.]  DAMAGES,   MEASURE  OF.  529 

forming  that  contract,  if  the  jury  find  that  plaintiff  was  so  prevented ; 
and  the  jury  is  instructed  that  they  should  consider  what  profits  the 
plaintiff  made  upon  said  contract,  as  shown  by  the  evidence,  prior 
to  the  breach  of  said  contract,  the  average  of  said  profits,  the  nature 
and  extent  of  the  duties  of  plaintiff  and  defendant  under  said  con- 
tract, in  order  to  aid  them  in  determining  what  profits  plaintiff  would 

have  made  during  said  period  of to ,  upon  said 

contract.23 

(b)  The  court  instructs  you  that  gains  prevented,  as  well  as  losses 
sustained,  may  be  recovered  as  damages  for  breach  of  a  contract,  when 
they  can  be  rendered  reasonably  certain  by  evidence,  and  have 
naturally  resulted  from  breach  of  contract.24 

§  752.  Breach  of  Contract  to  Ship  Coal,  (a)  If  you  find  for  the 
defendants  on  their  counterclaim,  the  measure  of  their  recovery  is  the 
difference  between  the  price  they  agreed  to  pay  the  plaintiff  for  coal 
ordered  and  not  shipped,  and  the  price  at  which  they  could  have  ob- 
tained said  coal  from  other  persons;  and,  if  they  could  not  have 
obtained  it  from  other  persons,  then  the  measure  of  their  recovery 
would  be  the  net  profit  they  could  reasonably  have  made  on  the 
quantity  of  coal  ordered,  but  not  furnished,  but  in  either  event  not  to 
exceed  the  sum  of  three  thousand  dollars. 

(b)  If  you  believe  from  the  evidence  that  the  defendants  ordered 
coal  from  the  plaintiff  during  the  months  of  October,  November  and 
December,  1899,  and  during  the  months  of  January,  February,  March, 
June,  July  and  August,  1900,  and  that  the  I.  C.  R.  R.  Co.  supplied 
plaintiff  with  enough  cars  to  ship  to  defendants  the  said  coal  to  fill 
said  orders,  and  if  it  failed  to  do  so,  and  the  defendants  were  dam- 
aged thereby,  you  will  find  for  the  defendants,  on  their  counterclaim, 
such  damages  as  they  sustained,  to  be  fixed  by  the  criterion  laid  down 
in  another  instruction. 

(c)  When  the  defendants  ascertained  that  they  could  not  procure 
from  the  plaintiff  the  coal  which  the  plaintiff  had  agreed  to  ship 
them,  then  it  was  the  duty  of  the  defendants  to  exercise  reasonable 
efforts  to  procure  coal  from  other  persons,  and,  if  they  failed  to  do 
this,  you  cannot  allow  them  anything  on  their  counterclaim ;  but  it 
was  not  the  duty  of  the  defendants  to  supply  themselves  with  coal  at 
a  price  at  which  there  would  be  a  loss  on  a  re-sale  to  their  customers. 

(d)  If  you  find  for  the  defendants  on  their  counterclaim,  you 
will  credit  such  amount  on  the  amount  due  the  plaintiff  under  the 
first  instruction,  and  for  the  plaintiff  the  remainder.  But  if  the 
amount  you  allow  defendants  exceeds  the  claim  of  the  plaintiff,  you 
will  find  a  verdict  for  the  defendants  for  the  difference. 

(e)  The   court  instructs  you  that  the   defendants  cannot  recover 

23— Laclede  P.  Co.  v.  Nash-Smith         24— Silver  Springs,  O.  &  G.  R.  Co. 
T.    &    C.    Co.,    95    Mo.    App.    412,    69     v.   VanNess,  45  Fla.  559,   34  So.   884 
S.  W.  27  (29).  See  also  Anderson  v.     (889). 
McDonald,    31    Wash.    274,    71    Pac. 
1037   (1039). 
34 


530  FORMS  OF  INSTRUCTIONS.  [§  753. 

anything  on  their  counterclaim,  except  for  coal  actually  ordered  by 
them  from  the  plaintiff.25 

§  753.  Defects  in  Articles  Manufactured,  (a)  You  are  in- 
structed that,  if  you  believe  and  find,  from  the  evidence,  that  the 
written  instrument  offered  in  evidence  as  the  contract  of  January  1, 
1897,  between  the  plaintiff  and  defendant,  was  executed  by  the  par- 
ties and  approved  by  the  board  of  directors  of  the  plaintiff  company, 
then  such  instrument  constituted  a  binding  contract  between  the  par- 
ties for  the  purposes  therein  mentioned,  and  it  became  and  was  the 
defendant's  duty  and  obligation  to  superintend  the  manufacture  and 
shipment  of  such  brake  beams  as  were  manufactured  by  or  for  the 
plaintiff  at  Detroit,  Michigan,  during  the  year  1897,  and  to  cause  the 
work  to  be  done  efficiently,  promptly  and  to  the  reasonable  satisfac- 
tion of  the  plaintiff,  and  if  he  failed  to  do  so,  and  if  you  find,  from 
the  evidence,  that  by  defendant's  failure  to  so  perform  his  duty  in 
that  behalf  any  break  beams  were  not,  between  January  1,  1897,  and 
September  5,  1897,  manufactured  to  the  reasonable  satisfaction  of  the 
plaintiff,  or  were  defectively  manufactured,  and  rendered  unfit  for 
brake  beams,  and  that  the  plaintiff  suffered  loss  or  damages  thereby, 
then  you  are  instructed  that  on  this  issue  the  defendant  is  guilty  as 
alleged  by  the  plaintiff,  and  your  verdict  must  be  for  the  plaintiff  on 
this  issue. 

(b)  If  you  believe,  from  the  evidence,  that  by  defendant's  failure 
to  perform  his  duty  in  that  behalf  any  brake  beams  were  not,  be- 
tween January  1,  1897,  and  September  5,  1897,  manufactured  to  the 
reasonable  satisfaction  of  the  plaintiff,  or  were  defectively  manufac- 
tured and  rendered  unfit  for  brake  beams,  and  that  the  defendant 
without  instructions  from  the  plaintiff  and  against  its  desires  and 
instructions  procured  to  be  manufactured  thirteen  hundred  special 
heads  to  fit  said  brake  beams,  if  any  so  defectively  manufactured,  by 
reason  whereof  the  cost  of  the  manufacture  of  said  special  heads  was 
lost  to  the  plaintiff,  then  you  are  instructed  that  on  this  issue,  the  de- 
fendant is  guilty  of  wrongful  conduct  and  breach  of  duty  as  alleged, 
and  your  verdict  as  to  this  should  he  for  the  plaintiff.26 

§  754.     Failure  to  Contribute  Money  to  Joint  Adventure.     If  the 

business  venture  failed  by  reason  of  plaintiff's  breach  of  contract, 
defendants  could  recover  as  damages  whatever  loss  was  occasioned 
to  them  by  reason  of  such  breach.  The  damages  must  be  such  as 
grow  directly  out  of  the  breach  and  would  be  limited  to  the  actual 
expense  incurred  in  changing  over  the  heading  business  to  the  stave 

25 — Tradewater   Coal   Co.    v.    Lee,  The    appellate     court     said     that 

24     Ky.     215,     68     S.     W.     400     (402).  taking-  the   instructions  as  a  series 

"These     instructions     clearly     and  the  use  of  the  phrase  "to  the  satis- 

fully    cover    the    law    applicable    to  faction    of    the    plaintiff"    did    not 

the  facts  of  the  case."  make  them  erroneous.     "They  only 

26 — Pungs    v.    Ann.    Brake    Beam  allow    a    recovery,    as   we    construe 

Co.,    102   111.    App.    76    (85),    affirmed  them,  upon  a  showing-  by  the  evi- 

in  200  111.  306.  65  N.  E.   R45  dence    that    the    beams    were    ren- 


§  755.]  DAMAGES,   MEASURE   OF.  531 

business  on  account  of  the  contract  relations  requiring  that  to  be  done. 
Of  course  you  may  take  into  account  not  only  the  expenses  of  chang- 
ing over  this  mill  as  far  as  machinery  is  concerned,  but  the  necessary 
labor,  its  fair  value  according  to  the  proof,  that  would  be  an  element 
of  damage  also.27 

§  755.  Contract  Providing  Against  Competition — No  Damage 
Proven.  In  this  case  there  is  no  evidence  tending  to  show  what  part 
of  the  decrease  in  the  business  of  R.  &  B.,  below  that  enjoyed  by  H.  & 
Y.,  was  caused  by  the  competition  of  H.,  if  any,  in  violation  of  his 
contract,  what  part  was  due  to  competition  of  H.  under  his  written 
permission,  what  part  was  due  to  other  competition  than  houses  repre- 
sented by  H.,  or  what  part  was  due  to  lack  of  experience  in  the  busi- 
ness on  the  part  of  R.  &  B.,  as  compared  with  H.  &  Y.  There  is 
therefore  no  evidence  upon  which  the  court  can  submit  the  case  to  the 
jury  upon  which  they  could  find  the  amount  of  damages  caused  by  the 
breach  of  the  contract  on  the  part  of  H.,  if  he  did  violate  his  contract 
by  making  sales  which  were  not  authorized  by  the  written  permit 
given  him.  No  particular  sales  are  proved  to  have  been  made  in  vio- 
lation of  the  contract,  from  which  the  extent  of  the  damages  might 
be  in  part  inferred.  The  jury  will  therefore  return  a  verdict  for  the 
defendant.28 

§  756.  Measure  of  Damages  for  Failure  to  Furnish  Goods  of  the 
Quality  Provided  for  in  the  Contract,  (a)  The  rule  of  damages  for 
a  failure  of  a  party  to  furnish  goods  of  a  quality  provided  for  in  a 
contract,  in  case  such  goods  are  received  and  appropriated  by  the 
other  party,  would  originally  be  the  difference  in  the  market  value  at 

dered    unfit    for    brake    beams    by  where   the   defaulting-   party   failed 

reason    of    their    defective    manu-  to    advance    money  which    he   had 

facture."  promised    to    loan.    In    such    cases 

27 — Alderton      v.      Williams,      139  the  law  presumes  that  the  borrow- 

Mich.    296,    102    N.    W.    753-5.  er     can     obtain    money    elsewhere, 

"Notwithstanding-  the  various  and  the  increased  rate  of  interest 
objections  urged  by  plaintiff,  we  therefor  furnishes  full  compensa- 
think  he  cannot  complain  of  this  tion  for  his  damages.  These  cases 
charge.  In  Harrow  Spring  Co.  v.  and  the  principle  underlying  them 
Harrow  Co.,  90  Mich.  147,  51  N.  have  no  application  to  the  case  at 
W.  197,  30  Am.  St.  Rep.  421,  we  bar.  Here  plaintiff  defaulted,  not 
said  in  a  case  like  that  at  bar,  in  making  an  agreed  loan,  but  in 
'the  injured  party  is  clearly  en-  contributing  to  a  joint  adventure, 
titled  to  recover  his  damages  for  Even  if  defendants  had  the  right 
expenses  incurred  in  good  faith  in  to  do  so,  it  cannot  be  presumed 
anticipation  of  performance  by  the  that  they  could  have  obtained  such 
other  party.'  This  decision  an-  a  contribution  from  some  other 
swers,  with  one  exception,  all  of  source.  And  we  have  held  that 
plaintiff's  objections  to  the  above  when  a  joint  adventure  fails  be- 
charge.  That  exception  arises  from  cause  one  of  the  parties  refuses 
bis  contention  that  the  measure  of  to  advance  his  agreed  money  con- 
damages  where  one  fails  to  ad-  tribution,  he  is  liable  for  substan- 
vance  money  as  agreed  is  the  ex-  tial  damages.  See  McCreery  v. 
cess  in  interest  which  the  bor-  Green,  38  Mich.  172." 
rower  is  compelled  to  pay  to  pro-  28 — Raymond  v.  Yarrington,  — 
cure  the  money  elsewhere.  This  Tex.  Civ.  App.  — ,  69  S.  W.  436  (437), 
principle  is  applied  as  appears  62  L.  R.  A.  962. 
from  the  cases  cited  by  appellant, 


532  FORMS  OF  INSTRUCTIONS.  [§  756. 

the  place  of  delivering  between  the  articles  of  the  quality  contracted 
for  and  the  articles  as  delivered.  But  in  this  case  the  defendants  hav- 
ing claimed  that  they  were  put  to  great  expense  in  screening  the  ma- 
terial delivered  to  them  by  the  plaintiff,  by  reason  of  its  being  of  dif- 
ferent quality  from  that  contracted  for,  they  are  not  entitled,  as  dam- 
ages, to  a  deduction  from  the  contract  price  in  order  to  reduce  the 
material  which  was  furnished  to  its  market  value,  and  also  to  dam- 
ages for  the  expense  they  were  put  to  in  screening  the  gravel. 

(b)  If  you  shall  find  from  the  testimony  that  the  plaintiffs  guar- 
anteed that  the  unscreened  gravel,  which  they  were  to  furnish  the 
defendants,  should  be  of  a  certain  quality,  and  also  that  it  was  not  of 
such  quality,  and  if  you  can  ascertain  from  the  testimony  what  addi- 
tional expense,  if  any,  the  defendants  were  put  to,  in  order  to  prepare 
such  gravel  for  the  use  for  which  it  was  furnished,  which  they  would 
not  have  been  put  to  if  it  had  been  such  as  the  guaranty  called  for, 
then,  and  in  that  case,  you  may  allow  such  additional  expense  as 
damages  to  the  defendants.  If,  however,  the  testimony  is  not  suffi- 
ciently definite  to  enable  you  to  make  such  computation,  then  you 
may,  if  you  shall  find  as  above  stated,  allow  as  damages  to  the  de- 
fendants the  difference  between  the  market  value  at  L.  of  the  ma- 
terial as  it  was  contracted  for  and  of  the  quality  contracted  for,  and 
the  market  value  of  the  material  at  L.  as  it  was  then  delivered  to 
defendants.29 

(c)  If  you  find  damages  in  favor  of  the  defendants  in  this  case, 
the  measure  of  damages  would  be,  if  any,  the  difference  in  the  value 
of  the  yarn  for  the  purposes  for  which  it  was  bought  as  it  was  con- 
tracted to  be  delivered,  and  the  yarn  as  it  was  in  fact,  and  in  addi- 
tion to  this  you  may  allow  such  damages,  if  any,  as  was  done  to  the 
machinery  of  defendants  in  giving  the  yarn  a  fair  trial,  or  such  dam- 
ages, if  any,  as  occurred  from  loss  of  time  in  making  the  trial,  pro- 
vided the  defendants  exercised  ordinary  care  in  making  the  trial,  and 
no  loss  or  damage  to  defendants,  which  might  have  been  avoided  by 
the  exercise  of  ordinary  care  in  the  proper  course  and  management  of 
their  business,  can  be  allowed  to  them  against  plaintiffs.30 

(d)  You  are  instructed  that  if  you  find  from  the  evidence  in  this 
action  that  the  defendant  knew  the  purpose  for  which  this  cement 
sold  to  the  plaintiff  was  to  be  used,  and  warranted  the  same  to  be 
good  cement,  suitable  for  the  purpose  for  which  they  knew  it  was  to 
be  used,  and  you  further  find  from  the  evidence  that  the  cement  in 

29 — Clarke  v.  Van  Court,  34  Neb.  in    the   pleading:,    nor   as    much    as 

154,  51  N.  W.  756  (758-9).  was  shown  by  the  proof.     The  wit- 

30 — Knoxville     "Woolen     Mills     v.  nesses    were    questioned     on     each 

Wallace,  28  Ky.  Law  885,  90  S.  W.  item   of  the   claim,   and   they   fixed 

563.  the    damages    separately,    and    not 

"If  the  court  erred  in  not  limit-  above   the   amount    claimed   in    the 

ing    the     amount    of    recovery    on  pleading;    and    it    ought   not    to    be 

each  item,  the  error  did  not  preju-  presumed    that    the   jury    erred    by 

dice    the   substantial   rights   of   ap-  allowing  more  upon  any  item  than 

pellant.    The    jury    did    not    award  was   claimed   and   proven." 
appellees  as  much  as  was  claimed 


§757.]  DAMAGES,   MEASURE   OP.  533 

question  was  not  good  cement,  and  was  not  suitable  for  the  purpose  to 
which  the  defendant  knew  it  was  to  be  put,  then  your  verdict  should 
be  for  plaintiff,  and  you  will  determine  from  the  evidence  what 
damage  the  plaintiff  has  sustained,  and  allow  him  by  your  verdict 
such  amount  as  the  evidence  shows  is  the  damage  so  sustained,  bear- 
ing in  mind  that  the  plaintiff  is  entitled  to  recover  in  that  event  such 
damages  as  may  be  reasonably  supposed  to  have  been  contemplated 
by  the  plaintiff  and  defendant  at  the  time  the  cement  in  question  was 
sold,  as  appears  from  the  evidence  and  pleadings  in  the  action.31 

(e)  The  court  instructs  the  jury  that  if  you  believe  from  the  evi- 
dence in  this  case,  that  the  defendants  sold  to  the  plaintiff  the  com- 
bination mattresses  and  springs  in  evidence,  and  that  at  the  time  of 
said  sale  they  represented  that  they  were  of  a  first-class  quality  and 
make  and  were  suitable  for  use  in  a  first-class  hotel,  and,  if  you 
further  believe  from  the  evidence,  that  such  combination  mattresses 
and  springs  were  not  of  the  quality  and  kind  contracted,  to  be  de- 
livered, but  were  of  an  inferior  kind  and  quality  and  not  suitable  for 
use  in  a  first-class  hotel,  and  if  you  further  believe  from  the  evidence 
that  such  combination  mattresses  and  springs  were  of  less  value  owing 
to  such  inferior  kind  and  quality,  if  any,  than  the  contract  price 
agreed  to  be  paid  therefor  at  the  time  of  such  sale,  then  the  plaintiff 
would  be  entitled  to  recover  in  this  action  such  difference  in  value, 
and  your  verdict  should  be  for  him.32 

§  757.  Damages  for  Defective  Setting  of  Furnace — Placing  Fur- 
nace by  Request  of  Defendant.  The  court  instructs  the  jury  that 
although  you  may  find,  from  a  preponderance  of  the  evidence  in  this 
case,  that  the  furnace  in  question  was  sold  by  this  plaintiff,  and  that 
said  furnace  was  improperly  set,  and  that  the  registers  and  other  fix- 
tures and  appurtenances  belonging  to  said  furnace  were  improperly 
arranged  and  located,  and  that,  consequently,  defendant's  house  was 
damaged,  and  not  heated,  still  the  jury  cannot,  under  the  law,  allow 
the  defendant  any  damages  in  their  verdict  because  of  such  defects  in 
the  setting,  arrangements,  and  locating  of  said  furnace,  provided  the 
jury  believe  that  said  furnace,  registers,  fixtures,  and  appui'tenances 
were  placed  where  defendant  requested  them  to  be  placed,  and  that 
such  failure  was  caused  by  the  order  of  defendant.33 

§  758.  Measure  of  Damages  for  Non-Payment— Unreasonable  and 
Vexatious  Delay — Interest.  You  are  instructed  that  if  you  find  from 
the  evidence  that  on  or  about  the  15th  day  of  November,  1894,  the  de- 
fendants bought  of  the  plaintiff  a  certain  quantity  of  lumber,  and 
that  said  lumber  was  delivered  to  the  defendants  at  Chicago  on  or 
about  the  3rd  day  of  January,  1895,  and  that  the  defendants  have 
failed,   neglected   and  refused   to  pay   the   plaintiff  for  said   lumber 

31 — Nye  &  Schneider  Co.  v.  Sny-  33 — Richardson  &  Boynton  Co.  v. 

der,  56  Neb.  754,  77  N.  W.  118  (120).  Winter,   38   Neb.    288,   56   N.   W.   886 

32— Haines    v.    Neece    et    al.,    116  (887). 
Mo.  App.  499,  92  S.   W.  922. 


534  FORMS  OF  INSTRUCTIONS.  [§  759. 

according  to  their  agreement,  and  if  you  further  find  thai  there  has 
been  an  unreasonable  and  vexatious  delay  on  the  part  of  the  defend- 
ants in  paying  the  money  so  due  to  the  plaintiff,  then  you  will  find 
the  issues  for  the  plaintiff  and  assess  the  plaintiff's  damages'  at 
such  sum  as  you  find  was  due  the  plaintiff  on  the  17th  day  of  Feb- 
ruary, 1895,  with  interest  thereon  from  that  date  until  the  present 
time  at  five  per  cent  per  annum.34 

§759.  Punitive  Damages  Not  Allowable  in  Suit  on  Contract,  (a) 
In  a  suit  for  breach  of  contract,  the  court  has  no  jurisdiction  to 
award  punitive  damages,  although  such  damages  are  alleged  in  t lie 
petition  and  such  allegation  is  not  demurred  to  at  the  proper  time.35 

(b)  The  court  instructs  the  jury  that,  if  the  plaintiff  has  any  right 
to  recover  in  this  case,  he  can  only  recover  actual  damages  or  such 
damages  as  will  make  good  the  actual  loss  sustained  by  him;  and  you 
cannot  award  exemplary  or  vindictive  damages;  you  must  ascertain 
the  loss,  if  any,  sustained  in  dollars  and  cents,  as  nearly  as  you  can 
approximate  thereto.36 

§  760.  Damages — Amount  Expended  in  Removing  Defective  Pipes 
Not  Reasonably  Fit  for  the  Purpose  Intended — Series,  (a)  The 
court  instructs  the  jury  that  if  you  find  for  the  defendant  upon  its 
counterclaim,  you  will  assess  its  damages  at  such  reasonable  sum  as 
you  may  find  that  defendant  was  compelled  to  expend  in  removing 
and  replacing  such  defective  pipe  and  fittings. 

(b)  The  court  instructs  the  jury  that  the  defendant  cannot  recover 
upon  its  counterclaim  in  reference  to  time  and  labor  expended  in 
using  or  replacing  the  pipe  or  fittings  furnished  by  plaintiff,  unless 
defendant  has  proven  to  your  satisfaction  by  a  preponderance  of  the 
evidence  that  said  pipe  or  fittings  were  not  reasonably  fit  for  the 
purpose  for  which  they  were  sold  to  the  defendant  and  that  the  de- 
fendant was  damaged  thereby. 

(c)  In  this  case  the  defendant  files  a  counterclaim  for  damages 
growing  out  of  an  alleged  breach  of  warranty,  alleged  to  have  been 
entered  into  with  the  plaintiff,  and  as  to  this  counterclaim  the  court 
instructs  you  as  follows:  If  you  find  and  believe  from  the  evidence 
that,  at  the  time  of  the  purchase  of  the  pipe  and  fittings  in  con- 
troversy, the  plaintiff  knew  that  said  pipe  and  fittings  were  purchased 
to  be  used  in  the  manufacture  of  certain  ice  machines,  and  were  re- 
quired to  be  of  a  certain  strength  and  character,  and  the  plaintiff 
agreed  with  the  defendant  to  furnish  pipe  and  fittings  of  that  strength 
and  character,  and  if  you  find  from  the  evidence  that  the  plaintiff 
failed  to  furnish  pipe  and  fittings  of  the  strength  and  character 
ordinarily  used  in  the  manufacture  of  ice  machines,  then  you  will  find 
for  the  defendant.  The  court  instructs  you  that  the  burden  of  proof 
is  upon  the  defendant  to  show  by  a  preponderance  of  the  testimony, 

34_Weise  v.  Gray's  H.  C.  Co.,  708,  48  S.  E.  180,  citing-  Francis  v. 
Ill  111.   App.  647  (650).  Wood,   75   Ga.    648. 

35 — Ford     v.     Fargason,     120     Ga.         36 — City  of  Jacksonville  v.  Doan, 

145   111.   23    (28),   33   N.    E.   878. 


§761.]  DAMAGES,  MEASURE  OF. 

that  is  to  say,  by  evidence  which  you  deem  more  credible  and  of 
Lore  we  gh  than'that  offered  by  the  plaintiff  that  it  agreed  to  to- 
Tsh  pipe  and  fittings  of  the  strength  and  character  ordinarily ^re- 
quired in  the  manufacture  of  ice  machines,  and  also  that  it  failed 
to  furnish  pipe  and  fittings  of  such  strength  and  quality  as  ar  ordi- 
narily used  in  the  manufacture  of  ice  machines,  and  that  it  ^as  dam 
aSd  thereby;  and,  unless  you  believe  that  the  defendant  established 
th'ese  facts X  a  preponderance  of  the  testimony,  you  will  find  for 
the  Plaintiff  upon  defendant 's  counterclaim.  • 

(d)  If  the  jury  believe  from  the  evidence  that  the  tubing  fur- 
nish by  plainHff  to  the  defendant  possessed  a  commercial vatoe  and 
that  the  defendant  received  the  same  and  used  it  the  it  i  the  duty 
of  the  iury  to  return  a  verdict  in  favor  of  plaintiff  upon  its  se^eral 
causes  of  action  for  the  amount  of  principal  sued  on  each  cause  of 
action  together  with  interest  at  the  rate  of  -  -  per  cent,  per  annum 
'  m  ihelat1:  of  maturity  of  the  acceptances  and  note ,  jnd  account 
upon  which  this  suit  is  based;  and  this,  irrespective  of  what  the  jury 
3v  reoard  it  their  duty  to  do  as  to  defendant's  counterclaim 
"Te)  If  on  toother  hand,  you  believe  that  the  defendant^ ordered 
from   Plaintiff   the   pipe    and   fittings   in   controversy    and   that   sad 

and  the  defendant  agreed  to  buy  of  the  plaintiff  from  50,000  to  /o,UUU 

5  :?;;.■•=  sitts  »■» = *?  ssa 

such  an  agreement.37 

8  761  Building  Contracts-Defective  Construct.cn.  The  measure 
of  damans  in  the  ease  is  the  difference,  if  any,  between  the  market 
value  oflL  building  constructed  as  it  is  and  what  .would  have 
been  i 'it  had  been  constructed  according  to  the  contract  " 

762     Discharge  of  Servant-Actual  Loss  of  Wages  rf  Immed.a e 

acts  of  the  defendant,  as  alleged  in  h.s  doolaratxon." 

37-Nat.ona ,    T.    W     Co     ,.    go     g^Jg?&J?t£$£ 

378.  51  S.  W.  564  (565).  at    the    will    of    his    employer,    the 

39-London  G.  &  A.  Co.  v.  Horn,     at    trie    W1  .  event    have 

101  111.   App.   355   (357),   aff  d  206  111.      damages    cou  ^      nomiQal       gee 

493,    69   N.   E.    526. 

••Complaint    is    made    of    the    in 


536  FORMS  OF  INSTRUCTIONS.  [§  763. 

(b)  In  ease  you  should  be  of  the  opinion  that  the  services  of  the 
plaintiff  were  of  value  to  the  defendant,  you  must  determine  the  valu  i 
of  such  services,  under  all  the  credible  evidence  in  the  case,  at  any 
amount  up  to  the  amount  of  $ .40 

§  763.  Discharge  of  Employe— Tendering  Employment  in  Same 
City,  Same  Business,  Same  Salary,  and  Same  Duties,  Good  Defense. 
(a)  If  you  believe  from  the  evidence  that  before  the  relation  of 
employer  and  employe  was  severed  as  between  the  plaintiff,  K.,  and 
defendant,  W.  Company,  that  defendant  offered  or  tendered  plaintiff 
employment  at  the  same  salary  as  plaintiff  was  then  getting,  and  for 
the  same  length  of  time  that  plaintiff  was  then  employed  for,  and  in 
the  same  city  as  plaintiff  was  then  working  in,  and  in  the  same  class 
of  business,  and  with  the  same  duties  that  plaintiff  was  then  per- 
forming, then,  in  that  event,  you  will  find  for  the  plaintiff  against 
defendant  for  the  sum  of  only  $ ,  without  interest. 

(b)  If  you  believe  from  the  evidence  that  defendant,  W.  Company, 
instructed  the  plaintiff.  K.,  to  remove  his  headquarters  from  store  No. 
4  to  store  No.  5,  and  that  such  instructions  were  under  all  the  cir- 
cumstances in  evidence  reasonable  and  within  the  scope  of  defend- 
ant's authority  over  plaintiff,  and  if  you  should  believe  that  plaintiff 
failed  to  obey  such  instructions  and  left  defendant's  service  by  reason 
of  same,  then,  in  that  event,  you  are  instructed  to  find  for  the  plain- 
tiff against  said  defendant  in  the  sum  of  $138  only,  without  interest.41 

Doremus   v.    Hennessy,   176   lit.    608  city,    and    only    a    short    distance 

and    614,    52   N.    E.    924,    68   Am.    St.  from  the  place  where  he  had  been 

Rep.  203,  43  L.  R.  A.  797,  and  Chip-  performing     his     work,     with     the 

ley  v.    Atkinson,   23  Fla.   206,  1    So.  same    duties    practically    as    those 

Rep.  934,  11  Am.  St.  Rep.  367.  What  stipulated    in    the    contract,    which 

has  been   said   and   the  authorities  proposition    plaintiff    declined    and 

cited,    we    think    sufficient    to    dis-  left     appellant's     employment.      At 

pose  of  this  contention,  and   espe-  the   time   there   was   due   him    $138 

cially  in  view  of  the  fact  that  the  on    accrued    salary.      This    amount 

instruction  confines  the  jury  to  the  was   tendered    to   plaintiff,   and    he 

giving-    of    compensatory    damages  refused    to    accept    the    same.     The 

only.      The    evidence    amply    sus-  tender  was  also  duly  made  in  the 

tains  the  amount  of  the  verdict  in  pleading      of      defendant.      It      has 

every    regard.      It    tends    to    show  been  held,  and  we  think  correctly, 

that   but   for  appellee's  discharge  he  that    where    a    discharged    employe 

would   have   earned   more   between  is  offered  the  same  or  like  employ- 

the  time  of  his  discharge   and  the  ment   to   that  from   which   he   has 

trial  of  the  cause,  after  deducting  been     discharged,     for     the     same 

all    that    he    actually    earned,    than  period    and   upon    the    same   terms, 

he  was  awarded  by  the  jury."  and    before    he   has    sustained    any 

40— Ladd    v.    Witte,    116    Wis.    35,  injury  by  reason  of  the  discharge, 

92  N.   W.   365   (367).  no     damages     are     recoverable    by 

41 — Wolf     Cigar     Stores     Co.     v.  him    by    reason    Of    his    discharge. 

Kramer,  —  Tex.  Civ.  App.  — ,  89  S.  Tex.    Ben.    Ass'n.    v.    Bell,    3    Will- 

W  995.  son.    Civ.    Cas.    Ct.    App.    Par.    277. 

"The  undisputed  evidence  showed  See    also,    Weber    Gas,    etc.    Co.    v. 

that  the  appellant  tendered  to  ap-  Bradford,    34    Tex.     Civ.    App.    543, 

pellee   the  opportunity   of   continu-  79   S.   W.   47;   Mudgatt   v.    Tex.   To- 

in£    in    its    service    for    the    entire  bacco   Co.  —  Tex.   Civ.    App.   — ,   61 

unexpired  term  of  the  contract,   at  S.   W.   150:   Allgeyer  v.   Rutherford, 

the  same  compensation  as  that  ex-  —  Tex.    Civ.   App.  — ,   45  S.  W.  628; 

pressed     in     the     contract,     in     the  Lichtenstein  v.  Brooks,  75  Tex.  196, 

same  line  of  business,  in  the  same  12   S.    W.   975;    Wait's   Actions   and 


§764.]  DAMAGES,   MEASURE   OP.  537 

§764.  Action  for  Commissions,  (a)  If  you  find  there  was  no 
contract  for  a  certain  amount  of  commissions,  expressed  or  implied, 
and  find  for  the  plaintiffs,  then  in  that  case  you  will  find  for  the 
plaintiffs  such  an  amount  as  you  believe  from  the  evidence  before  you 
is  a  fair  and  reasonable  compensation  for  the  services  performed. 

(b)  If  you  find  for  the  plaintiffs,  and  further  find  that  plaintiffs 
had  with  defendants  a  contract,  either  expressed  or  implied  by  the 

conduct  of  the  parties,  for  $ ,  then  you  will  find  for  the  plaintiffs 

the  amount  so  expressed  or  implied  by  the  contract,  if  any  you  find.42 

CONTRACTS  OF  MARRIAGE— BREACH  OF. 

§  765.  Breach  of  Promise  to  Marry— What  to  Consider  in  Assess- 
ing Damages— Length  of  Time,  Etc.  The  jury  are  instructed,  that 
should  they  find  for  the  plaintiff,  they  alone  are  the  judges  of  the 
amount  of  damages  to  be  found,  and  in  fixing  the  amount  of  such 
damages,  the  jury  may  take  into  consideration  the  length  of  time  the 
parties  were  acquainted,  the  degree  of  intimacy  existing  between  them, 
so  far  as  proved,  and  all  the  injuries  shown  to  have  been  sustained, 
whether  they  be  from  anguish  of  mind,  blighted  affections,  or  dis- 
appointed hopes,  and  fix  the  amount  of  such  damages  at  such  a  sum 
as  they  think  proper,  under  the  evidence  and  the  instruction  of  the 
court.43 

§  766.  Character  and  Habits  of  Plaintiff— What  May  Be  Shown  in 
Mitigation.  The  jury  are  instructed,  that  in  assessing  damages  for 
the  breach  of  a  marriage  contract,  the  general  rule  is,  that  the  jury 
may  take  into  consideration  all  the  injury,  which  the  evidence  shows 
the  plaintiff  has  sustained,  and  no  more;  and  in  this  case,  if  the  jury 
find  the  issues  for  the  plaintiff,  the  jury  may  take  into  consideration 
the  character  and  habits  of  the  plaintiff,  so  far  as  they  are  proved  by 
the  evidence ;  and  if  the  jury  believe,  from  the  evidence,  that  at  the 
time  of  the  alleged  breach  of  contract,  the  plaintiff  was  addicted  to 
lewdness,  drunkenness,  or  to  the  use  of  profane  language,  and  if  the 
defendant  knew  of  such  conduct  at  the  time  the  contract  of  marriage 
was  made,  then  these  circumstances  should  be  considered  by  the  jury 
in  estimating  the  injuries  sustained  by  her.44 

Defenses    456;  Sutherland  on  Dam.,  have  been  given  by  the  court,  and 

vol     2     p     473;    Wood    Master   and  their  refusal   was   error." 

c>erv    '944-    Oreenleaf   on    Ev„    par.  42— Ellis  v.   Kirkpatrick  &  Skiles, 

261a;'    He'eksher      v.      McCrea,      24  32  Tex.   Civ.  App.   243,   74   S.   W.   57 

Wend.    304;    Am.    &    Eng.    Enc.    of  (58). 

Law     vol.   20    (2d    Ed.),    pp.    34,    35.  43—3    Sutherland   Dam.    (3d    Ed.), 

This   principle   is  especially  applica-  sec.     968;     Sedg\     Dam.,     235,     426; 

ble    to    this     case,    for    the    undis-  Kniffen    v.     McConnell,     30    N.     Y. 

puted  testimonv  is  that  before  the  285;    King    v.    Kersey,    2    Ind.    402; 

plaintiff    left    the    employment     of  Roper   v.    Clay,    18    Mo,   383. 

(ipfenrlant  such  an  offer  was  made.  44— Sutherland     Dam.     (3d     Ed.), 

Plaintiff    voluntarily    declined     the  sec.  163;  3  Id.  sec.  990;   Sedg.  Dam., 

offer   and   elected    to   abandon   the  428;    Burnett    v.    Simpkins,    24    111. 

employment.  264. 
"Above     special     charges     should 


538  FORMS  OP  INSTRUCTIONS.  [§  767. 

§767.  Seduction  of  Plaintiff  After  Contract  of  Marriage  Was 
Made— Aggravation  of  Damages,  (a)  If  the  jury  believe,  from  the 
evidence,  that  the  defendant  entered  into  a  marriage  contract  with 
the  plaintiff,  and  also  that  he  did  seduce  her,  then  they  have  a  right 
to  determine,  from  all  the  facts  and  circumstances,  whether  such  se- 
duction was  consequent  upon  the  promise  of  marriage,  and  if  they  so 
find,  then  the  seduction  may  be  taken  by  the  jury  in  aggravation  of 
the  damages  in  this  case,  provided  they  find  for  the  plaintiff  under  the 
first  (or  other  appropriate)  count  of  the  declaration. 

(b)  In  this  suit,  if  the  jury  believe,  from  the  evidence,  that  the 
defendant  entered  into  a  marriage  contract  with  the  plaintiff,  and 
afterwards  refused  to  carry  out  the  same,  as  charged  in  the  declara- 
tion, and  further,  that  the  defendant,  under  such  promise  of  marriage, 
seduced  the  plaintiff  and  begot  her  with  child,  then  that  circumstance 
may  be  taken  into  account  by  the  jury  in  estimating  the  plaintiff's 
damages.45 

(c)  If  the  jury  believe,  from  the  evidence,  that  the  defendant 
entered  into  a  marriage  contract  with  the  plaintiff,  within  five  years 
before  the  commencement  of  this  suit,  and  that  under  the  pretense  of 
such  promise  of  marriage,  he  seduced  and  got  the  plaintiff  with  child, 
and  then  neglected  and  refused  to  marry  the  plaintiff,  these  circum- 
stances and  such  violation  of  faith  may  be  taken  into  consideration 
by  the  jury  in  estimating  the  plaintiff's  damages. 

(d)  If  the  jury  believe,  from  the  evidence,  that  the  defendant  in 
this  case  Las  attempted  to  prove  that  the  plaintiff  was  a  lewd  or  base 
woman,  and  was  of  immoral  or  bad  character,  and  that  he  has  failed 
to  establish  and  prove  the  same  by  a  preponderance  of  evidence,  and 
that  such  attempt  was  not  made  in  good  faith,  or  was  made  without 
any  reasonable  hope  or  expectation  of  establishing  such  facts,  then 
such  charge  and  failure  on  the  part  of  the  defendant  may  be  taken  in 
aggravation  of  the  damages  in  this  case;  provided,  the  jury  find  the 
issues  for  the  plaintiff.46 

(e)  The  court  instructs  the  jury  that  if  you  find  that  the  plaintiff, 
while  attempting  to  carry  out  a  contract  for  marriage,  entered  into 
by  herself  and  the  defendant,  left  the  Indian  Territory  with  the  de- 
fendant, and  was  seduced  by  the  defendant,  you  may  consider  the  act 
of  the  seduction  as  an  aggravation  of  the  damages  resulting  to  the 
plaintiff  from  the  failure  of  the  defendant  to  carry  out  the  said  con- 
tract of  marriage. 

(f )  And  the  court  further  instructs  you  that  if  you  find  from  the 
evidence  that  the  defendant  made  a  contract  for  marriage  with  the 
plaintiff,  as  set  forth  in  these  instructions,  and  afterwards  refused  to 
carry  out  the  same,  and  after  such  refusal  circulated  the  fact  of  his 

45— Tubbs   v.   Van   Kleek,   12   111.  46—3   Suth.   Dam.    (3d   Ed.),    sees. 

446;    Sheahan    v.    Barry,    27    Mich.  984,    985;    Sedg.    Dam.,    427;    Fidler 

217;   Williams   v.    Hollingsworth,    6  v.   McKinley,   21   111.    308;   Davis   v. 

Baxt.   (Tenn.)  12;  Wilde  v.   Bagan,  Slagle,  27  Mo.  600;  Denslow  v.  Van 

57  lad.   453.  Horn,   16   la.   476. 


§  768.] 


DAMAGES,   MEASURE   OF. 


53U 


seduction  of  the  plaintiff,  and  of  his  relations  with  her,  that  you  may 
take  such  conduct  on  the  part  of  the  defendant  into  consideration  in 
determining  the  measure  of  damages  to  be  awarded  plaintiff.47 


CONVERSION. 

§  768.  Value  of  Property  at  Time  of  Conversion  with  Interest,  (a) 
If,  under  the  evidence  and  the  instruction  of  the  court,  the  jury  find 
the  defendant  guilty  of  the  taking  and  conversion  of  the  property  in 
question,  in  manner  and  form  as  charged  in  the  declaration,  then  the 
measure  of  the  plaintiff's  damages  is  the  value  of  the  property  at  the 
time  of  the  conversion,  as  shown  by  a  preponderance  of  the  evidence, 
with  six  per  cent,  interest  thereon,  from  the  time  of  such  conversion.48 

(b)  If,  under  the  evidence  and  the  instructions  of  the  court,  you 
find  the  defendant  guilty,  then  the  measure  of  the  plaintiff's  damages 
will  be  the  value  of  the  property  at  the  time  of  the  conversion,  and 
sis  per  cent,  interest  thereon  since  that  date.49 

§  769.  Conversion  of  Cross-Ties.  The  court  instructs  the  jury  that 
it  is  the  law  in  this  case  that  if  the  railroad  company  purchased  these 
ties,  and  that  they  were  taken  from  the  land  of  plaintiffs  by  willful! 
trespassers,  the  measure  of  damages  is  the  value  of  the  cross-ties  at 
the  time  of  the  purchase  by  the  railroad  company.50 


47 — Davis  v.  Prvor,  3  Ind.  Ter. 
396.  58   S.   W.   660   (665). 

The  court  said:  "It  is  well  set- 
tled that  evidence  of  seduction  is 
admissible  in  aggravation  of  dam- 
ages, as  charged  by  the  court.  Ap- 
pellant fails  to  cite  any  authority 
to  sustain  the  proposition  that 
evidence  of  the  seduction  beyond 
the  territorial  limits  of  the  state 
or  territory  where  the  promise  was 
made  or  the  suit  is  pending  is  in- 
admissible." 

48—1  Sutherland  Dam.  (3d  Ed.), 
sec.  105;  Sedg.  Dam.,  547;  Tenney 
v.  State  Bank,  etc.,  20  Wis.  152; 
Yates  v.  Mullen,  24  Ind.  277;  Polk 
v.  Allen,  19  Mo.  467;  Cutting  v. 
Fanning,  2  la.  580;  Repley  v.  Dav- 
is,   15    Mich.    75. 

49 — Tenney  v.  State  Bank,  etc., 
20  Wis.  152;  Hurd  v.  Hubbell,  26 
Conn.  389;  Yates  v.  Mullen,  24  Ind. 
277;  Polk  v.  Allen,  19  Mo.  467; 
Cutter  v.  Fanning.  2  la.  580;  Rep- 
ley v.  Davis,  15  Mich.  75. 

50 — Birmingham  Mineral  R.  Co. 
v.  Tenn.  C.  I.  &  R.  Co.,  et  al., 
127  Ala.   137,   28  So.  679   (681). 

"Ordinarily  the  measure  of  dam- 
ages in  trover,  when  the  property 
has  been  wholly  lost,  and  when, 
as   in   this   case,   its   market   value 


is  not  shown  to  have  fluctuated, 
is  the  value  of  the  property  at  the 
time  and  place  of  conversion,  with 
interest  to  the  time  of  trial.  Street 
v.  Nelson,  67  Ala.  504;  -Linam  v. 
Reeves,  68  Ala.  89;  Burks  v.  Hub- 
bard, 69  Ala.  379.  Respecting  prop- 
erty such  as  timber  and  mineral, 
which  has  been  a  part  of  land,  and 
has  become  personal  property  by 
having  been  detached  therefrom 
without  the  owner's  consent,  a  pe- 
culiar principle  has  been  evolved, 
probably  to  lessen  hardships  re- 
sulting from  uncertainties  of 
boundary  or  title.  Under  it,  one 
who,  at  the  cost  of  labor  or  skill, 
has  developed  into  a  more  valu- 
able species  of  property  something 
he  has  inadvertently  severed  from 
another's  land,  may  when  sued  in 
trover,  be  allowed  an  abatement 
in  damages  to  the  extent  of  the 
added  value;  and  the  same  rule 
prevails  when  trover  is  brought 
against  the  unintentional  trespas- 
ser's innocent  vendee,  who  is 
treated  as  standing  in  the  shoes 
of  his  innocent  vendor.  White  v. 
Yawkey,  108  Ala.  270,  19  So. 
360,  32  D.  R.  A.  199,  54  Am.  St. 
Rep.  159:  Winchester  v.  Craig,  33 
Mich.     205;    Bolles    Wooden    Ware 


540 


FORMS  OF  INSTRUCTIONS. 


[§  770. 


§770.  Conversion  of  Timber  and  "Iron  Dogs."  Now,  there  is 
evidence,  also, — whatever  you  may  think  of  the  evidence — that  some 
articles,  called  "iron  dogs,"  went  along  with  the  timber,  and  got  into 
the  possession  of  the  defendants,  I  think,  in  fact,  the  defendants 
acknowledge  that  there  are  some  of  these  articles  in  their  possession, 
and  have  been.  They  follow  the  same  rule  as  the  timber.  The  dam- 
age is  just  what  they  were  actually  worth  at  that  time  and  place.  I 
do  not  know  how  many  you  will  find  that  the  defendants  have  ever 
had  anything  to  do  with.51 

§  771.  Cutting,  Carrying  Away  and  Destroying  Timber,  (a)  The 
court  instructs  the  jury  that  if  they  shall  believe  from  the  evidence 
that  the  defendant,  by  its  agents,  servants,  and  employes,  cut  or  de- 
stroyed or  carried  away,  or  converted  to  its  own  use  any  timber  on  the 
lands  of  plaintiffs  other  than  that  which  it  had  contracted  for  in  the 
three  contracts  read  to  the  jury,  they  should  find  for  the  plaintiffs 
such  a  sum  in  damages  as  they  believe  from  the  evidence  plaintiffs 

have  sustained  thereby,  if  any,  not  exceeding  the  sum  of  $ ,  the 

amount  claimed  in  the  petition. 

(b)  The  court  instructs  the  jury  that  the  measure  of  damages  is 
the  reasonable  value  of  the  timber  at  the  time  it  was  cut.52 

(c)  The  court  instructs  the  jury  that  if  they  believe  from  the  evi- 
dence that  the  plaintiff  is  the  owner  of  the  land  mentioned  and  de- 
scribed in  the  petition,  and  they  further  believe  from  the  evidence 
that  the  timber  sued  for  was  on  said  land,  they  should  find  for  the 
plaintiff  the  damages  sustained  by  the  reason  of  the  cutting  of  said 


Co.  v.  U.  S.,  106  U.  S.  432,  1  Sup. 
Ct.  398,  27  L.  Ed.  230.  This  is  an 
exception  to  the  general  rule  and 
does  not  apply  when  the  severance 
was  wilful;  nor  does  it  appear  that 
there  is  sufficient  reason  or  neces- 
sity for  extending-  it  in  favor  of 
the  wilful  trespasser's  vendee, 
though  he  be  guiltless  of  inten- 
tional wrong.  It  is  upon  the  theory 
and  fact  of  ownership  in  the  prop- 
erty in  its  improved  form  that  the 
recovery  might  have  been  hud  in 
such  case  of  the  vendor,  and  it 
must  be  by  a  questionable  inven- 
tion of  doctrine  if  a  right  can  be 
accorded  to  the  trespasser,  or  al- 
lowed to  his  vendee,  to  restrict  the 
owner's  rights  by  a  transfer  of  the 
property  between  themselves.  A 
consideration  opposed  to  allowing 
the  abatement  for  the  assessed 
value  in  such  case  is  forcibly 
stated  in  Bolles  Wooden  Ware  Co. 
v.  U.  S.,  supra,  where  it  was 
said  it  would  have  effect  to  give 
encouragement  and  reward  to  the 
wrongdoer  by  providing  a  safe 
market  for  what  he  his  stolen  and 
compensation  for  the  labor  he  has 


been  compelled  to  do  to  make  his 
theft  effectual  and  profitable.  The 
case  of  Railroad  Co.  v.  Hutchins, 
37  Ohio  St.  282,  holds  and  presents 
in  perhaps  its  strongest  light  the 
opposite  view;  but  a  dissenting 
opinion  was  there  rendered  by 
Chief  Justice  Boynton  which  in 
line  with  the  Bolles  Wooden  Ware 
case,  supra,  denies  the  asserted 
right  of  a  vendee  to  abate  when 
his  vendor  could  not.  We  accept 
this  view  as  being  in  consonance 
with  the  weight  of  authority,  and 
with  the  legal  axiom  that  no  man 
is  to  be  deprived  of  his  property 
except  by  his  consent  or  by  opera- 
tion of  law.  It  follows  the  court 
did  not  err  in  giving  above 
charge." 

51 — No  error  can  be  found  in  this. 
The  judge  practically  told  the  jury 
to  give  the  plaintiff  the  value  of 
such  dogs  as  they  should  find  de- 
fendant to  have  had."  Davidson 
v.  Kolb,  95  Mich.  469,  55  N.  W. 
373    (374). 

52— Orav  Tie  Co.  v.  Clark,  30 
Ky.  Law  409,  98  S.  W.  1000. 


§772. J  DAMAGES,   MEASURE   OF.  541 

timber  by  defendant,  not  to  exceed  tbe  amount  sued  for,  namely: 


(d)  If  the  jury  believe  from  the  evidence  that  the  defendant  is 
the  owner  of  the  land  mentioned  and  described  in  her  answer  herein, 
and  that  the  timber  mentioned  in  the  petition  was  included  in  her 
boundary,  then  they  should  find  for  the  defendant.53 

§  772.  Removal  of  Partition  Fence,  (a)  The  measure  of  plain- 
tiff's recoveiy  under  first  count  in  the  complaint,  if  the  jury  should 
find  from  the  evidence  that  plaintiff  is  entitled  to  recover  under  the 
first  count,  is  the  amount  of  plaintiff's  interest  in  the  value  of  the 
rails  that  were  converted  by  the  defendant,  if  they  find  from  the 
evidence  that  the  defendant  converted  them,  with  interest  on  that 
sum,  from  the  time  they  were  converted  up  to  the  present  time. 

(b)  If  the  jury  find  from  the  evidence  that  the  fence  in  con- 
troversy was  a  partition  fence,  and  the  premises  inclosed  by  it  were 
not  in  the  possession  of  a  tenant  of  plaintiff  at  the  time  it  was  re- 
moved, and  that  plaintiff  is  entitled  to  recover  under  the  first  count 
of  the  complaint,  then  plaintiff  is  entitled  to  recover  under  said  first 
count  only  half  of  the  value  of  the  rails  that  were  converted  by  the 
defendant,  with  interest  thereon  from  the  time  of  the  conversion  up 
to  the  present  time.54 

CRIMINAL  CONVERSATION— SEDUCTION. 

§  773.  What  May  Be  Considered  in  Assessing  Damages — Relations 
between  Plaintiff  and  His  Wife — Statements  of  Wife  to  Plaintiff. 
Evidence  has  been  admitted   tending  to  show  that  the  wife  of  the 

53 — Commonwealth     v.     Turnpike  said:      'It    is    incumbent    upon    liti- 

Co.,   —    Ky.    — ,    97    S.    W.    375.  gants   to    ask   for   such    instruction 

"It  is  insisted  by  the  appellant  as  they  deem  proper.'  In  L.  &  N.  Ry. 
that  these  instructions  as  given  by  Co.  v.  Roberts,  24  Ky.  Law  Rep. 
the  court  did  not  submit  to  the  1160,  70  S.  W.  833,  the  court  said: 
jury  the  true  issue  involved  in  this  'It  has  been  so  frequently  held  that 
suit,  but  left  the  jury  to  speculate,  it  is  deemed  unnecessary  to  again 
without  directions  or  limitations  elaborate  the  idea  that,  in  a  civil 
on  their  power,  as  to  where  the  case,  unless  the  objecting  party 
boundary  line  between  plaintiff's  offers  an  instruction  covering  the 
and  defendant's  land  was  located,  point  of  his  objection,  he  will  not 
But  we  are  unable  to  find  in  the  be  heard  upon  an  appeal  to  corn- 
record  where  plaintiff  offered  any  plain  of  the  inadequate  instruction 
instruction  in  lieu  of  those  given  given.'  In  L.  &  N.  Ry.  Co.  v.  Har- 
by  the  court,  and  he  cannot  com-  rod,  25  Ky.  Law  Rep.  250,  75  S.  W. 
plain  because  the  court  refused  to  233,  the  court  said:  'The  rule  upon 
give  instructions  asked  for  by  the  that  question  now  is  that,  where 
defendant,  as  he  did  not  join  the  a  party  in  a  civil  case  fails  to 
defendant  in  asking  for  these  in-  offer  an  instruction  upon  a  point 
structions.  It  is  now  a  well-set-  of  law  involved  in  the  case,  it  is 
tied  rule  of  this  court  that  a  liti-  not  error  in  the  court  to  fail  to 
gant  cannot  complain  of  instruc-  instruct  on  that  point.  These  cases 
tions,  correct  in  themselves,  though  seem  to  be  conclusive  upon  ap- 
inadequate,  given  by  the  court,  pellant's  right  to  complain  because 
unless  he  icffered  additional  in-  of  the  instructions  given  by  the 
structions     to     be     given     in     lieu  court." 

thereof.      In    the    case    of   the    City         54— Garrett    v.     Sewell,     108    Ala. 

of  Louisville  v.  Keher,  25  Ky.  Law  521,   18   So.   737. 
Rep.  2003,   79  S.  W.  270,  this  court  • 


542  FORMS  OF  INSTRUCTIONS.  [§  774. 

plaintiff  made  statements  to  him  respecting  her  relation  with  the  de- 
fendant, and  showing  the  relations  between  the  plaintiff  and  his  wife 
since  the  time  of  such  communication.  You  are  instructed  that  you 
cannot  consider  the  statements  of  the  plaintiff's  wife  to  him,  nor  their 
conduct  or  relation  since  that  time  in  determining  the  question  whether 
or  not  defendant  has  had  sexual  intercourse  with  said  wife ;  but  if  you 
find  from  the  other  evidence  in  the  case  that  defendant  did  have  such 
sexual  intercourse,  you  may  consider  the  relations  existing  between 
the  plaintiff  and  his  wife  since  the  time  it  is  claimed  she  made  state- 
ments to  plaintiff,  as  above  suggested,  in  determining  the  damages 
that  plaintiff  has  sustained,  if  any,  by  reason  of  such  acts  of  the 
defendant;  but  such  damages  cannot  be  increased  because  of  any 
unreasonable  conduct,  if  any,  of  the  plaintiff.55 

§  774.  Wounded  Feelings  and  Affections  of  Husband — Domestic 
and  Social  Relations.  The  jury  are  instructed  that,  if  you  find  for 
the  plaintiff,  in  estimating  the  injury  he  has  sustained,  the  jury  may 
take  into  consideration  the  wounded  feelings  and  affections  of  the 
husband,  the  wrong  done  to  him  in  his  domestic  and  social  relations, 
the  stain  and  dishonor  he  has  sustained,  and  the  grief  and  affliction 
suffered,  in  consequence  of  the  act  complained  of,  and  give  damages 
accordingly.56 

§  775.  Debauching  Plaintiff's  Wife  Without  the  Aid  or  Procure- 
ment of  Plaintiff.  If  you  find  from  the  evidence  that  the  defendant 
carnally  knew  and  debauched  plaintiff's  wife  without  the  aid  or  pro- 
curement of  plaintiff,  then  you  will  consider  and  determine  the  amount 
of  damages  to  be  assessed  against  the  defendant.57 

55 — Ball  v.  Marquis,  122  Iowa  665,  Hartrunft,   41  111.  12:    'In  this  class 

98   N.   W.    691   (692).  of   cases   the    loss   of   services   may 

56 — Smith   v.    Meyers,   52   Neb.   70,  be    alleged    injury,    but    the    injury 

71   N.   W.    1006   (1008).  to    the   character   of   the    family    is 

"The   elements    of    damages   enu-  the   real   ground   of  recovery  when 

merated   in   this   paragraph   of   the  the   cause   of  action   relates  to  the 

charge    were    proper    subjects    for  wife  or  daughter.  The  degradation 

the    consideration    of    the    jury    in  which     ensues,     the     distress     and 

reaching    a    verdict,    and    it    is    au  mental    anguish    which    necessarily 

unfair  criticism  of  this  instruction,  follow,   are    the   real    causes   of    re- 

when   read  in  the   light   of  the  re-  covery.     It  has  not  been  the  policy 

mainder  of  the  charge,  to  say  that  of  the  law  to  confine  the  recovery 

the     court     assumed    plaintiff    had  by  the  injured  party  to  the  precise 

sustained   all    those   different   items  amount    of    money    which    he    has 

of    damages.      If    the    mere    state-  proved  he  has  lost  by  the  depriva- 

ment    of    the    elements    which    the  tion     of    labor    ensuing    from    the 

jury    might    consider    in   fixing   the  injury.  But  the  law  has,  in  a  more 

amount  of  recovery  created  an  im-  just   spirit,   allowed  a   recovery  for 

pression  unfavorable  to  defendant,  injury    to    family    reputation    and 

he  is  to  blame  for  having  so  acted  anguish    growing    out    of    the    in- 

as    to    cause    a    judicial    investiga-  jury.'     See   Stumm  v.   Hummel,   39 

tion  of  the  facts.     Plaintiff  was  not  Iowa    478;    Long    v.    Boe,    106    Ala. 

limited  in   the  amount  of  recovery  510,    17    So.    716;    Rice    v.    Rice,    104 

to  such  sum  as  would  merely  com-  Mich.    371,    62   N.    W.    833;    Cross   v. 

pensate  him   Cor  loss  o-f  services  of  Grant,    62    N.    H.    675,    13    Am.    St. 

the  wife  during  the  time  they  were  Rep.  607." 

senarated.     Using   the  language   of  57— Lee    v.    Hammond,    114    Wis. 

Chief  Justice   Walker   in   Yundt   v.  550,   90  N.    W.   1073   (1075). 


§776.]  DAMAGES,   MEASURE   OF.  543 

§  776.  Compensation  for  Injury  and  Damage  Suffered— Shame  and 
Ridicule,  Mental  Anguish  and  Distress,  (a)  The  jury  are  instructed 
that  the  law  forbids  the  debauching'  of  a  man's  wife.  And  if  a  man 
violates  the  sanctity  of  another's  household  by  having  carnal  inter- 
course with  another's  wife,  the  person  so  offending  is  liable  in  dam- 
ages to  the  party  injured  for  such  misconduct. 

(b)  And  if  the  jury  believe  from  the  evidence  that  the  defendant 
had  carnal  intercourse  with  the  wife  of  the  plaintiff,  as  alleged  in 
the  petition  herein,  then  your  verdict  should  be  for  the  plaintiff,  in 
such  sum  as  you  believe  from  the  evidence  will  compensate  him  for 
the  injury  and  damage  he  has  suffered,  not  exceeding  the  amount 
claimed  in  the  petition.  And,  in  determining  the  amount  of  such 
damages,  you  should  take  into  account  the  shame  and  ridicule  plain- 
tiff is  subject  to,  and  the  mental  anguish  and  distress  he  would  nec- 
essarily suffer  by  the  action  of  the  defendant.58 

§  777.  Seduction — What  May  Be  Considered  in  Assessing  Damages. 
The  jury  are  instructed  that  in  fixing  the  damages  you  are  to  con- 
sider, first,  loss  of  time  by  plaintiff,  the  expense  incurred  for  medical 
attendance  while  sick  and  the  like;  second,  physical  suffering;  third, 
the  mental  anguish,  loss  of  character  and  social  standing,  and  sense 
of  shame  caused  by  the  seduction. S9 


INTOXICATING  LIQUORS. 

§  778.  Death  from  Intoxication — Suit  by  Widow — Exemplary  Dam- 
ages— Aggravating  Circumstances,  (a)  If  the  jury  find,  from  the  evi- 
dence, under  the  instructions  of  the  court,  that  the  defendants,  or 
either  of  them,  are  guilty,  as  charged  in  the  declaration,  and  that  the 
plaintiff  has  suffered  actual  damages,  then  it  will  be  the  duty  of  the 
jury  to  assess  the  amount  of  such  actual  damages ;  and  if  the  jury 
further  believe,  from  the  evidence,  that  there  were  any  willful,  wanton 
and  aggravating  circumstances  attending  the  sale  of  said  intoxicating 
liquors,  then  the  jury  may,  in  addition  to  such  actual  damages,  find 
such  further  exemplary  damages  as  they  shall  deem  proper,  not  to 
exceed  in  amount  the  sum  of  $ ,  demanded  in  the  declaration. 

(b)  The  court  instructs  the  jury  that  in  a  suit  by  a  wife  for  in- 
jury to  her  means  of  support,  caused  by  selling  liquor  to  her  hus- 
band, she  cannot  recover  exemplary  damages,  unless  the  jury  find, 
from  the  evidence,  that  she  has  sustained  actual  damages.00 

(c)  Although  the  jury  may,  in  this  class  of  cases,  give  exemplary 
damages  if  they  find  the  defendant  guilty,  and  further  find,  from  the 
evidence,   that   the  plaintiff  has   sustained   any  actual   damages,   yet 

"We  perceive  no  reversible  error  59 — Lampman  v.  Pruning,  120  la. 

in  the  charge  of  the  court,  Matheis  167,  94  N.  W.   562  (564). 

v.   Mazet.   164  Pa.   580,   30  Atl.   434."  60— Graham     v.     Fulford,     93    111. 

58— Smith   v.    Mevers,    52   Neb.   70,  596;    Gilmore    v.    Mathews,    67    Me. 

71    N.    W.    1006    (1008).  517. 


544  FORMS  OF  INSTRUCTIONS.  [§  779. 

the  jury  cannot  give  any  damages  by  way  of  punishment  to  the 
defendant,  unless  they  believe,  from  the  evidence,  that  the  plaintiff 
has  sustained  some  actual  pecuniary  damages;  nor  should  they 
give  exemplary  damages,  unless  they  find,  from  the  evidence,  some 
circumstances  of  aggravation  in  connection  with  the  conduct  of 
the  defendants  (or  some  of  them)  calling  for  such  damages.01 

§  779.  What  to  Consider  in  Determining  Whether  to  Give  Exem- 
plary Damages.  If,  under  the  evidence  and  the  instruction  of  the 
court,  the  jury  find  the  defendant  guilty,  and  they  further  believe, 
from  the  evidence,  that  the  plaintiff  B.  has  suffered  any  pecuniary 
loss  in  her  means  of  support  in  consequence  of,  etc.,  then  if  you 
further  believe,  from  the  evidence,  that  she  has  been  excluded  from 
society  on  account  of  her  husband's  habits  of  intoxication,  and  that 
such  intoxication  has  been  in  part  produced  by,  etc.,  or  that  she 
has  suffered  mental  anguish  and  shame  on  account  of  his  drunken- 
ness, and  that  this  has  been  caused  in  whole  or  part  by,  etc.,  then 
these  facts  may  be  taken  into  account,  in  determining  whether  or 
not,  you  should  give  exemplary  damages.62 

§  780.  No  Allowance  for  Mortification  or  Mental  Suffering  of 
Plaintiff  or  Surviving  Relatives.  That  in  estimating  the  actual  dam- 
ages which  the  plaintiff  has  sustained,  the  jury  should  not  take  into 
consideration  any  mortification  to  her  feelings,  or  mental  suffering 
on  her  part;  in  estimating  the  actual  damage,  the  jury  can  only 
consider  the  pecuniary  loss,  if  any,  which  she  has  sustained,  as  shown 
by  the  evidence,  but  no  allowance  can  be  made  for  the  grief  or  be- 
reavement of  surviving  relatives.03 

§  781.  Loss  of  Support — Damages  from  Intoxication,  (a)  If  you 
believe,  from  the  evidence,  that  the  husband  of  the  plaintiff  before 
his  death  was  in  such  circumstances  that  the  plaintiff,  as  his  wife, 
required  the  proceeds,  or  a  part  of  the  proceeds,  of  his  daily  labor 
for  her  support,  then  she  was  entitled  to  this  support  out  of  his  daily 
labor;  and  if  you  further  believe,  from  the  evidence,  that  while 
she  was  entitled  to  such  support  the  defendant  sold  him  intoxicat- 
ing liquors  from  time  to  time  which  caused  his  intoxication  (or  con- 
tributed to  such  intoxication)  and  that  the  plaintiff  was  thereby 
deprived  of  her  means  of  support  in  whole  or  in  part,  then  the  de- 
fendant would  be  liable  to  respond  in  damages  to  the  amount  of  the 
support  he  so  deprived  her  of. 

(b)  Every  man  who  has  a  wife  owes  her  maintenance  and  sup- 
port, and  if  his  only  means  of  affording  such  support  is  out  of  his 
daily  labor,  then,  if  a  person  sell  him  intoxicating  drinks  so  as  to 
produce   intoxication   and   thereby   renders   him   unfit   for   labor   and 

61— Bates    v.    Davis,    76    111.    222;  63— Brantigan    v.    White,    73    111. 

Meidel    v.    Anthis,   71   111.    241.  561;  Kans.  P.   Rd.   Co.   v.   Cutler,  19 

62 — Friend  v.  Dunks,  37  Mich.  25;  Kans.    83;    Hunting-den    Rd.    Co.    v. 

See     Brownford     v.     Swineford,     44  Decker,  84  Penn.   St.  419;  March  V. 

Wis.  282;  Boyer  v.  Barr,  8  Neb.  68.  Walker,  48  Texas  372. 


§782.]  DAMAGES,  MEASURE  OF.  545 

prevents  hirn  from  pursuing  his  only  means  for  the  support  of  his 
wife,  such  person  is  liable  to  the  wife  for  the  loss  thus  sustained 
by  her.04 

(e)  If  you  find  for  the  plaintiff,  she  will  be  entitled  to  recover 
such  reasonable  sum  of  money,  not  to  exceed  $ ,  as  in  your  judg- 
ment will  compensate  her  for  the  actual  damage,  if  any,  to  her 
means  of  support,  caused  by  sales  of  intoxicating  liquor  by  de- 
fendant, his  agents  or  servants,  to  the  plaintiff's  husband.05 

LIVE  STOCK—  INJURIES  TO. 

§  782.  Cattle  Damaged  or  Injured  in  Transportaion — Overloading, 
(a)  The  law  is  that  a  common  carrier  like  the  defendant  must  pay 
the  market  value  at  the  point  of  destination  of  all  property  entrusted 
to  it  for  transportation  which  through  its  fault  is  lost  or  destroyed 
and  is  not  delivered.  The  law  also  is,  that  if  a  carrier  receives  prop- 
erty for  transportation  and  delivers  it  at  the  end  of  its  route,  but, 
through  its  fault,  it  is  damaged  and  it  fails  to  deliver  it  in  the  same 
condition  as  when  received,  it  must  pay  the  difference  between  the 
value  of  the  property  in  its  damaged  condition  at  the  point  of  des- 
tination and  what  the  value  of  the  property  would  have  been  at  that 
place  if  delivered  in  the  same  condition  as  when  it  was  received 
for  transportation.  These  are  the  general  rules  of  law  which  must 
be  applied  in  the  assessment  of  the  damages  in  the  two  eases  now 
on  trial.66 

(b)  Should  you  find  for  plaintiff  under  the  instructions  herein 
given,  you  are  instructed  that  the  measure  of  damages  for  the  loss 
of  cattle  dying,  if  any,  from  injuries  received  in  transportation, 
through  the  negligence,  if  any,  of  defendant,  is  the  market  value  of 
the  cattle  at  the  time  and  place  of  destination;  as  to  those  injured, 
if  any,  the  difference  between  the  market  value,  if  any,  of  the  cattle 
at  the  time  and  place  of  destination  in  the  condition  in  which  they 
would  have  arrived  if  properly  handled  and  transported,  and  their 
market  value  at  the  time  and  place  of  destination  in  the  condition 
in  which  they  did  arrive  there. 

(c)  The  defendant,  the ,  would  only  be  liable  for  dam- 
ages and  injury,  if  any,  done  to  said  cattle  by  reason  of  the  negli- 
gence, if  any,  of  said  company  while  said  cattle  were  in  the  posses- 
sion of  said  company  and  on  its  own  line  of  road.  The  court  instructs 
you  that  if  you  believe  from  the  evidence  that  the  plaintiff  negligent- 
ly overloaded  the  cattle  in  the  cars  for  transportation  to  T,  and 
that  his  negligence  in  that  particular,  if  any,  contributed  to  the 
damage  suffered  by  his  said  cattle,  if  any,  then  you  will  return  your 

64— Schneider   v.    Hosier,   11   Ohio  66— New  York.   etc.    R.    R.    Co.   v. 

St.    OS.  Estill,  147  U.    S.    591    (598),   13   S.   Ct. 

65 — Garrigan    v.    Kennedy,    —    S.  444. 
D  — ,   101  N.    W.    1081    (10S5). 

35 


546  FORMS  OP  INSTRUCTIONS.  [§  783. 

verdict  for  defendants,  even  though  you  may  believe  from  the  evi- 
dence that  the  defendants  were  negligent  in  handling  plaintiff's 
cattle.67 

§783.  Same  Subject — Difference  in  Value  in  Their  Injured  Con- 
dition and  the  Condition  They  Would  Have  Been  in  If  Not  Injured 
— Enumerated  Questions  of  Fact,  (a)  If  you  believe  from  the  evi- 
dence that  the  cattle  in  question  were  by  the  negligence  of  defend- 
ant, injured  during  transportation,  then  you  are  instructed  that  the 
measure  of  damages  would  be  the  difference  in  the  market  value  of 
such  cattle  at  the  place  of  destination  at  the  time  they  arrived 
there,  in  their  injured  condition,  if  injured,  and  their  market  value 
at  such  place  of  destination  in  the  condition  they  would  have  been 
in  when  they  should  have  arrived  there,  but  for  such  injuries.68 

(b)  In  the  light  of  testimony,  both  for  the  plaintiffs  and  defend- 
ant, to  which  I  have  alluded,  and  in  the  light  of  any  other  testimony 
in  the  case  which  you  may  recall,  and  bearing  in  mind  that  the  bur- 
den of  proof  is  on  the  plaintiffs  to  show  that  the  cattle  in  question 
received  injuries  and  the  extent  and  result  of  such  injuries,  you 
will  have  to  determine  the  following  important  questions  of  fact, 
namely,  1st :  How  many  cattle  in  each  herd  were  injured  in  any  man- 
ner, in  consequence  of  the  collision,  to  such  extent  as  to  lessen  their 
market  value  at  the  point  of  destination?  2d.  How  many  of  L. 
Bros.'  cattle  were  killed  or  badly  injured  and  left  at  Nankin,  in 
consequence  of  the  collision,  and  what  would  have  been  the  value  of 
such  cattle  in  S.  county  at  the  time  they  should  have  arrived,  if  they 
had  been  delivered  in  the  condition  in  which  the  defendant  received 
them?  3d.  How  many  of  L.  Bros.'  cattle  (if  any)  died  of  injuries 
received  by  the  collision  after  they  had  been  delivered  to  L.  Bros., 
and  what  was  the  reasonable  market  value  in  S.  county  of  those 
cattle  if  they  had  arrived  uninjured?  4th.  How  many  animals  in 
each  herd  lost  their  calves  as  the  direct  result  of  the  collision,  and 
to  what  extent  did  such  loss  of  their  calves  lessen  their  market 
value  at  the  point  of  destination?  5th.  What  number  of  cattle  in 
each  herd,  besides  those  that  are  said  to  have  died  or  lost  calves, 
were  otherwise  injured  by  the  collision,  by  strains,  bruises,  etc.,  so 
as  to  materially  lessen  their  market  value,  and  what  was  the  amount 
of  such  depreciation  in  value?  To  arrive  at  a  just  and  intelligent 
verdict  in  these  cases  you  will  have  to  determine  from  the  testimony 
each  of  the  foregoing  questions.69 

§  784.  Cows  or  Heifers  Being  With  Calf  at  the  Time  of  Collision — 
Aborted  Their  Calves  in  Consequence,  (a)  If  the  jury  are  satis- 
fied by  a  preponderance  of  the  evidence  that  the  cows  or  heifers  men- 

67— Missouri   K.   &  T.    Ry.    Co.   v      Millar,   24  Tex.  Civ.    App.  430,  59  S 
Chittim,   24   Tex.    Civ.    App.    599,    60     W.    550   (551). 
S.   W.   284   (285).  69— N.    Y.    L.    E.    &   W.    R.    R.    Co. 

6S— Gulf.   C.   &   S.    F.    Ry.   Co.   v.     v.   Estill,   147  U.   S.   591   (602),  13  S, 

Ct.  444. 


§784.]  DAMAGES,   MEASURE   OP.  547 

tioned  in  the  petition  were  with  ialf  at  the  time  of  the  collision  al- 
leged in  the  petition,  and  that  some  of  them  aborted  their  calves 
in  consequence  of  injuries  received  in  said  collision,  and  that  ordinary 
care  and  prudence  required  that  such  aborting  cow  or  cows  should 
be  separated  from  the  other  pregnant  cows  of  plaintiffs,  and  that 
this  was  not  done,  but  such  aborted  cow  or  cows  was  or  were  allowed 
to  be  and  remain  with  the  other  pregnant  cows,  by  reason  of  which 
such  other  pregnant  cow  or  cows,  or  some  of  them,  aborted  their 
calves  by  contagion  or  sympathy,  they  should  not  allow  damages  for 
or  on  account  of  abortions  thus  caused  by  contagion  or  sympathy. 

(b)  I  will  also  say  that  the  defendant  cannot  be  held  liable  for 
losses  occasioned  by  premature  birth  of  calves,  or  by  the  death  of 
stock,  if  such  births  or  deaths  were  the  result  of  over  feeding  or  the 
result  of  change  of  climate  or  fatigue  or  heat  or  of  a  long  voyage 
on  the  ocean  or  by  rail,  or  of  all  such  cases  combined.  .  In  other 
words,  gentlemen,  the  defendant  is  only  liable  for  such  premature 
births  and  deaths  as  are  shown  by  the  testimony  to  have  been  di- 
rectly occasioned  by  injuries  sustained  in  the  collision.  The  ques- 
tion as  to  what  causes  led  some  of  the  animals  in  the  two  herds  to 
lose  their  calves  or  to  die  after  arrival  is  a  question  which  you  may 
find  some  difficulty  in  solving,  as  in  the  nature  of  things  these  are 
questions  that  do  not  admit  of  solution  by  positive  or  direct  proof. 
I  will  only  say  that  you  must  apply  your  best  judgment  and  your 
experience  to  the  solution  of  these  questions,  giving  to  all  the  testi- 
mony, including  that  of  the  experts,  such  weight  as  you  think  it 
fairly  deserves.  If,  iqion  a  fair  consideration  of  the  subject,  you 
deem  the  evidence  insufficient  to  establish  what  was  the  cause  of  the 
abortions,  then  it  will  be  your  duty  to  disallow  the  plaintiff's  claims 
for  damages  on  that  account.  If  the  evidence  establishes  to  your 
satisfaction  that  some  of  the  abortions  were  the  direct  result  of  the 
collision,  but  leaves  you  undecided  as  to  the  cause  of  other  abortions, 
then  you  should  allow  damages  for  such  as  you  are  satisfied  were 
the  result  of  the  collision  and  disallow  the  plaintiffs'  claims  as  to  the 
residue. 

(c)  The  jury  are  further  instructed  that  before  they  can  allow 
the  plaintiffs  damages  on  account  of  abortions,  as  claimed  in  the 
petition,  they  must  be  satisfied  by  a  preponderance  of  the  evidence 
that  the  abortions,  if  any,  were  caused  directly  by  the  alleged  col- 
lision. 

(d)  If  L.  Bros,  have  satisfied  you  by  the  evidence  that  any  cows 
or  heifers  that  wrere  with  calf  when  the  collision  occurred,  as  the 
direct  result  of  that  collision,  lost  their  calves,  and  that  such  prema- 
ture casting  of  their  calves  made  the  animals  less  valuable  in  the 
market  than  they  would  have  been  but  for  such  loss,  then  they  are 
entitled  to  recover  the  amount  of  the  depreciation  in  value  of  any  of 
the  animals  that  so  lost  their  calves. 

(e)  The  court  instructs  the  jury  that  unless  the  defendant  knew 


548  FORMS  OF  INSTRUCTIONS.  [§785. 

that  some  of  the  cattle  of  the  plaintiffs  were  cows  or  heifers  in  calf 
plaintiffs  are  not  entitled  to  recover  for  abortions,  though  they  may 
have  been  caused  by  the  wreck,  as  in  that  event  damages  on  account 
of  abortion  could  not  have  been  in  the  contemplation  of  the  defend- 
ant at  the  time  the  cattle  were  received. 

(f)  If  the  jury  find  that  the  plaintiffs'  cows  aborted  their  calves 
after  the  alleged  collision,  and  that  some  of  said  abortions  were 
caused  by  said  collision,  and  that  some  were  the  result  of  poison, 
fatigue,  heat,  exhaustion,  or  any  cause  other  than  the  collision,  and 
the  jury  are  unable  to  determine  from  the  evidence  which  cows  and 
how  many  aborted  in  consequence  of  the  collision  and  which  from 
other  causes,  they  should  not  allow  damages  on  account  of  abortion 
from  any  cause. 

(g)  The  court  instructs  the  jury  that  the  burden  is  not  upon  the 
defendants  to  account  for  the  abortions  amongst  cows  and  heifers  of 
plaintiffs,  if  there  were  such  abortions,  but  upon  the  plaintiffs  to 
prove  and  establish  by  a  preponderance  of  the  evidence  that  such 
abortions  Avere  caused  by  the  collision  alleged  in  the  petition,  and  if 
upon  all  the  evidence  the  jury  are  not  convinced  that  such  abortions 
were  caused  by  the  injury,  they  should  not  allow  damages  for  such 
abortions,  although  they  may  not  be  able  to  determine  from  the 
evidence  what  the  real  cause  of  such  abortion  was.70 

§  785.  Injuries  to  Horses  While  Being  Transported — Rule  of  Dam- 
ages. The  court  instructs  the  jury  that  if  you  find  for  the  plaintiff 
in  this  case,  that  in  estimating  the  plaintiff's  damages  you  have  a 
right  to  take  into  consideration  the  difference  in  the  fair  market 
value  of  the  horses  in  question,  and  each  of  them,  at  the  time  of  the 
shipping  of  said  horses  from  Geneva,  111.,  to  Fort  Wayne,  Ind.,  and 
their  fair  market  value  after  the  injury  complained  of,  as  shown 
by  the  evidence  in  this  case,  and  also  whatever  sum  or  sums  of  money 
the  evidence  shows  the  plaintiff  paid  out  in  endeavoring  to  cure  said 
horses  or  either  of  them  from  the  injuries  complained  of,  and  all 
the  loss  sustained  by  the  plaintiff  by  reason  of  such  injury,  if  any 
such  loss  is  shown  by  the  evidence  in  this  case,  not  exceeding  the 
value  of  said  horses,  and  not  exceeding  the  amount  claimed  in  the 
plaintiff's  declaration.71 

MALICIOUS  PROSECUTION— FALSE  IMPRISONMENT. 

§  786.  Malicious  Prosecution — What  to  Consider  in  Assessing 
Damages,  (a)  The  jury  are  instructed,  that  if,  from  the  evidence 
and  instruction  of  the  court  you  find  the  defendant  guilty,  then  in 
assessing  the  amount  of  the  plaintiff's  damages  you  have  a  right  to 

70 — The   seven  instructions   above  71 — C.   &  N.-W.  Ry.  Co.  v.   Calu- 

were  approved  in  N.  Y.  L.  E.  &  W.  met    Stock    Farm,    194    111.    9    (14), 

R.    R.    Co.    v.    Estill,    147   U.    S.    591  aff'g  96  111.  App.   337,  61  N.  E.  1095, 

(604),   13   S.   Ct.  444.  88  Am.   St.   68. 


§787.]  DAMAGES,   MEASURE  OF.  549 

take  into  account  the  peril  to  which  defendant  was  subjected  of  los- 
ing his  liberty,  and  also  the  injury  to  his  reputation  and  feelings,  if 
you  find  from  the  evidence  that  he  was  injured  in  his  reputation  and 
feelings  by  the  charge  made  against  him.72 

(b)  If  you  find  for  the  plaintiff,  you  will  award  him  such  damages 
as  will  fairly  compensate  him  for  any  injuries  or  indignity  he  may 
have  sustained.  In  awarding  such  damages,  you  may  consider  the 
character  of  his  injuries;  what  physical  injury,  if  any,  he  sustained; 
and  also  the  mental  suffering,  if  any;  also  any  sense  of  shame  or 
humiliation  suffered  on  account  of  such  wrongful  acts,  if  any,  that 
were  committed  against  him;  and  award  him  such  damages  as  will 
be  a  fair  compensation  in  the  premises.73 

§787.  Same  Subject — Exemplary  Damages,  (a)  The  jury  are 
instructed,  that  in  actions  of  this  kind,  if  the  jury  find  the  defendant 
guilty  under  the  evidence  and  instructions  of  the  court,  and  that  the 
plaintiff  has  sustained  any  injury  or  damage  by  reason  of  the  charge 
brought  against  him,  then,  in  assessing  the  plaintiff's  damages,  the 
jury  are  not  limited  to  mere  compensation  for  the  actual  damage  sus- 
tained by  him;  they  may  give  him  such  a  further  sum  by  way  of 
exemplary  or  vindictive  damages  as  the  jury  may  think  right  in  view 
of  all  the  circumstances  proved  on  the  trial,  as  a  protection  to  the 
plaintiff  and  as  a  salutary  example  to  others  to  deter  them  from 
offending  in  like  manner.  And  in  determining  the  amount  of  exem- 
plary damages  which  would  be  proper  to  give,  the  jury  may  take  into 
consideration  the  pecuniary  circumstances  of  the  defendant  so  far 
as  they  have  been  proved.74 

(b)  If  you  find  that  the  defendant,  without  probable  cause,  and 
maliciously,  caused  the  arrest  of  the  plaintiff,  you  are  authorized  to 
go  further,  and  award  punitory  damages  in  such  sum  as  will  be  a 
warning  to  defendant  and  all  other  persons  not  to  commit  similar 
wrongs,  and  consequently  such  damages,  to  be  effectual,  must  have 
some  relation  to  the  financial  ability  of  the  defendant.  It  is  on  this 
theory  that  evidence  as  to  defendant's  financial  ability  has  been 
admitted.75 

§  788.  Injuries  to  Feelings,  Credit  and  Reputation.  The  court  in- 
structs you  that  if  you  find  for  the  plaintiff,  the  measure  of  actual 

72 — Lavender  v.  Hudgens,  32  Ark.  to    any   injury   he   may   have    sus- 

763.  tained.     This  is  a  conditional  state- 

73 — Golibart    v.    Sullivan,    30    Ind.  ment.      It    is    not    an    assumption. 

App.  428,  66  N.  E.  188  (191).  The  jury  as  persons  of  average  in- 

"The    objection   made   to  this   in-  telligenee     must     have     understood 

struction    is    that    it    assumes    that  that  the  court  limited  their  consid- 

appellee    suffered,    when    it    is    not  eration    to   the    acts   of   the   appel- 

shown  by  the  evidence  that  he  suf-  lants,    or    either    of    them,    and    to 

fered;    also    that    it    told    the    jury  which  the  evidence  related." 

that  they  might  consider  his  sense  74 — Winn    v.     Peckham,     42    Wis. 

of    shame    or    humiliation    without  493. 

confining    it   to    the   acts    of   .  75 — Eggert   v.   Alien,  119  Wis.  625, 

The   award   of   damages   is   limited  96  N.   W.   803   (805-6). 


550  FORMS  OF  INSTRUCTIONS.  [§  789. 

damages  will  be  such  a  sum,  not  to  exceed  the  amount  sued  for  as 
actual  damages,  as  you  may  find  from  the  evidence  to  be  a  just  and 
reasonable  compensation  to  plaintiff  for  the  injury,  if  any,  sustained 
by  him  as  the  direct  and  proximate  result  of  said  criminal  prosecu- 
tion, taking  into  consideration  the  loss  of  time  and  the  reasonable 
expense,  if  any,  necessarily  incurred  by  plaintiff  in  the  defense  of 
said  prosecution,  and  the  injury,  if  any,  to  plaintiff's  feelings,  credit 
or  reputation/6 

§  789.  Malicious  Prosecution  for  Arrest  of  Passenger — What  Must 
Be  Shown  by  Plaintiff — Shame,  Mortification,  Mental  Anguish,  Pain 
and  Injury  to  Feelings  May.  Be  Considered  in  Determining  Damages. 

The  court  instructs  the  jury  that  if  they  find  and  believe  from  a  pre- 
ponderance of  the  evidence,  first,  that  the  defendant,  through  its  con- 
ductor on  said  car  mentioned  in  the  evidence,  acting  within  the  scope 
of  his  authority,  as  defined  in  these  instructions,  instituted  and  prose- 
cuted the  proceedings  against  the  plaintiff  set  forth  in  the  petition; 
second,  that  the  prosecution  alleged  in  said  petition  was  finally  de- 
termined in  favor  of  the  plaintiff;  third,  that,  from  all  the  facts  and 
circumstances  connected  with  the  case,  the  defendant,  at  the  time  of 
instituting  and  carrying  on  the  prosecution  mentioned  in  the  petition, 
had  no  reasonable  or  probable  cause  to  believe  plaintiff  was  guilty  of 
the  offense  charged,  as  more  fully  explained  in  another  instruction 
given  you;  fourth,  that  in  said  proceedings  against  the  plaintiff  the 
defendant  was  actuated  by  malice  towards  plaintiff — then  their  ver- 
dict will  be  for  the  plaintiff,  and  they  will  assess  his  actual  damages 
in  such  sum  as  they  believe  from  the  evidence  will  fairly  and  reason- 
ably compensate  him  for  any  shame,  mortification,  mental  anguish, 
and  pain  and  injury  to  his  feelings  which  they  may  believe  from  the 
evidence  was  suffered  by  him,  and  directly  resulted  from  defendant's 
alleged  acts;  and  the  jury  is  further  at  liberty,  if  they  believe  from 
the  evidence  that  said  alleged  act  or  acts  of  the  defendant  were  done 
wantonly,  maliciously,  and  in  gross  disregard  of  plaintiff's  rights  as 
a  passenger  on  said  defendant's  car,  if  they  so  find  and  believe  him 
to  be  (and  if  they  think  just  and  proper  in  view  of  all  the  facts  and 
circumstances  in  evidence),  to  award  to  plaintiff  punitive  or  exem- 
plary damages,  in  addition  to  actual  damages,  in  such  sum  as  they 
believe  will,  under  all  the  circumstances  of  the  ease,  punish  defend- 
ant, and  serve  as  a  warning  to  others  against  a  like  course  of  action ; 
and,  if  the  jury  find  in  favor  of  plaintiff  as  to  punitive  damages,  they 
will  so  find,  and  the  amount  thereof,  separately,  and  separately  state 
in  their  verdict.77 

76 — Curlee  v.    Rose,   27   Tex.    Civ.  lived;    in    other   words,    as   an    ex- 

App.    259,    65    S.    W.    197    (198).  pression  synonymous  with  the  word 

"The   word   'credit.'    in   the   sense  'reputation.'  " 

in  which  it  was  used,  evidently  was  77 — Dwyer    v.    St.    Louis    Transit 

intended  by  the  court   to   mean   as  Co.,  108  Mo.  App.  152,  83  S.  W.   30'^ 

relating  to  his  standing  as  a  citizen  (305). 

in     the    community     in    which    he  In  approving   the   above   instruc- 


§  790.]  DAMAGES,   MEASURE   OF.  551 

§  790.     Actual  and  Punitive  Damages — Sound  Discretion  of  Jury. 

The  action  is  one  for  damages  and  if  the  jury  decide  to  find  for 
the  plaintiff  (in  other  words  if  he  has  been  a  victim  of  malicious 
prosecution)  then  they  are  not  limited  in  estimating  the  damages, 
to  the  actual  damages  proved  or  sustained,  but  they  are  at  liberty 
in  their  sound  discretion,  if  the  facts  proved  justify  it,  to  award 
exemplary  or  punitive  damages,  not  to  enrich  the  plaintiff,  but 
to  a  certain  extent,  to  punish  the  defendant. 77a 

§  791.  Trespass  or  False  Imprisonment — What  to  Consider  in 
Assessing  Damages.  If,  under  the  evidence  and  instructions  of  the 
court  you  find  the  defendant  guilty,  and  if  you  believe  from  the 
evidence  that  the  defendant  was  guilty  of  willful,  gross  and  wanton 
oppression  of  the  plaintiff,  then,  in  assessing  the  plaintiff's  damages, 
you  are  not  limited  to  the  amount  of  his  actual  pecuniary  loss,  but 
you  may  also  take  into  consideration  his  physical  pain  or  bodily  suf- 
fering if  any  is  shown,  also  his  mental  suffering,  such  as  anguish  of 
mind,  sense  of  shame,  humiliation,  or  loss  of  honor,  reputation  or 
loss  of  social  position,  if  you  find  that  these  things  have  resulted 
from  the  acts  contained  of,  and  allow  the  plaintiff  such  compensa- 
tion therefor  as  you  think  will  make  good  the  injury  sustained.78 

NUISANCES. 
§  792.  Erection  of  Boiler  Near  House  of  Another— Less  Com- 
fortable, Enjoyable  or  Useful.  If  the  jury  find,  from  the  evidence, 
that  defendant  erected  a  boiler  and  engine  near  to  the  house  and  lot 
of  the  plaintiff,  and  that  smoke,  steam  and  cinders  escaped  from  the 
chimneys  of  the  defendant,  connected  with  the  said  boiler,  which 
smoke,  steam,  and  cinders  entered  the  premises  of  the  plaintiff  in 

tion  the  court  said:  "The  only  as  if  the  malicious  act  had  been 
reference  the  instruction  makes  to  done  by  a  natural  person.  Ruth 
the  petition  is  to  the  criminal  pros-  v.  St.  Louis  Transit  Co.,  98  Mo. 
ecution  had  in  the  police  court,  App.  1,  71  S.  W.  1055;  Wood- 
about  which  evidence  had  been  ward  v.  Railway,  85  Mo.  142,  42 
given.  It  was  no  more  objec-  Am.  Rep.  413;  Boogher  v.  Life 
tionable  than  would  have  been  a  Ass'n,  75  Mo.  319;  Babcock  v.  Mer- 
reference  in  an  instruction  to  a  chants'  Exchange,  159  Mo.  381,  60 
horse  described  in  a  petition,  the  S.  W.  732.  In  respect  to  the  meas- 
ownership  of  which  was  in  issue,  ure  of  damages,  the  instruction 
It  is  true  that  an  artificial  person  does  not  authorize  a  recovery  for 
(a  corporation)  cannot  entertain  physical  pain,  as  contended  by  the 
malice;  neither  can  it  think  or  act.  defendant,  but  for  mental  anguish, 
It  can  act  through  its  agents  and  pain,  and  injury  to  the  feelings — 
servants,  and  does  so  act.  It  can  synonymous  terms  in  this  connec- 
also  think  by  its  officers,  agents,  tion.  That  damages  are  recover- 
and  servants,  and  does  so  think,  able  for  mental  anguish,  pain,  and 
and  it  can  harbor  malice  and  seek  suffering  of  mind,  in  this  character 
revenge  through  these  same  offi-  of  actions,  is  the  law.  Ruth  v. 
cers,  agents,  and  servants;  and  Transit  Co.,  supra." 
when  they  act  maliciously  in  the  77a— Baker  v.  Hornick,  57  S.  C. 
service  of  the  corporation,  and  213,  35  S.  E.  524  (527). 
within  the  scope  of  the  authority  78— Stewart  et  al.  v.  Maddox,  63 
delegated  to  them,  the  law  ascribes  Ind.  52;  Scripps  v.  Riley,  3S_  Mich, 
their  malice  to  the  corporation,  and  10;  Fenelon  v.  Butts,  53  Wis.  344, 
holds  it  to  the  same  civil  liability  10  N.  W.   501. 


552  FORMS  OF  INSTRUCTIONS.  [§  793. 

such  quantity  or  to  such  extent  as  to  render  her  house  and  premises 
less  comfortable,  enjoyable,  or  useful  than  they  otherwise  would  have 
been,  then  the  plaintiff  is  entitled  to  a  verdict.79 

§793.  Defendant's  Works  Reducing  Selling  Value  of  Plaintiff's 
Property,  (a)  The  jury  are  instructed  that  under  the  declaration 
in  this  ease  the  plaintiff's  claim  of  damages  is  made  on  the  ground 
that  the  operation  of  defendant's  works  has  depreciated  the  selling 
value  of  the  property. 

(b)  If  the  jury  believe  from  the  evidence  that  since  the  opera- 
tion of  defendant's  works  the  selling  value  of  the  plaintiff's  prop- 
erty is  higher  than  before,  and  that  the  operation  of  defendant's 
works  has  caused  the  greater  portion  of  such  increase  of  value  in 
the  plaintiff's  property  by  reason  of  its  nearness  to  the  works,  and 
that  such  increase  in  selling  value  caused  by  the  defendant's  works 
exceeds  any  damages  ever  done  to  the  plaintiff's  property  or  their 
enjoyment  of  it  by  defendant's  works,  then  the  verdict  must  be  for 
the  defendant.80 

§794.  Smoke,  Noise,  Smells,  etc.,  from  Defendant's  Works— Rise 
in  Selling  Value  of  Plaintiff's  Property.  The  jury  are  instructed 
that  even  if  they  believe  from  the  evidence  that  the  operation  of 
defendant's  works  has  caused  smoke,  noise,  smells  and  jarring,  and 
that  such  smoke,  noise,  vapor,  smells  and  jarring  caused  to  plaintiffs 
in  the  enjoyment  of  their  property,  something  besides  a  mere  imagin- 
ary and  whimsical  injury,  yet  the  jury  are  further  instructed  that 
under  the  plaintiff's  declaration  they  cannot  recover  in  this  case, 
if  the  jury  find  from  the  evidence  that  the  selling  value  of  the  plain- 
tiff's property  has  been  increased  by  the  operation  of  defendant's 
works,  independent  of  a  rise  in  similar  property  to  an  amount  in 
excess  of  any  damage  ever  done  by  the  operation  of  said  works  to 
plaintiffs  or  their  property.81 

PERSONAL  PROPERTY  GENERALLY— INJURIES  TO. 

§  795.  Must  Make  Reasonable  Efforts  to  Stop  or  Reduce  Damages 
to  Business  or  Property,  to  Recover  for  Loss.  The  jury  are  instructed 
that  a  person  can  in  no  case  recover  for  damages  to  his  business  or 

79— Euler  v.   Sullivan,  75  Md.  616,  self,  a  wrong-  is  done  to  the  neigh- 

23   Atl.    845,   32   Am.    St.   Rep.    420.  boring  owner  for  which   an   action 

"Does  the  instruction  given  by  will  lie.'  Vide  cases  there  cited, 
the  court  on  the  part  of  the  plain-  But  all  of  the  authorities  hold  that 
tiff  correctly  define  the  law,  as  ap-  the  injury  must  be  of  a  character 
plicable  to  this  case?  In  the  re-  to  diminish  materially  the  value  of 
cent  case  of  Susquehana  Fertilizer  the  property,  or  seriously  interfere 
Co.  v.  Malone,  73  Md.  276,  20  Atl.  with  the  ordinary  comfort  and  en- 
Rep.  900,  this  court  said  that  no  joyment  of  it,  such  as  would  en- 
principle  is  better  settled  than  that  title  the  party  injured  to  substan- 
'where  a  trade  or  business  is  car-  tial  damages.  Adams  v.  Michael.  38 
ried  on  in  such  a  manner  as  to  Md.  123,  17  Am.  Rep.  516." 
interfere  with  the  reasonable  and  SO— Chi.  Forge  &  Bolt  Co.  v. 
comfortable  enjoyment  by  another  Sanche  et  al.,  35  111.  App.  174  (177). 
of  his  property,  or  which  occasions  81— Chi.  Forge  &  Bolt  Co.  v. 
material  iniurv  to  the  property  it-  Hedges,   35   111.    App.    174    (178). 


796.]  DAMAGES,   MEASURE  OF.  553 


property  which  he  permits  to  go  on,  knowing  that  it  is  going  on, 
and  without  making  every  reasonable  effort  and  taking  active  steps 
to  prevent  it,  or  have  it  stopped.  If  you  believe,  from  the  evidence, 
that  plaintiffs  knew  that  their  premises  were  being  damaged,  and  that 
they  permitted  the  damage  to  continue,  when,  by  their  own  efforts, 
the  damage  might  have  been  stopped  or  prevented,  then  the  defend- 
ants are  not  liable  for  damage  so  caused,  and  plaintiffs  cannot 
recover  in  this  suit  for  any  such  damage.82 

INJURY  TO  PERSONAL  PROPERTY. 

§  796.  Measure  of  Damages  for  Failure  to  Use  Ordinary  Diligence, 
etc.,  in  Drying,  Curing,  Packing  and  Handling  Fruit.  In  the  event 
the  jury  find  that  the  defendant  did  not  use  ordinary  diligence,  skill 
or  care  in  drying,  curing,  packing  and  handling  said  fruit,  the  damage 
to  plaintiff  is  the  difference  between  the  market  value  of  such  fruit 
at  the  time  of  the  sale,  had  ordinary  diligence,  skill  and  care  been 
used  by  defendant  in  drying,  curing,  packing  and  handling  the  same, 
and  the  sum  for  which  the  same  was  sold.83 

§  797.  Market  Value  of  Destroyed  Property — Cost  of  Conveying 
Same  to  Replace  Loss,  (a)  The  court  instructs  you  that,  if  you 
believe,  from  the  evidence,  that  the  plaintiffs  raised  the  straw  burnt, 
for  the  purpose  of  feeding  the  same  on  the  farm,  and  if  you  further 
believe,  from  the  evidence,  that  there  was  no  market  for  the  sale 
of  straw  at  the  time  and  place  it  was  destroyed,  then  the  measure 
of  damages  for  the  burning  of  such  straw  is  the  market  value  of 
straw  of  the  same  kind  where  it  could  have  been  bought,  plus  the 
cost  of  conveying  it  from  the  place  where  purchased  to  the  place 
where  it  was  burnt.84 

82— Hartford  Dep.  Co.  v.  Calkins,  Hun  363:     'If  it  were  in  the  plaint- 

85  111.    App.   627   (630).  iff' s  power  by  reasonable  efforts  to 

"The  law  required  that  appellees  prevent  the  increase  of  the  wrong, 

should    make    reasonable   efforts   at  he  should  use  that  power.'     To  the 

least    to    protect    themselves    from  same  effect  are  the  cases  Miller  v. 

unnecessary  injury,   and  they  can-  Mariners'    Church,    7    Me.    51     (55), 

not  recover  damages  occasioned  by  20  Am.   Dec.   341;   Mather  v.   Butler 

their  own   neglect.     In  Hamilton  v.  Co.,   28   la.   253-59;    Sherman  Center 

McPherson.   28  N.  T.   72-76,  84  Am.  Town     Co.    v.     Leonard,     46    Kans. 

Dec.   330,   it    is   said    by  Judge   Sel-  354-358,  26  Pac.  717.  26  Am.  St.  Rep. 

den:      'The    law    for    wise    reasons  101."    Approved  186  111.  104,  57  N.  E. 

imposes  upon  a  party  subjected  to  863,  case  reversed  on  another  point, 

injury   from    a   breach    of   contract  83 — Arnold     v.     Producers'     Fruit 

the  active  duty  of  making  reason-  Co..   141   Cal.   738,   75   Pac.    326   (328). 

able  exertions  to  render  the  injury  84 — Chi.    G.    Ry.    Co.    v.    Gitchell, 

as   light  as  possible.     Public   inter-  95   111.   App.   1    (3). 

est     and     sound     morality     accord  "The  appellant's  refused  instrue- 

with    the    law    in    demanding    this;  tion  told  the  jury  that  the  measure 

and    if  the   injured    party,    through  of    damages    was    the    actual    fair 

negligence     or     wilfulness,     allows  cash  market  value  of  the  straw  at 

the    damages    to    be    unnecessarily  the  nearest  market  less  the  cost  of 

erhanced.   the  increased  loss  justly  delivering   the    same    thereat.      The 

fails  upon  him.'    It  is  said  in  Hogle  above     instruction     raised     directly 

v.    N.  Y.   C.  &  H.    R.   R.   R.   Co.,  28  the  question  as  to  whether  in   de- 


554  FORMS  OF  INSTRUCTIONS.  [§  798. 

(b)  The  court  instructs  you  that  in  estimating  such  damages, 
you  will  consider  the  value  of  the  grass  so  destroyed  for  the  purpose 
of  its  use  by  the  plaintiff  at  the  time  of  its  burning.85 

§  798.  Escape  of  Gas— Injury  to  Flowers.  Of  course,  gentlemen, 
it  is  not  claimed  here,  as  I  understand,  on  the  part  of  defendants, 
but  that  if  their  gas  mains  were  in  a  defective  condition,  and  as  a 
matter  of  fact  gas  did  escape  from  the  gas  mains  and  penetrate  into 
the  plaintiff's  greenhouses,  and  did  cause  injury  to  these  plants,  but 
what  the  plaintiff  would  have  a  right  to  recover  for  such  injury; 
but  it  plants  itself  squarely  upon  the  claim  that  no  such  thing  oc- 
curred.86 

§  799.  Damages— Natural  Gas  Explosion  in  House— Statement  of 
Agent — Negligence.  The  complaint  avers  among  other  things,  that 
the  defendant,  by  its  agent,  announced  to  or  in  the  hearing  of  the 
plaintiff  that  he  would  turn  off  the  gas  at  the  company's  valve  in  the 
street,  and  that  the  plaintiff  did  not  know  that  it  was  turned  off  at 
the  house  valve,  and  not  in  the  street.  You  are  instructed  that  this 
is  a  material  averment  of  the  complaint,  and,  unless  it  has  been 
proven  by  a  preponderance  of  the  evidence,  no  recovery  can  be  had.87 

§  800  Goods  Lost  by  Common  Carrier— Market  Value  When  and 
Where  to  be  Delivered.  The  jury  are  instructed,  that  the  measure 
of  damages,  in  case  of  a  failure  of  a  common  carrier  to  deliver 
goods  according  to  contract,  and  which  are  lost,  is  their  market  or 
actual  value  at  the  time  when,  and  the  place  where,  they  should 
have  been  delivered;  and  such  value  is  purely  a  question  of  fact  to 
be  fixed  by  the  jury,  from  the  evidence  in  the  case.88 

§  801.  Damages  for  Proximate  Consequence  of  Act — No  Recovery 
for  Damages  that  Could  Have  Been  Avoided  by  Plaintiff  by  Reason- 
able Care.  The  jury  are  instructed  that  plaintiffs  are  only  entitled 
to  recover  in  this  case  such  damages  as  they  have  shown  by  the  pre- 
ponderance of  the  evidence  were  the  natural  and  proximate  conse- 
quence of  the  acts  complained  of  in  the  petition,  and  that  they  are 

termining  the  measure  of  damages  the  measure  of  damages  in  such  a 

in  a  case  where  there  is  no  market  case  is  that  it  is  the  market  value 

value  for  the  property  in  question  at    the    nearest    market,    plus    the 

at    the    place    where    it    was    de-  cost   of  getting-  the   property   from 

stroyed,  the  cost  of  conveying  the  the  market  to  the  place  where  the 

property    to    or    from    the    nearest  other    property    was    destroyed.      1 

market  must  be  added  or  deducted.  Sedg.  Dam.  (8th  ed.)  sec.  246;  Suth- 

We    are    of    the    opinion    that    this  erland    on    Damages    (3d   ed.),   sees, 

question   depends   largely  upon  the  1096   and   1098;    Capen   v.   DeSteiger 

circumstances    of    the    case.     .    .    .  Glass  Co.,  105  111.  185." 

The    straw   was   destroyed    by    ap-  85— San  Antonio  &  A.  P.  Ry.  Co. 

pellant,    and    it    should    indemnify  v.  Stone,  —  Tex.  Civ.  App.  — ,  60  S. 

appellees  for  their   loss.     The   only  W.  461. 

way  in  which  they  can  be  indem-  8:6— Hansen   v.    St.   Paul   Gaslight 

nified     is     by     awarding     them     an  Co.,  88  Minn.  86,  92  N.  W.  510  (511). 

amount  sufficient  to  purchase  other  87 — Huntington    L.    &    F.    Co.    v. 

straw  of   like   quality   delivered   on  Beaver,  37  Ind.  App.  4,  73  N.  E.  1005. 

their  place.     The  rule  of  law  as  to  88— C.  &  N.  W.  Ry.  Co.  v.  Dick- 
inson, 74  111.  249. 


§802.]  DAMAGES,  MEASURE  OF.  555 

not  entitled  to  recover  any  damages  which  could  have  been  avoided 
or  prevented  by  the  plaintiffs  by  the  exercise  on  their  part  of  reason- 
able and  proper  care  and  prudence.89 

REAL  ESTATE  GENERALLY— INJURIES  TO. 

§  802.  Damage  by  Fire — Value  of  Land  Before  and  After  the  Tire 
— Damage  to  Growing  Timber,  (a)  The  measure  of  damages  is  the 
diminution  of  the  market  value  of  the  land,  occasioned  by  the  fire; 
that  is  to  say,  the  difference  between  the  value  of  the  land  imme- 
diately before  and  after  the  fire.90 

(b)  The  court  instructs  you  that  the  measure  of  damages,  if 
plaintiff  is  entitled  to  any  damages  at  all,  is  the  difference  between 
the  value  of  the  land  before  and  after  the  fire  complained  of;  and 
in  this  case  you  will  so  allow  the  damages,  if  you  believe  the  plain- 
tiff is  entitled  to  any  damages. 

The  court  further  instructs  you  that  you  must  consider  the  actual 
damage  to  the  plaintiff,  if  any,  as  explained  in  the  instructions  in 
this  case,  and  you  have  no  right  to  allow  or  to  consider  mere  con- 
jectural or  speculative  damages  not  proved  by  the  evidence.91 

(c)  The  measure  of  damages  is  the  difference  between  the  value 
of  the  timber  standing  and  growing  upon  the  land  in  question  imme- 
diately before  the  fire  in  question  and  the  value  of  such  timber 
immediately  after  such  fire.92 

§  803.  Putting  up  Telephone  Wires — Injury  to  Trees.  The  jury 
are  instructed  that,  if  you  find  and  believe  from  the  evidence  that 

on  or  about  the day  of ,  the  plaintiff  was  the  owner 

of  (describing  the  lot),  and  that  there  was  a  tree  along  the  sidewalk 
and  in  front  of  said  property,  and  belonging  to  the  plaintiff,  and 
that  the  defendant  unlawfully  cut  off  the  top  of  said  tree  and  caused 
the  death  of  said  tree,  then  your  verdict  should  be  for  the  plaintiff93 

89— N.  Y.  L..  E.  &  W.  R.  R.  Co.  v.  two    instructions    are    identical    in 

Estill,  147  U.  S.  591  (599),  13  S.  Ct.  meaning-,  and  we  think,  in  view  of 

444.  the  state  of  the  record,  the  defend- 

90 — Pennsylvania  Co.  v.  Hunsley,  ant   is   in   no   position   to   complain 

23  Ind.  App.  37,  54  N.  E.  1071  (1076).  of   the   rulings    of   the   court    as    to 

91 — C.    &   A.    R.    R.   Co.   v.    Davis,  the  measure  of  damages.     The  evi- 

74  111.  App.  595  (598).  dence      is      practically     the      same 

92 — Burdick  v.  C,  M.  &  St.  P.  Ry.  whichever    rule    be    adopted,    and 

Co.,  87  Iowa  3S4,  54  N.  W.  439  (440).  there   is  no   claim  that  the  verdict 

"In  the  case  of  Greenfield  v.  C.  is  excessive." 
&  N.  W.  Ry.  Co.,  83  la.  270,  49  N.  93— Betz  v.  K.  C.  H.  Telephone 
W.  95,  this  court  approved  an  in-  Co.,  121  Mo.  App.  473,  97  S.  W.  207. 
struction  to  the  jury  which  was  in  "Ordinarily  the  term  'unlawful- 
these  words.:  'If  you  find  that  the  ly'  in  the  sense  in  which  it  was 
fire  ran  to  the  timber  of  the  plain-  used  should  have  been  defined,  so 
tiff,  and  burned  and  injured  it,  then  that  the  jury  might  be  able  to  de- 
award  him  on  account  thereof  that  termine  whether  the  act  corn- 
sum  whi<m  represents  the  differ-  plained  of  would  entitle  the  plain- 
ence  in  the  value  of  the  timber  tiff  to  recover.  But  it  could  make 
just  before  and  its  value  just  after  no  difference  under  the  facts  in 
the  fire.'     It  will  be  seen  that  the  evidence.     It   was   shown   that   the 


556  FORMS  OF  INSTRUCTIONS.  [§  804. 

§  804.  Market  Value  of  Acreage  for  Purposes  of  Subdivision.  If 
the  jury  believe  from  the  evidence  that  there  was  a  demand  for 
acreage  property  in  and  about  the  city  of  W.  on  ,  for  pur- 
poses of  subdivision  and  sale  in  lots,  and  that  the  land  in  controversy 
was  at  that  time  supposed  to  be  adapted  to  subdivision  and  sale  in 
lots,  and  in  consequence  of  its  supposed  adaptability  to  such  sub- 
division and  sale  in  lots  had  a  market  value  above  the  price  which 
the  plaintiff  agreed  to  pay  for  it,  the  jury  must  take  into  considera- 
tion such  increased  value  above  such  contract  price,  whether  such 
demand  for  acreage  property,  if  any,  was  permanent  or  temporary, 
and  whether,  if  the  land  in  controversy  had  been  subdivided,  there 
would  have  been  at  that  time  any  demand  for  the  lots  thereof  or 
not.94 

§  805.  Injuries  to  Dock  by  Vessel.  If  you  believe  this  man  did 
not  slide  down  the  line,  but  that  the  man  who  took  the  line  upon  the 
dock  was  the  watchman  of  the  plaintiff  company,  in  the  discharge 
of  his  duty  as  such  watchman,  and  that  it  was  part  of  his  duty  to 
aid  these  boats  in  landing— to  do  what  he  could  to  contribute  to 
their  landing,  in  the  interest  of  his  employer — then  he  would  be,  in 
that  act,  the  agent  of  the  plaintiff;  and,  if  he  was  guilty  of  con- 
tributory negligence,  the  plaintiff  can  not  recover.  It  is  claimed  by 
the  plaintiff  in  regard  to  this  matter  that  that  was  not  a  part  of  that 
man's  duty,  that  he  was  not  employed  for  that  purpose,  and  that 
it  was  no  part  of  his  business  to  interfere  with  the  landing  of  these 
boats,  or  that,  if  he  was  asked  to  do  it,  being  asked  to  do  it  made 
him  the  agent  of  the  defendant.  I  charge  you  that  such  is  the  law; 
that  if  this  was  no  part  of  his  duty,  and  he  was  asked  to  do  it  by 
the  defendant,  and  did  it  at  its  request,  and  acting  for  it,  in  that 
respect  he  was  the  agent  of  the  defendant,  the  boat  company,  and  his 
negligence  could  not  be  determined  or  decided  by  you  as  contributing 
to  the  result  as  being  the  agent  of  the  plaintiff.     But,  as  I  said  to 

poles  and  wire  were  put  up  with-  tion  is  that  the  act  was  unlawful, 

out     disturbing    the     tree     in     any  The    word    'unlawfully,'    under    the 

manner,    and   that   it   was   not   cut  circumstances,    may   be   treated   as 

until     at     least     a    month     or     two  surplusage.     The  only   issue  before 

afterwards.   There   was   not  a  par-  the    jury,    therefore,    was,    did    the 

tide    of    evidence    tending   to    show  defendant  cut  plaintiff's  tree?    The 

that   there   was    any   necessity   for  petition  not  only   charges  that  de- 

the    act.      In    fact,    it    was    denied  fendant    unlawfully    cut    the    tree, 

that   the  defendant  cut  it,  yet  the  but  that  the  act  was  done  in  such 

verdict  of  the  jury  was  that  it  did,  a  careless  manner  as   to   cause   its 

which   is   conclusive   on   that   ques-  death.       The     latter     allegation     is 

tion.       Neither    the    city,    nor    the  immaterial  and   superfluous,  if   the 

defendant,        which       derived       its  act  of  cutting  the  tree  was  unlaw- 

authority     to     establish     the     tele-  ful.      If   the   act   had    been   lawful, 

phone   line,    had    any   right   to   cut  then  the   manner  in   which  it  was 

plaintiff's    tree,     unless    there    ex-  done    would    be    material.      In    the 

isted  a   necessity  for  the   act.     All  latter  instance  the  right  to  recover 

the    authorities    agree    as    to    that,  would     be     predicated     upon      the 

Lewis,   Eminent    Domain,   132a.     In  negligent   manner   of   doing  a  law- 

the  absence  of  evidence  that  there  ful    act." 

was      any      necessity     for     cutting  94— Dadv    v.    Condit,    209    111.    488 

plaintiff's  shade  tree,  the  presump-  (49S),   70    N.    B.   1088. 


§  806.]  DAMAGES,   MEASURE  OF.  557 

you  before,  if  he  was  acting  in  that  capacity,  and  he  did  this  as  a 
matter  of  his  duty  or  employment  on  the  part  of  the  plaintiff,  then 
a  mere  request  to  ask  him  to  take  the  line  would  not  make  him 
the  agent  of  the  boat  company,  the  defendant  in  this  case.95 

§  806.  Estimating  Value  of  a  Reversionary  Interest.  If  the  jury 
find  any  damages  for  plaintiff  on  account  of  the  land  referred  to, 
they   cannot  find   exceeding  the   value   of  the   reversionary   interest 

therein  after  the  death  of  Mrs.  B.,  and  the  death  or  attaining  

years  of  age  of  her  children;  and  in  estimating  the  value  of  said 
reversion  they  will  consider  the  present  prospect  of  life  of  said  life 
tenants,  and  the  value  of  this  interest,  and  deduct  from  the  total 
value  of  the  land,  and  the  remainder  will  represent  the  value  of  the 
reversion.96 

SHERIFFS. 

§  807.  Recovery  of  Damages  for  Taking  of  Property  by  Sheriff. 
It  is  admitted  by  the  said  defendant  and  A.  W.  C.  that  the  property 

in   question  was,  on  the  day  of ,   by  his   deputy, 

taken  from  the  possession  of  the  plaintiff;  and  it  is  also  admitted  that 
said  defendant  has  ever  since  deprived  the  plaintiff  of  the  possession 
of  the  same ;  and  if  the  jury  believe  from  the  evidence  that  the  prop- 
erty in  question  did,  at  the  time  this  action  was  commenced,  belong 
to  the  plaintiff,  then  the  measure  of  damages  for  plaintiff  to  recover 
will  be  the  value  of  the  property  at  the  time  of  the  taking,  as  shown 

by  the  evidence,  with  interest  thereon,  at  the  rate  of per  cent. 

per  annum  from  the  day  of  up  to  the  first  day 

of  this  term  of  court.97 

§  808.  Damages  for  Wrongful  Seizure  of  Mortgaged  Goods — In- 
terest. If  you  find  for  the  plaintiff,  the  amount  which  he  will  be 
entitled  to  recover  will  be  the  amount  of  the  fair,  reasonable  mar- 
ket value  of  the  property  at  the  time  it  was  levied  upon  and  taken, 
together  with  six  per  cent,  per  annum  interest  thereon  from  the  date 
of  the  levy  up  to  this  time;  not,  however,  exceeding  in  amount  the 
sum  total  of  the  several  claims  secured  by  the  mortgage,  with  interest 

thereon  at  the  rate  of  six  per  cent,  per  annum  from  the  

day  of .98 

95— Blades     v.     Board    of    "Water  under  the  disputed   evidence,   have 

Com'rs,    122    Mich.    366,    81    N.    W.  instructed  the  jury  that  the  person 

269    (271).  who    took    the    line    was    for    that 

"We  think  there  was  no  error  in  purpose   the   agent    of   the   defend- 

the    charge    as    given.      It    appears  ant.      The     captain     testified     that, 

that     none    of    the    plaintiff's    em-  when  the   line  was  thrown  out,  he 

ployes    were    on    the    dock    at   that  called   to   this   man   to   take   it  and 

time,   except   a   ;    and   the   evi-  place  it  over  the  pile." 

dence    is    undisputed    that    it    was  96 — Brvant    v.    Everly,    22    Ky.   L, 

part  of  the  duty  of  —  to  take  the  Rep.    345,    57    S.   W.    231    (232). 

line,  and  in  fact  it  was  shown  that  97— Campbell   v.   Holland,  22  Neb. 

he  was  not  on  duty  for  plaintiff  at  587,    35    N.    W.    871    (879). 

that  time,  and  was  there  only  as  a  98— Crawford    v.    Nolan,    72    Iowa 

spectator.      The    court    might    well,  673,   34   N.   W.    754    (756). 


558  FORMS  OP  INSTRUCTIONS.  [§  809. 

§  809.     Suit  on  Replevin  Bond,     (a)     The  jury  are  instructed,  that 
although  this  action  is  in  form  an  action  of  debt,  for  the  sum  of 

$ ,  the  penalty  in  the  bond,  the  action  is,  in  fact,  an  action  to 

recover  for  the  damages  alleged  to  have  been  sustained  by  the  plain- 
tiff, by  reason  of  the  property  mentioned  in  said  bond  not  having  been 
returned  to  the  defendant  in  the  replevin  suit,  according  to  the  con- 
dition of  the  bond. 

(b)  And  if  the  jury  find  the  issues  for  the  plaintiff,  they  should, 
by  their  verdict,  find  both  the  debt  and  the  amount  of  the  damages; 

the  debt  will  be  $ ,   the  penalty  mentioned  in  the  bond,   while 

the  damages  will  be  such  an  amount  as  the  evidence  shows  the  par- 
ties, for  whose  use  this  suit  is  brought,  have  sustained  by  reason 
of  the  non-return  of  said  property,  according  to  the  condition  of 
said  bond. 

(c)  The  jury  are  instructed,  that  if  they  find,  from  the  evidence, 
under  the  instructions  of  the  court,  that  the  plaintiff  is  entitled  to 
a  verdict,  and  that  the  parties  for  whose  use  the  suit  is  brought  have 
sustained  damage,  as  alleged,  then  it  will  be  the  duty  of  the  jury  to 
assess  the  amount  of  such  damages;  and  if  the  jury  further  believe, 
from  the  evidence,  that  the  said  T.  M.  B.  was  sheriff  of  this  county 
at  the  time  the  said  j^roperty  was  taken,  and  that  the  said  sheriff 
was  then  holding  the  said  property,  under,  and  by  virtue  of,  a  writ 
of  attachment  in  favor  of  the  other  defendants  in  the  replevin  suit, 
for  an  indebtedness  claimed  to  be  due  to  them  by  one  J.  F.,  and 
that  a  judgment  was  afterwards  rendered  in  said  attachment  suit 
for  the  sum  of  (four  thousand)  dollars,  in  favor  of  the  plaintiffs  in 
that  suit,  then  the  measure  of  damages  in  this  case  is  the  said  sum 
of  (four  thousand)  dollars,  and  interest  thereon,  at  the  rate  of  six 
per  cent,  per  annum,  since  the  date  of  said  judgment,  and  the  further 
sum  of  (twenty)  dollars,  defendant's  costs  in  the  said  replevin  suit; 
provided,  however,  that  if  the  jury  believe,  from  the  evidence,  that 
the  value  of  the  property  taken  by  the  said  J.  E.,  in  the  replevin 
suit,  was  worth  less  than  the  amount  of  said  judgment,  interest  and 
costs,  then  the  measure  of  damages,  in  this  suit,  will  be  the  value  of 
such  property,  as  shown  by  the  evidence,  and  no  more." 

SLANDER  AND  LIBEL. 
§  810.  Plea  of  Justification  must  be  Filed  in  Good  Faith.  If  the 
jury  believe,  from  the  evidence,  and  from  the  facts  and  circumstances 
proved  on  the  trial,  that  when  the  defendant  filed  his  plea  of  justi- 
fication, he  had  no  reasonable  hope  or  expectation  of  proving  the 
truth  of  it,  then,  if  the  jury  believe,  from  the  evidence,  that  the  de- 
fendant is  guilty  of  the  slander  charged  in  the  declaration,  they  may, 
in  fixing  the  amount  of  the  plaintiff's  damages,  regard  the  filing  of 
the  plea  as  an  aggravation  of  the  original  slander.100 

99—2    Sutherland    Dam.    (3d    ed.).     Noble     v.      Epperly,      6     Ind.     468; 
sec.     499;     Sedg.     Dam.,     585;     Jen-     Hayden  v.   Anderson,   17  la.  158. 
nings     v.     Johnson,     17     Ohio     154;         100 — Harbison    v.    Schook,    41    111. 

141;    Swails   v.    Butcher,    2   Ind.    84. 


§811.]  DAMAGES,  MEASURE   OF.  559 

§  811.  Plaintiff's  Bad  Reputation  may  be  Shown.  If  the  jury 
believe,  from  the  evidence,  that  the  plaintiff's  general  reputation 
for  chastity,  at  and  before  the  alleged  speaking  of  the  words  in 
question,  was  bad,  then  the  jury  have  the  right  to  take  this  fact  into 
account  in  assessing  the  plaintiff's  damages,  in  case  you  find  the  de- 
fendant guilty.1 

§  812.  Mental  Suffering  Produced  by  the  Slanderous  Words — In- 
jury to  Reputation  or  Character — Damages  Presumed,  When,  (a) 
If,  from  the  evidence,  under  the  instruction  of  the  court,  you  find 
the  defendant  guilty,  then,  in  fixing  the  amount  of  the  plaintiff's 
damages,  you  may  take  into  consideration  the  mental  suffering  pro- 
duced by  the  utterance  of  the  slanderous  words,  if  you  believe,  from 
the  evidence,  that  such  suffering  has  been  endured  by  the  plaintiff; 
and  the  present  and  probable  future  injury,  if  any,  to  plaintiff's 
character,  which  the  uttering  of  the  words  was  calculated  to  inflict.2 

(b)  In  an  action  for  slander,  the  law  implies  damages  from  the 
speaking  of  actionable  words.  And  also  that  the  defendant  intended 
the  injury  the  slander  is  calculated  to  effect.  And  in  this  case,  if 
the  jury  believe,  from  the  evidence,  and  under  the  instructions  of  the 
court,  that  the  defendant  is  guilty,  as  charged,  in  the  declaration, 
then  they  are  to  determine,  from  all  the  facts  and  circumstances 
proved,  what  damages  ought  to  be  given;  and  the  jury  are  not  con- 
fined to  the  mere  pecuniary  loss  or  injury  sustained.  Mental  suffer- 
ing, injury  to  reputation  or  character,  if  proved,  are  proper  elements 
of  damage.3 

§  813.  Drunkenness  in  Mitigation.  The  court  instructs  the  jury, 
that  if  you  find,  from  the  evidence,  that  the  defendant  is  guilty  of 
speaking  the  slanderous  words,  as  charged  in  the  declaration ;  that  the 
defendant  was,  at  the  time,  intoxicated  with  spirituous  liquors  to 
such  an  extent  as  to  deprive  him  of  the  rational  exercise  of  his  mental 
faculties,  this  fact  will  be  proper  to  be  considered  by  the  jury  in 
determining  whether  the  defendant  was  prompted  in  speaking  the 
words  of  malice,  in  fact,  and  whether  he  ought  to  be  charged  with 
exemplary  or  punitive  damages.4 

§  814.  Compensatory  Damages  Only,  When  Words  Spoken  without 
Malice  though  Showing  a  Want  of  Caution,  (a)  Though  the  jury 
may  believe,  from  the  evidence,  that  defendant  was  guilty  of  speak- 
ing the  slanderous  words  charged  in  the  declaration,  still,  if  the  jury 
find,  from  the  evidence,  that  the  words  were  spoken  without  actual 
malice  on  the  part  of  the  defendant,  though  under  circumstances  show- 

1— Duval   v.    Davey,    32    Ohio    St.  599;    Bait   v.    Budwig-,    19   Neb.   739. 

604;    Maxwell    v.    Kenedy,    50    Wis.  28    N.    W.    282. 

545,    7    N.    W.    657.  3— Baker  v.   Young-,    44   111.   42. 

2— Fry    v.    Bennett,    4    Buer    247;  4— Howell  v.  Howell,  10  Ired.   (N- 

True  v.  Plumley,  36  Me.  466;   Swift  C.)    84;    Gates    v.    Meredith,   7  Irad. 

v.      Dickermann,      31      Oonn.      285;  440. 
Hamilton  v.   Eno,    16  Hun   (N.   T.) 


560  FORMS  OF  INSTRUCTIONS.  [§  815. 

ing  a  want  of  caution  and  a  proper  respect  for  the  rights  of  the  plain- 
tiff, and  that  the  plaintiff  has  suffered  no  special  damage  from  the 
speaking  of  the  words,  then  the  jury  should  only  give  compensatory 
damages,  and  in  such  ease  compensatory  damages  are  such  as  will 
pay  the  plaintiff  for  his  expenses  and  trouble  in  carrying  on  the  suit, 
and  disproving  the  slanderous  words.5 

(b)  You  should  allow  such  damages  as  under  all  the  evidence  would 
be  a  just  compensation  for  the  injury.6 

§  815.  Exemplary  Damages  May  Be  Given  in  Slander,  When.  If 
the  jury,  under  the  evidence  and  the  instructions  of  the  court,  find  the 
defendant  guilty  in  this  case,  in  assessing  the  plaintiff's  damages,  they 
are  not  confined  to  such  damages  as  Avill  simply  compensate  the  plain- 
tiff for  such  injuries  as  the  evidence  shows  she  has  received,  by  reason 
of  the  speaking  and  publishing  of  the  defamatory  words  charged  in 
the  declaration,  but  they  may,  in  addition  thereto,  assess  against  the 
defendant,  by  way  of  punishment  to  him  and  as  an  example  to  others, 
such  damages  as  the  jury,  in  their  sound  judgment,  under  all  the  evi- 
dence in  the  case,  believe  che  defendant  ought  to  pay,  not  exceeding, 
in  any  event,  the  amount  of  damages  claimed  by  the  plaintiff  in  the 
declaration;  provided  the  jury  believe,  from  the  evidence,  that  the 
defamatory  words  were  spoken  maliciously  or  wantonly  by  the  de- 
fendant.7 

§  816.    Vindictive     Damages — Pecuniary     Circumstances,     (a)     If 

the  jury  find  the  defendant  guilty,  they  should  then  determine, 
from  all  the  facts  and  circumstances  proved,  what  damages  ought 
to  be  given  to  the  plaintiff;  and  the  jury  are  not  confined  to  the 
mere  pecuniary  loss  or  injury,  but  they  may  give  damages  as  a 
punishment  to  the  defendant,  as  well  as  to  compensate  the  plaintiff 
for  the  stain  inflicted  upon  her  character;  provided  the  jury  be- 
lieve, from  the  evidence,  that  the  defendant,  in  speaking  the  defama- 
tory words,  was  actuated  by  malice  in  fact. 

(b)  If  the  jury  believe,  from  the  evidence,  that  the  defendant  is 
guilty  of  uttering  the  slanderous  words  charged  in  the  declaration, 
then  they  may  take  into  consideration  the  pecuniary  circumstances 
of  the  defendant,  and  his  position  and  influence  in  society,  so  far  as 
those  matters  have  been  shown,  by  the  evidence,  in  estimating  the 
amount  of  damages  which  the  plaintiff  ought  to  recover.8 

§  817.  Pecuniary  Circumstances — Reiteration.  The  jury  are  in- 
structed, that  if  they  find  the  defendant  guilty,  then,  in  fixing  the 
amount  of  plaintiff's  damages  they  may  take  into  consideration,  in 
connection  with  all  the  other  evidence  in  the  case,  the  pecuniary 
circumstances  and  social  standing  of  the  defendant,  and  the  charac- 
ter and  standing  of  the  plaintiff,  so  far  as  those  have  been  shown 

5 — Armstrong       v.       Pierson,       8  7 — Templeton   v.    Graves,   59   Wis. 

Clarke    (la.)    29.  95,    17    N.    W.    672. 

6— Whiting-   v.    Carpenter,   4   Neb.  8— Hosley  v.   Brooks,  20  111.  115. 
342    (unof.),    93   N.   W.   926    (928). 


§  818.]  DAMAGES,   MEASURE  OF.  561 

by  the  evidence ;  and  they  may  also  take  into  consideration  the  fact, 
if  proved,  that  the  defendant  has  reiterated  the  slander  on  different 
occasions  to  different  persons.9 

§  818.  Libel— What  to  Consider  in  Assessing  Damages,  (a)  If  the 
jury  believe,  from  the  evidence,  that  the  libel  was  published  by  the 
defendant,  as  charged  in  the  declaration,  then  the  plaintiff  is  entitled 
to  recover.  The  amount  of  the  recovery  is  to  be  determined  by  the 
jury,  from  a  consideration  of  all  the  evidence  and  circumstances 
proved  in  the  case;  and  in  determining  such  amount,  the  jury  will 
consider  the  character  of  the  charge,  the  general  reputation  of  the 
plaintiff  at  the  time  of  the  publication  complained  of,  whether  the 
defendants  had  an  opportunity  to  retract  the  charge,  whether  it 
was  maliciously  made  and  persisted  in,  or  whether  made  as  public 
journalists  and  for  laudable  purposes  and  without  malice,  and  all  the 
facts  proved  in  the  case,  having  a  reference  to  this  subject.10 

(b)  The  jury  are  instructed  that,  if  you  find  from  the  evidence 
that  the  plaintiff's  name  was  not  mentioned  in  the  article  alleged  to 
have  been  published  in  this  case,  you  have  a  right  to  consider  this 
fact  in  arriving  at  the  amount  of  damages,  in  case  you  find  for  the 
plaintiff,  and  so  far  as  any  damages  he  might  sustain  by  reason  of 
said  publication  would  only  extend  in  circulation  to  such  persons  as 
were  acquainted  with  him,  both  as  E.  F.  and  as  marshall  of  R.,  and  to 
such  other  persons  as  might  afterwards  become  acquainted  with  him 
in  both  of  these  capacities.11 

§  819.  Same — Wealth  of  Defendant.  If  the  jury  find  the  issues 
for  the  plaintiff,  and  believe,  from  the  evidence,  that  the  publica- 
tion was  made  maliciously  or  wantonly,  and  under  circumstances 
evincing  a  disregard  of  the  rights  of  others,  then,  in  making  up  their 
verdict,  they  may  take  into  consideration  the  circumstances  of  the 
defendant  as  to  wealth  and  possession  of  property,  so  far  as  these 
appear,  from  the  evidence,  and  they  may  give  a  verdict  for  such 
sum  as,  from  the  evidence,  they  think  the  plaintiff  ought  to  receive, 
and  the  defendant  ought  to  pay,  under  all  the  circumstances  of  the 
case.12 

§  820.  Charge  of  Adultery— Measure  of  Damages.  If  you  find  that 
this  is  a  charge  of  adultery,  or  that  the  charge,  as  a  whole,  has  a 
tendency  to  injure  the  standing  and  character  of  the  plaintiff,  and 
hold  him  up  in  disgrace,  then  you  come  to  the  question  of  damages. 
It  is  not  a  case,  if  you  find  that  to  be  a  charge  of  adultery,  where  the 
plaintiff  has  to  prove  special  damages,  to  show  that  he  has  lost  this 
or  that  patient,  because  the  jury  have  a  right  to  say,  when  a  man 

9— Harbison     v.     Sehook,     41     111.  11— Williams    et    al.    v.    Fuller,    6S 

141;    Humphries    v.    Parker,    52    Me.  Neb.   354,    94    N.   W.   118    (119). 

502;    Lewis    v.    Chapman,    19    Barb.  12—3   Sutherland.   Dam.   3661;   Hill 

(N.    T.)    252.  on    Rem.    for    Torts,    456;    Hunt    v. 

10— Sheahan    et    al.    v.    Collins,    20  Bennett,    19    N.    Y.    173;    Knight    v. 

HI-    325.  Poster,  39  N.  H.  576;  Humphries  v. 


36 


Parker,  52  Me.  502. 


562  FORMS  OF  INSTRUCTIONS.  [§  821. 

is  charged  with  a  crime,  that  that  does  him  an  injury,  and  to  say 
how  much  his  damage  shall  be,  without  special  proof  of  damages. 
He  is  entitled  to  damages  for  anything  he  suffered  by  way  of  per- 
sonal feeling — grieving — on  account  of  such  a  charge  being  published. 
And  you  have  a  right  to  consider  what  a  citizen  of  good  standing — 
how  he  would  feel  to  have  an  article  of  that  kind  published  about 
him,  accusing  him  of  having  succumbed  to  the  pretty  charms  of  the 
caterer's  wife,  under  the  circumstances  stated.  You  have  a  right  to 
consider  what  would  be  the  injury  to  any  honorable  man's  feelings 
by  having  such  a  charge  as  that  published  in  the  Journal,  in  the  way 
this  was  published  and  circulated  among  his  friends  and  neighbors. 
And  he  is  entitled  to  damages  on  that  account,  because  it  is  what 
a  man  suffers  in  consequence  of  a  libel,  and  that  is  one  of  the  ele- 
ments. He  has  told  you  himself  in  some  degree  how  it  affected  him, 
and  how  it  affected  the  business  that  he  was  engaged  in,  and  it  was 
a  source  for  a  long  time  of  jest,  but  of  more  serious  matter  than 
jest,  among  his  friends.  That  may  be  taken  into  consideration  in 
determining  what  the  damages  are.     In  other  words,  being  just  to 

the  Journal,   and  being  just  to  ,  you  are  to  say  what  is   a 

reasonable  compensation  in  dollars  and  cents  for  having  such  an 
article  as  that  published  under  the  circumstances  that  this  was 
published;  and  all  the  natural  results  coming  from  that  article 
in  the  way  of  damages,  he  is  entitled  to  recover.     You  cannot  give 

more  than  the  ad  damnum   in   the  writ, dollars;   and  you 

cannot  give  less  than  nominal  damages;  and  you  have  all  the  lati- 
tude between  those  two  sums  in  determining  what  the  damages  are 
to  the  plaintiff,  and  I  do  not  see  that  I  can  aid  you  any  further  in 
regard  to  the  matter.13 

TRESPASS. 

§  821.  Exemplary  Damages — In  Trespass,  (a)  If  the  jury  believe, 
from  the  evidence,  that  a  trespass  was  committed,  as  charged  in  the 
declaration,  by  the  defendant,  or  his  servants,  by  his  direction,  in  a 
wanton,  willful  and  insulting  manner,  and  that  the  plaintiff  has  suf- 
fered any  actual  damage  therefrom,  then  the  jury  are  authorized 
to  find  exemplary  damages;  that  is,  such  damages  as  will  compensate 
the  plaintiff  for  the  wrong  done  to  him,  and  to  punish  the  defendant, 
and  to  -furnish  an  example  to  deter  others  from  the  like  practices.14 

(b)  In  action  of  trespass  to  persons  or  property,  when  the  evidence 
shows  the  trespass  to  have  been  malicious  and  willful,  oppressive, 
or  wantonly  reckless,  the  jury  may  give  what  are  known  as  punitive 
or  exemplary  damages.15 

(c)  To  justify  the  recovery  of  exemplary  damages  for  a  trespass 

13 — Bishop  v.  Journal  Newspaper  Sec.  1031;   Sedg\  Dam.  35;  Cutler  v. 

Co.,    168    Mass.    327,    47    N.    E.     119  Smith,    57    111.    252. 

(120).  15—111.  &  St.  L.  Rd.  Co.  v.  Cobb, 

14—4   Sutherland   Dam.    (3d.   Ed.),  68   111.    53. 


§  822.]  DAMAGES,   MEASURE   OF.  563 

to  property,  it  must  be  shown,  by  the  evidence,  that  the  defendant 
was  actuated  by  malice  or  a  reckless  disregard  of  the  plaintiff's 
rights,  and  when  two  are  sued,  and  one  of  them  is  not  chargeable 
with  malice  or  recklessness,  exemplary  damages  cannot  be  recovered 
against  both.16 

§  822.  Trespass  upon  Land — Smart  Money  or  Exemplary  Damages, 
(a)  If  you  conclude  that  plaintiff  is  entitled  to  recover  possession  of 
the  land,  and  that  it  is  in  her  lawful  possession,  and  the  defendant 
trespassed  upon  it,  then  she  would  be  entitled  to  such  damages,  under 
the  testimony,  as  you  see  proper  to  give,  either  actual  or  punitive 
damages.  If  it  was  entered  in  a  high-handed,  malicious,  outrageous 
way,  and  was  a  willful  invasion  of  her  rights,  then  the  jury  could 
award,  in  addition  to  such  actual  damages  as  have  been  sustained, 
such  damages,  in  the  way  of  punishment,  or  "smart  money,"  as  it 
is  called,  as  they  see  proper.17 

(b)  As  to  the  amount  of  such  exemplary  damages  the  jury  are 
instructed  that  it  might  be  such  as,  in  the  discretion  of  the  jury,  you 
should  deem  just  and  proper  under  the  circumstances,  and  sufficient, 
considering  the  financial  ability  of  defendants,  to  justly  punish  them 
and  serve  as  a  warning  to  others. 

(c)  The  jury  are  instructed  that  if  they  should  find  that  defendants 
trespassed  upon  the  lands  of  plaintiff  in  the  assertion  of  a  supposed 
right,  and  without  wrong  intention,  and  without  such  recklessness 
as  to  show  malice  or  conscious  disregard  for  the  rights  of  others, 
then  you  would  not  be  justified  in  giving  punitive  or  exemplary  dam- 
ages; to  authorize  exemplary  damages,  the  jury  must  find  that  de- 
fendants trespassed  upon  the  land  of  plaintiff,  and  that  he  was  dam- 
aged thereby,  and  further  that  the  trespass  was  done  wantonly,  will- 
fully, maliciously  or  with  intent  to  injure  plaintiff's  property,  or  de- 
prive him  of  its  use ;  if  the  trespass  was  without  wrong  intention, 
but  in  the  belief  that  they  had  a  right  to  go  upon  the  lands  with 
their  sheep,  and  that  the  acts  were  done  without  malice  or  willful  in- 
tention to  injure  the  plaintiff,  then  the  jury  should  assess  only  such 
damage  as  you  shall  find  from  the  evidence  to  have  been  actually 
sustained  prior  to  the  bringing  of  the  suit;  that  exemplary  damages 
cannot  be  given,  except  in  extreme  eases  where  the  malicious  inten- 
tion to  willfully  injure  has  been  clearly  shown;  and  unless  the  same 
has  been  proven  to  the  satisfaction  of  the  jury,  by  a  preponderance 
of  the  evidence,  no  sum  whatever  as  punitive,  vindictive  or  exem- 
plary damages  can  be  awarded.  The  jury  are  further  instructed  that 
the  plaintiff  is  not  entitled  to  any  damage  either  as  compensation 
or  otherwise  for  any  trespass  other  than  that  alleged  in  the  petition, 
nor  for  any  trespass  occurring  since  the  commencement  of  the 
action.18 

16— Becker   v.   Dupree,   75  111.   167.         18— Cos^riff    et    al.    v.    Miller,    10 
17— Connor    v.    Johnson,    59    S.    C.     Wvo.   190.   68  Pac.  206   (213),  98  Am. 
115,  37   S.   E.   240.  St.   R.    977. 


564  FORMS  OF  INSTRUCTIONS.  [§  823. 

§  823.  Smart  Money  in  Suit  Against  Corporation.  The  court 
charges  the  jury  that  if  you  find  for  the  plaintiff,  you  may  if  actual 
malice  has  been  shown,  in  addition  to  compensatory  damages,  allow 
a  further  sum  by  way  of  punitive  or  exemplary  damages.19 

§  824.  Growing  Crops.  The  measure  of  damage  is  the  value  of 
the  crop  destroyed,  taking  into  consideration  its  market  value  after 
harvested,  and  the  cost  of  seeding,  caring  for,  harvesting  and  mar- 
keting the  crop,  and  the  value  of  the  crop  is  measured  by  the  amount 
of  crop  produced  on  like  and  similar  lands  in  the  neighborhood  in 
which  the  land  is  located,  taking,  into  consideration  all  elements  as 
to  the  probable  yield  of  the  land  in  controversy.20 

§  825.  Herding  Cattle  on  Plaintiff's  Land,  (a)  The  measure  of 
the  plaintiff's  damage  for  the  loss  or  injury  to  the  grass  for 
the  years  1886  and  1887,  if  you  find  that  he  has  sustained  any  dam- 
ages in  that  regard,  will  be  the  actual  damage  done  to  the  grass  crop 
for  these  years  by  the  defendant's  cattle;  that  is,  the  difference  be- 
tween the  actual  market  value  of  the  crop  upon  the  land  for  those 
years  as  it  was  and  what  its  market  value  would  have  been  had  the 
plaintiff's  cattle  not  been  driven  or  herded  or  pastured  upon  the 
land.  To  state  it  in  other  words,  the  question  for  you  to  determine 
from  the  evidence  in  fixing  the  amount  of  damages,  if  any,  on  this 
claim  is  how  much  less  was  the  actual  rental  value  of  the  land  for  the 
grass  crop  of  these  years  by  reason  of  the  defendant's  cattle  having 
been  driven  or  herded  upon  the  land  than  it  would  have  been  had 
the  cattle  not  been  driven  or  herded  upon  the  land. 

(b)  If  you  find  that  the  plaintiff  is  entitled  to  recover  in  this 
ease,  you  will  ascertain  whether  he  has  sustained  any  damages  by 
reason  of  any  permanent  injury  to  the  growth  of  grass  on  said  land. 
The  plaintiff's  damages  upon  this  claim,  if  he  is  entitled  to  recover 

19 — Bingham  v.  Lipman  "Wolfe  &  ever,  where  it  is  sought  to  charge 
Co.,  40  Ore.  363,  67  Pac.  98  (101).  a  corporation  with  exemplary 
The  court  said  that  prior  decisions  damages  on  account  of  the  ma- 
had  committed  it  to  the  doctrine  licious  acts  of  its  subordinate 
that  punitive  or  vindictive  dam-  agents,  there  can  be  no  room  for 
ages  might  be  recovered  in  cases  controversy  that  where,  as  in  this 
of  tort,  citing  Sullivan  v.  Navi-  case,  the  officers  actually  wielding 
gation  Co.,  12  Ore.  392,  7  Pac.  508,  the  whole  executive  power  of  the 
53  Am.  Rep.  364;  Kelley  v.  High-  corporation  participated  in  and 
field,  15  Ore.  277,  14  Pac.  744;  Day  directed  all  that  was  planned  and 
v.  Holland,  Id.  464,  15  Pac.  855;  done,  their  malicious,  wanton,  or 
Oaman  v.  Winters,  30  Ore.  177,  46  oppressive  intent  may  be  treated 
Pac.  780;  Brown  v.  Swineford,  44  as  the  intent  of  the  corporation 
Wis.  282,  28  Am.  Rep.  582.  There  itself,  for  which  it  is  liable  to  an- 
is  a  conflict  of  authority  as  to  swer  in  exemplary  damages.  D. 
whether  a  corporation  should  be  &  R.  G.  R.  Co.  v.  Harris,  122  TT.  S. 
liable  in  damages  for  an  injury  597,  7  Sup.  Ct.  1286,  30  L.  Ed.  1146." 
.caused  by  the  misconduct  of  its  20 — "The  above  statement  of  the 
agent  unless  the  act  was  previous-  law  is  in  accordance  with  the  prin- 
ly  authorized  or  subsequently  rati-  ciples  announced  by  this  court  in 
fied  by  the  governing  body  of  the  Colorado  Cons.  Land  &  Water  Co. 
corporation.  5  Thomp.  Corps,  v.  Hartman,  5  Colo.  App.  150,  38 
§§6384,6389.  Pac.  62."     Catlin  Consolidated  Canal 

The     court     in     conclusion     said,  Co.  v.  Euster,  19  Colo.  App.  117,  73 

"Whatever  the  rule  may  be,  how-  Pac.  846  (847). 


§826.]  DAMAGES,   MEASURE   OF.  565 

any,  will  be  such  only  as  injuriously  affect  the  market  value  of  the 
land,  and  must  be  fixed  at  the  difference  between  the  actual  market 
value  of  the  land  at  the  time  the  defendant's  cattle  ceased  to  be 
herded  upon  said  land  and  what  would  have  been  its  market  value 
at  that  time  if  the  cattle  had  not  been  herded  or  driven  upon  it  at 
all;  or,  in  other  words,  the  question  here  to  be  determined  is,  how 
much  less,  if  any,  was  the  land  worth  in  the  market  by  reason  of 
the  defendant's  cattle  having  been  driven  or  herded  upon  the  land 
than  it  would  have  been  had  the  cattle  not  been  herded  or  driven  on 
the  land. 

(c)  If  you  find  from  the  evidence  that  the  plaintiff  is  entitled  to 
recover  damages  from  the  defendants,  you  will  declare  the  same  by 
your  verdict;  but  in  determining  the  amount  of  damages  you  must 
confine  the  same  to  the  damages  committed  by  the  defendant's  cattle. 
You  will  not  allow  him  for  any  injuries  to  the  grass  on  the  land 
that  may  have  been  committed  by  other  cattle,  nor  will  you  allow 
him  damages  for  any  injuries  that  may  have  been  committed  in 
prior  years,  or  prior  to  the  time  of  giving  the  notice,  if  one  was 
given,   as  has  been  denned  to  j^ou  in  these  instructions.21 

§  826.  Destroying  Sign.  The  plaintiff  is  entitled  to  recover  as  its 
measure  of  damages  in  this  action  such  amount  as  will  compensate 
it  for  the  loss  it  sustained  in  consequence  of  defendant's  wrongful 
act  in  erasing  and  marking  out  the  sign  in  question,  the  cost  of  re- 
placing said  sign,  including  railroad  fare  of  workmen  from  Chicago 
or  elsewhere,  if  sent  specially  for  that  purpose,  together  with  hotel 
bills  to  plaintiff.  The  actual  cost  of  repairing,  replacing  and  main- 
taining said  sign  under  its  contract  to  the  Durham  tobacco  people  is 
plaintiff's  full  measure  of  damages,  and  this  yon  will  ascertain  and 
allow  in  such  sum  as,  from  a  preponderance  of  the  evidence,  you  find 
to  be  such  cost ;  but  you  cannot  allow  exemplary  damages, — that  is, 
you  must  not  assess  damages  for  the  purposes  of  punishing  the  de- 
fendant.22 

VICIOUS  ANIMALS. 

§  827.  What  to  Consider  in  Assessing  Damages.  If,  under  the 
evidence  and  instructions,  you  find  a  verdict  for  the  plaintiff,  you 
shall  assess  his  damages  in  such  sum  as  you  may  believe  will  com- 
pensate plaintiff:     First.     For  his  physical  and  mental  suffering,  if 

21 — Harrison      v.       Adamson,      86  Harrison  v.   Kiser,   79  Ga.   588,   4  S. 

Iowa  693,  53  N.  W.  334  (335).  E.    320:    Graessle    v.    Carpenter.    70 

22— Shiverick    et    al     v.     Gunning  Iowa   166,    30   N.    W.    392;    Vermilya 

Co.,  58  Neb.  29,  78  N.  W.   460-462.  v.    C.   M.   &   St.   P.   R.   Co.,  66  Iowa 

"Ordinarily,    the    reasonable    cost  606,  24  N.  W.  234,   55  Am.  Rep.   279. 

and  expense  of  replacing  or  restor-  As    to    the    allowance    for    railroad 

ing  the  sign  each  time  it  was  oblit-  fare  and  hotel  bills,  these  might  or 

erated    by   the    defendant    was    the  might    not    be    proper    elements    of 

proper     measure     of     damages.       3  damages   according  to   the   circum- 

Sedg.    Dam.    (8th    Ed.)    para.    932;  stances  of  the   case." 


566  FORMS  OF  INSTRUCTIONS.  [§828. 

any,  directly  caused  by  his  injuries:  provided,  such  injuries  must  be 
the  direct  result  of  the  force  and  violence  of  the  attack  and  striking 
by  the  cow.  Second.  If  injuries  were  caused  upon  plaintiff  which 
are  of  a  permanent  character,  then  you  may  award  him  damages 
such  as  will  reasonably  compensate  for  such  permanent  injuries. 
Third.  For  any  expense  incurred  for  medical  attendance,  made  nec- 
essary in  the  treatment  and  cure  of  his  injuries.  Such  damages, 
however,  shall  not,  altogether,  exceed  the  sum  of  two  thousand 
dollars.23 

The  jury  are  instructed  that,  before  they  can  find  exemplary  dam- 
ages, they  must  believe  that  plaintiff  has  established  by  a  preponder- 
ance of  the  evidence  that  the  defendant  owned  the  dog  that  bit 
plaintiff;  that  he  knew  the  dog  was  of  a  vicious  and  dangerous  dis- 
position; and,  so  knowing,  let  the  dog  run  at  large,  with  a  reckless 
disregard  of  the  right  of  the  public  at  large.24 

MISCELLANEOUS. 

§  828.  Wrongful  Eviction — Without  Probable  Cause  and  with 
Malice.  In  some  torts  the  entire  injury  is  to  the  peace,  happiness 
and  feeling  of  the  plaintiffs.  In  such  cases  no  measure  of  damages 
can  be  prescribed,  except  the  enlightened  conscience  of  impartial 
jurors.25 

§  829.  Eviction — What  Damages  Should  Cover.  If  you  find  from 
the  evidence  that  the  plaintiff  is  entitled  to  recover,  you  should  assess 
as  his  damages  an  amount  sufficient  to  cover  the  value  of  the 
tools,  furniture  and  fixtures  that  were  taken  away  and  not  returned; 
for  the  damages  to  the  tools,  furniture  and  fixtures  that  were  taken 
away  and  returned;  for  the  loss  of  materials  taken  away  and  not 
returned ;  for  the  amount  paid  in  rent  by  the  plaintiff  for  the  time 
he  was  dispossessed  of  the  offices;  for  the  value  of  the  signs  that 
were  taken  away  and  not  returned,  and  'for  the  expense  of  replacing 
the  same,  and  the  expense  of  repairing,  cleaning  and  replacing  the 
furniture,  fixtures  and  tools  in  the  office.26     ■ 

23— In    O'Neill    v.    Blase,    94    Mo.  589,    9    Am.    St.    Rep.    336;    Bigelow 

App.    648,    68    S.    W.    764    (770),    the  v.  Railway  Co.  (K.  C),  48  Mo.  App. 

court   said:  367." 

"This  instruction  was  plainly  cor-  24— Triolo  v.   Foster,  —  Tex.  Civ. 

rect,  as  far  as  it  went.     If  defend-  App.  — ,   58  S.  W.  698. 

ant    desired    more    definite   instruc-  25— Mitchell  et  al  v.   Andrews,   94 

tions,    they    should    have    heen    re-  Ga.   611,   20   S.   E.   130. 

quested.      Wheeler    v.    Bowles,    163  "Alleged    to    be    error,    in    that    it 

Mo.    398,    63    S.    W.    675.      The    rule  was     given     without     qualification, 

which    the    trial    court    laid    down  and  was   calculated   to  mislead  the 

on    the    measure    of    damages    was  jury.     While  there  was  no  proof  of 

sound.     It  conforms  to  instructions  actual    damages,    there    was    proof 

approved    by   courts    of   last   resort  of    the    kind    of    business    plaintiff 

an    Missouri.      Porter    Vj.    Railroad  was    engaged    in,    and    that    it    was 

Co.,    71    Mo.    74,    36    Am.    Rep.    454;  the  only  business  of  the  kind  in  H. 

Russell    v.    Town    of    Columbia,    74  at  the  time." 

Mo    488    41  Am.  Rep.   325;    Stephens  26— Paxson  v.  Dean,  31  Ind.  App. 

v.  Railroad  Co.,  96  Mo.  215,  9  S.  W.  46,   67  N.   E.   112. 


§  830.]  DAMAGES,   MEASURE   OF.  567 

§  830.  Fraud  and  Deceit— Exemplary  Damages.  The  jury  are  in- 
structed, that  in  an  action  founded  in  fraud  and  deceit,  if  the  jury 
lind  the  defendant  guilty,  the  amount  of  recovery  is  not  necessarily 
confined  or  limited  to  the  actual  damages  sustained.  If  the  fraud  or 
deceit  is  shown,  by  the  evidence,  to  have  been  deliberate,  willful  and 
wanton,  the  jury  are  at  liberty  to  give  exemplary  or  punitive  dam- 
ages, in  addition  to  the  actual  damages  sustained.-7 

§  831.  Difference  Between  Actual  Value  and  Represented  Value. 
The  jury  are  instructed,  that  if  they  find  the  defendants,  or  either 
of  them,  guilty,  then  the  measure  of  the  actual  damage,  if  any,  sus- 
tained by  the  plaintiff,  is  the  difference  between  the  actual  value  of 
the  property  in  question,  in  the  condition  it  was  in  when  sold,  and 
the  value  of  the  same  property  if  it  had  been  as  stated  and  repre- 
sented by  the  defendant,  at  the  time  of  the  sale.28 

§  832.  Insurance — Damaged  Goods.  You  are  instructed  that,  if 
the  goods  insured  could  not,  in  ordinary  course  of  trade  or  busi- 
ness, be  sold  at  as  high  prices  after  as  before  the  fire,  such  difference 
was  an  actual  damage,  for  which  the  plaintiffs  are  entitled  to  re- 
cover; and  the  aggregate  of  these  sums  will  be  the  amount  of 
plaintiff's  loss  or  damages.29 

§  833.  Injury  to  Premises  by  Fire — Damages.  If  you  find  for  the 
plaintiff,  you  will  award  him  such  damages  as  will  justly  compensate 
him  for  the  injury  he  has  suffered  by  reason  of  the  fire  in  question 
having  run  and   burned   over  his  premises   hereinbefore   described.30 

§  834.  Malpractice — What  May  Be  Considered  in  Fixing  Damages. 
That  the  jury,  in  fixing  the  damage,  may  take  into  consideration  the 
injury  the  plaintiff  sustained  by  the  unskillful  treatment  of  the  case. 
Of  such  would  be  the  pain,  loss  of  time,  suffering,  loss  of  teeth,  and 
increased  delay  in  effecting  a  cure,  and  probability  of  permanent 
injury,  necessarily  consequent  upon  the  injury  sustained  by  the  mal- 
treatment.31 

§  835.  Damages  for  Failure  to  Deliver  Telegrams — Notice  of  Im- 
portance on  the  Face  of  the  Telegram,     (a)    Unless  you  believe  from 

27 — McAvoy  v.  Wright,  25  Ind.  22.  ing   the    issues   the   jury  were   told 

28 — 4    Sutherland    Dam.    (3d    Ed.),  that     damages    occasioned    by    fire 

Sec.  1171.     Sedg.  on  Meas.  of  Dam.  were    claimed,    and    such    damages 

338;   Thompson  v.  Burgey,  36  Penn.  only   were   under   consideration.     If 

403;    Page   v.    Parker,    40   N.    H.    47.  the  goods  decreased  in   value  from 

29 — Read    v.    State    Ins.    Co.,    103  cost  from  other  causes,  this  would 

Iowa  307,  72  N.  W.  665  (668),  64  Am.  be  taken  into  account  in  determin- 

St.    Rep.    180.  ing  what   they  were  worth  at  that 

"It  is  said  the  measure  of  dam-  time.      All    the    evidence    was    di- 

ages  is   the  difference  between  the  rected    to    fixing    the    value   before 

market  value  of  the  goods  immedi-  and  after  the  fire.     The  jury  could 

ately     before     and     after     the    fire,  not  have  failed  to  understand  this 

That    is    what    the    court    told    the  instruction    to    mean    all    defendant 

jury.      The    fair    market    value    is  claims   it   should." 

what  property  will  bring  in  the  or-  30 — Wickham  v.  Wolcott,  —  Neb. 

dinary  course  of  trade  or  business.  — ,   95  N.   W.   366. 

It     is     claimed     depreciation     from  31 — McCracken    v.    Smathers.    122 

other    causes    might    be    considered  N.  C.  799,  29  S.  E.  354  (355);  4  Suth- 

under  this  instruction.  But  in  stat-  erland  Dam.    (3d   Ed.),  Sec.   1246. 


568  FORMS  OF  INSTRUCTIONS.  [§  835. 

the  evidence  that  the  defendant  had  notice  that  plaintiff  would  sus- 
tain any  damages,  except  as  such  notice  appears  upon  the  face  of 
the  telegram,  and  that  plaintiff's  wife  needed  his  attention,  you  will 
find  a  verdict  for  defendant.32 

(b)  The  jury  are  instructed,  if  they  find  for  plaintiff,  to  allow 
him  such  a  sum  as  you  believe  from  the  evidence  would  be  fair  com- 
pensation for  the  mental  anguish,  if  any,  suffered  by  him  by  reason 
of  being  unable  to  attend  the  funeral  of  his  son.  In  this  connection 
you  are  instructed  that  you  cannot  allow  plaintiff  anything  for  the 
natural  grief  caused  by  the  death  of  his  said  son,  but  can  only  allow 
him  for  the  mental  anguish  caused  by  being  prevented  from  attend- 
ing his  funeral.33 

(c)  If  you  find  a  verdict  for  the  plaintiff  under  the  foregoing 
charge,  then  in  estimating  the  damage  of  plaintiff,  if  any,  you  will 
take  into  consideration  the  mental  suffering  undergone  by  plaintiff, 
if  any,  by  reason  of  his  not  being  present  during  the  last  hours  of 
his  mother's  life.34 

32 — Wolf    v.    W.    U.    Tel.    Co.,    —  paring:  and    submitting  the   charge 

Tex.  — ,  94  S.  W.  1063.  upon   the   law.     If   it   were   not   ap- 

"While  the  telegram  may  have  parent  from  the  face  of  the  mes- 
shown  upon  its  face  it  was  impor-  sage  that  it  furnished  no  intima- 
tant,  if  appellee's  agent  was  not  tion  that  damages  of  the  nature 
informed  of  the  facts  from  which  claimed  were  contemplated  by  the 
such  damages  as  are  claimed  may  parties,  the  statement  of  plaintiff's 
have  accrued,  it  was  essential  that  counsel  authorized  the  court  to 
it  indicate  upon  its  face  that  such  place  that  construction  upon  it,  and 
damages,  or  of  a  similar  nature,  precluded  plaintiff  from  complain- 
might  flow  from  a  failure  to  prop-  ing  of  the  charge  in  which  it  was 
erly  transmit  and  expeditiously  de-  done.  Gresham  v.  Harcourt,  93 
liver  it;  for  plaintiff  would  only  be  Tex.  157,  53  S.  W.  1019;  Telegraph 
entitled  to  recover  such  damages  Co.  v.  Kirkpatrick,  76  Tex.  217,  13 
as  might  have  reasonably  been  S.  W.  70,  18  Am.  St.  Rep.  37;  Tele- 
supposed  to  have  been  in  contem-  graph  Co.  v.  Smith,  76  Tex.  254, 
plation  by  himself  and  defendant  13  S.  W.  169;  Telegranh  Co.  v.  Rag- 
when  the  contract  to  transmit  and  land,  —  Tex.  Civ.  App.  — ,  61  S.  W. 
deliver  the  message  was  made.     It  421." 

appears     from     the     statement     of  33 — W.  U.   Tel.   Co.   v.   Chambers, 

facts    in    this    case    that    upon    the  34   Tex.   Civ.   App.   17,   77  S.    W.   273 

trial    plaintiff's    counsel    stated    to  (274). 

the  court  that  he  did  not  rely  upon  34 — W.  U.  Tel.  Co.  v.  Waller,  — 
the  language  upon  the  face  of  the  Tex.  — ,  S4  S.  W.  695  (696). 
telegram  to  charge  the  defendant  "It  is  objected  to  this  charge 
with  notice  of  the  damages  alleged  that  it  furnishes  no  guide  to  the 
to  have  been  sustained  as  set  forth  jury  for  ascertaining  the  damage 
in  the  petition,  and  that  the  court  or  amount  to  be  awarded  to  the 
in  making  up  the  charge  to  the  appellee.  But  it  can  hardly  be  said 
jury  upon  the  law  should  charge  that  the  charge  furnishes  no  guide 
the  jury  that  the  defendant  must  for  estimating  the  damages.  It 
have  had  notice  of  the  facts  set  correctly  directs  the  jury  to  take 
forth  in  the  petition  upon  which  into  consideration  the  mental  suf- 
plaintiff's  damages  arise  from  some  fering  undergone  by  appellee  by 
other  source  than  that  contained  reason  of  his  not  being  present 
upon  the  face  of  the  telegram,  and  during  the  last  hours  of  his  moth- 
that  the  court  indicated  to  counsel,  er's  life.  This  was  not  affirma- 
at  the  time  and  before  the  charge  tively  erroneous,  and  if  the  charsre 
was  prepared  and  given,  that  it  was  deficient  or  not  sufficiently  full 
would  conform  to  the  views  of  the  appellant  should  have  request- 
plaintiff's  counsel  in  reference  to  ed  a  more  specific  instruction." 
the  notice  of  the  damages  in  pre- 


§836.]  DAMAGES,   MEASURE   OF.  569 

§  836.  Damages  for  Failure  to  Deliver  Telegram — May  Recover 
for  Mental  Suffering,  Sorrow  and  Anguish — Limitation  of  the  Rule. 
If  the  jury  find  for  the  plaintiff,  then  you  are  instructed  that  in 
estimating  the  amount  or  measure  of  damages,  if  any,  to  which  plain- 
tiff may  be  entitled,  by  reason  of  the  alleged  negligence  of  the  de- 
fendant company,  its  agent,  servant,  and  employe,  in  failing  to 
transmit  and  deliver  said  telegram  from  Dr.  and  Mrs.  B.  to  Mrs.  A., 
with  due  diligence,  if  you  find  there  wTas  such  failure,  you  should  con- 
sider and  estimate  only  such  damages  as  plaintiff  may  have  sus- 
tained by  reason  of  such  negligence,  if  any.  You  are  instructed 
further,  however,  in  estimating  the  plaintiff's  damages,  if  any,  you 
find  she  is  entitled  to  recover,  you  may  consider  the  mental  suffering, 
sorrow  and  anguish,  if  any,  suffered  by  the  plaintiff  by  reason  of  the 
negligence  of  the  defendant  company,  if  any;  but  in  this  connection 
you  are  instructed  that  you  should  not  estimate  or  award  any  dam- 
age to  the  plaintiff  on  account  of  any  anguish,  sorrow  and  mental 
suffering  caused  by  the  death  of  her  husband,  or  for  causes  other 
than  those  resulting  from  the  wrongful  and  negligent  acts,  if  any,  of 
the  defendant  company,  its  agent,  servant  and  employe,  or  one  so 
held  out  by  it  to  the  public.  But,  you  may  consider  whether  or  noc 
the  plaintiff  suffered  any  additional  pain,  anguish,  sorrow  and  mental 
suffering  by  reason  of  such  negligence  if  any  on  the  part  of  defend- 
ant company  and  such  damages  if  any,  you  may  consider  as  an  ele- 
ment of  actual  damages  to  such  an  amount  as  you  may  deem  to  be 
reasonable  compensation  for  such  additional  sorrow,  pain  and  mental 
anguish,  if  any.35 

§  837.  Warehousemen — Damages — Difference  in  Value.  The  court 
instructs  the  jury  that,  if  you  find  in  favor  of  plaintiff,  your  verdict 
should  be  for  the  difference  between  the  reasonable  market  value  of 
the  141  bales  of  cotton  in  its  damaged  condition  on  June  30,  1903, 
and  the  reasonable  market  value  thereof  at  that  time  if  it  had  not 
been  damaged.  To  this  sum  the  jury  may  also,  if  you  see  fit,  add  the 
interest  thereon  at  6  per  cent  per  annum  from  October  20,  1903,  the 
date  plaintiff  demanded  payment  from  defendant.36 

§838.  Damage  to  Goods — "Inherent  Qualities."  The  jury  are 
instructed  that  the  phrase  "inherent  qualities"  as  used  in  the  ware- 
house receipt  offered  in  evidence  means  and  refers  to  natural  quali- 
ties and  characteristics  pertaining  to  the  flour  named  in  the  receipt, 
which  would  cause  loss  or  damage  if  the  flour  were  uninfluenced  by 
matter  outside  of  itself  or  by  conditions  in  which  the  flour  might  be 
placed.  And  if  you  believe,  from  the  evidence  in  this  case  that  the 
flour  of  the  plaintiff  was  damaged  in  the  warehouse  of  the  defend- 
ant, and  if  you  further  believe  that  such  damage  was  caused  by  a 
smell  and  taste  being  communicated  to  the  flour  from  something  out- 

35— W.  U.  Tel.  Co.  v.  Carter,  —  36— Prince  v.  St.  Louis  Cotton 
Tex.   — ,    94   S.   W.    206.  C.    Co.,    112    Mo.    App.    49,    86   S.   W. 

873    (877). 


570  FORMS  OF  INSTRUCTIONS.  [§839. 

side  of  the  flour,  then  the  defendant  is  not  exempted  from  liability 
by  reason  of  the  use  in  the  contract  of  the  phrase  "inherent  qualities" 
above  mentioned.37 

§  839.  Passenger  Expelled  for  Refusal  to  Pay  Excess  Fare  on 
Train— Allegation  of  "Ticket  Window"  Being  Closed — Measure  of 
Damages — What  May  be  Taken  into  Consideration  by  Jury  in  Assess- 
ing Damages,  (a)  The  court  instructs  the  jury  that  where  a  rail- 
road company  keeps  in  its  depot  or  station  building  a  particular 
place  for  the  sale  of  tickets,  separate  from  places  for  the  transaction 
of  other  business,  as  an  opening  in  a  particular  wall  and  designates 
such  place  by  some  appropriate  sign  as  "Tickets"  or  "Ticket  Win- 
dow" or,  by  general  custom  or  habit,  uses  such  opening  or  other 
place  for  the  sale  of  its  tickets,  a  passenger  has  the  right  to  apply 
at  such  place  for  his  ticket,  and  to  rely  upon  procuring  it  there; 
and  where  such  opening  or  place  is  closed,  so  that  applications  for 
tickets  cannot  be  made  there,  and  there  is  no  other  place  generally 
and  customarily  used  by  the  public  or  advertised  by  the  company, 
as  a  place  to  procure  tickets,  or  known  to  the  passenger  in  question 
as  a  place  for  procuring  tickets,  and  no  agent  in  or  about  the  waiting 
room  of  such  depot  or  station  building  ready  upon  call  to  sell  tickets, 
or  who  responds  to  a  call  for  a  ticket,  such  ticket  office  is  not  open, 
or  kept  open,  within  the  meaning  of  the  law. 

(b)  Hence,  if  you  believe  from  the  evidence  in  this  case  that  the 
Hillsboro  station  on  defendant's  line  of  road,  on  the  day  the  plain- 
tiff got  on  the  defendant's  train  it  did  not  keep  its  ticket  office  open 
in  some  of  the  manners  and  for  the  time  hereinbefore  stated  so  that 
the  plaintiff  was  unable  to  purchase  ticket  before  entering  the  cars, 
the  defendant's  employes  had  no  right  to  demand  an  excess  fare 
from  him,  or  to  expel  him  from  the  cars  for  refusing  to  pay  it. 

(c)  If  a  person  is  wrongfully  expelled  from  a  railroad  train,  he 
is  entitled  to  recover  all  damages  he  has  actually  sustained,  such  as 
loss  of  time  consequent  thereon;  the  labor,  inconvenience  and  ex- 
pense, if  any,  incident  to  traveling  at  another  time,  or  by  other 
modes  of  conveyance,  to  the  place  he  was  endeavoring  to  reach;  for 
the  physical  pain  endured  by  him  in  being  exposed  to  the  heat  of 
the  sun  and  force  of  the  elements;  and  such  mental  suffering  as 
grows  immediately  out  of,  or  results  directly  from,  such  physical 
pain ;  and  also  such  damages  as  will  compensate  for  the  suffering  of 
outraged  and  humiliated  feelings  natural  to  a  man  who  is  compelled 
to  submit  to  such  indignity  in  such  a  public  place. 

(d)  Hence,  in  this  case,  if  you  believe  from  the  evidence  that 
plaintiff  is  entitled  to  recover  at  all,  he  should  be  allowed,  as  a  mat- 
ter of  right,  to  the  compensation  for  the  labor  and  inconvenience, 
delay  and  loss  of  time,  in  being  compelled  to  go  to  his  destination  at 

37_Sibley  Warehouse  &  S.  Co.  v.     Durand,  102  111.  App.  406  (410),  aff'd 
200  111.   354,  65  N.   E.   676. 


§839.]  DAMAGES,  MEASURE  OF.  571 

another  time,  and  by  other  modes  of  conveyance;  for  the  physical 
pain  endured  by  him,  which  resulted  from  exposure  to  the  heat  of 
the  sun  after  his  expulsion;  and  such  mental  suffering  as  resulted 
directly  from  such  physical  pain,  and  also  upon  such  humiliation  and 
degradation  as  were  imposed  upon  him  by  being  compelled  to  leave 
the  train  under  the  imputation,  publicly  cast  upon  him,  of  having 
refused  to  pay  his  fare,  or  having  violated  the  relations  of  passen- 
ger and  carrier  between  himself  and  the  company.  But,  of  course,  if 
any  of  these  items  or  elements  of  damage  have  not  been  proven  by 
the  plaintiff,  or  are  not  naturally  and  logically  deducible  from  the  act 
of  expulsion,  with  its  attendant  circumstances,  nothing  can  be 
awarded  for  the  same. 

(e)  If  you  find  for  the  plaintiff,  you  are  instructed  that,  in  as- 
sessing plaintiff's  damages,  you  cannot  exceed  the  sum  sued  for  in 
the  complaint,  which  is  twenty-five  thousand  dollars;  and  in  assess- 
ing the  damages  it  is  proper  that  you  consider  the  injuries  received 
by  plaintiff,  their  extent,  whether  of  a  temporary  or  permanent  char- 
acter, and  you  may  take  into  consideration  loss  of  time,  expenses  in- 
curred, physical  suffering,  bodily  pain,  and  permanent  disability,  if 
proved  to  be  direct  results  of  the  injuries  described  in  the  complaint, 
and  you  should  thereupon  assess  such  compensatory  damages  as  in 
your  opinion  the  evidence  before  you  warrants.38 

38— This     series     of     instructions     Ry.    Co.    v.    Wood.   113   Ind.    544,   14 
was    approved    in    L.    N.    A.    &    C.     N.   E.  572,  16  N.  E.  197. 


CHAPTER  XLII. 

DAMAGES,  MEASURE  OF— EMINENT  DOMAIN. 

See  Erroneous  Instructions,  same  chapter  head,   Vol.  III. 

Note. — Concerning  the  amount  of  damages  or  the  principles  upon 
which  compensation  is  to  be  measured  to  the  owner  of  property  taken 
for  public  use  there  are  no  fixed  rules  embracing  the  whole  subject 
universally  applicable  throughout  the  different  states.  In  determin- 
ing the  quantum  of  damage,  regard  must  be  had  to  any  constitutional 
or  statutory  provisions  relating  to  the  subject  and  also  to  the  pre- 
vious course  of  decisions  in  which  those  provisions  have  not  unfre- 
quently  originated.  In  states  where  the  subject  is  not  expressly  reg- 
ulated by  positive  law  the  books  abound  in  cases  which  cannot  be 
reconciled  respecting  what  is  and  what  is  not  proper  to  be  taken  into 
consideration  in  the  way  of  benefits  on  one  hand  or  of  injuries  on  the 
other.    2  Dillon  on  Munic.  Corp.,  §  486. 


§  840.  Private  property  shall  not  §  850. 
be  taken  or  damaged  for 
public  use  without  just 
compensation — Constitution-  §  851. 
al  provision. 

§  841.  Just   compensation    defined. 

§  842.  Compensation      covers      what     §  852 
injuries. 

§  843.  Fair  cash  market  value- 
Projected  improvement- 
Considered.  §  853. 

§  844.  Actual  cash  market  value- 
Special  price  not  consid 
ered. 

§  845.  Actual  fair  cash  market  val-  \  §  854. 
ue — What     owner     or     juror 
would    take   is   incompetent. 

§  84G.  Estimating'       damages — Other     §  855. 
use  to   which   property  may 
be      used — Use      for      which 
property      is      suitable     and     §  S56. 
adapted. 

§  847.  Land   available  for  manufac 

turing      purposes — Flow      of     §  S57. 
water. 

§  848.  Measure      of      damages — Loss 

of  probable   profits   of  busi-     §  858. 
ness — Procuring     another 
place    of    business. 

§  849.  Future     loss     in     construction 

of     buildings — In      lessening     §  859. 
business  in  such  buildings — 
Remote       and       speculative 
damages. 

572 


Depreciation  in  value  of 
property  on  account  of  pub- 
lic   improvements,    etc. 

Benefits  peculiar  to  land  may 
be  deducted  from  amount 
of  damages. 

Benefits  limited  to  such  as 
are  derived  from  the  im- 
provement— Possible  benefits 
to  be  excluded. 

Land  taken  for  railroad  right 
of  way — What  may  be  con- 
sidered in  determining  dam- 
ages. 

Value  of  property  before  and 
after  construction  of  rail- 
road. 

Impairment  of  use  by  oper- 
ation of  trains — Access  ren- 
dered  more   difficult. 

Extension  and  operation  of 
railroad  causing  diminution 
in    value    of    real    estate. 

Injuring  property  adjoining 
street  on  which  railroad  is 
built. 

Property  lessened  in  value — 
Damages  not  susceptible  of 
ascertainment  —  Inconven- 
iences. 

Measure  of  damages — Incon- 
venience in  workings  of  a 
mine  by  construction  of 
railroad. 


840.] 


DAMAGES— EMINENT    DOMAIN. 


573 


§  860.  Value  of  building  stone  that 
can  be  taken  from  the  land 
proper  to  consider. 

§  861.  Increased  danger  from  fires, 
etc.,    may    be    considered. 

§  862.  Jury  may  take  into  account 
the  fact  that  lots  are  sus- 
ceptible  of   extension. 

§  863.  View  of  premise  by  jury — 
To  be  governed  by  testi- 
mony of  witnesses  and  from 
the   inspection. 

§  864.  Assessing  damages — Weight 
to  be  given  testimony  of 
use  of  adjoining   lots. 

§  865.  Public  improvement — Dam- 
num absque  injuria — Must 
be  a  direct  physical  dis- 
turbance. 

§  866.  Railroad  right  of  way  un- 
fenced  for  six  months — 
Proper    for   consideration. 

§  867.  Measure  of  damages  for 
right  of  way  through  farm 
lands. 

§  868.  Riparian  owners — Exclusive 
right  to  all  ice  to  middle 
of  the  stream — Right  to  use 
dock,    etc. 

§  869.  Damages  for  erosion  of  shore 
lands — Nominal    damages. 

§  870.  Appropiiation  of  streets — 
Right  of  free  access  to  and 
egress    from    property. 

§  871.  Change  in  street  grade— Gen- 
eral benefits  not  to  be  con- 
sidered. 


§  872.  Special  benefits  equal  to  or 
greater  than  damages — Spe- 
cial tax  for  cost  of  improve- 
ment  not   to   be   considered. 

§  S73.  Damages  to  adjoining  prop- 
erty by  change  of  grade — 
Diminution  of  market  value 
to  extent  of  damage,  less 
benefits. 

§  874.  Financial  condition  of  parties 
immaterial. 

§  S75.  Telephone  line  constructions; 
unnecessary  trimming  of 
trees. 

§  876.  Where  part  only  condemned 
— Any  benefits  to  remainder 
not  considered;  diminished 
value    considered. 

§  877.  Remote  contingencies — Where 
part  only  taken — Whole 
tract  to  be   considered. 

§  878.  Part  condemned— Remainder 
•cut  into  irregular  fields — 
What  to  include  and  ex- 
clude. 

§  879.  Value  of  land  taken— Depre- 
ciation of  remainder  proper 
element   to   consider. 

§  880.  Plaintiff  entitled  to  recover 
for  any  depreciation  in 
market  value  of  his  lands- 
Lands  taken  and  lands  not 
taken. 

§  881.  All  facts  as  well  as  stipula- 
tions must  be  considered. 


§  840.  Private  Property  Shall  Not  be  Taken  or  Damaged  for  Pub- 
lic Use  without  Just  Compensation— Constitutional  Provision.  The 
constitution  of  this  state  declares:  "Private  property  shall  not  be 
taken  or  damaged  for  public  use  without  just  compensation,"  and 
the  jury  are  instructed  it  will  be  presumed  the  framers  of  that  in- 
strument used  the  word  "damaged"  in  that  connection  in  its  or- 
dinary and  popular  sense,  which  is  hurt,  injury  or  loss,  and  "that 
the  damage  contemplated  by  the  constitution"  in  eases  where  no 
land  is  actually  taken  must  be  an  actual  diminution  of  present  mar- 
ket value  or  price  caused  by  constructing  and  operating  the  road, 
or  a  physical  injury  to  property  that  renders  it  less  valuable  in  the 
market  if  offered  for  sale.1 

§841.  Just  Compensation  Denned,  (a)  The  court  instructs  the 
jury  that  it  is  their  duty  in  this  case  to  ascertain  from  the  evidence 
the  just  compensation  to  be  made  to  the  several  claimants  for  the 
property  to  be  taken  or  damaged  by  the  proposed  improvement. 

1     t     tt^WRRCov    Scott,  various  states,  see  1.  Lewis  on  Em. 

l^'Sfisfw'NBVsLR  Domain    (2d   ed.),   chapter  2.   where 

a     5ft  "  the      constitutional      provisions     of 

For  an   exhaustive  review  of  the  each   state   are   given, 
constitutional     provisions     in     the 


574  FORMS  OF  INSTRUCTIONS.  [§  842. 

(b)  Just  compensation  means  the  payment  of  such  a  sum  of 
money  to  the  owner  of  the  property  proposed  to  be  taken  or  damaged 
as  will  make  him  whole,  so  that  upon  the  receipt  by  him  of  the 
compensation  and  damage  awarded  he  will  not  be  any  poorer  by 
reason  of  his  property  being  so  taken  or  damaged.2 

(c)  The  jury  are  instructed  that  just  compensation  means  the 
payment  of  such  sum  of  money  as  will  make  the  defendant  whole,  so 
that,  on  receipt  by  the  defendant  of  the  compensation  and  damages 
awarded,  he  will  not  be  poorer  by  reason  of  his  property  being  taken 
or  damaged.3 

§  842.  Compensation  Covers  What  Injuries.  In  cases  of  this  kind 
damages  are  assessed  and  compensation  made  once  for  all,  and  this 
proceeding  will  forever  bar  the  claimant  and  all  persons  holding  the 
property  under  him  from  any  future  claim  for  damages  resulting 
from  the  building  and  operation  of  the  contemplated  road  in  an 
ordinary  and  careful  manner.  The  compensation  is,  therefore,  to  be 
determined  according  to  the  full  measure  of  the  rights  acquired  by 
the  corporation,  and  not  according  to  the  mode  in  which  they  pro- 
pose to  exercise  those  rights  in  the  first  instance.  The  damages  to 
be  assessed  include  all  the  injury  to  the  remaining  portion  of  the 
land  by  cutting  off  access  to  or  egress  from  the  different  parts  of  the 
farm,  or  in  rendering  it  inconvenient  for  use  by  cutting  it  up  into 
irregular  pieces  or  in  any  manner  rendering  it  less  suitable  for  con- 
venient and  profitable  occupation  and  use,  or  for  cutting  it  up  into 
lots,  provided  the  jury  believe  from  the  evidence  that  the  construc- 
tion and  operation  of  the  contemplated  road  across  the  claimant's 
farm  will  injuriously  affect  its  value  in  any  of  these  modes.4 

§  843.  Fair  Cash  Market  Value — Projected  Improvement  Con- 
sidered, (a)  The  jury  are  further  instructed  that  the  defendants 
in  this  case  are  each  entitled  to  the  fair  cash  market  value  on  the 
(date  of  filing  the  petition)  of  their  respective  lots  sought  to  be 
taken,  regardless  of  the  causes  which  give  them  value  at  that  time. 
If  the  jury  believe  from  the  evidence  in  the  case,  including  their 
own  view,  that  the  value  of  said  lots,  or  any  of  them,  on  that 
day  was  owing,  in  whole  or  part,  to  the  projection  by  the  plain- 
tiff of  the  improvement  to  its  railroad  facilities  for  which  it  seeks 
to  condemn  said  lots,  still  the  owners  of  said  lots  are  entitled 
to  the  fair  cash  market  value  of  said  lots  as  they  then  stood.5 

2 — Bigelow  v.  W.   "W.   Rd.   Co..  27  language    used    in    an    instruction 

Wis.    478;    1    Redfld.    on    Ry.    261,   2  given  in  that  case  was  an  accurate 

Lewis  on  Em.  Domain  (2d  ed.),  sec.  statement   of  the   law." 

462.  4— Drury  v.   Midland  Rd.   Co..  127 

3— Phillips  v.  Citv  of  Scales  Mass.  571;  C.  &  I.  Rd.  Co.  v.  Hop- 
Mound,  195  111.  352  (363),  63  N.  E.  kins,  90  111.  316;  1  Redfld.  on  Ry.. 
180.  288;    2    Lewis   on    Em.    Domain    (2d 

"In  M.  W.  S.  E.  Rv.  Co.  v.  Stick-  ed.),    sees.    478-479-479a. 

nev.   150   111.    362,    37    N.    E.    1098.    26  5— R.  I.  &  P.  Rv.  Co.  v.  Leisv  B. 

L.   R.   A.  773,  it  was  held  that  this  Co.,   174  111.    547   (549),   51  N.   E.   572. 


§  844.]  DAMAGES— EMINENT    DOMAIN.  575 

(b)  The  jury  are  further  instructed  that  they  are  not  to  con- 
sider the  price  which  the  property  would  sell  for  under  special 
or  extraordinary  circumstances,  but  its  fair  cash  market  value  if 
sold  in  the  market,  under  ordinary  circumstances,  for  cash,  and 
not  on  time,  and  assuming  that  the  owners  are  willing  to  sell  and 
the  purchasers   are  willing  to  buy.6 

§  844.  Actual  Cash  Market  Value — Special  Price  not  Considered. 
The  jury  are  instructed  that  in  considering  the  compensation  to  be 
paid  to  the  defendant  for  the  land  about  to  be  taken,  they  are  to  fix 
the  actual  cash  market  value  of  the  land  taken.  And  they  are 
further  instructed  that  they  are  not  to  consider  the  price  which 
the  property  will  sell  for  under  special  or  extraordinary  circum- 
stances but  its  fair  cash  market  value  if  sold  in  the  market  under 
ordinary  circumstances  for  cash  and  not  on  time,  and  assuming 
that  the  owners  are  willing  to  sell  and  the  purchaser  is  willing  to 
buy.7 

§  845.  Actual,  Fair,  Cash  Market  Value — What  Owner  or  Juror 
Would  Take  is  Incompetent.  In  assessing  the  value  of  the  land 
actually  taken  and  the  damages  to  the  land  not  taken,  you  should 
not  assess  the  same  on  the  basis  of  what  the  owner  would  take 
for  the  same,  or  any  part  thereof,  or  what  you  would  take  and  let 
the  railroad  go  across  the  lands  if  you  were  the  owner  of  them. 
These  are  improper  to  be  taken  into  consideration,  either  in  fixing 
the  value  of  the  land  taken,  or  in  assessing  the  damages  to 
the  land  not  taken ;  but  you  should  at  all  times  keep  in  mind 
that  the  actual  fair  cash  market  value  of  the  lands  taken 
and  the  decrease,  if  any,  in  the  actual  fair  cash  market  value  of 
the  lands  and  property  not  taken  by  reason  of  the  construction 
and  operation  of  the  railroad  are  the  proper  measure  of  damages 
and  compensation  which  j'ou  are   to  ascertain  in  this  case.8 

6 — Phillips     v.     Town     of     Scales  clause    of    the    instruction    is    cor- 

Mound,    195   111.    353    (362),    63   N.    E.  rect,    but    the    objection    taken    to 

ISO;  Brown  v.  C.  R.  Ry.  Co.,  125  id.  the    instruction    is    to    that    portion 

600,    18   N.    E.    283;    Kiernan   v.   Chi.  of    the    second    clause    which    says 

S.   Fe  &  C.   Ry.   Co.,   123   id.   188,   14  the  matters  in  the  first  clause  were 

N.   E.   18;    C.   R.   Ry.   Co.   v.   Moore,  improper   to    be    taken    into    consid- 

124  id.   329,   15  N.   E.   761.  eration  fixing-  the  damages.     If  the 
7 — Brown  v.  Calumet  R.  Ry.  Co.,  damages    should     not    be    assessed 

125  111.  600  (606),  18  N.  E.  283.  upon  the  basis  of  those  matters,  as 
"This  precise  form  of  instruction  is    conceded,    then    we    do    not    see 

was  approved  in  Kiernan  v.  C.  S.  that  it  was  improper  to  say  that 
Fe  and  Cal.  Ry.  Co.,  123  111.  188,  14  they  should  not  be  taken  into  con- 
N.  E.  18,  and  Calumet  River  Ry.  sideration  in  assessing,  the  dam- 
Co.  v.  Moore,  124  id.  329,  15  N.  E.  ages.  The  proper  measure  of  dam- 
764.  In  legal  contemplation,  the  ages  and  compensation  was  given 
present  market  value  of  property  in  a  subsequent  part  of  the  in- 
is  its  present  cash  value  in  mar-  struction,  J.  &  S.  E.  R.  R.  Co.  v. 
ket,  unless  something  is  said  show-  Walsh,  106  111.  255;  C.  &  E.  R.  R. 
ing  that  a  valuation  on  a  time  sale  Co.  v.  Jacobs,  110  id.  416;  Dupuis 
is  intended."  v.    C.   &  N.   W.   Ry.  Co.,   115  id.   99, 

8— Kiernan   v.   Chicago.    Santa  Fe  3  N.  E.  720;   and   to  the  instruction 

&   Cal.   R.   R.   Co.,  123  111.   188   (195),  as  a  whole  we  perceive  no  substan- 

14  N.  E.  18.  tial   objection." 

"It     is    admitted     that    the    first 


576  FORMS  OF  INSTRUCTIONS.  [§  846. 

§  846.  Estimating  Damages — Other  Use  to  Which  Property  May 
be  Used — Use   for  Which   Property  is   Suitable   and  Adapted,     (a) 

The  court  further  instructs  the  jury  that,  while  it  is  proper  for 
witnesses,  in  making  their  estimate  of  damages  to  be  allowed  the 
defendant,  to  take  into  consideration  any  use  to  which  they  believe 
from  the  evidence  the  property  in  question  may  be  profitably  appro- 
priated, yet  the  jury  are  not  bound  to  base  their  verdict  upon  the 
supposition  that  it  would  be  appropriated  to  a  use  other  than  that 
to   which   it   is  now   devoted.9 

(b)  The  court  instructs  the  jury  that  in  fixing  the  amount  of 
compensation  to  be  paid  to  the  defendants,  severally,  you  should 
take  into  consideration  the  use  for  which  the  property  is  suitable 
and  to  which  it  is  adapted,  having  regard  for  its  situation  and 
the  business  wants  of  that  locality,  or  such  as  may  reasonably  be 
expected  in  the  near  future,  so  far  as  the  same  appears  from  the 
evidence;  and  so  far  as  the  same  affects  its  market  value  on  the 
date  of  filing  petition.10 

§  847.  Land  Available  for  Manufacturing  Purposes — Flow  of 
Water.  The  jury  are  instructed  thai  where  property  is  taken  for 
public  purposes  the  owner  is  entitled  to  its  fair  market  cash  value 
for  the  uses  to  which  it  may  be  most  advantageously  applied,  for 
which  it  would  sell  for  the  highest  price  in  the  market;  and  if  you 
should  find  from  the  evidence  in  this  case  that  portions  of  the  land 
taken  border  on  the  shores  of  C.  Bay,  and  that  the  lands  imme- 
diately in  front  thereof  are  available  for  manufacturing  purposes 
of  any  kind,  and  that,  in  order  to  utilize,  lease,  or  sell  them  for 
such  purposes,  it  would  be  necessary  to  have  fresh  water;  that  on 
the  other  portions  of  land  not  taken  there  is  fresh  water  sufficient 
for  the  purpose;  and  that  the  construction  of  this  road  will  inter- 
fere with  the  bringing  of  the  water  over  the  right  of  way — this 
is  an  element  that  you  should  have  a  right  to  consider  in  estimat- 
ing the  damages  sustained.  In  this  connection  you  should  also  take 
into  consideration  the  fact  that  the  railway  company  has  stipu- 
lated in  this  case  and  agreed  to  construct  culverts  upon  its  right 
of  way,  under  its  track,  for  the  transmission  of  water  from  all 
springs  now  upon  the  uplands  not  taken,  and  that  the  railway 
company  would  be  bound  by  such  stipulation  to  construct  its  road 
in  such  manner  as  to  permit  the  flow  of  the  water  from  such  springs 
across  its  right  of  way.11 

9 — Phillips     v.     Town     of     Scales  the  instruction  cannot  be  regarded 

Mound,   195   111.    353    (362),    63   N.    E.  as  erroneous." 

180.  10— R.    I.    &   P.    Ry.    Co.    v.    Eeisy 

"The    language    used    in    this    in-  B.    Co.,    174   111.    547    (550),    51    N.    E. 

struction    was    used    by   this    court  572. 

in    Snodsrrass    v.    Citv    of   Chicago,  11 — S.  &  N.  Ry.  Co.  v.  Roeder  et 

152  111.   600,   38  N.   E.   790,   and  upon  al.,  30  Wash.   244,   70  Pac.   498   (504), 

the    authority    of    the    latter    case,  94   Am.   St.    Rep.   864. 


§  848.]  DAMAGES— EMINENT    DOMAIN.  577 

§  848.  Measure  of  Damages — Loss  of  Probable  Profits  of  Busi- 
ness— Procuring  Another  Place  of  Business.  The  court  instructs 
the  jury  that  the  measure  of  plaintiff's  recovery  is  limited  to  the 
loss  of  probable  profits  of  his  business,  if  any,  shown  by  the  evi- 
dence from  the  time  of  the  construction  of  the  railroad  track  on 
Chestnut  Street  and  its  operation,  and  such  time  as  the  plaintiff 
might,  in  the  opinion  of  the  jury,  by  the  use  of  reasonable  dili- 
gence, have  procured  another  place  of  business  equally  eligible  for 
the  transaction  of  business  of  the  kind  he  was  engaged  in,  includ- 
ing a  reasonable  time  for  removal  to  the  same.12 

§  849.  Future  Loss  in  Construction  of  Buildings  in  Lessening 
Business  in  Such  Buildings — Remote  and  Speculative  Damages. 
The  jury  are  instructed  that,  in  arriving  at  your  verdict,  you  are 
not  entitled  to  consider  any  depreciation  in  the  fair  cash  market 
value  of  the  plaintiffs'  lots  due  to  the  construction  of  the  viaduct, 
even  if  you  find  from  the  evidence  that  such  depreciation  has  taken 
place,  which  has  been  caused  by  its  effect  in  lessening  the  extent 
of  the  business  which  the  jury  may  believe,  from  the  evidence, 
would  otherwise  be  done  upon  said  lots  if  buildings  should  in  future 
be  constructed  thereon  produced  by  the  character  and  extent  of  the 
present  and  future  travel  and  traffic  by  the  general  public  upon 
Halsted  street  in  front  of  the  plaintiff's  lots,  for  the  court  in- 
structs you  that  among  the  reasons  therefor  such  supposed  effects 
are  too  remote  and  speculative  to  be  made  the  basis  of  any  re- 
covery in  this  action.  What  the  future  may  develop  respecting 
the  value  or  use  of  this  property  cannot  be  considered  by  you 
whether  an  advantage  or  disadvantage.  Your  province  is  to  de- 
termine from  the  evidence,  and  your  view  of  the  premises,  whether 
or  not  the  fair  cash  market  value  of  the  property  was  worth  less 
after  the  viaduct  was  constructed  by  reason  thereof  than  it  was 
before  it  was  constructed ;  if  so,  you  should  find  for  the  plaintiffs, 
and   if  not,  your  verdict  should  be  for  the  defendant.13 

§  850.  Depreciation  in  Value  of  Property  on  Account  of  Public 
Improvements,  etc.  (a)  The  court  instructs  the  jury  that  the 
constitution  of  the  State  of  Illinois  provides  that  ''private  prop- 
erty shall  not  be  taken  or  damaged  for  public  use  without  just 
compensation."  If  you  believe  from  the  evidence  in  this  case  that 
the  property  of  the  plaintiffs  described  in  the  declaration  has  been 
depreciated  in  value  by  reason  of  the  erection  and  construction  of 

the  viaduct   on street   and   the   elevation   of  the  grade   of 

and streets  in  front  and  alongside  of  the  plain- 
tiffs' property,  then  you  are  instructed  that  the  plaintiffs  are  en- 
titled to  recover  of  and  from  the  city  of  Chicago  the  amount  of  the 
depreciation  in  value  so  sustained  by  them  to  the  property  afore- 

12 — Penn.  Mutual  Life  Ins.  Co.  et         "This   instruction    lays    down    the 
al.   v.   Heiss  et  al.,   141   111.   35   (fi7").     correct    rule." 
31    N.   E.   138,    33   Am.    St.   Rep.    273.        13— City   of   Chicago    v.    Spoor,   91 

37 


578  FORMS  OF  INSTRUCTIONS.  [§  851. 

said  as  shown  by  the  evidence,  and  you  should  find  the  defendant 
guilty  and  assess  the  plaintiffs'  damages  at  such  sum  as  will  com- 
pensate them  for  the  depreciation  in  value  so  sustained.14 

(b)  The  actual  amount  of  pecuniary  loss  to  the  plaintiff  is  not 
necessarily  the  rule  of  damages  in  actions  like  the  present.  In 
estimating  the  amount  of  compensation  to  the  plaintiff  for  the 
injury,  if  any,  found  to  have  been  sustained  by  it,  the  jury  may 
determine  the  extent  of  the  injury  and  the  equivalent  damages,  in 
view  of  all  the  circumstances  of  said  injury  to  said  plaintiff,  of 
depreciation  in  the  value  of  its  property  during  the  period  em- 
braced in  this  suit,  and  of  interference  with  the  uses  to  which 
said  property  was  devoted  by  said  plaintiff  during  said  period, 
and  of  all  other  particulars,  it'  any.  wherein  t he  plaint  ill'  is  shown 
to  have  been  injured  during  said  period,  and  for  which,  under  the 
instructions   of   the   court,  said   plaintiff  is  entitled   to  recover.15 

§  851.  Benefits  Peculiar  to  Land  May  be  Deducted  from  Amount 
of  Damages,     (a)     The  jury  are  instructed,  that  if  they  find   from 

the  evidence  that  the  plaintiff  will  enjoy  any  benefits  peculiar  to 
his  land  from  the  railroad  being  built  on  this  street,  such  benefits 
must  be  deducted  from  his  damages,  if  any  are  sustained  by  him; 
but  such  benefits  as  he  will  enjoy  in  common  with  the  whole  com- 
munity must  not  be  so  deducted. 

(b)  In  estimating  the  damages  arising  from  (the  widening  of 
the  street)  and  the  taking  of  the  claimant's  land  therefor,  the 
jury  should  allow  as  a  set-off,  any  special  benefits  which  will  accrue 
to  that  portion  of  the  lot  not  taken  in  consequence  of  (the  widen- 
ing of  the  street),  provided,  the  jury  believe,  from  the  evidence, 
that  any  such  special  benefit  will  accrue  therefrom.  The  benefits 
which  may  be  thus  deducted  or  set  off,  are  such  as  are  direct  and 
special  to  the  property  of  the  claimant,  but  not  general  benefits 
shared  by  his  land  in  common  with  other  land  in  the  vicinity,  or 
in  common  with  other  lots  abutting  on  the  same  street,  no  part  of 
which  is  taken.  Benefits  may  be  direct  and  special  although  other 
lots  upon  the  same  street  similarly  situated  will  be  similarly  bene- 
fited.16 

§  852.  Benefits  Limited  to  Such  as  are  Derived  from  the  Improve- 
ment— Possible  Benefits  to  be  Excluded,  (a)  The  jury  are  in- 
structed that  in  estimating  the  benefits  that  may  accrue  to  the 
premises  of  the  objectors  or  any  of  their  premises  by  the  proposed 
improvement,   they  should   limit   such  estimates   of  benefits   to   such 

111.  App.  472   (474),  affd.  190  111.   340,  15— B.    &    P.    R.    R.    Co.    v.    Fifth 

60   N.   E.   540.  Bap.  Church,  108  U.   S.  317  (322). 

14 — "There    could    be    no    reason-  16 — Parks    v.    Hampden,   20    Mass. 

able  criticism   of  the  instruction  as  395;    Cross    v.    Plymouth,    125   Mass. 

a     whole."       Ci+v     of     Chicago     v.  557;    2    Lewis    on    Em.    Domain    (2d 

Spoor,    91    111.    App     472    (474).   aff'd  ed.),    sec.   469. 
190    111.    340,    60    N.    E.    540. 


§  853.]  DAMAGES— EMINENT    DOMAIN.  579 

benefits    as    are    derived    from    the    improvement    described    in    the 
ordinance.17 

(b)  The  jury  are  instructed  that  benefits  by  the  proposed  im- 
provements cannot  be  predicated  upon  the  uncertainties  of  the  fu- 
ture action  of  the  City  Council  in  providing  for  the  construction 
and  building  of  a  bridge  on  C  street,  but  the  benefits  in  this  case 
must  flow  directly  from  the  improvement  proposed,  without  ref- 
erence to  such  action  of  the  City  Council  in  reference  to  the  con- 
struction of  said  bridge. 

(c)  If  the  jury  believe,  from  the  evidence,  that  the  premises 
of  the  objectors  will  not  be  benefited  by  the  proposed  improvement 
unless  a  bridge  be  constructed  upon  the  line  of  such  improvement 
across  the  south  branch  of  the  Chicago  river  at  C  street,  then  their 
verdict  in  this  case  should  be  for  the  objectors.18 

(d)  The  jury  are  instructed  that  in  estimating  the  compensa- 
tion to  be  paid  for  the  property  to  be  taken,  the  jury  should  exclude 
from  their  minds  all  consideration  of  possible  benefits,  if  any,  to 
accrue  from  the  improvement  to  the  lots  or  parts  of  lots  not  pro- 
posed  to   be   taken.19 

§  853.  Land  Taken  for  Railroad  Right  of  Way— What  May  be 
Considered  in  Determining  Damages,  (a)  The  court  instructs  the 
jury,  on  behalf  of  plaintiff,  that  the  true  measure  of  compensation 
where  no  land  is  taken  for  the  right  of  way  of  a  railroad  upon 
which  to  construct  a  road-bed  and  track,  is  the  difference  between 
what  the  whole  property  would  have  sold  for  unaffected  by  the 
railroad  and  what  it  would  sell  for  as  affected  by  it. 

(b)  The  jury  are  further  instructed,  on  behalf  of  the  plaintiff, 
that  in  determining  whether  plaintiff's  lands  are  lessened  in  value 
by  reason  of  the  construction  and  the  proposed  operation  of  the 
railroad,  the  jury  may  consider  the  injury  to  plaintiff's  lands,  if 
any  is  proved,  arising  from  the  inconveniences  actually  brought 
about  and  occasioned  by  the  construction  of  defendant's  railroad, 
although  such  damage  might  not  be  susceptible  of  definite  ascer- 
tainment; and  may  also  consider  such  incidental  injury  as  the 
proof  may  show  might  or  would  result  from  the  perpetual  use  of 
the  track  for  moving  trains,  or  from  the  inconveniences  in  using 
said  lands  for  farming  purposes,  and  in  handling  stock  upon  it, 
if  the  proof  shows  such  railroad  would  occasion  any  such  incon- 
veniences; and  they  may  consider  generally  such  damage  as  the 
evidence  may  show,  if  any  is  reasonably  probable  to  ensue  from 
the   construction    and   operation   of   the   defendant's   said   railroad.20 

17— Hutt  et  al.  v.  City  of  Chicago,  fusing-  the  instructions   relating  to 

132   111.    352,   23  N.   E.   1010.  that  question." 

18— Hutt    et    al.    v.    City    of    Chi-  19— Ry.   v.   Gilson,   8  Watts    (Pa.) 

cago,   supra.  243. 

"The  question   as   to  the   erection  20 — L.     E.     &    "W.    R.    R.    Co.     v. 

of  a   bridge    we    do    not    regard    as  Scott,  132  111.  429   (433),  24  N.  E.  78, 

one  germane  to  the   inquiry  before  8   L.    R.  A.   330. 
the  jury,  and  the  court  erred  in  re- 


580  FORMS  OF  INSTRUCTIONS.  [§  854. 

§  854.  Value  of  Property  Before  and  After  Construction  of  Rail- 
road, (a)  In  determining  whether  the  property  in  question  will 
be  injuriously  affected  by  the  building  and  operation  of  the  rail- 
road, the  jury  may  consider  whether  the  property  is  adapted  to 
business  purposes,  or  only  useful  as  residence  property;  bul  you 
are  only  to  take  these  matters  into  consideration  for  the  purpose 
of  determining  whether  the  value  of  the  property  will  be  depre- 
ciated, and  the  extent  of  such  depreciation  by  the  building  and 
operation    of  said    railroad    as    contemplated. 

(b)  You  are  further  instructed,  that  in  no  event  must  the  dam- 
ages exceed  the  sum  which  would  be  obtained  by  determining  the 
difference  between  the  actual  value  of  the  property  in  question  with 
the  railroad  constructed  and  operated  in  the  manner  contemplated, 
and   what   that  value  would   be,   were   the   railroad   not  built. 

(c)  You  are  instructed  that  you  should  not  take  as  a  separate 
and  distinct  basis  for  the  assessment  of  damages,  such  remote  con- 
tingencies as  frightening  of  horses,  liability  of  fires,  danger  to  per- 
sons from  passing  trains;  such  contingencies  are  only  to  be  con- 
sidered for  the  purpose  of  determining  whether  and  to  what  extent 
the  value  of  the  property  will  be  decreased  by  the  building  and 
operation  of  the  railroad.  If,  in  consequence  of  its  exposure  to 
such  dangers,  the  actual  value  of  the  property  will  be  diminished 
to  any  extent,  then  such  decrease  in  value  measures  the  actual 
loss  to  the  owner.21 

(d)  You  are  instructed  that  if  you  believe,  from  the  evidence, 
that  a  large  body  of  land  belonging  to  any  defendant  adjoins  the 
proposed  railroad,  and  that  such  large  body  of  land  will  be  worth 
in  the  market  as  much  per  acre  after  the  construction  of  the  pro- 
posed railroad  as  it  now  is,  then  you  have  no  right  to  assess  any 
damages  as  to  such  large  body  of  land  adjoining  such  railroad.-- 

(e)  In  assessing  the  claimant's  damages  your  inquiry  must  be 
confined  to  the  marketable  value  of  his  land  before  and  after  the 
right  of  way  is  appropriated,  taking  into  account,  in  this  connection, 
the  number  of  acres  taken  for  the  right  of  way,  the  manner  of  its 
location,    the   way   his    land   is    cut   by   the   railroad,    and    all    other 

21 — Blesch  v.   C.   &   N.  W.   R.   R.,  tracts.  The  instruction,  as  we  have 

48  Wis.  168,  2  N.  W.  113.  stated,  was  general.     It  did  not  re- 

22 — Prather  v.   Chicago  So.  R.  R.  fer  to  the  166-acre  tract  'Of  land  in 

Co.,  221  111.  180  (198),  77  N.  E.  430.  particular,     but     referred     to     any 

"The    argument    of    appellant    is,  large    tract    of    land    adjoining   the 

that  this   instruction  told  the  jury  railroad.     This   clearly   meant,   and 

that  if  they  believed  the  166  acres  the  jury  must  have  so  understood 

of   land   lying  east   of  the  railroad  it  to  mean,   the  entire  tract  owned 

could   be   sold   for  as   much  in   the  by  the  appellant  lying  east  of  the 

market    after    as    before    the    con-  highway.     It  was  not  erroneous   in 

struction  of  the  railroad,  then  they  that  it  did  not  refer,  if  such  be  the 

should  allow  no  damages  whatever  case,  to  the  122%-acre  tract  of  ap- 

as  to  this  land;  that  it  did  not  ap-  pellant's    land    lying    west    of    the 

ply  to  the  whole  farm  of  appellant,  public  highway,  for  the  only  proof 

and     stated    that    the    owner    was  in  the  record  as  to  this  tract  shows 

compelled   to   divide   his   farm   into  it  was  not  damaged  at  all." 


§  855.]  DAMAGES— EMINENT    DOMAIN.  581 

like  matters  appearing  in  evidence  which  affect  the  value  of  the 
land,  so  as  to  be  able  to  estimate  its  true  market  value,  as  affected 
by  the  location  of  the  railroad,  before  and  after  such  location. 
The  difference  in  the  market  value  of  the  land  before  the  appro- 
priation of  the  strip  for  right  of  way  and  after  the  right  of  way 
is  taken,  will  constitute  the  claimant 's  true  measure  of  damages ; 
provided  you  believe,  from  the  evidence,  that  the  property  a\  ill  be 
less  valuable  after  the  right  of  way  is  taken,  in  consequence  of 
such  taking.23 

(f)  The  court  instructs  the  jury  on  behalf  of  the  plaintiff  that 
the  true  measure  of  compensation  where  no  land  is  taken  for  the 
right  of  way  upon  which  to  construct  a  road-bed  and  track,  is  the 
difference  between  what  the  whole  of  the  property  would  have  sold 
for  unaffected  by  the  railroad  and  what  it  would  sell  for  affected 
by  it.24 

(g)  The  jury  are  instructed  that  if  they  find,  from  the  evidence, 
that  the  premises  of  the  defendant  will  sell  for  more  in  the  open 
market  than  it  would  if  the  tracks  of  the  plaintiff  had  not  been 
constructed  and  operated  in  the  manner  shown  by  the  evidence,  and 
that  this  result  was  caused  by  the  construction  and  operation  of 
the  tracks  of  the  plaintiff,  then  they  should  find  for  the  plaintiff.25 

§  855.  Impairment  of  Use  by  Operation  of  Trains — Access  Ren- 
dered More  Difficult,  (a)  If  the  jury  believe,  from  the  evidence, 
that  the  running  of  the  cars  and  locomotives  on  the  street  in  front 
of  the  premises  in  question,  in  the  usual  and  ordinary  manner  of 
operating  such  cars  and  locomotives,  will  create  smoke  and  cinders 
and  throw  them  upon  the  premises,  so  as  materially  to  impair  the 
reasonable  use  and  enjoyment  thereof,  then  you  have  a  right  to 
take  these  matters  into  consideration  in  determining  whether  or 
not  the  said  will  be  damaged  by  the  location  and  opera- 
tion of  the  railroad;  but  said  damages,  if  any,  must  be  actual 
damages,  and  they  can  only  be  considei-ed  for  the  purpose  of  de- 
termining whether  the  value  of   the  property,   with   the  road  con- 

23— Hartshorn  v.  B.  C.  &  N.  R.  lant  are  of  such  a  character  as  re- 
Co.,  52  la.  613,  3  N.  W.  64S.  quired    appellant's    counsel    to    ask 

24 — 111.  Cen.  R.  R.  Co.  v.  Schmid-  for  more  specific  directions.   While 

gall,    91   111.    App.    23    (27).  it  is  not  the  duty  of  the  counsel  on 

The    court    said    of    this    instruc-  either  side  to  try  both  sides  of  the 

tion:        "The    instruction    substan-  case,   it  is   the  defendant's   duty  to 

tially    states    the    rule   of    damages  present    his    defense    both    by    evi- 

to  be  the  depreciation  in  the  mar-  dence   and    by   instructions    to    the 

ket  value  of  the  property  in  con-  jury.     Bartlett  v.  Board  of  Educa- 

sequence  of  the  building  and  oper-  tion,    59    HI.    384;    Village    of    Hyde 

ating  of  the  railroad.     We  can  dis-  Park    v.    Washington    Ice    Co.,    117 

cover    no    serious    objection    to    it.  111.  233,  7  N.  E.  523;   Title  'Instru-"- 

While  we  are  not  to  be  understood  tions'   11   Ency.    of   PI.    &   Prac,   p. 

as   holding  that    the  instruction   is  217;     Thompson     on     Trials,     sees. 

entirely   accurate,   yet   the   most,  if  2341-2346." 

not  all' of  the  criticisms  passed  up-  25— C.    &    G.    W.    R.    R    Co.    v. 

on  it  by  the  counsel  for  the  appel-  Wedel,  144  111.   9   (14),  32  N.  E.   547. 


582  FORMS  OF  INSTRUCTIONS.  [§  856. 

structed,  will  be  less  than  it  would  be  without  the  railroad,  and 
the  extent  of  the  depreciation  in  value  if  any.26 

(b)  If  in  this  cause  you  find  for  the  plaintiff,  the  measure  of 
her  damage  is  the  sum  which  you  may  find  that  her  real  estate 
was  depreciated  in  value  by  reason  of  the  means  of  access  thereto 
being  impaired  or  interfered  with  by  the  construction  and  main- 
tenance of  said  railroad.-7 

§  856.  Extension  and  Operation  of  Railroad  Causing  Diminution 
in  Value  of  Real  Estate.  If  you  shall  believe  from  the  evidence 
in  this  case,  that  the  defendant  constructed  the  extension  of  its 
railroad  track  near  to  the  plaintiff's  property  within  the  last  five 
years  prior  to  bringing  this  ruit,  and  is  operating  said  railroad  as 
described  in  plaintiff's  declaration,  and  that  plaintiff  is  the  owner 
in  fee  of  said  premises,  and  that  by  reason  of  such  extension, 
construction  and  operation  by  the  defendant,  plaintiff's  property 
described  in  his  declaration  is  diminished  thereby  in  its  market 
value,  then  plaintiff  has  a  right  to  recover,  and  your  verdict  should 
be  for  him  in  such  sum  as,  from  all  the  evidence,  he  is  shown  to 
have  sustained,  if  any,  by  reason   thereby.28 

§  857.  Injuring  Property  Adjoining  Street  on  Which  Railroad  is 
Built.  If  you  believe  from  the  evidence  that  in  the  months  of 
and  ,  the  defendant  constructed  a  line  of  rail- 
road across  and  upon  C  street  and  S  avenue,  approaching  plain- 
tiff's property,  and  failed  to  restore  said  streets  to  their  former 
state  and  condition,  and  thereby  destroyed  or  impaired  said  streets 
as  passways  to  and  from  plaintiff's  property,  and  took  a  part  of 
plaintiff's  land  and  constructed  its  road  thereon,  and  that  the  con- 
struction of  said  railroad  in  and  across  said  streets  resulted  in 
injury  to  plaintiff's  property,  and  depreciated  the  value  of  said 
property,  then  it  will  be  your  duty  to  return  a  verdict  for  the  plain- 
tiff, and  assess  his  damages  at  the  difference,  if  any,  between  the 

26— Chicago,  etc.,   R.  Co.  v.  Hall,  28—1.  C.  R.  R.  Co.  v.  Turner,  194 

90    111.    42.  111.    575,    579,    62   N.    E.    798. 

27— P.  C.   C.   &  St.   L..   Ry.  Co.   v.  "The    criticism    made    upon    this 

Noftsker,  26  Ind.  App.  614,  60  N.  B.  instruction  is  that  it  assumes  that 

372    (373).  the  mere  extension  of  the  railroad 

"The  instruction,  we  think,  and  its  operation,  without  any 
means  that  appellee  oould  recover  proof  of  the  specific  items  of  dam- 
in  this  action  any  damage  to  her  age  set  out  in  the  declaration,  are 
property  because  of  any  cutting  a  damage  to  the  plaintiff.  We  do 
off  or  rendering  access  to  or  from  not  think  the  instruction  subject 
the  street  more  difficult  or  incon-  to  the  criticism.  It  confines  the 
venient,  as  the  court  told  the  jury,  jury  to  the  evidence,  and  informs 
in  effect,  in  another  instruction  them,  if  they  believe  therefrom 
given  at  appellant's  request.  The  that  plaintiff's  property  is  dimin- 
question  was  not  appellees'  right  ished  in  its  market  value  by  rea- 
of  access  to  her  property  at  one  son  of  the  extension,  construction 
or  more  points,  but  her  right  of  ac-  and  opera t inn  of  said  road,  their 
cess  along  the  entire  line  of  her  verdict  should  be  for  the  plaintiff 
lot;  and  in  determining  her  dam-  for  such  amount  as  all  the  evi- 
ag-es  it  was  the  interference  with  dence  shows  him  to  have  sus- 
this  that  was  to  be  considered."  tained." 


§  858.]  DAMAGES— EMINENT    DOMAIN.  583 

value  of  the  land  just  before  and  just  after  said  railroad  was  con- 
structed, caused  by  the  construction  of  said  railroad  in  and  across 
said  streets,  and  also  the  reasonable  value  of  the  strip  of  land  ac- 
tually taken  by  the  railroad,  estimating  such  value  at  the  time 
of  the  taking  of  the  same;  making  a  separate  item  of  the  value 
of  the  land  so  taken,  if  any,  from  the  other  damages,  if  any,  you 
may  find.29 

§  858.  Property  Lessened  in  Value — Damages  not  Susceptible  of 
Ascertainment — Inconveniences.  The  jury  are  instructed  that,  in 
determining  whether  plaintiff's  property  is  lessened  in  value  by 
reason  of  the  construction  and  proposed  operation  of  the  railroad, 
the  jury  may  consider  the  injury  to  plaintiff's  property,  if  any  is 
proved,  arising  from  the  inconvenience  actually  brought  about  and 
occasioned  by  the  operation  of  defendant's  railroad,  although  such 
damages  might  not  be  susceptible  of  definite  ascertainment ;  and  you 
may  consider  generally  such  damage  as  the  evidence  may  show,  if 
any,  is  reasonably  probable  to  ensue  from  the  operation  of  defend- 
ant's said  railroad.30 

§859.  Measure  of  Damages;  Inconvenience  in  Workings  of  a 
Mine  by  Construction  of  Railroad.  The  court  instructs  the  jury 
that,  in  estimating  the  damages  to  the  mine  of  the  defendant,  they 
should  consider  as  elements  of  damage  any  changes  they  may  be- 
lieve, from  the  evidence,  to  be  made  necessary  by  reason  of  the 
construction  of  such  railroad  in  the  building  of  switches,  tramways 
and  scales  and  other  improvements  connected  with  the  mine,  as  well 
as  of  actual  inconvenience  and  annoyance  which  the  evidence  shows 
will  result  to  the  defendants  in  the  operation  of  their  mine,  not 
only  for  the  present  but  for  the  future.31 

29 — Red  River  T.  &  S.  Ry.  Co.  v.  assert  that  all  inconveniences  may 

Hughes,    36   Tex.   Civ.   App.   472,   81  be    the    basis    of   actionable    dam- 

S.  W.   1235.  age." 

In   Rosenthal  v.   T.  B.    &  H.   Ry.  31— C.  P.  &  St.  L.  Ry.  Co.  v.  Wolf 

Co.,   79  Tex.   325,   15   S.  W.   268,   and  et  al.,  137  111.  360  (366),  27  N.  B.  78. 

D.  &  P.  S.  Railway  v.  O'Maley,  18  "It  is  said  that  this  instruction 
Tex.  Civ.  App.  200,  45  S.  W.  225,  assumes  as  a  fact  that  each  of  the 
the  court  said  "the  difference  in  several  changes  in  said  mining 
the  value  of  the  land  just  before  property  and  its  appurtenances 
and  just  after  the  construction  of  made  necessary  by  the  construc- 
the  railway  is  held  to  be  the  meas-  tion  of  said  railway,  will  constitute 
ure  of  damages  in  such  cases."  an  element  of  damage,  while  as  is 

30 — 111.    C.    R.    R.    Co.    v.    Schmid-  claimed  some  of  them  may  in  their 

gall,    91   111.    App.    23    (26).  final  results  be  of  essential  benefit 

"It    is    objected    that    inconveni-  to   said    mining  property.     "We   are 

ence   cannot   be  made  the  basis  of  unable  to  see  any  force  in  the  ob- 

damage.     While  it  is  true  that  ev-  jection.     If  by  reason   of  the  con- 

ery  inconvenience  is  not  an  action-  struction    of   the    railway,    the    de- 

able     wrong,     still     the     inconven-  fendant's  switches  and   side  tracks 

iences    proven    were    such    as    are  must   be   taken    up   and   re-laid   in 

actionable.     Rigney  v.  City  of  Chi-  whole  or  in  part,  their  tramway  re- 

cago,  102  111.  64;   L.  E.  &  W.  R.  R.  modelled    or    rebuilt,    their    scales 

Co.   v.   Scott,   132  111.   429,   24  N.   B.  taken  up  and   removed   to  another 

78,  8  Ti.   R.    A.   330;   C.   M.   &   St.   P.  place,    and    like    changes    made    in 

Ry.  Co.  v.  Darke,  148  111.  226,  35  N.  other    parts    of   their   property    all 

E.  751.     The   instruction   does    not  involving       the       exnepdit"re       of 


584 


FORMS  OF  INSTRUCTIONS. 


[§  860. 


§  860.  Value  of  Building  Stone  that  Can  be  Taken  from  the 
Land  Proper  to  Consider.  In  this  case,  if  you  should  find  that  land 
taken  contains  building  stone,  you  are  instructed  that  the  measure 
of  compensation  is  the  fair  market  value  of  the  land  taken  with 
the  building  stone  in  it,  and  the  profits  or  the  price  of  value  of 
such  building  stone,  if  the  same  or  any  part  thereof  will  be  taken 
by  the  proposed  right  of  way,  should  not  be  considered  by  you 
as  building  stone  in  arriving  at  your  verdict.  The  number  of  tons 
of  building  stone  that  could  be  gotten  from  the  land,  and  the  value 
per  ton  thereof,  or  the  royalties  thereon,  are  not  to  be  considered 
except  as  they  may  guide  you  in  fixing  the  value  of  the  lands  taken 
or  injuiy  to  the  quarry  lands;  and  as  a  special  rule  for  your  guid- 
ance in  arriving  at  the  value  of  any  portion  of  the  quarry  which 
you  may  find  from  the  evidence  will  be  taken,  and  of  the  amount 
of  damages  to  any  portion  of  the  quarry  which  you  may  find  from 
the  evidence  will  be  taken,  and  of  the  amount  of  damages  to  any 
portion  of  the  quarry  not  taken,  I  instruct  that  the  compensation 
to  be  awarded  by  you  to  the  owners  is  to  be  estimated  by  a  refer- 
ence to  the  uses  for  which  the  property  is  suitable,  having  regard 
to  the  existing  business  or  wants  of  the  community,  or  such  as  may 
be  reasonably  expected  in  the  near  future.32 


money,  as  the  evidence  seems  to 
show  will  be  the  ease,  there  can 
be  no  doubt  that  such  ehan;.; 
proper  matters  to  be  taken  into 
consideration  by  the  jury  in  the  es- 
timation of  damages.  It  may  be 
that  some  of  these,  as,  for  in- 
stance, the  tramway,  if  re-built 
upon  a  better  plan,  of  new  mate- 
rials and  with  a  double  track,  may 
be  more  valuable  and  more  serv- 
iceable than  now,  but  that  makes 
it  none  the  less  true  that  defend- 
ants have  a  right  to  lnv. 
changes  considered  by  the  jury. 
Said  instruction  does  not  seem  to 
be  at  all  in  conflict  with  the  rule 
that  if  on  the  whole  the  construc- 
tion and  operation  of  said  railway 
will  be  a  benefit  rather  than  a 
damage  to  the  property  not  taken, 
no  damage  should  be  given,  and  in 
conformity  with  that  rule  the  jury 
were  instructed  at  the  instance  of 
the  appellant  in  substance  that  if 
the  contiguous  property  will  be  of 
equal  or  greater  value  by  reason 
of  the  construction  and  operation 
of  said  railway,  no  damages  should 
be  given  for  injuries  to  said  prop- 
erty. Again,  it  is  said  that  said 
instruction  assumes  as  a  fact  that 
the  construction  of  said  railway 
will  inconvenience  and  annoy  the 
-oal  company.  We  think  it  is  not 
fairly  subject  to  that  criticism.  It 
merely  directs  the  jury  in  estimat- 


ing damages  to  consider  all  incon- 
veniences  or  annoyances  estab- 
lished by  the  evidence,  but  could 
not  have  bc<m  understood  by  the 
jury  as  intimating  an  opinion  that 
any  actual  inconvenience  or  annoy- 
ance was  in  fact  shown." 

::l'  -Seattle  &  M.  R.  Co.  v.  Roeder 
et  al.,  30  Wash.  244,  70  Pac.  498 
(504),  94  Am.   St.  Rep.  864. 

"It  is  insisted  that  this  instruc- 
tion is  error,  because  it  allows  the 
jury  to  take  into  consideration  the 
number  of  tons  of  building  stone 
that  <ould  be  taken  from  the  land, 
and  the  value  per  ton  thereof,  and 
the  povalties  thereon,  as  a  guide 
in  fixing  the  value  of  the  land 
taken.  Here  is  a  limestone  quarry 
in  active  operation,  convenient,  ac- 
cessible to  transportation,  where 
the  stone  wras  exposed  on  the  face 
of  the  cliff,  and  easilv.  readily,  and 
cheaply  tr>ken  out.  The  lands  were 
useful  principally  for  the  stone  ly- 
insr  thereon.  The  right  of  way  ap- 
propriated one-half  of  this  ledee 
of  stone,  and  ran  between  the  other 
half  and  water  transportation.  The 
authorities  aerree  that,  where  land 
taken  contains  mineral,  the  meas- 
ure of  compensation  is  the  sum 
that  would  be  sriven  for  the  land 
with  the  mineral  in  it.  But  any 
inouiry  as  to  the  profits  or  the 
pricp  or  the  value  of  the  minerals 
if    the    minerals    themselves    have 


861.] 


DAMAGES— EMINENT    DOMAIN.  585 


§  861.    Increased   Danger   from  Fires,    etc.,   May   be   Considered. 

(a)     If  you  believe,  from  the  evidence,   that  there   will  necessarily 
be  an  increased  danger  to  the  premises  in  question  from  fire  arising 

from  the   building  and  operation  of   the   contemplated  railroad,   or 

been  taken  out  will  not  be  per-  purposes  that  it  is  perhaps  impos- 
mitted.  10  Am.  &  Eng.  Enc.  Law  sible  to  formulate  a  rule  to  gov- 
(2d  ed.),  p.  1158;  6  Am.  &  Eng.  Enc.  ern  its  appraisement  in  all  cases. 
Law,  p.  560;  Sanitary  Dist.  v.  Exceptional  circumstances  will 
Loughran,  160  111.  362,  43  N.  E.  359;  modify  the  most  carefully  guarded 
Searle  v.  Railroad  Co.,  33  Pa.  57;  rule;  but,  as  a  general  thing,  we 
Port  v.  H.  B.  T.  R.  R.  Co.,  168  Pa.  should  say  that  the  compensation 
19,  31  Atl.  950.  This  land  has  a  to  the  owner  is  to  be  estimated  by 
special  value  as  stone-producing  reference  to  the  uses  for  which  the 
land.  The  owners,  therefore,  are  property  is  suitable,  having  regard 
entitled  to  compensation  according  to  the  existing  business  or  wants 
to  its  value  as  such.  Sanitary  Dist.  of  the  community,  or  such  as  may 
v.  Loughran.  supra.  It  is  like  land  be  reasonably  expected  in  the  im- 
with  buildings  thereon,  or  timber  mediate  future.  In  Dupuis  v. 
land,  or  lands  having  any  other  Railway  Co.,  115  111.  97,  3  X.  E. 
commodity  which  is  a  part  of  the  720,  the  court  said:  The  petition- 
land  itself.  It  is  not  like  annual  ers'  fifth  instruction  in  substance 
crops,  the  profits  of  which  are  nee-  directed  the  jury  that  they  should 
essarily  uncertain.  While  the  not  take  into  consideration  any 
profits  or  price  or  value  of  the  min-  profits,  or  supposed  profits,  real- 
erals,  if  the  minerals  themselves  ized  from  the  business  carried  on 
are  taken  out,  may  not  be  consid-  upon  such  lands  or  lots,  or  the 
ered,  yet  the  value  and  extent  and  probable  character  of  such  busi- 
quality  of  the  stone,  or  the  build-  ness  or  profits  in  the  future.  Such 
ings,  or  the  timber,  as  the  case  profits  are  not  proper  elements  in 
may  be,  as  is  exercised  upon  the  ascertaining  the  damages  to  which 
land  may  be  considered.  Lewis,  the  defendants  are  entitled  in  this 
Em.  Dom.  par.  486.  If  the  extent  proceeding.  This  instruction  was 
and  quality  and  value  of  the  stone  in  our  opinion,  calculated  to  mis- 
as  it  lie  on  the  land  may  not  be  lead  the  jury.  It  must  be  true 
considered  there  would  be  no  way  that  the  profits  or  supposed  profits 
by  which  the  value  of  the  land  arising  from  the  business  was  not 
with  the  stone  could  be  shown.  All  a  proper  element  of  damages,  as 
legitimate  evidence  tending  to  es-  declared  in  the  instruction;  but  it 
tablish  the  value  of  the  land  with  will  be  observed  that  "the  instruc- 
the  mineral  in  it  is  permissible,  tion  does  not  stop  with  profits  or 
The  jury  were  not  authorized  by  supposed  profits,  but  goes  further, 
this  instruction  to  fix  the  value  of  and  informs  the  jury  that  they 
the  stone  apart  from  the  land,  but  should  not  take  into  consideration 
were  instructed  that  they  miarht  the  character  of  the  business 
consider  the  quantity  of  stone  that  transacted  on  the  property.  As 
could  be  gotten  from  the  land,  and  said  before,  the  main  inquiry  was 
the  value  thereof,  or  royalty  there-  the  fair  market  value  of  the  prop- 
on.  as  a  guide  in  arriving  at  the  erty  to  be  taken,  but  in  arriving 
value  of  the  land.  If  a  piece  of  at  a  solution  of  this  question  it 
land  taken  contains  valuable  im-  was  proper  for  the  jury  to  con- 
provements,  those  improvements  sider  the  purposes  for  which  the 
apart  from  the  land  may  not  be  lands  were  u=9d,  whether  they 
considered;  yet  certainly  the  char-  were  adapted  for  that  particular 
acter,  nature,  and  extent  of  the  im-  use,  whether  the  lands  were  profit- 
provements,  and  the  revenue  de-  able  and  valuable  for  that  use; 
rived  therefrom,  are  as  essential  and  in  so  far  as  the  particular  use 
to  be  cons'dered  in  arriving  at  the  to  which  the  l^nds  w?re  or  had 
value  of  the  land  as  the  land  it-  been  appropriated,  added  to  their 
self  or  the  uses  to  which  it  may  be  market  value,  that  mi^ht  be  con- 
put.  In  Room  Co.  v.  Patterson,  sidered  bv  the  jury.  If  the  lands 
9^  TT.  S.  40T  25  L.  Ed.  206,  the  court  were  valuable  as  located,  border- 
said:  So  many  and  varied  are  the  insr  on  or  near  the  river,  as  it  is 
circumstances  to  be  taken  into  ac-  contended  they  were,  for  a  saw 
count  in  determining  the  value  of  mill,  planin°r  mill,  or  factory  of 
property      condemned      for     public  any   description,    or   for   any   other 


586  FORMS  OP  INSTRUCTIONS.  [§  861. 

that  the  cost  of  insuring  the  buildings  thereon,  with  their  contents, 
will  be  necessarily  increased  by  the  building  and  operating  of  said 
road,  and  that  the  (rental)  value  of  the  premises  will  be  decreased 
in  consequence  thereof,  then  these  are  facts  proper  to  be  considered 
by  you  in  determining  the  question  of  damage  and  the  amount 
thereof,  as  regards  said  premises.33 

(b)  The  court  instructs  the  jury  that  the  law  is  that  when  a 
railroad  condemns  land  for  a  right  of  way,  the  jury,  in  assessing 
damages,  as  shown  by  the  evidence,  to  the  owner,  may  take  into 
consideration  not  only  the  value  of  the  land  taken  but  all  the  facts 
which  contribute  to  produce  the  damages  to  that  not  taken,  as,  that 
the  farm  is  put  in  a  worse  shape  for  cultivation  or  pasturage;  that 
some  portion  of  it  is  more  dangerous  for  use;  that  there  is  danger 
of  fire  from  passing  engines,  and  all  other  inconveniences  and  dam- 
ages the  property  may  sustain  in  its  use  not  only  for  the  present 
but  for  the  future.34 

(c)  If  you  believe,  from  the  evidence,  that  in  consequence  of 
the  building  and  operation  of  the  railroad  the  property  in  question 
would  be  depreciated  in  value,  whether  from  exposure  to  fire,  incon- 
venience from  trains  or  from  danger  to  persons  and  property,  then 
such  matters  will  be  proper  to  be  taken  into  account  by  you  in 

determining   whether   and    to    what   extent   the   said will 

be  damaged  by  the  construction  of  said  road.  The  real  question 
for  the  jury  is  whether,  in  consequence  of  the  building  and  opera- 
tion of  the  road,  the  property  in  question  will  be  diminished  in 
value.35 

(d)  The  court  instructs  the  jury  that  the  element  of  danger  by 
fire,  if  the  jury  believe  there  would  necessarily  be  any  increased 
danger  from  fire  arising  from  the  lawful  operation  of  the  contem- 
plated road,  or  that  the  cost  of  insuring  the  buildings  thereon 
would  necessarily  be  increased  by  the  building  and  operation  of  the 

purpose,  the  testimony  tending-  to  the  land,  and  the  value  thereof,  or 
prove  such  purpose  was  proper  for  the  royalty  thereon,  are  proper  to 
the  consideration  of  the  jury  in  be  considered  by  the  jury  as  a 
passing  upon  the  fair  market  value  guide  in  determining  the  market 
of  the  property  taken  or  damaged,  value  of  the  land."  See  also  Lewis 
See  also  Alloway  v.  Nashville,  88  on  Em.  Domain  (2d  ed.),  sec.  486. 
Tenn.  510,  13  S.  W.  123,  8  L.  R.  A.  33— Lafayette,  etc.,  Rd.  Co.  v. 
123.  If  the  jury  are  entitled  to  Mu.rdock  et  al.,  68  Ind.  137;  Swin- 
take  into  consideration  the  uses  riey  v.  Ft.  Wayne,  etc.,  Rd.  Co.,  57 
for  which  the  property  is  suitable,  Ind.  205;  Lewis  on  Em.  Domain 
they  certainly  have  the  right  to  (2d  ed.),  sec.  497. 
consider  whether  the  property  is  34 — "This  instruction  is  sustained 
adapted  to  the  particular  uses  by  the  views  of  this  coui't  as  ex- 
claimed for  it,  and  whether  it  is  pressed  in  K.  &  E.  R.  R.  Co.  v. 
or  is  not  profitable  and  valuable  Henry,  79  111.  290;  L.  S.  &  M.  S.  Ry. 
for  such  uses.  Whether  property  Co.  et  al.  v.  C.  &  W.  I.  R.  R.  Co., 
is  profitable  and  valuable  for  a  100  111.  21;  C.  R.  I.  &  P.  R.  R.  Co. 
particular  use  is  always  a  controll-  v.  Smith,  111  111.  363;*'  C.  P.  &  St. 
ing  consideration  in  determining  L.  R.  R.  Co.  v.  Dlume,  137  111.  448 
the  value  of  the  property  itself.  (452),  27  N.  E.  601. 
It  follows  that  the  quantity  of  35— Blesch  v.  C.  &  N.  W.  R.  R., 
stone    that    could    be    gotten    from  48  Wis.  168,  2  N.  W.  113. 


§  862.]  DAMAGES— EMINENT    DOMAIN.  587 

road  and  that  the  value  of  the  premises  would  thereby  be  decreased, 
if  proven,  are  proper  elements  for  the  consideration  of  the  jury  in 
arriving  at  a  conclusion  on  the  question  of  damages.36 

§  862.  Jury  May  Take  Into  Account  the  Fact  that  Lots  are 
Susceptible  of  Extension.  The  court  instructs  the  jury  that  if 
you  find,  from  the  evidence  in  this  case,  that  the  lots  in  question 
or  any  of  them  are  susceptible  of  enlargement  and  extension  by 
filling,  thus  giving  increased  areas  for  any  use  to  which  the  prop- 
erty may  be  put,  then  you  have  a  right  to  take  that  into  account  in 
arriving  at  your  verdict,  and  give  such  fact  the  weight  which,  in 
your  judgment,  it  is  entitled  to  receive,  so  far  as  the  same  affected 
their  market  value  on  the   (date  of  filing  petition).37 

§  863.  View  of  Premise  by  Jury — To  be  Governed  by  Testimony 
of  Witnesses  and  from  the  Inspection,  (a)  By  order  of  the  court, 
and  with  the  consent  of  the  parties,  you  went  upon  the  premises, 
and  viewed  them,  so  that  you  might  have  a  more  intelligent  under- 
standing of  the  evidence  from  knowing  the  lay  of  the  land  and 
the  location  of  the  railroad  over  it;  and  you  may  and  should  use 
your  own  observation  and  judgment,  together  with  all  the  other 
evidence  in  the  ease,  as  to  the  damage  sustained,  if  any,  and  the 
advantages  accruing,  if  any,  as  well.  The  opinions  of  witnesses  are 
to  aid  and  assist  you,  if  possible,  in  arriving  at  a  just  conclusion; 
but  you  are  not  to  lay  aside  your  own  observation  and  judgment, 
and  accept  the  conclusions  of  witnesses  if  you  think  them  extrava- 
gant in  being  either  too  high  or  too  low  or  incorrect.  It  is  entirely 
a  question  for  the  exercise  of  your  best  judgment,  adapting  the 
testimony  of  the  witnesses  to  the  land  and  to  the  location  and 
construction  of  the  road  upon  it,  as  you  saw  it,  and  also  using  your 
own  judgment  and  knowledge  in  the  matter.38 

(b)  The  court  further  instructs  the  jury  that  if  they  believe, 
from  the  whole  evidence,  that  they  have,  from  personal  examina- 
tion of  the  premises,  arrived  at  a  more  accurate  judgment  and  de- 
termination as  to  the  value  of  the  premises  sought  to  be  taken,  and 
of  the  amount  of  damages,  if  any,  than  is  shown  by  the  evidence  in 
open  court,  then  arid  in  that  case  they  may,  upon  the  evidence, 
rightfully  fix  the  value  of  land  taken  and  the  amount  of  damages, 
if  any,  over  and  above  special  benefits,  if  any,  at  the  amount  so 
approved  by  their  judgment,  so  formed  from  personal  examination 
of  the  premises  as  a  jury,  even  though  it  may  differ  from  the 
amount  testified  to,  and  from  the  weight  of  testimony  given  by 
witnesses  in  open  court.39 

36— Chi.   &   M.   Electric  R.   R.   Co.  39— Guyer  v.    ~D.    R.    I.    &   N.    W. 

v.    Diver  et   al.,   213   111.   26    (33),   72  Co..    196    111.    370    (379-80),    63    N.    E. 

N.    E.    758.  732. 

37 — R.  I.  &  P.  Ry.  Co.  v.  Leisy  B.  "The  instruction  conforms  to  the 

Co.,   174  111.   547    (550),    51   N.   E.    572.  law    on    this    point    as    declared    by 

38 — Hoffman  v.    Bloomsburg  &   S.  this  court  in  Kiernan  v.  C.  S.  Fe  & 

R.  Co.,  143  Pa.  503,  22  Atl.  823  (824).  C.  Ry.  Ce  ,  12?  111.  188,   H  1ST    E    18; 


588  FORMS  OF  INSTRUCTIONS.  [§  864. 

(c)  You  were  taken  upon  the  ground,  and  had  the  opportunity 
to  view  and  examine  the  premises  yourselves.  This  was  done  in 
order  that  you  might  he  aided  in  coming  to  a  correct  conclusion 
as  to  the  contention  between  the  parties.  In  ordinary  cases  the 
jury  is  to  be  governed  by  the  testimony  of  the  witnesses  examined 
in  their  presence;  and,  while  you  have  been  qualified  to  give  a  true 
verdict  according  to  the  evidence,  that  evidence  in  this  case  con- 
sists of  what  you  have  seen  on  the  ground,  as  well  as  the  testimony 
of  the  witnesses  who  have  been  examined  during  the  trial  before 
you  in  court.  What  you  observed  on  the  view,  then,  you  must  re- 
member as  a  part  of  the  evidence  in  the  case.  The  statements  of 
the  witnesses  who  have  testified  must  be  considered  by  you,  yet 
you  are  not  bound  to  be  controlled  thereby  if  your  own  examination 
of  the  premises  leads  you  to  a  different  conclusion. 

(d)  You  are  to  judge  of  the  amount  of  damages  suffered  by 
the  plaintiff  from  the  inspection  you  made  of  the  premises,  as  well 
as  from  the  opinions  of  others  who  have  made  an  examination  and 
gave  you  their  opinions  under  oath.  What  you  saw  on  the  ground, 
therefore,  and  what  you  have  heard  from  the  witness  stand,  should 
be   the  basis   of  your  conclusion.10 

§  864.  Assessing  Damages — Weight  to  be  Given  Testimony  of  Use 
of  Adjoining  Lots.  The  court  instructs  the  jury  that  the  evidence 
of  the  plans  or  intentions  of  the  owners  of  lots  3  and  4  in  question 
to  construct  a  slip  between  said  lots,  or  either  of  them,  should  not 
be  considered  by  the  jury  to  enhance  or  increase  the  damage  of 
said  owners  by  showing  such  construction  of  a  slip  or  dock  would 
be  a  profitable  investment,  but  the  jury  should  consider  the  evi- 
dence of  such  plans  or  intentions  merely  on  the  question  as  to  what 
uses  said  lots  might  or  might  not  be  adapted,  giving  to  such  evi- 
dence such  weight  as  the  jury  believe  it  is  entitled  to;  and  the  court 
further  instructs  the  jury  that  they  must  find  the  just  compensa- 
tion to  be  paid  for  each  of  said  lots  in  its  present  condition 
separately.41 

§  865.  Public  Improvement — Damnum  Absque  Injuria — Must  be 
a  Direct  Physical  Disturbance.  You  are  instructed  that  the  owner 
cannot  recover  for  every  possible  injury  which  is  necessarily  inci- 
pient to  the  ownership  of  property  in  towns  or  cities,  which  directly 
impairs  the  value  of  private  property.  For  instance,  the  building 
of  a  jail,  police  station,  or  the  like,  will  generally  cause  direct  depre- 

C.    G.    Rv.    Co.    v.    Murray,    174    111.  40— Gorgas    v.    Phil.    H.    &    P.    R. 

259,   51  N.  E.  245."     But  see  TJupont  Co.,  144  Pa.  1,  22  Atl.  715  (716). 

v.     Sanitarv    District,     203     111.     170  41— C.  R.  Ry.  Co.  v.  Moore  et  al., 

(179),    67    N.    E.    815,    where    an    in-  124   111.   329    (336).   15  N.    E.   764. 

struction       was       held       erroneous  "The  introduction  of  this  plat  for 

which   authorized   the  jury   to   dis-  the    purposes    named,    and    limited 

regard   the  test'monv   of  a  witness  hy  the  Trial  Judge  at  the  time,   in 

if  upon  their  own  inspection  of  the  connection      with     the     instruction 

premises  they  believed  he  had   not  given    the   jury    in    respect   thereto, 

testified    to    the    fair   cash    market  cannot,   under  the   authority   of   C. 

value.  &   E.   R.   R.    Co.   v.    Blake,   116   111. 


§866.]  DAMAGES— EMINENT    DOMAIN.  589 

ciation  in  value  to  the  neighboring  property,  yet  that  is  clearly  a 
case  of  damnum  absque  injuria.  So  as  to  the  obstruction  in  a  pub- 
lic street;  if  it  does  not  practically  affect  the  use  or  enjoyment  of 
neighboring  property,  and  thereby  impair  its  value,  no  action  will 
lie.  In  all  cases,  to  warrant  a  recovery,  it  must  appear  that  there 
has  been  some  direct  physical  disturbance  of  a  right,  either  public 
or  private,  which  the  plaintiff  enjoys  in  connection  with  his  prop- 
erty, and  which  gives  to  it  an  additional  value,  and  that  by  reason 
of  such  disturbance  he  has  sustained  special  damage  with  respect 
to  his  property  in  excess  of  that  sustained  by  the  public  generally.42 

§  866.  Railroad  Right  of  Way  Unfenced  for  Six  Months — Proper 
for  Consideration,  (a)  The  court  instructs  the  jury  that  under 
the  statute  the  plaintiff  company  is  not  required  to  fence  its  road 
until  six  months  after  it  had  completed  the  same,  and  the  dam- 
ages, if  any,  attending  the  keeping  open  of  the  right  of  way  dur- 
ing that  time  are  proper  for  the  consideration  of  the  jury  as  an 
element  of  damage.43 

(b)  The  court  instructs  the  jury  that  under  the  law  the  rail- 
road company  is  not  required  to  fence  its  right  of  way  until  its 
railroad  has  been  in  actual  operation,  with  trains  running  over  it, 
for  the  term  of  six  months,  and  it  is  proper  for  you  to  consider 
this  fact  in  estimating  the  plaintiff's  damages.44 

163,  4  N.  E.  448,  be  regarded  as  er-  fence  its  railroad  right  of  way  un- 

roneous."  til   six    months   after  it   had   begun 

42 — O.   M.   Ry.   Co.   v.   MeDermott,  running    its    trains    on    its    tracks; 

25  Neb.  714,  41  N.  W.  648-649.  and    second,     that     the    instruction 

"This  language  is  quoted  from  erroneously  assumes  that  damages 
the  opinion  in  Gottschalk  v.  R.  R.  will  necessarily  result  if  the  land 
Co.,  14  Neb.  550,  16  N.  W.  Rep.  475,  not  taken  be  left  unfenced  for  six 
and  17  N.  W.  Rep.  120,  and  which  months.  In  Rockford,  Rock  Island 
is  there  quoted  from  Rigney  v.  and  St.  Louis  Railroad  Co.  v.  Hef- 
City  of  Chicago.  102  111.  64.  While  lin,  65  111.  366,  we  construed  the 
it  appears  that  the  reasoning  in  statute  requiring  the  right  of  way 
Rigney  v.  City  of  Chicago  was  of  railroads  to  be  fenced,  and  held 
adopted  by  this  court  in  Gott-  that  the  computation  of  the  period 
schalk  v.  R.  R.  Co.,  and  for  the  of  six  months  began  when  the  corn- 
purposes  (of  this  examination  it  pany  commenced  to  run  its  trains 
may  be  assumed  that  the  instruc-  on  the  tracks  for  construction  or 
tions  clearly  state  the  law,  but  other  purposes.  As  to  the  second 
with  more  elaboration  than  neces-  ground  of  complaint,  it  appeared 
sary  for  the  purpose  of  an  instruc-  from  the  evidence,  without  dispute. 
tion,  yet  we  think  that  all  the  es-  that  the  right  of  way  extended  to 
sential  elements  contained  in  it  within  seven  feet  of  the  front  of 
were  presented  to  the  jury  in  the  appellee's  dwelling,  and  that  for 
instructions  given  by  the  court  up-  that  reason  the  dwelling  and  out- 
on  its  own  motion."  houses    must    be    moved    at    great. 

43— Chi.    &    Mil.    E.    R.    R.    Co.    v.  cost;    and,  moreover,  that  until  the 

Diver   et  al.,   213  111.    26   (32),    72   N.  right  of  way  should  be  fenced,  the 

E.    758.  barn  lot,  the  yard  about  the  dwell- 

44 — St.  L..  &  S.  Ry.   Co.  v.   Smith,  ing    house    of    the    appellees,    their 

216   111.    341,    74   N.    E.    1063.  garden,  pasture  and  all  their  fields, 

"Two     complaints    are    urged     to  would    be    unprotected;    that    their 

this     instruction:       First,     that     it  own  domestic  animals  could  not  be 

would    mislead    the  jury  to  believe  kept  on  their  premises  or  the  ani- 

that    the    appellant    company    was  mals     of    other    persons    excluded. 

not     required     by    the     statute    to  That  damages  would  be  occasioned 


590 


FORMS  OF  INSTRUCTIONS. 


[§  867. 


§  867.  Measure  of  Damages  for  Right  of  Way  Through  Farm 
Lands.  The  court  instructs  the  jury  that,  in  assessing  the  damages 
to  the  owner  of  the  land,  they  are  justified  in  taking  into  consid- 
eration not  only  the  value  of  the  land  actually  taken,  but  all  the 
facts  which  contribute  to  produce  damages  to  that  not  taken,  as, 
if  it  appears  from  the  evidence  that  the  farm  is  cut  in  an  incon- 
venient shape  for  cultivation  or  other  farm  purposes;  or  that  the 
land  is  divided  or  cut  off  from  the  water,  pastures  or  improvements, 
or  that  any  spring,  well  or  water  supply  is  destroyed  or  cut  off 
from  the  dwelling  house;  or  that  there  is  danger  from  killing  or 
injuring  stock,  or  damage  from  fire  from  passing  engines;  or  that 
there  will  be  inconvenience  in  crossing  or  recrossing  the  right  of 
way  and  track  in  going  from  one  part  of  the  farm  to  another;  the 
injury,  if  any,  by  reason  of  the  field  or  farm  being  thrown  open 
until  the  company  fences  the  right  of  way,  and  all  damages  that 
are  reasonably  probable  to  flow  from  the  construction  and  opera- 
tion  of  the  proposed  road.45 

§  868.  Riparian  Owners — Exclusive  Right  to  All  Ice  to  Middle 
of  the  Stream — Right  to  Use  Dock,  etc.  (a)  The  court  instructs 
the  jury  that  the  owners  severally  of  the  lots  fronting  on  the  Illi- 
nois River  and  here  sought  to  be  condemned,  own  to  the  middle 
thread  of  the  stream,  subject  only  to  the  right  of  the  public  to  use 
the  navigable  portions  thereof  for  purposes  of  navigation.  Such 
owners  have  also  the  exclusive  right  to  any  and  all  of  the  ice  form- 


to  property  not  taken  was  indis- 
putably proven  and  was  an  un- 
questioned fact.  No  injury  could 
have  been  occasioned  by  the  mere 
assumption  of  this  undisputed 
fact." 

45— C.  P.  &  St.  L..  Ry.  Co.  v. 
Greiney,  137  111.  628  (632),  25  N.  E. 
798. 

"The  effect  of  the  instruction  is 
that  the  jury  are  to  take  into  con- 
sideration all  facts  which  contrib- 
ute to  produce  damage  to  the  land 
not  taken  as  they  appear  from  the 
evidence.  That  the  facts  l'ecited 
are  circumstances  which  may  tend 
to  deteriorate  the  value  of  a  farm, 
and  therefore  contribute  to  pro- 
duce damage  to  land  not  taken,  we 
think  can  admit  of  no  controversy. 
The  recovery  can  only  be  for  the 
depreciation  in  the  market  value 
of  the  land  not  taken,  and  the  jury 
were  expressly  told  in  an  instruc- 
tion given  at  the  instance  of  ap- 
pellant that  they  were  not  author- 
ized by  law  to  allow  anything  by 
their  verdict  by  reason  of  any  sup- 
posed damage  to  stock  from  the 
use  of  said  right  of  way  for  rail- 
road   purposes,    or   for    damage   to 


the  person  of  the  land-owner  or 
any  member  of  his  family,  or  the 
damage  to  stock  by  reason  of  the 
taking  and  subsequent  using  of 
said  right  of  way;  that  the  law 
considers  the  probable  damage  to 
stock  or  to  the  family  of  the  land- 
owner as  too  remote  and  specula- 
tive to  be  considered  in  estimating 
the  just  compensation  to  be  paid 
for  such  right  of  way.  A  deprecia- 
tion in  the  market  value  of  the 
land  is  quite  a  different  thing, 
and  whether  that  is  because  of 
an  inconvenient  shane  of  fields, 
non-access  from  one  part  to  an- 
other, caused  by  the  building  of 
the  road,  or  from  injuries  antici- 
pated to  property  from  its  opera- 
tion, the  result  is  the  same,  and  is 
solely  because  of  the  building  and 
operating  of  the  road,  and  there- 
fore to  be  compensated  for  by  the 
appellant.  The  material  inquiry  is 
the  fact  of  depreciation  in  market 
value,  but  it  is  within  the  province 
of  the  jury  to  enquire  whether  the 
facts  thus  recited  exist,  and  if 
they  exist,  whether  they  cause  a 
depreciation,  and  if  any,  its  extent, 
in  the   market   value." 


§  869.]  DAMAGES— EMINENT    DOMAIN.  591 

ing  in  said  river  in  front  of  their  lots  respectively,  to  the  middle 
thread  of  the  stream,  and  may  themselves  cut  and  remove  the  same, 
or  sell  such  ice  to  another  with  the  exclusive  right  to  harvest  it. 

(b)  The  jury  are  further  instructed  that,  as  owners  of  lands 
fronting  upon  and  bounded,  by  a  navigable  stream,  the  defendants 
in  this  case,  subject  to  the  rights  of  the  public  in  such  navigable 
stream,  own  their  several  lots  to  the  middle  thread  of  said  stream, 
and  the  said  defendants,  as  such  lot  owners,  have  the  right  to  use 
and  enjoy  their  several  lots  by  building  docks  and  wharves  there- 
on, or  by  filling  in  the  same  with  earth  or  other  solid  matter  to 
any  extent  whatever,  so  long  as  they  do  not  interfere  with  the 
rights  of  navigation  by  the  public  in  such  stream.46 

§  869.  Damages  for  Erosion  of  Shore  Lands — Nominal  Damages. 
With  reference  to  the  cause  of  action  herein,  in  which  the  plain- 
tiffs  have   claimed  $ damages  for   erosions    and   washing   away 

of  the  banks  of  the  lands  described  in  the  complaint,  the  court  in- 
structs you  that  the  plaintiffs,  in  open  court,  announced  that  owing 
to  the  facts  that  they  were  unable  to  establish  by  competent  proof 
the  amount  of  damages,  in  dollars  and  cents,  therefor,  and  that 
because  of  the  difficulties  and  impossibilities  of  determining  the  ex- 
act damages  in  dollars  and  cents,  they  have  waived  their  right  to 
recover  anything  but  a  nominal  sum  for  such  damages.  And  you 
are  instructed  that  as  a  matter  of  law,  upon  the  evidence  in  this 
case,  the  plaintiffs  can  recover  of  the  defendants  only  nominal 
damages,  if  any,  for  injury  to  their  lands  described  in  the  complaint 
on  account  of  erosions  and  the  washing  away  of  the  banks  of  the 
plaintiff's  lands  above  the  line  of  mean  high  tide.  And  by  "nom- 
inal damages"  is  meant  some  small  sum,  such  as  one  dollar.47 

§  870.  Appropriation  of  Streets — Right  of  Free  Access  to  and 
Egress  from  Property.  The  court  instructs  the  jury  that  as  the 
owner  of  the  lots  and  buildings  in  question,  the  said  A.  B.  has 
a  vested  right  of  free  access  to  and  egress  from  the  lots  and  build- 
ings over  and  along  P.  street  in  front  of  the  lots  as  the  same  are 
now  located  and  used.  That  this  is  a  right  of  property  that  cannot 
be  materially  improved  or  destroyed  without  his  consent  except 
upon  payment  to  him  of  reasonable  compensation  therefor;  and, 
therefore,  if  you  believe,  from  the  evidence,  that  the  contemplated 
railroad  will  materially  impair  or  injure  the  rights  of  ingress  and 
egress   in    the    transaction   of   business    upon   the   premises   in   ques- 

46— R.   I.   &  P.   Ry.   Co.   v.   Leisy  jury  for  giving-  the  instruction,  but 

B.    Co.,   174   111.    547    (550),   51    N.    E  we    think    the    statement    did    not 

572.  amount    to    a    comment    upon    the 

47— Lownsdale    et    ux.    v.     Gray's  facts  in  the  case,  and  that  it  could 

Hnrbor.    P>.    Co.,    36    Wash     198,    78  have  had  no  prejudicial   effect  up- 

Pac.    904    (906).  on    the    defendant's    case.     If   error 

"It  was  not  necessary  for  the  at  all,  it  was  without  prejudice." 
court    to    state    his    reason    to    the 


592  FORMS  OF  INSTRUCTIONS.  [§  871. 

tion,    he    is   entitled   to    recover   such   damages    as   will    compensate 
him  for  the  injury.48 

§  871.  Change  in  Street  Grade — General  Benefits  not  to  be  Con- 
sidered, (a)  The  court  instructs  the  jury  that  the  natural  sur- 
face of  a  street  or  highway  of  this  city  is  the  legal  grade  thereof 
until  it  is  changed  by  ordinance.  And  the  city  had  no  right  with- 
out the  consent  of  the  owner  of  the  abutting  property  to  change  the 
grade  of  the  street  from  the  natural  surface  thereof  if  such  change 
damages  or  injures  the  abutting  property  as  hereinafter  defined 
without  paying  or  tendering  the  owner  of  such  abutting  property, 
the  damages  occasioned  by  such  change  or  grade. 

(b)  You  are  instructed  that  in  considering  whether  or  not  any 
special   benefits    were   conferred   upon   plaintiff's   property  you   can- 
not take  into  consideration  such  benefits,  if  any,  as  were  conferred 
upon  property  generally  in  the  locality  of  the  grading  or  elsewher 
by   reason    of    the    fact,   if    it    be    a    fact,    that    after    said    grading 

avenue   was   a  better   street   for   travel   generally  by   the 

public. 

(c)  If  you  find  for  plaintiff,  the  measure  of  damages  in  this 
case  is  the  difference,  if  any,  in  the  market  value  of  the  property 
owned  by  plaintiff,  and  mentioned  in  evidence,  immediately  before 
said  grading  was  done  and  immediately  after  it  was  finished,  as 
-caused  by  the  grading  done  in  front  of  and  abutting  said  property.49 

§  872.  Special  Benefits  Equal  to  or  Greater  Than  Damages — Spe- 
cial Tax  for  Cost  of  Improvement  not  to  be  Considered,  (a)  If 
the  jury  believe  from  the  evidence  that  the  property  of  the  plaintiff 

was  in  any  manner  specially  benefited  by  the  grading  of 

avenue  adjoining  the  same,  and  that  the  amount  of  said  special 
benefits  is  equal  to  or  greater  than  the  damages,  if  any,  done  to 
said  property  by  reason  of  said  grading,  then  the  plaintiff  cannot 
recover  and  your  verdict  should  be  for  the  defendant. 

(b)  The  jury  are  instructed  that  in  weighing  the  evidence  in 
this   case   and   making  up   their  verdict    they   should   not   give   any 

consideration  whatever  to  the  fact  that  the  cost  of  improving 

Avenue  was  charged  as  a  special  tax  against  the  adjoining  property. 
The  law  assesses  such  cost  against  the  adjoining  property  and  the 
city  is  in  no  event  liable  to  pay  such  tax,  and  the  owner  of  the 
land  so  assessed  is  not  entitled  under  the  law  to  recover  the  same 
from  the  city  either  directly  or  indirectly.50 

48— Blesch  v.  C.  &  N.  W.  Rd.  Co.,  50— Widman   Inv.   Co.    v.   City   of 

48    Wis.    168,    2    N.    W.    113,    31    Am.  St.    Joseph,    191    Mo.    459.    90    S.    W. 

Rep.    306;    Grand    Ranids,    etc.,   Rd.  763    (764). 

Co.    v.    Heisel,    38    Mich.    62;    Cent.  "The  first  instruction  follows  ac- 

Branch.  U.  P.  Rd.  Co.  v.  Twine,  23  curately   the    measure    of   damages 

Kans.   585  given    in    Smith    v.    St.    Josenh,    122 

49_Widman    Inv.    Co.    v.    City    of  Mo.   loc.   cit.   647.   27  S.   W.   344,   and 

St.    Joseph.    191    Mo.    459,    90    S.    W.  is   in   strict   harmony  with   the  law 

763    (764") :    Lewis    on    Em.    Domain  as    to   the   measure    of   damages    in 

(2d   ed.),   sec.   494.  such     cases    promulgated    by    this 


§  873.]  DAMAGES— EMINENT    DOMAIN.  593 

§  873.  Damages  to  Adjoining  Property  by  Change  of  Grade- 
Diminution  of  Market  Vaiue  to  Extent  of  Damage,  Less  Benefits, 
(a)  The  court  instructs  you  that  if  you  believe  from  the  evidence 
that  the  city  raised  the  level  of  Washington  street,  or  caused  it 
to  be  raised,  for  the  laying  of  a  pavement  thereon,  and  that  such 
raising  of  said  street  above  its  former  level  damaged  the  property 
of  the  plaintiff  described  in  the  declaration,  and  reduced  its  market 
value,  then  the  plaintiff  is  entitled  to  recover  the  amount  that  his 
said  property  was  so  damaged,  less  the  benefit,  if  any,  which  the 
evidence  shows  the  property  received  from  the  making  of  the  street 
improvement. 

(b)  The  court  instructs  the  jury  that  in  case  they  should  be- 
lieve from  the  evidence  the  plaintiff  had  been  in  any  way  benefited 
by  the  improvement  of  the  street  in  front  of  plaintiff's  property 
in  question,  then  in  such  estimate  the  jury  should  deduct  from  such 
benefit  what  they  believe  from  the  evidence  plaintiff  has  paid  and 
is  liable  to  pay,  toward  making  the  pavement  in  front  of  said 
premises,  and  in  any  event  it  is  only  the  difference  between  the 
benefits  proved  by  the  evidence  and  such  payment,  and  liability  to 
pay  which  can  be  set  off  against  the  damage  to  plaintiff  property 
if  plaintiff  has  proven  any  damage. 

(c)  The  court  instructs  you  that  the  measure  of  damages  in 
this  case,  if  any  have  been  proven,  is  the  difference  in  the  market 
value  of  plaintiff's  property  before  the  level  of  the  street  was 
raised  and  its  market  value  after  the  street  was  so  raised.51 

court  in  Hickman  v.  Kansas  City,  "The  case  is   one  where  plaintiff 

120   Mo.   121,  25   S.  W.   225.   23  L.   R.  seeks   the  just  compensation  guar- 

A.   658,  41  Am.   St.  Rep.  684.  anteed    by    the    constitution    where 

"The  second  instruction  points  private  property  has  been  dam- 
out  that  the  city  cannot  be  made  aged  for  public  use.  In  respect  to 
liable  either  directly  or  indirectly,  property  not  taken,  but  damaged 
and  that  to  allow  such  costs  to  be  merely,  the  compensation  is  the 
deducted  from  the  special  benefits  amount  of  the  damage  less  the 
before  the  special  benefits  are  de-  benefit  conferred.  Now  should  the 
ducted  from  the  damages,  would  benefit  be  considered  without  re- 
in effect  make  the  city  pay  the  cost  gard  to  the  cost  of  it  to  the  owner 
of  the  grading,  instead  of  requir-  of  the  property?  Manifestly  he  is 
ing  the  abutting  owner  to  do  so  as  not  benefited  the  whole  sum  of 
the  law  requires.  benefit    conferred,    because   he    has 

51 — City   of   Bloomington   v.    Pol-  been    compelled    to    pay    a    certain 

lock,    38  111.   App.   133,   aff'd  141  111.  amount   by   way   of   assessment   in 

346,    31   N.    E.   146.  order  to  obtain  whatever  benefit  is 

Comment  by  the  Appellate  attributable  to  the  improvement. 
Court:  "It  will  be  seen  that  here  It  is  the  net  benefit  which  should 
are  two  different  measures  of  be  deducted  from  the  damage  pro- 
damages,  one  the  difference  in  duced  by  the  improvement,  and 
market  value  before  and  after  the  the  sum  remaining  will  renresent 
street  was  raised,  the  other  the  the  just  compensation  which  he 
damages  caused  to  the  property,  will  be  entitled  to.  This  will  un- 
less the  benefits  conferi-ed,  from  ually  be  more  than  the  difference 
whi"h  benefits  should  be  dpducted  in  market  value.  At  least  it  is  so 
the  cost  to  the  owner  of  the  im-  theoretically  in  all  cases,  for  it  is 
provement,  the  latter  being  the  presumable  that  tv>e  market  value 
more   favorable,  to   the  plaintiff.  is   diminished  to   the  extent   of   the 

"Is  it  sound  and  correct  in  prin-  damage,    less   the  benefit, 

ciple?  "We  are  of  opinion  no  error  was 
38 


594  FORMS  OF  INSTRUCTIONS.  [§  874. 

§  874.      Financial    Condition    of    Parties    Immaterial.      You    are 

instructed  that  it  is  utterly  immaterial  whether  the  plaintiffs  iu 
this  case  are  poor  or  rich  men,  or  whether  the  defendant,  the  city 

of  is   bankrupt   or   has   its    treasury  full   of   funds.     No 

facts  of  this  character  should  be  considered  by  you  in  any  re- 
spect whatsoever  in  determining  whether  or  not  the  plaintiff's 
property  has  been  damaged  by  reason  of  the  elevation  and  con- 
struction of  the  public  work  described  in  the  declaration,  and  in 
the  evidence  in  this  case.  If  you  should  find,  from  the  evidence, 
that  the  plaintiff's  property  has  been  damaged  by  reason  of  such 
work,  then  the  plaintiffs  are  entitled  to  have  a  finding  in  this  case 
against  the  defendant,  whether  the  plaintiffs  be  rich  or  poor,  or 
whether  the  city  of  Chicago   be   bankrupt  or  otherwise.52 

§  875.  Telephone  Line  Construction — Unnecessary  Trimming  of 
Trees.  You  are  instructed  that  if  you  believe  from  the  evidence 
that  there  was  unnecessary  trimming  and  cutting  of  the  branches, 
you  must  take  into  consideration  in  determining  the  amount  of 
damages  if  any,  therefor,  the  cutting  and  trimming  of  limbs  which 
was  necessary,  for  that  the  defendant  had  the  right  to  do  rea- 
sonably necessary  trimming;  and  to  the  extent  such  trimming  and 
cutting  of  branches  was  reasonably  necessary,  plaintiff  is  not  en- 
titled to  damages,  and  you  must  separate  and  distinguish  the  dam- 
ages suffered,  if  any,  by  unnecessary  cutting  from  the  injury  by 
reason  of  the  necessary  trimming,  so  that  you  will  not  allow  dam- 
committed  in  this  respect  of  which  above,  seems,  from  the  comment 
appellant    may   .complain."  of  the  courts,  to  be  correct  in  form 

The  Supreme  Court,  in  affirming  but  not  applicable  to  the  facts  in 
the    judgment,    after    quoting    the     the  case. 

above  comment  by  the  Appellate  52— City  of  Chicago  v.  Spoor,  91 
Court,   said:  111.    App.    472    (474),    190    111.    340,    60 

"We  concur  in  this  statement  of  N.  E.  540. 
the  law.  "Where  an  improvement  "It  is  said  that  there  was  error 
is  made  in  a  street  which  works  in  the  giving  of  appellee's  instruc- 
an  injury  to  private  property,  then  tion,  which  is  quoted  above,  be- 
the  measure  of  damages  is  the  dif-  cause  there  was  no  proof  that  the 
ference  or  depreciation  in  market  appellees  were  poor  or  rich  men, 
value  or,  that  which  is  the  same  or  that  the  city  of was  bank- 
thing,  the  damage  less  the  benefit,  rupt  or  otherwise.  The  evidence 
(Springer  v.  City  of  Chicago,  135  tends  to  show  that  the  appellees 
111.  552,  26  N.  E.  514,  and  authorities  were  rich  men,  but  the  instruction 
there  cited.)  But  where  the  im-  was  given  no  doubt  because  of  the 
provement  so  made  is  paid  for,  in  statement  of  appellant's  counsel  to 
part,  by  the  owner  of  the  property  the  court  that  he  attempted  to 
injured",  by  way  of  special  taxation,     prove   in   cross-examination   of  the 

then    another    element    necessarily     appellee  that  the   appellee 

enters  into  the  computation  of  the  X  was  a  director  in  a  corporation, 
damages  to  be  assessed  in  favor  of     that    plaintiff's    counsel    had    gone 

such  owner,  for  unless  the  amount     into    the    pedigree   of   ,    and 

paid  in  order  to  secure  the  benefits  that  he  ought  to  be  permitted  to 
set  off  against  damage  is  taken  in-  go  into  the  pedigree  of  his  joint 
to  consideration  and  deducted  owner,  and  to  show  his  relation  in 
from  benefits,  by  exactly  that  business  up  to  that  time  by 
amount  the  damages  recovered  will  cross-examination,  to  which  the 
fMl  short  of  being  just  compensa-  court  replied  that  it  was  immate- 
tion."  rial  in  this  court  whether  Mr.  X  is 

The      third      instruction      given    a  millionaire  or  the  meanest  pau- 


§  876.]  DAMAGES— EMINENT    DOMAIN.  595 

ages,  if  any,  caused  by  the  cutting  which  was  reasonably  necessary 
to  be  done  in  the   construction  of  the   telephone   system.53 

§  876.  Where  Part  Only  Condemned,  Any  Benefits  to  Remainder 
Not  Considered — Diminished  Value  Considered,  (a)  In  assessing 
the  compensation  to  be  made  to  the  owners  of  the  land  the  jury 
should  assess  the  value  of  the  land  taken  at  what  they  believe,  from 
the  evidence,  it  is  worth,  irrespective  of  any  benefits  which  may  or 
may  not  accrue  to  the  remainder  of  the  tract— and  also  any  damage 
which  the  jury  believe,  from  the  evidence,  will  result  to  the  owner 
by  reason  of  the  diminished  value  of  the  remainder  of  the  tract,  if 
anything,  in  consequence  of  the  appropriation  of  the  land  taken 
(over   and  above  special   benefits   when   proper). 

(b)  In  ascertaining  these  amounts  you  are  to  take  into  con- 
sideration not  only  the  purposes  to  which  the  land  is  or  has  been 
applied  but  any  other  beneficial  purpose  to  which  the  jury  can 
see  from  the  evidence  it  might  reasonably  be  applied,  and  which 
would   affect   the   amount  of  compensation   or  damages.54 

§  877.  Remote  Contingencies — Where  Part  Only  Taken — Whole 
Tract  to  Be  Considered.  (a)  In  determining  the  amount  to  be 
allowed  to  plaintiff  for  the  ( )  acres  of  land  taken  by  the  de- 
fendant, you  are  to  find  from  evidence  what  was  its  fair  market 
value  at  the  time  it  was  taken.  By  this  is  not  meant  what  the 
strip  of  land  taken  for  the  right  of  way.  by  itself,  would  be  worth, 
in  the  market,  but,  as  a  part  of  the  piece  of  land  owned  by  the 
plaintiff,  and  of  which  it  formed  a  part,  what  would  be  the  fair 
market  value  per  acre  for  such  land,  and  allow  the  plaintiff  at  such 
rate  for  the  2.05  acres. 

(b)  You  are  instructed  that  you  should  not  take  as  a  separate 
and  distinct  basis  for  the  assessment  of  damages  such  remote  con- 
tingencies as  frightening  of  horses,  liability  of  fires,  and  danger 
to  persons  or  property  from  passing  trains.  Such  contingencies  are 
only  to  be  considered  for  the  purpose  of  determining  whether,  and 
to  what  extent,  the  value  of  the  property  will  be  decreased  by  the 
building  and  operation  of  the  railroad.  If,  in  consequence  of  its 
exposure  to  such  dangers,  the  actual  value  of  the  property  will  be 
diminished  to  any  extent,  then  such  decrease  in  value  measures  the 
actual  loss  to  the  owner,  in  so  far  as  the  damages  done  to  his  land 
not   taken   by   the   railroad   is   concerned. 

per  in  America.    It  is  well  and  gen-  defendant    had    trimmed    and    cut, 

erally   known    that    the    city    of   C.  as   it  was  entitled  to  do  under  the 

has    control    of    great    wealth,    and  law,  and  the  value  of  the  land  after 

no    evidence    in    that    regard    was  the    unauthorized    cutting   was    the 

necessary.     We  think  there  was  no  true  measure  of  recovery.    Disbrow 

reversible     error     in     this     instruc-  v.  Winchester,  164  N.  Y.  415,   58  N. 

tion."  E.    519;    Penn.    Coal   Co.   v.    Sander- 

53— Merer  V.    Standard  Telephone  son,   113  Pa.  126,   6  Atl.   453,  57  Am. 

Co..    122    la.    514,   9S   N.    W.    300.  Rep.   445." 

"The  true  rule  was   expressed    in  54 — Railway    Co.     v.     Longworth, 

tne   instruction   asked.     The   differ-  30  Ohio  St.  108;    Lewis  on  Em.  Do- 

ence  in  the  value  of  the  land  after  main   (2d  ed.),  sec.  496. 


596  FORMS  OF  INSTRUCTIONS.  [§  878. 

(e)  You  are  instructed  that  the  evidence  establishes  the  fact 
that  the  plaintiff  is  the  owner  of  a  piece  of  land  of  about  21  acres 
in  a  body,  and  in  considering  the  question  of  the  damage  done  to 
the  land  not  taken,  if  you  find  from  the  evidence  that  the  entire 
tract,  taken  as  a  whole,  was  damaged,  then  you  should  allow  for 
such  damage.  Evidence  has  been  introduced  tending  to  show  what 
effect  the  location  of  the  defendant's  road  would  have  upon  the 
plaintiff's  land  for  division  into  town  or  suburban  lots  and  sale 
for  such  purposes.  This  evidence  was  admitted  to  aid  you  in 
finding  the  real  and  actual  fair  market  value  of  the  plaintiff's 
land  for  any  use  or  purpose  which  you  may  find  from  the  evidence 
the  land  was  reasonably  adapted  for.  You  are  not  allowed  to  fix 
any  speculative  value  upon  the  plaintiff's  land,  based  upon  what 
the  same  might  in  the  future  be  worth,  but  to  find  from  the  evi- 
dence and  your  own  observation  what  the  land  before  and  after 
the  location  of  the  defendant's  road  was  fairly  worth  in  the  market 
as  it  was  at  said  times.55 

§  878.  Part  Condemned — Remainder  Cut  Into  Irregular  Fields — ■ 
What  to  Include  and  Exclude.  If  you  believe,  from  the  evidence, 
that  the  lands  of  the  claimant  adjoining  the  proposed  railroad  track, 
will  be  less  valuable  because  of  their  exposure  to  fire,  or  for  the 
reason  that  the  railroad  will  cut  the  lands  into  irregular  fields,  or 
will  render  access  to  the  different  portions  of  the  lands  more  incon- 
venient or  dangerous,  then,  these  are  all  matters  which  may  be  taken 
into  account  by  you  in  estimating  the  claimant 's  damages.  You  are 
not  to  fix  any  definite  estimate  of  the  amount  of  damages  arising 
from  these  several  sources.  The  true  question  to  be  determined  is, 
what  is  the  market  value  of  the  property  as  a  whole,  without  the 
railroad,  and  what  will  be  its  market  value  after  the  road  is  built 
and  in  operation,  making  no  allowance  for  any  general  benefits 
which  the  property  may  derive  from  the  building  of  the  road,  and 
which  it  will  share  in  common  with  the  other  property  generally  in 
the  vicinity.  The  value  of  the  property  taken  and  the  depreciation 
in  the  market  value  of  the  remainder,  if  any,  is  the  compensation  to 
which  claimant  is  entitled.56 

§  879.  Value  of  Land  Taken — Depreciation  of  Remainder  Proper 
Element  to  Consider.  If  you  believe,  from  the  evidence,  that  the 
property  in  question  is  city  property,  and  mainly  valuable  to  be 
built  up  and  occupied  as  a  residence,  or  for  building  purposes,  and 
that  it  is  in  such  close  proximity  to  the  proposed  railroad  that  the 
jar  caused  by  the  moving  trains  will  affect  the  buildings  standing 
thereon,  or  the  noise,  smoke  or  increased  danger  caused  by  the  use 
of  the  railroad,  will  depreciate  the  market  value  of  the  property, 
then  such  matters  are  proper  to  be  considered  by  you  in  estimating 

55_0.    S.    Ry.    Co.    v.    Beeson,    36     CN.  T.)  456;  Snyder  v.  Railroad  Co.," 
Neb.   361,  54  N.  W!   557   (559).  25   Wis.    60. 

56— Utlca  R.  R.  Co.  in  re,  56  Barb. 


§880.]  DAMAGES— EMINENT    DOMAIN.  597 

the  amount  of  compensation  to  which  the  plaintiff  is  entitled.  You 
are  not  to  lix  any  definite  estimate  of  the  amount  of  damages  arising 
from  the  several  sources.  The  real  question  to  be  determined,  is, 
what  is  the  market  value  of  the  property  as  a  whole  without  the 
railroad,  and  what  will  be  the  market  value  of  the  remainder  after 
the  road  is  built  and  in  operation,  making  no  allowance  for  any 
general  benefits  which  the  property  may  derive  from  the  building  of 
the  road  and  which  it  will  share  in  common  with  other  property 
generally,  in  the  vicinity.  The  value  of  the  property  taken  and  the 
depreciation,  if  any,  in  the  market  value  of  the  remainder,  added 
together  constitute  the  compensation  to  which  the  claimant  is  en- 
titled in  this  proceeding.57 

§  880.  Plaintiff  Entitled  to  Recover  for  Any  Depreciation  in  Mar- 
ket Value  of  His  Lands — Lands  Taken  and  Lands  Not  Taken.  If  the 
jury  believe,  from  the  evidence,  that  plaintiff  is  the  owner  in  fee 
simple  of  the  land  described  in  the  declaration,  and  that  the  de- 
fendant railroad  company,  in  constructing  its  road-bed  and  track, 
entered  upon  any  portion  of  plaintiff's  said  land,  and  dug  up  and 
carried  away  the  soil,  and  that  such  acts  were  a  physical  injury  to 
such  lands,  or  any  part  thereof;  and  if  the  jury  further  believe, 
from  the  evidence,  the  construction  of  defendant's  road-bed  and 
track  along,  near  and  adjacent  to  plaintiff's  land,  and  its  contem- 
plated maintenance  and  operation  (if  the  jury  believe,  from  the  evi- 
dence, they  are  so  constructed,  and  that  defendant  intends  to  main- 
tain and  operate  the  same),  are  an  actual  damage  to  his  lands,  and 
do  in  fact  render  the  same  less  valuable  in  the  market  if  offei'ed 
for  sale, — then  the  law  is  for  plaintiff  and  the  jury  should  find  for 
him.  And  the  jury  are  instructed  as  a  matter  of  law,  plaintiff  is 
entitled  to  recover  for  any  depreciation  (if  the  jury  believe  from 
the  evidence,  there  has  been  any  depreciation)  in  the  market  value 
of  plaintiff's  lands  not  actually  entered  upon,  by  reason  of  the  con- 
struction, maintenance  and  operation  by  defendant  of  its  raih'oad  as 
constructed,  and  also  for  any  physical  injuries  done  to  that  portion 
of  plaintiff's  land  upon  which  defendant  did  actually  enter  (if  the 
jury  believe,  from  the  evidence,  defendant  did  enter  upon  any  por- 
tion of  the  plaintiff's  lands  described  in  the  declaration,  and  did 
cause  any  physical  injuries  to  the  same).68 

§  881.  All  Facts  as  Well  as  Stipulations  Must  be  Considered. 
You  are  further  instructed  that  if  in  this  case  you  believe  that  any 
witnesses  who  have  testified  to  damages  to  adjacent  land  have  not 
based  (heir  evidence  upon  such  additional  requirements  and  stipula- 
tions, then  and  in  that  case  you  should  disregard  such  evidence  in 
so  far  as  it  has  failed  to  be  based  upon   such  special  stipulations.59 

57— In  re  N.  Y.  C.  R.  R..  15  Hun     132  111.  429  (433).  24  N.  E.  78,  8  L..  R. 
(N.  T.)  63;  Chicago,  etc.,  R.  Co.  v.     A.    330. 
Hall,    90   111.    42.  59— Prather  v.  Chicago  So.  R.  R. 

58— L.  E.  &  W.  R.  R.  Co.  v.  Scott,     Co.,   221  111.   ISO   (199,  200),   77   N.   E. 

430. 


598 


FORMS  OP  INSTRUCTIONS. 


[§  881. 


"Objection  is  made  to  this  clause 
that  it  invaded  the  province  of  the 
jury,  in  that  it  instructed  them 
that  no  weight  should  be  given  to 
the  testimony  of  any  witnesses 
who,  in  estimating  appellant's 
damages,  did  not  base  such  esti- 
mate upon  the  stipulations.  That 
stipulations  had  been  entered  into 
and  were  filed  in  the  case  was  not 
a  disputed  fact,  and  was  one  of  the 
circumstances  that  should  have 
been  considered  by  the  witnesses 
in  arriving  at  their  opinions  as  to 
the  amount   of   damages   sustained 


by  the  appellant.  The  instruction 
merely  stated  that  if  a  witness  had 
not  based  his  opinion  on  all  of  the 
facts  affecting  the  damages,  then 
his  testimony  should  be  disre- 
garded to  that  extent.  The  in- 
struction did  not  invade  the  prov- 
ince of  the  jury  by  telling  them 
that  credibility  or  weight  should 
b<j  given  to  the  testimony  of  any 
particular  witness  or  witnesses, 
but  was  an  instruction  to  them  not 
to  consider  certain  evidence  which 
was  incompetent,  not  being  based 
upon  the  facts  in  the  case." 


CHAPTER  XLIII. 
DAMAGES,  MEASURE  OF-PERSONAL  INJURY. 


See    Erroneous    Instructions,    same  chapter   head,   Vol.   III. 


§  882.  What    may   be   considered   in     §  S9S. 
assessing-    damages. 

§  883.  Same    subject,    continued. 

§  884.  All  damage  present  or  fu- 
ture, which  is  the  necessary 
result    of    injury. 

§  885.  Reasonable     and     just     com-     §  900. 
pensation,    based    upon    the 
evidence. 

§  886.  Sympathy    should     not    have 

any  consideration  in  assess-      §  901, 
ing      damages — Same      posi- 
tion   as    if    no    injury    had 
taken    place. 

§  837.  Occupation — Habits  of  in- 
dustry— Health  and  pros- 
pects of  life,  etc.,  to  be 
considered.  §  902. 

§  888.  Ability  to  play  musical  in- 
struments   and    sing. 

§  889.  Loss   of  earnings   in   business 

— Training    race-horses.  §  903. 

§  890.  Less  capable  of  attending 
business  than  before  in- 
jury. 

§  891.  Reasonable  compensation  for  §  904. 
impaired  ability  to  labor 
and  pursue  business — Value 
of  personal  service  in  man- 
agement of  business  should 
be    considered.  §  905. 

§  892.  Future  diminished  capacity 
to    labor    and    earn    money. 

§  893.  Loss   of  time,    pain   and   suf- 
fering— Medical     aid     allow- 
able— Whether  injury  is  in-      §  906. 
curable. 

§  894.  Ability    to    labor    before    and 

after    injury — Physical    pain     §  907. 
and    mental   anguish,   etc. 

§  895.  Injury  to  passenger— Negli- 
gence in  moving  cars — Im- 
pairment of  capacity  to  la- 
bor and  earn  money — Pain 
and    suffering,    etc.  §  909. 

§  896.  What  is  reasonably  expend- 
ed for  the  purpose  of  being 
cured  is  recoverable — Lost 
earnings  for  disfigurement 
of  person  and  impaired  use 
of  hand. 

§  897.  Loss  must  be  directly  caused 
by  injury — If  injured  failed 
to  make  reasonable  effort 
to  earn  money  after  injury, 
loss  cannot  be  charged  to 
defendant. 

599 


Mental  and  physical  suffer- 
ing— Loss    of    time,    etc. 

What  may  be  considered  in 
assessing  damages  —  Past 
and  future  bodily  pain  and 
mental    suffering. 

Bodily  injuries  and  disabili- 
ties; suffering  and  distress 
of  mind — What  is  allow- 
able. 

Damages  for  future  pain  and 
suffering — Jury  should  not 
speculate  but  should  base 
such  damages  on  the  evi- 
dence— Left  largely  to  sound 
discretion  when  guided  by 
testimony. 

Loss  of  time  and  expendi- 
tures and  probable  amount 
of  pain  plaintiff  will  suffer 
in   future — Past   suffering. 

Damages  for  pain  and  suffer- 
ing, mental  or  physical — 
Permanency  of  injury — 
Physician's     fees. 

Injury  in  elevator — Prospect 
of  ultimate  recovery — Pain 
and  suffering,  etc.,  to  be 
considered  in  assessing 
damages. 

Elements  that  jury  may  con- 
sider— Pain  and  suffering — 
Enlightened  consciences  of 
honest  jurors— Their  sense 
and  judgment. 

Damages  for  impairment  of 
mental  powers,  health,  etc. 
— Due  care. 

Impairment  of  mental  facul- 
ties  and    general   health. 

Impairment  of  physical  and 
nervous  system  and  mem- 
ory, etc. — Horse  and  cart 
also  damaged. 

Damages  limited  to  injuries 
alleged  in  complaint — 
Fright,  mental  suffering  or 
nervous  shock  must  be  re- 
sult of  injury  to  be  recover- 
able. 

Nervous  prostration  induced 
by  dwelling  upon  her  claim 
against  railroad,  not  to  be 
considered — Past  and  pres- 
ent pain,  mental  or  physi- 
cal, allowable  —  Limitation 
of  rule. 


GOO 


FORMS  OF  INSTRUCTIONS. 


§  911.  Should  consider  age  and  con-     §  930. 
dition       in       life — Mortality 
tables — Sound  judgment  and 
discretion       of       jury — Only 
compensatory     damages. 

§  912.  Shortening  of  life  not  an  ele- 
ment of  damage,  but  may 
be  considered  in  determin- 
ing  extent   of  injury. 

§  913.  What    jury    may    consider   in     §  931 
assessing     damages — Stand- 
ard  life   and   annuity  tables  ! 
competent    evidence    to    as-     §  933. 
sist  jury. 

§  914.  Plaintiff    suffering    from    dis-  : 

ease     at     time     of     injury —  :  §  934. 
Hastening     development     of 
disease. 

§  915.  Injury   attributable   to   a  dis-      §  935, 
eased  condition  in  whole  or 
part. 

§  916.  If  injured  was  in  bad  health 

before  the  fall  in  the  street,     §  936. 
recovery    can    only    be    had 
for   aggravated    injuries   oc- 
casioned   by   such    fall. 

§  917.  Injuries    aggravating    former     ^  ^7 
diseased    condition. 

§  918.  Past  and  future  mental  suf- 
fering on  account  of  dis- 
figurement of  person — Ele- 
ment of  damage. 

§  919.  Pain    and    anguish     of    body 

and        mind — Eyesight        or     §  933, 
hearing    impaired,    etc. 

§  920.  Ears  impaired — Object  of 
ridicule — Rule    of    damages. 

§  921.  Damages    for    mental    suffer- 
ing apart  from  physical  in-     §  939, 
jury. 

§  922.  Should  consider  whether  in- 
jury    is    permanent,    etc. 

§  923.  Should  determine  whether  §  940. 
injury  is  permanent  or  tem- 
porary— Consider  all  the 
evidence  with  respect  to  in- 
jury to  person  and  property 
— Mental  anguish,  etc. —  §  941. 
Pecuniary  point  of  view.  §  942. 

§  924.  Permanency      of      maladies — 

Damages    restricted   by  evi-      §  943, 
dence   in  the   case. 

5  925.  To  take  into  consideration 
all  the  facts  and  circum- 
stances as  detailed  in  evi- 
dence— Permanency  of  bod- 
ily injuries.  §  945. 

5  926.  Future  mental  and  bodily 
suffering  allowable  —  Rule 
when    injury    is    permanent. 

§  927.  Whether  certain  ailments  re- 
sulted from  injuries. 

§  928.  Care  to  be  taken  by  injured 
person   after  injury. 

§  929.  Failure  to  use  due  care  in 
treating  injury. 


Defendant  not  liable  for  ag- 
gravated injuries  occa- 
sioned by  carelessness  of 
injured  after  accident — 
Should  seek  proper  medical 
attention. 

Injured  must  use  care  in  se- 
lecting doctor  but  not  in- 
surer of  doctor's  skill. 

Physician's  services  and 
medicines  —  Negligence  in 
treatment   of  wound. 

Violated  instructions  of  phy- 
sician, thereby  preventing 
recovery. 

Frightening  person  near 
track  producing  miscarriage 
— Contributory  negligence. 

What  the  jury  may  think 
right  and  proper  in  view  of 
all  the  facts  and  circum- 
stances proved. 

Damages  for  personal  injury 
in  sound  discretion  of  jury 
— From  all  the  facts  in  the 
case,   etc. 

Jury  may  estimate  damages 
from  facts  and  circum- 
stances in  proof,  in  connec- 
tion with  their  knowledge, 
observation  and  experience 
in  business  affairs  of  life — 
Limitation    of    the    rule. 

Injury  to  postal  clerk — Com- 
pensation from  other  sources 
will  not  release  or  diminish 
amount  defendant  is  liable 
for. 

Measure  of  damages  limited 
to  what  is  alleged  and 
proved,  and  what  results 
from  accident. 

Omitting  element  of  damages 
in  an  instruction  not  error, 
if  instruction  otherwise  cor- 
rect— Omission  should  be 
corrected  by  special  charge. 

Compensatory  damages   only. 

Exemplary  damages — In  tort 
generally. 

Punitive  damages  —  Actual 
damages  very  small. 

Negligence  may  be  so  gross 
and  reckless  as  to  imply  in- 
tent— For  purpose  of  allow- 
ing  punitive    damages. 

Punitive  damages  —  Smart 
money. 

Illness  caused  by  poisonous 
gases  from  excavations — 
Damages. 

Plea  of  compromise  and  set- 
tlement. 

Action  by  husband  for  in- 
juries to  wife — Pain  and 
suffering    of    wife. 


§  882.] 


DAMAGES— PERSONAL  INJURY. 


GO! 


§  949.  What  may  be  taken  into  con- 
sideration in  assessing  dam- 
ages— Married  woman  can 
recover  for  medical  ex- 
penses. 

§  950.  Right  of  married  woman  to 
recover  for  her  own  injuries 
— Damages,  compensatory 
and   punitive. 

§  951.  Damages  for  injury  to  mar- 
ried woman — What  to  con- 
sider. 

§  952.  Becoming  pregnant  after  in- 
jury, thereby  prolonging  re- 
covery, not  necessarily  neg- 
ligence. 

§  953.  Inability  to  bear  children — 
Pain  and  suffering — Perma- 
nency of  injury- 

§  954.  Inability  to  work  in  any  ca- 
pacity— Acting  as  housewife 
— Postponement  of  mar- 
riage. 

§  955.  What  to  consider  in  assess- 
ing damages — Injury  to  mi- 
nor. 

§  956.  Such  damages  as  will  ac- 
tually compensate  to  be  al- 
lowed   minor. 

§  957.  Measure  of  damages  where 
•  minor  is  too  young  to  have 
selected    an    avocation. 

§  958.  Minor  cannot  recover  dam- 
ages for  diminution  of  earn- 
ing power  during  minority 
unless  emancipated. 


§  959.  Injury  to  servant — Violation 
of  contract  to  furnish  medi- 
cal attendance. 

§  960.  Injury  to  servant — No  puni- 
tive damages— Actual  dam- 
ages only. 

§  961.  Injury  to  employee — What  to 
consider  —  Negligence  in 
moving   car. 

§  962.  Master    and     servant — Injury 
to     employee — Gross     negli- 
gence— Contributory       negli- 
gence— Punitive  damages. 
CIVIL   ASSAULT. 

§  963.  Injuries  from  assault  and 
battery — What  to  consider — 
Smart  money. 

§  964.  Punitive  damages  in  civil  ac- 
tion  of  assault. 

§  965.  Exemplary  damages  only 
when  act  is  malicious  or 
wanton  and  with  wrongful 
intent. 

§  966.  Aggravation  of  damages — 
Mortification  of  feeling  aris- 
ing from  insult  of  defend- 
ant's blow. 

§  967.  Damages  for  plaintiff's  good 
repute — Her  social  position 
— Sense  of  shame — Humilia- 
tion—Loss  of  honor,   etc. 

§  968.  Mental  gufferinsr  and  morti- 
fication of  feeling. 

§  969.  Mitigation  of  damages — Abu- 
sive language  prior  to  as- 
sault. 


§  882.  What  May  be  Considered  in  Assessing  Damages,  (a)  If 
you  find,  from  the  evidence,  that  the  plaintiff  is  entitled  to  recover  as 
alleged  in  his  declaration,  then  in  estimating  the  plaintiff's  damages, 
you  may  take  into  consideration  his  health  and  physical  condition 
prior  to  the  injury,  and  also  his  health  and  physical  condition  since 
then,  if  you  believe,  from  the  evidence,  that  his  health  and  physical 
condition  since  then  is  impaired  as  the  result  of  such  injury;  and  you 
may  also  consider  whether  or  not  he  has  been  permanently  injured 
and  to  what  extent,  and  also  to  what  extent,  if  any,  he  has  been  in- 
jured, and  to  what  extent,  if  any,  he  may  have  endured  physical  and 
mental  suffering  as  a  natural  and  inevitable  result  of  such  injury, 
and  also  any  necessary  expense  he  may  have  been  put  to  in  and 
about  caring  for  and  curing  himself,  and  the  value  of  any  time  you 
may  believe,  from  the  evidence,  he  has  lost  on  account  of  such  in- 
juries, and  you  may  consider  what,  if  any,  effect  such  injuries  may 
have  upon  him  in  the  future  in  respect  to  pain  and  suffering  or  re- 
spect to  his  power  to  earn  money  by  his  labor:  and  you  should  al- 
low to  him  as  damages  such  sum  as,  in  the  exercise  of  a  sound  dis- 
cretion, you  may  believe  from  all  the  facts  and  circumstances  in  evi- 


602  FORMS  OF  INSTRUCTIONS.  |  §  882. 

dence  will  be  a  fair  and  just  compensation  to  him  for  the  injuries  so 
sustained.1 

(b)  If  you  find  for  the  plaintiff  in  this  case,  then,  in  determining 
the  amount  of  damages  the  plaintiff  is  entitled  to  recover,  if  any,  you 
should  take  into  consideration  all  the  facts  and  circumstances  in  evi- 
dence before  you,  the  nature  and  extent  of  the  plaintiff's  injuries,  if 
any,  her  pain  and  suffering  resulting  from  such  injuries,  if  any,  and 
also  such  future  or  prospective  pain  and  suffering  and  loss  of  health 
and  strength,  if  any,  which  she  has  sustained,  or  will  sustain  in  the 
future,  by  reason  of  such  injuries,  and  alsrt  such  sum  or  sums  as 
plaintiff  has  become  liable  for,  if  any,  for  nursing  and  medical  serv- 
ice because  of  said  injury,  and  give  her  such  sum  as  in  your  judg- 
ment, under  all  the  evidence,  will  compensate  her.2 

(c)  If  you  find  for  the  plaintiff,  then,  in  esiimating  his  damages, 
you  may  take  into  consideration  the  nature  and  extent  of  his  in- 
juries, whether  the  same  are  permanent  or  temporary;  you  may  also 
take  into  consideration  any  mental  or  physical  pa^'i  which  he  has  suf- 
fered, as  shown  by  the  evidence;  any  loss  of  time,  loss  of  wages,  or 
employment;  also  any  expenses  incurred  for  medical  and  surgical 
attendance  or  for  nursing;  and  from  all  the  surrounding  facts,  as 
shown  by  the  evidence  you  will  give  him  such  darrages  as  will  com- 
pensate him  for  the  injuries  he  has  sustained,  not,  however,  exceed- 
ing the  amount  named  in  the  complaint.3 

(d)  If  the  jury  find  for  the  plaintiff,  in  estimating  and  determi- 
ning the  measure  of  his  damages  they  should  take  irto  consideration, 
in  connection  with  all  the  facts  and  circumstances  in  evidence,  the 
bodily  pain  and  suffering  and  mental  anguish,  if  £tiy,  endured  by 
him,  and  resulting  from  the  injuries  received;  the  character  and  ex- 
tent of  his  injuries,  and  whether  they  are  permanent  ?n  their  nature ; 
the  extent,  if  any,  to  which  he  has  been  prevented  and  disabled  by 
reason  of  such  injuries  from  working  and  earning  a  livelihood  for 
himself;  his  necessary  expenses  for  medical  attention  ia  endeavoring 
to  be  cured ;  and  may  find  for  him  in  such  sum  as,  in  the  judgment 
of  the  jury,  under  all  the  evidence  in  the  case,  will  co;  npensate  him 
for  the  injuries  received,  not,  however,  exceeding  the  srm  of  twenty 
thousand  dollars.4 

(e)  The  court  instructs  the  jury  that  if  you  find  for  the  plaintiff 

1— I.  C.  R.  R.  Co.  v.  Cole,  165  III.  issue    between    the    parties.      But 

334    (337),    aff'g   62   111.    App.    4S0,   46  the   above    instruction    is    not    open 

N.   E.   275.  to   this   objection.     Taking   the   in- 

2 — S.   Con.  Ry.  Co.  v.  Puntenney,  struction    as    a    whole,    we    do   not 

200  111.   9   (14-15),  aff'g  101  111.  App.  see  how  any  juror  of  average  in- 

95.  65  N.  E.   442.  telligence  could  fail   to  understand 

"This  instruction  states  the  rule  that  he  was  required  to  be  guided 

with  substantial  accuracy  and  con-  by   the    evidence,    City    of    Ind.    v 

fines  such  damages  to  such  sum  as  Scott,  72  Ind.  196;    Louisville  N.  A 

would    compensate   her."  &  C.  R.  Co.  v.  Falvev.  104  lr\.  403 

3— C.  St.  Rv.  Co.  v.  Hoffbauer,  23  3  N.  E.   389  and  4  N.  E.  90« ." 
Ind.  App.  614.  56  N.  E.  54   (58).  4— Merrielees    v.    W.    R.    Co-.    16-' 

"An  instruction  to  the  jury  can-  Mo.   470,  63  S.  W.   718   (721). 
not    assume    the   truth   of   facts   in 


§882.]  DAMAGES— PERSONAL  INJURY.  603 

you  will  be  required  to  determine  the  amount  of  his  damage.  In  de- 
termining the  amount  of  damages  the  plaintiff  is  entitled  to  recover 
in  this  case,  if  any,  the  jury  have  a  right  to,  and  they  should,  take 
into  consideration  all  the  facts  and  circumstances  as  proven  by  the 
evidence  before  them,  the  nature  and  extent  of  plaintiff's  physical 
injuries,  if  any,  so  far  as  the  same  are  shown  by  the  evidence  to  be 
the  direct  result  of  the  injury,  his  suffering  in  mind  and  body,  if  any, 
resulting  from  such  physical  injuries,  and  such  future  suffering  and 
loss  of  health,  if  any,  as  the  jury  may  believe  from  the  evidence  be- 
fore them  in  this  case  he  has  sustained  or  will  sustain  by  reason  of 
such  injuries,  his  loss  of  time  and  inability  to  work,  if  any,  on  ac- 
count of  such  injuries,  and  may  find  for  him  such  sum  as  in  the  judg- 
ment of  the  jury  under  the  evidence  and  instructions  of  the  court  in 
this  case  will  be  a  fair  compensation  for  the  injuries  he  has  sus- 
tained or  will  sustain,  if  any,  so  far  as  such  damage  and  injuries,  if 
any,  are  claimed  and  alleged  in  the  declaration  and  proven,  and  it  is 
not  necessary  for  any  witness  to  express  an  ojunion  as  to  the  amount 
of  such  damages.5 

(f)  The  court  instructs  the  jury  that  if  you  find  for  the  plaintiff 
you  will  be  required  to  determine  the  amount  of  her  damages.  In 
determining  the  amount  of  damages  the  plaintiff  is  entitled  to  re- 
cover in  this  case,  if  any,  the  jury  have  a  right  to,  and  they  should, 
take  into  consideration  all  the  facts  and  circumstances  as  proven  by 
the  evidence  before  them;  the  nature  and  extent  of  plaintiff's  physi- 
cal injuries  resulting  from  the  street  collision  in  question  if  any, 
so  far  as  the  same  are  shown  by  the  evidence;  her  suffering  in  body 
and  mind,  if  any,  resulting  from  such  physical  injuries,  and  such 
future  suffering  and  loss  of  health,  if  any,  as  the  jury  may  believe, 
from  the  evidence  before  them  in  this  case,  she  has  sustained  or  will 
sustain  by  reason  of  s:uch  injuries;  her  loss  of  time  and  inability  to 
work,  if  any,  on  account  of  such  injuries;  and  may  find  for  her  such 
sum  as  in  the  judgment  of  the  jury,  under  the  evidence  and  insh-uc- 
tions  of  the  court  in  this  case,  will  be  a  fair  compensation  for  the  in- 
juries she  has  sustained  or  will  sustain,  if  any,  so  far  as  such  dam- 
ages and  injuries,  if  any,  are  claimed  and  alleged  in  the  declaration.0 

(g)  If  from  the  preponderance  of  the  evidence  and  under  the  in- 
structions of  the  court,  the  jury  find  the  defendant  guilty,  then  in  as- 
sessing the  plaintiff's  damages,  if  any,  shown  by  the  evidence,  the 
jury  should  take  into  consideration  the  extent  and  nature  of  the  in- 

5— W.  C.  St.  R.  R.  Co.  v.  Dough-  ney,  200  111.  9,  65  N.  E.  442;  C.  T.  T. 

erty,  110  111.  App.  204  (208-9).  R.   R.    Co.   v.   Gruse,   200  111.   195,  65 

"This   instruction  has  been  before  N.     E.     693.      In    the    Brown    case, 

the     Supreme     Court     and     passed  supra,    the    court    says:      'This    in- 

muster,  C.  B.  Q.  R.  R.  Co.  v.  Mar-  struction,    substantially,    has    been 

tin,  111  111.  232;  W.  C.  St.  R.  R.  Co.  before     this     court     a     number     of 

v.    Johnson,    180   111.    287,    54   N.    E.  times,    and   we   do    not   regard    the 

334;   "W.   C.    St.    R.   R.    Co.   v.   Carr,  giving  of  it  as  error.'" 

170  111.  478,  48  N.  E.  992;  C.  St.  Rv.  6— C.   &   M.   E.   R.   Co.   V.   Ullrich. 

Co.   v.  Brown,  193  111.  274,  61  N.  E.  213  111.  170  (171),  72  N.  E.  815. 
1093;   S.   C.   St.  Ry.  Co.  v.  Punten- 


604  FORMS  OF  INSTRUCTIONS.  [§882. 

jury,  if  any,  shown  by  the  evidence,  suffered  by  her  as  a  direct  and 
natural  result  of  the  accident  in  question,  as  shown  by  the  evidence, 
the  pain  and  suffering,  if  any  shown  by  the  evidence,  present  and 
future,  which  the  jury  may  believe,  from  the  evidence,  the  plaintiff 
has  sustained  or  will  sustain  as  a  direct  and  natural  result  and  con- 
sequence of  such  injury,  the  duration  of  such  injury,  and  any  perma- 
nent disabilities  caused  the  plaintiff  as  a  direct  and  natural  result 
and  consequence  of  such  injury,  if  any,  shown  by  the  evidence;  also 
any  loss  of  health  or  strength,  if  any,  which  the  jury  may  believe, 
from  the  evidence,  the  plaintiff  has  sustained  as  a  direct  and  natural 
result  and  consequence  of  such  injury,  if  any,  shown  by  the  evidence, 
and  in  general  all  such  damages  alleged  in  the  declaration  as  the 
plaintiff  has  sustained,  if  any,  shown  by  the  evidence,  as  a  direct  and 
natural  result  of  the  injury,  so  far  as  any  of  the  above  mentioned  ele- 
ments of  damage,  if  any,  may  have  been  shown  by  a  preponderance  of 
the  evidence ;  and  thereby  the  jury  will  determine  what  sum  will  be  a 
fair  and  just  compensation  for  such  injury.7 

(h)  You  have  the  right  to  give  damages  for  that  mental  suffering 
which  a  man  may  have  from  the  consciousness  that  his  earning  ca- 
pacity is  injured  for  life.  That  is  one  element  of  damage.  Upon  the 
question  of  damages,  I  charge  you  that  there  are  several  elements  of 
damages  which  may  be  considered,  and  you  will  find  the  evidence -in 
the  case.  If  you  find  there  are  permanent  injuries,  you  have  the 
right  to  give  damages  for  that  as  a  distinct  item.  If  you  find  there 
was  physical  pain  and  suffering,  you  have  the  right  to  give  damages 
for  that  as  a  distinct  item.  If  you  find  there  was  mental  suffering, 
you  have  the  right  to  give  damages  for  that  as  a  distinct  item.  You 
have  the  right  to  give  damages  for  that  mental  suffering  which  a  man 
may  have  from  the  consciousness  that  his  earning  capacity  is  injured 
for  life.  That  is  one  element  of  damages.  The  fact  that  a  man  is 
not  able  to  work,  or  may  be  damaged  for  life,  is  a  matter  that  the 
jury  may  take  into  consideration.  You  can  give  damages  for  diminu- 
tion of  earning  capacity,  if  the  evidence  justifies  you  to  find  that  his 
earning  capacity  has  been  diminished,  and  that  defendant  is  liable 
therefor.8 

(i)  The  jury  are  instructed  that  if,  under  the  evidence  and  under 
the  instructions  of  the  court,  they  find  the  defendant  guilty  as  al- 

7— N.  Chi.  St.  R.  R.  Co.  v.  Hutch-  plaintiff    had    sustained    or    might 

inson,   92   111.  App.   567,  aff'd.   in  191  sustain    as    the    direct   and    natural 

111.    104,   60   N.   E.    850.  result  and  consequence  of  such  in- 

"The   objection    is   urged    to   this  jury.     An  instruction  substantially 

instruction  that  it  is  broad  enough  similar    as    to    past    suffering    ex- 

to  allow  damages  for  future  mental  cept    that    it    contained    the    word 

suffering.       The    word    'mental'    is  'mentally'  was  approved  in  I.  C.  R. 

not    mentioned    in    the    instruction,  R.  Co.  v.  Cole,  165  111.  334,  46  N.  E. 

and     the     instruction     is     not     ob-  275." 

noxious   to   the   criticism    of   coun-  8— B.   E.    L,.   &   P.    Co.   v.   Simon- 

sel.      The   jury   by   the    instruction  shon.   107  Ga.  70,   32  S.   E.   902;   At. 

were  limited   in   the  assessment   of  St.  R.  R.  Co.  v.  Jacobs,  88  Ga.  647, 

damages    to    the    consideration    of  15   S.   E.    825. 
such    pain    and    suffering    as    the 


§  883.]  DAMAGES— PERSONAL  INJURY.  605 

leged  in  the  declaration,  then,  in  estimating  or  assessing  the  plaintiff's 
damages,  the  jury  should  take  into  consideration  the  personal  in- 
jury sustained  by  the  plaintiff,  if  any  is  proven,  in  consequence  of 
the  accident  in  question ;  also  the  pain  and  suffering  undergone  by 
him  in  consequence  of  his  injuries,  if  any  are  proved,  and  any  per- 
manent injury  sustained  by  the  plaintiff,  if  the  jury  believe,  from 
the  evidence,  that  the  plaintiff  has  sustained  such  permanent  injury 
in  consequence  of  the  accident  in  question,  and  such  damages,  if  any, 
present  or  future,  ■which  the  jury  believe,  from  the  evidence,  are 
proven  to  be  the  necessary  result  of  the  injury.9 

§  883.  Same  Subject,  Continued,  (a)  The  court  instructs  the 
jury  that  if  you  find  for  the  plaintiff,  you  will  be  required  to  de- 
termine the  amount  of  her  damages.  In  determining  the  amount  of 
damages  the  plaintiff  is  entitled  to  recover  in  this  case,  if  any,  the 
jury  have  a  right  to,  and  they  should,  take  into  consideration  all  the 
facts  and  circumstances  as  proven  by  the  evidence  before  them;  the 
nature  and  extent  of  plaintiff's  physical  injuries,  if  any,  so  far  as  the 
same  are  shown  by  the  evidence;  her  suffering  in  body  and  mind,  if 
any,  as  the  jury  may  believe,  from  the  evidence  before  them  in  this 
case,  she  has  sustained  or  will  sustain  by  reason  of  such  injuries ;  her 
loss  of  time  and  inability  to  work,  if  any,  on  account  of  such  injuries; 
all  moneys  necessarily  expended  or  become  liable,  for  doctor's  bills, 
if  any,  while  being  treated  for  such  injuries;  and  may  find  for  her 
such  sums  as  in  the  judgment  of  the  jury,  under  the  evidence  and  in- 
structions of  the  court  in  this  case,  will  be  a  fair  compensation  for 
the  injuries  she  has  sustained  or  will  sustain,  if  any,  so  far  as  such 
damages  and  injuries,  if  any,  are  claimed  and  alleged  in  the  declara- 
tion.10 

(b)  The  court  instructs  the  jury  that,  if  you  find  the  issues  for  the 
plaintiff,  you  will,  in  estimating  her  damages,  take  into  consideration 
the  character  and  extent  of  her  injuries,  the  mental  and  physical 
pain  and  suffering  endured  by  her  in  consequence  of  such  injuries,  and 
their  permanency,  if  by  the  evidence  shown  to  be  permanent,  and  any 
amounts  shown  by  the  evidence  to  have  been  expended  by  her  or  con- 
tracted by  her  for  medical  and  surgical  attention  this  item  not  to  ex- 
ceed      dollars,  and  you  may  find  for 

her  in  such  sums  as,  under  the  evidence,  will  be  a  reasonable  com- 

9 — L.    S.    &    M.    So.    Ry.    Co.    v.  be   had   in   this   case;    and,   under- 

Hundt,    140   111.    525    (530),    30   N.    E.  standing  that  clause  in  that  sense, 

458.  the  instruction  is  not  seriously  ob- 

"While  the  instruction  is  not  to  be  jectionable,  and  the  jury  could  not 
commended  as  a  model,  we  think  have  been  misled  by  it." 
it  improbable  that  the  jury  could  10— Cicero  St.  R.  R.  Co.  v. 
have  understood  the  last  clause  Brown,  193  111.  274  (275-6),  61  N.  E. 
otherwise  than  as  stating-  the  gen-  1093,  aff'g  89  111.  App.  318. 
eral  rule  applicable  to  all  damages  "This  instruction  substantially 
as  well  as  those  arising-  from  the  has  been  before  this  court  a  num- 
injuries  previously  alluded  to  as  ber  of  times,  and  has  uniformly 
those  arising  from  any  other  been  approved,  and  we  do  not  re- 
source for  which  a  recovery  might  gard  the  giving  of  it  as  error,  H. 


606  FORMS  OF  INSTRUCTIONS.  [§  883. 

pensation  for  the  injuries  shown  by  the  evidence  to  have  been  sus- 
tained by  her;  in  all,  not  to  exceed  the  sum  of dollars.11 

(c)  The  court  instructs  the  jury  that  if  you  find  for  plaintiff  you 
will  be  required  to  determine  the  amount  of  his  damages.  In  de- 
termining the  amount  of  damages  plaintiff  is  entitled  to  recover  in 
this  case,  if  any,  the  jury  have  a  right  to  and  they  should  take  into 
consideration  all  the  facts  and  circumstances  as  shown  by  the  evi- 
dence before  them  pertaining  to  his  injuries;  the  nature  and  extent 
of  the  plaintiff's  physical  injuries,  if  any,  so  far  as  the  same  are 
shown  by  the  evidence;  his  suffering  in  body  and  in  mind,  if  any,  re- 
sulting from  such  physical  injuries,  and  such  future  suffering  and 
loss  of  health,  if  any,  as  the  jury  may  believe  from  the  evidence  be- 
fore them  in  this  case  he  has  sustained  or  will  sustain  by  reason  of 
such  injuries;  his  loss  of  time  and  inability  to  work,  if  any,  which 
the  jury  may  believe  from  the  evidence  he  will  sustain  on  account  of 
said  injuries;  all  moneys  necessarily  liable  for  doctors'  bills,  if  any, 
while  being  treated  for  such  injuries;  and  may  find  for  him  such  sum 
as  in  the  judgment  of  the  jury  from  the  evidence  and  under  the  in- 
structions of  the  court  in  this  case,  will  be  a  fair  compensation  for 
the  injuries  he  has  sustained,  or  will  sustain,  if  any,  so  far  as  such 
damages  are  claimed  by  and  alleged  in  the  declaration.12 

(d)  If  the  jury  believe,  from  the  evidence,  under  the  instruction 
of  the  court,  that  the  plaintiff  is  entitled  to  recover,  then,  in  fixing 
the  damages  which  he  ought  to  recover,  the  jury  should  take  into 
consideration  all  the  circumstances  surrounding  the  case,  so  far  as 
these  are  shown  by  the  evidence,  such  as  the  circumstances  attend- 
ing the  injury;  the  loss  of  time  of  the  plaintiff,  if  any,  occasioned 
by  the  injury;  the  pain  he  has  suffered,  if  any;  the  money  he  has 
expended,  if  any,  to  be  cured  of  such  injury;  the  business  he  was  en- 
gaged in,  if  any,  at  the  time  he  was  injured,  and  the  extent  and 
duration  of  the  injury,  and  give  the  plaintiff  such  damages  as  the 
jury  believe,  from  the  evidence,  he  has  sustained.13 

(e)  In  determining  the  amount  of  damages  the  plaintiff  is  en- 
titled to  recover  in  this  case,  if  any,  the  jury  have  a  right  to,  a,nd 
they  should,  take  into  consideration  all  the  facts  and  circumstances 
in  evidence  before  them;  the  nature  and  extent  of  the  plaintiff's 
physical  injuries,  if  any,  testified  about  by  the  witnesses  in  this  case; 
her  suffering  in  body  and  mind,  if  any,  resulting  from  such  injuries ; 
and  also  such  prospective  suffering  and  loss  of  health,  if  any,  as  the 
jury  may  believe,  from  all  the  evidence  before  them  in  this  case,  she 
has  sustained  or  will  sustain  by  reason  of  such  injuries.14 

&  St.  Jos.  R.  R.  Co.  v.  Martin,  111  12— Approved    in    Chi.    IT.    T.    Co. 

111.   219;   Chi.   C.   Ry.  Co.   v.  Taylor,  v.  Browdv,  108  111.  App.  177. 

170  111.  48,  48  N.  E.  831;  W.  Chi.  St.  13— Sedg.    Dam..    618;    C.    R.    I.    & 

R.  R.  Co.  v.  Johnson,  180  111.  285,  54  P.    Rd.    Co.    v.    Otto.     52    111.     416; 

N.   E.    334."  Little  v.  Tingle,  26  Ind.  168;  1  Suth- 

11— Ashby    v.    Elsberry    &    N.    H.  erland  Damages,    (3d  Ed.)   §§  93-96, 

G.    R.    Co.,    Ill   Mo.    App.    79,    85    S.  3  Id.   (3d  Ed.)   §§  936-944. 

W.    957    (959).  14— H.  &  St.  J.  R.  R.  Co.  v.  Mar- 


§  884.]  DAMAGES— PERSONAL  INJURY.  607 

§  884.  All  Damage,  Present,  or  Future,  Which  Is  the  Necessary- 
Result  of  Injury,  (a)  If,  under  the  evidence  and  instructions  of 
the  court,  the  jury  find  the  defendant  guilty,  then,  in  estimating  the 
plaintiff's  damages,  it  will  be  proper  for  the  jury  to  consider  the 
effect  of  the  injury  in  future  upon  the  plaintiff's  health,  if  they  be- 
lieve, from  the  evidence,  that  his  future  health  will  be  affected  by  the 
injury  in  question;  and  also  the  use  of  his  hand,  and  his  ability  to 
attend  to  his  affairs  generally,  in  pursuing  his  ordinary  trade  or 
calling,  if  the  evidence  shows  that  these  will  be  affected  in  the  future; 
and  also  the  bodily  pain  and  suffering,  the  necessary  expenses  of 
nursing  and  medical  care  and  attendance^  and  loss  of  time,  so  far  as 
these  are  shown  by  the  evidence;  and  all  damages,  present  or  future, 
which,  from  the  evidence,  can  be  treated  as  the  necessary  result  of 
the  injury  complained  of.15 

(b)  You  should  allow,  not  only  for  damages  already  past,  but  for 
all  damages  which  would  naturally  and  reasonably  result  from  the 
injury,  whether  in  the  past  or  in  the  future.16 

(c)  If  the  jury  find  for  the  plaintiff,  in  estimating  his  damages 
they  will  take  into  consideration,  not  only  his  age,  the  physical  in- 
jury inflicted,  and  the  bodily  pain  and  mental  anguish  endured,  to- 
gether with  the  loss  of  time  occasioned,  but  also  any  and  all  such 
damages  which  it  appears  from  the  evidence  will  reasonably  result  to 
him  from  said  injuries  in  the  future.17 

(d)  You  will  allow  him  for  all  damages  which  naturally  and  di- 
rectly result  from  his  injuries,  whether  or  not  in  the  past  or  in  the 
future.18 

§  885.  Reasonable  and  Just  Compensation,  Based  upon  the  Evi- 
dence, (a)  You  will  find  for  the  plaintiff  such  damages  as  you  may 
believe  from  the  evidence  will  be  a  reasonable  and  just  compensation 
for  the  injuries  so  received,  and  resulting  by  reason  of  such  negli- 
gence, if  any.19 

tin,   111  111.   227;   C.   B.   &  Q.  R.   R.  rupture   which   he   claims    to   have 

v.  Warner,  108  111.  545.  sustained   by  reason  of  the  injury 

15—1.   C.   Rd.   Co.   v.  Reed,  37  111.  complained    of   and    the    plaintiff's 

484;  Whalen  v.  St.  L...  etc.,  Rd.  Co.,  testimony    was    to    the    effect    that 

60  Mo.  323.  after  he   had  sustained  the  injury, 

16 — City  of  Lexington  v.   Flehar-  and  while  wearing-  the  truss,  if  he 

ty.     —    Neb.     — ,     104    N.     W.     1056  undertook    to   perform    manual    la- 

(1058).  bor,    such   labor   would    cause  pain 

"Co-nplaint    is    made    of    the    in-  near     the     injured     part,     and     he 

struetion,  because  it  is  alleged  that  would  be  obliged  to  desist  and  rest, 

the     testimony     was     that     if     the  But    pain    would    follow    any    exer- 

plaintiff   wore   a   truss   that   would  tion   on  his   part,   and   in  our  view 

fit   and    kept   it   adjusted,   no   dan-  of    the    case,     it    would    certainly 

ger  or  inability  to  work  would  re-  have   been   erroneous   not   to    have 

suit    from    the    injury.      It    is    true  submitted  the  question  to  the  jury 

that   in   the   testimony   of  the   two  suggested  by  the  instruction  com- 

pbvsicians   they    gave    it    as    their  plained   of." 

opinion  that  a  truss  properly  fitted  17— Copeland    v.    W.    R.    Co.,    175 

and  kept  adjusted  would  avoid  any  Mo.  650,  75  S.  W.  106  (109). 

inability  to  work;  but  one  of  these  18— City  of  So.  Omaha  v.  Sutliffe, 

physicians   fitted   the   truss,   which  72  Neb.  746,  101  N.  W.  997   (999). 

the  plaintiff  wore  on  account  of  a  19— R.    R.    T.    &    S.    Ry    Co.    v. 


608  FORMS   OF  INSTRUCTIONS.  [§  886. 

(b)  The  court  instructs  the  jury  that  if  you  believe  from  the  evi- 
dence that  the  plaintiff  has  made  out  the  charge  of  negligence  as  al- 
leged in  the  declaration  by  a  preponderance  of  the  evidence,  you 
should  find  the  defendant  guilty,  and  assess  the  plaintiff's  damages 
at  such  sum  as,  under  the  evidence,  will  fairly  compensate  her  for  the 
injury  sustained,  provided  you  also  find  from  the  evidence  that  the 
plaintiff  was  in  the  exercise  of  ordinary  care  at  the  time  she  received 
the  injury.20 

(c)  The  jury  are  instructed,  that  a  party  suing  for  an  injury  re- 
ceived can  only  recover  such  damages  as  naturally  flow  from,  and 
are  the  immediate  result  of,  the  act  complained  of.  The  jury  should 
be  governed  solely  by  the  evidence  introduced  before  them,  and  they 
have  no  right  to  indulge  in  conjectures  and  speculations  not  sup- 
ported by  the  evidence.21 

§  886.  Sympathy  Should  Not  Have  Any  Consideration  in  Assess- 
ing Damages— Same  Position  as  if  No  Injury  Had  Taken  Place,  (a) 
The  jury  are  instructed  by  the  court  that  the  measure  of  their  dam- 
ages, if  they  prevail  on  the  questions  to  which  I  have  called  your  at- 
tention, is  compensation.  Beyond  that  you  must  not  go.  Considera- 
tions of  sympathy  ought  to  find  no  place  in  your  minds.  How  much 
will  it  take  to  put  this  father  and  the  son,  so  far  as  money  can  do  so, 
in  the  same  position  as  that  which  they  would  have  occupied  if  this 
accident  had  not  taken  place1?  That  is  a  question  which  you  must 
answer  in  determining  the  amount  of  damages  that  you  will  give 
them,  supposing  you  find  that  F*s  accident  was  brought  about  by  the 
carelessness  of  the  defendant's  servant,  without  being  contributed  to 
by  any  carelessness   on  his  own  part.22 

(b)  If  you  shall  resolve  the  question  submitted  in  the  preceding 
instruction  in  favor  of  the  plaintiff,  you  will  then  inquire  as  to  the 
extent  of  the  damages,  if  any,  suffered  by  the  plaintiff  by  reason  of 
the  injuries  complained  of.  In  considering  the  question  of  plaintiff's 
damages,  in  case  you  shall  find  he  is  entitled  to  damages,  you  may 
consider  the  extent  of  his  physical  injuries,  the  amount  of  disability 
occasioned  thereby,  the  effect  which  such  injuries  have  produced,  and 
will  in  the  future  produce,  upon  his  ability  to  earn  his  living  by  the 
practice  of  his  profession  or  otherwise ;  the  physical  and  mental  pain 
and  suffering,  if  any,  which  he  has  endured  by  reason  of  his  in- 
juries, and  the  pecuniary  loss  he  has  sustained  by  reason  of  the  loss 
of  time  occasioned  by  his  injuries.  But  you  should  not  permit  any 
consideration  of  sympathy  for  the  plaintiff,  or  of  economy  for  the  de- 
fendant, to  influence  your  verdict.23 

Reynolds,  —  Tex.   Civ.   App.  — ,  85  in  Wabash  R.  Co.  v.  Smith,  162  111. 

S.  W.  1169.  583,   44   N.    E.    856." 

20— C.    &   A.    R.    R.    Co.   v.    Buck-  21—1.    B.    &    W.    Rd.    Co.    v.    Bir- 

master,    74   111.    App.    575    (579).  ney,  71   111.    391. 

"This  instruction  is  substantially  22 — Foote  v.   Am.   P.  Co.,  201  Pa. 

approved  in  I.  C.  R.  R.  Co.  v.  Gil-  510.    51   Atl.    364. 

bert,  157  111.  354,  41  N.  E.  724;   and  23— Citv    of    Omaha    v.    Ayer,    32 

Neb.    375,   49   N.   W.   445   (447). 


§  887.]  DAMAGES— PERSONAL  INJURY.  609 

§  887.  Occupation,  Habits  of  Industry,  Health,  and  Prospects  of 
Life,  etc.,  to  be  Considered.  If  you  find  the  plaintiff  is  entitled  to 
damages,  in  estimating  the  sum  you  may  take  into  consideration  his 
occupation,  habits  of  industry,  health,  and  prospects  of  life,  at  the 
time  he  received  the  injury,  governed  by  ordinary  human  knowledge 
and  experience  as  to  the  age  he  would  likely  have  remained  capable  of 
labor;  also,  the  expenses  incurred  by  him  for  medical  attendance, 
nursing,  loss  of  time,  incapacity  for  labor  after  the  injury,  and  pain 
and  suffering  sustained  by  him  consequent  upon  such  injury,  if,  in 
your  judgment,  the  same  is  warranted  by  the  evidence.  You  should 
look  to  the  nature  and  extent  of  the  injury  inflicted,  and  then  de- 
termine from  the  evidence  what  is  just  and  proper  under  all  the  cir- 
cumstances in  evidence.24 

§  888.  Ability  to  Play  Musical  Instruments  and  Sing.  In  arriv- 
ing at  a  verdict  in  this  case,  if  you  find  that  the  plaintiff  sustained 
any  injuries  whatever  through  any  negligence  of  the  defendant  or 
its  employe,  you  must  take  into  consideration  the  physical  and  mental 
condition  of  plaintiff  before  the  occurrence  of  the  accident,  her  ac- 
complishments, if  any,  her  ability  to  play  musical  instruments  and 
sing. 

The  jury  are  further  charged  to  take  into  consideration  the  effect, 
if  any,  of  the  accident  to  her  upon  her  ability  to  play  upon  musical 
instruments   and   sing.25 

§  889.  Loss  of  Earnings  in  Business — Training  Race-Horses.  If 
the  jury  find  for  the  plaintiff  they  should  assess  his  damage  at  such 
sum  as  they  believe  from  the  evidence  will  be  a  fair  compensation  to 
him,  subject  to  the  limitations  of  the  other  instructions  given  herein: 
First.  For  any  pain  of  body  or  mind  which  the  plaintiff  has  suf- 
fered or  will  suffer  by  reason  of  his  injuries,  and  directly  caused 
thereby.  Second.  For  any  loss  of  earnings  from  his  business,  di- 
rectly caused  by  his  disability  to  attend  to  his  business,  which  the 
plaintiff  has  or  will  hereafter  have  sustained,  directly  caused  by  his 
injuries.  Third.  For  any  expenses  for  medicine,  nursing,  medical  or 
surgical  attention  which  the  plaintiff  has  necessarily  incurred,  or  will 
hereafter  necessarily  incur,  directly  caused  by  the  said  injuries,  in 
seeking  relief  therefrom.26 

24 — Todd  v.  Danner,  17  Ind.  App.  the  wind   instrument   he   had   been 

?6S,  46  N.  E.  829.  in   the   habit   theretofore   of   using, 

25 — Doolin     v.     Omnibus    C.     Co.,  notwithstanding    there   was   no   al- 

140  Oal.  369,  73  Pac.   1060.  legation   in   the   petition   respecting 

"The    ease    in    principle    is    iden-  the   fact   that   he   was   a  musician, 

tical  with  that  of  Cons.  Kansas  C.  and  that  his  injuries  had  deprived 

Co.    v.    Tinchert,    2   Am.    Neg.    Rep.  him  of  the  power  of  pursuing  that 

534.  where  it  is  said:   'For  the  pur-  occupation.'" 

pose    of    showing    the    extent    and  26 — Robinson   v.    St.   L.    &   S.   Ry. 

character  of  an  injury,  it  was  com-  Co.,  103  Mo.  110,  77  S.  W.  493   (495). 

petent    for    the    plaintiff    to    show  "Plaintiff  testified  that  he  was  in 

that    he    was    a    musician    prior    to  the     race-horse     business,     buying 

the   accident,    and    that    by    reason  and    sellinc:    race    horses,    training 

of  the   injuries   inflicted   upon   him  them    and    putting    them    on    race 

he  was  afterwards  unable  to  blow  tracks;    that   before   the   injury   he 
39 


610  FORMS  OF  INSTRUCTIONS.  [§890. 

§  890.  Less  Capable  of  Attending  Business  Than  Before  Injury. 
The  court  instructs  the  jury  that  if,  under  the  evidence  and  the  in- 
structions of  the  court,  the  jury  find  the  defendant  guilty,  then,  in 
assessing  the  plaintiff's  damages,  the  jury  may  take  into  considera- 
tion not  only  the  loss  and  immediate  damage  arising  from  the  injury 
received  at  the  time  of  the  accident,  but  also  the  permanent  loss  and 
damage,  if  any  is  proved  by  the  evidence,  arising  from  any  disability 
resulting  to  the  plaintiff  from  the  injury  in  question,  which  renders 
her  less  capable  of  attending  to  her  business  than  she  would  have 
been  if  the  injury  had  not  been  received.-7 

§  891.  Reasonable  Compensation  for  Impaired  Ability  to  Labor 
and  Pursue  Business — Value  of  Personal  Service  in  Management  of 
Business  Should  be  Considered.  The  court  instructs  the  jury  that  if 
they  find  from  the  evidence  future  disability,  the  plaintiff  should  be 
allowed  a  sum  that  would  reasonably  compensate  him  for  his  im- 
paired ability  to  labor  and  earn  money  and  manage  and  pursue  his 
business  in  the  future.  The  jury  should  consider,  in  estimating  dam- 
ages, the  value  of  the  personal  services  of  the  plaintiff  in  the  man- 
agement and  pursuit  of  his  business.28 

§  892.  Future  Diminished  Capacity  to  Labor  and  Earn  Money, 
(a)  In  the  event  of  your  verdict  being  for  the  plaintiff,  in  assessing 
his  damages,  you  may  take  into  consideration  the  reasonable  value 
of  time  lost,  if  any  consequent  upon  his  injuries,  the  necessary  sums 
of  money,  if  any  expended  by  him  for  medical  attendance  and  medi- 
cine rendered  necessary  by  his  injuries,  the  bodily  and  mental  pain, 
if  any,  suffered  by,  or  that  may  be  suffered,  by  reason  of  his  injuries ; 
and  if  you  believe  from  the  evidence,  plaintiff's  injury  is  permanent, 
and  will  impair  his  capacity  to  labor  and  earn  money,  in  future,  you 
may,  in  addition  to  the  foregoing  find  such  sum  as  will  be  a  fair  and 
reasonable  compensation  for  his  future  diminished  capacity  to  labor 
and  earn  money.29 

(b)  In  arriving  at  the  amount  of  the  plaintiff's  damage,  you  will 
consider  his  pain  and  suffering,  and  necessary  and  reasonable  ex- 
penses of  the  medical  aid,  and  if  the  injury  is  permanent,  you  may 
take  such  fact  into  consideration,  and  in  that  case  you  may  consider 
the  future  effect  of  the  injury  upon  the  plaintiff's  ability  to  engage 
in  the  ordinary  occupations  of  life  and  his  diminished  working  and 
earning  capacity,  if  any.30 

did  his  own  training,  but  after  the  27— N.  C.  St.  R.  R.  Co.  v.  Brown, 

injury    he    was    not    able    to   train  178  111.   187   (189),   aff'g  76  111.   App. 

his    horses,    and    had    to    hire    and  654,   52  N.   E.   864. 

keep    in    his    employ   a    trainer   all  28— Jordan  v.  C.  R.  &  M.  C.  Ry. 

the    time;     that    his    earnings    had  Co.,    124    Iowa    177,    99    N.    "W.    693 

been    $10,000    per   annum    over   and  (694). 

above  any  money  he  had  made  by  29— Galveston  C.  R.  Co.  v.  Chap- 
bets  on  races.  Hence  there  was  man.  35  Tex.  Civ.  App.  551,  80  S. 
evidence  of  profits   in  his  business  W.   856. 

and   loss  in  those  profits  by  being  30 — Haggerty  v.   Strong,  10  S.  T>. 

compelled    to   increase   the   expense  586,  74  N.  W.  1037  (1039). 
of  his  business  to  the  extent  of  hir- 
ing a  special  trainer." 


§  892.]  DAMAGES— PERSONAL  INJURY.  611 

(c)  The  court  instructs  the  jury  that  if  you  find  for  the  plaintiff 
you  will  be  required  to  determine  the  amount  of  damages.  In  de- 
termining the  amount  of  damages  plaintiff  is  entitled  to  recover  in 
this  case,  if  any,  the  jury  have  a  right  to,  and  they  should,  take  into 
consideration  all  the  evidence  pertaining  to  plaintiff's  physical  in- 
juries,— and  such  loss  of  time  and  inability  to  work  in  the  future, 
if  any,  which  the  jury  may  believe,  from  the  evidence,  he  will  sustain 
on  account  of  such  injuries,  and  may  find  for  him  such  sum  as  in  the 
judgment  of  the  jury,  under  the  evidence  and  instructions  of  the 
court,  will  be  a  fair  compensation  for  the  injuries  he  has  sustained 
or  will  sustain,  if  any,  so  far  as  such  damages  are  claimed  and  al- 
leged in  the  declaration.31 

(d)  If  you  believe,  from  the  evidence,  that  his  injuries,  if  any,  are 
permanent,  and  will  diminish  his  capacity  to  earn  money  in  the  fu- 
ture, then  you  should  allow  him  such  a  sum  therefor  as  you  will  be- 
lieve from  the  evidence,  etc.32 

(e)  The  court  instructs  the  jury  that  the  plaintiff  could  recover 
in  addition  to  the  usual  items  of  expense  of  treatment,  past  and 
future  suffering,  etc.,  the  loss  of  earnings  of  the  plaintiff  which  he 
has  already  suffered,  and  which  you  are  reasonably  certain  he  will 
suffer  in  the  future.33 

(f)  In  ascertaining  what  his  impaired  condition  is,  you  must 
look  to  the  testimony,  and  see  what  his  earning  capacity  was,  and 
what  are  his  disabilities,  if  his  injuries  are  temporary,  if  his  capacity 
for  labor  is  total  or  partial.  All  of  these  things  should  be  taken  into 
consideration  in  determining  the  amount,  provided  you  find  that  he 
is  entitled  to  recover.3* 

31 — Richardson  v.  Nelson,  221  111.  which   is  clear  and   positi/e   in  its 

254   (259,  260),  77  N.   E.   5.  terms." 

"The  objections  urged  to  this  in-  32— G.  H.  &  S.  A.  Ry.  Co.  v.  Col- 

struction    are,    that    it    allowed    the  lins,  31  Tex.  Civ.  App.  70,  71  S.  W. 

jury  to  assess  damages  for  the  loss  560    (561). 

of  time  and  loss  of  earning  power  33— Heer  v.   Asphalt   Paving  Co., 

during     appellee's      minority,      and  118  Wis.  51,  94  N.  W.  789  (791). 

that  it  tells  the  jury  that  they  may  34 — Central  of  Georgia  Ry.  Co.  v. 

assess  damages  'for  injuries  he  has  Grady,    113    Ga.    1045,    39    S.    E.    441 

sustained  or  will  sustain,  if  any,  so  (442). 

far  as  damages  are  claimed  and  al-  "The    exceptions    to    this    charge 

leged     in     the     declaration.'       The  embrace    no    complaint    of    its    ab- 

declaration     alleges     damages     be-  stract  correctness,  but  it  is  alleged 

cause    'plaintiff    became    liable    for  to   be  erroneous  because  the  court 

and  did  lay  out  divers  large  sums  failed      to     charge     various     other 

of  money  in  and  about  endeavoring  principles   which   would   have   been 

to  be  healed  and  cured  of  his  said  appropriate.     A  portion  of  a  charge 

sickness   and    disorders,    amounting  wherein    a    complete,    accurate   and 

to.     to-wit,     $100,'     etc.       Standing  pertinont    proposition    is    stated    is 

alone,  the  instruction  is  subject  to  not,     in    and     of    itself,    erroneous, 

criticism,    but    if    the    instructions,  simply  because  it  fails  to  embrace 

taken    as    a    series,    state    the    law  an  instruction  which  would  be  ap- 

correctly,   the  error  in  the  instruc-  propriate    in    connection    with    that 

tion     may    be    obviated.      The    in-  proposition.  Lucas  v.  State,  110  Ga. 

struction  is  very  general  in  nature,  756.  36  S.   E.   87.     See,   also,   Mclver 

and    is   followed   by   an    instruction  v.    G.    S.    &   F.    R.    R.    Co.    108    Ga. 

given   on   behalf   of   the    appellant  306,  309,  33  S.  E.  901;  Wood  v.  Col- 


612  FORMS  OP   INSTRUCTIONS.  [§893. 

(g)  If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  has 
been  injured  in  health  of  body  or  strength  of  limb,  or  in  his  ability 
to  labor  and  attend  to  his  affairs,  and  generally  pursue  the  course  of 
life  as  he  might  otherwise  have  done,  as  well  since  as  before  the  ac- 
cident, and  if  the  jury  further  believe,  from  the  evidence,  that  such 
injuries  were  inflicted  upon  him  through  the  negligence  or  careless- 
ness of  defendant's  servants  or  employes,  as  charged  in  the  declara- 
tion, and  that  the  plaintiff  was  at  the  time  exercising  all  reasonable 
care  and  caution  to  avoid  such  injuries,  then  the  jury  may  assess 
such  damages  as  will  recompense  to  the  plaintiff  all  the  loss  he  may 
have  sustained,  as  a  necessary  result  of  such  injuries,  as  shown  by 
the  evidence.35 

§  893.  Loss  of  Time,  Pain  and  Suffering,  Medical  Aid,  Allowable — 
Whether  Injury  Is  Incurable,  (a)  If  the  jury  find  the  issues  for 
plaintiff,  then  the  plaintiff  is  entitled  to  recover  such  actual  damages 
as  the  evidence  may  show  she  has  sustained  as  the  direct  or  approxi- 
mate result  of  such  injury,  taking  into  consideration  her  loss  of  time, 
her  pain  and  suffering,  her  necessary  and  reasonable  expenses  in 
medical  and  surgical  aid,  so  far  as  the  same  appear  from  the  evidence 
in  this  case;  and  if  the  jury  find  from  the  evidence  that  the  said  in- 
jury is  permanent  and  incurable,  they  may  also  take  this  into  con- 
sideration in  assessing  the  plaintiff's  damages.36 

(b)  The  court  instructs  the  jury  that  if  you  find  the  defendant 
guilty,  then  in  assessing  the  plaintiff's  damages  you  should  take  into 
consideration  the  expenses  incurred  by  him  in  being  cured  of  his  in- 
juries, if  any  are  shown,  the  value  of  his  time  lost,  if  any  is  shown  by 
the  evidence  in  consequence  of  his  injuries,  and  a  fair  compensation 
for  his  physical  pain  and  suffering,  and  any  permanent  disability  (if 
any  is  shown  by  the  evidence),  and  give  him  such  an  amount,  as  dam- 
ages, as  you  find  from  the  evidence  he  has  sustained,  if  any. 

(c)  If  from  the  evidence  you  find  defendant  guilty,  then  in  as- 
sessing damages  for  the  injury,  if  the  evidence  shows  any  has  been 
received  by  the  plaintiff,  you  are  not  confined  to  consider  the  direct 
expense  the  plaintiff  incurred,  if  any  is  proved,  but  you  may  also  con- 
sider the  value  of  the  loss  of  time,  if  any  is  shown  by  the  evidence  in 
consequence  of  the  injury,  and  a  fair  compensation  for  his  physical 
pain  and  suffering,  if  any  is  shown,  and  if  the  evidence  shows  that 
the  plaintiff  has  received  an  injury  which  is  permanent  or  likely  to 
exist  for  a  great  length  of  time,  you  may  give  damages  for  the  future 

Hns,  111  Ga.  32,  36   S.   E.  423;   Keys  "In  C.   &  E.  I.   R.  R  Co.  v.   Hol- 

v.    State,    112   Ga.   392,   37   S.    E.   762,  land,   122   111.   470,   13   N.   E.   145,   an 

81   Am.    St.   Rep.    63;    Power   Co.   v.  instruction     almost     identical    with 

Walker.    112   Ga.    725,    38    S.    E.    107;  the  one  at  bar,  in  a  case  where  the 

Macon    C.    St.    Ry.    Co.    v.    Barnes,  proof   was    of    like    facts,    was    ap- 

113   Ga.    212,    38   S.    E.    756.  proved  by  the  Supreme  Court,  and 

35— Indianapolis     v.     Gaston,,    5S  we   see   no    reason   under   the    evi- 

Ind.   224.  dence   in    this    case     *     *     *     why 

36 — I.    C.    R.    R.    Co.    v.    Souders,  there  was  error  in  giving  this  in- 

178  Til.   585,   53   N.    E.   408,   reversing  struction." 
79   111.   App.   41    (50). 


§  894.]  DAMAGES— PERSONAL  INJURY.  613 

as  well  as  the  present  disability,  to  such  an  amount  as  the  evidence 
shows  he  has  sustained,  if  any.37 

(d)  If  you  find  the  issues  for  the  plaintiff  and  find  the  defendant 
guilt}-,  then  you  may  assess  the  plaintiff's  damages  at  such  sum  of 
money  as  will  compensate  him  for:  First.  His  necessary  expenses 
in  and  about  being  treated  for  and  cured  of  his  injuries.  Second. 
The  damage  sustained  in  his  business.  Third.  The  pain  and  suffer- 
ing endured  by  him.  Fourth.  For  any  permanent  injuries  sustained 
by  him  so  far  as  all  these  things  (if  proven)  may  be  shown  by  the 
evidence.38 

(e)  The  court  further  instructs  the  jury  that  if,  under  the  evi- 
dence and  instructions  of  the  court,  the  jury  find  the  defendant 
guilty,  then  in  estimating  the  plaintiff's  damages,  it  will  be  proper 
for  the  jury  to  consider  the  effect  of  the  injury  in  future  upon  the 
plaintiff,  if  any  is  shown  bj7  the  evidence  in  this  case,  the  use  of  his 
foot  and  leg,  his  ability  to  attend  to  his  affairs  generally  in  pursuing 
any  ordinary  trade  or  calling,  if  the  evidence  shows  that  these  will  be 
affected  in  the  future,  and  also  the  bodily  pain  and  suffering  he  sus- 
tained, if  any,  and  all  damages  present  and  future,  if  any,  which, 
from  the  evidence,  can  be  treated  as  a  necessary  and  direct  result  of 
the  injury  complained  of.39 

§  894.  Ability  to  Labor  Before  and  After  Injury — Physical  Pain 
and  Mental  Anguish,  etc.  In  making  up  your  verdict,  if  you  find  for 
the  plaintiff,  you  will  consider  the  ability  of  the  plaintiff  to  earn 
wages  and  perform  labor  prior  to  the  time  of  the  alleged  injury,  as 
shown  by  the  evidence,  and  also  his  ability  to  earn  wages  and  per- 
form labor  since  receiving  the  alleged  injury,  the  time  he  lost,  if  any, 
because  of  said  injury,  the  expenses,  if  any,  for  medical  treatment  and 
nursing,  and  the  physical  pain  and  mental  anguish,  if  any,  you  find 

37— Village  of  Ava  v.  Greenawalt,  jury  in   proper   cases  the   right    to 

73  111.  App.   632   (634,  635  and  638).  place  a  value  upon  either  or  both. 

"It    is    not    necessary,"    said    the  We  see  no  force  in  the  objections." 

court,     "that     a    declaration     shall  39 — Wrisley  Co.   v.   Burke,  203  111. 

contain  an  averment  charging  per-  250,  aff'g  106  111.   App.   30,  67  N.   E. 

manent     injury,     to     warrant     the  818. 

admission   of  testimony  tending  to  "It    was   contended   that    this   in- 

prove  such  injury,   and   the   giving  struction       was       misleading      and 

of  an  instruction  directing  the  jury  vicious,    because   its   tendency   was 

to    consider    such   injury,    if   shown  to   cause   the   jury,    because   of   the 

by  the  evidence  in  assessing  dam-  phrase    'all    damages    present    and 

ages,    City   of   Chicago   v.    Michael  future,'   to   award   higher  damages 

Sheehan,    113   111.    658."  than  it  otherwise  would.     We  think 

38— C.   &  A.   R.   R.    Co.   v.  Fisher,  the  objection  is  not  justifiable.     It 

38  111.   App.  33   (41  and  42).  only     allows     the     jury     to     award 

"Strictly  speaking,  there  can  be  damages  in  this  action  for  bodily 
no  compensation  for  pain  and  suf-  pain  and  suffering  in  the  future  as 
fering,  neither  can  the  value  of  a  is  stated  in  the  instruction  'which, 
limb  be  determined  in  money,  from  the  evidence,  ran  be  treated 
There  is  no  market  value  for  as  the  necessary  and  direct  result 
either,  nor  would  any  one  seek  to  of  the  injury  complained  of,'  which 
suffer  the  one,  or  the  loss  of  the  is  the  law  as  established  by  re- 
other,  for  a  money  compensation,  peated  decisions  of  this  and  the 
But    this   does   not   take   from   the  Supreme  Court." 


614 


FORMS  OF  INSTRUCTIONS. 


[§  895. 


he  has  suffered  on  account  of  the  injury,  and  allow  plaintiff  such 
amount  as  you  believe  from  the  evidence  he  is  justly  entitled  to;  but, 
in  arriving  at  the  amount,  if  any,  you  allow  for  loss  of  future  earn- 
ings, you  will  take  into  consideration  the  fact  that  such  amount,  if 
any,  will  be  paid  in  a  lump  sum,  and  you  will  only  allow  for  the 
present  worth  or  value  of  the  same.40 

§  895.  Injury  to  Passenger — Negligence  in  Moving  Cars — Impair- 
ment of  Capacity  to  Labor  and  Earn  Money,  Pain  and  Suffering,  etc. 
If  you  find  that  plaintiff  has  shown  by  a  preponderance  of  the  evi- 
dence that  he  entered  one  of  the  defendant's  passenger  cars  at  X — 
as  a  passenger,  and  that,  while  he  was  on  said  cars  as  a  passenger, 
the  employes  of  defendant  violently,  and  with  unusual  force  and 
roughness,  pushed  said  car  against  other  car  or  cars ;  and  if  you  shall 
further  find  that  such  acts,  if  you  shall  so  find,  of  pushing  the  car  in 
which  plaintiff  was,  against  another  car  or  cars  violently,  and  with 
unusual  force  and  roughness,  was  negligence  of  a  carrier  of  pas- 
sengers, as  hereinbefore  defined,  and  if  you  shall  further  find  that 


40 — Lamb  v.  City  of  Cedar 
Rapids,  108  Iowa  629,  79  N.  W.  366 
(368). 

"We  said  in  Fry  v.  Railroad  Co., 
45  Iowa  416,  of  an  instruction 
which  directed  the  jury  to  allow 
the  plaintiff  in  that  case  'such 
damages  as  will  fairly  compensate 
her  for  all  past,  present  or  future 
physical  suffering  or  anguish, 
which  is,  has  been,  or  may  be 
caused  by  said  injury,'  that  it  was 
too  broad,  and  permitted  the  jury 
to  enter  the  domain  of  conjecture, 
and  indulge  in  speculation  to  a 
greater  extent  than  was  allowable; 
that  the  jury  should  have  been  di-. 
rected  that  it  could  look  alone  to 
the  evidence,  and  determine  there- 
from what  damage  it  was  reason- 
ably certain  the  plaintiff  would 
sustain  in  the  future;  and  that  an 
allowance  could  not  be  made  for 
damage  which  might  but  was  not 
reasonably  certain  to  ensue.  In 
the  case  of  Kendall  v.  City  of  Al- 
bia,  73  Iowa  241,  34  N.  W.  833.  it  ap- 
peared that  the  court  had  charged 
the  jury  that  if  the  plaintiff  in  that 
case,  as  a  result  of  an  accident 
there  in  question,  had  'by  reason 
of  said  accident  suffered  bodily 
pain  and  mental  anguish  to  the 
present,  and  will  so  suffer  in  the 
future,  then  for  such  pain  and 
anguish,  past,  present  and  future, 
you  should  allow  him  such  sum  as 
you  think  proper,  under  the  evi- 
dence, without  proof  of  any  spe- 
cial sum.'  That  was  modified, 
however,   by   the   following:    'With 


reference  to  future  damages,  you 
should  be  satisfied  from  the  evi- 
dence that  they  will  probably  be 
sustained  by  the  plaintiff.'  And  we 
held  the  two  instructions,  con- 
strued together,  were  correct.  In 
Ford  v.  City  of  Des  Moines,  106  la. 
94,  75  N.  W.  630,  we  considered  the 
part  of  a  charge  which  authorized 
a  recovery  for  the  impairment  of 
power  to  enjoy  life  by  reason  of  an 
injury,  'and  for  such  pain  and  in- 
convenience and  impairment  of  en- 
joyment for  such  time  as  the  same 
has  been  or  may  continue  as  shown 
by  the  evidence  in  the  future,  if 
any,'  and  held  it  to  be  erroneous 
for  the  reason  that  it  authorized 
the  jury  to  allow  for  that  which 
was  merely  possible,  not  for  what 
the  evidence  showed  was  reason- 
ably certain  to  continue.  The 
charge  under  consideration  is  not 
quite  so  definite  and  certain  as 
were  the  two  considered  in  the 
case  of  Kendall  v.  City  of  Albia, 
supra,  but  it  is  not  correct  to  say 
that  no  rule  whatever  for  ascer- 
taining future  damages  was  given. 
The  direction  to  allow  plaintiff 
'such  amount  as  you  believe  from 
the  evidence  he  is  justly  entitled 
to'  referred  as  well  to  future  as  to 
past  damages,  and  required  the 
jury  to  make  such  an  allowance 
for  future  damages  as  it  believed 
from  the  evidence  he  should  have. 
The  jury  must  so  have  understood 
the  paragraph,  and,  in  the  absence 
of  a  request  for  a  more  definite 
instruction,   it   was   sufficient." 


§  896.]  DAMAGES— PERSONAL  INJURY.  615 

said  act  of  negligence,  if  you  shall  so  find,  was  the  proximate  cause 
of  the  injuries,  if  any,  you  find  plaintiff  received  and  of  which  he 
complains  in  his  petition  then  you  will  find  for  plaintiff,  unless  you 
shall  find  from  a  preponderance  of  the  evidence  that  plaintiff  was 
guilty  of  contributory  negligence,  or  unless  you  find  that  he  assumed 
the  risks  usually  incident  to  making  such  coupling  mentioned  in  para- 
graph 9  of  the  charge.  If,  under  the  foregoing  instructions,  you 
find  for  plaintiff,  then  in  estimating  the  damages  you  may  take  into 
consideration  any  impairment  of  his  capacity  to  labor  and  earn 
money,  if  any,  his  mental  and  physical  suffering  present  and  future, 
if  any,  and  in  your  dispassionate  judgment  will  allow  him  such  sum 
as  will  fairly  compensate  him  in  so  far  as  the  evidence  may  here 
show  you,  he  is  entitled  to  damages  in  these  respects.  You  cannot, 
however,  consider  any  injury  or  impairment  of  plaintiff  or  damages 
resulting  therefrom,  which  is  not  the  direct  and  proximate  result  of 
the  injuries,  if  any,  received  by  plaintiff  on  the  night  of  April  1, 
190..  « 

§  896.  What  is  Reasonably  Expended  for  the  Purpose  of  Being 
Cured  is  Recoverable — Also  Lost  Earnings,  For  Disfigurement  of 
Person  and  Impaired  Use  of  Hand.  The  jury  are  instructed  that  in 
estimating  the  plaintiff's  damages  he  would  be  entitled  to  such  a 
sum  as  he  reasonably  expended  for  the  purpose  of  being  cured  of 
his  injury,  and  such  sum  as  he  lost  for  his  earnings  by  reason  of  the 
time  which  was  necessarily  lost  by  his  injury.  He  is  also  entitled  to 
such  sum  as  will  fairly  compensate  him  for  the  disfigurement  of  his 
person,  and  the  impaired  use  of  his  hand.42 

If  the  jury  finds,  from  the  evidence,  that  the  plaintiff  is  entitled  to 
recover,  as  alleged  in  his  declaration,  in  estimating  the  plaintiff's 
damage,  you  may  take  into  consideration  his  physical  condition 
prior  to  the  injury  and  also  his  physical  condition  since 
the  injury,  if  you  believe,  from  the  evidence,  that  his  physical  con- 
dition since  then  is  impaired  as  the  result  of  such  injury,  and  that  he 
has  been  deprived  of  his  ability,  since  the  injury,  to  earn  money;  and 
you  may  also  consider  whether  or  not  he  has  been  permanently  in- 
jured and  to  what  extent ;  and  to  what  extent,  if  any,  he  may  have 
borne  physical  and  mental  suffering  as  a  natural  and  inevitable  re- 
sult of  such  injury;  and  also  any  necessary  expenses  he  may  have 
been  put  to  in  and  about  caring  for  and  curing  himself,  and  the 
value  of  any  time  you  may  believe,  from  the  evidence,  he  has  lost  on 
account  of  such  injury,  and  you  may  consider  what,  if  any,  effect 
such  injuries  may  have  upon  him  in  the  future  in  respect  to  pain  and 
suffering,  or  in  respect  to  his  power  to  earn  money  by  his  labor;  and 

41 — St.  L.  Sn.  Ry  Co.  of  Texas  v.  ment     the     court     improperly     in- 

Morrow,    —   Tex.    Civ.    App   — ,    93  eluded    'what    he    had    reasonably 

S.  W.  162   (163).  expended  for  the  purpose  of  being 

42 — Hullehan    v.    Green    Bay,    "W.  cured   of   his   injuries.'     There   can 

&    St.    P.    R.    Co.,    68    Wis.    520,    32  be    no    doubt    but    that    this    is    a 

N.    W.    529    (533).  proper   item    of   damages   in    cases 

"It   is   urged   that    in   this    state-  of  this  kind." 


616  FORMS   OF  INSTRUCTIONS.  [§897. 

you  should  allow  to  him  as  damages  such  sum  as  in  the  exercise  of 
a  sound  discretion  you  may  believe,  from  the  facts  and  circumstances 
in  evidence,  will  he  a  fair  and  just  compensation  to  him  for  the  in- 
jury he  has  sustained.43 

§  897.  Loss  Must  he  Directly  Caused  by  Injury— If  Injured  Failed 
to  Make  Reasonable  Effort  to  Earn  Money  After  Injury,  Loss  Can- 
not be  Charged  to  Defendant,  (a)  Plaintiff  claims  to  have  lost 
earnings  from  his  business  by  reason  of  his  injuries.  It  matters  not 
what  loss  there  has  been,  if  any,  in  the  earnings  of  the  plaintiff,  un- 
less that  loss  was  directly  caused  by  the  necessary  result  of  the  in- 
jury received  on  .       If  plaintiff  could  have  earned  money  by 

reasonable  effort,  neglected  so  to  do,  he  cannot  charge  his  loss,  if 
any,  to  defendant.44 

(b)  If  you  find  the  defendant  guilty,  you  should  assess  against 
it  such  damages  as  you  believe  from  the  evidence,  the  plaintiff  sus- 
tained as  the  direct  result  of  defendant's  negligence.45 

§  898.  Mental  and  Physical  Suffering— Loss  of  Time,  etc.  (a) 
If  you  find  a  verdict  for  the  plaintiff,  he  will  be  entitled  to  any  dam- 
ages that  will  compensate  him  for  the  injuries  which  he  suffered  in 
consequence  of  the  acts  complained  of,  and,  in  determining  what, 
you  may  consider  properly  any  mental  or  physical  suffering  which 
he  had  endured  in  consequence  of  it,  or  any  expense  that  he  was  put 
to,  if  any  expense  has  been  shown.46 

(b)  In  the  event  you  find  for  plaintiff  and  allow  him  damages, 
you  should  allow  him  such  sum  as  you  believe  from  the  evidence  will 
compensate  him  for  the  injuries  sustained;  and  in  estimating  his 
damage,  if  any,  you  may  take  into  consideration  the  mental  and 
physical  pain  suffered,  if  any,  consequent  upon  the  injuries  received, 
and  the  reasonable  value  of  time  lost,  if  any,  consequent  upon  his 
injuries;  and  if  you  believe  from  the  evidence  that  his  injuries  are 
permanent,  and  will  disable  him  to  labor  and  earn  money  in  the  fu- 
ture, then  you  may,  in  addition  to  the  above,  find  such  further  sum  as 
will  be  a  fair  compensation  for  his  diminished  capacity,  if  any,  to 
labor  and  earn  money  in  the  future.47 

43— Howe  v.  Medaris,  82  111.  App.  Co.  v.  "Burney.  71  Til.  381;   Slater  v. 

515    (518).  Rink,   18  111.   527;   Walrath   v.   Red- 

44— Feary  v.  Met.  St.  Ry.  Co.,  162  field.  11  Barb.  368  (N.  Y.);  Clemens 

Mo.   75,   62  S.  W.  452   (458).  v.  Hannibal  &  St.   J.  R.   R.   Co.,  53 

45— Lovett  v.   City  of  Chi.,  35  111.  Mo.    366,    14    Am.    Rep.    460;    Salem 

App.    570.  Bank  v.  Gloucester  Bank,  17  Mass. 

"Apellant    objects    to     the    word  32,    9    Am.    Dec.    111." 

'direct'  in  the  instruction,  and  says  46 — Hull  v.  Douglass,  —  Conn.  — , 

the    small    amount    of    the    verdict  64  Atl.  351. 

was    caused    by    the    use    of    that  47— G.  H.  &  S.  Ry.  Co.  v.  Lynch, 

word.       The     words     'natural     and  22  Tex.  Civ.  App.  336,  55  S.  W.  389 

proximate*      are     more     commonly  (391). 

used     than     'direct'     and     for    that  "The  chare-e  correctly  states  the 

reason    may    be    said    to    be    more  measure  of  damages.    G.  C.  S.  &  F. 

appropriate.       But     the    word     'di-  Ry.  Co.  v.  Wnldo,  —  Tex.  Civ.  App. 

reef    is   often   used    in    the   decided  — ,  32   S.  W.  783:  Knittel  v.  Schmidt, 

cases    as    synonymous    with    those  16  Tex.   Civ.  App.  7,  40  S.  W.   507." 
in  more  general  use,  I.  B.  &  "W.  R. 


§  898.]  DAMAGES— PERSONAL  INJURY.  617 

(c)  You  are  instructed  that  in  the  event  you  find  in  favor  of  the 
plaintiff,  K....,  in  estimating  the  actual  compensatory  damages,  if 
any,  to  which  he  is  entitled,  you  may  take  into  consideration  the  value 
of  the  time  lost,  if  any,  by  the  plaintiff,  while  disabled  from  his  in- 
juries, if  any,  to  work  and  labor,  taking  into  consideration  the  nature 
of  his  business,  and  the  value  of  his  services  in  conducting  the  same; 
fair  compensation  for  the  mental  and  physical  suffering,  if  any,  caused 
him  by  his  injuries,  if  any,  and  the  probable  effect  in  the  future,  if 
any,  of  the  injuries  upon  his  health  and  the  use  of  his  limbs;  award- 
ing him,  as  a  whole,  only  such  a  sum  of  money  as  the  present  cash 
value  of  which  would  actually  compensate  him  for  the  injuries  sus- 
tained.48 

(d)  If  from  the  evidence  and  under  these  instructions,  you  find 
the  defendant  guilty,  then,  in  determining  the  amount  of  damages,  if 
any,  which  the  plaintiff  may  recover  in  this  case,  the  jury  have  a 
right  to,  and  they  should,  take  into  consideration  all  the  facts  and 
circumstances  in  evidence  before  them;  the  nature  and  extent  of 
plaintiff's  ph.vsieal  injuries,  if  any,  testified  about  in  this  case,  and, 
so  far  as  shown  by  the  proof,  his  suffering  in  body  and  mind,  if  any, 
shown  by  the  evidence  to  be  resulting  from  such  injuries,  if  any,  and 
also  such  prospective  suffering  and  loss  of  health,  if  any,  as  the  jury 
may  believe,  from  the  evidence  before  them  in  this  case,  he  has  sus- 
tained or  will  sustain  by  reason  of  such  injuries,  and  may  find  for 
him  such  sum  as,  in  the  judgment  of  the  jury,  under  the  evidence  and 
instructions  of  the  court,  will  be  a  fair  and  actual  compensation  for 
the  injuries  he  has  sustained,  if  any,  so  far  as  such  damage  and  in- 
juries, if  any,  are  claimed  and  alleged  in  the  declaration  herein.49 

(e)  In  estimating  her  damages  you  ma}',  in  connection  with  her 
personal  injuries,  take  into  consideration  her  pain  and  suffering,  if 
any  are  proven,  undergone  by  her  in  consecmenee  of  her  injuries,  if 
any  are  proved.50 

(f)  The  court  instructs  the  jury  that  if  under  the  evidence  and 
instructions  of  the  court  the  jury  find  the  defendant  guilty,  then  in 
estimating  the  plaintiff's  damages,  if  any,  it  will  be  proper  for  the 
jury  to  consider  the  effect,  if  any,  of  the  injury  upon  the  plaintiff, 
and  also  the  bodily  pain  and  suffering,  if  any.  she  sustained,  and  all 
damages  if  any,  charged  in  the  declaration,  and  which  from  the  evi- 
dence are  shown  to  be  the  necessary  and  direct  result  of  the  injury 
complained  of.51 

48— Tex.   &  N.   O.   R.   Co.   v.   Kel-  son,   180   111.    285    (286),   aff'g  77  HI. 

ly,  —  Tex.  — ,  80  S.  W.  1073   (1078).  App.  142,  54  N.   E.  384. 

"Loss  of  time  is  allowed  only  up  50 — The  C.  C.  R.  Co.  v.  Anderson, 

to   the   time   of   the   trial,    and    the  182  111.  29S,  55  N.  E.  366. 

elements   of    damage   are    correctly  51 — C.  C.  Ry.  Co.  v.  Mead,  107  111. 

analvzed    and    separated,    S.    A.    &  App.   649    (652),   aff'd  206  111.  174,   69 

A.    P.    Ry.    Co.    v.    Keller.    11    Tex.  N.   E.   19. 

Civ.    App.    569,   32  S.   W.   848;    G.   C.  The  court  said  that  "this  instruc- 

S.   &  F.   Ry.   Co.   v.  Waldo,  —  Tex.  tion    may    be    subject    to    technical 

Civ.  App.  — ,  32  S.  "W.  785."  criticism;     it    has.     however,     been 

49— W.  C.  St.  R.  R.  Co.  v.  John-  substantially   approved   in   C.   B.   & 


618  FORMS  OP  INSTRUCTIONS.  [§  899. 

(g)  If  you  find  for  the  plaintiff,  you  should  allow  him  such  sum, 
not  to  exceed  the  amount  claimed  by  him  in  his  petition,  as  will 
reasonably  compensate  him  for  the  pain  and  suffering,  if  any,  or  loss 
of  time,  if  any,  or  both,  suffered,  or  that  will  be  suffered  by  him  be- 
cause of  his  injuries,  if  any,  sustained  by  him  by  reason  of  colliding 

with  the  car  of   the  defendant  at  the  intersection  of  T avenue 

west  and  S street  west,  on  or  about  the  —  day  of  .52 

§  899.  What  May  be  Considered  In  Assessing  Damages — Past  and 
Future  Bodily  Pain  and  Mental  Suffering,  (a)  If  your  verdict  is 
for  the  plaintiff,  you  will  assess  his  damages  at  such  a  sum  as  from 
the  evidence  you  believe  will  fairly  compensate  him  for  any  injury 
of  person  which  he  has  suffered  by  reason  of  the  said  accident,  con- 
sidering whether  you  believe  any  such  injury  is  temporary  or  perma- 
nent ;  for  any  pain  of  mind  or  body  which  from  the  evidence  you  be- 
lieve he  has  Suffered  or  may  suffer  by  reason  of  the  said  accident; 
for  any  earnings  which  from  the  evidence  you  believe  he  has  lost  or 
may  lose  by  reason  of  the  accident;  for  any  expenses  for  medicines 
or  medical  attention  or  care  which  you  may  believe  from  the  evidence 
have  been  necessitated  or  may  be  required  by  him  by  reason  of  the 
said  accident,  considering  the  fair  and  reasonable  value  thereof.  If 
your  verdict  is  for  the  defendant,  you  will  simply  so  state  in  your 
verdict.53 

(b)  If  the  jury  find  for  the  plaintiff,  then  in  estimating  her  dam- 
ages you  may  take  into  consideration  all  of  the  mental  and  physical 
pain  and  anguish  already  suffered  by  her,  if  any,  and  all  future  men- 
tal and  physical  pain  and  anguish,  if  any,  that  will  reasonably  result 
to  her  from  said  injuries;  and,  if  the  jury  find  that  her  injuries  are 
permanent  and  lasting  in  their  character  and  effect,  they  should  take 
this  fact  into  consideration;  and  the  jury  should  assess  plaintiff's 
damages  at  such  sum  as,  in  their  judgment,  will  compensate  her  for 
all  sufferings,  both  past  and  future,  if  any,  and  for  permanent  dis- 
ability, if  any,  that  have  or  will  reasonably  result  to  her  by  reason 

Q.    R.    R.    Co.    v.    "Warner,    108    111.  juries  and  their  permanent  charac- 

545.      In    N.    C.    St.    R.    R.    Co.    v.  ter,   and   the   court   in   its   instrue- 

Gastka,    27    111.    App.    522,    and    in  tions    allowed    as    an    element    of 

the    latter    case    by    the    Supreme  damages    such    pain    of    mind     or 

Court  in  128  111.  613,  21  N.  E.  522."  body  as  he  might  suffer  as  well  as 

52— Stanley  v.  Cedar  R.   &  M.   C.  compensation  for  such  he  had  suf- 

Ry.    Co.,    119    Iowa    526,    93    N.    W.  fered,   and   this   constituted   no   er- 

489    (493).  ror.      In    determining    the    amount 

53— McLain    v.    St.    L..    &    S.    Ry.  of    damages    from    a    personal    in- 

Co.,  100  Mo.  App.  374,  73  S.  W.  909.  jury,  the  jury  are  justified  in  con- 

"In  an  action  for  personal  in-  sidering  not  only  the  bodily  pain 
juries  the  right  of  recovery  is  not  and  mental  suffering  already  un- 
limited to  past  bodily  pain  and  suf-  dergone,  but  such  as  are  likely  to 
fering,  but  the  party  is  also  en-  result  in  the  future,  Sedgwick, 
titled  to  compensation  for  such  fu-  Dam.,  Vol.  1,  par.  86;  Sutherland, 
ture  sufferings  as  the  evidence  Dam.,  Vol.  1,  par.  253;  Gorham  v. 
tends  to  prove  will  result  from  the  Ry.,  113  Mo.  408,  20  S.  W.  1060."  But 
injuries.  The  plaintiff  was  per-  see  McKinstry  v.  St.  D.  T.  Co.,  — 
mitted  to  introduce  the  testimony  Mo.  — ,  82  S.  W.  1108,  citing  Walk- 
of  medical  experts  to  establish  the  er  v.  St.  L.  Ry.  Co.,  —  Mo.  App. 
probable    consequences    of    his    in-  — ,   80  S.   W.   282. 


899.] 


DAMAGES— PERSONAL  INJURY. 


619 


of  her  injury,  not  exceeding  the  sum  of  $10,000,  the  amount  claimed 
in  plaintiff's  petition.54 

(c)  If  the  jury  find  for  the  plaintiff,  they  will  assess  his  damages 
at  such  sum  as  they  shall  believe,  from  the  evidence,  will  be  a  fair 
compensation  to  him  for  all  injury  to  his  person,  and  physical  and 
mental  pain  and  suffering,  if  any,  caused  him  by  the  wrongful  con- 
duct of  the  defendant's  servants  and  agents,  as  in  these  instructions 
set  out.55 

(d)  If  the  jury  find  in  favor  of  the  plaintiff,  they  should  assess 
her  such  damages  as  they  think,  under  the  evidence,  would  compen- 
sate her  for  the  pain  and  suffering  she  has  endured  by  reason  of  her 
injuries,  and  such  further  sum  as  they  think  would  fairly  compensate 
plaintiff  for  the  injuries  sustained.56 

(e)  If  the  jury  find  the  issues  for  the  plaintiff,  then  in  determin- 
ing the  amount  of  damages  the  plaintiff  is  entitled  to  recover  in  this 
case,  if  any,  the  jury  have  a  right  to  and  they  should  take  into  con- 
sideration the  nature  and  extent  of  plaintiff's  physical  injuries,  if 
any,  shown  by  the  evidence  in  this  case,  the  pain  and  anguish  which 
he  has  suffered  or  will  suffer  in  consequence  of  said  injury,  if  any, 
shown  by  the  evidence  in  this  case,  and  any  and  all  damages  to  his 
person,  permanent  or  otherwise,  resulting  from  said  injuries,  as  the 
jury  may  believe,  from  the  evidence  before  them  in  this  case,  he  has 
sustained  or  will  sustain  by  reason  of  such  injuries,  if  any.57 

(f)  I  further  instruct  you  that,  in  estimating  the  compensatory 
damages  in  cases  of  this  character,  all  the  consequences  of  the  in- 
jury, future  as  well  as  past,  are  to  be  taken  into  consideration,  in- 


54— Elliott  v.  Kansas  City,  174 
Mo.    554,    74   S.    W.    617. 

55— Murphy  v.  St.  L.  T.  Co.,  96 
Mo.  App.    272,   70  S.   W.  159   (161). 

"An  objection  urged  to  that 
charge  is  that  it  failed  to  restrict 
the  amount  of  damages  which 
might  be  awarded  to  the  sum  de- 
manded in  the  petition;  but  as 
the  demand  was  for  $5,000,  and  the 
jury  only  awarded  $500,  the  objec- 
tion will  be  passed  over  without 
further   comment." 

56— Ilges  v.  St.  L.  T.  Co.,  102  Mo. 
App.   529,   77  S.  W.   93   (95). 

"The  plaintiff  objected  to  the 
above  instruction,  and  .counsel  in- 
sists here  that  it  gave  the  jury  a 
boundless  commission  to  assess 
damages.  The  word  'think'  has 
various  meanings.  Its  meaning 
must  be  ascertained  from  the  con- 
nection in  which  it  is  used  in  a 
sentence.  Some  of  its  meanings, 
according  to  Webster,  are  to  form 
an  opinion  by  reasoning;  to  judge; 
to  conclude;  to  believe.'  The  jury, 
by    the    instruction,    were   required 


to  think  of  the  damages  under  the 
evidence,  not  outside  of  it,  and  to 
think  out  (judge)  the  damages 
from  the  evidence.  We  see  no  sub- 
stantial objection  to  the  wording 
of  the  instruction,  and  we  think 
that  it  was  as  well  understood 
by  the  jury  as  if  the  word  'be- 
lieve' or  'find'  had  been  used  in- 
stead   of    the    word    think.'  " 

57— W.  Chi.  St.  R.  R.  Co.  v. 
Schwartz,    93    111.    App.    387. 

"We  think  that  the  proof  show- 
ing that  the  plaintiff  lost  both  his 
legs  is  a  sufficient  basis  for  the 
allowance  of  damages  for  future 
suffering.  Common  sense  and  or- 
dinary human  experience  would 
lead  any  reasonable  person  to  the 
conclusion  that  such  an  injury 
would  cause  future  physical  suf- 
fering, C.  B.  &  Q.  R.  R.  Co.  v. 
Warner,  108  111.  538;  N.  C.  St.  R.  R. 
Co.  v.  Shreve,  70  111.  App.,  666-9, 
aff'd  171  111.  438,  49  N.  E.  534.  We 
do  not  think  the  instruction  can 
be  said  to  allow  the  jury  to  con- 
sider mental  suffering  as  distinct 
from  bodily  suffering." 


620  FORMS   OF   INSTRUCTIONS.  [§899. 

eluding  the  bodily  pain  which  is  shown  by  the  proofs  to  be  reasonably 
certain  to  have  naturally  resulted  from  the  injury. 

(g)  The  injured  party,  when  entitled  to  recover,  should  be  award- 
ed compensation  for  all  the  injuries,  past  and  prospective.  These  are 
intended  to  include  and  embrace  indemnity  for  actual  nursing  and 
medical  expenses  which  were  paid  by  the  plaintiff.  The  elements  of 
damages  which  the  jury  are  entitled  to  take  into  account  consist  of 
all  the  effects  of  the  injury  complained  of,  consisting  of  personal  in- 
convenience, the  sickness  which  the  plaintiff  has  endured,  all  bodily 
and  mental  suffering,  permanent  annoyance  which  is  liable  to  be 
caused  by  the  deformity  resulting  from  the  injury;  and,  in  consider- 
ing what  would  be  a  just  sum  in  compensation  for  the  suffering  from 
the  injury,  the  jury  are  not  only  at  liberty  to  consider  the  bodily 
pain,  but  the  mental  suffering,  anxiety,  and  suspense,  which  may  be 
treated  as  elements  of  the  injury,  for  which  damages,  by  way  of 
compensation,  should  be  allowed;  and  all  these  last  mentioned  ele- 
ments of  damage  are,  in  their  very  nature,  not  susceptible  of  any 
precise  or  exact  computation.  The  determination  of  the  amount  is 
committed  to  the  judgment  and  good  sense  of  the  jury,  and,  if  you 
find  for  the  plaintiff,  such  sum  should  be  awarded  as  will  fairly  and 
fully  compensate  her  for  all  damages  which  she  has  sustained,  con- 
sisting of  the  elements  referred  to,  and  not  exceeding  in  amount  the 
sum  claimed  in  the  declaration. 

(h)  Then  the  jury  have  a  right  to  find  for  her  in  such  an  amount 
of  damage  as  they  believe,  from  the  evidence,  will  compensate  her 
for  the  personal  injury  she  has  sustained,  and  for  her  loss  of  time  in 
the  transaction  of  her  own  individual  business  and  in  endeavoring  to 
be  cured  of  her  injury,  so  far  as  that  expense  has  been  borne  by  her 
individually,  and  any  such  loss  and  expense  as  has  been  sustained 
and  paid  by  her  or  incurred  by  her  for  all  pain  and  suffering  which 
she  has  already  endured  and  which  she  may  endure  hereafter,  and 
for  any  permanent  injury  that  is  sustained,  if  the  proofs  are  suf- 
ficient to  convince  this  jury  that  the  injury  is  permanent.58 

(i)  The  court  instructs  the  jury  that  if  they  believe  from  the  evi- 
dence that  the  defendant  company  was  guilty  of  the  negligence 
charged  in  the  declaration  and  that  the  plaintiff  has  suffered  injury 
by  reason  thereof,  then  in  estimating  the  damage  of  the  plaintiff  in 
this  case,  you  are  to  take  into  consideration  the  physical  pain  and 
suffering  of  the  plaintiff,  if  any  has  been  shown  by  the  evidence,  the 
amount  expended  in  her  efforts  to  be  cured,  if  any  has  been  shown, 
the  impairment  of  her  ability  to  earn  money  in  the  future,  if  any  has 
been  shown,  and  the  present  physical  condition  of  the  plaintiff,  as 
shown  by  the  evidence,  as  well  as  the  probability  or  improbability  of 
her  future  recovery,  as  you  may  believe  from  the  evidence,  and  from 
the  evidence  of  these  several  matters  and  from  your  own  knowledge 

58— Gilson  v.  City  of  Cadillac,  134  Mich.  182,  95  N.  W.  1084. 


900.] 


DAMAGES— PERSONAL  INJURY. 


621 


of  the  common  affairs  of  life  arrive  at  a  fair  estimate  of  her  damages, 
if  any.59 

§  900.  Bodily  Injuries  and  Disabilities — Suffering  and  Distress  of 
Mind — What  Is  Allowable,  (a)  If  now  you  shall  find  for  plaintiff 
you  will  allow  him  for  what  he  has  paid  or  become  liable  for  as  medi- 
cal bills  on  account  of  his  injuries,  not  to  exceed  a.  reasonable  sum, 
and  what  you  find  and  believe  to  be  just  pecuniary  compensation  for 
the  bodily  injuries  and  disabilities  and  suffering  and  distress  of  mind 
caused  by  the  fall  in  alighting  from  the  train.60 

(b)  In  estimating  such  damages  you  will  take  into  consideration 
the  physical  and  mental  injuries,  if  any,  you  may  believe  from  the 
evidence  she  has  undergone  by  reason  of  such  negligence,  if  any; 
and  if  her  ability  to  labor  and  earn  money  as  a  seamstress  and  to  at- 
tend to  her  domestic  duties  has  been  impaired  by  reason  of  such  in- 
juries, if  any,  and  by  reason  thereof  she  has  lost  time,  and  you  fikd 
that  the  defendant  is  liable  under  this  section  of  the  charge,  Cien 
you  will  award  plaintiff  the  reasonable  value  of  the  time  so  lost,  ard 
also  the  reasonable  and  necessary  medical  bills  paid  or  incurred  by 
reason  of  her  injuries,  if  any;  and  if  you  believe  from  the  evic.ence 
that  the  injuries  to  plaintiff's  wife,  so  received,  if  any,  are  perma- 
nent or  if  she  has  not  recovered  .therefrom,  then  you  will  take  this 
fact  into  consideration  in  estimating  the  damages  if  any,  you  find.61 


59— Chi.  U.  T.  Co.  v.  Miller,  212 
111.  49  (55),  72  N.  E.  25. 

"It  is  urged  that  this  instruction 
is  erroneous  in  that  it  fails  to  con- 
fine the  jury  to  such  damages  as 
resulted  from  the  accident.  So  far 
as  this  criticism  is  concerned,  we 
think  it  is  obviated  by  instructions 
18,  14  and  16  given  on  the  part  of 
the  defendant,  within  the  rule  fol- 
lowed by  this  court  in  Wenona 
Coal  Co.  v.  Holmquist,  152  111.  581, 
38  N.  E.  946,  and  Beidler  v.  King, 
209  Id.  302,  70  N.  E.  763.  By  each 
of  these  three  instructions  last 
mentioned,  the  jury  were  advised 
that  she  could  only  recover  such 
damages  as  were  the  result  of  the 
accident  complained  of,  and  these 
instructions,  when  read  in  connec- 
tion with  this  instruction,  clearly 
advised  the  jury  as  to  the  law  in 
that  regard." 

60— St.  L.  S.  W.  Ry.  Co.  of  Tex. 
v.  Highnote,  —  Tex.  — ,  84  S.  W. 
365    (368). 

"The  contention  is  that  it  allows 
a  double  recovery  for  bodily  in- 
juries and  in  addition  for  disabil- 
ities. We  do  not  think  this  inter- 
pretation can  be  placed  upon  t\e 
charge.  The  terms  'injuries'  and 
'disabilities'  evidently  refer  to  the 
same  thing,  and  one  recovery  for 


this  only  was  warranted.  It  is  al- 
so contended  that  compensation  is 
permissible  under  the  charge  for 
suffering  of  the  mind  and  also  for 
distress  of  mind.  The  term  'suf- 
fering,' as  used  in  the  charge,  was 
evidently  intended  to  refer  to 
physical  pain,  but  if  construed  to 
refer  to  mental  distress  the  charge 
only  permits  of  one  recovery  for 
that  element  of  damage.  We  are 
of  the  opinion  there  is  no  error  in 
the  charge." 

61— Red  River,  T.  &  S.  Ry.  Co.  v. 
Reynolds,  —  Tex.  Civ.  App.  — ,  85 
S.  W.  1169. 

"The  next  preceding  paragraph 
of  the  charge,  after  submitting 
affirmatively  the  issue  of  negli- 
gence as  the  proximate  cause  of  in- 
jury to  appellee's  wife  concluded 
as  follows:  'Then  you  will  find 
for  the  plaintiff  such  damages  as 
you  may  believe  from  the  evidence 
will  be  a  reasonable  and  just  com- 
pensation for  the  injuries  so  re- 
ceived and  resulting  by  reason  of 
such  negligence,  if  any.'  Thus  in 
the  first  instance,  and  in  a  general 
way,  the  court  correctly  instructed 
the  jury  to  allow  appellee  reason- 
able and  just  compensation  for  the 
injuries  received  by  his  wife;  re- 
ferring  them    to    the    evidence    for 


622 


FORMS  OF  INSTRUCTIONS. 


[§  900. 


(c)  The  jury  may  find  the  damages  in  such  sum  as  will  com- 
pensate the  plaintiff  for  the  injury  received,  and  in  so  doing  may  take 
into  consideration  his  bodily  and  mental  pain  and  suffering,  both 
taken  together,  but  not  his  mental  pain  alone,  the  inconvenience  to 
him  of  being  deprived  of  his  leg,  and  loss  of  time  and  inconvenience 
in  attending  to  his  business  generally,  from  the  time  of  the  injury  to 
the  present  time,  such  as  the  plaintiff  may  have  proved,  and  the  jury 
are  satisfied,  to  a  reasonable  certainty,  inevitably  and  necessarily  re- 
sulted from  the  original  injury.62 

(d)  The  court  instructs  you,  gentlemen  of  the  jury,  that  if  you 
find  for  plaintiff  you  should,  in  estimating  his  damages,  consider  his 
physical  condition  before  and  since  receiving  the  injuries  for  which 
he  sues,  as  shown  by  the  evidence,  the  physical  pain  and  mental 
anguish,  if  any,  suffered  by  him  on  account  of  his  injuries  at  the 
time  of  and  since  such  injuries,  as  shown  by  the  evidence;  and  for 
such  mental  anguish  and  physical  pain  and  injury,  if  any,  as  you 
may,  from  the  evidence,  find  it  is  reasonably  certain  he  will  suffer  in 
the  future  therefrom,  and  you  will  find  a  verdict  for  such  sum  as,  in 
your  judgment,  will,  under  the  evidence,  reasonably  compensate  him 
for  such  injuries.63 


the  character  of  the  injuries,  and 
the  extent  of  the  damages.  This 
was  followed  by  the  paragraph 
complained  of,  and  quoted  aboye, 
which  merely  stated  in  detail  what 
the  jury  would  take  into  consider- 
ation, if  warranted  by  the  evi- 
dence, in  estimating  the  damages, 
enumerating  first  the  items  of  loss 
which  the  evidence  tended  to  show 
had  already  been  sustained,  and 
then  directing  their  attention  to 
the  issue,  raised  both  by  the  plead- 
ings and  the  evidence,  of  loss 
thereafter  to  result  from  existing 
or  permanent  injuries.  We  fail  to 
see  how  any  sensible  jury  could 
reasonably  have  been  misled  by 
this  charge  into  giving  double 
damages.  Read  in  connection  with 
the  next  preceding  paragraph,  it 
submitted  the  issue  of  damages  in 
a  logical  and  reasonably  perspic- 
uous manner.  The  last  clause,  so 
much  objected  to,  might  have  gone 
a  little  farther,  and  explained  more 
fully  how  the  damages  for  perma- 
nent injuries  were  to  be  measured; 
but  as  no  further  instruction  on 
that  subject  was  requested,  and  as 
the  court  had  already  stated  the 
rule  in  general  terms,  we  must 
overrule  the  contention  of  appel- 
lant that  this  clause  of  the  charge 
gave  the  jury  a  'roving  commis- 
sion.' The  clause,  'or  if  she  has 
not  recovered  therefrom'  merely 
suggested  in  another  form  the  idea 


of  future  loss  for  which  compensa- 
tion was  to  be  made  if  warranted 
by  the  evidence." 

62— Kennon  v.  Gilmer,  131  U.  S. 
22   (26),   9  S.  Ct.  696. 

"The  defendants  objected  to  this 
instruction,  that  the  jury  were  per- 
mitted to  assess  damages  for  men- 
tal suffering.  But  the  instruction 
given  only  authorized  them  in 
assessing  damages  for  the  injury 
caused  by  the  defendants  to  the 
plaintiff,  to  take  into  considera- 
tion 'his  bodily  and  mental  pain 
and  suffering,  both  taken  togeth- 
er,' ('but  not  his  mental  pain 
alone')  and  such  as  'inevitably  and 
necessarily  resulted  from  the  origi- 
nal injury.'  The  action  is  for  an 
injury  to  the  person  of  an  intelli- 
gent being;  and  when  the  injury, 
whether  caused  by  willfulness  or 
by  negligence,  produces  mental  as 
well  as  bodily  anguish  and  suffer- 
ing, independently  of  any  extrane- 
ous consideration  or  cause,  it  is  im- 
possible to  exclude  the  mental  suf- 
fering in  estimating  the  extent  of 
the  personal  injury  for  which  com- 
pensation is  to  be  awarded.  The 
instruction  was  in  accord  with  the 
opinions  of  this  court  in  similar 
cases." 

63— Maguire  v.  St.  L.  T.  Co.,  103 
Mo.   App.   459,  78   S.  W.   838. 

"Mental  anguish  that  is  incident 
to  bodily  pain  caused  by  an  injury 
Is    a   proper   element    of    damages, 


§901.]  DAMAGES— PERSONAL  INJURY.  623 

(e)  If  the  jury  finds  the  plaintiff  is  entitled  to  recover,  they  are 
authorized  to  give  him  damages,  up  to  the  amount  claimed  in  the 
complaint,  for  all  injuries  he  has  received  that  they  may  find  he  has 
received;  also  for  all  pain  and  suffering,  mental  or  physical,  that 
they  may  find  he  has  experienced  from  such  injuries.  And  if  he  is 
permanently  injured  they  may  take  that  into  consideration,  and  al- 
so all  expenses  he  may  have  been  at  or  is  liable  for  because  of  such 
injuries  as  he  may  have  received  from  the  negligence  of  the  de- 
fendant.64 

§  901.  Damages  For  Future  Pain  and  Suffering — Jury  Should  Not 
Speculate,  but  Should  Base  Such  Damages  On  the  Evidence — Left 
Largely  to  Sound  Discretion  When  Guided  by  Testimony,  (a)  If, 
under  the  evidence  and  the  rules  before  given,  you  find  the  plaintiff  is 
entitled  to  recover,  she  should  be  allowed  such  sum,  not  exceeding 
the  amount  claimed  as  will  compensate  her  for  the  pain  and  incon- 
venience of  body  and  anguish  of  mind  which  she  has  suffered  on  ac- 
count of  the  injury,  if  any,  sustained  by  her;  and,  if  the  injury  be 
permanent,  or  if  the  plaintiff  still  suffers  therefrom,  and  it  is  reason- 
ably certain  she  will  in  the  future  so  suffer,  she  should  be  allowed 
such  sum  as  will  compensate  her  for  whatever  pain  and  inconvenience 
of  body  and  anguish  of  mind,  if  any,  which  is  reasonably  cei'tain 
from  the  evidence  that  she  will  be  subjected  to  in  the  future.  You 
should  indulge  in  no  speculation,  and  the  amount  of  damages,  if  any 
are  allowed,  for  the  pain  and  inconvenience  of  body  and  the  anguish 
of  mind  must  be  based  upon  the  evidence,  with  respect  to  what,  if 
an3%  suffering  the  plaintiff  has  endured  or  will  endure.  The  amount 
to  be  allowed  as  such  damages  is  not  a  matter  to  be  shown  in  evi- 
dence, but  is  left  very  largely  to  your  sound  discretion,  when  guided 
by  the  testimony.  If  you  find  in  favor  of  the  plaintiff,  then  she 
should  be  allowed  such  sum  as  the  evidence  shows  she  has  expended 
or  become  liable  for  her  medical  attendance,  on  account  of  the  in- 
juries, if  any,  she  received  by  the  accident  complained  of.65 

(b)  If  the  jury,  under  the  evidence  and  instructions  of  the  court, 
find  for  the  plaintiff,  they  should  assess  the  plaintiff's  damages,  and  in 
assessing  his  damages  the  plaintiff  will  be  entitled  to  recover  for  any 

and  may  be  inferred  from  the  jury,  is  a  subject  of  damages, 
nature  of  the  injury,  Seawell  v.  Trigg  v.  Railroad.  74  Mo.  147,  41 
K.  C.  Ft.  S.  M.  R.  Co.,  119  Mo.  Am.  Rep.  305.  And  when  the  injury 
222,  24  S.  W.  1002;  Brown  v.  H.  is  permanent,  and  future  physical 
St.  J.  R.  Co.,  99  Mo.  loc.  cit.  3l9,  and  mental  pain  are  reasonably 
12  S.  W.  655.  Mental  anguish  can  certain,  and  are  the  necessary  and 
be  recovered  for  coextensively  with  natural  result  of  the  act  corn- 
physical  injury,  and,  so  long  as  the  plained  of,  they  are  proper  ele- 
injury  continues  to  give  intense  ments  to  be  taken  into  considera- 
pnin,  mental  anguish  will  be  in-  tion  in  estimating:  the  damages, 
ferred  to  coexist,  Union  P.  R.  Co.  State  v.  Goode,  24  Mo.  361." 
v.  Jones,  49  Fed.  343,  1  C.  C.  A.  282;  64— Kennedv  v.  So.  Ry.  Co.,  59  S. 
Ball  v.  Mabry,  91  Ga.  781,  18  S.  E.  C.  535,  38  S.  E.  169. 
64.  In  this  state  the  general  rule  65 — Rice  v.  Council  Bluffs,  124 
is  that  pain  of  body  and  mind,  Iowa  639,  100  N.  W.  506  (507). 
when   connected   with   physical   in- 


624  FORMS  OF  INSTRUCTIONS.  [§902. 

pain  and  anguish  which  he  has  suffered,  or  will  hereafter  suffer,  in 
consequence  of  said  injury,  for  any  and  all  damages  to  his  person, 
permanent  or  otherwise,  occasioned  by  said  injury;  and  generally,  the 
plaintiff  will,  if  the  jury  find  the  defendant  guilty,  be  entitled  to  re- 
cover all  damages  alleged  in  the  declaration,  which  they  may  be- 
lieve from  the  evidence  he  has  sustained  by  reason  of  said  injury.66 

§  902.  Loss  of  Time  and  Expenditures  and  Probable  Amount  of 
Pain  Plaintiff  will  Suffer  in  the  Future— Past  Suffering,  (a)  If 
you  find  for  the  plaintiff  in  this  action  and  if  you  find  by  a  fair 
preponderance  of  the  proofs  that  he  will  suffer  pain  in  the  future 
and  will  be  subject  to  loss  of  time  and  expenditures  because  of 
such  injuries,  then  you  are  instructed  that  you  can,  in  estimating 
his  damages,  take  into  consideration  the  probable  amount  of  pain 
he  will  suffer,  the  probable  loss  of  time  and  the  probable  amount  of 
expenditures  he  will  be  put  to  in  the  future  on  account  of  such 
injuries,  all  of  which  may  be  in  addition  to  the  other  items,  if  any, 
that  may  enter  into  your  calculations,  but  in  no  event  shall  the 
amount  of  your  verdict  exceed  the  sum  sued  for  by  the  plaintiff, 
to-wit,  $ 67 

(b)  If  you  believe,  from  the  evidence,  that  the  plaintiff  has  sus- 
tained injuries  on  account  of  the  negligence  of  the  defendant  as 
set  forth  and  claimed  in  his  declaration,  then  the  measure  of  his 
recovery  is  such  damages  as  will  compensate  him  for  such  injuries. 
The  elements  which  may  enter  into  such  damages  are  the  follow- 
ing: First,  such  sum  as  will  compensate  him  for  the  expenses, 
if  any,  which  he  has  paid  in  his  efforts  to  effect  his  cure,  and  for 
his  care  and  nursing  during  the  period  that  he  was  disabled  by 
the  injuries,  if  the  evidence  shows  that  he  was  so  disabled;  second, 
the  value  of  his  time  as  shown  by  the  evidence  during  the  period 
he  was  so  disabled;  third,  if  such  injuries  have  impaired  his  power 
to  earn  money  in  the  future,  then  such  sum  as  will  compensate 
him  for  such  loss  of  power;  fourth,  such  reasonable  sum  as  you 
may  award  him  on  account  of  the  pain  and  anguish,  if  any  be 
shown,  that  he  has  suffered  by  reason  of  such  injuries.  The  first 
and  second  of  these  elements  are  the  subjects  of  direct  proof,  and 
are  to  be  determined  by  you  on  the  evidence.  The  third  and  fourth 
of  these  elements  are  from  necessity  left  to  your  sound  discretion, 
but  your  conclusion  should  be  based  upon  all  the  evidence,  facts 
and  circumstances  in  evidence  before  you.68 

66— Chi.    C.    Ry.    Co.    v.    Allen,    68  "This    instruction,    we    think,    is 

111.   App.   472.  within     the     rule     heretofore     an- 

"The    most    careless    reading    of  nounced  by  this  court.     See  Galla- 

the  instruction  could  never  extend  more   v.   Olympia,   34  Wash.   379,  75 

its    meaning    to    anything    beyond  Pac.  978;   Webster  v.   Seattle,  R.  & 

what  the  jury  might  'believe  from  S.  Ry.  Co.,  42  Wash.  364,  85  Pac.  2." 

the     evidence'     to     be     the     conse-  68—1.    C.    R.    R.    Co.    v.    Cole,   165 

quences  of  the  alleged  negligence."  111.  334   (337),  aff'g  62  111.  App.  480, 

67— Cole  v.    Seattle,   R    &   S.   Ry.  41  N.   E.  275. 
Co.,  42  Wash.  462,  85  Pac.  3. 


§  903.]  DAMAGES— PERSONAL  INJURY.  625 

(c)  The  court  instructs  the  jury  that,  if  they  find  the  plaintiff 
is  entitled  to  recover,  they  may  take  into  consideration,  in  making 
up  their  verdict,  the  probable  amount  of  pain,  the  probable  loss  of 
time  and  the  probable  amount  of  expense  she  will  suffer  and  be 
subjected  to  in  the  future  on  account  of  her  injuries.69 

§  903.  Damages  for  Pain  and  Suffering,  Mental  or  Physical — 
Permanency  of  Injury — Physician's  Fees,  (a)  If  the  jury  find  that 
plaintiff  is  entitled  to  a  verdict,  the  question  of  amount  of  the 
verdict  will  arise.  If  entitled  to  a  verdict,  they  may  assess  such 
reasonable  damages  as  they  deem  right  for  compensation  for  mental 
anguish  and  pain  suffered  by  her,  if  any,  in  consequence  of  the 
injury  received,  and  for  compensation  for  the  injury  received,  if 
any,  and  also  for  amount  of  physician's  fees  reasonably  paid  by 
her.70 

(b)  The  court  instructs  the  jury  that,  if  you  find  for  the  plain- 
tiff in  this  case,  then  the  plaintiff  is  entitled  to  recover  such  actual 
damages  as  the  evidence  may  show  she  has  sustained  as  the  direct 
or  approximate  result  of  such  injury;  taking  into  consideration 
her  pain  and  suffering,  so  far  as  the  same  may  appear  from  the 
evidence;  and  if  the  jury  find,  from  the  evidence,  that  the  said 
injury  is  permanent  and  incurable,  they  should  take  this  into  con- 
sideration in   assessing  the  plaintiff's  damages.71 

(c)  The  jury  are  further  instructed  that  if,  under  the  evidence 
and  instructions  of  the  court,  they  find  the  defendant  guilty,  then 
in  estimating  the  plaintiff's  damages,  if  any,  they  have  a  right  to 
take  into  consideration  the  personal  injuries  inflicted  upon  the  plain- 
tiff, if  any;  the  pain  and  suffering  undergone  by  him  in  consequence 
of  his  injury,  if  any  are  proved ;  and  also  any  permanent  injuries 
sustained  by  him,  if  the  jury  believe  from  the  evidence  that  the 
plaintiff  has  sustained  such  permanent  injuries  from  the  wrongful 
acts  complained  of.72 

(d)  If  the  jury  find  the  issues  for  the  plaintiff,  then  in  determin- 
ing the  amount  of  damages  which  the  plaintiff  is  entitled  to  recover 
in  this  case   (if  the  jury  find,  from  the  evidence,  under  the  instruc- 

69 — Gallamore  v.  Olympia,  supra,  it  has  never  been  supposed,  and  is 
70 — Ala.  G.  S.  R.  Co.  v.  Siniard,  not  the  law,  that  to  recover  in 
123  Ala.  557,  26  So.  6S9  (691).  such  case,  the  plaintiff  must  show 
"Of  course  the  plaintiff,  if  en-  that  each  of  the  trainmen  was 
titled  to  recover  at  all,  was  entitled  negligent,  and  that  the  negligence 
to  recover  the  amount  of  fees  she  of  each  combined  with  the  negli- 
had  reasonably  paid  to  physicians  gence  of  the  others  to  produce  the 
in  treating  her;  and  if  this  charge  result  complained  of.  This  plain- 
means  other  than  this,  in  the  part  tiff  fully  discharged  the  burden 
of  it  which  is  objected  to,  we  con-  that  rested  upon  her  in  this  con- 
fess our  inability  to  see  it.  The  nection  when  she  showed  that  she 
complaint  counts  generally  upon  was  injured  by  the  untimely  and 
the  negliarence  of  plaintiff's  train-  sudden  starting  of  the  train." 
men.  This  is  the  usual  and  quite  71— N.  C.  St.  R.  R.  fo.  v.  Shreve, 
sufficient  averment  when  recovery  171  111.  438  (441),  aff'g  70  111.  App. 
is    sought   bv    a    passenger   for   in-  666,  49  N.  E.   534. 

juries  "sustained    through    the    im-  72— Penn.     Co.     v.     Reidy,    99    111. 

proper  handling  of  the   train;   and  App.  477. 
40 


626  FORMS  OF  INSTRUCTIONS.  [§904. 

tions  of  the  court,  he  is  entitled  to  recover  any  damages),  the  jury 
have  a  right  to  and  should  take  into  consideration  all  the  facts  and 
circumstances  in  evidence  before  them;  and  they  may  consider  the 
nature  and  extent  of  the  plaintiff's  injuries,  if  any,  testified  about 
by  the  witnesses  in  this  case,  and  herein  complained  of;  his  bodily 
pain  and  suffering,  if  any  is  shown  by  the  evidence,  resulting  from 
such  injuries,  permanent  disability,  if  any,  is  shown  by  the  evidence, 
caused  by  said  injuries;  the  money  necessarily  paid,  if  any,  by  the 
plaintiff  in  and  about  endeavoring  to  be  healed  or  cured  of  said 
injuries ;  and  any  future  bodily  pain  or  suffering,  or  future  disability 
to  labor  or  transact  business,  if  any,  that  the  jury  may  believe,  from 
the  evidence,  the  plaintiff  will  sustain  as  the  necessary  and  direct 
result  of  the  injuries  complained  of.73 

(e)  The  court  instructs  you  that  if,  under  the  evidence  and 
instructions  of  the  court^  the  jury  find  the  defendant  guilty  as 
charged  in  the  plaintiff's  declaration,  then  in  estimating  the  plaint- 
iff's damages,  it  will  be  proper  for  the  jury  to  consider  the  effect 
of  the  injury  in  the  future  upon  the  plaintiff,  the  use  of  his  hand, 
and  his  ability  to  attend  to  his  affairs  generally,  if  the  evidence 
shows  that  these  will  be  affected  in  the  future;  and  also  the  bodily 
pain  and  suffering  he  sustained,  if  any,  and  all  damages,  present 
and  future,  if  any,  which  from  the  evidence  appear  to  be  the  neces- 
sary and  direct  result  of  the  injury  complained  of.74 

§  904.  Injury  in  Elevator— Prospect  of  Ultimate  Recovery,  Pain 
and  Suffering,  etc.,  to  Be  Considered  in  Assessing  Damages.     The 

73— W.   C.    St.    R.    R.   Co.   v.    Ma-  the    court    that    the    plaintiff    was 

day,   88   111.    App.   49,    aff'd   1S8   111.  entitled   to   recover,   then   in   fixing 

308.  58  N.  E.  933.  the   damages  the  jury  should  take 

"The  objections,"  said  the  court,  into  consideration  all  the  circum- 
"to  this  instruction  urged  by  at-  stances  as  disclosed  by  the  evi- 
torney  for  appellant  are  not  well  dence,  'such  as  the  circumstances 
founded.  It  does  not  follow  from  attending  the  injury.'  Under  this 
the  language  here  employed  that  last  clause  of  the  instruction, 
the  jury  should,  in  determining  the  counsel  for  the  appellant  urged 
amount  of  damages,  if  any,  consid-  that  the  jury  might  give  punitive 
er  any  testimony  which  does  not  damages.  There  was  no  evidence 
bear  directly  on  that  question.  The  introduced  on  the  trial  which 
fifth  instruction  given  in  the  case  would  authorize  the  jury  to  give 
of  II.  &  St.  J.  R.  R.  Co.  v.  Mar-  punitive  damages,  and  by  the 
tin.  111  111.  219-227,  contains  all  the  terms  of  the  instruction  they  were 
fixtures  which  are  pointed  out  by  limited  and  confined  to  the  evi- 
the  attorney  for  appellant  in  his  dence  in  making  a  verdict.  Indeed, 
objections  to  the  instruction  in  so  far  as  appears  from  the  record, 
tbp  easo  at  bar  of  which  com-  there  was  no  pretense  on  the  part 
plaint  is  made.  The  Supreme  Court  of  plaintiff  that  he  was  entitled  to 
held  that  the  griviner  of  the  instruc-  recover  punitive  damages.  As  no 
tion  mentioned  was  not  error.  The  such  claim  was  made,  and  as  no 
second  instruction  piven  in  Penn.  evidence  was  offered  to  establish 
Co.  v.  Frana,  112  111.  398,  is  not  a  claim  of  that  character,  the  in- 
quoted  at  length  in  the  report  of  struction  could  not  have  misled  the 
that  case.  P,ut  the  Supreme  Court  jury.'  That  comment  by  the  Su- 
in  speaking  of  it  says  this,  'The  preme  Court  applies  with  equal 
Recond  Instruction,  to  which  objec-  force  to  the  case  at  bar." 
tion  is  made,  declared  in  substance  74— W.  U.  Tel.  Co.  v.  Woods,  88 
that  If  the  jury  believed  from  the  111.  App.  375  (379). 
evidence  under  the  instructions  of 


§  905.]  DAMAGES— PERSONAL  INJURY.  627 

court  further  instructs  the  jury  that,  if  they  believe  from  the  evidence 
that  the  plaintiff  was  injured  while  descending  from  the  fourth  to  the 

second  floor  of   the   building  occupied   by   the  firm  of    

at  the  time  of  the   accident  in  one  of  the  elevators  then  in 

use  by  said  firm,  and  in  the  manner  and  form  as  charged  by  the 
declaration,  or  either  of  the  counts  thereof,  and  that,  under  the 
evidence  and  the  law  as  given  to  you  by  the  court,  he  is  entitled  to 
recover  at  your  hands,  then  in  estimating  the  plaintiff's  damages, 
the  jury  may  take  into  consideration  the  expense  reasonably  incurred 
by  him  in  endeavoring  to  he  cured  of  such  injuries,  his  pecuniary  loss, 
if  any,  shown  by  the  evidence,  his  present  physical  condition  and  the 
disability  to  carry  on  the  employment  or  business  in  which  he  was 
engaged  at  the  time  of  said  accident,  and  the  prospect  of  his  ulti- 
mate recovery,  including  such  damages  for  pain  and  suffering  en- 
dured by  him  while  recovering  from  such  injuries  as  the  jury  may 
believe  from  the  evidence  he  is  entitled  to  from  all  the  facts  and 
circumstances  in  the  case.75 

§  905.  Elements  That  Jury  May  Consider — Pain  and  Suffering — 
Enlightened  Consciences  of  Honest  Jurors — Their  Sense  and  Judg- 
ment, (a)  In  regard  to  measure  of  damages  for  pain  and  suffering, 
the  law  says  that  is  left  entirely  to  the  enlightened  consciences  of 
honest  jurors.  Whatever  you  believe  he  is  entitled  to,  as  honest 
jurors,  you  may  give  him  for  pain  and  suffering.  If  you  find  that 
the  plaintiff  is  entitled  to  recover,  then  whatever  amount  you  may 
see  proper  to  give  him  for  pain  and  suffering  you  will  add  to 
whatever  amount  he  may  be  entitled  to  for  damages  to  his  property. 
Whatever  amount  he  is  entitled  to  for  pain  and  suffering,  and 
whatever  amount  he  would  be  entitled  to  for  loss  of  time,  and 
whatever  amount  you  may  see  proper  to  give  him  by  reason  of  his 
incapacity  by  reason  of  the  injury  sustained,  after  having  computed 
the  same  by  the  life  tables  and  the  rules  I  have  given  you,  whatever 
amount  he  has  sustained  by  reason  of  damage  to  his  property,  if 
any,  you  find  the  sum  total.76 

(b)  If  you  find  him  entitled  to  recover,  he  should  be  allowed  a 
fair  and  reasonable  compensation  for  his  injuries.  In  estimating 
his  damages,  no  precise  rule  can  be  given  for  the  amount  to  be 
allowed,  as  they  are  not  in  their  nature  susceptible  of  exact  money 
valuation.  You  are  to  use  your  own  sense  and  judgment,  and  be 
guided  by  the  evidence,  in  allowing  him  such  sum  as  will  reasonably 
compensate  him.  In  making  up  this  amount,  you  should  award,  as 
may  appear  from  the  evidence,  the  reasonable  value  of  the  time  lost 
because  of  the  injury,  the  amount  he  has  paid  for  medical  attendance 

The  court  held  that  had  the  suit  the  time  of  the  injury  and  his  ma- 
been    by    an    adull    the    above    in-  jority,  if  any,  could  have  been  re- 
struction  would  have  been  entirely  covered   by  the  parents, 
proper;   to  give  it   in  the  case  of  a  7.r>— Field    v.    French,    SO   111.    App. 
minor  15   years   old    was   error,    for  78  (S6). 

the   reason    that   the   damages    for  76 — City    of    Columbus    v.    Sims, 

loss  of  time  for  the  period  between  94  Ga.  483,  20  S.  E.  33'2. 


628  FORMS  OF  INSTRUCTIONS.  [§906. 

and  nursing,  and  fair  compensation  for  the  bodily  pain  and  suffering 
caused  by  the  said  injury;  and  if  you  further  find  that  plaintiff's 
injuries  are  permanent,  and  will  to  some  extent  disable  him  in  the 
future,  and  cause  him  pain  and  suffering  hereafter,  you  should  also 
allow  him  such  further  sum  as  paid  now  in  advance,  will  reasonably 
compensate  him  for  such  future  disability,  pain  and  suffering  as  the 
evidence  shows  it  is  reasonably  probable  will  result  to  him  in  the 
future  from  such  injuries.77 

(c)  You  are  instructed  that  there  can  be  no  fixed  measure  of  com- 
pensation for  the  pain  and  suffering  of  body  and  mind,  nor  for  the 
loss  of  time  and  care  in  business.78 

§  906.  Damages  for  Impairment  of  Mental  Powers,  Health,  etc. — 
Due  Care.  (a)  You  should  consider  the  nature  and  extent  of  her 
injuries  and  physical  pain  and  suffering,  and  the  mental  injury  and 
anxiety  which  she  has  endured,  and  the  extent  of  impairment,  if  any, 
of  her  physical  or  mental  powers,  or  both,  which  you  believe  from 
the  whole  evidence  to  have  been  brought  upon  her  by  reason  of  such 
injuries.79 

(b)  If  you  believe  from  the  evidence  that,  by  reason  of  the  said 
collision  of  said  passenger  train  with  said  switch  engine,  the  plaintiff 
received  any  of  the  injuries  complained  of  by  him  in  his  petition, 
and  that  by  the  use  of  such  care  by  the  railway  company  or  its 
servants  as  would  have  been  used  by  a  very  prudent,  cautious  and 
competent  person  under  similar  circumstances,  said  collision  would 
not  have  occurred,  you  will  find  for  the  plaintiff  such  sum  of  money 
as  you  may  find  and  believe  from  the  evidence  to  be  a  fair  and 
reasonable  compensation  for  any  physical  and  mental  pain  which, 
from  the  evidence,  you  may  find  that  he  has  suffered  or  may  prob- 
ably hereafter  suffer  by  reason  of  such  injury  or  injuries,  and  for 
any  future  impairment  of  his  health  or  mind,  if,  from  the  evidence, 
you  should  find  and  believe  there  will  be  any  such  future  impairment 
as  the  direct  result  and  consequence  of  such  injury  or  injuries,  and 
for  any  impairment  of  his  capacity  to  labor  and  earn  a  livelihood 
for  himself  and  his  family,  if,  from  the  evidence,  you  should  believe 

77 — Cotant   v.    Boone    S.    Ry.    Co.,  jury,    or    operate    to    the    prejudice 

125  Iowa  46,   99  N.  W.  115  (117).  of  appellant." 

78 — Stowe    v.     La    Conner    T.     &  79 — Pumorlo    v.    City    of    Merrill. 

Trans.  Co.,  39  Wash.  28,  80  Pac.  856  125  Wis.  102,  103  N.  W.  464  (468). 

(858),  81  Pa.  97.  "It  is  complained  it  was  error  to 

"Waiving    the    question    whether  include    any    damages    for    impalr- 

tl<is   statement  of  the  law  is  tech-  ment  of  her  mental  powers.     There 

nlcally  correct  as  applied   to  dam-  was   evidence  that  plaintiff's   soine 

ages    'for   loss  of  time  and   care  in  was    affected,    and    that    this    diffi- 

buslness,'      this      portion      of      the  culty   extended   into   the   neck,    and 

re,     when     coupled     with     the  caused  much  pain  in  the  neck  and 

further     instruction     that,     if     the  head,    and   that   she   suffered   mii"h 

jury  found   for  the  respondent,  thov  from    severe    headaches,    and    that 

should  award  him  such  amount   as  ^he  was  often   afflicted  with   coma, 

would  justly,  fairly,  and  fullv  com-  We  find   the   instruction   was  justi- 

pensate   him    for   the   loss    of   time,  fled   by  the  evidence." 
if  any,   etc.,  could  not  mislead  the 


§907.]  DAMAGES— PERSONAL  INJURY.  629 

that  there  has  been  any  such  impairment  as  a  result  and  consequence 
of  such  injury  or  injuries.80 

§  907.  Impairment  of  Mental  Faculties  and  General  Health.  The 
jury  are  instructed,  that  if  they  find  the  defendanl  guilty,  under  the 
testimony  and  instructions  of  the  court,  then  in  assessing  the  plaint- 
iff's damages,  the  jury  may  take  into  consideration  not  only  the 
bodily  disability  occasioned  by  the  accident,  if  any  is  proved,  but 
also  any  impairment  of  plaintiff's  menial  faculties  and  general 
health,  if  any  such  is  proved,  and  which  the  jury  believe,  from  the 
evidence,  will  affect  or  inrpair  his  future  ability  to  attend  to  his 
ordinary  business  the  same  as  if  the  injury  complained  of  had  not 
occurred.81 

''The  court  instructs  you  that  if,  through  any  negligence  of  the 
carrier  or  its  employes  a  passenger  is  injured  without  any  fault  or 
negligence  on  his  part,  then  such  carrier  becomes  liable  for  all  dam- 
ages that  such  passenger  may  suffer  on  account  of  injuries  so  re- 
ceived or  that  are  directly  and  proximately  traceable  to  such  injuries 
which  would  be  reasonable  compensation  for  the  pain  and  suffering 
arising  to  him  from  such  injuries  as  well  as  for  all  permanent 
injuries  to  him  or  to  any  portion  of  his  body  or  the  permanent  im- 
pairment of  any  of  his  organs  and  for  any  injury  to  his  mental 
faculties  caused  by  such  injuries,  and  in  this  connection  if  you  lind 
for  the  plaintiff  in  this  action  you  may  consider  the  evidence,  if  any, 
relating  to  the  plaintiff's  mental  faculties,  and  if  you  find  that  the 
plaintiff's  mind  or  his  mental  faculties  were  injured  or  permanently 
impaired  by  reason  of  said  injuries,  then  you  may  consider  damages 
therefor,  and  in  estimating  such  damages  you  should  consider  the 
degree  of  probable  permanent  injury  to  plaintiff's  mind  and  to  what 
extent  such  impairment  of  plaintiff's  mental  faculties,  if  any,  les- 
sens plaintiff's  capacity  for  performing  equally  as  remunerative  em- 
ployment as  before  such  injuries;  and  if  you  find  that  his  capacity 
for  obtaining  employment  or  earning  a  livelihood  has  been  lessened 
by  reason  of  such  injuries  to  his  mind  or  to  his  mental  faculties, 
then  you  may  estimate  how  much  less  the  plaintiff  will  probably 
earn  for  the  balance  of  his  life  by  reason  of  such  injuries  and  allow 
the  plaintiff  therefor."82 

80— Cen.   Tex.   &  N.   W.   Ry.    Co.  dent's    mental    vigor    and    ability, 

v.    Luther,    32   Tex.    Civ.    App.    309,  impairing     his     capacity     to     earn 

74  S.   W.   589.  money,  was  caused  by  his  injuries, 

"We  do  not  think  the  jury  could  it  was  certainly  proper  for  the  jury 
have  been  misled  by  the  language  to  consider  such  condition  in  esti- 
of  the  charge  into  giving  double  mating  tin-  damages  to  be  award- 
damages  for  the  same  loss,  and  ed.  There  was  evidence  tending  to 
hence  the  criticism  made  on  the  show  a  deer  a  e  Id  his  .truing 
charge  is  not  tenable."  capacity  by  reason   of  the   la 

81—111.  C.  R.  Co.  v.  Reed,  37  111.  his    former    mental    vigor.      With- 

494;    Morris  v.  C.  B.   &  Q.  R.  Co.,  out  entering  into  a   '1  itailed 

45  la    29.  ment    of    such    evidence,    we    think 

go— Cole   v.    Seattle    R.    &    S.    Ry.  it  sufficient  to   warrant  .the   giving 

Co.,  42  Wash.  462,  85  Pac.  3.  of  this  instruction,  which,  upon  the 

"If  any  decrease  in   the  respon-  facts  shown,  was  not  erroneous." 


630  FORMS  OF  INSTRUCTIONS.  [§908. 

§  908.  Impairment  of  Physical  and  Nervous  System  and  Memory, 
etc.— Horse  and  Cart  Also  Damaged,  (a)  If  you  find  that  plaintiff 
is  entitled  to  a  verdict,  then  the  amount  of  your  verdict,  if  any, 
should  be  such  sum  of  money  as,  in  your  best  judgment,  with  the 
light  of  the  testimony  before  you,  will  be  a  reasonable  pecuniary 
compensation  to  plaintiff  for  all  such  physical  pain,  if  any,  and 
mental  suffering,  if  any,  and  impairment  of  his  nervous  system,  if 
any,  and  impairment  of  his  memory,  if  any,  and  impairment  of  his 
ability  to  earn  money,  if  any,  and  expense,  if  any,  incurred  by 
plaintiff  for  the  reasonable  value  of  such  services  of  a  physician 
as  it  may  have  been  reasonably  necessary  for  him  to  incur  for  the 
treatment  of  the  wound  on  his  head  as  plaintiff  may  have  sus- 
tained as  the  direct  result  of  the  injuries  sustained  by  him  in  falling 
off  of  said  car  on  the day  of ,  190. .  .8:5 

(b)  In  assessing  damages  to  plaintiff,  should  the  jury  decide  that 
he  is  entitled  to  any,  the  jury  should  take  into  consideration  the 
damage  to  his  horse  and  cart,  the  pain  and  suffering  undergone  by 
plaintiff,  his  loss  of  time  and  injuries  that  he  sustained  to  his  physi- 
cal and  nervous  system,  if  any;  and  if  the  jury  find  that  plaintiff  is 
entitled  to  damages  they  should  take  into  consideration  the  per- 
manency of  his  injuries,  if  they  find  from  the  evidence  that  his 
injuries  are  permanent,  and  give  him  such  damages  as  they  may 
believe  from  the  evidence  will  fairly  compensate  him  for  the  in- 
juries sustained,  not  to  exceed  the  sum  of  $15,000.84 

If  you  find  for  the  plaintiff,  you  will  assess  its  damages  at  such 

sum,  not  exceeding  dollars   ($ ),  as  will  reasonably 

compensate  plaintiff  for  the  damage  to  plaintiff's  horse  and  harness, 
and  for  plaintiff's  expenses  for  medical  services,  feed,  care  and  at- 
tention to  said  horse,  and  for  the  loss  to  plaintiff  from  being  deprived 
of  the  use  of  said  horse.  If  you  find  for  the  defendant,  you  will 
simply  so  state  in  your  verdict.85 

§  909.  Damages  Limited  to  Injuries  Alleged  in  Complaint — Fright, 
Mental  Suffering  or  Nervous  Shock  Must  Be  Result  of  Injury  to  Be 

83— Nor.  Tex.  T.  Co.  v.  Yates,  —  entitled    to    compensation    for    im- 

Tex.  Civ.  App  — ,  88  S.  W.  283.  pairment    to    his     nervous    system 

"Appellant's    contention    is    that  and    memory,    independent    of    and 

the    charge    quoted    is    misleading,  in  addition  to  the  compensation  he 

confusing,  and  authorizes  a  double  was    entitled     to    upon    the    other 

recovery,     for    the     same    injuries,  grounds  stated  in  the  charge.    And 

The  alleged  vice  in  the  charge,  ac-  therefore,  there  was  no  error  in  the 

cording    to    appellant's    contention,  court     so      instructing     the     jury, 

arises  from  the  authority  given  to  G.  C.  &  F.  &  S.  Ry.  Co.  v.  Warner, 

the  jury  to  allow  compensation  for  22    Tex.    Civ.    App.    167,    54    S.    W. 

impairment  of  his  nervous  system  1064;     Railway    Co.    v.    Boehm,    57 

and    impairment  of  his  memory  in  Tex.  152;    Railway  Co.  v.   Greenlee. 

addition    to   the    compensation    the  62   Tex.    344;    Railway  Co.   v.   Ran- 

jury  are  authorized  to  allow  appel-  dall,   50  Tex.   261." 

i  other  grounds  stated  in  the  84— Tweikemever  v.  St.  L.  T.  Co.. 

e.      We    do    not    think    appel-  102  Mo.  190,  76  S.  W.  8S2. 

lant's  contention  is  sound.    We  are  85 — Sanitary  Dairy  Co.  v.  Transit 

of  the  opinion  that  appellee,  under  Co..   98  Mo.   App.   20,   71   S.   W.   726 

his  pleadings  and  the  evidence,  was  (727). 


§910.]  DAMAGES— PERSONAL  INJURY.  631 

Recoverable.  The  plaintiff  can  only  recover,  if  at  all,  for  the  in- 
juries described  in  the  complaint,  and  cannot  recover  for  other  or 
different  injuries;  nor  can  he  recover  for  fright  or  mental  suffering 
or  nervous  shock,  unless  they  grow  out  of  and  were  the  result  of 
the  personal  injuries  received,  if  you  find  he  received  any.86 

§  910.  Nervous  Prostration,  Induced  by  Dwelling  Upon  Her  Claim 
Against  Railroad,  Not  to  Be  Considered — Past  and  Present  Pain, 
Mental  or  Physical,  Allowable — Limitation  of  Rule.  If  you  come 
to  that  question,  you  will  give  her  as  damages  so  much  money  as  will 
fully  compensate  her  for  all  loss  of  time  and  money  she  has  or  may 
hereafter  suffer,  and  for  all  the  pain,  both  physical  and  mental, 
which  she  has  or  may  hereafter  endure,  as  the  direct,  natural,  and 
probable  result  of  the  defendants'  fault,  as  the  evidence  discloses 
it  to  you.  If  you  find  that  she  has  nervous  prostration,  induced  by 
dwelling  upon  her  claim  against  the  railroad,  and  on  the  probable 
result  of  her  suit,  you  will  not  consider  it  in  assessing  her  damages. 
In  assessing  her  damages,  you  will  only  consider  the  physical  injury 
she  actually  received,  and  mental  pain  and  suffering  which  resulted 
directly  from  the  injury.  You  will  not  consider  any  fictitious  pain 
and  suffering  due  to  a  disordered  imagination  for  she  can  only  re- 
cover for  actual,  and  not  imaginary,  pain.87 

§  911.  Should  Consider  Age  and  Condition  in  Life — Mortality 
Tables— Sound  Judgment  and  Discretion  of  Jury — Only  Compensa- 
tory Damages,     (a)     She  is   also   entitled  to   compensation  for  all 

86 — Terre     H.     E.      Ry.     Co.     v.  "The    requested    instruction    was, 

Lauer,   21   Ind.   App.   466,   52  .N.   E.  so  far  as  applicable  to  the  evidence 

703   (706).  covered  by  the  instructions  given. 

"The  standard  dictionaries  define  Upon  the  question  of  damages  for 
the  word  'bodily'  to  mean  'per-  future  physical  and  mental  pain, 
taining  to  or  concerning  the  body;  the  jury  were  limited  by  the  in- 
of  or  belonging  to  the  body  or  to  structions  given  to  such  suffering 
the  physical  constitution;  not  men-  as  was  shown  to  be  the  direct, 
tal,  but  corporeal,' — and  the  word  natural,  and  probable  result  of  the 
'personal'  as  pertaining  to  the  defendant's  fault.  When  the  legal 
person  or  bodily  form.  The  ex-  principle  governing  a  case  is  fully 
pression  'great  personal  injury'  has  stated  in  general  terms,  it  is  not 
been  said  to  be  equivalent  to  the  error  of  law  for  the  court  to  re- 
expression  'great  bodily  harm.*  2  fuse  instructions  upon  its  applica- 
Abb.  Law  Diet.  p.  273.  A  personal  tion  to  particular  evidence.  The 
injury  is  an  injury  to  the  person  substance  of  the  requested  charge 
of  an  individual,  as  an  assault  having  been  given,  it  is  no  ground 
is  distinguished  from  an  injury  to  of  exception  that  it  was  not  re- 
one's  property.  2  Rap.  &  L.  Law  peated,  or  that  a  particular  form 
Diet.  p.  955.  If  we  admit,  as  of  expression  was  not  used,  Rublee 
claimed  by  appellant,  that  the  v.  Belmont,  62  N.  H.  365;  Chase  v. 
terms  'personal  injuries'  and  'bod-  Chase,  66  N.  H.  5S8,  592,  29  Atl. 
ily  injuries'  are  not  'necessarily  553.  There  was  evidence  that  the 
equivalent,'  yet  the  jury  could  on-  plaintiff  was  suffering  from  partial 
ly  have  understood  from  above  in-  mental  disability.  If,  as  the  re- 
struction  given  that  the  appellee  suit  of  mental  disability  induced 
was  entitled  to  recover  only  for  by  the  defendant's  fault  the  plain- 
mental  suffering  growing  out  of  tiff  suffered  from  apprehension  of 
the  bodily   injuries   he  received."  insanity,  such  suffering  was  an  ele- 

87— Walker  v.  Boston  &  M.  R.  R.,  ment    of   her   damages." 
71  N.  H.  271,  51  Atl.  918. 


632  FORMS   OP   INSTRUCTIONS.  [§912. 

the  pain  and  suffering  which  she  has  endured  since  the  time  of  the 
accident,  and  that  she  is  likely  to  endure  in  the  future.  In  con- 
sidering this  question  you  have  a  right  to  consider  her  age.  At  the 
time  of  the  injury,  she  was  thirty-six  years  of  age,  and,  in  ac- 
cordance with  the  mortality  tables  of  the  state  of  Michigan,  she  has 
an  expectancy  of  life  of  thirty-one  years  and  upwards.  In  com- 
puting the  amount  which  she  would  earn  during  that  period,  it  is 
your  duty  to  give  her  the  present  worth  or  value  of  what  she  would 
earn. 

(b)  I  might  add  that,  in  computing  the  damages  that  a  person 
is  entitled  to  for  pain  and  suffering,  the  law  has  no  standard  by 
which  to  go.  It  is  left  to  the  sound  judgment  and  discretion  of  the 
jury.  It  is  not  an  arbitrary  power  left  to  the  jury,  to  be  exercised 
arbitrarily.  You  have  no  right  to  award  anything  in  the  nature  of 
punishment.  You  must  try  and  make  the  person  injured  through 
the  negligence  of  the  defendant  whole,  so  far  as  money  considera- 
tion can  do  so,  but  you  should  give  nothing  further  than  compen- 
sation.88 

(c)  You  may  consider  the  age  of  the  plaintiff  and  his  reasonable 
expectation  of  life,  Avhich  is  shown  by  the  evidence  to  be  36  years. 
Also  his  habits  of  industry  and  temperance.  You  should  also  con- 
sider the  contingencies  of  a  much  shorter  life.  The  plaintiff  may 
not  live  to  the  full  period  of  expectancy.89 

(d)  If  you  find  for  the  plaintiff,  you  will,  in  assessing  her  dam- 
ages, take  into  consideration  her  age  and  condition  in  life,  the 
injury  sustained  by  her,  the  physical  pain,  mental  anguish,  and  the 
impairment  of  her  capacity  and  ability  to  earn  a  livelihood,  if  any, 
suffered  by  her  because  of  said  injury,  and  such  damages,  if  any, 
of  the  nature  above  specified,  as  you  believe  from  the  evidence  she 
will  sustain,  in  the  future,  and  the  direct  effect  of  said  injury,  and 
assess  the  same  in  such  amount  as,  under  all  the  facts  and  circum- 
stances shown  in  evidence,  will  be  just  and  reasonable  compensation 
to  the  plaintiff,  not  exceeding  the  sum  of  90 

§  912.  Shortening  of  Life  Not  an  Element  of  Damage,  but  May 
Be  Considered  In  Determining  Extent  of  Injury,  (a)  If  you  find  for 
the  plaintiff  and  award  him  damages,  in  fixing  the  amount  of  same 
you  cannoj  allow  him  anything  for  loss  or  shortening  of  life  itself; 
but,  if  you  believe  from  the  evidence  that  shortening  of  life  may 
be  the  result  of  the  injury,  this  may  be  considered  in  determining 
the  extenl  of  the  injury  only,  and  the  consequent  disability  to  make 
a  living  and  the  mental  and  bodily  suffering  which  may  result.91 

88— Beattie   v.   Detroit,   137   Mich.  89— Kinney  v.   Folkerts,   84  Mich. 

319.   100   N.   W.  574   (577).  616,  48  N.  W.  283.     The  injured  was 

"Takinpr   the   charge   as  a  whole,  at  the  time  of  the  accident  29  years 

we   do    not    think    the    jurors    were  of  ape. 

misled.     See    Bailey  v.    Centerville,  90— Heinzle   v.    Met.    St.    Ry.    Co., 

108   Iowa   20.   78   N.   W.    831.     As  to  182  Mo.  528,  81  S.  W.  848  (853). 

the  use  of  the  mortality  table,  see  91— Muncie   Pulp    Co.   v.    Hacker, 

Nelson   v.   L..   S.   &  M.   R.   Railway  —  ind.  —    76  N    E    775 

Co.,  104  Mich.  582,  62  N.  W.  993."  "if    this    instruction    authorized 


§912.] 


DAMAGES— PERSONAL  INJURY. 


633 


(b)  If  you  find  for  the  plaintiff,  in  estimating  the  damages  which 
she  may  recover  the  court  instructs  you  that  she  is  not  entitled  to 
recover  anything  whatever  for  shortening  her  life,  but  you  may 
consider  that  fact,  if  you  find  it  to  be  a  fact,  in  determining  the 
extent  of  her  injury.92 


damages  for  the  shortening  of  life, 
it  was  erroneous,  Richmond  G. 
Co.  v.  Baker,  146  Ind.  600,  45  N.  E. 
1049,  36  L.  R.  A.  683.  But  in  that 
case  the  doctrine  seems  to  be  ap- 
proved that,  if  the  condition  of  the 
injured  person  is  such  that  a  short- 
ening of  life  may  be  apprehended, 
this  may  be  considered  in  deter- 
mining the  extent  of  the  injury. 
The  instruction  under  considera- 
tion is  thus  limited,  and  manifest- 
ly did  not  mislead  the  jury,  as  in 
an  answer  to  an  interrogatory  the 
jury  state  that  they  allow  appellee 
nothing  for  the  reason  that  they 
believe  the  injury  for  which  he 
sues   will   shorten   life." 

92— Cleveland  C.  C.  &  St.  L.  Ry. 
Co.  v.  Miller,  165  Ind.  381,  74  N.  E. 
510-511. 

"Preliminary  to  a  discussion  of 
this  instruction  it  is  proper  to  call 
attention  to  some  of  the  other  in- 
structions upon  the  subject  of 
damages.  The  court  instructed  the 
jury  that  only  compensatory  dam- 
ages could  be  awarded.  The  jury 
was  advised  that  it  was  its  'duty 
to  exclude  an  allowance  of  any 
sum  for  sickness,  pain,  or  suffer- 
ing which  is  not  shown  by  the  evi- 
dence, with  reasonable  certainty, 
to  be  directly  traceable  to  the  al- 
leged negligence  of  the  defendant.' 
There  was  also  a  direction  not  to 
'award  damages  for  remote,  uncer- 
tain, and  indirect  results  of  the 
alleged  fall  of  the  plaintiff.'  It  is 
in  the  light  of  these  instructions 
that  the  instruction  complained  of 
is  to  be  judged.  In  Richmond,  etc. 
Co.  v.  Baker.  146  Ind.  600,  45  N.  E. 
1049.  36  L.  R.  A.  683,  it  was  held 
that  the  fact  that  the  life  of  the 
plaintiff  would  be  shortened  did 
not  authorize  an  award  of  dam- 
ages therefor,  but  in  the  course 
of  the  opinion,  the  court  said:  'If 
the  condition  of  the  injured  person 
is  such  that  a  shortening  of  life 
may  be  apprehended,  this  may  be 
considered  in  determining  the  ex- 
tent of  the  injury,  the  consequent 
disability  to  make  a  living-,  and 
the  bodily  and  mental  suffering 
which  will  result.  This  however, 
falls  far  short  of  authorizing  dam- 
ages for  the  loss  or  shortening  of 


life  itself.'  It  is  argued  by  coun- 
sel for  appellant  in  this  case  that 
the  instruction  under  consideration 
illogically  authorized  the  jury  to 
consider,  in  forming  a  basis  for 
damages,  that  which  must  be  omit- 
ted when  the  i  are 
assessed.  It  is  evident  that  it  was 
in  the  light  of  the  language  of  the 
above  decision  that  the  court 
framed  the  instruction  compl 
of.  We  are  of  the  opinion  that  it 
was  not  calculated  to  mislead  the 
jury.  The  jurors  were  told  with 
the  greatest  distinctness  that  the 
plaintiff  was  not  entitled  to  re- 
cover anything  for  the  shortening 
of  her  life.  The  consideration  of 
that  fact,  if  the  jury  found  it  to 
be  such,  was  not  for  the  purpose 
of  determining  her  damages,  but 
was  limited  to  the  purpose  of  'de- 
termining the  extent  of  her  in- 
jury.' It  can  only  be  inferred  from 
the  instruction  that,  although  th  re 
could  be  no  allowance  for  the 
shortening  of  the  plaintiff's  life, 
yet,  if  the  jury  found  that  such  a 
result  would  follow  from  the  in- 
jury, it  was  not  debarred  from  a 
consideration  of  the  illness  and 
suffering  which  ordinarily  attend 
as  consequences  upon  an  injury  so 
grave.  While,  for  obvious  reasons, 
a  plaintiff  cannot  recover  for  the 
shortening  of  his  life,  yet  we  know 
of  no  reason  why  he  may  not  re- 
cover, as  and  for  his  damn. 
life,  a  sum  sufficient  to  compensate 
him  for  the  extra  burden  of  suf- 
fering which  a  jury  may  conclude, 
as  a  matter  of  sound  discretion 
under  the  evidence,  will  approxi- 
mately be  occasioned  by  the  negli- 
gence of  the  iefendant.  See  Phil- 
lips v.  Lon  .  R.  Co.,  5  C.  P. 
D.  280,  291.  We  have  studied  the 
instruction  complained  of,  very 
carefully,  and  while  we  cannot 
commend  it  as  a  model,  we  think 
that,  keeping  in  mind  its  pn 
nant  that  the  plaintiff 
'was  not  entitled  to  recover  any- 
thing whatever  for  the  shortening 
of  her  life,'  the  criticism  of  the 
qualifying  clause  appears  to  be 
verbal  and  I  i  the  ab- 
sence of  anything  in  the  instruc- 
tion   which    directly    countenanced 


634  FORMS  OF  INSTRUCTIONS.  [§913. 

§  913.  What  Jury  May  Consider  in  Assessing  Damages— Standard 
Life  and  Annuity  Tables  Competent  Evidence  to  Assist  Jury,  (a) 
If  the  jury  find  from  all  the  evidence  that  the  defendant  company 
is  liable  to  the  plaintiff  for  any  actual  damages  for  the  injuries 
sustained  by  him,  then,  in  fixing  the  amount  of  the  damages,  they 
may  consider  his  loss  of  time,  the  expense  incurred  by  plaintiff  by 
reason  of  his  injury,  the  physical  and  mental  pain  and  suffering 
which  he  has  already  endured  by  reason  of  his  injury,  and  also  that 
which  he  is  likely  to  experience  in  the  future  by  reason  of  such 
injury,  the  impairment  of  his  health  and  powers  of  locomotion 
resulting  from  his  injury,  and  also  that  which  he  is  likely  to  sustain 
in  the  future  by  reason  of  such  injury;  and,  in  this  connection, 
standard  life  and  annuity  tables  showing  the  probable  duration  of 
life  and  the  present  value  of  a  life  annuity  are  competent  evidence 
to  assist  the  jury  in  making  their  estimate  of  the  damages.93 

(b)  Certain  mortality  tables  have  been  admitted  in  evidence  for 
the  purpose  of  showing  the  number  of  years  a  man  of  plaintiff's  age 
may  expect  to  live.  If  you  believe  from  the  testimony  that  the 
plaintiff  has  been  permanently  injured,  then  you  may  refer  to  these 
papers  to  ascertain  the  number  of  years  which  a  man  of  plaintiff's 
age  may  be  expected  to  live.  Then  ascertain  from  this  what  his 
earning  capacity  is  for  one  year.  If  his  earning  capacity  has  been 
diminished,  then  take  the  proportion  of  what  he  could  have  earned, 
and  multiply  it  by  the  number  of  years  of  his  expectancy.  I  sug- 
gest here,  gentlemen,  that  these  tables  are  given  to  you  for  the 
purpose  of  your  making  calculations.  You  take  his  earning  capacity 
at  the  time  he  was  injured,  and  multiply  it  by  the  number  of  years 

the  idea  that  under  the  guise  of  de-  Caldwell   v.    N.    J.    Steamboat   Co., 

termining  the  extent   of  appellee's  supra:     'If  the  language  employed 

injury,    the   jury    might    allow    for  is    capable    of    different    construc- 

an    element    which    the    court    had  tions,     that     construction     will     be 

just  emphatically  said  could  not  be  adopted  which  will  lead  to  an  af- 

allowed  for,  we  cannot  indulge  the  firmance  of  the  judgment,  unless  it 

supposition     that     the    jury     drew  fairly  appears  that  the  jury  were, 

the    inference    that    in    the    same  or  at  least  might  have  been,   mis- 

h    the    court    was    contradict-  led.'     It  is  not  necessary,  however, 

ing  itself.     In  the  consideration  of  to  go  as  far  as  this  to  uphold  the 

an    instruction   the   initial  point   of  result  as  against  the  strictures  of 

•    is,    was    the   jury    misled?  counsel    upon    the    charge    of    the 

See   Union    Mut.    Life    Ins.    Co.    v.  court.     "We  cannot  regard  as  real- 

Bu  ihanan,  100  Ind.  63;   Caldwell  v.  ly  ambiguous  an  instruction  which 

N.  J.   Steamboat  Co.,  47  N.  Y.  282;  can  only  be  made  to  appear  so  by 

Thompson,  Charging  the  Jury,  131.  a   process    of   verbal    refining   con- 

A   case   ought   not   to   be   reversed  cerning    a    minor    and    qualifying 

merely  because   it   is   obnoxious  to  phrase,     where     to     do     so     would 

verbal    criticism,    Lake    S.    etc.    R.  bring  it   in   conflict   with  the  prin- 

Co.    v.    Mcintosh,    140    Ind.    261,    38  cipal     proposition    of    the    instruc- 

N.  E.  476;   Baltimore  etc.  R.  Co.  v.  tion    which    is    expressed    in    lan- 

Mackey,    157    fT.    S.   72,   15   Sup.   Ct.  guage  that  does  not  admit  of  mis- 

401.  ?,!)  L.  Ed.  624;  So.  etc.  R.  Co.  v.  take." 

Jones,      56     Ala.      507;      People     v.  93 — Brasington    v.    South    Bound 

Bruggy,    93    Cal.    476,    29    Pac.    26;  R.    Co.    62    S.    C.    325,    40    S.    E.    66£ 

Thompson.  Charging  the  Jury,  126.  (669),   89  Am.   St.   Rep.  905. 
It   was   said   by   Church,   C.    J.,    in 


§  914.]  DAMAGES— PERSONAL  INJURY.  835 

be  was  expected  to  live,  and  then  make  such  adjustment  of  the  dif- 
ference between  his  earning  capacity  now,  if  it  is  a  permanent 
injury,  and  his  earning  capacity  at  the  time  be  received  the  injury, 
if  any,  he  received,  and  multiply  that  by  the  number  of  years  he  is 
expected  to  live.  Take  that  sum  of  money  which,  placed  at  interest 
at  seven  per  cent,  for  the  number  of  years  of  his  expectancy,  would 
be  the  amount  of  principal  and  interest  to  the  sum  so  found.  And 
this  will  be  the  proper  manner  of  arriving  at  the  amount  to  which 
he  would  be  entitled,  but  this,  is  not  conclusive  upon  the  jury.  It 
is  submitted  to  you,  to  be  considered  by  you,  in  connection  with 
other  testimony,  to  arrive  at  the  amount  of  damages.  You  may 
consider  in  connection  with  the  evidence  the  fact  that  the  plaintiff's 
declining  years  during  the  time  of  his  expectancy,  and  his  dimin- 
ished capacity  for  earning  money  by  reason  thereof,  his  liability  to 
sickness,  and  the  probability  of  his  earning  capacity  being  dimin- 
ished by  other  causes  during  such  time.  And  on  the  other  hand, 
you  may  consider  whether  or  not  the  earning  capacity  may  be  in- 
creased by  his  greater  experience  in  the  business  during  such  time. 
All  these  circumstances  may  be  considered  by  the  jury  in  arriving 
at  what  would  be  the  proper  amount  of  damages.94 

§  914.  Plaintiff  Suffering  From  Disease  at  Time  of  Injury — Has- 
tening Development  of  Disease.  If  you  find  from  the  evidence  that 
the  plaintiff  received  the  injury  complained  of  by  reason  of  de- 
fendant's negligence  alleged  in  the  complaint,  and  at  the  time  of 
the  reception  of  said  injury  the  plaintiff  was  suffering  from  some 
disease,  and  you  further  find  that  said  injury  hastened  the  develop- 
ment of  such  disease,  and  that  thereby,  without  the  fault  of  plaintiff, 
her  present  condition,  whatever  you  may  find  that  to  be,  has  resulted 
from  such  injury,  then  I  instruct  you  that  the  plaintiff  is  entitled 
to  recover  such  damages  as  you  may  determine  she  has  sustained 
from  the  injury.95 

94 — City  of  Columbus  v.   Sims,  94  existing  disease.     These  are  the  di- 

Ga.  483,  20  S.  E.  332.  rect  results  of  the  battery.     It  may 

95 — Campbell      et      ux.      v.      Los  also  result  in  the  loss  of  time,  ex- 

Anjreles  T.  Co.,  137  Cal.  565,  70  Pae.  pense    of    medical    attendance,    and 

624   (625).  loss  of  a.  business  situation.  These 

"One  of  weak  physical  structure,  are    perhaps    direct    results    of   the 

or   small    vitality,    or    in    ill   health,  illness  caused   by  the   battery,   but 

has    as    mu"h    right    to    protection  they  are  the  indirect  results  of  the 

from    violence   as   a    robust    athlete;  battery  itself.'     The  subject   is  ful- 

and  in  either  case  the  physical  in-  ly     discussed      in      Heirn     v.      Mc- 

jury,    the    bodily    harm,    which    is  Caughan,   32  Miss.  17.   66  Am.   Rep. 

actually    caused    by    the    violence,  588,   and   in   the   notes   to  that 

whether    he    be    strong    or    weak,  in   66  Am.    Dec.    588.      In    tin* 

healthy    or    sickly,    is    the    natural  the   court    says:     'The  condition    ol 

consequence     of     the     wroncr,     and  the  plaintiff's  health   is  not   allege  1 

need  not  be  specially  averred.    The  to    be    the    special    ground    of    the 

law    on    this    subject    is    correctly  wrong-,    but    it    was    proved    on   the 

stated     in     Sedg\     Dam.     (8th    Ed.)  trial    as   a   circumstance   of  aggra- 

Par.     Ill,     as     follows:       'For     in-  vation   of  the  wrnns:,   and   to  show 

stance,  an  assault  and  battery  may  how  prrievonsly  the  act,  which  vis 

directly  result  in   pain  and  bruises,  wrongful   in    itself,   operated    to    the 

and   in   the   aggravation   of   a   pre-  bodily  distress  of  the  plaintiff  and 


636  FORMS  OF  INSTRUCTIONS.  [§  915. 

8  915.  Injury  Attributable  to  a  Diseased  Condition  in  Whole  or 
Part.  If  you  find  from  the  evidence  that  the  plaintiff  was  diseased 
at  and  before  the  punishment  complained  of,  and  that  her  present 
condition  is  attributable  to  such  former  diseased  condition  and  not 
in  any  manner  or  part  attributable  to  such  punishment,  then  you 
must  find  for  the  defendant.  If  you  find  that  the  plaintiff  was 
diseased  at  and  before  the  punishment  she  received,  if  any,  but  that 
by  the  punishment  her  disease  has  been  aggravated  or  intensified, 
then  you  will  give  her  damages  for  just  such  injuries  as  she  has 
sustained,  which  were  the  result  of  the  punishment.96 

§  916.  If  Injured  Was  in  Bad  Health  Before  the  Fall  in  the  Street, 
Recovery  can  Only  Be  Had  for  Aggravated  Injuries  Occasioned  by 
Such  Fall,  (a)  The  jury  is  instructed  that  if  the  defendant  should, 
under  the  charge,  be  held  liable  to  the  plaintiff  in  any  amount  for 
any  injuries  sustained  by  his  wife,  that  the  defendant  could  only 
be  held  responsible  in  law  for  such  injuries,  if  any,  as  were  the 
direct  and  proximate  result  of  plaintiff's  wife  falling  in  the  street; 
and  if  you  find  and  believe  that  the  wife  of  plaintiff  was  in  bad 
health,  and  that  her  generative  organs  would  naturally  have  been 
affected  from  child-bearing  or  other  natural  causes,  or  the  condition 
of  her  health  at  the  time  of  her  injuries,  notwithstanding  the  same 
may  have  been  aggravated  by  the  fall  on  the  street,  you  can  only 
find  for  plaintiff  to  the  extent  that  her  troubles  were  aggravated 
by  such  fall ;  and  in  your  consideration  of  the  liability  of  defendant 
you  are  absolutely  restricted  to  this  measure  for  the  recovery  of  any 
damages,  not  being  allowed  to  consider  against  the  defendant  or  to 
charge  the  defendant  with  any  pain  or  injury  or  suffering,  if  any, 
caused  to  plaintiff's  wife  by  reason  of  other  causes  than  the  fall  in 
the  street.07 

(b)  The  court  instructs  the  jury  that  if  from  the  evidence  and 
under  the  instructions  of  the  court  you  find  the  issues  herein  in 
favor   of   the   plaintiff,   then,   although   you   may   believe   from   the 

his    wife.     This   was   entirely   com-  bility    of    the   plaintiff    to    nervous 

petent   under   the   pleadings.    Sedg.  disturbance,   and   it   is  not   for  the 

Dam.  210.'    The  same  rule  was  sub-  defendant   to   say   that,   because   it 

stantially  announced  by  this  court  did   not  or  could  not,   in   fact,   an- 

ane  v.  Railway  Co.,  Ill  Cal.  ticipate  such  a  result  of  its  negli- 

668,  44  Pac.  320,  32  L.  R.  A.  193.     In  gent    act,    it    must    be    exonerated 

that   c;                 male  passenger  was  from      liability     for     such      conse- 

wrongfully  expelled  f-om  the  cars,  quences  as  ensued;  and  it  must  be 

he   <•  mil    held   that    'evidence  taken  to  know  and  contemplate  all 

lible  to  show  her  nervous  the  natural   and   proximate    conse- 

condition,    and    that   she   was   sub-  quen-es    not    only    that    certainly 

o  insomnia  and  nervous  shock  would    but    that    probably    might. 

and     paroxysms     if     placed     under  flow   from    its   wrongful    act.'     We 

-""  at   mental  excitement  connected  quote  f'-om  the  syllabus  which  cor- 

with    the    humiliation    of    her    ex-  rectly  states  the' decision." 

pulsion    f-om    the    car,    th°re    hid  96— L.  N.  A.  &  C.  R.  Co.  v.  Jones, 

bcm                      nee  of  the  insomnia  108  Tnd.  KKl,  9  N.  E.  476;  Treschman 

and      nervous      paroxysms;'      and  v    Treschman.   28  Ind.  App.  206,  61 

further  the   court    said:      'It   is   im-  N.    E    96]    (965>. 

whether  the  defendant  or  97— City    of   Dallas    v.    Moore,    32 

agents    knew    of   the    suscepti-  Tex.  Civ.  App.  230,  74  S.  W.  95  (97). 


§917.]  DAMAGES— PERSONAL  INJURY.  637 

evidence  that  the  plaintiff  was  at  and  before  the  time  of  the  accident 
herein  complained  of  suffering  from  any  sickness  or  disability,  still  if 
you  further  believe  and  find  from  a  preponderance  of  the  evidence 
that  he  was  injured  by  and  through  the  aegligence  of  the  defendant, 
as  charged  in  the  declaration,  and  that  such  injuries,  if  any,  devel- 
oped and  aggravated  his  previous  sickness  and  disability,  if  any, 
then  the  jury,  in  assessing  plaintiff's  damages,  if  any,  have  the  right 
to  and  they  should  take  into  consideration  such  increased  suffering, 
sickness  and  disability,  if  any,  that  the  .jury  may  believe  from  the 
evidence  before  them  in  this  case  plaintiff  has  sustained,  and  in  the 
future  may  sustain,  if  any,  on  account  of  such  increased  sickness 
and  disability,  if  any.08 

§  917.  Injuries  Aggravating  Former  Diseased  Condition,  (a) 
If  you  find  from  the  evidence  that  the  plaintiff  was  diseased  at  and 
before  the  accident,  and  that  her  present  condition  is  attributable 
to  such  former  diseased  condition,  and  not  in  any  manner  or  part 
attributable  to  the  injuries  received  in  the  railroad  accident,  and 
that  plaintiff  in  fact  received  no  injuries  from  said  accident,  then 
you  would  have  to  find  for  defendant.  If  you  find  that  the  plaintiff 
was  diseased  at  and  before  the  accident,  but  that  by  the  accident 
her  disease  has  been  aggravated  or  intensified,  then  you  will  give  her 
damages  for  just  such  injuries  as  she  has  sustained,  which  are  the 
result  of  the  accident.  If  you  find  from  the  evidence  that  plaintiff, 
prior  to  the  accident,  was  sound  and  free  from  disease,  and  that  by 
reason  of  the  injury  received  in  the  accident  she  has  become  crip- 
pled, diseased,  disabled  and  permanently  injured,  then  you  will  assess 
such  a  sum  as  will  compensate  her  fairly  for  the  injuries  thus  sus- 
tained." 

98— Chi.  U.  T.  Co.  v.  Browdy,  108  thereby  received.     In  other  words, 

111.  App.  177  (179),  approved  206  IH.  their    position    is    that    if,    at    the 

615.  time    of    the    injury,    appellee    was 

99 — L.    N.    A.    &    C.    Ry.    Co.    v.  in    any    way    suffering    from,    and 

Jones,  108  Ind.  551,  9  N.  E.  476  (485).  was    to    any    extent    disabled     by, 

"The  first  objection  urged  to  this  an  existing  disease,  and  her  suf- 
instruction  is  that  it  assumes  that  ferings  were  intensified,  and  her 
appellee  was  injured.  In  answer  disablement  increased,  by  the  in- 
to that,  it  is  sufficient  to  say  that  jury,  she  cannot  recover  for  such 
other  instructions  left  it  to  the  jury  additional  suffering-,  and  increased 
to  determine  as  to  whether  or  not  disablement,  because  the  injury 
appellee,  without  any  conflict,  was  not  the  proximate  and  sole 
shows  that  she  was  injured.  See  cause  thereof.  The  argument  is 
Koerner  v.  State,  98  Ind.  7-13.  The  based  upon  the  familiar  maxim, 
only  other  objection  that  chal-  causa  proxima  et  non  remota  spec- 
lenges  attention  is  limited  to  that  tatur.  We  do  not  think  it  would 
portion  of  the  Instructions  with  be  profitable  in  this  case  to  ex- 
reference  to  the  aggravation  of  an  tend  the  opinion  in  a  review  of 
existing  disease.  It  is  most  ear-  the  numerous  cases  cited  by  coun- 
nestly  contended  by  appellant's  sel,  and  in  an  examination  of  the 
counsel  in  a  lengthy  argument  arguments  advanced,  as  the  ques- 
which  shows  thought  and  research,  tion  here  involved  has  been  ex- 
that  appellant  cannot  be  held  .liable  amined  at  length  and  decided  by 
for  the  aggravation  of  an  exist-  this  court  in  recent  cases,  one  _pf 
ing  disease,  although  that  aggra-  which  has  been  decided  since  the 
vation  was  the  result  of  its  negli-  filing  of  appellant's  brief.  Under 
gence     and     the     injury     appellee  those  decisions,  the  law  is  correct- 


638  FORMS  OP  INSTRUCTIONS.  [§  917. 

(b)  If  under  the  foregoing  instructions  you  find  for  plaintiff,  you 
will  allow  him  such  sum  as  you  may  believe  from  the  evidence  will 
as  a  present  cash  payment,  reasonably  and  fairly  compensate  him 
for  the  physical  and  mental  pain,  if  any,  he  has  suffered  in  the  past, 
or  which  you  may  believe  it  is  reasonably  probable  that  he  will 
suffer  in  the  future,  as  a  result  of  such  injuries,  if  any;  and  also 
for  the  reasonable  value  of  his  services  for  the  time  he  has  lost,  if 
any;  for  his  diminished  capacity  to  labor  and  earn  money,  if  any, 
in  the  future;  also  for  the  reasonable  value  of  his  expenses  neces- 
sarily incurred  for  doctor's  bills,  if  any,  by  reason  of  his  injuries, 
if  any.  But  in  this  connection  you  are  instructed  that  if  you  should 
believe  from  the  evidence  that  plaintiff's  mental  and  physical  pain, 
if  any,  he  suffers  or  has  suffered,  or  the  impaired  condition  of  his 
health,  if  any,  at  this  time  or  heretofore,  are  the  results  of  injuries, 
if  any,  which  you  may  believe  from  the  evidence  he  received  prior  to 
the  time  alleged  in  his  petition,  you  are  instructed  that  plaintiff  would 
not  in  any  event  be  entitled  to  recover  in  this  case  for  any  such 
mental  or  physical  pain  or  impaired  health  as  you  may  believe  to 
be  the  result  of  former  injuries.100 

(c)  The  court  instructed  the  jury  that,  in  considering  the  extent 
of  the  plaintiff's  injuries  and  his  physical  condition,  you  may  con- 
sider the  fact  that  plaintiff,  prior  to  the  accident,  had  had  rheuma- 
tism. If  you  believe  his  subsequent  ailments,  in  whole  or  in  part, 
resulted  therefrom,  you  are  instructed  that  plaintiff  was  bound  to 
use  all  means  within  his  power  to  effect  a  cure  of  himself  from  the 
injuries  received  in  the  accident,  and  if  he  has  not  done  so,  and  has 
neglected  to  properly  treat  himself,  then  he  cannot  recover  for  any 
condition  due  to  such  neglect;  and,  in  considering  the  element  of 
damages  based  on  account  of  loss  of  time,  you  will  consider  the 
nature  of  his  employment  as  a  railroad  conductor,  and  cannot  allow 
for  loss  of  time  sued  for  since  the  commencement  of  the  action,  to- 
wit,  December  15,  1898,  but  may  consider  the  fact,  if  proven,  of 
impairment  of  earning  capacity. 

(d)  The  court  instructs  the  jury  that,  although  you  may  believe 
that  the  plaintiff  has  a  misplaced  heart,  and  that  his  liver  is  not  in 
its  natural  position,  yet,  before  you  can  consider  these  facts  as  an 
element  of  damages,  it  must  be  proven  to  your  reasonable  satisfaction 

ly  stated  in  the  instructions  under  plaintiff's  recovery  for  services  lost 
consideration.  Terre  Haute  &  I.  and  expenses  incurred  for  doctor's 
R.  R.  Co.  v.  Buck,  96  Ind.  346,  49  bills  incurred  on  account  of  the 
Am.  Rep.  168,  and  the  numerous  particular  injuries  mentioned  in  the 
cases  there  cited;  L.  N.  A.  &  C.  petition.  This  contention  is  not 
Ry.  Co.  v.  Falvey,  104  Ind.  409,  sound.  The  question  of  former  in- 
426,  3  N.  E.  Rep.  389,  and  4  N.  E.  juries  was  matter  of  defense,  and, 
Rep.  908,  and  the  .cases  there  if  appellant  desired  a  more  corn- 
cited."  prehensive   charge,   it   should   have 

100— Mo.  K.  &  T.  Ry.  Co.  of  Texas  requested    the    same.      Queen    Ins. 

v.    Hay,    —   Tex.    Civ.    App.    — ,    86  Co.  v.  Jefferson  I.  Co..  64  Tex.  583; 

S.   W.  954   (955).  T.     P.     Ry.     Co.     v.     O'Donnell,     58 

"It  is  contended  that  this  charge  Tex.   42;   Milmo  v.  Adams,  79  Tex. 

is    erroneous    in     failing    to    limit  530,  15  S.  W.   690." 


§  918.]  DAMAGES— PERSONAL  INJURY.  639 

that  these  conditions  were  caused  by  the  wreck,  either  directly  or 
indirectly,  and  that  the  wreck  is  due  to  the  negligence  of  the  de- 
fendant, as  explained  in  the  other  instructions.1 

(e)  If  you  find  that  the  plaintiff  had  been  injured  in  his  back 
prior  to  the  time  he  claims  to  have  been  injured  at  C,  or  that  he 
had  any  disease  of  the  back  prior  to  that  time,  and  that  he  was 
suffering  therefrom  at  the  time  of  the  alleged  accident  at  C,  and  you 
further  find  that  he  was  injured  in  the  back  at  C  while  alighting 
from  the  train,  and  that  the  defendant  is  responsible  for  such  injuries, 
and  that  the  injuries  received  at  C  simply  aggravated  or  increased 
his  existing  trouble,  then  the  plaintiff  would  be  entitled  to  recover, 
if  at  all,  under  the  other  instructions  given  you,  only  for  the  increase 
or  aggravation  of  the  troubles  which  existed  at  the  time  he  received 
such  injuries  at  C.2 

§  918.  Past  and  Future  Mental  Suffering  on  Account  of  Disfig- 
urement of  Person,  Element  of  Damage,  (a)  The  court  instructs  the 
jury  that,  if  the  plaintiff  is  entitled  to  recover  at  all,  she  is  entitled 
to  such  sum  as  will  fully  compensate  her  for  all  bodily  pain  and 
suffering  which  she  has  endured  in  the  past  by  reason  of  the  injuries 
received,  and  for  such  bodily  pain  and  suffering  as  the  evidence 
shows  she  will  endure  in  the  future.  She  is  also  entitled  to  recover 
for  such  mental  suffering  as  she  has  endured  in  the  past  by  reason 
of  the  insult,  wrong  and  indignity  upon  her,  if  any,  and  by  reason 
of  her  consequent  physical  impairment,  and  for  mental  suffering  in 
the  future,  if  any,  by  reason  of  such  physical  impairment,  if  you 
find  that  the  evidence  shows  that  there  will  be  physical  impairment 
in  the  future.3 

(b)  And  if  you  are  satisfied  from  the  evidence  that  the  injury  that 
the  plaintiff  has  suffered  is  permanent  in  its  nature,  and  will  con- 
tinue to  affect  his  health  and  physical  condition  in  the  future,  and 
cause  him  pain  and  suffering  in  the  future,  you  should  allow  him,  in 
addition,  such  sum  as  will  reasonably  compensate  him  for  such 
pain  and  suffering  and  impairment  of  ability  to  earn  a  livelihood 
as  he  must  suffer  in  the  future.4 

(c)  If  you  find  for  the  plaintiff,  you  will  allow  him  a  fair  compen- 
sation for  the  loss  of  time  from  his  business  or  occupation ;  his  loss 
of  capacity,  if  any,  for  the  performance  of  the  kind  of  labor  for 

1— Copeland  v.  W.  R.  Co.,  175  Mo.  al   injuries,    Sedg.    Dam.    (8th   Ed.) 

650.  75  S.   W.  106  (110).  Para.    47,    Subd.   6;    Sherwood  v.  C. 

2— S.   L.    S.   W.   Ry.   Co.   v.   John-  &   W.    M.    R.    R.    Ca.    82   Mioh.   374, 

son,  —  Tex.  — ,  97  S.  W.  1039.  383,  46  N.  W.  773;   Heddles  v.  C.   & 

3— Nichols    v.    Brabazon,    94   Wis.  N.  W.  Ry.  Co.,  77  Wis.  228.  230,  231, 

541,  69  N.  W.  342.  46  N.  W.  115,  and  cases  cited." 

"Mental    suffering   on   account   of  4 — Kenyon    v.    City    of    Mondovi, 

disfigurement  of  the  person,  or  im-  98  Wis.  50,  73  N.  W.  314. 

pnirment  of  the  use  and  symmetry  "If  a  jury  are  satisfied  of  the  ex- 

of  the  limbs,  have  often  been  held  istence    of   a    fact,    it    would    seem 

to   be   elements   proper  to   be   con-  that  they  must  be  reasonably  cer- 

sidered  in  assessing:  the  amount  of  tain    of   it.     We   see   no   defect   in 

compensatory  damages  for  person-  the  instruction." 


640 


FORMS  OF  INSTRUCTIONS. 


[§  919. 


which  he  is  fitted;  the  disfigurement  of  his  person,  if  any;  and  for 
the  pain  and  suffering  resulting  from  said  injury.5 

(d)  If  you  find  from  the  evidence  that  the  plaintiff  is  entitled  to 
recover,  as  alleged  in  his  declaration,  then  in  estimating  the  plaintiff's 
damages,  you  may  take  into  consideration  his  health  and  physical 
condition  prior  to  the  injury,  and  also  his  health  and  physical  condi- 
tion since  then,  if  you  believe  from  the  evidence  that  his  health  and 
physical  condition  since  then  is  impaired  as  the  results  of  such 
injury;  and  you  may  also  consider  whether  or  not  he  has  been  per- 
manently injured,  and  to  what  extent;  and  also  to  what  extent,  if 
any,  he  has  been  injured,  and  to  what  extent,  if  any,  he  may  have 
endured  physical  and  mental  suffering  as  a  natural  and  inevitable 
result  of  such  injury;  and  also  any  necessary  expenses  he  may  have 
been  put  to  in  and  about  caring  for  and  curing  himself;  and  you 
may  consider  what,  if  any,  effect  such  injuries  may  have  upon  him 
in  the  future  in  respect  of  pain  and  suffering;  and  you  should  allow 
him  as  damages  such  sum  as,  in  the  exercise  of  a  sound  discretion, 
you  may  believe  from  all  the  facts  and  circumstances  in  evidence 
will  be  a  fair  and  just  compensation  to  him  for  the  injuries  so 
sustained.6 

§  919.  Pain  and  Anguish  of  Body  and  Mind — Eyesight  or  Hear- 
ing Impaired,   etc.     The  court  instructs   the  jury  that  if  they  find 


5 — McGee  v.  Smitherman,  69  Ark. 
632,   65  S.   W.   461  (463). 

"If  the  instruction  of  the  court 
wis  too  general,  the  appellants 
could  not  complain.  They  did  not 
ask  for  a  more  specific  instruc- 
tion. 'That  the  court's  charge  was 
general  in  its  terms  is  no  ground 
for  reversing  a  judgment,  if  no 
request  was  made  for  a  more  spe- 
cific charge.'  Fordvce  v.  Jackson, 
56  Ark.   594,   20   S.   W.   52S,   597." 

6— W.  C.  St.  R.  R.  Co.  v.  Lups, 
74   III.    App.   420   (425). 

"Appellant's  counsel  contend  that 
this  instruction  is  erroneous  in  so 
far  as  it  relates  to  future  pain  and 
suffering.  The  instruction  informed 
the  jury  that  they  might  consider 
to  what  extent,  if  any,  appellee 
may  have  endured  physical  and 
mental  suffering  as  a  natural  and 
inevitable  result  of  his  injury,  etc. 
This  was  proper.  In  H.  &  St.  J. 
R.  R.  Co.  v.  Martin,  111  111.  219, 
ity  of  Chi.  v.  McLean,  133  111. 
148.  24  N.  E.  527,  instructions  of  a 
similar  character  but  more  favor- 
able  for  the  plaintiffs  than  the  in- 
struction in  question  is  for  appel- 
held  unobjectionable." 

From  the  comment  of  the  court, 
it  appears  the  question  of  "marred 
in    his    personal    appearance"    was 


not  raised,  but  see  C.  &  G.  T.  Ry. 
Co.  v.  Spurney,  69  111.  App.  549 
(552),  aff'd  197  111.  471,  64  N.  E.  302, 
where  the  court  commented  as  fol- 
lows: 

"At  the  instance  of  the  plaintiff 
the  jury  were  instructed  that  in 
determining  the  amount  of  dam- 
ages they  might  take  into  consid- 
eration 'any  future  bodily  and 
mental  pain  or  suffering,  or  future 
inability  to  labor  or  transact  busi- 
ness, if  any,  that  the  jury  believe 
from  the  evidence  the  plaintiff  will 
sustain  by  reason  of  injuries  re- 
ceived.' 

"Future  mental  pain,  that  is, 
mere  humiliation  and  grief  result- 
ing from  a  contemplation  of  a 
maimed  and  disfigured  body,  is  not 
an  element  entering  into  an  ascer- 
tainment of  the  pecuniary  damage 
one  has  sustained  as  the  result  of 
negliarence,  I.  C.  R.  Co.  v.  Cole,  165 
111.  334,  46  N.  E.  275;  Peoria  B.  A. 
v.  Loomis,  20  111.  235,  71  Am.  Dec. 
263:  C.  P..  &  Q.  R.  R.  Co.  v.  Hines, 
45    111.    App.    299." 

See  vol.  3,  case  of  City  of  Decatur 
v.  Hamilton.  89  111.  App.  561,  also 
Cnllon  v.  Higgins,  216  111.  78,  74 
N.  E.  698,  where  the  court  held  it 
was  error  to  use  the  words 
"marred  physically"  in  an  instruc- 
tion on  measure  of  damages.     See 


§  920.]  DAMAGES— PERSONAL  INJURY.  641 

for  the  plaintiff  they  will  assess  his  damages  at  such  sum  as  they 
may  believe  from  the  evidence  will  be  a  fair  compensation  for  the 
pain  and  anguish  of  body  and  mind  that  he  has  suffered,  caused  by 
the  negligence  and  carelessness  of  the  agents  and  servants  of  the 
defendant,  including  his  expenses  for  medical  services  and  medicines, 
and  the  impairment  of  his  eyesight  and  hearing,  if  you  find  that 
his  eyesight  or  hearing  has  been  impaired  by  the  injuries  he  sus- 
tained, and  for  loss  of  time  from  his  business,  if  you  believe  from 
the  evidence  that  the  injury  caused  him  to  lose  any  time  from  the 
transaction  of  his  business,  and  for  any  impairment  in  his  physical 
capacity  in  the  future  to  attend  to  any  active  business,  if  you  find 
that  any  such  incapacity  exists,  and  that  such  impairment  was 
caused  by  the  injuries  sustained.7 

§  920.  Ears  Impaired— Object  of  Ridicule— Rule  of  Damages. 
The  court  instructs  you  that  if  a  person  or  corporation  negligently 
causes  an  injury  to  another  who  is  without  fault,  which  makes  the 
latter  an  object  of  pity  to  his  fellow  men  and  an  object  of  ridicule 
to  the  thoughtless  and  unfeeling  and  deprives  him  of  the  comfort 
and  companionship  of  his  fellows,  should  respond  in  damages  for  the 
injury  sustained.  Therefore  if  you  find  for  the  plaintiff  and  further 
find  that  among  other  injuries  either  or  both  of  his  ears  were  im- 
paired at  the  time  so  that  his  hearing  is  impaired  and  a  considerable 
degree  of  deafness  has  ensued  which  is  more  or  less  permanent,  and 
as  a  consequence  the  plaintiff's  ability  to  gain  remunerative  employ- 
ment has  been  lessened  or  decreased,  then  you  may  not  only  allow 
him  such  sum  as  damages  therefor  as  in  your  sound  judgment  will 
reasonably  compensate  him  for  the  difference  between  his  lessened 
earning  capacity  on  account  of  such  deafness,  if  any,  and  what  it 
would  be  if  his  hearing  was  not  impaired,  but  also  compensation  for 
any  probable  distress  of  mind  or  mental  suffering,  if  any,  that  he 
may  endure  by  reason  of  having  such  deafness.8 

also     Sutherland    Dam.     (3d    Ed.),  ceeded  him,  without  compensation, 

§    1244,    for    an    interesting    discus-  In   such   affairs  during-  his   disabil- 

sion   of   this   important   subject.  ity;    and   no    testimony  was   intro- 

7 — Shanahan  v.   St.   L.   T.   Co.,  —  duced  respecting  the  value,  if  any, 

Mo.  — ,  83  S.  W.  7S3  (7S5).  of   plaintiff's    time,    or   from    which 

"The   personal   testimony   of   the  the  jury  could  allow  him  any  com- 

plaintiff      betrays      material      and  pensation  for  loss  of  time  from  his 

grave    impairment    of    his    senses,  business.    Haworth  v.  K.  C.  So.  Ry. 

if    not     his    intelligence,     and    the  Co.,  94  Mo.  App.  215,  68  S.  W.  111. 

infirmities    of    sight    and     hearing,  The  petition  prayed  for  but  $100  In 

or    at    least    their   aggravation,    he  return  for  time  lost  from  and  injury 

directly  attributed  to  the  disaster,  to    his    individual    affairs,    and    in 

and    it    was    for    the    jury    to    de-  cases    of    personal     injuries    prob- 

termine     whether    his     belief    was  ably  permanent  and  lasting  in  their 

justified    under   the    evidence    pre-  results    such    as    plaintiff    asserted, 

sented.     It  was   apparent  from  the  and    the    proof    inclined     to    show, 

testimony  that   at   the  time  of   the  where    his    injuries,    the    principal 

injury,      and      for     a     considerable  and  chief  damages   to  be  redressed 

period    preceding,    plaintiff   had   no  were  the  physical  pain  and  mental 

definite     occupation,    but     collected  suffering    past  and   future,  and  the 

the    rental    of    his    realty    and    su-  permanenl       impairment       of      his 

perintended    the    repairs    necessary  physical    condition." 

thereon,  and  that  his  son  had  sue-  8— Cole   v.    Seattle,    R.    &   S.   Ry. 
41 


642 


FORMS  OF  INSTRUCTIONS. 


[§  921. 


§  921.  Damages  for  Mental  Suffering  Apart  from  Physical  In- 
jury. You  are  instructed  that  damages  cannot  be  recovered  for 
mere  mental  suffering,  disconnected  from  physical  injury,  and  not 
the  result  of  the  willful  wrong  of  the  defendant.9 

§  922.  Should  Consider  Whether  Injury  Is  Permanent,  etc.  (a) 
The  jury  are  further  instructed,  that,  if  under  the  evidence  and  the 
instructions  of  the  court,  they  find  the  defendant  guilty,  then,  in 
estimating  the  plaintiff's  damages,  if  any  are  proved,  they  have  a 
right  to  take  into  consideration  the  personal  injury  inflicted  upon 
the  plaintiff — the  pain  and  suffering  undergone  by  him  in  consequence 
of  his  injuries,  if  any  are  proved,  and  also  any  permanent  injury 
sustained  by  him,  if  the  jury  believe,  from  the  evidence,  that  the 
plaintiff  has  sustained  such  permanent  injury  from  the  wrongful  acts 
complained  of.10 

Co.,  42  Wash.  462,  85  Pac.  3   (4). 

"Although  this  instruction  may 
be  correct  as  an  abstract  principle 
of  law,  it  is  not  applicable  to  the 
evidence  in  this  case.  Yet,  not- 
withstanding- this  criticism,  we  fail 
to  see  how  it  constituted  prejudi- 
cial error.  The  jury  could  not 
have  been  misled,  as  they  saw  re- 
spondent and  knew  his  exact  con- 
dition. No  question  was  raised  as 
to  the  fact  of  his  injuries,  nor  as 
to  the  appellant's  liability  for  dam- 
ages." 

9 — Chase  v.  Telegraph  Co. 
(Georgia),  44  Fed  554,  10  L.  R.  A. 
464;   Lewis  v.  Tel.  Co.,  57  S.  C.  325. 

In  the  latter  case,  in  comment- 
ing, the  court  said:  "The  second 
exception  relates  to  a  subject 
which  has  occupied  the  legal  mind 
for  centuries,  namely,  whether 
damages  can  be  recovered  for  men- 
tal suffering  disconnected  with,  or 
in  the  absence  of  any  bodily  in- 
jury. It  is  not  a  new  subject 
therefore.  The  common  law  never 
recognized  such  damages.  They 
were  too  vague,  shadowy  and  un- 
certain. The  decisions  of  the 
Supreme  Court  of  the  United 
States  and  of  a  large  majority  of 
the  state  supreme  courts  refuse  to 
sanction  any  change  of  the  com- 
mon law  in  this  particular.  There 
are  a  few  of  the  supreme  courts 
of  the  slates  of  this  Union  which 
do  uphold  the  doctrine  that  dam- 
ages may  be  awarded  for  mental 
suffering  disconnected  with  phvsi- 
cal  injury— such  as  Texas,  Ten- 
nessee, North  Carolina,  Alabama 
and  a  few  others.  Our  own  state 
may  be  classed  among  those  who 
adhere  to  the  old  common-law  rule, 
as  may  bp  seen  by  examining  Hen- 
ning  v.  Withers,  3  Brev.  458;   Hunt 


v.  D'Orval  Dud.  180;  Tappan  v. 
Harwood,  2  Speer  536;  Pearson  v. 
Davis,  1  McMul.  37;  Edgar  v.  Cos- 
tello,  14  S.  C.  20;  Sitton  v.  Mc- 
Donald, 25  S.  C.  68;  Bridger  v. 
R.  Co.,  27  S.  C.  456,  3  S.  E.  860,  13 
Am.  St.  Rep.  653;  Martin  v.  R.  R. 
Co.,  32  S.  C.  592,  10  S.  E. 
960;  Wallingford  v.  Telegraph 
Co.,  53  S.  C.  410,  31  S.  E. 
275;  Mack  v.  S.  B.  R.  R.  Co., 
52  S.  C.  323,  29  S.  E.  905,  40  L.  R. 
A.  679,  68  Am.  St.  Rep.  913;  Ken- 
non  v.  Gilmer,  131  U.  S.  21,  9  Sup. 
Ct.  696,  33  L.  Ed.  110;  Crawson  v. 
W.  U.  Tel.  Co.,  47  Fed.  Rep.  544 
(Ark.);  Chase  v.  W.  U.  Tel.  Co., 
supra;  Munro  v.  Dredging  Co.,  84 
Cal.  515,  24  Pac.  303;  I.  O.  Tel.  Co. 
v.  Saunders,  32  Fla.  434;  Wyman  v. 
Leavitt,  71  Me.  227;  Connell  v.  W. 
U.  Tel.  Co.,  116  Mo.  34,  22  S.  W.  345; 
Connell  v.  W.  U.  Tel.  Co.,  42  N.  Y. 
Supp.  1109;  Kester  v.  W.  U. 
Tel.  Co.,  26  Chicago  Legal  News, 
252   (Ohio)." 

See  Int.  &  G.  N.  R.  Co.  v.  An- 
choda,  —  Tex.  Civ.  App.  — ,  68  S. 
W.  743,  where  it  was  held  a  proper 
element    of    damages. 

Whether  damages  can  be  recov- 
ered for  suffering  without  physical 
injury,  is  a  question  which  has 
caused  great  discussion  in  the 
American  courts.  The  early  lead- 
ing case  on  the  subject  is  Vic- 
torian Ry  Commissioners  v.  Coul- 
tas,  12  Vict.  L.  R.  895,  an  English 
case.  This  case  has  been  widely 
discussed  and  both  followed  and 
repudiated  by  the  American 
courts.  For  an  exhaustive  review 
of  these  cases,  see  1  Sutherland  on 
Damages,  (3d  Ed.)  §§  21-24;  also 
Hughes'  Procedure  1268,  77  Am.  St. 
859. 

10— Collins   et    ux.    v.    The    City, 


§  923.J  DAMAGES— PERSONAL  INJURY.  643 

(b)  If,  under  the  evidence  and  instructions  of  the  court,  the  jury 
find  the  defendant  guilty,  then,  in  assessing  the  plaintiff's  damages, 
the  jury  may  take  into  consideration  doI  only  the  loss,  expenses  and 
immediate  damage  arising  from  the  injuries  received  at  the  time  of 
the  accident,  but  also  the  permanent  loss  and  damage,  if  any  is 
proved,  arising  from  any  disability  resulting  to  the  plaintiff  from  the 
injury  in  question,  which  renders  him  less  capable  of  attending  to 
his  business  than  he  would  have  been  if  the  injury  had  not  been 
received.11 

(c)  In  estimating  the  plaintiff's  damages,  you  should  also  consider 
the  nature  of  the  injuries  suffered,  as  to  whether  they  are  likely  to 
prove  permanent,  or  ternjuorary  only.12 

§  923.  Should  Determine  Whether  Injury  Is  Permanent  or  Tem- 
porary— Consider  All  the  Evidence  with  Respect  to  Injury  to  Person 
and  Property— Mental  Anguish,  etc. — Pecuniary  Point  of  View.  If 
you  find  the  issues  for  the  plaintiff  you  should  consider  the  extent 
of  the  injury  as  it  appears  from  the  evidence,  whether  it  is  perma- 
nent or  temporary.  You  have  a  right  also  to  take  into  consideration 
the  physical  pain  and  mental  anguish  caused  by  the  injury  and  the 
extent  to  which  the  plaintiff  has  been  deprived  of  the  capacity  to 
earn  a  living  or  to  cumulate  money  or  other  property.  You  have 
a  right  to  take  into  consideration  the  injury  to  his  property,  the 
fact  that  his  horse  was  killed,  the  injury  to  the  wagon  and  the 
harness,  if  you  believe  from  the  evidence  that  they  were  injured, 
and,  so  considering  all  the  evidence  with  respect  to  the  injury  of  the 
plaintiff  and  his  property  as  described  in  the  complaint,  you  should 
give  him  such  compensation  as  will  remunerate  him  for  the  injury 
sustained.  You  must  look  at  it  in  a  pecuniary  point  of  view,  esti- 
mating his  loss  in  money.13 

§  924.  Permanency  of  Maladies — Damages  Restricted  by  Evidence 
in  the  Case,  (a)  If  the  jury  believe,  from  the  evidence,  that  any 
portion  or  portions,  feature  or  features,  of  the  plaintiff's  maladies 
resulting  from  the  injury  aforesaid  is  or  are  permanent,  the  jury 
may  consider  such  permanent  malady  or  maladies,  and  such  detri- 
ment as  they  may  believe  from  the  evidence  naturally,  probably  and 
reasonably  may  result  therefrom  to  the  plaintiff  in  his  personal 
health  and  ability  to  labor,  and,  having  considered  these  elements, 
fix  the  plaintiff's  damages  at  such  sum  as  the  jury  may  believe,  from 
the  evidence,  is  necessary  to  adequately,  fairly  and  justly  compen- 
sate the  plaintiff  for  the  loss  which  the  jury  believe,  from  the  evi- 
dence, is  the  direct  natural,  probable  and  proximate  result  or  con- 
sequence of  the  injury  aforesaid;  but  the  jury  in  the  assessment  of 

etc.,   32  la.   324:   Holbrook  et  al.   v.  224:   Morris  v.  Chi.  etc.,  R.  R.  Co., 

The  U.    &  S.   Rd.   Co..   2    Kern   236;  45   la.    29. 

Rf  earner    N.    W.    v.    King-,    16   How        12— Union  Gold  Min.  Co.  v.  Craw- 

472;  Russ  et  ux.  v.  Steamboat  War  ford,  29  Colo.  511,  69  Pac.  600  (603). 
Easrle.  14  la.  363.  13— Rio  G.  W.  Ry.  Co.  v.  Leak,  163 

11— Indianapolis  v.  Gaston,  58  Ind.  U.   S.  280  (2S3),  16  S.  Ct.  1020. 


644  FORMS  OF  INSTRUCTIONS.  [§  925. 

damages  must  take  into  consideration  only  such  elements  of  claim, 
damages  or  injuries,  as  they  believe  are  established  by  the  evidence 
in  the  case.14 

(b)  If  you  find  for  the  plaintiff,  you  will  be  required  to  de- 
termine the  amount  of  his  damage.  In  determining  the  amount  of 
damages  the  plaintiff  is  entitled  to  recover  in  this  case,  if  any,  the 
jury  have  a  right  to,  and  they  should,  take  into  consideration  all 
the  facts  and  circumstances  before  them,  the  nature  and  extent  of 
plaintiff's  physical  injuries,  if  any,  testified  about  by  the  witnesses 
in  this  case,  his  suffering  in  body  and  mind,  if  any,  resulting  from 
such  injuries,  and  also  such  prospective  suffering  and  loss  of  health, 
if  any,  as  the  jury  may  believe,  from  all  the  facts  before  them  in 
this  case,  he  has  sustained  or  will  sustain  by  reason  of  such  injury, 
his  loss  of  time  and  services,  and  inability  to  work  and  earn  a 
living  for  himself,  resulting  from  such  injuries,  and  may  find  for 
him  such  sum  as,  in  the  judgment  of  the  jury,  under  the  evidence, 
will  be  compensation  for  the  injuries.15 

§  925.  To  Take  into  Consideration  All  the  Facts  and  Circum- 
stances as  Detailed  in  Evidence — Permanency  of  Bodily  Injuries. 
If  the  jury  find  for  the  plaintiff,  they  may,  in  estimating  her  dam- 
ages, take  into  consideration  all  the  facts  and  circumstances  as  de- 
tailed in  evidence — her  bodily  injuries  if  any,  and  whether  or  not 
they  are  permanent  in  their  nature — and  allow  her  therefor  such 
sum  as  they  may  believe,  from  the  evidence,  she  has  been  damaged, 
not  exceeding  ten  thousand  dollars.16 

14— L.  S.  &  M.  S.  Ry.  Co.  v.  Con-  prehended   in   instructing   the   jury 

way,  169  111.  505  (509),  48  N.  E.  483.  in  such  cases  upon  the  legal  meas- 

"If    the    last    paragraph    of    the  ure    of    the    plaintiff's    award;    but 

above    clause     had     been    omitted,  the    jury    is    not    left    to    grope    in 

there    might    be    ground    for    com-  the    dark,    nor    is    the   jury    left    to 

plaint.      But   the   concluding  direc-  mere  speculation  and  conjecture  to 

tii m  is  so  clear  and  emphatic  that  the  fatal  degree  condemned   in  the 

the   jury   should    not    consider   any  cases  to  which  reference  is  made — 

element     of     damage     unless     such  notably  Camp  v.  Wabash  Railway, 

damage    were    established    by    the  94   Mo.    App.    272,    68   S.   W.   96,   and 

evidence,  we  do  not  think  the  jury  like    authorities.        Where    the    in- 

have  been  misled."  juries  are  of  such  nature  that  they 

15 — Best  Brewing  Co.  v.  Dunlevy,  are  necessarily  attended  by   physi- 

157    111.    141    (143),   aff'g  57  111.   App.  cal  pain  and  suffering  the  assump- 

96,   41   N.   E.   611.  tion  of  their  presence  is  not  in  all 

This      instruction      approved      in  instances   prejudicial   error;    and    if 

form,  though  held  improper  in  this  defendant    desired    the    jury    more 

case    as    the    declaration    failed    to  specifically    confined    to    considera- 

make   claim   for  permanent   injury,  tion   of  all   the   proper  elements   of 

16 — MeNamara   v.    St.    L.    T.    Co.,  damages  in  such  an  action,   an  in- 

106   Mo.   349,  80  S.  W.  303  (304).  struction    properly    framed    of    the 

"This  instruction  is  characterized  character  desired  should  have  been 

flcient,     in    defining    the    ele-  presented.     Wheeler  v.   Bowles.   163 

ments  which  entered  into  recovery.  Mo.  398,  63  S.  W.  675;  Dunn  v.  Rail- 

■  1 1 1 - 1    permitting   the   jury   to  award  way.  81  Mo.   App.  42;    State  ex  rel. 

such    damages   as   it  misht   see   fit.  Kennen  v.   Fidelity  &  Deposit   Co., 

The  phraseology  bore  is  rather  gen-  94  Mo.      App.    184,    67    S.     W.    958; 

eral.    and    is    silent    as    to    features  O'Neill  v.  Blase,  94  Mo.  App.  669,  6S 

o/  pain  and  suffering  usually  com-  S.  W.  764." 


§  926.]  DAMAGES— PERSONAL  INJURY.  645 

§  926.  Future  Mental  and  Bodily  Suffering  Allowable— Rule  When 
Injury  Is  Permanent,  (a)  The  courl  instructs  the  jury  that,  if  the  de- 
fendant is  liable,  the  plaintiff  is  entitled  to  recover  for  bodily  and 
mental  suffering,  if  any,  which  she  has  heretofore  undergone,  or 
may  reasonably  be  expected  to  undergo  in  'the   future.17 

(h)  If  the  jury  find  for  the  plaintiff,  they  mighl  take  into  consider- 
ation, in  estimating  his  damages,  the  probable  effect  and  duration  of 
the  injury,  if  any,  to  his  mind  in  the  future.18 

§927.  Whether  Certain  Ailments  Resulted  from  Injuries,  (a) 
If  you  find  for  the  plaintiff,  you  should  allow  him  such  damages  as 
are  shown  to  have  been  the  result  of  the  injury  which  he  received 
at  the  time  of  the  accident,  not  exceeding  in  any  respect  the  amount 
claimed  in  the  petition.  In  respect  to  plaintiff's  pulmonary  or  other 
ailments,  which  manifested  themselves  subsequent  to  the  accident, 
you  will  determine  from  the  evidence  whether  they  did  or  did  not 
result  from  the  injuries  sustained  at  that  time.  If  they  did,  and 
this  was  the  sole  cause  of  them,  or  if  it  developed  them  without 
fault  or  negligence  of  the  plaintiff,  you  should  allow  proper  dam- 
ages therefor.  If,  however,  they  were  the  result,  either  wholly  or 
in  part,  of  negligence,  or  careless  exposure,  or  improper  indulgence 
in  stimulants  on  the  part  of  the  plaintiff,  damages'  should  not  be 
allowed  on  account  thereof.  Medical  treatment  and  expenses  there- 
for, and  physical  pain  or  mental  suffering,  is  a  proper  element  of 
damage  to  be  considered.19 

(b)  There  is  no  great  physical  injury  proved  here  to  this  man  at 
all.  There  is  no  evidence  produced  here  before  you  as  to  any  serious 
results  that  are  apparent  to  your  observation  or  to  the  observation 
of  the  physicians  who  have  testified.  It  is  claimed  that  his  skull 
may  or  may  not  have  been  fractured ;  but  there  is  no  claim  that  there 
is  any  evidence  now  to  determine  that  the  skull  was  fractured,  but 
that  there  were  such  results  apparent  from  the  conduct  and  be- 
havior of  the  man  that  it  might  have  been  done,  and  that  if  it  was 
done    certain    results    would    have    followed.      It    is    claimed   by    the 

17 — Miller    v.     Boone.  County,    95  somewhat    similar    one    in    Fry    v. 

Iowa   5,   63   N.    W.    352   (354).  Railroad    Co.,    45    Iowa    416,    where 

"It  is  urged  that  this  instruction  the  jury  were  directed  that  dam- 
is  error  in  so  far  as  it  authorizes  ages  might  be  assessed  for  all  past, 
damages  for  future  pain  and  suf-  present  or  future  physical  suffer- 
fering,  because  it  is  not  qualified  ing  or  anguish  which  is,  has  been 
by  the  thought  that  damages  for  or  may  be  caused  by  said  injury, 
future  suffering  should  be  based  That  was  held  to  he  too  broad,  be- 
upon  the  evidence.  Such  a  qualili-  cause  it  authorized  the  jury  to  en- 
cation  is  necessary  where  there  is  ter  the  domain  of  conjecture.  In 
a  contention  as  to  the  permanency  the  case  at  bar,  the  injuries  were 
of  the  injury.  Rut  in  this  case,  the  permanent,  and  with  that  fact  es- 
injury  is  shown  beyond  question  to  tablished,  there  was  no  occasion  to 
be  permanent,  and  the  direction  to  make  the  instruction  any  more 
award  such  damages  as  may  rea-  specific  than  it  was." 
sonably  be  expected  to  arise  in  the  IS — El  Paso  E.  Ry.  Co.  v.  Ken- 
future  refers  to  the  condition  of  dall,  —  Tex.  Civ.  App.  — ,  85  S.  W. 
the  plaintiff   as   shown   by  the   evi-  61. 

dence.     The  instruction  is  not  vul-  19— Hotel     Ass'n     v.     Walters,    23 

nerable  to  the  objection  made  to  a  Neb.  380,  36  N.  W.  561  (564). 


646 


FORMS  OF  INSTRUCTIONS.  [§  928. 


defendant  that  this  man  was  peculiar  before,  that  he  was  really  not 
a  man  of  what  is  called  perfectly  .sound  mind  before  the  accident, 
and  I  suppose  the  inference  is  claimed  from  that  that  this  degen- 
eracy that  exists  now  naturally  followed,  and  was  not  caused  by  the 
injury.  You  have  this  ease  to  determine.  Here  is  a  man  that  was 
strong  upon  that  day.  There  is  at  present  no  physical  evidence 
that  he  ever  suffered  a  severe  injury  You  are  at  liberty  to  give  this 
plaintiff  damages  for  what  you  shall  And  to  be  the  result  and  con- 
sequences of  this  injury.  But  you  are  not  at  liberty  to  give  dam- 
ages for  anything  that  you  are  not  satisfied  has  been  proved  by  a 
preponderance  of  evidence  to  be  the  result  of  this  injury.  So  to  you 
is  confided  the  important  and  delicate  duty  of  determining  just 
exactly  what  was  the  result  of  this  injury,  and  how  much  of  this 
man's  condition  as  it  appears  to  be  now  was  produced  by  this  injury. 
I  say  this  is  an  important  and  responsible  duty  for  you.  It  is  not 
confided  to  the  court.  I  have  no  opinion  about  it,  and  have  no  right 
to  have  any  opinion  about  it;  but  it  is  my  duty  so  to  present  this 
matter  to  you  that  when  you  get  into  the  jury  room  you  will  clearly 
know  and  understand  your  duty  in  this  regard.20 

(c)  The  jury  is  instructed  that  even  if  you  should  believe,  from 
the  evidence,  that  the  walk  was  in  a  defective  condition,  and  that 
Mrs.  j —  c]id  fall  on  the  same  in  consequence  of  such  defective  condi- 
tion, yet  if  you  further  believe,  from  the  evidence,  that  she  was  in- 
jured thereby  and  that  her  subsequent  and  present  condition  is  in 
fact  the  result  of  some  other  disorder,  and  that  she  is  erroneously 
claiming  that  her  present  condition  is  the  result  of  such  fall,  then 
you  should  not  allow  her  anything  for  such  condition.21 

§928.  Care  to  Be  Taken  by  Injured  Person  After  Injury,  (a)  It 
was  the  duty  of  plaintiff  to  use  ordinary  care,  judgment  and  diligence 
in  securing  medical  and  surgical  aid  after  she  received  the  injuries 
complained  of;  if  any  she  received;  and  if  you  find  from  the  evidence 
that  after  she  received  such  injuries,  if  any  she  did  receive,  she 
failed  to  use  such  ordinary  care,  judgment  and  diligence  in  procur- 
ing timely  medical  and  surgical  aid;  and  if  you  further  find  from 
the  evidence  that  by  reason  of  such  failure  her  condition  is  now  dif- 
ferent and  worse  than  it  would  have  been  if  she  had  used  such  ordi- 
nary care,  judgment  and  diligence  in  the  premises  then,  if  you  find 
for  the  plaintiff,  you  should  take  this  into  account  in  making  up  your 
verdict,  and  should  not  allow  her  any  damages  for  ailments  and  dis- 
eases, if  any,  that  may  have  resulted  from  such  failure.22 

(b)  If  you  find  for  plaintiff,  and  if  you  further  find  and  believe 
that  after  the  cinder  got  in  plaintiff's  eye  he  failed  to  use  such  care 
and  means  to  avert  or  lessen  his  injuries  as  an  ordinarily  prudent 

20— Sterling  v.   Detroit,   134  Mich.  22— L.  &  N.  R.  Rv.  Co.  v.  Falvey, 

22,   95  N.  W.  986.  104   Ind.   409,   3    N.   E.   389;    Citizens' 

21— Village   of   Cullom   v.   Justice,  St.  Ry.  Co.  v.   Hobbs,  15  Ind.  App. 

161    111.    372    (376),    aff'g   59   111.    App.  610,  43  N.  E.   479   (481). 
304,   43   N.    E.   1098. 


§  ^29.]  DAMAGES— PERSONAL  INJURY.  647 

person,  situated  as  plaintiff  was,  would  have  used  under  similar  cir- 
cumstances, and  that  by  such  failure,  if  any,  his  injuries  were  ag- 
gravated or  increased,  then,  if  you  so  find,  you  will  not  allow 
plaintiff  anything  on  account  of  such  aggravated  or  increased  in- 
juries. 

(e)  If  you  find  from  the  evidence  that  after  being  so  injured,  if 
he  was,  the  plaintiff  exercised  such  care  in  attending  to  his  wounds 
and  in  trying  to  care  for  same  as  an  ordinarily  prudent  person 
would  have  done  under  the  same  or  similar  circumstances,  then  you 
are  instructed  that  the  defendant  company  would  be  responsible  for 
such  injuries  so  sustained  by  the  plaintiff,  even  though  you  may  be- 
lieve that  if  the  plaintiff  had  pursued  some  other  course,  or  taken 
some  other  measure,  in  and  about  his  injuries,  they  would  not  have 
resulted  as  seriously  as  the  proof  may  show  in  this  case  they  did 
result.23 

(d)  The  court  instructs  you  that  for  all  the  suffering,  if  any, 
either  mentally  or  physically,  which  plaintiff  could  have  prevented  by 
the  exercise  of  prudence  and  reasonable  care,  treatment  and  atten- 
tion to  his  fingers  that  were  hurt,  if  any,  by  the  negligence  of  de- 
fendant's servants,  he  cannot  recover  anything;  and  if  you  believe 
from  the  evidence  that  plaintiff's  bone  felon  was  not  bruised  and  in- 
jured at  the  time  of  the  accident,  then  you  will  not  consider  the  bone 
felon,  or  the  condition  of  the  hand  on  which  the  bone  felon  was, 
either  then,  thereafter,  or  now,  or  the  suffering  he  may  have  endured 
therefrom,  in  arriving  at  your  verdict,  whatever  may  be  your  findings 
as  to  the  accident  on  the  other  hand  of  plaintiff.24 

(e)  You  are  instructed  that  plaintiff  would  not  be  required  to 
have  an  operation  performed  that  a  person  in  the  exercise  of  or- 
dinary care  would  not  have  performed.  So,  if  you  believe  from  the 
evidence  that  a  person  of  ordinary  care,  for  his  own  physical  wel- 
fare, in  the  condition  in  which  you  find  and  believe  from  the  evidence 
plaintiff  was  and  is,  would  not  have  an  operation  performed,  and  if 
you  find  for  the  plaintiff,  then  you  will  consider  plaintiff's  injuries  in 
the  condition  that  they  were  and  are  without  such  operation. 

(f)  If  you  find  in  favor  of  plaintiff,  then,  in  arriving  at  the 
amount  of  the  verdict,  you  are  instructed  that  if  you  believe  from 
the  evidence  a  surgical  operation  would  benefit  plaintiff's  leg,  and 
that  the  exercise  of  ordinary  care  on  plaintiff's  part  would  require 
him  to  have  such  operation  performed,  then  it  would  be  plaintiff's 
duty  to  have  this  done,  and  you  will  only  consider  plaintiff's  in- 
juries as  they  would  be  had  this  been  done  at  such  a  time  as  a  per- 
son of  ordinary  prudence  would  have  had  it  performed.25 

§  929.  Failure  to  Use  Due  Care  in  Treating  Injury.  You  are  in- 
structed that  in  no  event  can  the  plaintiff  recover  for  injuries  he 

23— Mo.  K.  &  T.  Ry.  Co.  of  Texas     v.    Ball,    28  Tex.   Civ.   App.   287,   66 
v.    Flood,  35  Tex.   Civ.  App.  197,  79     S.   W.   879    (S82). 
S    W    1106    (1108).  25— Mo.  K.  &  T.  Ry.  Co.  v.  Schill- 

24— St    L.  S.  W.  Ry.  Co.  of  Texas     in^.  32  Tex.  Civ.  App.  417,  75  S.  W. 

64   (66) 


648  FORMS  OF  INSTRUCTIONS.  [§  930. 

may  have  sustained  by  any  failure  on  his  part  to  use  due  care  in 
the  matter  of  treating,  or  having  'treated,  the  original  injury  sus- 
tained by  him.26 

§  930.  Defendant  Not  Liable  For  Aggravated  Injuries  Occasioned 
By  Carelessness  of  Injured  After  Accident — Should  Seek  Proper 
Medical  Attention,  (a)  The  jury  is  instructed  that  the  plaintiff  is 
not  entitled  to  recover  any  damages  for  any  disability,  suffering  or 
expense  that  resulted  from  her  own  failure  to  exercise  proper  and 
reasonable  care  after  she  received  the  injury  of  which  she  complains, 
which  aggravated  her  condition,  by  failure  to  observe  the  instructions 
of  her  physician;  and  the  city  is  not  to  be  held  responsible  for  any 
damages  resulting  from  such  neglect  on  her  part.27 

(b)  The  court  instructs  you  that  a  person  suffering  injuries  by 
the  fault  of  another  has  no  right  to  aggravate  the  same  by  careless- 
ness or  inattention  to  such  injury,  but  if  he  does  so,  he  has  no  right 
to  recover  from  the  party  causing  the  original  injury,  damages  re- 
sulting from  such  aggravation,  and  which  resulted  from  his  own  care- 
lessness. 

(c)  If,  therefore,  you  should  find  from  the  evidence  that  the 
plaintiff  received  some  injuries  about  the  head  and  ear  such  as  re- 
quired medical  treatment,  then  it  was  his  duty  to  use  reasonable 
diligence  to  procure  proper  and  reasonable  competent  medical  atten- 
tion, and  to  continue  to  obtain  for  himself  such  treatment  so  long  as 
his  injuries  appeared  reasonably  to  require  it.  And  if  the  evidence 
shows  any  failure  on  the  part  of  the  plaintiff  to  discharge  the  duty 
of  obtaining  reasonably  proper  medical  attention,  then  he  cannot  re- 
cover damages  for  any  aggravation  of  his  injury  or  result  therefrom 
occasioned  by  such  failure.28 

26— Texas    P.    C.    Co.    v.    Poe,    32  an  injury,  and  that  he  cannot  re- 

Tex.  Civ.  App.  469,  74  S.  W.  563.  cover  for  any  suffering  or  ailment 

"If    plaintiff   failed    to    use    ordi-  brought    about    by    his    failure    to 

nary  care  to  treat  or  have  treated  use    such    care    and    diligence    can 

his  injuries,  and  by  reason  of  such  not    be    denied.      That    the    injury 

failure   the  same  were  aggravated  was  aggravated  by  such  failure,  is, 

or  increased,   he   could  not  recover  of  .course,   matter  of   defense;    and 

from  defendant  damages  for  the  in-  after  an  injury  by  the  defendant's 

creased   injury   resulting   from    his  negligence     has     been     established 

failure  to  use  ordinary  care,  under  the  burden  is  on  the  defendant  to 

all   the  circumstances,  to  have  the  show  the  plaintiff's   failure  to   use 

same   treated."  ordinary   care,   judgment   and   dili- 

27— Zibbell  v.  Grand  Rapids,  129  gence  in  having  the  injury  prop- 
Mich.  659,  89  N.  W.  563  (564).  erly   treated.     It  is,    of   course,   for 

"This    instruction    correctly    em-  the     jury     to     determine     whether 

bodied    the    law.     Moore    v.    Kala-  anything  should  be   deducted  from 

mazoo,    109    Mich.    179,    66    N.    W.  the    damages    by    reason    of    such 

1089;     Reed    v.    Detroit,    108    Mich,  negligent  aggravation.  These  prop- 

224.   65   N.   "W.   967."  ositions  are  well  supported  by  the 

28— Citizens'  St.  R.  Co.  v.  Hobbs,  authorities.       City     of     Goshen     v. 

15  Ind.  App.  610,  43  N.  E.  Rep.  479  England,    119    Ind.     369,    21    N.    E. 

^1>-  977,   5  L.  R.  A.  253;  L.   N.  A.   &  C. 

"That   it  is  the  duty  of  a  party  Railway    Co.    v.    Falvey,    104    Ind. 

thus   injured  to  use  ordinary  care  409,    3   N.    E.   389   and   4   N.   E.   908; 

and    diligence   in    securing   medical  City  of  Bradford  v.  Downs,  126  Pa. 

or  surgical  aid  after  receiving  such  St.   622,   17  Atl.    884;    Gould  v.    Mc- 


§  931.]  DAMAGES— PERSONAL  INJURY.  G49 

§  931.  Injured  Must  Use  Care  in  Selecting  Doctor,  but  Not  In- 
surer of  Doctor's  Skill.  You  are  instructed  that  it  was  the  duty  of 
the  plaintiff  to  employ  such  doctor  or  doctors  for  the  treatment  of 
his  injuries  as  ordinary  prudence  in  his  situation  at  the  time  of  the 
injury,  and  thereafter  required;  and  to  use  ordinary  judgment  and 
care  in  doing  so,  and  to  select  only  such  doctor  as  was  of  at  least 
ordinary  care  and  skill  in  his  profession;  but  the  law  does  not  make 
him  an  insurer  in  such  cases  that  the  doctor  will  be  guilty  of  no 
negligence,  error  in  judgment  or  want  of  care,  and  where  such  er- 
rors or  mistakes  occur  in  the  treatment  (the  injured  party  using  or- 
dinary care)  the  injury  resulting  from  such  mistakes  is  properly  re- 
garded as  part  of  the  immediate  and  direct  damages  resulting  from 
the  original  injury.29 

§  932.  Physicians'  Services  and  Medicines — Negligence  in  Treat- 
ment of  Wound,  (a)  If  the  jury  find  for  the  plaintiff,  they  will  assess 
her  damages  at  such  sum  as  you  may  believe  will  compensate  her  for 
her  injuries,  if  any,  she  may  have  sustained  by  reason  of  the  negli- 
gence of  the  defendant,  together  with  such  sum,  if  any,  as  you  be- 
lieve will  compensate  her  for  her  suffering,  including  moneys  paid, 
or  which  she  has  obligated  herself  to  pay,  for  physicians'  services 
and  medicines  by  reason  of  said  injuries  and  directly  resulting  there- 
from.30 

(b)  While  it  was  the  duty  of  plaintiff  to  employ  such  medical  atten- 
tion as  ordinary  prudence  in  his  situation  required,  and  to  use  ordinary 
judgment  and  care  in  doing  so,  and  to  select  only  such  as  were  of  at 
least  ordinary  skill  and  care  in  their  profession,  yet  if  he  exercised 
such  judgment  and  care,  then,  in  case  you  find  him  entitled  to  re- 
cover, under  the  evidence  and  the  instructions  of  the  court,  you  may 
take  into  consideration  all  injuries  and  impairments,  if  any,  which 
directly  resulted  from  the  occurrence  in  question,  even  though  they 
resulted,  in  part,  through  mistakes  of  some  one  or  of  any  of  his 
medical  attendants.  This  liability,  that  a  medical  attendant  (pro- 
vided ordinary  care  was  used  in  his  selection)  may  make  mistakes  or 
errors,  is  by  you   (but  as  limited  by  above  provisions)    to  be  con- 

Kenna,  86  Pa.  St.  297.  27  Am.  Rep.  The    plea     of    contributory    negh- 

705;    Ludlow   v.   Yonkers,   43   Barb,  gence  may  be  broad  enough  to  in- 

493;     Beach,    Contrib.     Neg.     §§  69,  elude   negligence   in   the   treatment 

70."  of  the  wound,  causing  aggravation 

29 — C.  &  E.  I.  R.  R.  Co.  v.  Bur-  and  increase  of  the  injury,  but  to 

ridge,  107  111.  App.   23  (30).     See  C.  warrant  an  instruction   on    any  is- 

E.   R.   R.  Co.  v.   Meach  163  111.  305,  sue  in  a  case  there  must  be  some 

aff'g  59  111.  App.  65,  45  N.  E.  390.  evidence  tending  to  prove  that   is- 

30— New  v.   St.   L.   &   S.   Ry.   Co.,  sue.     There   is   not    a   ray   of    evi- 

114  Mo.   App.   379,  89  S.  W.  1043.  dence  proving,  or  tending  to  prove. 

"The  giving  of  the  above  instruc-  that  plaintiff  was  negligent   in   the 

tion  on  the  measure  of  damages  is  treatment    of   her   wound.     In    her 

assigned    as    error,    on    the    ground  excitement  plaintiff  did  not  realize 

that    contributory   neglierence,    pen-  the  extent  of  the  injury  until  hours 

erallv,    is    pleaded    in    the    answer,  after  it  had  been  inflicted,  in  fact, 

and    that    this    plea   would    include  not    until    the    following    morning 

negi'g-ence  in  the  treatment  of  the  when   she   called   a   physician,    and 

injury  whereby  it  was  aggravated,  there  is  no  evidence  that  the  home 


650  FORMS  OF  INSTRUCTIONS.  [§  933. 

sidered  as  part  of  the  immediate  and  direct  damages  resulting  from 
the  occurrence  in  question.31 

§933.  Violated  Instructions  of  Physician,  Thereby  Preventing 
Recovery.  If  you  believe  from  the  evidence  that  after  the  defendant 
received  his  injury  (if  you  believe  he  received  any),  he  did  not  proper- 
ly care  for  the  same,  but  negligently  violated  the  instructions  of  his 
physician,  and  negligently  used  and  walked  upon  his  injured  leg, 
and  thereby  prevented  and  delayed  the  recovery  of  said  injury  or 
wound,  you  cannot  find  for  any  additional  damages  caused  by  such 
neglect.32 

§934.  Frightening  Person  Near  Track,  Producing  Miscarriage- 
Contributory  Negligence,  (a)  Although  you  should  find  that  the  agents 
of  defendant  in  charge  of  its  train  failed  to  blow  the  whistle  or  ring 
the  bell,  but  you  further  believe  that  the  plaintiff,  by  the  use  of  or- 
dinary care,  could  have  prevented  a  miscarriage  of  his  wife,  and 
that  he  failed  to  exercise  such  care  to  prevent  or  lessen  the  injury, 
and  such  failure  contributed  to  the  miscarriage,  then  for  such  injury 
plaintiff  cannot  recover. 

(b)  In  this  connection  you  are  instructed  that  if  plaintiff's  wife  was 
frightened  in  the  manner  alleged,  and  thereafter  threatened  with 
miscarriage,  and  during  that  time  was  conveyed  to  her  home  in  a 
wagon,  and  the  same  produced  or  contributed  to  produce  a  miscar- 
riage, then  for  the  physical  and  mental  pain  suffered  by  reason  there- 
of plaintiff  cannot  recover.33 

§  935.  What  the  Jury  May  Think  Right  and  Proper  in  View  of 
All  the  Facts  and  Circumstances  Proved    (a)  The  jury  are  instructed 

treatment     she     applied     to     the  Denson,    —  Tex.    Civ.   App.    — ,    72 

wound    on    the   day   of   her   injury  S.  "W.  70. 

was  not  remedial  and  proper.     We  "This  special  charee  should  have 

think,   under  the  evidence,   the  de-  been  eriven.    Appellant  was  entitled 

fendant     has     no     just  ground     to  to    have    the   court   explain   to    the 

complain    of   the    instruction."      On  jury   the  principles   of   law   applic- 

this  subject  see   Elliott   v.   Kansas  able  to  the  very  facts  constituting 

City,  174  Mo.  554,  74  S.  W.  617.  his  defense." 

31— Chi.  C.  Ry.  Co.  v.  Nelson,  116  33— St.  L.  W.  Ry.  Co.  v.  Mitchell, 

111.    App.    609,    aff'd    215    111.    436,    74  25  Tex.  Civ.  App.  197,  60  S.  W.  891 

N.  E.  458.  (893). 

"The    instruction    is    said    to    be  "It  is  said   that  this  charge  was 

erroneous  because,  by  its  last  sen-  erroneous  in  that  it  excluded  from 

tence,   the   liability  that  a   medical  consideration    every    act    of    negli- 

attendant    may   make    mistakes    is  gence  on  the  part  of  plaintiff  hap- 

made  an  element  of  damages,  and  pening  after  the  alleged  fright,  ex- 

that  there  is  no  evidence  on  which  cept  that  referred  to  in  the  charge. 

to   base    the    instruction.      A    suffi-  The   charge  as   given    renders   this 

cient    answer   to   the  first   claim   is  criticism    baseless    because    in    the 

that  there  is  no  contention  that  the  same  paragraph,  and  following  the 

damages  awarded  appellee  are  ex-  above,    the    court    added:      'Or    if 

cessive.     The  other  claim  is  not,  in  plaintiff's  wife  miscarried,  and  the 

our    opinion,    tenable,    because    one  same  was  caused  or  produced  from 

of  the  phvsieinns  who  attended  ap-  anv  cause  other  than  the  fright,  if 

pellee  failed   to  discover  that  there  any,    occasioned    by   reason   of   the 

was    a    fracture    of    his    shoulder,  matters     and      things     alleged      in 

which   the  evidence  shows  was  the  plaintiff's     petition,     then     plaintiff 

principal  injury  from  which  he  suf-  cannot    recover    any    sum    for    the 

fered."  physical    or    mental    pain    suffered 

32— Gulf,   C.    &   S.    F.   Ry.   Co.   v. 


§  936.]  DAMAGES— PERSONAL  INJURY.  651 

that  if  they,  under  the  instructions  of  the  court,  from  tin'  evidence 
believe  that  the  plaintiff  is  entitled  to  recover  in  this  action,  then, 
in  assessing  her  damages  the  jury  are  at  liberty  to  take  into  account 
the  character  and  extent  of  the  plaintiff's  injuries,  so  far  as  they 
have  been  proved  by  the  evidence,  the  pain  and  suffering  endured  by 
her  if  any,  in  consequence  of  such  injury,  her  costs  of  medical  at- 
tendance, if  such  a  loss  of  time  and  costs  have  been  proved,  and 
where  such  damages  as  the  jury  may.  from  the  evidence,  think  proper 
and  right  in  view  of  all  the  facts  and  circumstances  proved  on  the 
trial.  The  jury  can  only  allow  actual  damages  by  way  of  compensa- 
tion. In  this  case  damages  by  way  of  punishment  are  not  allowed." 
(b)  You  are  at  liberty  to  take  into  consideration  the  injuries,  so  tar 
as  they  have  been  shown  by  the  evidence;  the  pain  and  suffering  en- 
dured by  the  injured  party;  his  loss  of  time,  if  loss  of  time  has  been 
proven, — and  award  such  damages  as  you  may  think  proper  and 
right  in  view  of  all  the  circumstances  proven  on  the  trial  of  this 
case.  If  you  find  that  the  injuries  were  inflicted  willfully  and  ma- 
liciously, then  you  are  not  limited  to  mere  compensation  for  the  ac- 
tual damages  sustained,  but  may  give  such  further  sum  by  way  of 
exemplary  damages  as  an  example  to  others  to  deter  them  from 
offending  in  a  like  manner.35 

§  936.  Damages  for  Personal  Injury  in  Sound  Discretion  of  Jury, 
From  All  the  Facts  in  the  Case,  etc.  If  you  find  under  the  instruc- 
tions already  given,  gentlemen  of  the  jury,  that  the  plaintiff  is  en- 
titled to  recover  in  this  action,  the  amount  of  the  recovery  is  for  you 
to  determine  from  all  the  facts  in  the  case.  Of  course  you  cannot 
measure  in  dollars  and  cents  the  exact  amount  which  she  is  entitled 
to  recover,  but  it  is  for  you  to  say  in  the  exercise  of  a  sound  dis- 
cretion, from  all  the  facts  in  the  ease,  after  considering  and  weighing 
all  the  facts  in  the  case,  without  fear  and  without  favor,  without 
passion  and  without  prejudice,  what  amount  of  money  will  reasona- 
bly compensate  her  for  the  damages  and  injury  which  she  has  suf- 
fered.36 

§  937.  Jury  May  Estimate  Damages  from  Facts  and  Circumstances 
in  Proof,  in  Connection  with  Their  Knowledge,  Observation  and  Ex- 
perience in  Business  Affairs  of  Life — Limitation  of  the  Rule,  (a) 
If  from  the  evidence  and  under  the  instructions  of  the  court,  the 
jury  shall  find  the  issue  for  the  plaintiff,  and  that  the  plaintiff  has 
sustained  damages  as  charged  in  the  declaration,  then  to  enable  the 
jury  to  estimate  the  amount  of  such  damages,  it  is  not  necessary  that 
any  witness  should  have  expressed  an  opinion  as  to  the  amount  id' 
such  damage,  but  the  jury  may  themselves  make  such  estimate  from 
the  facts  and  circumstances  in  proof,  and  by  considering  them  in  con- 
by  her  by  reason  of  such  miscar-  35— Oorstz  v.  Pinske,  S2  Minn. 
riage.'  "  456.  85  N.  W.  215  (216). 

34— Rees    v.    Rasmussen,    5    Neb.        36— Bell    v.     Spokane,     30    Wash 
(unof.)  367,  98  N.  W.  830.  508,    71   Pac.    31    (33). 


652 


FORMS  OF  INSTRUCTIONS. 


[§  937, 


neetion  with  their  knowledge,  observation  and  experience  in  the  busi- 
ness affairs  of  life.37 

(h)  The  court  instructs  the  jury  that  if,  under  the  evidence  and 
instructions  of  the  court,  you  find  the  defendant  guilty,  then  in  as- 
sessing  the  plaintiff's  damages,  if  any  such  damages  as  are  alleged 
in  her  declaration  are  proved,  you  have  a  right  to  take  into  consid- 
eration the  nature,  extent  and  character  of  the  injury  sustained  by 
her,  so  far  as  the  same  is  shown  by  the  evidence,  if  any  such  are  so 
shown,  the  pain  and  suffering  undergone  by  her  in  consequence  of 
such  injury,  if  any  such  is  shown  by  the  evidence,  and  assess  damages 
in  such  sum  as  in  your  judgment  will  compensate  the  plaintiff  for 
such  injury  and  pain  and  suffering.38 

(e)  If  from  the  evidence  in  the  case  and  under  the  instructions  of 
the  court  the  jury  shall  find  the  issue  for  the  plaintiff,  and  that  the 
plaintiff  has  sustained  damages  as  charged  in  the  declaration,  then 
to  enable  the  jury  to  estimate  the  amount  of  such  damages  it  is  not 
necessary  that  any  witness  should  have  expressed  an  opinion  as  to 
the  amount  of  such  damages,  but  the  jury  may  themselves  make  such 
estimate  from  the  facts  and  circumstances  in  proof.39 


37— Ottawa  Gas  L.  Co.  v.  Gra- 
ham, 28  111.  73,  81  Am.  Dec.  263; 
Norton  v.  Volzke,  158  111.  402,  41  N. 
E.  1085,  49  Am.  St.  Rep.  167,  aff'g 
54  111.  App.  545;  N.  C.  St.  R.  R.  Co. 
v.  Fitzgibbons,  180  111.  466  (469), 
aff'g  79  111.  App.  632,  54  N.  E.  483; 
Richardson  v.  Nelson,  221  111.  254 
(258,   259),   77  N.    E.   583. 

In  the  Fitzgibbons  case,  the 
.court  said:  "Where  there  are  ele- 
ments of  damage  such  as  expendi- 
ture, capable  of  pecuniary  meas- 
urement, the  law  requires  that  the 
amount  shall  be  proved.  But  there 
are  other  elements  in  this  case 
which  are  not  capable  of  exact 
measurement.  The  amount  of  com- 
pensation for  pain  and  suffering, 
and  the  future  consequences  rea- 
sonably certain  to  result,  are  not 
capable  of  exact  proof  by  any  pe- 
cuniary standard.  Such  damages 
are  alleged  in  the  declaration,  and 
the  evidence  tends  to  prove  them 
*  *  *  but  the  question  of  their 
amount  must  be  left  from  neces- 
sity to  the  deliberative  judgment 
of  the  jury  the  trial  court  and  the 
Appellate  Court.  The  jury  from 
the  nature  of  the  case  must  esti- 
mate such  damages  by  consider- 
ing the  facts  and  circumstances  in 
connection  with  their  knowledge, 
observation  and  experience  in  the 
affairs   of   life." 

38— Springfield  Ry.  Co.  v.  Hoeft- 
ner.  17:,  111.  634  (641),  aff'g  71  111. 
App.  162,    51    N.    E.    884. 


"An  instruction  is  not  wrong 
which  tells  the  jury  that,  in  mak- 
ing an  estimate  of  damages,  they 
shall  exercise  their  judgment  upon 
the  facts  in  proof  by  connecting 
them  with  their  own  knowledge 
and  experience;  where  the  refer- 
ence is  to  the  usual  general  knowl- 
edge 'which  they  are  supposed  to 
possess  in  common  with  the  gener- 
ality of  mankind.'  They  are  au- 
thorized to  test  the  truth  and 
weight  of  the  evidence  by  their 
own  knowledge  and  judgment  de- 
rived from  experience,  observation 
and  reflection.  Chicago  v.  Major, 
18  111.  349,  68  Am.  Dec.  553;  Ottawa 
G.  L.  &  C.  Co.  v.  Graham,  28  111. 
73,  81  Am.  Dec.  263.  "Where  an  in- 
struction, in  an  action  for  dam- 
ages for  a  personal  injury  author- 
ized the  jury  to  award  such  rea- 
sonable sum  as  would  compensate 
the  plaintiff  for  the  impairment  of 
his  power  to  earn  money  in  the  fu- 
ture, and  such  reasonable  sum  as 
would  compensate  him  for  the  pain 
and  anguish  suffered  by  reason  of 
his  injury,  it  was  held  that  these 
elements  were  from  necessity  left 
to  the  sound  discretion  of  the  jury. 
Baltimore  &  Ohio  S.  W.  Ry.  Co.  v. 
Then,  159  111.  535,  42  N.  E.  971;  I.  C. 
R.  R.  Co.  v.  Cole,  165  111.  334,  46 
N.  E.  275;  W.  C.  St.  R.  R.  Co.  V. 
Carr,  170  111.  478,  48  N.  E.  992." 

39— C.  P.  &  St.  D.  Ry.  Co.  V. 
Lewis,  48  111.  App.  274  (280,  281), 
aff'd  145  111.  67,  33  N.  E.  960. 

"We    regard    it    as    a    fair    and 


§938.] 


DAMAGES— PERSONAL  INJURY. 


653 


§  938.  Injury  to  Postal  Clerk — Compensation  from  Other  Sources 
Will  Not  Release  or  Diminish  Amount  Defendant  is  Liable  for.  It 
is  immaterial  whether  the  government  paid  the  plaintiff  anything-  or 
not.  That  would  not  affect  the  rights  of  the  plaintiff  in  this  case  to 
recover  against  the  railroad  company.40 

§  939.  Measure  of  Damages  Limited  to  What  Is  Alleged  and 
Proved,  and  What  Results  from  Accident,  (a)  You  are  further 
instructed  that,  if  you  find  for  plaintiff,  you  cannot  find  any  damages 
for  him  not  alleged  and  proved.  There  cannot,  in  any  event,  be  any 
recovery  for  loss  of  time  or  sickness  not  both  alleged  and  proved  by 
a  preponderance  of  the  evidence.41 

(b)  The  court  instructs  the  jury  that,  in  assessing  the  damages 
for  the  plaintiff,  you  have  no  right  to  assess  the  damages  at  any 
larger  sum  than  the  plaintiff  has  actually  sustained;  and  in  assessing 
such  damages,  you  will  be  limited  to  the  injuries,  if  any,  resulting 
from  the  accident.42 

§  940.  Omitting  Element  of  Damages  in  An  Instruction  Not  Error, 
if  Instruction  Otherwise  Correct — Omission  Should  Be  Corrected  by 
Special  Charge.     Should  you  find  for  plaintiff  under  the  instructions 


proper  statement  of  the  rule  of 
law  applicable  to  the  subject  un- 
der consideration.  Necessarily  the 
estimate  of  damages  for  personal 
injury  and  physical  suffering  must 
depend  upon  the  judgment  of  the 
jury.  There  can  be  no  direct  proof 
in  regard  to  it,  and  no  witness  can 
be  allowed  to  express  his  opinion 
upon   the  point." 

40— N.,  C.  &  St.  L.  Ry.  v.  Miller, 
120  Ga.    453,   47   S.   E.    959   (960). 

"When  one  engaged  in  any  call- 
ing or  avocation  from  which  he 
derives  a  pecuniary  benefit  is  com- 
pelled to  give  up  for  a  time  the 
performance  of  his  duties,  as  the 
result  of  an  injury  inflicted  upon 
him  by  a  wrongdoer,  he  is  entitled, 
a  general  rule,  to  demand  compen- 
sation for  the  time  thus  lost  at  the 
hands  of  the  wrongdoer  who  in- 
flicted the  injury.  The  general 
rule  is  that,  where  a  wrongdoer 
causes  time  to  be  lost,  he  will  not 
be  heard  to  say  that  the  person  in- 
jured has  suffered  no  pecuniary 
loss,  because  he  has  received,  as  a 
direct  result  of  being  injured,  con- 
tributions which  in  amount  aggre- 
gate more  than  what  would  have 
been  earned  during  the  time;  nor 
will  his  liability  be  diminished  to 
the  extent  of  contributions  which 
were  less  than  what  would  have 
been  earned.  If,  from  motives  of 
affection,  philanthropy,  or  as  the 
result  of  a  contract,  the  plaintiff 
has  received  from  one  other  than 
his  employer  any  sums,  the  recep- 
tion  of  which   are   directly  attrib- 


utable to  the  fact  that  he  has  been 
injured,  the  person  causing  the  in- 
jury will  not  be  allowed  to  urge 
the  payment  of  such  sums  in  miti- 
gation of  the  damages  claimed 
against  him.  Thus  it  has  been 
held  that  the  damages  will  not  be 
reduced  by  any  amount  of  insur- 
ance received  in  consequence  of  the 
wrongdoer's  act.  See  Western  & 
A.  R.  R.  v.  Meigs,  74  Ga.  857  (5); 
Cunningham  v.  R.  Co.,  102  Ind.  478, 
1  N.  E.  800,  52  Am.  Rep.  683.  Nor 
will  the  fact  that  medical  atten- 
tion and  nursing  have  been  ren- 
dered gratuitously  preclude  the  in- 
jured party  from  recovering  the 
value  of  such  services." 

41 — Sonka  v.  Sonka,  —  Tex.  Civ. 
App.    — ,   75    S.    W.    325. 

"It  merely  informed  the  jury 
that  damages  must  be  predicated 
on  allegation  and  proof,  and  that 
in  no  event  could  damages  arising 
from  loss  of  time  or  sickness  be 
recovered,  unless  supported  by  al- 
legation and  proof.  If  the  latter 
part  of  the  charge  could  have  im- 
properly influenced  the  jury,  it 
might  have  been  that  it  would 
cause  them  to  believe  that  while 
it  was  important  that  damages  for 
loss  (if  time  and  sickness  should 
be  alleged  and  proved,  in  order  to 
justify  a  recovery,  it  was  not  so 
essential  as  to  other  damages.  We 
do  not  think  there  is  any  cause  for 
complaint  as  to  the   charge." 

42— I..  E.  &  W.  R.  R.  Co.  v.  De- 
long,    109    111.    App.    241    (245). 


654  FORMS  OF  INSTRUCTIONS.  [§  941. 

herein  given  you,  then  in  estimating  the  damages,  if  any,  you  award 
the  plaintiff,  you  may  take  into  consideration  the  mental  and  physi- 
cal pain  and  suffering,  if  any,  endured  by  plaintiff's  wife  by  reason 
of  her  injury,  if  any,  and  allow  plaintiff  such  a  sum  of  money  as  you 
may  believe  from  the  evidence  will  be  a  fair  and  reasonable  com- 
pensation for  such  mental  and  physical  pain  and  suffering,  if  any,  by 
reason  of  such  injury,  if  any.43 

§  941.  Compensatory  Damages  Only,  (a)  I  charge  you  that  in 
cases  of  this  kind  the  plaintiff  can  recover  only  the  actual  damages 
suffered  by  him,  unless  the  master  authorized  the  commission  of  the 
acts  complained  of  or  participated  therein,  or  ratified  it  after  its 
commission.44 

(b)  If  you  find  that  the  plaintiff  is  entitled  to  recover  damages 
from  the  defendants,  or  either  of  them,  you  should  only  award  the 
plaintiff  such  damages  as  will,  in  your  judgment,  after  a  fair  and 
conscientious  consideration  of  the  evidence  in  the  case,  justly  com- 
pensate him  for  the  injuries  he  has  suffered,  if  any,  and  will  suffer, 

if  any,  as  the  result  of  the  collision  between  the 

and  the .     And  the  burden  is  upon  the  plaintiff 

to  prove  each  element  of  damage  claimed  by  him  by  the  greater 
weight  of  the  evidence,  and  such  element  or  elements  of  damage,  if 
any,  as  are  not  proven  by  the  greater  weight  of  the  evidence,  are  not 
to  be  allowed  by  you.45 

§  942.  Exemplary  Damages — In  Tort  Generally.  The  jury  are  in- 
structed, that  in  actions  of  this  kind,  if  the  jury  find  the  defendant 
guilty,  under  the  evidence  and  instructions  of  the  court,  and  if  they 
further  find,  from  the  evidence,  that  the  injury  complained  of  was  in- 
flicted willfully  or  maliciously,  and  that  the  plaintiff  has  sustained 
any  actual  damage  thereby,  then  the  jury,  in  assessing  damages,  are 
not  limited  to  mere  compensation  for  the  actual  damage  sustained, 

43— Knauff  v.  San  Ant.  Trac.  Co.,  Co.,  14  Tex.  Civ.  App.  451,  37  S.  W. 

—  Tex.  — ,   70  S.   W.   1011.  234,   the   court   omitted   an   element 

"Undoubtedly,  the  charge,  so  far  of  damages  pleaded,  and  the  court 

as  it  goes,  is  correct,   and  the  at-  held:     'If   the   court  had   given   an 

tack  upon  it  must  be  on  the  ground  incorrect  charge  on  the  measure  of 

of  an   error  of  omission.     No   spe-  damages  as  to  the  items  Submitted, 

cial     charge    was     requested     that  this  would  have  been  error,  and   a 

would     supply    the    omission,    and  special  charge  seeking  to  correct  it 

through  an  unbroken  line  of  deci-  would   not   have   been   essential   in 

sions    from     Dallam's    Reports    to  order  to  raise  the  objection  to  the 

the  present   it   has  been  uniformly  charge.     But  when  the  main  charge 

held     that    advantage     cannot     be  fails    to    include    all   the    items    of 

taken    on    appeal    of    an    error    of  damages  claimed,  this  is  an  omis- 

omission  in  the  charge  of  the  trial  sion  which  should  be  corrected  by 

court,  unless  a  special  charge,  in-  a      special     charge     seeking     that 

tended  to  supply  the  omission,  has  end.'  " 

been  requested  and  refused.     Har-  44 — Trabing  v.   Cal.   Nav.   &  Imp. 

Ian    v.     Baker,    Dallam.    Dig.     578;  Co.,  121  Cal.  137,  53  Pac.  644  (646). 

Beazley  v.   Denson,  40  Tex.  416;   T.  45— C.    &   E.    R.    R.    Co.    v.    Clem- 

&    P.    R.    R.    Co.    v.    Eberheart,    91  inger,   178  111.   536  (538),  aff'g  77  111. 

Tex.  321,  43  S.  W.  510.     In  the  case  App.  186,   53  N.   E.   320. 
of  Terry   v.    G.    C.    &    S.    F.    R.    R. 


§943.] 


DAMAGES— PERSONAL  INJURY. 


655 


but  they  may  give  him  such  further  sum,  by  way  of  exemplary  or 
vindictive  damages,  as  a  protection  to  the  plaintiff,  and  as  a  salutary 
example  to  others,  to  deter  them  from  offending  in  like  manner.10 

§  943.  Punitive  Damages — Actual  Damages  Very  Small.  If  you 
come  to  the  question  of  punitive  damages,  the  purpose  of  the  law,  if 
the  plaintiff  makes  out  her  case,  is  to  punish  the  other  party,  and  the 
amount  of  actual  damages,  cuts,  so  to  speak,  or  might  cut,  a  very 
little  figure  in  the  case.  If  they  are  entitled  to  punitive  damages, 
then  you  will  assess  such  an  amount  as  will  punish  them  for  their 
wanton  and  malicious  conduct.47 

§  944.  Negligence  May  Be  So  Gross  and  Reckless  as  to  Imply  In- 
tent, for  Purpose  of  Allowing  Punitive  Damages.  The  court  in- 
structs the  jury  that  under  this  complaint,  if  you  find  the  negligence 
was  so  gross,  or  that  from  a  reckless  disregard  of  the  safety  of  the 
passengers,  the  injury  resulted,  you  are  allowed  to  give  exemplary 
damages  in  the  way  of  punishment.  Negligence  may  be  so  gross  and 
so  reckless  as  to  imply  the  act  was  done  willfully  or  with  premedita- 
tion.48 

§  945.  Punitive  Damages — Smart  Money,  (a)  If  you  find  that 
the  conduct  of  the  defendant  was  wanton  and  malicious,  without  any 


46— Pike  v.  Dilling,  48  Me.  539 
Mc Williams  v.  Bragg-,  3  Wis.  424 
Dibble  v.  Morris,  26  Conn.  416 
Ousley  v.  Hardin,  23  111.  403. 

47— Beaudrot  v.  So.  R.  Co.,  69  S. 
C.    160,    48    S.    E.    106. 

"This  was  correct  as  a  general 
statement  of  the  law,  and  we  do 
not  think  can  be  fairly  construed 
to  mean,  as  defendant  contends, 
that  the  jury  should  not  take  into 
consideration  the  insignificance  of 
the  actual  damages  in  fixing  the 
amount  of  punitive  damages." 

48— Boyd  v.  Blue  R.  Ry.  Co.,  65 
S.   C.    326,   43   S.    E.    817    (SIS). 

"This  qualified  what  has  been 
said  before,  and.  taken  in  connec- 
tion with  the  illustration  immedi- 
ately following — of  a  street  car 
driven  with  extra  speed  through 
a  crowded  street — made  it  clear 
that  it  was  not  simply  gross  negli- 
gence, but  negligence  gross  and 
reckless  of  consequences  to  others 
to  such  degree  as  to  assume  the 
nature  of  willfulness,  which  the 
jury  must  have  understood  to  be 
necessary  to  warrant  a  verdict  for 
exemplary  damages.  If  it  is  fair 
to  conclude  the  jury  received  this 
impression,  the  charge  in  this  re- 
gird  is  fully  sustained  by  the  view 
of  this  court  as  expressed  by  Chief 
Justice  Mclver  in  Proctor  v.  Rail- 


way Co.,  61  S.  C.  189,  39  S.  E.  358. 
To  illustrate  by  stating  a  hypo- 
thetical case  as  was  done  here, 
sometimes  gives  the  jury  a  clearer 
apprehension  of  the  legal  terms 
the  trial  judge  is  obligea  to  use  in 
his  charge.  While  such  illustra- 
tions should  no  doubt,  be  used 
with  great  caution,  they  are  ad- 
missible when  they  contain  no 
statement  of  the  facts  of  the  case 
under  consideration,  and  no  inti- 
mation of  the  opinion  of  the  judge 
on  the  facts.  Mew  v.  Rv.  Co.,  55 
S.  C.  100,  32  S.  E.  32S;  Welch  v. 
Mfg.  Co.,  55  S.  C.  583,  33  S.  E.  739; 
Mason  v.  Ry.  Co.,  58  S.  C.  78,  36  S. 
E.  440,  53  L.  R.  A.  913.  79  Am.  St. 
Rep.  S26;  Sims  v.  Ry.  Co.,  59  S.  C. 
256,  37  S..E.  836.  In  this  case  the 
illustration  was  hypothetical  and 
contained  no  reference  to  the  evi- 
dence offered,  and  no  intimation 
as  to  the  merits  of  the  case  before 
the  court.  Even  if  the  illustra- 
tion could  be  regarded  as  furnish- 
ing to  the  jury  a  standard  of  mess 
and  reckless  negligence  amounting 
to  willfulness,  it  was  not  unfavor- 
able to  the  defendant  that  the  jury 
should  be  led  to  think  the  plaintiff 
must  make  out  a  case  as  strong 
as  the  example  given  by  the  court 
before  he  could  recover  exemplary 
damages." 


656  FORMS  OF  INSTRUCTIONS.  [§945. 

color  of  justification  or  excuse,  the  law  is  so  that,  where  an  act  is 
done  wantonly  or  maliciously,  and  without  any  color  of  justification 
or  excuse,  then  in  such  case  what  is  called  punitive  or  vindictive 
damages  may  be  given  in  addition  to  the  actual  damages  which  the 
party  suffered  by  reason  of  the  injury,  as  a  sort  of  smart  money,  to 
teach  the  defendant  and  others  in  like  eases  better  than  to  do  such 
a  thing.  And,  if  you  find  this  to  be  a  case  warranting  such  damages, 
you  may,  in  addition  to  the  rule  which  I  have  laid  down  to  you  with 
reference  to  what  the  law  calls  damages  for  the  mental  and  physical 
suffering  which  the  plaintiff  has  endured,  take  into  consideration  the 
expense  he  has  been  put  to  in  excess  of  the  taxable  costs  in  procur- 
ing this  action.49 

(b)  The  plaintiff  is  not  entitled  to  punitive  damages  unless  the 
defendant's  conduct  was  willful,  malicious,  wanton,  or  so  reckless  as 
to  evince  an  utter  disregard  of  the  plaintiff's  rights. 

(e)  The  plaintiff  is  not  entitled  to  actual  damages  unless  the  de- 
fendant's conduct  was  willful  or  negligent. 

(d)  The  plaintiff  is  not  entitled  to  actual  damages  unless  he  has 
established  some  pecuniary  damages  or  some  personal  injury  result- 
ing in  loss. 

(e)  The  plaintiff  in  this  case  has  adduced  no  testimony  tending 
to  show  that  he  has  sustained  any  pecuniary  damage  or  personal  in- 
jury resulting  in  loss. 

(f)  In  the  absence  of  direct  proof  of  substantial  damages  as  the 
result  of  breach  of  contract  or  tort,  the  damages  implied  by  law  can 
be  only  nominal. 

(g)  Plaintiff  is  not  entitled  to  damages  for  inconvenience,  loss  of 
time,  and  fatigue,  unless  it  has  produced  some  pecuniary  damage  or 
personal  injury  resulting  in  some  actual  loss.50 

49— Hull  v.  Doug-lass,  —  Conn.  — ,  71  Conn.  369,  42  Atl.  67,  71  Am.   St. 

64   Atl.    351.  Rep.  213.     The  charge   in  this  case 

"While   the    damages    which   the  did   not,   as   it   properly   should,    in 

jury   may,    in    actions    of   tort    like  express    terms    instruct    the    jury 

the  one  before  us,  award,  damages  that  the  damages  they  might  award 

not    exceeding    the    plaintiff's    ex-  under     the     name     of     'exemplary 

penses  in  the  litigation  of  the  suit^  damages'      must      be      limited      in 

are   in    fact   and    effect    compensa-  amount   by   the    amount    of   plain- 

tory,    aiTd    not    punitive,    yet    they  tiff's     expenses,     less     the    taxable 

are    in    practice    variously    termed  costs  in  the  suit.     We  think,   how- 

'exemplary,'   'punitive,'   'vindictive,'  ever,    in    view    of    all    the    circum- 

or  'smart   money,'  and   the   charge  stances  appearing  in  the  record,  it 

of     the     court     is     not     erroneous  did,   in   effect,    so   advise   the  jury, 

merely  because  in  correctly  telling  and  there  is  nothing  in  the  charge 

the  jury  when  they  may  take  into  to   support   a  different   implication, 

consideration      such     expenses,      it  and  therefore  the  exception   taken 

speaks    of    the    damages    as    com-  to      the      charge      in      Hanna      v. 

monly  called   by  one   or  the   other  Sweeney,  supra,  does  not  apply  to 

of  these  terms.     Hanna  v.  Sweeny,  the  charge  in  this  case." 

78  Conn.  492,  62  Atl.  7S5;  Church  v.  50— The     six     short     instructions 

Beach,    26    Conn.    182,    4    Am.    Rep.  above   were    given   for   the   defend- 

55;  Burr  v.  Plymouth,  48  Conn.  460j  ant  in  the  case  of  Miller  v.  So.  Ry. 

Maisenbacker  v.  Society  Concordia,  Co.,  69  S.  C.  116,  48  S.  E.  99  (102). 


§946.] 


DAMAGES— PERSONAL  INJURY. 


657 


§  946.     Illness   Caused  by  Poisonous    Gases    from    Excavations — 

Damages.     If  you  believe  from  the  evidence  that  the  said 

Company,  in   constructing   its   line   of   railroad  through   the   city   of 

J ,  caused  to  be  dug  up,  excavated  and  removed  from  the  said 

lots  mentioned  in  plaintiff's  petition  the  earth  as  therein  alleged, 
thereby  causing  water  to  accumulate  and  stand  in  said  excavation, 
which  became  stagnant,  producing  poisonous,  noxious,  malarial  gases, 
and  decaying  substances,  resulting  in  sickness  to  plaintiff's  wife, 
which  sickness  compelled  plaintiff  to  employ  a  physician,  and  expend 
money  for  medicines  and  doctors'  bills,  in  the  treatment  of  his  said 
wife  for  such  sickness,  then  you  will  find  for  the  plaintiff  such  sum 
so  necessarily  expended  by  him  for  said  doctors'  bills  and  medicines, 
if  any,  and  such  other  sum  as  will  actually  compensate  for  the  men- 
tal and  physical  pain,  if  any,  suffered  by  reason  of  such  sickness,  if 
any.51 

§  947.  Plea  of  Compromise  and  Settlement.  As  to  the  plea  of 
compromise  and  settlement  of  plaintiff's  cause  of  action  and  claim 
for  damages  in  this  action,  I  instruct  you  that  the  burden  is  upon 
the  defendant  to  prove  said  plea  by  settlement  and  payment  by  a  pre- 
ponderance of  the  evidence.  To  sustain  said  plea  of  settlement  and 
payment  it  must  clearly  appear  that  a  definite  and  distinct  proposi- 
tion was  made  upon  the  part  of  the  company  defendant,  which  prop- 
osition in  its  terms  was  accepted  by  the  plaintiff  in  settlement  and 
adjustment  of  his  claim  for  damages.52 


51— Adams  v.  Mo.  K.  &  T.  Ry. 
Co.  of  Tex.,  —  Tex.  Civ.  App.  — , 
70   S.    W.   1006    (1007). 

52— Ind.  St.  Ry.  Co.  v.  Haver- 
stick,   —  Ind.   — ,   74   N.   E.   35-36. 

"Appellant  insists  that  the  in- 
struction was  prejudicial  for  two 
reasons:  First,  because  the  court 
said  'it  must  clearly  appear.'  This 
language  placed  on  the  appellant 
a  heavier  burden  than  the  law  im- 
poses in  proving  its  defense.  Sec- 
ond, because  the  court  said  to  the 
jury  that  there  could  be  on'y  a 
compromise  by  a  proposition  from 
the  defendant  and  its  acceptance 
by  the  plaintiff.  Now  we  respect- 
fully call  attention  to  the  fact  that 
we  alleged  and  proved  that  the 
proposition  came  from  the  plain- 
tiff and  was  accepted  by  the  de- 
fendant. In  other  words,  the  court 
virtually  ruled  out  the  whole  ques- 
tion of  settlement.  The  instruc- 
tion should  be  read  in  connection 
with  the  one  following.  So  much 
of  that  instruction  as  is  pertinpnt 
is  as  follows:  'Rut  if  you  find  that 
plaintiff  and  defendant  came  to  an 
arrangement  as  to  his  claim  for 
damages;    that    plaintiff   agreed    to 

42 


accept  $200  in  full  settlement  of 
his  claim;  that  defendant  accepted 
said  offer,  and  offered  and  ten- 
dered plaintiff  said  sum  in  full  pay- 
ment of  his  claim  for  damages, 
and  has  brought  said  sum  into 
court  for  the  use  and  benefit  of 
plaintiff — then  I  instruct  you  that 
plaintiff  is  not  entitled  to  recover 
in  this  action  as  to  damages.'  The 
question  of  settlement  between  ap- 
pellant and  appellee  is  presented 
by  the  second  paragraph  of  ans- 
wer. The  answer  avers  that  ap- 
pellant agreed  to  pay  appellee  $150 
in  full  of  all  damages  he  sustained 
and  that  the  latter  submitted  a 
counter  proposition  that,  if  the 
former  would  pay  him  $200,  he 
would  accept  the  same  in  full  set- 
tlement. It  is  then  alleged  that 
appellant  accepted  appellee's  prop- 
osition, offered  to  pay  him  $20Q, 
which  he  refused,  and  that  there- 
upon it  brought  said  sum  into 
court  for  his  use  and  benefit.  So  it 
appears  from  the  answer  that  the 
initial  step  looking  into  a  com- 
promise was  taken  by  appellant. 
The  instruction  is  in  substantial 
harmony     with     the     answer,     and 


658 


FORMS  OF  INSTRUCTIONS. 


[§  948. 


§  948.  Action  by  Husband  for  Injuries  to  Wife— Pain  and  Suffering 
of  Wife.  If  you  find  for  the  plaintiff,  you  will  allow  him  such  sum  as 
will,  in  cash,  compensate  him  for  the  physical  pain  and  mental 
anguish  that  his  wife  has  suffered,  if  she  has  so  suffered,  and  if  you 
find  that  plaintiff  has  necessarily  incurred  or  paid  any  expenses  for 
medicines  or  medical  attention  on  account  of  the  sickness  of  his  wife 
or  child,  or  both,  if  they  were  sick,  then  you  will  allow  plaintiff  the 
reasonable  value  of  the  medicines  or  medical  attention  so  necessarily 
incurred;  and  if  you  further  believe  that  on  account  of  the  sickness 

of }  the  plaintiff's  wife  had  to  nurse  him,  and  that  plaintiff  has 

been  deprived  of  the  services  of  his  wife,  then  you  will  allow  him 
the  reasonable  value  of  the  wife 's  said  services,  of  which  he  has  been 
necessarily  deprived,  if  any.53 

§  949.  What  May  Be  Taken  into  Consideration  in  Assessing  Dam- 
ages—Married Woman  Can  Recover  for  Medical  Expenses,  (a) 
The  court  instructs  the  jury  that,  if  you  find  the  issues  for  the 
plaintiff,  you  will,  in  estimating  her  damages,  take  into  consideration 
the  character  and  extent  of  her  injuries,  the  mental  and  physical 
pain  and  suffering  endured  by  her  in  consequence  of  such  injuries 
and  their  permanency,  if  by  the  evidence  shown  to  be  permanent,  and 


read  in  connection  with  the  one 
following-,  was  not  misleading-.  As 
a  question  of  law,  it  cannot  matter 
from  whom  the  proposition  for  set- 
tlement came.  If  one  was  made 
and  accepted  it  constituted  a  con- 
tract, and,  in  the  absence  of  fraud, 
was  binding-  on  both  parties.  Cart- 
mel  v.  Newton,  79  Ind.  1;  Fair- 
banks v.  Meyers,  98  Ind.  92;  Brown 
v.  Russell.  105  Ind.  46,  4  N.  E.  428. 
The  question  of  settlement  was  an 
affirmative  issue  tendered  by  the 
second  paragraph  of  answer,  and 
the  burden  of  proving-  it  was,  as 
the  court  told  the  jury  upon  ap- 
pellant.  The  instruction  was  cor- 
rect, unless  the  court  was  in  error 
in  saying-  to  the  jury  that  'it  must 
clearly  appear'  that  a  definite  prop- 
osition was  made  and  accepted.  In 
this  instruction  the  jury  were 
told  that  'the  burden  is  upon  the 
defendant  to  prove  said  plea  of 
settlement  and  payment  by  a  pre- 
ponderance of  the  evidence.'  In 
another  instruction  the  court  prop- 
erly told  the  jury  what  was  meant 
by  the  expression  'preponderance 
of  the  evidence.'  So  it  was  left  to 
the  jury  to  determine,  from  a  pre- 
ponderance  of  the  evidence, 
whether  or  not  appellant  had  estab- 
lished the  defense  set  up  in  its 
second  paragraph  of  answer.  Tn 
the  case  of  Hart  v.  Niagara  Fire 
Ins.  Co.  —  Wash.  — ,  3S  Par.  213,  27 
Li.    R.    A.    86,    the    trial    court    in- 


structed the  jury  that  before  they 
could  find  the  existence  of  a  cer- 
tain fact,  they  'should  be  satisfied 
by  a  clear  preponderance  of  the 
evidence.'  In  disposing-  of  the  in- 
struction the  court  said:  'It  seems 
to  us  that  in  connection  with  the 
instructions  given  above,  the 
phrase  "clear  preponderance  of  the 
evidence"  amounts  to  nothing-  more 
than  a  preponderance  of  the  evi- 
dence or  a  distinct  preponderance 
of  evidence,  which  would,  of 
course,  be  necessary  to  a  verdict, 
as  it  must  be  a  distinct  preponder- 
ance before  the  preponderance  can 
be  ascertained.  Construing  the  in- 
structions altogether  we  think  the 
jury  was  not  misled  by  the  instruc- 
tions.' Construing  the  instruction, 
and  that  part  of  the  one  following 
above  copied,  and  the  instruction 
denning  that  expression  'prepon- 
derance of  evidence,'  together,  we 
do  not  think  that  the  jury  were  in 
any  way  misled  as  to  their  duty. 
Neither  do  we  think  that  the  in- 
struction placed  on  the  appellant 
a  heavier  burden  than  the  law  im- 
posed in  proving  its  defense.  As 
applied  to  the  evidence,  the  in- 
structions upon  the  question  of 
compromise  and  settlement  fairly 
stated  the  law,  and  were  not 
prejudicial   to   appellant." 

53— St.  L.  S.  W.  Ry.  Co.  v.  Duck. 
—  Tex.  Civ.  App.  — ,  69  S.  W.  1027. 


§949.]  DAMAGES— PERSONAL  INJURY.  659 

anv  amounts  shown  by  the  evidence  to  have  been  expended  by  her  or 
contracted  by  her  for  medical  and  surgical  attention — this  item  not 
to  exceed  one  hundred  and  twenty-live  dollars — and  you  may  find  for 
her  in  such  sums  as,  under  the  evidence,  will  be  a  reasonable  com- 
pensation for  the  injuries  shown  by  the  evidence  to  have  been  sus- 
tained by  her;  in  all,  not  to  exceed  the  sum  of  five  thousand  dol- 
lars.54 

(b)  If  you  find  for  the  plaintiff,  you  must  state  in  your  verdict 
the  amount  of  damages  to  which  she  is  entitled.  This  amount  should 
be  a  full  and  just  compensation  for  the  injury  she  received,  and  no 
more.  In  estimating  such  compensation  you  may  consider  any  hodily 
pain  and  suffering  and  illness  that  may  have  resulted  from  the  in- 
jury, and  the  pain,  anxiety  and  distress  of  mind,  if  any,  she  suffered 
by  reason  thereof,  or  by  reason  of  any  medical  treatment  that  be- 
came necessary  for  her  to  undergo;  the  extent  and  character  of  the 
injury,  and  whether  or  not  it  is  permanent ;  and  also  the  amount,  if 
any,  which  she  has  paid  from  her  own  separate  means  for  medical 
treatment  or  services;  but  you  should  not  allow  her  anything  for  the 
value  of  her  time  or  services  as  a  laborer  or  housekeeper,  nor  for  the 
value  or  cost  of  her  care  or  support  during  the  time  of  her  illness. 
These  things  her  husband  is  bound  to  furnish,  and  for  them  he.  if 
anyone,  may  recover.  It  is  claimed  by  the  defendant  that  the  pain 
and  suffering  of  the  plaintiff  has  been  increased,  and  the  injury  she 
received  has  been  aggravated  and  made  worse  than  it  otherwise 
would  have  been,  by  her  own  negligence  and  carelessness  of  her  limb 
since  the  injury;  and,  if  the  limb  is  permanently  disabled,  that  is 
due  alone  to  such  negligence  and  careless  conduct,  and  not  to  the 
original  injury.  If  such  facts  are  proved  by  a  fair  preponderance  of 
the  evidence,  you  should  not  allow  the  plaintiff  any  compensation  for 
such  increased  pain,  suffering  or  aggravation  bf  the  injury  so  caused 
by   her  own   negligence   or  carelessness;  but,   if   the   plaintiff  called 

54— Ashby  v.  Elsberry  &  N.  H.  G.  an    outlay,     she    may    recover    it. 

R.    Co.,   Ill   Mo.    App.   79,   85  S.  W.  Rev.  St.  1899,   4335;   Hill  v.  Sedalia, 

959.  64  Mo.  App.  494.'     In  respect  to  the 

"In  regard  to  the  above  instruc-  other    objection,    to    wit,    that    the 

tion,    it    is    insisted    that    it    is    too  right     to     recover     is     stated     boo 

broad,    and    that    plaintiff,    being   a  broadly,  it  will  be  found  that  it  is 

married   woman,    is  not   entitled   to  stated    no    broader    than    in    a    like 

recover  for  medical  aid  and  atten-  instruction    given    in    the    case    of 

tion.        The      latter      objection      is  Browning   v.    Railway,    124    Mo.    55, 

answered  against  defendant  by  the  27  S.  W.  644,  where  at  paerc  72,  124 

case    of   Hickey   v.    Welch,    91    Mo.  Mo.  and  at  page   64s.  27  S.   W.   644, 

App.    15,    where    it    is    said:      'It    is  in  regard   to  which   instruction   the 

also  assigned  for  error  that  plain-  court  said:     The  instruction  is  not 

tiff   was    permitted    to    recover    the  erroneous  in  its  general  scope,  and 

cost    of   medical    attendance    at    all,  if,    in    the    opinion    of    couns 

on    the    ground    that    her   husband  defendant,  it  wis  likely  to  be  mis- 

was    liable   for   such    necessary    ex-  understood  by  the  jury,   it  was  the 

pense    instead    of    her.      That    was  duty    of    the    counsel    to    ask    the 

once  law   in   this    state   but    since   a  modifications    and    explanations.    In 

married  woman  has  been  sui  juris,  an       instruction      embodying      his 

is    no    longer.      If    she    personally  views." 
incurs  such  a  debt  or  makes  such 


660  FORMS  OF  INSTRUCTIONS.  [§  950. 

reputable  and  reasonably  competent  physicians  to  treat  the  injury, 
the  amount  of  her  compensation  should  not  be  reduced  by  reason  of 
any  wrong  treatment  the  physicians  may  have  given  or  administered; 
and,  if  she  followed  their  directions  in  her  conduct  and  use  of  her 
limb,  she  cannot  be  charged  with  negligence  or  carelessness,  even  if 
such  conduct  or  use  were  not  proper,  and  aggravated  the  injury."'5 

§  950.  Eight  of  Married  Woman  to  Recover  for  Her  Own  In- 
juries— Damages,  Compensatory  and  Punitive.  If  the  jury  find  for 
the  plaintiff,  the  measure  of  her  damages  will  be  a  fair  equivalent 
in  money,  for  the  mental  and  physical  pain  and  suffering  that  she 
has  endured  or  may  endure,  if  any,  and  a  fair  equivalent  in  money 
for  the  permanent  impairment  of  her  ability  to  earn  wages  and  com- 
pensation by  her  own  labor  and  service  performed  for  others  than 
her  husband,  and  independently  of  her  husband,  and  independently 
of  her  duties  to  her  husband,  and  independently  of  the  care  of  her 
children,  if  amr,  as  the  natural  result  of  her  injuries  as  in  the  testi- 
mony described;  and  if  the  jury  find  from  the  testimony  that  the 
injuries  of  plaintiff  in  the  testimony  described  were  caused  by  gross 
negligence  of  defendant's  servants  in  charge  and  control  of  the  ear 
in  the  testimony  described,  then  the  jury  may,  in  their  discretion, 
governed  by  the  testimony  in  the  cause,  give  a  further  sum  as  puni- 
tive or  exemplary  damages,  not  exceeding  in  all  twenty  thousand 
dollars.56 

§  951.  Damages  for  Injury  to  Married  Woman — What  to  Con- 
sider. If  from  the  evidence  and  the  law  given  you  in  these  in- 
structions you  find  for  the  plaintiff,  you  may  take  into  consideration 
the  bodily  pain  and  suffering  caused  by  the  injury,  if  any  has  been 
shown,  and  the  pain  and  suffering  which  will  result  therefrom  in  the 

55 — City    of    Goshen    v.    England,  husband   and   children  was  not   to 

119    Ind.    368,    21    N.    E.    977,    5    L.  be   taken   in   account   in    determin- 

R.  A.  253.  ing  what  she  could  have  probably 

56 — So.    C.    &    C.    St.    Rv.    Co.    v.  earned.     In  other  words,  it  was  to 

Bolt,  22  Ky.  L.  906,  59  S.  W.  26  (27).  take   from   the  jury  the   idea   that 

"In  our  opinion,  this  instruction  she  was  confined  to  household  du- 
was  not  prejudicial  to  the  appel-  ties,  and  for  which  she  might  not 
lant.  It  told  the  jury  that  she  was  receive  any  compensation  in 
entitled  to  recover  for  the  mental  money.  Our  opinion  is  that,  if  a 
and  physical  pain  and  suffering  married  woman  is  injured  by  the 
that  she  had  endured,  and  that  negligent  act  of  another,  she  is  en- 
she  mi^ht  thereafter  endure,  and  titled  to  maintain  an  action  for 
also  a  fair  equivalent  in  money  for  damages,  and  the  same  criterion 
the  permanent  impairment  of  her  of  recovery  exists  as  to  her  as  to 
ability  to  earn  wages  by  services  a  man  or  a  single  woman.  She  is 
performed  for  others  than  her  entitled  to  her  wages  under  the 
husband,  etc.  Under  the  law  of  this  act  of  1873.  Besides,  in  this  case, 
state  she  was  entitled  to  earn  the  husband  joins  the  wife  in  the 
wages,  and,  if  she  was  deprived  of  action  and  asks  that  the  compen- 
her  ability  to  do  so  by  the  negli-  sation  be  made  to  her  for  the  in- 
gence  of  the  appellant,  she  is  en-  jury  which  she  received  hence  re- 
titled  to  rec  ,-er  a  fair  equivalent  moves  the  question  that  is  raised 
in  money.  The  court  was  endeav-  by  counsel  for  the  appellant,  to- 
oring  to  tell  the  jury  that  the  mere  wit,  that  any  wages  she  might 
fact  that  she  might  have  per-  earn  would  belong  to  her  hus- 
formed    household    duties    for    her  band." 


§  952.] 


DAMAGES— PERSONAL  INJURY. 


661 


future,  if  you  find  from  the  evidence  that  such  will  probably  be  the 
result;  also  the  probability  of  the  injuries  she  has  received  being 
permanent,  and  the  extent  if  any,  to  which  the  injury  has  incapaci- 
tated her  for  labor;  also  the  reasonable  expenses  paid  or  incurred  for 
services  of  a  surgeon  or  physician,  made  necessary  by  such  in- 
juries— and  assess  her  damages  in  such  sum  as  you  believe,  from  all 
the  evidence,  will  compensate  her  for  the  injury  so  sustained.  You 
should  allow  no  speculative  damages  but  such  as  are  compensatory 
merely.57 

§  952.  Becoming  Pregnant  After  Injury,  Thereby  Prolonging  Re- 
covery, Not  Necessarily  Negligence.  If  the  after-pregnancy  of  the 
plaintiff  may  have  prolonged  the  injury  or  delayed  her  recovery,  the 
damages  which  she  is  entitled  to  recover,  are  not  to  be  reduced  by 
you  because  of  such  pregnancy. 

It  was  the  duty  of  the  plaintiff,  after  the  accident,  to  take  reason- 
able care  of  herself  and  to  avoid,  so  far  as  was  reasonably  possible, 
doing  anything  which  would  tend  to  increase,  prolong,  or  render 
permanent  her  injuries,  sufferings  or  disability.58 


57— L.  W.  Pomerene  Co.  v. 
White,  70  Neb.  171,  97  N.  W.  232 
(234). 

"Damages  recoverable  in  actions 
for  personal  injuries  may  be  di- 
vided into  two  classes:  Pecuniary 
damages,  or  those  which  can  be 
accurately  estimated,  as  loss  of 
wages,  cost  of  medical  attendance, 
etc.,  and  non  pecuniary  damages, 
the  amount  of  which  cannot  be  de- 
termined by  any  known  rule,  but 
depend  upon  the  enlightened  judg- 
ment of  an  impartial  court  or  jury. 
In  the  latter  class  are  included 
damages  for  pain,  suffering,  loss  of 
reputation,  impairment  of  faculties, 
etc.  In  Central  City  v.  Engle,  65 
Neb.  885,  91  N.  W.  849,  the  pecuni- 
ary damage  for  loss  of  wages,  and 
the  non  pecuniary  damage  for  pain, 
suffering  and  permanent  disability, 
were  both  submitted  to  the  jury  as 
the  measure  of  plaintiff's  recovery, 
and  for  this  action  of  the  trial 
court  the  cause  was  reversed.  la 
the  case  at  bar  no  pecuniary  dam- 
ages are  asked  because  of  the  loss 
of  the  plaintiff's  wages,  nor  was 
any  testimony  offered  tending  to 
show  the  money  value  of  such 
services,  and  the  portion  of  the 
instruction  excepted  to  in  the  in- 
stant case  appears  to  have  been 
given  only  for  consideration  in  de- 
termining the  extent  and  nature 
of  the  injury.  Considered  from  this 
view  point,  the  Instruction  is  not 
in  conflict  with  the  decision  in  the 
Engle    case.      In    states    in    which 


married  women  are  permitted  to 
contract  for  themselves,  and  in 
which  they  are  permitted  to  en- 
gage in  business  or  employment  in 
their  own  behalf,  it  has  been  fre- 
quently held  that  in  an  action  for 
personal  injuries  it  is  proper  to 
prove  that  a  married  woman  is  in- 
capacitated from  labor  as  the  re- 
sult of  her  injuries  for  the  pur- 
pose of  showing  the  nature  and 
extent  of  her  disability.  This  rule 
seems  founded  on  sound  reason, 
because  it  is  apparent  that  the 
mere  fact  that  a  married  woman 
is  not  engaged  in  a  separate  busi- 
ness at  the  time  she  is  injured 
should  not  deprive  her  of  the  right 
to  recover  for  a  disability 
would  ever  afterward  bar  her  from 
engaging  in  an  occupation  in  her 
own  behalf.  Stutz  v.  R.  Co..  7:3 
Wis.  147,  40  N.  W.  653,  9  Am.  St. 
Rep.  769;  Powell  v.  R.  Co.,  77  Ga. 
192,  3  S.  E.  759;  Jordan  v.  Middle- 
sex, 138  Mass.  425;  Harmon  v.  R. 
Co.,  165  Mass.  100,  42  N.  E.  505,  30 
L.  R.  A.  658,  52  Am.  St.  Rep.  499; 
Met.  St.  R.  Co.  v.  Johnson,  90  Ga. 
500.    16    S.    E.   49." 

58— Salladay  v.    Town   of  Di 
ville,  85  Wis.  318,  55  N.  W.  696  (698, 
700).  20  L.   R.   A.    541. 

"The  Instructions  of  the  court  in 
respect  to  the  effect  of  : 
pregnan.y  of  the  plaintiff  upon  the 
question  of  damages,  we  think 
were  correct.  If  the  plaintiff  had 
rendered  the  consequences  of  the 
wrongful  act  of  the  defendant  more 


662  FORMS  OP  INSTRUCTIONS.  [§  953. 

§  953.  Inability  to  Bear  Children— Pain  and  Suffering— Perma- 
nency of  Injury.  The  court  instructs  the  jury  that  if  under  the  evi- 
dence they  find  the  defendant  guilty  as  in  the  amended  declaration 
alleged,  then,  in  estimating  the  damage  of  the  plaintiffs,  they  have 
the  right   to   take  into   consideration   the   personal   injuries   inflicted 

upon  the  plaintiff, ,  in  consequence  of  the  defendant's  wrongful 

acts,  if  any  such  injuries  are  proved,  and  the  pain  and  suffering,  both 
mental  and  physical,  undergone  by  her  in  consequence  of  such  in- 
juries, if  such  pain  and  suffering  have  been  proved;  and  if  they 
further  believe  from  the  evidence  that  the  said  injuries  are  perma- 
nent, and  that  they  include  an  inability  to  have  any  child  or  children, 
these  facts  may  also  be  included  in  their  estimate,  if  they  further  be- 
lieve from  the  evidence  that  such  permanent  injury,  including  such 
inability,  resulted  from  such  wrongful  acts.59 

§  954.  Inability  to  Work  in  Any  Capacity — Acting  as  Housewife 
— Postponement  of  Marriage.  If  her  injuries  were  such  as  would 
preclude  her  earning  anything  in  the  future,  or  would  preclude  her 
working  in  any  capacity — acting  as  a  housewife,— of  course,  that  is 
a  matter  for  you  to  take  into  consideration.  I  do  not  mean  to  say 
that  if  she  were  to  be  married  it  would  be  expected  that  she  would 
earn  by  working  in  a  store,  as  she  has  in  the  past;  still  she  might  be 
physically  unable  to  do  housework.  It  is  quite  possible,  gentlemen, 
of  the  jury,  that  the  injuries  are  such,  and  you  may  find  them  (from 
the  evidence)  to  be  such,  because  the  extent  of  the  injuries  is  wholly 

severe  or  injurious  to  herself  by  that  respect  appears  to  have  been 
some  voluntary  act  which  it  was  given  by  her  medical  adviser,  is 
her  duty  to  refrain  from,  or  if  by  not  necessarily  and  as  a  matter  of 
h<r  neglect  to  exert  herself  rea-  law  sufficient  ground  to  justify  a 
sonably  to  limit  the  injury  and  reduction  of  damages  for  the  in- 
prevent  the  damages,  in  the  cases  jury  caused  by  the  defendant's 
in  which  the  law  imposes  that  negligence,  although  the  results  of 
duty,  and  thereby  she  suffered  ad-  the  injury  may  have  been  thereby 
ditional  injury  from  the  defend-  prolonged,  or  her  recovery  de- 
ant's  act,  evidence  is  admissible  in  layed." 

mitigation  of  damages  to  ascertain  59 — Normile  v.   Wheeling  T.    Co., 

to      what      extent      the      damages  132   W.    Va.    57,   49    S.    E.    1031    (1033 

claimed    are    to    be    attributed    to  and   1034). 

such  acts  or  omissions  of  the  plain-  "Complaint  is  made  that  the  jury 

tiff.     It  is  a  question  of  negligence,  should    have   been  told   in   this    in- 

and   the  measure   of  duty  is   ordi-  struction  that  such  damages  could 

nary     care     and     diligence     in     the  not    be    properly    included    in    their 

adoption  of  such  measures  of  care  estimate       unless       the       evidence 

or  prevention  as  the  case  required  showed  that  the  injury  in  question 

and  were  within  her  knowledge  or  was    the    reasonable    and    probable 

power.     1  Suth.  Dam.  §  155.  It  does  .consequence      of     the     defendant's 

not    appear   that    her    medical    ad-  negligence.     "While  this  instruction 

viser     gave     her    any     caution     to  does   not,   in  express  terms,   so  in- 

avold    sexual    intercourse,    or    even  struct   the    jury,   yet  the   language 

pregnancy,    nor   is    there   any   evi-  used  in  the  instruction  is  sufficient 

dence    to    show    that    she   knew   or  to  guide  the  jury  to  a  proper  con- 

nndi'rstood   that   the   nature   of  her  elusion    in    this    respect.     They   are 

injury    was    such    that    it    was    not  told    that    they    can    consider    this 

prudent    that    she    should    do    so.  feature  of  the  injury  if  it  resulted 

The    mere    fact    that    eight    weeks  from   the  wrongful   act   of  the   de- 

nfter     the     injury     pregnancy     oc-  fendant — not  that  if  it  is  a  roason- 

curred,    and    when    no    caution    in  able    and   probable   consequence   of 


§  955.]  DAMAGES— PERSONAL  INJURY.  663 

for  you  and  not  for  me — as  to  preclude  her  from  being  married  for 
perhaps  some  time.00 

§  955.  What  to  Consider  in  Assessing  Damages — Injury  to  Minor, 
(a)  The  jury  are  further  instructed  by  the  court  that,  if  they  be- 
lieve from  the  evidence  that  the  defendant  company  is  liable  in  this 
action,  then,  in  estimating  said  damages,  they  should  take  into  con- 
sideration the  bodily  injury,  if  any,  sustained  by  the  plaintiff,  the 
pain  and  suffering  undergone,  the  effects  on  the  health  of  the  suffer- 
er, according  to  its  degree,  and  its  probable  duration  as  being  tem- 
porary or  permanent,  and  the  pecuniary  loss  sustained  by  the 
plaintiff  through  his  inability  to  attend  to  his  business  affairs  after 
his  arrival  at  the  age  of  21  years.61 

(b)  If  the  jury  finds  a  verdict  in  favor  of  the  plaintiff,  it  should 
assess  his  damages  at  such  an  amount  as  the  jury  believe,  from  the 
evidence,  will  be  a  fair  compensation  to  plaintiff.  First,  for  such  a 
sum  as  he  reasonably  incurred  for  medicines,  hospital  charges,  drugs 
and  appliances  in  the  treatment  of  his  said  son,  occasioned  by  said 
injuries;  second,  for  such  a  sum  as  it  was  reasonably  worth  for  the 
nursing  of  said  son  by  plaintiff  and  his  wife  occasioned  by  the  in- 
juries in  question;  and,  third,  for  such  sum  as  the  jury  may  believe 
from  the  evidence,  if  any,  plaintiff  has  sustained,  or  will  probably 
sustain,  by  way  of  loss,  or  partial  loss,  of  services  of  his  said  minor 
son  occasioned  by  said  injuries,  until  he  attains  the  age  of  21  years, 
taking  into  consideration  the  earning  capacity  of  the  boy  in  his  in- 
jured condition,  and  also  the  possibility  of  his  death  before  reach- 
ing the  age  of  twenty-one  years.  And  the  jury,  in  assessing  the 
plaintiff's  damages,  will  confine  itself  to  the  elements  of  damages 
above  enumerated,  but  the  total  damages  allowed,  if  any,  must  not 
exceed  the  sum  of  forty-two  hundred  dollars.62 

(c)  The  court  instructs  the  jury  that  the  plaintiff  cannot  recover 

the  negligent  act,  but,  as  a  matter  to    make    allowance    for    earnings, 

of  fact,  if  the  loss  of  child-bearing  but     to     consider    plaintiff's     inca- 

was   the   result   of   the  defendant's  pacity  to  do  work  as  a  housewife, 

wrongful   act,    the   jury   were    told  and    this    in    connection    with    the 

that  they  could  consider  this  in  es-  statement      that     they     may     find 

timating    the    damages.       For    the  plaintiff's     injuries     may     preclude 

reasons    given    we    find    no    fault  her  from   being   married   for   some 

with   this   instruction."  time.     The  effect  of  this  instruction 

60 — Remey  v.  Detroit  United  Co.,  is    to    say    to    the    jury    that    they 

141   Mich.    116,   104   N.   W.   420   (421).  may    consider    plaintiff's    impaired 

"Defendant  contends  that  the  capacity  to  act  as  a  housewife,  in 
court  erred  in  giving  the  foregoing  determining  whether  her  injuries 
instruction,  because  there  was  no  are  such  as  to  postpone  her  mar- 
evidence  whatever  of  the  value  of  riage.  This  is  not  error,  if  plain- 
plaintiff's  earnings.  This  objec-  tiff  had  a  right  to  damages  for 
tion  proceeds  upon  the  assumption  the  postponement  of  her  mar- 
that  this  instruction,  properly  con-  riaere." 

strued,    permitted  the  jury  to  give  61— Approved  in  Richmond  T.  Co. 

compensation     for     the     value     of  v.  Wilkinson,  101  Va.   394,   43  S.   E. 

earnings    lost     by    plaintiff     as    a  622;    also  in  Washington  A.   &  Mt. 

housewife.      This    is,    in    our   judg-  V.    E.    Ry.    Co.    v.    Quayle,    95    Va. 

ment,    a    mistaken    construction    of  741,  30  S.  E.  391  (394). 

the  charge.    The  jury  are  not  told  62— See  note   63. 


664  FORMS  OF  INSTRUCTIONS.  [§  956. 

in  this  action  for  the  present  condition  of  the  plaintiff's  son,  A.  B., 
if  you  believe  and  fbad  from  the  evidence  that  the  second  injury  or 
breaking  of  the  limb  #as  caused  by  the  carelessness  of  the  said  A.  B. 
himself,  and  you  believe  from  the  evidence  that  the  present  condition 
of  said  A.  B.  is  the  result  of  such  second  injury.63 

(d)  If  you  find  for  the  plaintiff,  and  believe  from  the  evidence 
that  he  was  injured  as  alleged  in  his  petition,  you  should  allow  him 
such  sum  as  you  believe  from  the  evidence  will  compensate  him  for 
the  injuries  sustained,  if  any;  and,  in  estimating  his  damages,  you 
may  take  into  consideration  the  mental  and  physical  pain  suffered, 
if  any,  consequent  upon  his  injuries,  if  any;  and  if  you  believe  from 
the  evidence  that  his  injuxies,  if  any,  are  permanent,  and  will  disable 
him  to  labor  and  earn  money  in  the  future,  then  you  may  allow  him 
such  sum,  if  paid  now,  as  you  believe  from  the  evidence  will  be  fair 
compensation  for  his  diminished  capacity,  if  any,  to  labor  and  earn 
money  in  the  future.64 

§  956.  Such  Damages  as  Will  Actually  Compensate  to  Be  Allowed 
—Minor,  (a)  If  you  find  for  the  plaintiff,  you  will  allow  him  such 
sum  as  will  now  actually  compensate  him  in  cash  for  the  injury  he 
has  sustained  on  account  of  being  thrown  from  the  train  (if  he  was 
so  thrown),  taking  into  consideration  the  physical  pain  and  mental 
anguish  (if  any)  that  he  has  suffered  and  will  suffer  in  consequence 
of  said  injury.  And  if  you  further  believe  that,  in  consequence  of  his 
injuries  (if  any)  as  a  result  of  his  fall  (if  he  fell),  his  ability  to  la- 
bor and  earn  money  after  he  arrives  at  the  age  of  twenty-one  years 
has  been  lessened,  then  you  will  allow  him  such  sum  as  will  now 
reasonably  compensate  him  in  cash  for  such  disability  to  labor  after 
he  arrives  at  the  age  of  twenty-one  years,  but  you  will  not  allow  him 
anything  for  disability  to  labor  before  he  arrives  at  that  age.65 

63— Baxter  v.   St.    L.    T.    Co.,   103  to    mean    that    the    court    directed 

Mo.   App.    597,   78   S.   W.   70    (73).  him    to    allow    compensation    twice 

"We  think  the  two  instructions  on  account  of  plaintiff's  diminished 
on  the  measure  of  damages  were  capacity  to  labor.  The  clear  in- 
eminently  proper  under  the  evi-  tention  of  the  court  was  that  the 
dence,  and  entirely  fair  to  both  jury  should  award  simple  corn- 
sides."  pensation     for     the     damage     sus- 

64 — Galveston    H.    &    S.    A.    Ry.  tained,  and  attention  was  properly 

Co.  v.  Jones,  29  Tex.  Civ.  App.  214,  called  to  the  fact  that  in  estimat- 

68  S.  W.  190  (191).  ing    the    damage    the    jury    should 

"This    charge,"    said    the    court,  take   into   consideration   the   physi- 

"gave    the   true   measure    of   dam-  cal   pain   and   mental  anguish  suf- 

ages,    did    not    allow    double    dam-  fered.  and  also  the  lessened  ability 

ages    and    is   broad    enough   in   its  of  the  plaintiff  to   labor  and  earn 

terms    to    include    ability    to    earn  money.        The      charge      carefully 

money  in   any   capacity."  guarded  the  rights  of  the   defend- 

65— St.  L.  S.  W.  Ry.  Co.  v.  Byers,  ant,    especially    in    the    latter    re- 

—  Tex.  Civ.  App.  — ,   70  S.  W.  558  spect,   and  it  was  evidently  in  the 

(560).  effort  to  do  so  that  the  court  was 

"Literally  and  strictly,  compen-  led  into  framing  the  charge  in  the 
sation  for  the  injury  received  may  form  which  gives  rise  to  the  com- 
be said  to  include  compensation  plaint  we  are  considering.  The 
for  diminished  ability  to  labor,  but  complaint  is  not  well  taken,  and 
it  is  manifest  that  no  intelligent  the  assignment  is  overruled." 
juror  would  understand  the  charge 


§957.]  DAMAGES— PERSONAL  INJURY.  665 

(b)  If  you  find  for  the  plaintiff  you  will  assess  his  damages  at 
such  a  sum  of  money  as  in  your  opinion  will  be  a  reasonable  and  just 
compensation  for  the  injuries  he  has  sustained.  In  estimating  the 
damages,  you  will  take  into  consideration  the  physical  and  mental 
pain,  if  any,  he  has  sustained  by  reason  of  such  injuries,  if  any;  and 
if  you  believe  from  the  evidence  that  plaintiff  has  not  yet  recovered, 
and  that  his  injuries  are  permanent,  and  that  he  will  hereafter  suffer 
pain  and  anguish  therefrom,  and  that  his  ability  to  labor  and  earn 
money  subsequent  to  his  majority  is  anc!  will  be  impaired  by  reason 
of  said  injuries,  if  any,  then  you  will  take  this  into  consideration  in 
estimating  the  damages;  but  you  will  exclude  from  your  considera- 
tion any  loss  or  impairment  of  earning  power,  if  any,  during  his 
minority.06 

§  957.  Measure  of  Damages  Where  Minor  is  Too  Young  to  Have 
Selected  An  Avocation.  Where  a  minor  has  suffered  permanent  in- 
jury, and  such  minor  is  too  young  to  have  selected  an  avocation  or  to 
begin  to  illustrate  her  earning  capacity,  in  such  cases  there  is  no 
measure  as  to  the  amount  of  damages  where  such  minor  is  entitled  to 
recover  therefor,  except  the  enlightened  consciences  of  impartial 
jurors,  guided  by  all  the  facts  and  circumstances  of  the  particular 
case.67 

§  958.  Minor  Cannot  Recover  Damages  for  Diminution  of  Earn- 
ing Power  During  Minority,  Unless  Emancipated,  (a)  The  court 
instructs  the  jury  that  the  minor  cannot  recover  damages  on  account 
of  the  diminution  of  earning  power  or  capacity  during  minority,  un- 
less emancipation  be  shown,  but  they  may  consider  such  diminution 
after  he  attains  his  majority.68 

(1))  The  court  instructs  the  jury  that  if  you  believe  the  defendant 
guilty,  even  then  the  plaintiff  cannot  recover  in  this  suit  either  for 
medical  service  or  for  diminution  of  earning  power  during  minority, 
and  in  this  case  you  are  to  disregard  all  evidence  tending  to  prove 
either  the  value  of  medical  service  or  the  diminution  of  earning 
power  during  minority.69 

66— Cameron  Mill  &  Elev.  Co.  v.  this  is  left  to  the  enlightened  con- 
Anderson,   34  Tex.   105,    78   S.  W.  8.  science  of  an  impartial  jury.     This 

67 — Atlanta   K.    &    N.    Ry.   Co.   v.  does  not  mean  that  juries  can  ar- 

Garclner,  122  Ga.  82,  49  S.  818.  bitrarily    enrich    one   party    at    the 

"In    the    case    of   "Western   A.    R.  expense  of  the  other,  nor  that  they 

Co.   v.    Young,    81   Ga.    397,    7   S.    E.  should    act    unreasonably    through 

912,  12  Am.   St.    Rep.   320   (4),  Chief  mere    caprice.      But    it    authorises 

Justice    Bleckley    said:        'A    brief  you    to    give    reasonable    damages 

but    excellent    model    of    a    charge  where    the    party    shows    that    the 

upon     the     measure     of     damages,  law    authorizes    it.      But    the    jury 

where    the    subject    of    the    injury  should  exercise  common  sense  and 

was  a  child,  will  be  found  in  Davis  love  of  justice,  and,  from  a  desire 

v.    The    Central    Railroad,    60    Ga.  to    do    right,    fix    an    amount    that 

329.'     The   charge  here   referred  to  will   fairly   compensate  for  the  in- 

and    commended    was    as    follows:  jury    received.'  " 

'There    is    no    known    rule    of    law  6S — Geibel    v.    Collins    Co.,    54    W. 

by   which   witnesses   can   give   you  Va.  518,  46  S.  E.  569  (572). 

the    amount    ir,    dollars    and    cents  69 — Richardson  v.   Nelson,   221  111. 

as   the   amount   of  the   injury,   but  254    (260),   77  N.   E.   5S3. 


666 


FORMS  OF  INSTRUCTIONS. 


[§  959. 


8  959.  Injury  to  Servant— Violation  of  Contract  to  Furnish  Medi- 
cal Attendance,  (a)  This  is  an  action  of  contract,  and  the  burden 
is  upon  the  plaintiff  to  prove  a  contract  with  the  railroad  company, 
and  a  violation  of  that  contract  by  the  railroad  company  from  which 
damage  resulted  to  him. 

(b)  The  defendant  is  not  liable  for  the  original  injury  which  the 
plaintiff  claims  to  have  sustained,  and  cannot  in  any  event  be  liable 
unless  it  is  shown  that  it  was  by  the  terms  of  its  contract  with  the 
plaintiff  bound  to  transport  him  to  Denver,  and  put  him  in  a  hospital 
for  treatment,  if  necessary,  and  that  his  injuries  were  such  that  it  was 
necessary  to  transport  him  to  Denver  and  put  him  in  a  hospital  for 
treatment,  and  further  that  its  failure  so  to  do  resulted  in  damage  to 
him.70 

§  960.  Injury  to  Servant — No  Punitive  Damages— Actual  Dam- 
ages Only,  (a)  If  you  should  find  that  the  plaintiff  is  entitled  to  any 
damages  you  should  state  how  much,  and  in  making  up  your  verdict 
you  can  only  find  such  actual  damages  as  may  be  proved  by  the  evi- 
dence.    You  cannot  find  any  exemplary  or  punitive  damages.71 


"The  appellant  insists  this  in- 
struction cannot  cure  the  defect  in 
instruction  No.  2;  that  the  instruc- 
tions are  diametrically  opposed  and 
that  no  amount  of  reasoning  can 
reconcile  them,  and  that  it  is  im- 
possible to  say  which  instruction 
the  jury  followed.  Instruction  No. 
2  tells  the  jury  damages  may  be 
assessed  for  the  loss  of  time  and 
inability  to  work  in  the  future,  and 
that  damages  may  be  assessed  if 
proven,  'so  far  as  such  damages 
are  claimed  and  alleged  in  the 
declaration.'  The  appellee  could  re- 
cover for  loss  of  time  and  earn- 
ings after  reaching  his  majority. 
That  was  a  proper  element  of  dam- 
ages. But  to  have  been  strictly 
accurate  this  limitation  should 
have  been  recognized,  Appellant's 
instruction  supplements  instruction 
No.  2,  and  plainly  advises  the  jury 
fould  not  be  recov- 
ered  for  medical  services  and  dim- 
inution of  earning  powers  during 
minority.  The  two  instructions 
considered  together  are  not  con- 
tory  or  inconsistent.  The 
latter  explains  the  former,  and  as 
a  scries  correctly  state  the  rule 
of  liability.  The  jury  were  not 
likely  to  have  been  misled.  The  er- 
ror was  obviated  and  rendered 
harm'ess.  T.,  W.  &  W.  Ry.  Co. 
lam,  77  111.  309;  Galesburg 
#  G.  E.  Ry.  Co.  v.  Milroy,  181  id. 
243,  54  N.  E.  939." 
70— Denver  &  R.  G.  R.  Co.  v. 
5   Colo.    19,   53  Pac.   222    (223). 


"As  we  read  the  complaint  the 
cause  of  action  declared  upon  is 
the  violation  by  the  defendant  of 
a  contract.  The  obligation  rest- 
ing upon  the  defendant  to  send 
plaintiff  to  its  hospital,  and  fur- 
nish him  medical  treatment,  ex- 
isted, if  at  all,  as  the  result  of  a 
contract  so  providing,  and  so  far 
at  least  as  the  pleading  is  con- 
cerned no  such  obligation  is 
claimed  independent  of  the  con- 
tract. It  is  nowhere  alleged  there- 
in that  the  defendant's  duty  in 
this  particular  arose  out  of  the 
mere  relation  of  employer  and 
employe,  or  was  incident  thereto. 
From  the  foregoing  it  follows 
that,  if  the  plaintiff  fails  to  prove 
either  the  contract  or  its  viola- 
tion his  action  fails.  That  the 
plaintiff  relied  upon  a  breach  of 
contract  is  further  evidenced 
from  the  fact  that  a  large  part 
of  his  testimony  consisted  of  an 
attempt  to  show  the  usage  of  the 
company  and  the  contract  as 
pleaded.  Such  being  the  cause 
of  action  the  above  instructions, 
asked  by  the  defendant,  should 
have    been    given." 

71— Florida  C.  &  P.  R.  Co.  v. 
Mooney,  45  Fla.  286,  33  So.  1010 
(1012). 

"It  was  peculiarly  appropriate 
that  the  requested  instruction 
should  be  given,  in  order  that  the 
jury  should  understand  not  only 
that  their  estimate  should  not 
Include  punitive  damages,  but  that 
it    should    be    based    upon    actual 


§961.] 


DAMAGES— PERSONAL  INJURY. 


667 


(b)  If  the  jury  believe  from  the  evidence  that  on  the  occasion  in 
controversy  plaintiff  was  injured,  and  that  his  injury  was  the  direct 
and  natural  result  of  the  gross  negligence  of  defendant's  agent  and 
servants  in  charge  of  train  No.  56,  they  should  find  for  him  such  com- 
pensatory damages  as  will  fairly  and  reasonably  compensate  him  for 
such  injuries,  not  to  exceed  +20,000,  unless  they  further  believe  from 
the  evidence  that,  in  receiving  his  injuries,  plaintiff  was  himself  neg- 
ligent, and  that  his  said  negligence,  if  any,  so  far  contributed  to  his 
injuries  that  he  would  not  have  been  hurt  but  for  his  own  negligence, 
if  any.72 

§  961.  Injury  to  Employe — What  to  Consider — Negligence  in  Mov- 
ing Car.  (a)  If  you  find  for  the  plaintiff,  you  will  return  a  verdict  in 
his  favor  for  the  amount  of  damages  which  he  has  suffered  by  reason 
of  his  injuries;  and  in  estimating  such  damages  you  may  consider 
the  value  of  time  lost  during  the  period  of  his  disability,  and,  if  you 
find  he  has  been  disabled,  his  expense  for  drugs  and  nursing,  if  any, 
and  the  probable  effect  of  such  injuries  upon  his  physical  condition 
and  his  ability  to  earn  money  and  pursue  the  course  of  life  for  which 
he  was  fitted  and  suited,  and  a  fair  compensation  for  mental  suffer- 
ing and  physical  pain  caused  by  such  injuries;  and,  if  you  find  for 
the  plaintiff,  the  form  of  your  verdict  will  be,  "We,  the  jury,  find  for 
the  plaintiff,  and  assess  his  damages  at  dollars.73 


damages  shown  by  the  evidence. 
The  statement  of  facts  following 
the  refused  instruction  shows  an 
entire  absence  of  testimony  tend- 
ing to  authorize  the  infliction  of 
punitive  damages,  and  this  be- 
ing so,  it  was  not  improper  that 
the  court  should  instruct  the  jury 
that  no  such  damages  should  be 
allowed.  C.  St.  L.  &  N.  O.  R.  Co. 
v.  Scurr,  59  Miss.  456,  42  Am. 
Rep.  373;  L.  &  N.  R.  Co.  v.  Hall, 
87  Ala.  708,  6  So.  277,  4  L.  R.  A. 
710,   13   Am.    St.   Rep.   84. 

"The  rule  in  this  respect  would 
be  different  if  there  was  any  evi- 
dence whatever  tending  to  show 
that  punitive  damages  could  be 
properly  inflicted,  even  though 
the  court  might  be  of  opinion 
that  the  preponderance  of  evi- 
dence was  the  ether  way.  for  in 
such  case  the  court  should  by 
proper  instructions  leave  the 
question  to  be  decided  by  the  jury, 
like  any  other  fact  depending  upon 
conflicting  testimony.  But  where 
there  is  no  evidence  tending  to 
show  neglisence  of  so  gross  a 
character  as  to  warrant  the  in- 
fliction  of  punitive  damages,  as  is 
shown  to  be  the  case  here  by  the 
predicate  of  facts  following  this 
refused  instruction,  the  court 
should  not  refuse  an  appropriate 
instruction        withdrawing        such 


question  from  the  consideration 
of  the  jury.  What  is  here  said 
is  not  intended  to  deny  the  rule 
announced  in  F.  C.  &  P.  R.  Co. 
v.  Foxworth,  41  Fla.  1,  25  So.  338, 
79  Am.  S.  R.  149,  that  the  jury 
are  to  exercise  a  reasonable  dis- 
cretion as  to  the  amount  of  dam- 
ages to  be  awarded  based  upon 
the  facts  in  evidence,  and  the 
knowledge  and  experience  pos- 
sessed by  them  in  relation  to  mat- 
ters of  common  knowledge  and 
information;  nor  is  it  now  de- 
cided that  if  correct  instructions 
are  given  as  to  the  measure  of 
damages  to  be  awarded  error  can 
be  predicated  upon  the  refusal 
to-  give  an  instruction  that  the 
jury  cannot  award  exemplary  or 
other  special  items  of  damage,  not 
properly  recoverable  in  a  particu- 
lar case,  even  though  the  general 
instructions  do  not  specially  men- 
tion and  exclude  such  improper 
items.  The  matter  decided  is  that 
where  no  instructions  are  given 
as  to  the  measure  of  damages  it 
is  error  to  refuse  a  correct  in- 
struction requested,  confining  the 
jury  to  the  proper  measure  ami 
to  the  evidence  in  ascertaining  the 
amount." 

72— L,.  &  N.  Ry.  Co.  v.  Hiltner. 
22    Kv.   1141.   60   S.   W.   2    (4). 

73— Gulf   C.    &    S.    F.    Ry.    Co.    v. 


668  FORMS  OF  INSTRUCTIONS.  [§  962. 

(b)  If  you  find  that  S.  was  a  vice  principal  of  the  defendant,  as  that 
has  been  explained  heretofore;  and  if  you  further  find  that  W.  was 
not  guilty  of  contributory  negligence;  and  if  you  further  find  that 
at  the  time  of  the  injury  to  said  W.  he  was  working  under  the  car,  or 
between  the  car  and  the  platform,  and  that  this  position  was  one  of 
danger,  and  that  the  said  S.,  without  any  warning  or  notice  to  said 
W.,  caused  said  ear  to  be  removed,  without  first  having  given  the 
said  W.  warning  or  notice,  and  that  the  said  W.  did  not  know  that 
the  said  car  was  going  to  be  moved,  so  as  to  enable  him  to  remove 
himself  from  between  the  car  and  the  platform,  or  from  his  position 
of  danger,  before  the  moving  of  said  car,  thereby  causing  the  said 
W.  to  believe  that  his  life  was  in  danger,  or  that  he  was  in  danger 
of  serious  bodily  injury,  and  that  while  in  such  real  or  apparent 
danger  he  attempted  to  escape,  and  was  caught  between  the  car 
and  the  platform,  and  was  mashed  and  injured,  from  which  injuries 
he  died;  and  if  you  further  find  from  the  facts  and  circumstances 
that  the  said  S.  was  guilty  of  negligence,  as  explained  to  you,  by 
causing  said  car  to  be  moved  at  the  time  and  in  the  manner  it  was 
moved,  and  that  such  negligence  was  the  cause  of  the  injury,  and 
said  injuries  caused  the  death  of  W.,  then  you  will  find  for  the 
plaintiffs  such  actual  damage,  if  any,  as  will  compensate  them  for 
the  pecuniary  loss,  if  any,  resulting  to  them  by  the  death  of  the 
said  W.74 

§  962.  Master  and  Servant — Injury  to  Employe — Gross  Negligence 
Defined — Contributory  Negligence — Punitive  Damages — Series,  (a) 
The  court  instructs  the  jury  that  gross  negligence  is  the  failure  to 
take  such  care  as  a  person  of  common  sense  and  reasonable  skill  in 
like  business,  but  of  careless  habits,  would  observe  in  avoiding  in- 
jury to  his  own  person  or  life  under  circumstances  of  equal  or  simi- 
lar danger  to  the  plaintiff  on  the  occasion  under  consideration. 

(b)  The  court  instructs  the  jury  that  the  plaintiff  in  this  action 
makes  two  complaints  against  the  defendant,  to  wit:  First,  for  the 
injury  to  his  big  toe  on  the  occasion  occurring  on  the  switch  track 
of  defendant;  and,  secondly,  for  the  injury  occurring  under  defend- 
ant's engine,  when  he  lost  his  legs.  The  court  instructs  you  that 
under  the  undisputed  facts  and  the  law  of  this  case  said  two  occa- 
sions and  injuries  occurring  thereat  are  separate  and  distinct  from 
each  other,  and  each  claim  for  damages  by  reason  of  said  injuries  is 
separate  and  distinct,  and  they  are  not  to  be  blended  in  law  as  only 
one  entire  transaction. 

(c)  The  court  further  instructs  the  jury  that,  if  you  shall  believe 
from  the  evidence  in  this  ease  that  the  injury  to  plaintiff  by  the 

Warner,   22  Tex.   Civ.   App.    167,   54  facts  of  the  case.     M.   K.  &  T.  R. 

S.     W.     1064     (1066).  R.    Co.    v.     McGlammory,    89    Tex. 

74— H.   &  T.   C.   R.   Co.   v.   White.  639,  35  S.   W.  1058;   St.   L.   S.  W.   R. 

23    Tex.    Civ.    App.    280,    56    S.    W.  R.    Co.    v.    Casseday,    92    Tex.    525, 

204    (208).  50  S.  W.   125;   G.  C.  &  S.  F.  R.  Co. 

"This  instruction,  said  the  court,  v.    Shieder,    8S    Tex.    152,    30    S.    W. 

simply  applies  the  law  to  the  very  902,   28   L.   R.    A.    538." 


§962.]  DAMAGES— PERSONAL  INJURY.  669 

mashing  of  his  big  toe  on  the  switch  track  complained  of  of  the  de- 
fendant was  occasioned  by  the  gross  negligence  of  defendant's  agent, 
M.,  in  charge  of  the  engine  at  that  time,  then  the  law  is  for  the 
plaintiff  and  the  jury  should  so  find;  and  you  will,  as  to  this  injury, 
find  whatever  damages  you  may  consider  he  sustained  by  reason 
thereof  for  his  bodily  and  mental  suffering  resulting  from  said  in- 
jury received,  including  any  loss  of  time  on  account  thereof;  and, 
in  addition  to  such  compensatory  damages,  you  may,  in  your  discre- 
tion, give  punitive  damages  for  whatever  sum  you  may  believe  is 
just  and  right  for  said  injury  to  plaintiff's  big  toe. 

(d)  The  court  further  instructs  the  jury  that  if  you  shall  believe, 
from  the  evidence  in  this  case,  that  the  injury  to  the  plaintiff  of  the 
loss  of  his  two  legs  complained  of  was  occasioned  by  the  gross  neg- 
ligence of  defendant's  agent  and  employe  M.,  its  engineer,  in  oper- 
ating its  engine  at  the  time,  the  law  is  for  the  plaintiff,  and  you  will 
find  for  the  plaintiff  such  damages  as  the  proof  shows  he  sustained, 
and  in  estimating  the  amount  of  damages  you  should  take  into  con- 
sideration the  age  and  situation  of  the  plaintiff,  his  earning  capacity 
and  its  probable  duration,  his  bodily  suffering  and  mental  anguish 
resulting  from  the  injury  received,  and  the  loss  sustained  by  the 
want  of  the  limbs  injured,  and  the  extent  to  which  he  is  disabled 
from  making  a  support  for  himself  by  reason  of  the  injury  received. 
And  you  may,  in  addition  to  such  compensatory  damages,  give  puni- 
tive damages,  in  your  discretion,  not  exceeding,  however,  for  all  in- 
juries complained  of  in  this  action,  the  amount  claimed  in  the  plain- 
tiff's petition. 

(e)  The  court  further  says  to  the  jury  that,  as  to  the  question 
of  contributory  negligence  of  the  plaintiff  pleaded  by  defendant  in 
its  answer,  the  court  will  instruct  the  jury  that  it  was  the  misfor- 
tune of  the  plaintiff  himself  that  he  fainted  and  fell  off  the  foot- 
board in  front  of  the  engine,  and  for  which  the  defendant  was  not 
responsible,  and  which  fall  to  the  ground  should  not  be  imputed  to 
the  plaintiff  as  contributory  negligence  in  the  eye  of  the  law  if  he 
was  unconscious  at  the  time,  although,  but  for  which  fall,  he  would 
not  have  sustained  the  injuries  complained  of;  and  the  court  further 
instructs  the  jury  that  the  responsibility  of  the  defendant  for  plaint- 
iff's loss  of  his  limbs  could  not  and  did  not  commence  until  after 
plaintiff's  fall,  and  not  until  the  engineer  had  actual  notice  of  his 
fall  and  of  the  fact  of  his  peril;  then  it  was  that  the  law  devolved 
upon  said  engineer  the  duty  to  then  do  what  he  could  to  save  the 
plaintiff  from  injury;  and  now,  if  the  jury  shall  believe  from  the 
evidence  in  this  case  that  he  did  then  act  promptly  at  once,  and 
obeyed  the  meaning  of  the  signals  then  given  him  by  the  fellow 
laborers  of  the  plaintiff,  and  that  in  good  faith  he  tried  to  save  the 
plaintiff,  and  used  the  means  to  do  so  which  were  reasonable,  and 
which  appeared  to  him  at  the  time  most  reasonable,  then,  and  in 
such  case,  gross  negligence  is  not  to  be  imputed  to  said  engineer,  and 
the  law  would  be  for  the  defendant,  and  you  should  so  find  as  to 


670  FORMS  OP  INSTRUCTIONS.  [§  962. 

plaintiff's  loss  of  his  legs.  But,  on  the  contrary  of  the  foregoing, 
if  the  jury  shall  believe  from  the  evidence  in  this  case  that  when 
the  said  engineer  had  said  notice  of  the  peril  of  the  plaintiff  he  did 
not  then  act  promptly  at  once,  and  obey  the  meaning  of  the  signals 
then  given  him  by  the  fellow  laborers  of.  the  plaintiff,  and  that  in 
good  faith  he  did  not  try  to  save  the  plaintiff,  and  use  the  means 
to  do  so  which  were  reasonable,  and  which  appeared  to  him  at  the 
time  most  reasonable,  then,  and  in  such  case,  gross  negligence  may 
be  imputed  to  him,  and  you  will  find  for  the  plaintiff  as  instructed 
in  the  instructions  Nos.  3  and  4  hereinbefore  given. 

(f)  The  court  instructs  the  jury  that  it  was  the  duty  of  the 
plaintiff  to  use  ordinary  care  to  prevent  injury  to  himself  from  the 
causes  complained  of  by  him  in  his  petition,  and  that  if  they  believe 
from  the  evidence  he  failed  to  do  so,  and  was  guilty  of  negligence, 
which  contributed  directly  to  his  injury,  and  but  for  which  he  would 
not  have  been  injured,  the  law  is  for  the  defendant,  and  the  jury 
will  so  find. 

(g)  The  court  instructs  the  jury  that,  at  the  time  of  the  injury 
complained  of  by  plaintiff,  the  plaintiff,  F.  S.,  and  the  switchman, 
C.  H.,  were  co-employes  in  the  same  grade  of  service;  neither  of 
them  being  the  superior  of  the  other.  The  plaintiff  cannot  recover 
damages  against  the  defendant  for  any  injury  sustained  by  him  by 
reason  of  the  negligence  of  the  said  C.  H. 

(h)  The  court  further  instructs  the  jury  that  if  you  shall  believe 
from  the  evidence  that  said  engineer,  M.,  did  not  know  the  plaintiff 
was  under  said  engine  and  in  peril  until  notified  by  the  other  switch- 
man, H.,  and  if  you  believe  from  the  evidence  that  the  wheel  of  the 
engine  had  already  crushed  one  of  plaintiff's  legs,  then,  as  to  the 
injury  to  that  leg,  if  you  believe  it  was  then  already  inflicted,  the 
defendant  should  not  be  held  liable,  although  you  may  believe  from 
the  evidence  that  thereafter  the  plaintiff's  other  leg  was  crushed  by 
reason  of  the  gross  negligence  of  said  engineer,  M.  (if  you  believe 
from  the  evidence  he  was  guilty  as  to  it).75 

75—111.    C.   R.    Co.   v.    Stewart,   23  so    often    followed    and     approved 

Ky.   Law  637,   63   S.   W.   596   (598-9).  by      this       court       in       subsequent 

"The   above   is   a   clear   and   cor-  cases     that     it     is     not     an     open 

rect   statement   of    the   law   of   the  question.      We   are    referred    to    L. 

case.     The  definition  of  gross  neg-  &   N.    R.    Co.    v.    Kingman,    18    Ky. 

ligence  was  approved  by  this  court  Law    82,    35    S.    W.    264,    and    McH. 

in    L.    &    N.    R.    Co.    v.    McCoy,    81  Coal    Co.    v.    Sneddon,    98    Ky.    686, 

Ky.  403;    L.  &  N.  R.  Co.  v.  Moore,  34    S.    W.    228,    30    L.    R.    A.    697,    as 

83    Ky.    675;     L.    &    N.    R.    Co.    v.  holding     that      punitive      damages 

Mitchell,    87   Ky.    327,   8    S.   "W.    706;  may    only    be    awarded    where    the 

L.    &   N.    R.    Co.   v.    Earl's   Adm'x,  conduct   of  the   negligent   party    is 

94   Ky.   368.   22   S.  W.    607;    L.    &   N.  such    as    to    evidence    malice,    or    a 

R.   Co.    v.   Long,   94  Ky.   410,   22    S.  reckless    disregard    of    the    safety 

W.  747;  and  in  these  cases  a  num-  of    others,     or    a    wanton     injury, 

ber    of    earlier    decisions    are    re-  The   Kingman   case    is   imperfectly 

ferred    to,    and    it    was    also    held  reported,    and    is    not    marked    for 

thnt,    where    gross    negligence    was  publication.        The      question      was 

phnwn,     punitive    damages     might  not    before    the    court.      No    refer- 

be    allowed.      This    rule    has    been  ence  is  made  in  the  other  case  to 


§  963.]  DAMAGES— PERSONAL  INJURY.  671 


CIVIL  ASSAULT. 

§  963.  Injuries  From  Assault  and  Battery — What  to  Consider- 
Smart  Money.  The  jury  are  instructed  that  if  you  believe  from  the 
evidence  that  the  defendant  assaulted  and  beat  the  plaintiff  in  the 
manner  and  form  as  charged  in  the  declaration,  and  that  the  plaintiff 
sustained  damages  thereby,  then  the  jury  are  instructed  that  they 
should  find  a  verdict  in  favor  of  the  plaintiff,  and  assess  his  dam- 
ages at  such  sum  as  they  believe  from  the  evidence  he  is  reasonably 
entitled  to,  and  in  this  respect  you  are  further  charged  that  it  is  not 
necessary  that  any  sum  should  have  been  named  or  mentioned  in  the 
evidence.  The  amount  of  damages,  in  case  you  find  for  the  plaintiff, 
you  are  to  ascertain,  basing  your  finding  upon  the  extent  of  the 
plaintiff's  injuries,  if  any  such  are  shown  by  tlfe  evidence,  both  his 
injuries  received  at  the  time  of  the  assault  and  battery,  and  any 
permanent  injuries  resulting  therefrom,  that  the  jury  may  believe 
from  the  evidence  he  has  sustained.  These  are  known  as  actual 
damages.  And  in  case  the  jury  believe  from  the  evidence  that  the 
assault  was  wanton,  reckless  or  vicious,  and  uncalled  for  in  its 
character,  then  the  jury  may  add  to  such  actual  damages,  if  any  such 
they  find,  such  a  sum  as  they  may  believe  from  the  evidence  would 
be  reasonable  and  just,  as  smart  money  or  punishment.76 

§  964.  Punitive  Damages  in  Civil  Action  of  Assault,  (a)  The  jury 
are  instructed  that  if  they  find  that  the  defendant  was  actuated  by 
a  hatred  or  ill  will  towards  the  plaintiff,  and  that  the  assault,  if  any, 
was  malicious,  you  may  award  the  plaintiff  such  damages  as,  under 
the  evidence,  you  think  proper,  by  way  of  punishment  to  him  for 
the  assault.77 

the     previous     reported     cases     in  might  reasonably  have  found   this 

which     the     court     had     expressly  injury  to  have  been  inflicted  from 

held   the  law  to   be  otherwise  and  ill     will     or     vindictiveness.       The 

had     overruled,     Railroad     Co.     v.  appellant's   own   testimony   is   suf- 

Robinson,  67  Ky.  507,  in  which  this  ficient    to   show    this.     His    version 

rule  is  enunciated.     In  both   cases,  of  the   matter  is,   'She   kicked   me, 

the    judgments    were    reversed    for  and   I   struck  her.'     The  blow  was 

other    reasons,    and,    in    so    far   as  in  retaliation  for  the  kick.     It  was 

they  are  in   conflict  with  the  pre-  a    vindictive    blow,    not    necessary 

vious    cases    as    to    the    allowance  for  his  protection  from  any  threat- 

of    punitive    damages    in    cases    of  ened     or     impending     injury     from 

gross  neglect,   they  are  overruled."  her,    but    purely    from    vindictive- 

76 — O'Leary  v.  Zindt,  109  111.  App.  ness.       His    profession     of    sorrow 

309    (311).  immediately     afterwards     did     nei- 

77 — Nichols   v.   Brabazon,   94  Wis.  ther    undo    the    wrong    nor    atone 

549,    69    N.    W.    242.  for    it.      It    was    not    necessary    in 

"Punitory  damages  have  been  order  to  warrant  exemplary  dam- 
allowed  in  this  state  from  a  very  ages  that  the  blow  should  come 
early  day  in  cases  where  the  from  ill  will  or  vindictiveness,  long 
injury  was  inflicted  under  circum-  harbored:  and  the  present  provo- 
stances  of  aggravation,  insult  or  cation  was  apparently  too  incon- 
cruelty,  with  vindictiveness  or  sequential  to  fully  account  for  it 
malice.  McWilliams  v.  Bragg,  3  as  a  sudden  outburst  of  excusable 
Wis.  424.  Certainly,  there  was  passion." 
evidence     from      which     the     jury 


672  FORMS  OF  INSTRUCTIONS.  [§  965. 

(b)  If  the  defendant,  without  provocation,  assaulted  and  beat  the 
plaintiff,  as  charged  in  the  declaration,  and  that  such  assault  was  a 
malicious,  wanton  and  aggravated  one;  and  if  the  jury  further 
believe,  from  the  evidence,  that  justice  and  the  public  good  require 
it,  then  the  law  is,  that  the  jury  are  not  confined  in  their  verdict 
to  the  actual  damages  proven,  but  they  may  give  exemplary  damages, 
not  only  to  compensate  the  plaintiff,  but  to  punish  the  defendant, 
and  to  deter  others  from  the  commission  of  like  offenses.78 

(c)  To  these  compensatory  damages,  in  some  cases  where  there  is 
malice  premeditated  or  wantonness  in  the  assault,  the  jury  may  add 
something  for  exemplary  damages,  beyond  the  damages  called  com- 
pensatory, but  only  so  far  as  to  take  into  consideration  the  natural 
expenses  of  the  litigation  in  excess  of  the  taxable  costs,  which,  of 
course,  would  be  allowed  the  plaintiff  if  he  recovers  in  the  case.79 

§  965.  Exemplary  Damages,  Only  When  Act  is  Malicious  or  Wan- 
ton and  With  Wrongful  Intent.  The  jury  are  instructed  that  exem- 
plary or  vindictive  damages  should  not  be  allowed  or  given  in  this 
case,  unless  the  jury  find,  from  the  evidence,  not  only  that  the  de- 
fendant is  guilty,  but  also  that,  it  by  its  conductor,  acted  maliciously 
or  wantonly  and  with  wrongful  intent.80 

§  966.  Aggravation  of  Damages — Mortification  of  Feeling,  Arising 
From  Insult  of  Defendant's  Blow.  That,  in  an  action  of  assault 
and  battery,  the  insult  and  indignity  inflicted  upon  a  person,  by  giv- 
ing him  a  blow  with  anger,  rudeness  or  insolence,  constitute  an 
element  of  damages.  And  in  this  case,  if  the  jury  believe,  from  the 
evidence,  that  the  defendant  committed  an  assault  upon  the  plaintiff, 
as  charged  in   the  declaration,   then  the  jury  in  assessing  damages, 

78 — Bradshaw    v.     Buchanan,     50  introduce    evidence    to    show    spe- 

Tex.     492;      Titus     v.     Corkins,     21  ciflcally  the  amount  of  such  dam- 

Xans.     722;     Brown     v.     Swineford,  ages      (Bennett      v.      Gibbons,      55 

44    Wis.    282.  Conn.    450-452,    12   Atl.    99;    Maisen- 

79 — Shupack  v.    Gordon,    79  Conn,  backer     v.     Society     Concordia     71 

298.    64   Atl.    740.  Conn.    369-378,    42    Atl.    67,    71    Am. 

The  court  said  that  "it  is  the  St.  Rep.  213).  The  trial  court  fol- 
settled  law  in  this  state  that  in  lowed  this  law,  and  sufficiently 
certain  cases  of  tort  the  amount  complied  with  the  rule  as  laid 
of  expense  of  the  litigation  in  ex-  down  in  Hanna  v.  Sweeney,  78 
cess  of  the  amount  of  taxable  Conn.  492-494,  62  Atl.  785,  and  in 
costs  may  be  awarded  as  dam-  Hull  v.  Douglas,  79  Conn.  266,  64 
ages  in  addition  to  the  damages  Atl.  351.  In  speaking  of  'the  nat- 
more  strictly  called  'compensa-  ural  expense  of  the  litigation,'  the 
tory,'  and  such  damages,  some-  court  should  be  understood  as  lim- 
times  called  'exemplary,'  cannot  iting  the  jury  to  the  considera- 
exceed  the  amount  of  expanses  tion  of  a  reasonable  expense  prop- 
in  excess  of  taxable  costs  (Wilson  erly  incurred  in  the  litigation, 
v.  Granby,  47  Conn.  59,  75;  36  Am.  The  charge  as  a  whole,  including 
Rep.  51);  that  in  awarding  such  the  passages  quoted  in  the  ap- 
damages  the  jury  may  estimate  peal,  appears  to  have  been  sub- 
such  reasonable  sum  as  would  stantially  correct,  adapted  to  the 
make  the  plaintiff  good  for  the  issue,  and  sufficient  for  the  guid- 
expenses  of  the  litigation  which  ance  of  the  jury  in  the  case  be- 
he    has    been    obliged    to    incur    in  fore    them." 

order   to    obtain    redress;    and    that  80 — I.    C.    R.    R.    Co.    v.    Latimer, 

it    is    not    usual    or    necessary    to  128  111.   163   (172),  21  N.  E.   7. 


§  967.]  DAMAGES— PERSONAL  INJURY.  673 

may  consider,  as  an  aggravation  of  the  wrong,  the  mental  suffering 
and  mortification  of  feeling  of  the  plaintiff,  arising  from  the  insult 
and  indignity  of  the  defendant's  blow.81 

§  967.  Damages  for  Plaintiff's  Good  Repute,  Her  Social  Position, 
Sense  of  Shame,  Humiliation,  Loss  of  Honor,  etc.  While  the  jury 
are  not  authorized  by  law  to  give  exemplary  or  punitive  damages  in 
this  case  in  the  event  a  verdict  is  found  for  the  plaintiff,  yet,  if 
the  jury  find  for  the  plaintiff,  full  compensatory  damages  should 
be  awarded;  .and,  in  arriving  at  compensatory  damages,  the  jury 
are  not  necessarily  restricted  to  the  naked  pecuniary  loss;  for,  be-' 
sides  damages  for  pecuniary  loss  or  injury,  the  jury  may  allow  such 
damages  as  are  the  direct  consequence  of  the  act  complained  of, 
for  injury  to  the  plaintiff's  good  repute,  her  social  position,  for 
physical  suffering,  bodily  pain,  anguish  of  mind,  sense  of  shame, 
humiliation  and  loss  of  honor.82 

§  968.  Mental  Suffering  and  Mortification  of  Feeling,  (a)  The  jury 
are  instructed  that  in  an  action  of  assault  and  batteiy,  the  insult 
and  indignity  inflicted  upon  a  person  by  giving  him  a  blow  in  anger, 
rudeness  or  insolence,  constitute  an  element  of  damages,  and  in  this 
case,  if  the  jury  believe  from  the  evidence  that  the  defendant  com- 
mitted an  assault  upon  the  plaintiff,  as  charged  in  the  declaration, 
then  the  jury,  in  assessing  damages,  may  consider  as  an  aggravation 
of  the  wrong  the  mental  suffering  and  mortification  of  feeling  of 
the  plaintiff,  arising  from  the  insult  and  indignity  of  the  defendant's 
blow,  if  any  such  is  proved.83 

(b)  You  may  take  into  their  consideration  such  pain  and  suffering 
of  the  plaintiff  as  the  jury  believe  from  the  evidence  he  may  be 
reasonably  certain  to  suffer  in  the  future.84 

§  969.  Mitigation  of  Damages — Abusive  Language  Prior  to  As- 
sault. The  jury  are  instructed,  that  while  angry  and  threatening 
words,  and  abusive  language,  are  no  justification  for  an  assault  and 
battery,  still  they  may  be  considered  by  the  jury  in  mitigation  of 
damages,  if  it  appears  from  the  evidence  that  they  were  used,  and 
were  of  such  a  character  as  would  naturally  tend  to  excite  the 
angry  passions  of  men,  and  were  spoken  so  recently  before  the 
assault  complained  of  as  that  the  hot  blood  and  passion  which  they 
were  calculated  to  excite  had  not  had  time  to  cool.85 

81— Elliott     v.     Van     Buren,     33  the  jury  as  to  certain  elements  of 

Mich.    49.  damages    which    they    might    con- 

82— Wolf  v.   Trinkle,  103  Ind.   355,  sider    if   they    find    for    the    plain- 

3    N.    E.    110.  tiff." 

83— Von   Reeden  v.    Evans,   52  111.  84— Evans    v.    Elwood,    123    Iowa 

App.    210    (213).      Held    the    objec-  92,    98    N.    W.    584    (rsr^. 

tion  was  not  well  taken,  that  this  85 — Thrall   v.    Knapp,    17   la.    468; 

ignored    all    right    of   self   defense.  Fullerton    v.     Warrick,     3    Blackf. 

"The     instruction     was     intended  219. 
only,  and  purports  only,  to  advise 


43 


CHAPTER  XLIV. 
DAMAGES,   MEASURE   OF— NEGLIGENCE   CAUSING   DEATH. 
See  Erroneous  Instructions,  same  chapter   head,   Vol.    III. 


§  970.  Fair  and  just  compensation, 
based   upon   pecuniary   loss. 

§  971.  Action  by  wife  for  death  of 
husband  —  Expectancy  of 
life. 

§  972.  Death  from  negligent  act — 
Action  for  the  benefit  of 
widow  and   next   of  kin. 

§  973.  Action  for  benefit  of  widow 
and  next  of  kin — Compen- 
sation for  pecuniary  dam- 
age   sustained. 

§  974.  Damages  to  be  assessed 
with  reference  to  pecuniary 
loss  sustained  by  wife  and 
children — What   to  consider. 

§  975.  Ill  health  of  widow  not  to 
be  considered  in  assessing 
damages  —  Pecuniary  cir- 
cumstances of  widow  and 
children. 

§  976.  Loss  of  society  —  Comfort 
and  care  of  parent  and  hus- 
band. 

5  977.  Loss  of  husband  and  parent 
— Elements    of   damage. 

§  978.  Action  by  administrator — 
Personal  injuries  —  Death 
from  other  source  before 
trial — Mental  suffering  of 
widow  not  element  of  dam- 
age. 

§  979.  Action  by  husband  for  caus- 
ing  death   of   wife. 

§  980.  Action  by  next  of  kin— Pe- 
cuniary loss  not  presumed 
— Must  be  proven  plaintiff 
received  pecuniary  aid  from 
deceased. 


§  981.  Nominal  damages  only— 
Where  no  pecuniary  loss, 
under  statute  in  Illinois, 
representative  of  deceased 
sues. 

§  982.  Only  such  damages  allowed 
as  shall  make  good  the  ac- 
tual pecuniary  loss  sus- 
tained  by  next  of  kin. 

§  983.  Measure  of  damages  for 
death   of   minor   child. 

§  984.  Age  of  child,  its  physical 
and  mental  state,  proba- 
bility of  living  to  majority 
and  probable  aid,  etc.,  to 
father   in    future   years. 

§  985.  Injury  to  servant  causing 
death. 

§  986.  Should  consider  age  —  So- 
ciety to  family;  also  solace 
and    comfort,    etc. 

§  987.  Reasonable  probabilities  of 
life — Damage  past  and  pros- 
pective —  Apportionment 
among   plaintiffs. 

§  988.  An  instruction  on  the  meas- 
ure of  damages  need  not  in- 
clude all  the  elements  neces- 
sary for  recovery. 

§  989.  Damages  not  to  exceed  a 
certain  specified   amount. 

§  990.  Duty  of  coal  mine  operator 
to  keep  supply  timber  on 
hand  to  secure  safety  to 
workmen — Words  of  stat- 
ute. 

§  991.  What  not  to  be  considered — 
Punitive  damages  not  to  be 
given. 


§  970.    Fair  and  Just  Compensation,  Based  Upon  Pecuniary  Loss, 
(a)     The  jury  are  instructed,  as  a  matter  of  law,  that  if  they  believe, 

from    the   evidence   that   X ,   while   in   the   exercise  of  ordinary 

••ire  and  without  fault  or  negligence  on  his  part,  lost  his  life  by  and 
through  the  wrongful  act,  negligence  or  default  of  the  defendant,  as 

fed   in  the  declaration,  and  that  said  X left  him  surviving 

next  of  kin.  then  the  jury  should  find  the  defendant  guilty,  and  assess 
the  plaintiff's  damages  at  such  sum  as  they  shall  believe,  from  the 

674 


§  971.]  DAMAGES— NEGLIGENCE.  675 

evidence,  fair  and  just  compensation,  based  upon  the  pecuniary  loss 

if  any  resulting  from   the   death  of  the  said  X to   his  next  of 

kin,  not  exceeding  the  sum  claimed  in  the  declaration  filed  herein.1 

(b)  The  court  instructs  the  jury  if  you  believe,  from  the  evi- 
dence,  that    E ,   while  in   the  exercise   of  ordinary   care   for  her 

own  safety,  and  without  fault  or  negligence  on  her  part,  lost  her 
life  by  and   through  the  negligence  of  the  defendant,  as  charged  in 

the  declaration,  and  that  said  E left  her  surviving  next  of  kin, 

then  you  should  find  the  defendant  guilty,  and  assess  the  plaintiff's 
damages  at  such  sum  as  you  believe,  from  the  evidence,  will  be  a 
fair  and  just  compensation,  based  upon  the  pecuniary  loss,  if  any, 

resulting  from  the  death  of  said  E to  her  said  next  of  kin,  not 

exceeding  the  sum  claimed  in  the  declaration  filed  herein.2 

§  971.  Action  by  Wife  for  Death  of  Husband — Expectancy  of  Life, 
(a)  The  court  instructs  the  jurj ,  that  if  you  find  for  the  plaintiff 
then  in  estimating  the  plaintiff's  damages,  if  any,  in  this  case,  you 
may  take  into  consideration  not  only  the  wages  and  earnings  of  the 
plaintiff's  husband  for  any  given  period  as  shown  by  the  evidence, 
so  far  as  you  may  believe  from  the  evidence  that  such  wages  and 
earnings  furnished  a  means  of  support  for  the  plaintiff,  but  also 
the  probable  length  of  the  life  of  said  husband  till  terminated  by 
natural  causes,  if  and  so  far  as  it  may  be  shown  by  the  evidence 
from  had  he  not  been  killed  upon  that  day. 

(b)  The  court  instructs  the  jury  further  that  they  may  estimate 
from  all  the  evidence  in  the  case  the  prospective  length  of  life  of 
the  husband  of  said  plaintiff  had  he  not  been  killed  (if  he 
was  so  killed  on  ),  and  may  take  this  estimate  into  consid- 
eration together  with  all  other  facts  and  circumstances  shown  in 
evidence  in  fixing  the  amount  of  the  plaintiff's  damages  in  case  the 
jury  find  for  the  plaintiff.3 

1— Webster     Mfg.     Co.     v.     Mul-  3— Betting  et   al.    v.   Hobbett,   142 

vanny,    168    111.    311    (313),    aff'g    68  111.    72    (78),    30    N.    E.    1048. 

111.    App.    607,    48    N.    E.    168.  "Manifestly    in    the    case    of    the 

"The  only  objection  made  by  ap-  death   of  the   husband   the   loss   to 

pellant   to  this    instruction    is   that  the    wife's     means     of    support     is 

the    word    'based'    was    improperly  co-extensive   with   the   duration    of 

used,  and  that  the  jury  could  have  her   life,   and    the   general   average 

added    and    probably    did    add    in  of      the      husband's      contributions 

making    up    their    verdict    interest  can  only  be  ascertained  from  proof 

and     speculative    damages    to    the  of  his  wages   and   earnings,  which 

pecuniary     loss.       The     instruction  furnished   her  a  means  of  support, 

is    not    subject    to    the    objection  We  said  in  Flynn  et  al.  v.  Fogarty, 

made.     .     .     .     There  was  no  error  106  111.  267:     'It  was  highly  proper 

in   the  giving   of  this  instruction."  to    show    what    the    deceased    had 

2— Calumet    St.    Ry.    Co.    v.    Van  done   in    his    lifetime,— the    charac- 

Pelt,    173    111.    70    (73),    aff'g    68    111.  ter   of   his    business,    his    habits    of 

App.    582,    50    N.    E.    678.  industry    and     thrift,     income    and 

"This    instruction    is    not    distin-  all     that     sort     of    thing,     with     a 

guishable  from  instructions  held  to  view      of     determining      what      he 

be   faultless.      N.   C.    &   B.    Ry.   Co.  would    have    probably   dope    in    the 

v.    Payne,    59   111.    534;    Indianapolis  future     had     he     not     been     killed. 

&    St.    L.    R.    R.    Co.    v.    Estes,    97  Could    it    have    been    known    to    a 

id.  471.  certainty  what  he  would  have  ac- 


676  FORMS  OF  INSTRUCTIONS.  [§972. 

§  972.  Death  from  Negligent  Act — Action  for  the  Benefit  of  Widow 
and  Next  of  Kin.  (a)  If  the  jury  should  find,  from  the  evidence, 
that  the  defendant  is  guilty  of  the  wrongful  act,  neglect  or  default, 
as  charged  in  the  plaintiff's  declaration,  and  that  the  same  resulted  in 
the  death  of  A.,  then  the  plaintiff  is  entitled  to  recover  in  this  action 
for  the  benefit  of  the  (widow  and  next  of  kin  of  such  deceased)  such 
damages  as  the  jury  may  deem,  from  the  evidence  and  proofs,  a  fair 
and  just  compensation  therefor,  having  reference  only  to  the  pe- 
cuniary injuries  resulting  from  such  death,  to  such  widow  and  next  of 
kin,  not  exceeding  the  amount  claimed  in  the  declaration.4 

(b)  The  jury  are  instructed,  that  in  estimating  the  pecuniary 
injury  which  the  widow  and  children  of  the  deceased  have  sustained 
by  his  death,  if  the  jury  believe,  from  the  evidence,  that  they  have 
sustained  any  injury  for  which  the  defendant  is  liable,  as  explained 
in  these  instructions,  then  the  jury  have  a  right  to  take  into  con- 
sideration the  support  of  the  said  widow  and  minor  children,  and  the 
instruction  and  physical,  moral  and  intellectual  training,  as  well  as 
the  ages  of  the  said  minor  children,  so  far  as  these  matters  have 
been  proved,  in  determining  the  amount  of  damages  in  this  case.5 

(c)  If  you  find,  from  the  evidence,  under  the  instruction  of  the 
court,  that  the  defendant  is  guilty  of  the  wrongful  act,  neglect  or 
default,  charged  in  the  declaration  in  this  suit,  and  that  the  same 
resulted  in  the  death  of  the  deceased,  and  that  the  plaintiff  is  entitled 
to  a  verdict,  then  the  plaintiff  is  entitled  to  recover,  for  the  benefit 
of  the  widow  and  next  of  kin,  such  an  amount  as  damages  as  you 
believe,  from  the  evidence,  a  just  and  fair  compensation  to  such 
widow  and  next  of  kin,  having  reference  only  to  their  pecuniary  loss, 
resulting  from  such  death.6 

§  973.  Action  for  Benefit  of  Widow  and  Next  of  Kin — Compensa- 
tion for  Pecuniary  Damage  Sustained.  The  jury  are  instructed  that 
if  you  find  from  the  evidence  that  the  defendant  is  guilty  of  the 
negligence  charged  in  either  the  first  or  second  count  of  the  dec- 
laration, and  that  the  same  resulted  in  the  death  of  ,  then  the 

plaintiff  is  entitled  to  recover  in  this  action  for  the  benefit  of  the 
widow  and  next  of  kin  of  said  deceased,  sueh  damages  as  the  jury 
may  deem,  from  the  evidence  and  proof,  a  fair  and  just  compensa- 
tion for  whatever  pecuniary  damage,  if  any,  the  evidence  shows  that 

eomplished   but  for  his  death,  that  C.  B.  &  Q.  R.  Co.  v.  Payne,  Adm., 

would    have    furnished    the    exact  59    111.    534;    Rafferty   v.    Buckmau, 

measure   of   the   loss,    but   as   that  46  la.   195;    Steel,  etc.,  v.  Kurtz,  28 

could  not  be  definitely  ascertained,  Ohio  St.  191. 

the   next    best   thing   was   to   show  5—1.    C.    R.    Co.    v.    Welden,    52 

the    aid    and    assistance    he    prob-  111.  290;  Tilley  v.  H.  R.  Rd.  Co.,  29 

ably  would  have  rendered  her  but  N.    Y.    252;    Costello    v.    Landwehr, 

for   his   death,  and  this  could  only  28   Wis.    522. 

l      done  by  proving-  his  age,  physi-  6 — Bell   v.    C.    R.    R.    Ga.,    73    Ga. 

cal    condition,    habits    of    industry,  520;   C.   B.    &  Q.   Rd.   Co.  v.   Pavne, 

thrift    and    so    forth    above    indi-  59   111.   534;    C.    M.    &    St.    P.    R.    R. 

cated.'     We    think   the    instruction,  v.   Dowd,   115  111.   659.   4   N.   E.   368; 

was    not   erroneous."  Penn   Co.   v.   Marshall,   119   111.   399, 

4— Cooley   on    Torts,    3d    ed.    547;  10   N.    E.    220. 


§974.]  DAMAGES— NEGLIGENCE.  677 

the  said  widow  and  next  of  kin  have  sustained  by  reason  of  said 

death,  not  exceeding  $ .7 

§  974.  Damages  to  be  Assessed  with  Reference  to  Pecuniary  Loss 
Sustained  by  Wife  and  Children — What  to  Consider,     (a)     If,  under 

the  evidence  and  instructions  of  the  court,  the  jury  rind  for  the 
plaintiff,  then,  in  assessing  the  damages  which  the  plaintiff  is  entitled 
to  recover,  the  jury  should  assess  the  same  with  reference  to  the 
pecuniary  loss  sustained  by  the  wife  and  children  of  the  deceased, 
and,  determining  this,  you  may  consider  the  probable  earnings  of  the 
deceased,  his  age,  business  capacity,  experience,  habits,  health,  bodily 
and  mental  qualifications,  during  what  probably  would  have  been  his 
lifetime  if  he  had  not  been  killed,  so  far  as  these  matters  have  been 
shown  by  the  evidence;  and  you  may  also  consider  the  value  his 
services  might  have  been  in  the  superintendence  and  attention  to  and 
care  of  his  family  and  the  education  of  his  children;  but  the  amount 
you  can  allow  cannot  exceed  the  sum  of  $ .8 

(b)  If  you  find  the  defendants  guilty  under  the  evidence  and 
instructions  of  the  court,  then  it  is  your  duty  to  assess  the  plaintiff's 
damages,  and  in  assessing  the  damages,  you  have  a  right  to  take 
into  consideration  all  testimony  bearing  upon  that  question,  and 
allow  such  damages  as  you  may  deem  a  fair  and  just  compensation, 
with  reference  to  the  pecuniary  injuries  resulting  from  the  death  of 
the  plaintiff  intestate,  to  his  widow  and  next  of  kin;  and  in  estimating 
the  plaintiff's  damages  you  have  the  right  to  take  into  consideration 
whatever  you  may  believe,  from  the  evidence,  the  widow  and  next  of 
kin  might  have  reasonably  expected,  in  a  pecuniary  way,  from  the 
continued  life  of  the  intestate.'-' 

(c)  If,  under  the  evidence  and  the  instruction  of  the  court,  the 
jury  find  the  defendant  guilty,  then  in  assessing  the  damages  which 
the  plaintiff  is  entitled  to  recover,  the  jury  should  assess  the  same 
with  reference  to  the  pecuniary  loss  sustained  by  the  wife  and  chil- 
dren of  the  deceased,  having  regard  to  the  probable  earnings  of  the 
deceased,  taking  into  consideration  the  age,  business  capacity,  experi- 
ence and  habits,  health,  energy  and  perseverance  during  what  would 
probably  have  been  his  lifetime  if  he  had  not  been  killed,  so  far  as 
these  several  matters  have  been  shown  by  the  testimony,  and  also 
having   regard   to   the   value   of   his   services   in   the   superintendence, 

7— E    J    &  E.  Ry.  Co.  v.  Thomas,  in    I.    C.    R.    R.    Co.    v.    Gilbert,    157 

115   111.    App.    508    (513),   aff'd  in  215  111.   354,   41   N.   E.   724." 

111.  158,  74  N.    E.  109.  8— C.  R.  I.  &  P.  Ry.  Co.  v.  Zern- 

The    appellate    court    said,    "The  ecke,  59  Neb.  689,  82  N.  W.  26   (28). 

objection     urged     against     the     in-  9— C.    C.    C.    &    St.    L.    Ry.    Co.    v. 

struct  ion      is      that     it     directs     a  Keenan,   190  111.   217   (220),  60   N.   E. 

verdict  without  the  element  of  the  107. 

due  care  of  the  deceased,  which  Is  "While    this   instruction    is   some- 

an    essential    element    of   appellee's  what    involved,    we   think   the   jury 

case.     Without  going  into  a  discus-  could   not   have  been   misled   there- 

sion  of  the  instructions,   it  is  suffi-  by.     It   informed   them   that  in  flx- 

cient  to  say  that  an  instruction   in  ing   the   amount   of  damages,   they 

substance    like   this   one,    has   been  must   be  confined   to  the  pecuniary 

sustained    by    our    Supreme    Court  loss  shown  by  the  evidence  to  have 


678  FORMS  OF  INSTRUCTIONS.  [§  975. 

attention  to  and  care  of  his  family,  and  the  education  of  his  children, 
of  which  they  have  been  deprived  'by  his  death,  not  exceeding,  how- 
ever, $ > 

(d)  If,  under  the  evidence  and  the  instructions  of  the  court,  you 
find  the  defendant  guilty,  and  that  the  plaintiff  has  sustained  any 
pecuniary  loss  from  the  death  of  her  husband,  then,  in  assessing  the 
amount  of  such  damages,  the  jury  should  estimate  the  same  with 
reference  to  the  fact  that  it  is  the  legal  duty  of  the  husband  to 
provide  the  wife  present  support  and  maintenance  in  the  future,  and 
she  is  entitled  to  such  a  sum  as  will  make  her  whole  in  a  pecuniary 
point  of  view,  having  reference  to  the  pecuniary  advantage  which 
the  jury  believe,  from  the  evidence,  she  might  reasonably  have  ex- 
pected from  the  continuance  of  the  life  of  her  husband  if  he  had  not 
been  killed  by  the  accident  in  question,  not  exceeding,  however,  the 
sum  of  $ -11 

§  975.  Ill  Health  of  Widow  Not  to  Be  Considered  in  Assessing 
Damages — Pecuniary  Circumstances  of  Widow  and  Children,  (a)  If 
you  believe,  from  the  evidence,  that  the  widow  of  the  deceased,  at  the 
time  of  his  death,  and  since,  by  reason  of  ill-health,  has  been  unable 
to  perform  labor  to  support  herself  and  family,  this  fact  cannot  in- 
crease or  diminish  the  amount  which  she  is  entitled  to  recover  in  this 
suit;  and  if  you  should  find  the  issues  for  the  plaintiff,  then  you  are 
instructed,  in  the  assessment  of  damages,  to  disregard  all  the  testi- 
mony in  the  case  as  to  such  ill-health.12 

(b)  The  pecuniary  circumstances  of  the  widow  and  children, 
whether  they  are  rich  or  poor,  cannot  increase  or  diminish  the  amount 
of  damages  which  the  plaintiff  is  entitled  to  recover  in  this  suit ;  and 
in  case  the  jury  find  the  issues  for  the  plaintiff,  in  assessing  the  dam- 
ages which  the  plaintiff  is  entitled  to  recover,  the  jury  should  disre- 
gard all  testimony  and  statements  of  the  counsel,  as  to  the  pecuniary 
circumstances  of  the  widow  and  children.13 

§  976.  Loss  of  Society,  Comfort  and  Care  of  Parent  and  Husband. 
The  jury  are  instructed  that  in  estimating  the  pecuniary  loss  to 
plaintiffs  the  jury  have  a  right  to  take  into  consideration  the  loss  of 
society,  comfort  and  care  suffered  by  them  in  the  death  of  the  husband 
and  father.14 

§  977.  Loss  of  Husband  and  Parent — Elements  of  Damage.  If 
your  verdict  should  be  for  the  plaintiffs,  you  will  assess  the  damage 

been   sustained  by  the  widow   and  12—1.    C.    Rd.    Co.    v.    Baches,    55 

next  of  kin  by  reason  of  the  death  111.   379. 

of    the    intestate.      Chicago    &    A.  13— C.   &  N.   W.   Rd.  Co.  v.   Bay- 

Ry.    Co.    v.    Kelly,    182    111.    267,    54  field,   37   Mich.   205. 

N".     E.    979."  14— Dyas   v.    So.    P.    Co.,    140    Cal. 

10—  Baltimore,     etc.,     Rd.     Co.     v.  296.    73   Pac.    972    (975). 

Wightman,  29  Gratt.  431;   Mathews  "This    was    a   proper    instruction 

v.     Warner,    29    Gratt.     570     (Va.);  to   be   given    in   cases   like    the   one 

Cooley  Tort,  3d  ed.,  569.  at    bar,   as    was    settled    long    ago. 

11     Rafferty    v.    Buckman,    46   la.  Beeson    v.    G.    M.    Co.,    57    Cal.    38, 

196;     Nashville,     etc.,     Rd.     Co.    v.  and     since     approved;     Lange     v. 

Stevens,    9   Heisk.    12.  Schoettler,    115    Cal.     388,     47    Pac. 


§  978.]  DAMAGES— NEGLIGENCE.  679 

at  such  sum  as  will  compensate  them  for  their  pecuniary  loss  resulting 
from  the  death  of  the  husband  and  father.  In  estimating  this  loss, 
it  is  proper  for  you  to  take  into  consideration  the  age,  health,  habits, 
occupation,  expectation  of  life,  mental  and  physical  capacity  for  and 
disposition  to  labor,  and  the  probable  increase  or  decrease  of  that 
ability  with  the  lapse  of  time;  his  earning  capacity;  the  care  and 
attention,  the  instruction  and  training,  one  of  his  disposition  and 
character  may  be  expected  to  give  to  his  family — and  thus  determine 
the  value  of  the  life.  From  this  amount  deduct  the  personal  expenses 
of  deceased,  and  the  balance,  reduced  to  its  present  value,  would  be 
the  present  amount  of  your  verdict,  provided  such  of  the  deceased 
children  as  were  minors  at  his  death  or  at  this  time  would  not  be 
entitled  to  any  compensation  on  account  of  death  of  deceased  for  a 
period  bej'ond  the  time  of  their  attaining  their  majority.15 

§  978.  Action  by  Administrator — Personal  Injuries — Death  From 
Other  Cause  Before  Trial — Mental  Suffering  of  Widow  Not  Element 
of  Damage.  The  jury  are  instructed  that  if,  under  the  instructions 
of  the  court,  and  the  evidence  in  this  case,  they  should  find  the 
defendant  guilty,  they  should  not,  in  assessing  damages  in  favor  of 
plaintiff,  allow  anything  for  mental  suffering  or  damages  of  any  kind 
pecuniary  or  otherwise  suffered  by  the  widow  or  next  of  kin  of  the 

said  ,  but  on  the  contrary  such  damages  should  be  limited  by 

the  amount  of  damages  which  the  preponderance  of  the  evidence 
shows  was  suffered  by  the  said ,  prior  to  his  death.16 

§  979.  Action  by  Husband  for  Negligence  Causing  Death  of  Wife 
— Elements  of  Damages,   (a)  In  this  case  the  plaintiff's  damages,  if 

139;    Harrison   v.    Sutter   St.   R.   R.  the    deceased    left    him    surviving 

Co.,  116  Cal.   156,  47  Pac.   1019."  three    children    one    of   whom    was 

15 — St.  Louis  I.   M.   &  S.  Ry.  Co.  about  six  and  another  about  seven 

v.    Hitt,   76  Ark.  227,   88   S.   W.   908  years   of   age.     This    evidence   was 

(911).  held  by  the  Appellate  Court  to  be 

The  Supreme  Court  said   the  in-  erroneously  admitted,  but  was  not 

struction    "properly   gave    the   ele-  held  to  be   reversible  error   as  the 

ments    to    consider   in    arriving    at  instruction   above   cured   the  error, 

the   compensatory   amount.     If  the  The    Appellate    Court    said:      "We 

calculation  was  made,  it  was  use-  are  of  the  opinion  that  in  view  of 

ful     only    to    reach    the    probable  the   foregoing  instruction    the  jury 

amount    required    to    purchase   the  could    not   have   been   led    into   as- 

annuity    to    represent    his    income,  sessing   any   damages   except   such 

and    from    such    amount    personal  as    appellee's    intestate    would,    in 

expenses    were   directed   to   be   de-  the  opinion  of  the  jury,  have  been 

ducted."  entitled    to    recover    had    he    sur- 

16—111.      S.      Co.      v.      Ostrowski,  vived.      In    City    of   Joliet   v.    Con- 

Adm'x,    93    111.    App.    57    (63).  way,   119   111.   489,  the   court,    refer- 

The  above  instruction  was  given  ring  to  a  similar  instruction,  said: 
in  a  case  where  the  intestate's  'In  this  case  there  is  no  attempt 
administrator  sued  for  personal  to  show  that  the  family  were  de- 
injuries  sustained  by  the  de-  pendent  upon  the  plaintiff  for  sup- 
ceased.  The  deceased  died  about  port,  care  of  maintenance,  and  the 
seven  months  after  the  injury  oc-  jury,  we  think,  could  not  have 
curred,  but  the  death  was  oora-  so  understood  it.  especially  in 
sioned  by  an  entirely  independent  view  of  the  fact  that  the  instruc- 
source  and  was  not  due  to  the  in-  tions  expressly  limit  the  right  of 
juries  sustained.  In  the  case  evi-  recovery  to  such  damages  as  re- 
dence  was  admitted   showing  that  suited    to   the   plaintiff  alone.' " 


680  FORMS  OF  INSTRUCTIONS.  [§  980. 

any,  should  be  fair  and  just  compensation  for  the  pecuniary  injury  re- 
sulting to  the  husband  and  children  from  the  death  of  X.  In  no 
case  can  the  jury,  in  estimating  the  damages,  consider  the  bereave- 
ment, mental  anguish  or  pain  suffered  by  the  living  for  the  dead. 
The  damage  is  exclusively  for  a  pecuniary  loss,  not  a  solace.  The 
reasonable  expectation  of  what  the  husband  and  children  might  have 
received  from  the  deceased  had  she  lived,  is  a  proper  subject  for  the 
consideration  of  the  jury,  if  they  find  for  the  plaintiff.  What  the 
husband  and  children  might  reasonably  expect  to  receive  by  reason 
of  the  services  of  this  woman,  in  a  pecuniary  point  of  view,  is  to  be 
taken  into  account  in  determining  the  amount  of  damages,  if  you 
find  for  the  plaintiff.  It  should  be  said  that  it  is  the  present  worth 
as  a  gross  sum  in  money  for  the  loss  of  the  services  of  this  woman 
that  you  are  to  find,  if  you  find  a  loss.  It  is  that  same  which,  put  in 
money,  is  a  compensation  for  what  you  find  this  woman  would 
reasonably  have  saved  for  her  family.  Of  course,  in  determining  this, 
these  things  are  all  to  be  considered — that  is,  the  age,  health,  prob- 
ability of  length  of  life,  or  death,  if  she  had  not  died  from  taking  this 
drug.17 

(b)  If  the  jury  find  the  issues  for  the  plaintiff,  then  they  should 
assess  the  plaintiff's  damage  at  what  the  jury  believe,  from  the  evi- 
dence, to  be  a  proper  pecuniary  compensation  for  damages  to  her  sur- 
viving husband  and  next  of  kin,  occasioned  by  her  death,  not  exceed- 
ing $ .1S 

§  980.  Action  by  Next  of  Kin — Pecuniary  Loss  Not  Presumed — 
Must  Be  Proven — Plaintiff  Receiving  Pecuniary  Aid  From  Deceased. 
(a)  The  court  further  instructs  the  jury  that  in  this  case  you  cannot 
presume  that  the  next  of  kin  have  suffered  pecuniary  loss  because  of 
the  death,  but  the  pecuniary  loss,  if  any  has  been  sustained,  must 
be  proven;  and  unless  the  next  of  kin  for  whose  use  this  suit  is 
brought,  were  in  the  habit  of  claiming  and  receiving  pecuniary  as- 

17 — Davis    v.    Guarnieri,    45    Ohio  deceased.     While   perhaps   a   strict 

470,    15   N.    E.    350    (355),    4   Am.    St.  and      literal     construction     of     the 

Rep.    548.  statute    might    give    some    support 

"It    impresses    us    as     a    sound,  to     this     contention,     we    are    dis- 

clear  and  considerate  statement  of  posed    to  adhere   to    the   views   ex- 

the  true  rule  of  damages  applica-  pressed    in    Chicago    v.    Major,    18 

ble   to   the   case."  111.    349,    68    Am.    Dec.    553.      There 

18— C,  C.  C.   &  St.  L.  Ry.  Co.  v.  a    broader    and    more    liberal    con- 

Baddeley,  130  111.  328  (335),  36  N.  E.  struction     was     adopted     and     one 

965.  which  gives  to  a  husband  a  rem- 

"The  objection  urged  to  this   in-  edy    for    the     death    of    his    wife. 

struction   is,    that    in   laying   down  We    are   referred    to   cases   decided 

ire    of   damages,   the   pe-  in  other  States   where  a  more  re- 

cunlary    injuries    resulting    to    the  stricted      construction      has      been 

surviving  husband  from  the  death  given   to   similar   statutes,   but   we 

of  his   wife   are  included,    it   being  are   better   satisfied   with   the   con- 

ided     that     the     statute     by  struction    of    our    statute    adopted 

which  the  right  of  action  in  cases  in    Chicago    v.    Major,    and    under 

of    this    character    is    given,    limits  that    construction    the    trial    court 

'•overy  to  the  pecuniary  in-  was  justified  in  giving  the  instruc- 

Jurles    resulting    to    the    wife    and  tion  under  consideration." 

next  of  kin  from  the  death  of  the 


§980.] 


DAMAGES— NEGLIGENCE. 


681 


sistance  of  the  deceased,  your  verdict  should  only  be  for  a  nominal 
sum;  but  if  you  find  from  the  evidence  that  said  next  of  kin  were 
in  the  habit  of  claiming  and  receiving  pecuniary  aid  from  the  de- 
ceased, then  your  verdict  should  be  for  the  actual  money  loss  that 
they  sustained  by  reason  of  his  death,  provided  you  find  the  issues 
for  the  plaintiff. 

(b)  The  court  instructs  the  jury  that  in  case  you  should  find  the 
issues  for  the  plaintiff,  your  vei'dict  should  be  only  for  the  pecuniary 
or  money  loss  sustained  'by  the  next  of  kin,  by  reason  of  the  death 
of  deceased.  In  this  character  of  suits  you  cannot  consider  as  a 
measure  of  damages  the  pain  and  suffering  that  deceased  underwent, 
or  the  bereavement  and  suffering  of  the  next  of  kin,  by  reason  of  his 
death.19 

(c)  If  you  find  from  the  evidence  that  the  defendant  is  guilty  of 
the   negligence   charged   in   the   plaintiff's   declaration,   and    that   the 

same  resulted  in  the   death  of  ,  then  the  plaintiff  is  entitled 

to  recover  in  this  action  for  the  benefit  of  the  next  of  kin  of  said 
deceased,  such  damages  as  the  jury  may  deem  from  the  evidence  and 
proof  of  a  fair  and  just  compensation  for  whatever  pecuniary  dam- 
age, if  any,  the  evidence  shows  said  next  of  kin  have  sustained  by 
reason  of  said  death,  not  exceeding  amount  claimed  in  the  declar- 
ation.20 


19— Malott  v.  Crow,  90  111.  App. 
628    (631). 

20—1.  C.  R.  R.  Co.  v.  Gilbert,  51 
111.    App.    404    (406). 

The  Appellate  Court  said:  "Such 
an  instruction,  omitting  the  words, 
'five  thousand  dollars,'  was  ap- 
proved in  C,  M.  &  St.  P.  R.  R. 
Co.  v.  Dowd,  115  111.  659,  4  N.  E. 
368,  and  an  instruction  in  substan- 
tially the  words  of  the  one  given 
in  this  case  was  approved  in  C,  B. 
&  Q.  R.  R.  Co.  v.  Payne,  59  111.  534. 

"The  concluding  words,  'not  ex- 
ceeding five  thousand  dollars,'  have 
been  disapproved  by  this  and  the 
Supreme  Court,  anions  other 
cases,  in  C,  R.  I.  &  P.  R.  R.  Co. 
v.  Austin,  Adm'x,  69  111.  426.  and 
Village  of  Warren  v.  Wright,  3 
111.    App.    602. 

"The  error  in  this  regard  was 
cured  by  the  remittitur  from  the 
verdict  of  $2,500. 

"This  court  in  Andrews  v. 
Boidecker,  17  111.  App.  213,  a  case 
similar  to  this,  said:  "The  jury 
may  assess  such  damages  as  will 
be  a  just  and  fair  compensation 
for  the  pecuniary  loss  suffered  by 
the  next  of  kin,  from  the  death 
of  the  deceased,  and  in  so  doing 
they  may  take  into  consideration 
every  reasonable  expectation  the 
survivors    may    have    had    of    pe- 


cuniary benefit  or  advantage  from 
the    continuance    of    his    life.'  " 

On  further  appeal  to  the  Su- 
preme Court,  157  111.  354  (360),  41 
N.  E.  724,  the  instruction  was  again 
approved.  The  Supreme  Court 
said:  "An  instruction  almost 
identical  with  that  given  in  this 
case  was  challenged  by  the  appel- 
lant in  C.  B.  &  Q.  R.  R.  Co.  v. 
Payne,  59  111.  534,  and  it  was  held, 
'The  point  of  this  instruction  is 
the  measure  of  damages,  and  in 
this  respect  is  entirely  correct. 
But  appellant's  counsel  insists 
that  it  is  wrong  because  it  with- 
draws from  the  jury  all  consid- 
eration of  the  conduct  of  deceased. 
We  do  not  think  the  instruction 
obnoxious  to  criticism  as  claimed.' 
Instructions  like  the  one  now  un- 
der discussion  were  before  this 
court  in  Chi.  M.  &  St.  P.  Rd.  Co. 
v.  Dowd,  115  Til.  659,  4  N.  E.  368; 
Ponn.  Co.  v.  Marshall,  119  111.  399, 
10  N.  E.  220;  and  C.  M.  &  St.  P. 
Rd.  Co.  v.  O'Sullivan,  143  111.  48, 
32  N.  E.  398;  in  each  of  which  it 
was  held  to  relate  solely  to  the 
measure  of  damage.  An  exam- 
ination of  these  cases  will  show 
there  is  no  conflict  in  the  opin- 
ions of  this  court  as  to  instruc- 
tions of  the  character  of  the  one 
given  in  this  case  for  the  plaintiff. 


682  FORMS  OF  INSTRUCTIONS.  [§981. 

(d)  The  court  instructs  the  jury  that  if  you  find  a  verdict  in  favor 
of  the  plaintiff,  then,  in  assessing  the  plaintiff's  damages,  you  may 
consider  the  pecuniary  benefits  which  the  plaintiff  may  have  derived 
from  the  deceased  if  he  had  not  been  killed,  at  any  age  of  deceased's 
life,  provided  you  further  find,  from  the  evidence,  that  the  plaintiff 
is  the  nest  of  kin,  dependent  upon  deceased  for  support.21 

§  981.  Nominal  Damages  Only — Where  No  Pecuniary  Loss,  Under 
Statute  in  Illinois,  Representative  of  Deceased  Sues.  The  court  in- 
structs the  jury  that,  under  all  the  evidence  offered  in  this  case,  the 
jury  will  not  be  warranted  in  assessing  any  more  than  nominal  dam- 
ages against  the  defendant.22 

§  982.  Only  Such  Damages  Allowed  as  Shall  Make  Good  the  Actual 
Pecuniary  Loss — Sustained  by  Next  of  Kin.  The  jury  are  instructed 
that  if  you  shall  find  for  the  plaintiff  in  this  case,  you  can  only 
allow  such  damages  as  shall  make  good  the  actual  pecuniary  loss 
sustained  by  the  next  of  kin  of  the  person  deceased,  and  that  the 
sorrow  or  mental  suffering  or  grief  of  his  said  next  of  kin  are  not 
proper  elements  to  be  considered  by  the  jury  in  the  calculation  of 
damages.  You  must  ascertain  from  the  facts  and  circumstances  in 
evidence  the  actual  pecuniary  loss  sustained  by  said  next  of  kin  as 
nearly  as  they  can  approximate  thereto,  and  this  pecuniary  loss  as 
found  by  you  from  the  evidence  must  be  the  sole  measure  of 
damages.23 

§  983.  Measure  of  Damages  for  Death  of  Minor  Child,  (a)  If 
you  find  a  verdict  in  favor  of  plaintiff,  you  are  not  confined  in  assess- 
ing the  damage,  to  the  pecuniary  value  of  the  services  of  the  deceased 
child  to  his  next  of  kin  until  he  would  have  arrived  at  the  age  of  21, 
but  the  jury  may  consider  the  pecuniary  benefit  which  the  next  of 

It    relates    solely    to    the    measure  of    kin    of    such    deceased    person 

of    damage,    and    need    not    incor-  not  exceeding  $5,000,'   has  been  be- 

porate  the  requirement  that  plain-  fore  the  court  for  consideration  in 

tiff    was    in    the    exercise    of    due  a  number  of  cases,  and  it  has  been 

care  and  caution.     It  was  not  error  uniformly   held   that   damages   can 

to   give   it."  only    be    recovered    for    the    pecu- 

21— O'Fallon  Coal  Co.  v.   Laquet,  niary    loss;    that    damages   for   the 

198  111.  125,  aff'g  89  111.  App.  13,  64  bereavement,   for  pain   and   suffer- 

N.   E.  767.  ing, — damages  by  way  of  solatium, 

22— Street    R.    R.    Co.    v.    Brodie,  —cannot  under  this  statute   be  re- 

156   111.   317   (318),   rev'g  57  111.   App.  covered.     Chicago  v.   Major,   18  111. 

564.   40   N.   E.   942.  349;    Chi.   &   R.   I.   Rd.   Co.   v.   Mor- 

"The  statute  (Hurd's  Statutes,  ris,  26  111.  40;  C.  &  A.  R.  R.  Co.  v. 
chap.  70,  p.  7S1)  providing  that  Shannon.  43  111.  338;  Conant  v. 
the  action  shall  be  brought  in  Griffin,  48  111.  510;  I.  C.  R.  R.  Co. 
the  name  of  the  personal  repre-  v.  Baches  55  111.  379;  C,  B.  &  Q. 
sentative  of  the  deceased  person,  Rd.  Co.  v.  Harwood,  80  111.  88; 
and  the  amount  recovered  shall  be  Holton  v.  Daly,  106  111.  131.  Un- 
for  the  benefit  of  the  widow  and  der  the  rule  'established  by  the 
next  of  kin  of  the  deceased  person,  cases  cited,  the  plaintiff  having 
'and  in  every  such  action  the  jury  sustained  no  pecuniary  loss  was 
may  give  such  damages  that  they  entitled  to  recover  nominal  dam- 
may    deem    a    fair    and    just    com-  ages  only." 

pensation.    with    reference    to    the        23— C.    &   G    T    Ry    Co    v    Kin- 
pecuniary    injuries    resulting    from  nare,  115  111.  App    132   (134) 
such    death   to  the  wife  and   next 


§  984.]  DAMAGES— NEGLIGENCE.  683 

kin  might  have  derived  from  said  deceased,  had  he  not  been  killed, 
at  any  age  of  his  life.24 

(b)  If  the  jury  find  for  the  plaintiff,  in  estimating  the  damages 
sustained  by  the  next  of  kin  of  the  deceased  by  reason  of  his  death, 
the  jury  can  only  estimate  the  damages  to  the  brothers  and  sisters 
of  deceased  at  such  a  sum  as  the  evidence  shows  they  have  sustained 
by  the  death  of  deceased,  and  can  only  estimate  the  damages  to  the 
father  of  deceased  upon  the  basis  of  what  the  son's  services  would 
have  been  worth  to  his  father  from  the  date  of  the  injury  to  the 
time  he  would  have  arrived  at  the  age  of  twenty-one  years,  deducting 
therefrom  the  costs  and  expenses  of  the  father  in  his  support  and 
maintenance  during  that  time;  and  if  the  evidence  does  not  show  the 
ages  of  said  brothers  and  sisters  nor  that  they  were  receiving  support 
from  him,  or  were  in  condition  to  require  it.  then  the  jury  can  only 
estimate  the  damages  to  said  brothers  and  sisters  at  a  nominal  sum.23 

(c)  The  court  instructs  the  jury  that,  in  case  they  find  for  the 
plaintiff,  they  can  only  assess  pecuniary  damages  for  pecuniary  loss — 
that  they  cannot  give  any  damages  for  the  grief  and  mental  suffering 
of  the  father  and  mother,  or  any  one  else.  The  damages,  if  any, 
must  be  confined  to  the  pecuniary  loss  which  the  evidence  may  show 
has  been  sustained  by  the  father  and  next  of  kin,  and  should  be  such 
compensation  under  the  statute  as  the  jury  may  believe  from  the 
evidence  is  just  and  right.20 

§  984.  Age  of  Child,  Its  Physical  and  Mental  State,  Probability 
of  Living  to  Majority,  and  Probable  Aid,  etc.,  to  Father  in  Future 
Years.  In  determining  the  value  of  said  services,  you  are  to  take 
into  consideration  all  the  circumstances  of  the  case,  such  as  the  age 
of  the  child,  and  its  physical  and  mental  state,  the  probability  that 
it  would  have  lived  to  reach  its  majority,  and  the  probable  aid,  as- 
sistance, society  and  comfort  it  would  have  been  able  to  give  to  the 
father  in  future  years.27 

24— TJ.  S.  Brewing  Co.  v.   Stolten-  25— Wabash   R.    R.    Co.    v.    Smith, 

berg-,    211    111.    531    (534-5),    aff'g   113  162  111.   583    (588),   aff'g  58    111.   App. 

111.    App.   435,    71   N.    E.   1081.  419,    44    N.    E.    856.      But    see   W.    C. 

"This    instruction    is    exactly    the  St.    R.    R.    Co.    v.    Dooley,    76    111. 

same  as  an   instruction  which  was  App.   424. 

approved  by  this  court  in  the  case  26—1.   C.    R.    R.    Co.    v.    Reardon, 

of  B.  &  O.  S.  W.  Ry.  Co.  v.  Then,  157    111.    372   (378),    aff'g  56   111.   App. 

159  111.   535,   42   N.   E.   971.     The  only  542,   41   N.   E.  871. 

difference  between  the  instruction  "That  the  loss  of  the  right  to 
in  the  Then  case  and  that  in  the  receive  his  wages  until  majority 
case  at  bar  is  that,  in  the  for-  is  not  the  only  element  of  pecu- 
mer,  the  words  'may  have  derived'  niary  loss  or  the  only  thing  to  be 
are  used,  while  in  the  latter  the  considered  by  the  jury  in  assessing 
words  'might  have  derived'  are  damages,  is  settled  by  the  re- 
used. The  difference  between  the  peated  decisions  of  this  court, 
two  instructions  is  a  mere  matter  City  of  Chicago  v.  Keefe.  114  111. 
of  grammar,  and  does  not  affect  222,  2  N.  E.  267;  I.  C.  R.  R.-Co.  v. 
the  meaning.  The  instruction  in  Slater,  129  111.  91,  21  N.  E.  575, 
the  Then  case  was  referred  to  6  L,.  R.  A.  418.  16  Am.  St.  Rep. 
with  approval  in  the  recent  case  242:  Chicago  v.  Sholten,  75  111.  46V 
of  No.  C.  St.  R.  R.  Co.  v.  Johnson,  27— Corbett  v.  Oregon  S.  L.  R. 
205  111.   32,   68   N.   E.   463."  Co.,  25  Utah  449,   71  Pac.  1065. 


684 


FORMS  OF  INSTRUCTIONS. 


[§  985. 


§  985.  Injury  to  Servant  Causing  Death,  (a)  If  the  jury  believe 
from  the  evidence  that  the  plaintiff  is  entitled  to  recover,  she  is 
entitled  to  recover  an  amount  equal  to  J.  J.  pecuniary  worth  to  his 
family  who  were  dependent  upon  him  from  the  time  of  his  death  to 
this  time,  added  to  the  present  cash  value  of  his  pecuniary  worth  to 
his  said  family  during  the  balance  of  his  expectancy  of  life.28 

(b)  The  court  instructs  you  that  in  fixing  the  amount  of  your 
verdict  you  will  allow  them  such  a  sum  of  money  as  you  find  from 
the  evidence  will  be  a  fair  compensation  to  them  for  the  pecuniary 
loss,  if  any,  sustained  by  them  in  the  death  of  G.  W.  J.,  separating 
by  your  verdict  the  sum,  if  any,  you  allow  to  plaintiff  E.  J.  for  her- 
self, and  the  sum,  if  any,  for  the  benefit  of  her  daughter  F.  J.29 

(e)  Should  your  verdict  be  for  plaintiffs,  you  should  find  for  them 
in  such  an  amount  as  you  believe  from  the  evidence  that,  if  paid 
now,  will  fairly  and  reasonably  compensate  them  for  such  support 
and  maintenance  as  the  decedent,  if  he  had  lived,  would  have  given 
to  T.  and  M.,  if  any,  and  for  such  an  amount  as  the  decedent,  if  he 
had  lived,  would  have  expended  for  the  education  of  M.  and  T.,  if 


any.JU 

"Complaint  is  made  that  this 
language  'assumes  as  a  settled 
fact  that  the  child  would  have 
done  all  it  might  have  been  able 
to  do  had  it  lived.'  While  this 
part  of  the  instruction  is  to  some 
extent  open  to  criticism,  yet  when 
read  in  connection  with  other  parts 
of  the  same  instruction,  we  do 
not  think  it  probable  that  the  jury 
was  misled.  For  instance  the 
court  restricted  the  recovery  to  a 
'just  compensation'  for  the  'pecu- 
niary loss  thereby  sustained'  and 
'pecuniary  compensation  to  the  fa- 
ther for  the  loss  which  he  may 
have  sustained.'  Neither  was  it 
error  to  authorize  a  recovery  for 
the  pecuniary  loss  sustained  for 
the  loss  of  service  of  the  child, 
including  society  and  comfort;  the 
instruction  expressly  excluding  any 
recovery  for  sorrow,  grief  or 
anguish  the  parents  or  either  of 
them,  may  have  sustained,  or  any 
pain  or  suffering  that  may  have 
resulted  to  the  child.  Pool  v.  Rail- 
way Co.,  7  Utah  303,  26  Pac.  654; 
Hyde  v.  Ry.  Co.,  7  Utah  356,  26 
Pac.  979;  Wells  v.  Rv.  Co.,  7  Utah 
482,  27  Pac.  688;  Chilton  v.  Ry.  Co., 
8  Utah  48,  29  Pac.  963;  Munro  v. 
Pac.  Coast  Dredging  &  R.  Co.,  84 
Cal.  515.  24  Pac.  303,  18  Am.  St. 
Rep.  248;  Lange  v.  Schoettler,  115 
Cal.  391,  47  Pac.  139;  Green  v.  Rail- 
way Co.  —  Cal.  — ,  67  Pac.  4;  Den- 
Tr.  Co.  v.  Riley,  14  Colo. 
App.  32,  59  Pac.  476;   F.  Cent.  &  P. 


R.  Co.  v.  Foxworth,  41  Fla.  1,  25 
So.  338,  79  Am.   St.   Rep.  149. 

28— Ala.  M.  R.  Co.  v.  Jones,  114 
Ala.  519,  21  So.  507  (511),  62  Am. 
St.   Rep.   121. 

"The  measure  of  damages  in 
cases  of  this  character,  viz.,  where 
the  next  of  kin  were  dependents, 
and  all  earnings  were  consumed  in 
the  support  of  the  family,  will  be 
understood  by  consulting  the  fol- 
lowing authorities:  L.  &  N.  Co 
v.  Trammel  1,  93  Ala.  350,  9  So. 
870;  McAdory  v.  L.  &  N.  R.  Co., 
94  Ala.  272,  10  So.  507;  Bromley  v. 
Birmingham  Mineral  R.  Co.,  95 
Ala.  397,  11  So.  341;  Louisville  & 
N.  R.  Co.  v.  Markee,  103  Ala.  160, 
15  So.  511,  49  Am.  St.  Rep.  21; 
Alabama  G.  S.  R.  Co.  v.  Hall,  105 
Ala.   599,   17   So.   176." 

29— G.  H.  &  S.  A.  Ry.  Co.  v.  John- 
son, 24  Tex.  Civ.  App.  180,  58  S. 
W.    622    (623). 

30— G.  H.  &  S.  A.  R.  Co.  v. 
Puente,  30  Tex.  Civ.  App.  246,  70 
S.    W.    362    (364). 

In  comment  the  court  said  the 
"language  of  the  statute  is:  'The 
jury  may  give  such  damages  as 
they  may  think  proportionate  to 
the  injury  resulting  from  such 
death.'  It  does  not  limit  the  dam- 
ages to  such  as  accrue  during  the 
minority  of  the  children  of  the 
deceased.  Nor  are  they  tied  down 
to  any  precise  rule  within  the 
limit  of  the  statute  as  to  the 
amount  and  species  of  injuries  sus- 


§  986.]  DAMAGES— NEGLIGENCE.  685 

§  986.  Should  Consider  Age,  Society  to  Family;  also  Solace  and 
Comfort,  etc.  (a)  The  jury  must  found  their  estimate  of  the  amount 
of  such  loss  upon  such  facts  in  proof  as  tend  to  show  the  extent  of  the 
pecuniary  loss  sustained,  taking  into  consideration  the  age  of  the 
deceased,  and  all  such  other  evidence  as  may  afford  them  the  means 
of  making  the  estimate.31 

(b)  The  jury  are  instructed  by  the  court  that  if  you  shall  find  for 
the  plaintiff,  in  estimating  his  damages  you  may  take  into  considera- 
tion compensation  for  the  loss  of  his  care,  attention,  and  society  to  his 
family  together  with  such  sum  as  they  may  deem  fair  and  just  by 
way  of  solace  and  comfort  to  them  for  the  sorrow,  suffering  and 
mental  anguish  occasioned  by  his  death,  not  to  exceed,  however,  the 
sum  of  $ .32 

§  987.  Reasonable  Probabilities  of  Life — Damages  Past  and  Pros- 
pective— Apportionment  Among  Plaintiffs,  (a)  If  the  court  sitting 
as  a  jury  find  for  the  plaintiffs  it  is  to  estimate  the  reasonable  prob- 
abilities of  the  life  of  the  deceased,  S.,  and  give  the  equitable  plaint- 
iffs such  pecuniary  damages,  not  only  for  past  losses,  if  the  court 
sitting  as  a  jury  finds  any  loss,  but  for  such  prospective  damages  as 
it  may  find  they  have  suffered  or  will  suffer  as  the  direct  consequence 
of  the  death  of  the  said  plaintiff. 

(b)  If  the  court  sitting  as  a  jury  shall  find  for  the  plaintiffs, 
then,  in  awarding  the  damages  to  which  the  plaintiffs  are  entitled,  it 
must  apportion  them  among  the  equitable  plaintiffs  in  such  shares 
as  it  shall  find  and  direct.33 

§  988.  An  Instruction  on  the  Measure  of  Damages  Need  Not  In- 
clude All  the  Elements  Necessary  for  Recovery.  If  the  jury  find, 
from  the  evidence,  and  under  the  instructions  of  the  court,  that  the 
defendant  corporation  is  guilty  of  the  wrongful  acts,  neglect  or  default 
as  charged  in  the  plaintiff's  declaration,  then  the  plaintiff  is  entitled 
to  recover  such  damages  as  the  jury  may  deem  from  the  evidence 

tained.  The  matter  is  to  be  sub-  v.  Lester,  75  Tex.  56,  12  S.  W.  955. 
mitted  to  their  sound  judgment  The  children  were  respectively  18 
and  sense  of  justice.  They  must  months  and  two  and  one-half  years 
be  satisfied  that  pecuniary  in-  old  when  their  father  was  killed, 
juries  resulted.  If  so  satisfied,  they  It  was  his  duty  to  support,  main- 
are  at  liberty  to  allow  them,  from  tain  and  educate  his  children;  and 
whatever  source  they  actually  pro-  it  may  be  presumed  that  he  would 
ceed  which  could  produce  them,  have  continued  to  discharge  this 
If  they  are  satisfied  from  the  his-  duty,  had  he  lived.  We  do  not 
tory  of  the  family,  as  intrinsic  think  that  appellant  can  justly 
probabilities  of  the  case,  they  complain  of  this  part  of  the 
were  sustained  by  the  loss  of  bod-  charge." 

ily   care,   or  intellectual  culture   or        31— City  of  Chicago  v.   Major,  18 

moral   training,    which   the    parent  111.  349. 

had   supplied,    or   would,   from   the        32— B.   &  O.   R.   R.  Co.   v.   Noell's 

duties    growing    out    of    the    rela-  Adm'r,    32    Grat.     Va.    394;     Ports- 

tionship,  probably  supply,  they  are  mouth  St.   R.  Co.  v.  Peed's  Adm'r, 

at  liberty  to  allow  them.    Mo.  Pac.  102   Va.    662,    47    S.    E.    850    (852). 
R.    Co.    v.    Lehmberg,    75    Tex.    61,        33— Western  M.   R.   Co.    v.   State, 

12    S.    W.   838;    Texas    Pac.   R.    Co.  95  Md.  App.  637,  53  Atl.  969. 


686 


FORMS  OF  INSTRUCTIONS. 


[§  989. 


and  proof  a  fair  and  just  compensation  therefor,  having  reference 
only  to  the  pecuniary  injuries  resulting  from  such  death  to  the  said 
plaintiff  and  next  of  kin  not  exceeding  the  amount  in  the  declaration. 
Sorrow  or  grief  for  the  deceased,  or  any  pain  caused  to  the  next 
of  kin  by  reason  of  the  manner  of  his  death  is  not  to  be  considered 
by  the  jury,  and  the  pecuniary  value  of  the  life  of  the  deceased  to 
the  next  of  kin,  him  surviving,  is  all  for  which  damages  can  be 
assessed.34 

§  989.    Damages  Not  to  Exceed  a  Certain  Specified  Amount.     The 

jury  are  instructed  that,  if  they  find  for  the  plaintiff,  they  must 
assess  the  plaintiff's  damages  at  such  sum  as  will  be  a  fair  compen- 
sation, with  reference  to  the  pecuniary  injuries  resulting  from  such 
death  to  the  widow  and  next  of  kin  of  J.,  deceased,  not  exceeding  the 
sum  of  $5,000.35 


34— C.  M.  &  St.  P.  Ry.  Co.  v. 
O'Sullivan,  143  111.  48  (51),  32  N.  E. 
398. 

"If  it  was  an  instruction  that 
purported  to  state  hypothetically 
the  elements  necessary  to  consti- 
tute a  cause  of  action,  it  would 
manifestly  be  bad,  for  it  omits  the 
requirement  of  ordinary  care, 
wholly  ignores  the  question  of  con- 
tributory negligence  and  does  not 
even  require  the  jury  to  find  that 
the  negligence  of  the  plaintiff  re- 
sulted in  the  death  of  the  de- 
ceased. It  is  not,  however,  an  in- 
struction of  that  kind,  but  relates 
merely  to  the  measure  of  damages 
in  the  event  a  legal  right  of  re- 
covery is  shown.  The  declaration 
alleges  the  negligent  acts  of  ap- 
pellant, that  the  death  of  the  in- 
testate was  caused  thereby,  and 
that  said  intestate,  at  the  time  he 
was  killed,  was  in  the  exercise  of 
due  care.  The  court  instructed  the 
jury  that  if  they  believed,  from 
the  evidence,  that  the  plaintiff  had 
made  out  his  case  as  laid  in  his 
declaration,  then  they  should  find 
for  the  plaintiff.  This  imposes  on 
the  plaintiff  the  burden  of  estab- 
lishing all  three  elements  neces- 
sary to  constitute  the  cause  of  ac- 
tion,— the  negligence,  the  conse- 
quent death,  and  ordinary  care  on 
the  part  of  the  deceased.  Then 
followed  the  instruction  in  ques- 
tion in  regard  to  the  damages 
to  be  assessed,  if  the  jury  found 
the  defendant  guilty  as  charged  in 
the  declaration.  The  instruction 
is  almost  identical  with  those 
i  passed  on  by  this  court  in  C.  B. 
&  Q.  R.  R.  Co.  v.  Payne,  59  111. 
534;   in  C.   M.  &  St.  P.  Ry.  Co.  v. 


Dowd,  115  111.  659,  4  N.  E.  368,  and 
in  Penn.  Co.  v.  Marshall,  119  111. 
399,  10  N.  E.  220,  and  in  all  three 
of  said  cases  held  to  be  an  instruc- 
tion not  to  be  regarded  as  one 
stating  the  law  in  regard  to  negli- 
gence, but  simply  as  one  relating 
to  the  measure  of  damages  in 
case  the  plaintiff  should  recover, 
and  also  held  not  to  be  erroneous. 
The  only  difference  between  the 
instructions  involved  in  these  cases 
and  that  now  at  bar  is  that  here 
the  fact  of  the  death  of  the  in- 
testate was  caused  by  the  negli- 
gence not  stated  in  the  instruc- 
tion,— which  makes  it  still  more 
plain  that  it  was  not  the  office  of 
the  instruction  to  lay  down  any 
hypothesis  that  would  be  the  basis 
of  a  right  of  recovery  in  the  ad- 
ministrator of  the   deceased." 

35— L.  S.  &  M.  S.  Ry.  Co.  v. 
Parker,  131  111.  557,  23  N.  E.  237. 

"It  seems  to  be  thought  that  this 
instruction  is  subject  to  the  same 
objection  sustained  by  this  court 
to  that  given  in  C.  R.  I.  &  P.  R.  R. 
Co.  v.  Austin,  admr.,  69  111.  426. 
That  instruction  was  as  follows: 
'The  jury  are  instructed  that  by  the 
statute  of  Illinois  the  plaintiff  in 
this  case  cannot  recover  more  than 
$5,000;  and  if  they  believe,  from 
the  evidence,  that  the  plaintiff  is 
entitled  to  recover,  they  will  ren- 
der a  verdict  for  no  more  than 
that  amount.'  Breese,  C.  J.,  ren- 
dering the  opinion,  said:  'That  is 
but  telling  the  jury  they  must  ren- 
der a  verdict  for  $5,000.'  And  can 
the  same  be  said  of  this  instruc- 
tion? Certainly  not.  Here  the 
jury  are  expressly  told  that  the 
measure    of    recovery    is    the    pe- 


§  990.]  DAMAGES— NEGLIGENCE.  687 

§  990.  Duty  of  Coal  Mine  Operator  to  Keep  Supply  of  Timber  on 
Hand,  to  Secure  Safety  to  Workmen — Words  of  Statute.  The  court 
instructs  the  jury  that  the  law  makes  it  the  duty  of  the  owner,  agent 
or  operator  of  every  coal  mine  to  keep  a  supply  of  timber  constantly 
on  hand  of  sufficient  lengths  and  dimensions  to  be  used  as  props  and 
cap-pieces,  and  to  deliver  the  same  as  required  with  the  miners' 
empty  car,  so  that  the  workmen  may  at  all  times  be  able  to  secure 
said  workings  for  their  own  safety,  and  if  such  operator  fails — will- 
fully so  to  do,  and  by  reason  of  such  failure  a  person  employed  about 
the  mine  is  killed,  the  owner  or  operator  is  liable  to  the  widow  of  the 
person  killed  for  damages  not  to  exceed  the  sum  of  $ .36 

§  991.  What  Not  to  Be  Considered — Punitive  Damages  Not  to  Be 
Given.  In  this  case,  if  you  find  for  the  plaintiff,  you  can  only  allow 
such  damages  as  will  make  good  the  pecuniary  loss  sustained  by  the 
person  for  whose  use  this  suit  is  brought.  The  mental  sufferings,  or 
grief  of  survivors,  or  loss  of  domestic  or  social  happiness,  or  the 
degree  of  culpability  of  the  defendant,  are  not  proper  elements  in 
the  calculation  of  damages.  You  can  not  award  exemplary  or  vin- 
dictive damages ;  you  must  ascertain,  from  the  evidence,  the  pecuniary 
loss  sustained  in  dollars  and  cents,  as  nearly  as  you  can  approximate 
thereto,  and  make  that  good.37 

cuniary     loss     sustained     by     the  as   sufficient,   because  laying  down 

widow    and    next    of    kin    by    the  the   law    in   the   words   of   the   law 

death,    but    that    recovery    cannot  itself  ought   not  to   be  pronounced 

exceed    $5,000.      There    is    no    error  an  error.    Town  of  Fox  v.  Town  of 

in    this   instruction."  Kendall,  97  111.  79;   Chi.  B.  &  Q.  R. 

36— Mt.   Olive   Coal  Co.   v.   Rade-  R.    Co.    v.    Haggerty,    67    id.    113; 

macher,  190  111.   538   (540),  60  N.    E.  Race  v.  Oldridge,  90  id.  250,  32  Am. 

105.  Rep.  27;    Duncan  v.  People,  134  111. 

"A   similar   instruction   was   held  110,  24  N.  E.  765." 

to  be  good  in  Catlet  v.  Young,  143  37 — Kansas  Pacific  Ry.  Co.  v.  Cut- 

111.    74,    32    N.    E.    447.      It    is    ex-  ter,   19   Kan.  83;    Blake  v.    Midland, 

pressed     in    the    language     of    the  etc.,  Rd.  Co.,  18  Q.   B.  93;    Oakland 

statute  itself,   and   for  that   reason  &    Co.    v.    Fielding,    48    Penn.    320; 

is    not    erroneous.      Where    the    in-  Donaldson  v.  Miss.,  etc.,  Co.,  18  la. 

struction  is  given  in  the  language  280;    Sutherland    Damages,    3d    ed., 

of  the  statute,  it  must  be  regarded  sec.  1263. 


CHAPTER  XLV. 

DEEDS. 


See   Erroneous   Instructions,   same  chapter  head,  Vol.   III. 


§  992.  Deed— Delivery  of  —  Inten- 
tion. 

§  993.  Deed  obtained  without 
grantor's  consent — Escrow. 

§  994.  Acceptance  of  deed — Bound 
by  terms  in  deed. 

§  995.  Reservation  of  water  rights 
in  deed. 

§  996.  Deed  referring  to  plat  for 
fuller  description  incorpo- 
rates plat — Locating  land 
covered  by  deed. 


§  997.  Intent — Constructive  notice 
of  matters  in  deeds — 
Fraudulent  conveyance. 

§  998.  Absolute  deed  with  condi- 
tion as  to  reconveyance — 
Mistake. 

§  999.  Plaintiff's  deed  by  way  of 
mortgage. 

§  1000.  Lost  deed. 


§  992.    Deed — Delivery  of — Intention,    (a)    That  the  sole  question 

for  you  to  determine  is  did  P deliver  to  S the  deed  from  him 

to  B conveying  the  land  the  subject-matter  of  this  suit  about 

the  time  he  signed  the  same  and  did  he  intend  to  surrender  all  control 

over  it  and  that  the  deed  should  be  delivered  by  S to  B . 

If  such  is  found  to  be  the  fact  then  your  verdict  should  be  for  the 
plaintiff,  if  not,  for  the  defendant. 

(b)  If  you  believe  from  the  evidence  that  there  was  a  trade  be- 
tween P and  B ,  in  which  B was  to  do  certain  things, 

and  P was  to  make  a  deed  for  the  lots  in  question,  and  if  you 

further  believe  from  the  evidence  that  all  the  conditions  in  the  trade 

on  B 's  part  were  performed  by  him,  then  I  leave  it  to  you  to  say 

whether  or  not  these  facts  show  an  intention  by  P to  deliver 

said  deed  to  B when  he  left  it  with  S .* 

§  993.  Deed  Obtained  Without  Grantor's  Consent — Escrow.  A 
deed  which  has  been  surreptitiously  obtained  from  the  grantor,  with- 
out his  knowledge  or  consent,  does  not.  as  a  general  rule,  transfer 
title;  but  a  deed  made  by  a  grantor  and  placed  in  escrow  to  be 
delivered  to  the  grantee  upon  the  proof  of  certain  conditions,  and 
which  has  been  obtained  from  the  party  in  whose  possession  it  was 
placed,  by  untruthful  statements,  and  afterward  the  condition  upon 
which  the  deed  was  delivered  was  performed,  and  the  grantor  does 
not  demand  the  possession  of  the  deed,  nor  take  any  steps  to  recover 
the  possession  of  the  same,  said  deed  will  be  effectual  to  convey 
title.2 

1— Fitzpatrick  v.  Brigman,  133  2— Chicago  I.  &  E.  Ry.  Co.  v. 
Ala.  242,   31  So.   940   (941).  Linn,   30  Ind.  App.  88,  65  N.  E.  552 

(553). 

688 


§  994.]  deeds.  689 

§  994.     Acceptance   of  Deed — Bound  by  Terms  in  Deed.     If  you 

find  from  the  evidence  that  there  was  a  deed  made  by  plaintiffs  to 
defendant,  and  the  defendant  accepted  the  same  deed  and  had 
same  recorded,  and  went  into  possession  of  the  land  mentioned  in 
said  deed,  and  constructed  its  road  upon  said  land,  it  became  bound 
by  all  the  terms,  provisions,  and  averments  in  said  deed.3 

§  995.  Reservation  of  Water  in  Deed.  If  the  jury,  under  in- 
structions from  the  court,  shall  find  that  the  reservation  in  the  deed 
from  X  to  Y  applied  to  the  water  supply  claimed  by  the  plaintiff, 
and  if  they  shall  find  that  defendant  Z,  without  the  consent  of 
plaintiff,  put  in  an  aqueduct,  and  by  means  thereof  diverted  and 
took  away  the  water,  or  any  part  of  said  water  supply  from  said  Y 
lot  to  other  premises  of  said  Z,  then  said  Z  violated  the  legal  rights 
of  the  plaintiff,  and  it  will  be  their  duty  to  return  a  verdict  in  plain- 
tiff's favor  for  at  least  nominal  damages.4 

§  996.  Deed  Referring  to  Plat  for  Fuller  Description  Incorpo- 
rates Plat — Locating  Land  Covered  by  Deed.  Where  a  deed,  after 
giving  certain  adjacent  boundaries,  refers  to  a  plat  attached  to  such 
deed  for  a  fuller  or  better  representation  of  the  land,  then  this  plat 
becomes  incorporated  into  the  deed  as  part  thereof,  and  the  one 
who  claims  title  under  such  a  deed  is  bound  by  the  description  of 
the  land  contained  therein,  and  it  cannot  be  changed  or  contradicted 
by  parol  evidence.  The  court  instructs  you  that  in  locating  land 
covered  by  a  deed,  the  main  questions  are :  What  land  does  the  deed 
cover?    What  land  does  the  deed  show  the  grantor  conveyed?5 

§  997.  Intent — Constructive  Notice  of  Matters  in  Deeds.  Upon 
the  question  of  notice  by  K,  you  are  instructed  that  whenever  a 
mortgagee  holds  under  a  conveyance,  and  is  obliged  to  make  out  his 
title  through  that  deed,  or  through  a  series  of  prior  deeds,  he  has 
constructive  notice  of  every  matter  connected  with  or  affecting  the 
estate  covered  by  the  mortgage,  which  appears  either  by  description 
of  parties,  by  recital,  by  reference  or  otherwise,  on  the  face  of  any 
deed  which  forms  an  essential  link  in  the  chain  of  instruments 
through  which  he  must  derive  his  title.  The  mortgagee,  under  this 
rule,  is  charged  with  notice  of  every  provision  in  each  separate  in- 

3 — Silver    S.    O.    &   G.    R.    Co.    v.  would    interfere   with   the    exercise 

VanNess  et  al.,  45  Pla.   559,  34  So.  of  the   plaintiff's   rights,   whenever 

884   (889).  thereafter    he    sought    to    exercise 

4 — Peck   v.    Clark,   142   Mass.   436,  them,  he  did  an  overt  act  of  per- 

8  N.  E.    335   (338).  manent  effect,   which   amounted  to 

"The  instruction  to  the  jury  was  a    standing,     open     denial    of    the 

correct.     It   may   be   true   that,   so  plaintiff's   right,   and   which   would 

long   as   the   plaintiff   had   not   ap-  have    extinguished    it    in    20    years 

propriated  the  water,  he  could  not  to   the   extent   of   the   water   with- 

have  sued  the  defendant  for  doing  drawn.     Nominal  damages  may  al- 

transitory    acts, — such    as    drawing  ways    be    recovered    for    such    an 

water  in  pails,  or  watering  his  cat-  act." 

tie;    but    when    the    defendant    put        5 — Connor    v.    Johnson,    59    S.    C. 

in  an  aqueduct,  which  diverted  the  115,  37  S.  E.  240  (243). 
water     continuously,      and      which 
44 


690 


FORMS  OF  INSTRUCTIONS.  [§  998. 


strument  constituting  the  entire  series  by  which  his  own  interest 
can  be  affected  from  which  others  have  derived  or  may  derive  any 
right.  Not  only  is  he  thus  charged  with  a  constructive  notice  of 
everything  material  in  the  deeds  which  form  the  direct  chain  through 
which  his  title  is  adduced,  but,  if  any  of  these  conveyances  should 
contain  a  recital  or  reference  to  another  deed  or  instrument  other- 
wise collateral,  and  not  a  part  of  the  direct  series,  he  would,  by 
means  of  such  recital  or  reference,  have  notice  of  this  collateral  in- 
strument, of  its  contents,  and  all  the  facts  indicated  by  which  it 
might  be  ascertained  through  inquiry  prosecuted  with  reasonable 
diligence;  and  such  notice  extends  to  all  deeds  and  other  instru- 
ments falling  properly  within  the  preceding  rules,  whether  recorded 
or  unrecorded.  The  deed  from  H  to  TV  shows  upon  its  face  the  con- 
veyance of  an  expectancy  in  so  far  as  the  conveyance  of  his  expect- 
ant interest  in  the  estates  of  the  mother  and  the  brothers  and  sisters 
of  plaintiff  is  concerned,  and  the  defendant  K  was  thereby  put  upon 
inquiry  as  to  the  adequacy  of  the  consideration  for  the  property 
conveyed  by  such  deed;  and,  should  you  fail  to  find  that  such  con- 
sideration was  adequate,  you  will  find  for  the  plaintiff  and  against 
the  defendant  K,  so  far  as  his  mortgage  may  affect  such  expect- 
ancy.8 

§  998.    Absolute  Deed  with  Condition  as  to  Reconveyance — Mis- 
take.    If  you   believe   from   the   evidence    that   it   was   intended  by 

and  wife  and  at  the  time  of  the  execution  of  the  deed 

of  ,  that  the  title  to  the  property  in  the  controversy  should 

vest  in by  reason  of  said  deed,  but  subject  to  be  divested  out 

of  by  and  wife  paying  him  a  certain  sum  of  money 

within  a  specified  time,  you  will  render  your  verdict  in  favor  of 
plaintiff,  for  such  a  transaction  would  amount  to  a  sale.7  If  you 
find  from  a  preponderance  of  the  testimony  before  you  that  the 
second  of  said  two  deeds  was  executed  by  defendant  in  an  attempt 

to  reconvey  to  the  property  described  in  the  first  of  said  two 

deeds,  and  that  the  parties  to  said  second  deed,  to  wit,  the  defend- 
ant and ,  were  at  the  time  of  the  execution  of  said  deed  under 

the  impression  that  the  property  therein  described  was  the  same 
property  which  had  been  conveyed  to  the  defendant  by  the  first 
of  said  two  deeds,  then  plaintiffs  are  entitled  to  a  verdict.8 

§  999.  Plaintiff's  Deed  by  Way  of  Mortgage.  So  far  as  regards 
this  suit,  it  can  make  no  difference  whether  the  deed  to  the  plaintiff 
was  by  way  of  mortgage  to  secure  the  payment  of  a  sum  of  money 
or  not.  If  it  was  so  made,  it  was  sufficient  to  vest  the  legal  title 
to  the  premises  in  McK.,  and  his  deed  to  R.  M.  was  sufficient   to 

6— Wells  V.  Houston.  23  Tex.  Civ.  8— Metcalfe     v.      Lowenstein,      35 

App.    629,    57    S.    W.    5*4;    Feary    v.  Tex.    Civ.    App.    619,    81    S.    W.    362 

O'Neill,    49    Mo.    467,    50    S.    W.    918,  (364). 

73  Am.   St.   Rep.   440.  "The    charge    complained    of   un- 

7 — Krug-er  v.  Buttelman  et  al.,  —  dertook  to  submit  the  issue  of  mls- 

Tex.  Civ.  App.  — ,  56  S.  W.   930.  take,   and  in  this  was  correct." 


§  1000.]  DEEDS.  691 

vest  the  legal  title  to  an  undivided  half  of  the  premises  in  said  M., 
and  these  two  deeds  are  sufficient  to  enable  the  plaintiff  to  sustain 
this  action,  unless  the  jury  find,  from  the  evidence,  under  the  in- 
struction of  the  court,  that  the  defendant  had  some  right  to  the 
possession  of  the  property  other  than  such  as  he  acquired  by  his 
alleged  purchase  from  the  said  J.  W.  under  the  deed  introduced  in 
evidence  by  the  defendant.9 

§  1000.     Lost  Deed.     The  jury  is  instructed  if  they  believe  from 

the  evidence  before  them  that  on  the  day  of ,  plaintiff 

Susan  T.  signed  the  deed  such  as  described  in  defendants'  answer 
which  had  just  before  been  signed  by  her  husband,  Allen  T.  con- 
veying the  land  in  controversy  to  defendant  J.  J.  and  that  the  plain- 
tiff, Susan  T.,  afterwards  acknowledged  the  same  before  a  notary 
public;  that  said  deed  and  certificate  of  acknowledgment,  if  such 
document  were  acknowledged,  have  been  lost  or  mislaid,  then  they 
could  find  for  the  defendants  for  the  land  in  controversy.10 

9— Biggen   v.   Bird,   55   Ga.   650.  et   al.,   24  Tex.   Civ.   App.   246,   56  S. 

10— Thompson    et    al.    v.    Johnson     W.  1030. 


CHAPTER   XLVI. 
DIVORCE. 

See  Erroneous  Instructions,  same  chapter  head,  Vol.  III. 


DESERTION. 

1001.  Provocation  for  the  wife 
leaving  —  Abusive  lan- 
guage. 

i  1002.  Separation  by  mutual  con- 
sent— Desire  for  reconcilia- 
tion. 

t  1003.  Absence  alone  not  proof  of 
desertion. 

i  1004.  Grounds  of  desertion  by 
wife. 

!  1005.  Cruelty  as  an  excuse  for  de- 
sertion. 

CRUELTY. 

5  1006.  Extreme  and  repeated  cru- 
elty as  a  ground  for  di- 
vorce. 


§  1007.  In  some  states  personal  vio- 
lence not  necessary — Abu- 
sive   language. 

§  1008.  Abusive  language  not  suffi- 
cient to  constitute  cruelty 
— Bodily    harm    necessary. 

§  1009.  Acts  of  cruelty  provoked 
by  complainant. 

DRUNKENNESS ADULTERY CON- 
DONATION. 

§  1010.  Habitual  drunkenness  as 
ground  for  divorce. 

§  1011.  Adultery  as  a  ground  for 
divorce — Must    be    proved. 

§  1012.  Condonation  —  What  consti- 
tutes—Effect  of. 


DESERTION. 

Note  by  Editor.—  The  subject  of  Divorce,  being  now  wholly  statutory, 
the  statutes  of  the  particular  state  and  the  decisions  under  them 
should  always  be  consulted.  For  a  compilation  of  the  various  grounds 
for  divorce  in  all  the  states,  see  2  Nelson  on  Divorce  and  Separation, 
p.   1025. 

§  1001.  Provocation  for  the  Wife  Leaving— Abusive  Language. 
That  while  the  statute  has  not  made  abusive  language,  and  the 
application  of  coarse  and  vulgar  epithets,  a  cause  for  divorce,  yet 
such  conduct  on  the  part  of  the  husband  toward  his  wife,  and  charg- 
ing her  with  a  want  of  chastity  without  cause,  if  proved,  is  sufficient 
to  justify  her  in  abandoning  him,  and  in  living  separate  and  apart 
from  him.1 

§  1002.  Separation  by  Mutual  Consent — Desire  for  Reconciliation, 
(a)  The  jury  are  instructed,  that  where  a  husband  and  wife,  by 
mutual  consent,  agree  to  separate  and  live  apart,  and,  pursuant  to 
such  agreement  and  consent  they  do  live  separate  and  apart  from 
each  other,  this  will  not  constitute  such  a  desertion  as  is  required 
under  the  statute  as  a  ground  for  divorce.2 

(b)     Although  the  jury  may  believe,  from  the  evidence,  that  at 

1 — Nelson  on  Divorce  and  Separ-  ler  v.  Beller,  50  Mich.  49,  14  N.  W. 

ation,    §  95.      Bishop    on    M.    &    D.  696;    1    Nelson   on   D.    &   S.,    §    67;   1 

§726.  Bishop  on  M.  &  D.,   §  783. 

2— Cox  v.  Cox,  35  Mich.  461;   Bel- 

692 


§  1003.]  DIVORCE.  693 

one  time  the  parties  to  this  suit  separated,  by  mutual  consent,  still, 
if  the  jury  further  believe,  from  the  evidence,  that  afterwards  the 
complainant  desired  to  renew  her  marriage  relations  with  the  de- 
fendant, and  in  good  faith  sought  a  reconciliation,  and  expressed  a 
desire  to  have  him  return  and  live  with  her,  and  that  he  refused  to 
accord  to  that  request,  then,  from  that  time,  defendant's  absence, 
if  proved,  would  constitute  a  desertion,  and  if  continued  for  a  period 
of  two  years,  without  justifiable  cause,  as  explained  in  these  instruc- 
tions, would  be  good  ground  for  a  divorce  in  favor  of  complainant.3 

(c)  Although  you  may  believe,  from  the  evidence,  that  some  time 
about,  etc.,  defendant  professed  a  desire  to  be  reconciled  to  com- 
plainant, and  requested  her  to  return  and  live  with  him,  still,  if  you 
further  believe,  from  the  evidence,  that  this  request  was  coupled 
with  the  qualification  or  condition  that,  etc.,  such  a  qualification  or 
condition  was  one  that  complainant  was  under  no  obligation  to 
assent  to,  and  such  an  offer,  if  proved,  can  not  avail  the  defendant 
anything  in   this  suit.4 

§  1003.  Absence  Alone  Not  Proof  of  Desertion,  (a)  The  jury  are 
instructed,  that  absence  alone  does  not  constitute  desertion.  To 
constitute  desertion,  within  the  meaning  of  the  law,  there  must  not 
only  be  absence,  but  this  must  be  coupled  with  an  intention,  on  the 
part  of  the  party  charged,  to  desert  and  permanently  abandon  the 
other  party;  and  in  this  case,  if  the  jury  find  from  the  evidence, 
that  when  the  defendant  left  this  state,  he  went  away  with  the 
intention  of  providing  another  home  for  himself  and  wife,  and  of 
afterwai'ds  sending  for  her,  or  of  returning  and  taking  her  with  him 
to  his  new  home,  this  would  not  amount  to  a  desertion,  although  con- 
tinued for  more  than  two  years.5 

(b)  And  in  such  case,  before  the  complainant  will  be  entitled  to 
a  divorce  on  the  ground  of  desertion,  the  jury  must  further  believe, 
from  the  evidence,  that  after  defendant  left  he  changed  his  mind, 
and  then  determined  not  to  come  or  send  for  complainant,  but  did 
intend,  from  that  time,  to  desert  and  abandon  her,  and  that  such 
change  or  intention  occurred  two  years  or  more  before  the  com- 
mencement of  this  suit.6 

§  1004.  Grounds  of  Desertion  by  Wife.  The  jury  are  instructed, 
that  adultery  on  the  part  of  the  husband,  if  known  to  the  wife 
(or  extreme  and  repeated  cruelty,  or  habitual  drunkenness  for  the 
period  of  two  years),  if  proved,  is  a  good  and  sufficient  cause  to 
justify  a  wife  in  leaving  her  husband  and  living  separate  and  apart 
from  him.7 

3—1  Nelson  on  D.   &  S..    SS   73-79;  6—1   Nelson    on    D.    &    S.,    §    67;    1 

1  Bishop  on  M.  &  D.,  §  786.  Bishop  on  M.  &  D..  §  783. 

4—1  Nelson  on  D.   &  S.,   §§   73-79.  7— Stevens    v.    Story.    43    Vt.    327; 

1  Bishop  on  M.   &  D..  786.  Hancock    v.    Meirick.    10    Cush.    41; 

5— Swan  v.   Swan,  15  Neh.  453.  19  Rea  v.   Durkee,   25    111.    503;    1    Nel- 

N.    W.    639;    1   Nelson   on   D.    &   S.,  son    on   D.    &    S.,    §    95;    Schouler's 

§  65.  Dom.  Rel.   90. 


694  FORMS  OF  INSTRUCTIONS.  [§  1005. 

§  1005.  Cruelty  as  an  Excuse  for  Desertion,  (a)  The  court  in- 
structs the  jury,  as  far  as  relates  to  the  alleged  acts  of  cruelty,  that 
if  they  believe,  from  the  evidence,  that  the  defendant  did  leave 
the  complainant,  and  remained  away  from  him,  as  charged  in  the 
bill,  then  to  justify  such  leaving  and  absence,  upon  the  ground  of 
cruel  treatment,  the  jury  must  believe,  from  the  evidence,  that  the 
complainant  actually  committed  an  act,  or  acts,  of  personal  violence 
to  the  person  of  the  defendant,  prior  to  the  time  of  the  alleged  de- 
sertion; and  that  abusive  language,  or  violent  sallies  of  passion,  is 
not  such  violence  as  will  justify  desertion,  if  desertion  has  been 
proved;  nor  would  threats  of  violence  justify  the  alleged  desertion, 
if  it  has  been  proved,  unless  they  were  made  under  such  circum- 
stances as  would  justify  a  reasonable  apprehension  of  bodily  injury 
in  case  she  remained.8 

(b)  You  are  instructed,  that  such  cruelty  as  would  authorize  a 
married  woman  to  leave  the  house  and  home  of  her  husband,  must 
be  acts  of  physical  violence  inflicted  by  him  upon  her  person;  or 
such  demonstrations  or  threats  of  actual  violence,  made  by  him 
toward  her,  as  would  induce  a  well-grounded  fear  in  a  reasonable 
mind  that  such  violent  injuries  would  be  inflicted  upon  her  by  her 
husband  in  case  she  remained.9 

CRUELTY. 

§  1006.    Extreme  and  Repeated  Cruelty  as  a  Ground  for  Divorce. 

(a)  The  court  instructs  the  jury,  that  the  extreme  and  repeated 
cruelty  required  to  constitute  a  cause  for  a  divorce,  must  be  physical 
harm  as  contradistinguished  from  harsh  or  opprobrious  language, 
or  even  mental  suffering.  The  cruelty  must  be  grave,  and  subject  the 
person  to  great  bodily  harm.10 

(b)  A  single  act  of  cruelty  does  not  constitute  sufficient  grounds 
for  a  divorce.  There  must  be  extreme  and  repeated  cruelty,  which 
must  consist  in  physical  violence,  and  not  merely  angry  or  abusive 
epithets  or  profane  language ;  angry  or  abusive  words,  menaces  or 
indignities  do  not  constitute  cruelty,  within  the  meaning  of  the 
statute.11 

§  1007.  In  Some  States  Personal  Violence  Not  Necessary — Abusive 
Language,  (a)  If  the  jury  believe,  from  the  evidence,  that  recently 
before  the  commencement  of  this  suit  the  defendant  was  in  the  habit 
of  using  profane,  obscene  and  insulting  language  towards  the  com- 
plainant in  the  presence  of  her  mother  and  little  children  (or  others) 
to  such  an  extent  as  to  render  her  life  miserable,  then  this  would 
constitute  extreme  cruelty  for  which  our  statute  authorizes  a 
divorce.12 

8—1    Nelson    on    D.    &    S.,    §    95;  10— Henderson    v.    Henderson,    88 

Bishop  on  M.  &  D.,  §  795  et  seq.  111.    248. 

9— Carter  v.  Carter,  62  111.  439.  11— Embre   v.    Embre,    53   111.    394. 

Note. — See   chapter  48,    on   Domi-  12 — Goodman      v.      Goodman,      26 

cil  and  Residence.  Mich.  417;   McClung  v.  McClung,  40 


§  1008.]  divorce.  695 

(b)  That  to  justify  a  verdict  in  favor  of  complainant  actual 
physical  violence  need  not  be  proved,  provided  the  jury  believe,  from 
the  evidence,  that  there  is  reasonable  ground  to  believe  that  if  the 
complainant  is  compelled  to  live  and  cohabit  with  the  defendant  as 
his  wife  her  life  or  health  will  be  endangered  by  his  wrongful  treat- 
ment of  her.13 

(e)  If  the  jury  believe,  from  the  evidence,  that  the  defendant 
was  in  the  habit  before  and  at  the  time  of  the  commencement  of  this 
suit  of  using  violent,  coarse  and  abusive  language  to  complainant 
and  subjecting  her  to  aggravating  annoyances  and  humiliating  in- 
sults to  such  an  extent  as  to  endanger  her  health  or  life,  then  this 
would  be  legal  cruelty  authorizing  a  verdict  in  her  favor.14 

§  1008.  Abusive  Language  Not  Sufficient  to  Constitute  Cruelty — 
Bodily  Harm  Necessary.  The  jury  are  instructed  that  the  degree  or 
kind  of  cruelty  that  authorizes  a  divorce  is  any  wrongful  conduct 
on  the  part  of  the  defendant  which  tends  to  the  bodily  harm  of 
complainant,  or  involves  danger  to  her  health  or  life.  And  although 
the  jury  may  believe,  from  the  evidence,  that  the  defendant  has 
been  in  the  habit  of  using  angry  words  and  coarse,  violent  and 
abusive  language  towards  the  complainant,  or  of  subjecting  her  to 
aggravating  annoyances  or  humiliating  insults,  still,  if  the  jury 
further  believe,  from  the  evidence,  that  these  things  merely  tended 
to  wound  the  feelings  of  the  complainant,  but  were  not  accompanied 
by  any  bodily  injury  or  threatened  danger  to  life  or  health,  they 
would  not  amount  to  legal  cruelty.13 

§  1009.  Acts  of  Cruelty  Provoked  by  Complainant,  (a)  If  the 
jury  believe,  from  the  evidence,  that  defendant  has  been  guilty  of 
acts  of  violence  against  the  complainant,  still,  if  they  further  be- 
lieve, from  the  evidence,  that  such  acts  were  provoked  by  complain- 
ant's misconduct,  then  the  jury  should  not  find  the  defendant  guilty, 
by  reason  of  such  acts  of  violence;  provided,  such  misconduct  is 
proven  to  have  existed,  and  to  have  been  of  such  character  as  might 
be  reasonably  expected  to  provoke  the  acts  charged  against  the 
husband.16 

(b)  The  law  will  not  permit  a  person,  by  her  misconduct,  to 
wantonly    provoke    injury,    and    make    the    injury    thus   received    a 

Mich.  493;  Kennedy  v.  Kennedy,  73  ous    grounds    for    divorce,    and    it 

N.   T.   369.  now  has  become  a  question  of  stat- 

13— Black  v.  Black,   30  N.  J.   Eq.  utory  construction.    For  a  full  dis- 

215.  cussion   on   this   subject  see   1   Nel- 

14— Latham  v.  Latham,  30  Gratt.  son  on  Div.  and  Sep.,   §  269  et  seq. 

(Va.)    307.  15 — Henderson    v.    Henderson,    88 

Note    by    Editor.— Cruelty    with-  111.     248;     Latham    v.     Latham,     30 

out  personal  violence  as  a  ground  Gratt  (Va.)   307.     See  previous  sec- 

for     divorce     obtained     in     several  tion. 

states  at  an  early  period.    In  some  16— Skinner    v.     Skinner.    5    Wis. 

states  the  doctrine  was  later  over-  449;   Harper  v.  Harper.  29  Mo.  301; 

ruled    and    in    others    a    somewhat  1    Nelson    on    D.    &    S.,    §    326;    1 

middle    course    has    been    adopted.  Bishop  on  M.  &  D.,  §  764. 
Statutes  have  been  passed  on  vari- 


696  FORMS  OF  INSTRUCTIONS.  [§  1010. 

ground  for  divorce,  unless  the  injury  is  out  of  all  reasonable  propor- 
tion to  the  provocation.  The  law  considers,  in  such  cases,  that  the 
person  complaining  has  the  remedy  for  all  ordinary  injuries  in  his 
own  hands,  and  that  there  is  no  occasion  to  resort  to  a  court  of 
equity.17 

DRUNKENNESS— ADULTERY— CONDONATION. 

§  1010.    Habitual   Drunkenness   as   Ground   for  Divorce.     If  you 

believe,  from  the  evidence,  that  the  defendant,  for  a  period  of  two 
years  prior  to  the  beginning  of  this  suit,  was  frequently  and  cus- 
tomarily, or  habitually  given  to  the  excessive  use  of  intoxicating 
drink,  and  had,  during  said  two  years,  or  more,  lost  the  power  or 
the  will,  by  the  frequent  indulgence,  to  control  his  appetite  for  it, 
then  the  defendant  is  guilty  of  habitual  drunkenness.18 

§  1011.  Adultery  as  a  Ground  for  Divorce— Must  be  Proved,  (a) 
The  court  instructs  the  jury,  that  on  a  charge  of  adultery,  as  a 
ground  for  divorce,  a  preponderance  of  evidence  is  sufficient  to 
establish  the  charge.  It  is  not  required  that  the  jury  be  satisfied 
of  the  truth  of  the  charge  beyond  a  reasonable  doubt.19 

(b)  The  jury  are  further  instructed,  that  the  law  does  not  allow 
the  jury  to  presume  the  adultery  of  the  defendant,  if  the  facts  or 
circumstances  relied  upon  to  establish  it  may  as  well  be  attributed 
to  an  innocent  intent  or  motive  as  to  a  guilty  one.20 

(c)  Where  adultery  is  charged,  as  a  ground  for  divorce,  the  act 
charged  is  one  that  tends  to  degrade  the  parties,  and  inflicts  great 
injury  upon  society,  and  if  the  facts  shown  by  the  evidence  may  as 
well  be  explained  upon  the  hypothesis  of  innocence  as  of  guilt,  then 
you  should  always  adopt  the  former  rather  than  the  latter  hypothe- 
sis.21 

(d)  The  jury  are  further  instructed  for  the  defendant  that  even 

though  it  appears  from  the  evidence  that  the  defendant  and 

were  in  a  position  where  it  was  possible  for  them  to  commit  adultery, 
still,  in  order  to  find  for  the  complainant  in  this  case  on  that  issue, 
they  must  be  seen  together  not  only  under  circumstances  which  would 
make  it  possible  for  them  to  commit  adultery,  but  also  under  circum- 
stances which  cannot  be  accounted  for  reasonably,  under  the  evidence, 
unless  they  had  that  design.22 

§  1012.  Condonation— What  Constitutes— Effect  of.  (a)  The  court 
instructs  the  jury,  that  in  the  case  of  condonation,  there  is  an  ex- 
press or  implied  agreement  that  the  party  forgiving  does  so  only  on 

17— King  v.  King,  28  Ala.  315;  1  210:  Murphy  v.  People,  90  111.  59; 
Nelson    on    D.    &    S.,    §    331.    n    3;    1     1  Nelson  on  D.   &  S..    §   350  et  seq. 


Bishop  on  M.  &  D.,  §§  764  et  seq 
18— Richards  v.  Richards,  19  HI 
A  pp.  465;  Pratt  v.  Pratt,  34  Vt 
323;  Com.  v.  Whitney,  5  Gray  85 
L,udwick  v.  Com.,  18  Penn.   St.  174 


Magahahy  v.   Magahahy,   35   Mich.     App.    500    (503). 


19— Chestnut   v.    Chestnut,    88   111. 
548;   1   Nelson  on  D.  &  S..  §  142. 
20— Blake  v.  Blake.  70  111.   618. 
21 — Chestnut   v.   Chestnut,   supra. 
22— Pittman    v.    Pittman,    72    111. 


1 1012.]  DIVORCE.  697 

the  condition  that  the  party  forgiven  will  not  repeat  the  offense,  but 
will,  in  the  future,  perform  all  the  marital  duties  the  relation  im- 
poses.23 

(b)  That  condonation  is  forgiveness  upon  condition  that  the  in- 
jury shall  not  be  repeated,  and  it  is  dependent  upon  future  good 
usage  and  conjugal  kindness;  and  it  must  be  free,  and  not  obtained 
by  force  and  violence  or  by  fraud.24 

(c)  You  are  further  instructed,  that  condonation  of  personal  acts 
of  violence  and  cruelty  may  be  avoided  by  abusive  language,  and  the 
use  of  opprobrious  epithets.  A  wife  having  forgiven  her  husband's 
acts  of  physical  cruelty,  may,  from  the  subsequent  use  of  abusive  and 
brutal  language,  and  charges  of  infidelity,  conclude  that  it  will  end  as 
on  former  occasions,  in  personal  violence,  and  she  is  not  bound  to 
wait  and  submit  to  personal  violence.25 

(d)  The  court  instructs  you,  that  the  law  is,  that  if  the  injured 
party,  husband  or  wife,  cohabits  with  the  other,  subsequent  to  an 
adulterous  offense,  the  party  injured  having  the  ability  to  prove  the 
fact,  it  will  be  a  bar  to  a  proceeding  for  divorce  for  that  offense,  the 
offense  being  considered  as  thereby  condoned;  but  the  court  further 
instructs  you,  that  condonation  is  always  accompanied  with  the  im- 
plied condition  that  the  injury  shall  not  be  repeated,  and  that  the 
offending  party  will  thereafter  treat  the  other  with  conjugal  kind- 
ness, or  the  offense  will  be  revived.26 

23— Kennedy   v.    Kennedy,    87   111.  25— Farnham  v.   Farnham,   73  111. 

250;    Sharp   v.    Sharp,   116  111.   509,   6  497. 

N.  E.  15.  26— Davis    v.     Davis,    19    111.    334; 

24—1    Nelson   on    D.    &   S.    §§   451,  1  Nelson  on  D.  &  S.,   §  454,  et  seq.; 

456;   2  Bishop  on  M.  &  D.,   §  33.  2  Bishop  on  M.  &  D.,  §  43. 


CHAPTER  XLVII. 


DOMESTIC  RELATIONS. 

See  Erroneous  Instructions,  same  chapter  head,   Vol.  III. 


HUSBAND    AND    WIFE. 

§  1013.  Wife  agent  of  husband  to 
buy    necessaries. 

§  1014.  Wife  living  apart  from  the 
husband  without  her 
fault. 

§  1015.  Wife  living  apart  from 
husband    without     cause. 

S  1016.  Wife  living  apart— What 
necessary  to  charge  hus- 
band. 

PABENT    AND    CHILD. 

§  1017.  Parent  liable  for  support  of 
minor   child. 

§  1018.  Separation  of  parents  by 
mutual  consent  —  Liability 
for   goods    furnished    child. 

§  1019.  Emancipation    of    minor. 


1020.  Suit    by    parent    for    minor 

child's    services  —  Payment 
to    minor. 

1021.  Minor     can     only     disaffirm 

contract  after  majority. 

MAEBIED    WOMEN. 

1022.  Married      women  —  Contract 

of. 

1023.  She    may    own,    manage    or 

convey. 

1024.  May     employ     husband     as 

agent. 

1025.  May    ratify    the    act    of    a 

husband. 

1026.  When  proceeds  of  her  farm 

belong   to  husband. 

1027.  What  not  separate  estate  as 

to  creditors  of  husband. 


HUSBAND  AND  WIFE. 

§  1013.    Wife  Agent  of  Husband  to  Buy  Necessaries,     (a)     You 

are  instructed,  as  a  matter  of  law,  that  if  a  husband  neglects  to  pro- 
vide his  wife  and  family  with  articles  of  necessity  suitable  to  his  con- 
dition in  life,  the  wife  may  procure  them  of  others,  and  the  husband 
will  be  liable  to  pay  for  them.  The  term,  article  of  necessity,  in  this 
connection,  includes  whatever  things  are  proper  to  be  used  in  the 
family,  and  suitable  to  the  manner  of  life  which  the  husband  author- 
izes or  permits.1 

(b)  The  jury  are  instructed,  that  where  goods,  necessary  and  suit- 
able to  the  position  in  life  of  a  wife  living  with  her  husband,  are  sold 
to  her  on  the  credit  of  her  husband,  and  charged  to  him,  a  jury  will 
be  justified  in  finding  that  the  wife  was  the  agent  of  her  husband  to 
make  the  purchases;  and,  in  this  case,  if  the  jury  believe  from  the 
evidence,  that  the  goods,  for  the  price  of  which  this  suit  is  brought, 
were  furnished  to  the  defendant's  wife  while  she  was  residing  with 
him,  and  that  they  were  necessary  and  suitable  to  the  position  in  life 


1— Clark  v.  Cox,  32  Mich.  204. 


698 


§  1014.]  DOMESTIC  RELATIONS.  6S9 

of  the  wife,  then  the  defendant  is  liable  to  pay  for  the  same;  unless 
the  jury  further  believe,  from  the  evidence,  that  the  defendant  had 
forbidden  the  plaintiff  to  sell  goods  to  his  wife  on  credit.2 

§  1014.  Wife  Living  Apart  from  the  Husband  without  Her  Fault. 
If  the  jury,  believing  from  the  evidence  that  the  plaintitf  sold  the 
goods  for  which  this  suit  is  brought,  to  the  defendant's  wife  while 
she  was  living  separate  and  apart  from  him  without  his  consent,  still 
the  defendant  will  be  liable  to  pay  for  the  same  if  the  jury  further 
believe,  from  the  evidence,  that  the  goods  furnished  were  necessary 
and  suitable  and  proper  for  the  wife,  regard  being  had  to  the  con- 
dition in  life  of  herself  and  husband,  and  that  the  wife  had  good  and 
sufficient  cause  for  living  separate  and  apart  from  her  husband,  as 
explained  in  these  instructions;  and  also  that  he  had  failed  and  re- 
fused to  furnish  her  such  necessaries  or  the  money  with  which  to 
purchase  them.3 

§  1015.  Wife  Living  Apart  from  Husband  without  Cause.  The 
jury  are  instructed,  as  a  matter  of  law,  that  if  a  wife  deserts  her 
husband  without  sufficient  cause,  as  explained  in  these  instructions, 
or  remains  separate  from  him  without  his  consent,  and  without  good 
and  sufficient  cause,  he  will  not  be  liable  for  necessaries  purchased 
by  her.4 

§  1016.  Wife  Living  Apart — What  Necessary  to  Charge  Husband, 
(a)  If  you  believe,  from  the  evidence,  that  the  merchandise  for 
which  this  action  is  brought  was  sold  by  plaintiff  to  defendant's  wife, 
and  that  at  that  time  she  was  living  apart  from  her  husband,  and 
that  the  plaintiff  was  knowing  to  that  fact,  then  to  entitle  the  plain- 
tiff to  recover,  the  burden  of  proof  is  on  the  plaintiff  to  show,  by  a 
preponderance  of  evidence,  that  the  wife  was  living  apart  from  her 
husband,  with  his  consent,  or  that  the  wife  was  justified  in  leaving 
her  husband  on  account  of  his  cruel  treatment,  or  that  his  conduct 
was  so  violent  as  to  lead  her  to  reasonably  fear  personal  violence,  or 
on  account  of  some  other  fault  of  the  husband,  which  rendered  it  im- 
proper for  her  to  live  and  cohabit  with  him.5 

(b)  You  are  further  instructed,  that  if  you  believe,  from  the 
evidence,  that  the  plaintiff  sold  the  goods  sued  for,  to  the  defendant's 
wife,  while  she  was  living  separate  and  apart  from  her  husband, 
without  his  consent,  then  to  entitle  the  plaintiff  to  recover  in  this 
suit  he  must  prove,  by  a  preponderance  of  evidence,  that  the  wife 
had  just  and  legal  reason  to  live  separate  from  her  husband,  as  ex- 
plained in  these  instructions.6 

2 — Schouler's  Dom.     Rela.     77;    2  73;   Bevier  v.   Galloway,   71  III.  517. 

Page   on  Cont.  sec.  834;   1  Pars,   on  5 — Rea    v.     Durkee,     25     111.     503; 

Cont.    287.  Bevier  v.    Galloway,   71    111.    517. 

3 — Thorpe    v.  Shapleigh,    67    Me.  6 — Rea  v.   Durkee,  supra;  Wilson 

235.  v.   Bishop,   10  111.   App.  588. 

4 — Oinson    v.  Heritage,     45    Ind. 


700  FORMS  OF  INSTRUCTIONS.  [§  1017. 


PARENT  AND  CHILD. 

§  1017.  Parent  Liable  for  Support  of  Minor  Child,  (a)  The  court 
instructs  the  jury  that  the  father  of  a  minor  child  is  chargeable  for 
the  support  and  maintenance  of  the  child  furnished  at  his  request  or 
with  his  consent.7 

(b)  The  court  instructs  the  jury,  as  a  matter  of  law,  that  if  a 
father  permits  his  minor  child  to  purchase  goods  on  his  account,  and 
the  father  pays  for  them  without  objection,  this  will  afford  a  pre- 
sumption of  agency  with  full  power  to  make  like  purchases  in  the 
future. 

(c)  You  are  instructed  that  either  an  express  promise,  or  circum- 
stances from  which  a  promise  may  be  inferred,  must  be  proved,  by  a 
preponderance  of  the  evidence,  before  the  father  can  be  made  liable 
for  goods  sold  and  delivered  to  his  minor  child.8 

§  1018.  Separation  of  Parents  by  Mutual  Consent — Liability  for 
Goods  Furnished  Child.  You  are  instructed  that  either  an  express 
promise,  or  circumstances  from  which  a  promise  by  the  father  may  be 
inferred,  is  essential,  in  all  cases,  to  bind  him  for  necessaries  fur- 
nished his  infant  child  by  a  third  person.  Where  the  father  and 
mother  separate  by  mutual  consent,  and  the  father  permits  the 
mother  to  take  the  children  with  her,  then  the  father  constitutes  the 
mother  his  agent  to  provide  for  his  children,  and  he  is  bound  by  her 
contracts  for  necessaries  furnished  for  them.9 

§  1019.  Emancipation  of  Minor,  (a)  A  father,  by  agreement 
with  his  minor  child,  may  relinquish  to  the  latter  the  right  which  he 
would  otherwise  have  to  his  services,  and  may  authorize  those  who 
employ  him  to  pay  him  his  wages,  and  he  will  then  have  no  right  to 
demand  those  wages,  either  from  the  employer  or  from  the  child.10 

(b)  You  are  instructed  that  while  it  is  in  general  true  that  a 
father  is  entitled  to  the  services  and  earnings  of  his  son,  until  he  ar- 
rives at  the  age  of  twenty-one  years,  still,  the  father  may  emancipate 
his  minor  son,  and  by  agreement  with  him  relinquish  the  right  which 
he  would  otherwise  have  to  the  son's  services  and  earnings.  And 
this  the  father  may  do,  although  he  is  insolvent  at  the  time.11 

§  1020.  Suit  by  Parent  for  Minor  Child's  Services — Payment  to 
Minor.  If  you  believe,  from  the  evidence,  that  A.  B.,  the  son  of  the 
plaintiff,  made  a  contract  upon  his  own  account  with  the  defendant, 
by  which  he  agreed  to  work  for  the  defendant  from,  etc.,  and  de- 
fendant was  to  pay  him,  etc.,  and  that  the  work  for  which  this  suit 

7— Bradley  v.  Keen,  101  111.  App.  9— McMillan  v.  Lee,  78  111.  443. 

519    C522).  10— Monaghan   v.    School   Dis.,   38 

8— Gotts     v.     Clark,     78    111.     229;  Wis.    100. 

Fowlkes    v.     Baker,    27     Tex.     135;  11— Wnmbold     v.     Vick,     50    Wis. 

Schouler'a  Domestic  Rela.,  5th  ed.,  456,    7    N.    W.    438. 
spo.  2P.6  et  seq.;    Swain  v.  Tvler,  26 
Vt.  9;  Thayer  v.  White,  12  Met.  343. 


§1021.]  DOMESTIC  RELATIONS.  701 

is  brought  was  done  by  the  said  A.  B.  under  said  contract,  and  if  the 
jury  further  believe,  from  the  evidence,  that  such  contract  for  services 
by  the  said  A.  B.  was  made  with  the  knowledge  and  consent  of  the 
said  plaintiff,  or  that  the  plaintiff  knew  of  the  existence  of  such  con- 
tract while  the  work  was  progressing,  and  did  not  repudiate  the  con- 
tract or  notify  the  defendant  of  his  objection  thereto,  then  the  son 
was  entitled  to  receive  his  own  earnings,  and  a  payment  to  the  son 
would  be  a  good  payment.12 

§  1021.  Minor  Can  Only  Disaffirm  Contract  After  Majority—  (By 
Statute).  By  the  laws  of  this  state  a  minor  is  bound  by  his  con- 
tracts unless  he  disaffirms  them  within  a  reasonable  time  after  at- 
taining his  majority;  disaffirmance  before  majority  is  of  no  effect.  If 
a  minor  renders  personal  services  under  a  contract,  and  accepts  pay- 
ment for  them  according  to  the  contract,  he  cannot  maintain  an 
action  by  his  next  friend  to  recover  again.13 

MARRIED  WOMEN. 

Note. — The  following  instructions,  relating  to  the  rights  and  powers 
of  women,  are  mostly  adapted  to  the  laws  of  those  states  where  the 
common  law  disabilities  of  married  women  have  been  removed  or 
greatly  modified  by  statute.  These  laws  vary  greatly  in  the  different 
states,  and  this  fact  must  be  borne  in  mind. 

§  1022.  Married  Women— Contract  of.  If  the  jury  find  that  de- 
fendant made  the  contract  alleged  in  the  petition,  then  (she  being  a 
married  woman)  the  jury  should  inquire  whether  she  made  such  con- 
tract with  reference  to  her  separate  property  and  business,  or  in- 
tended to  bind  her  separate  property  for  the  payment  thereof,  and 
unless,  from  the  evidence,  the  jury  believed  that  the  defendant  made 
the  contract  of  employment,  and  in  making  the  same  she  made  it  with 
reference  to  her  separate  pi'operty  and  business,  and  intended  to  bind 
her  separate  property  for  the  payment  thereof,  the  defendant  would 
not  be  liable.14 

§  1023.  She  May  Own,  Manage  or  Convey.  Since  the  year  18 — 
the  husband  does  not,  by  marriage,  acquire  title  to  the  money  or  prop- 
erty of  the  wife,  but  she  retains  all  her  rights  of  property,  and  may 
deal  with  the  same  as  if  she  was  unmarried.  And  money  loaned  by  the 
wife  to  the  husband  since  the  statute  of  18 — ,  whether  loaned  before 
or  after  marriage,  is  a  proper  personal  charge  against  him  while  liv- 
ing, and  against  his  estate  after  his  death.15 

The  fact  that  a  crop  is  raised  on  the  land  of  a  wife,  under  the 

12 — Burdsall  v.  Waggoner,  4  Col.  14— Russell   v.    Gunn,   —  Neh.   — , 

261.  96   N.    W.   341;   Prentiss   v.   Paisley, 

13— Murphy    v.     Johnson,     45    la.  25    Fla.    927,    7    L.    R.    A.    640,    and 

57;     Jones    v.     Jones,     46    la.     466;  cases   there   cited. 

Lansing  v.   M.   C.    R.    R.    (1901),   126  15— Whitford    v.    Daggett,    84    111. 

Mich.  663,  86  N.   W.  147,  86  Am.   St.  144;    Vail    et   al.    v.    Mayor,    71   Ind. 

567.      See    Hughes'    Proc.    672,    title  159;    Leach   v.   Rains,    149   Ind.   152, 

Infants.  48  N.   E.  858. 


702  FORMS  OF  INSTRUCTIONS.  [§  1024. 

supervision  of  her  husband,  he  contributing  some  personal  labor  in 
controlling  and  managing  the  business,  will  not  make  the  crop  his,  or 
subject  it  to  the  payment  of  his  debts.16 

§  1024.  May  Employ  Husband  as  Agent,  (a)  Under  the  laws  of 
this  state,  a  married  woman  owning  either  real  or  personal  property, 
in  her  own  right,  may  employ  her  husband  as  her  agent  to  transact 
the  business  growing  out  of  or  relating  to  such  property,  without 
thereby  subjecting  the  property  to  the  payment  of  the  husband's 
debts.17 

(b)  Although  the  jury  may  believe,  from  the  evidence,  that  the 
plaintiff,  in  the  management  of  her  farm,  availed  herself  of  the 
services  of  her  husband  as  her  agent,  and  that  he,  from  time  to  time, 
bestowed  a  portion  of  his  time  and  labor  in  such  management,  still 
this  alone  would  not  subject  the  farm  of  the  plaintiff,  or  the  proceeds 
thereof,  to  the  payment  of  the  husband's  debts.18 

(c)  The  fact,  if  proved,  that  the  husband  uses  and  enjoys  the 
separate  property  of  his  wife,  and  out  of  it  procures  the  means  to 
support  his  family,  does  not  render  such  property  liable  for  the  debts 
of  the  husband.19 

(d)  The  fact,  if  proved,  that  a  married  woman  allows  her  hus- 
band to  have  a  general  use  and  control  over  her  personal  property, 
such  use  and  control  being  of  a  character  consistent  with  their  com- 
mon interests,  and  the  proper  enjoyment  of  it  by  both,  will  not  make 
it  liable  for  his  debts,  or  entitle  his  administrator  to  claim  the 
same.20 

(e)  A  husband  may  act  as  the  agent  of  his  wife  in  the  manage- 
ment and  control  of  her  personal  property,  either  generally  or  special- 
ly, and  if  the  property  is  in  fact  the  property  of  the  wife,  then  such 
control  and  management  does  not  alter  the  title  to  the  property  or 
render  it  liable  for  the  debts  of  the  husband.  And,  in  this  case,  if 
the  jury  believe,  from  the  evidence,  that  the  property  was  in  fact  the 
property  of  Mrs.  C,  then  the  fact,  if  proved,  that  the  husband  did 
control  and  manage  it,  will  not  make  it  liable  for  his  debts.21 

(f)  When  a  married  woman  has  money,  or  separate  property  in 
her  own  right,  her  husband  may  act  as  her  agent  for  the  control  of 
her  property  or  the  investment  of  her  funds.  He  may  lease  her  prop- 
erty and  collect  the  rents,  or  invest  her  money,  or  change  the  char- 

16— Bongard    v.    Core,    82    111.    19;  Pa.  St.   97,  19  Atl.   347,  7  L..   R.  A. 

Montgomery    v.    Hickman,    62    Ind.  313. 

598;   Hamilton   v.   Boothe,   55   Miss.        19— Blood  v.  Barnes,  79  111.  437. 
60.  20— Primmer  v.   Clabaugh,  78  111. 

17— Olsen    v.    Kern,    10    111.    App.  94. 
578;    Williams   v.   Paine,    169   Tj.    S.         21— Brownwell    v.    Dixon,    37    111. 

55.  197;   Rankin  v.   West,  25  Mich.   195; 

18— Wells   v.    Smith,    54   Gar.   262;  Wells    v.    Batts,    112   N.    C.    283,   34 

Farmers,  etc.,  Bank  v.  Loftus,  133  Am.  St.  Rep.  918. 


§1025.]  DOMESTIC  RELATIONS.  703 

acter  of  her  investments,  if  authorized  by  her,  without  subjecting  her 
property  to  the  payment  of  his  debts.22 

§  1025.  May  Ratify  the  Act  of  a  Husband.  In  order  that  a  mar- 
ried woman  shall  be  bound  by  the  acts  of  her  husband  in  selling  or 
exchanging  her  property,  it  is  not  necessary  that  she  should  express- 
ly authorize  him  beforehand  thus  to  act — she  may  ratify  the  act  af- 
terwards. And,  in  this  case,  if  the  jury  believe,  from  the  evidence, 
that  the  husband  of  plaintiff  exchanged  the  mule  in  question  with  the 
defendant  for  a  mare  of  the  defendant's,  either  as  his  own  property, 
or  acting  as  the  agent  of  the  complainant,  and  tha';  at  or  about  the 
time  of  the  trade,  the  complainant  knew  that  her  husband  had  so 
traded,  and  she  did  not,  as  soon  as  it  could  reasonably  be  done,  re- 
pudiate the  act  of  her  husband,  nor  claim  the  property,  then  she 
must  be  deemed  to  have  ratified  the  act  of  the  husband  in  making  the 
exchange,  and  she  cannot  now  recover  the  property  on  the  ground  that 
she  did  not  authorize  the  trade  or  did  not  know  the  law.23 

§  1026.  When  Proceeds  of  Her  Farm  Belong  to  Husband,  (a)  If 
a  married  woman  places  her  money  or  property  in  the  hands  of  her 
husband  for  the  purpose  of  enabling  him  to  carry  on  a  general  busi- 
ness, under  such  circumstances  as  to  enable  him  to  obtain  credit  on 
the  faith  of  his  being  the  owner  of  such  money  or  property,  and  he 
does  thereby  obtain  credit,  then  the  entire  capital  so  embarked  in 
business,  with  the  increase  thereof,  will  be  liable  for  the  husband's 
debts.24 

(b)  "When  the  husband,  as  the  head  of  the  family,  occupies  and  cul- 
tivates the  land  of  his  wife,  in  his  own  name,  then  he  is  considered  in 
law  as  occupying  the  farm,  with  her  consent,  for  the  common  benefit 
of  the  family.  And  the  proceeds  of  his  toil  upon  such  land  are  as 
much  his  property  as  though  he  had  occupied  the  land  as  a  tenant, 
and  had  rented  from  some  other  person.25 

§  1027.    What  Not  Separate  Estate  as  to  Creditors  of  Husband. 

(a)  The  court  instructs  the  jury,  as  a  matter  of  law,  that  if  the  wife 
advance  her  own  separate  property  or  money,  and  place  the  same  in 
the  hands  of  her  husband,  for  the  purpose  of  enabling  him  to  carry  on 
any  general  trade  or  business,  for  his  use  and  benefit,  and  the  hus- 
band engages  in  such  business,  and,  by  his  labor  and  skill,  increases 
the  property  or  funds  while  in  his  hands,  then  the  entire  capital  em- 
barked in  the  enterprise,  together  with  the  increase,  will  not  con- 

22— Wortman  v.   Price,  47  111.   22;  950,    30    Tex.    Civ.    App.    216,    70    S. 

Abbey  v.  Dego,  44  Barb.  374;  Buck-  W.   338,  60  L.  R.   A.  941. 

ley  v.   Wells,  33   N.   Y.   518;   Welch  23— Dichtenberger   v.   Graham,   5.0 

v.   Kline,   57  Penn.   428;    Cooper  v.  Ind.  288. 

Hare,  49  Ind.  394;  Fuller  v.  Alden,  24— Patton    v.    Gates,    67   111.    164; 

23  Wis.  301,  99  Am.  Dec.  173;  Dority  Wilson   v.    Loomis.   55   111.   352. 

v.    Dority,    96    Tex.    211,    71    S.    W.  25— Stennett  v.  Bradley,  35  N.  W. 

467. 


704  FORMS  OP  INSTRUCTIONS.  [§  1027 

stitute  the  separate  estate  of  the  wife,  but  they  will  be  liable  for  the 
debts  of  the  husband.26 

(b)  If  the  jury  believe,  from  the  evidence,  that  the  property  in 
question  really  belonged  to  the  defendant  in  the  execution,  but  was 
claimed  and  called  the  property  of  his  wife,  for  the  purpose  of  cov- 
ering up  said  goods,  and  keeping  them  from  the  creditors  of  her 
husband,  then  the  jury  should  find  for  the  defendant.27 

26_Robinson    v.    Breems,    90    111.        27— Brownwell    v.    Dixon,    37    111. 
351.  197. 


CHAPTER  XLVIII. 

DOMICIL  AND  RESIDENCE. 

See  Erroneous  Instructions,  same    chapter  head,  Vol.  III. 


§  1028.  What  constitutes  residence 
or   domicil. 

§  1029.  Must  be  the  act  of  re- 
moval with  intention  of 
remaining-  to  constitute 
change  of  domicil. 

§  1030.  Residence  —  Husband  the 
right    to    select — Desertion. 


§  1031.  Domicil  of  husband   that  of 
wife — Domicil  of  widow. 


§  1032 


When     a    person     is    not 
resident  of  the  state. 


§  1033.  Pauper  —  Acquiring 
residence. 


legal 


§  1028.  What  Constitutes  Residence  or  Domicil.  (a)  To  consti- 
tute residence,  there  must  be  a  fixed  abode  and  an  intention  to  re- 
main at  least  for  a  time  for  business  or  other  reasons,  not  solely  con- 
nected with  the  bringing  of  a  suit  for  divorce.1 

(b)  The  court  instructs  you  that,  where  a  man  has  a  settled  and 
fixed  abode,  with  an  intention  to  remain  there  permanently  for  a 
time  for  business  and  other  purposes,  then  in  law  such  abode  is  his 
residence.2 

(c)  The  court  instructs  you  that,  if  you  believe  from  the  evidence 
that  the  defendant,  B,  at  the  time  the  attachment  writ  in  this  suit 
was  sworn  out  and  issued,  was  established  in  business  in  this  state, 
and  he  personally  lived  and  abided  in  this  state  with  the  intention  of 
remaining  in  this  state  permanently  as  a  resident,  for  business  pur- 
poses, then  in  law  he  was  a  resident  of  this  state,  and  your  verdict 
on  the  attachment  should  be  for  the  defendant.3 

(d)  The  word  "resided"  as  used  in  section  1703  of  the  Laws  of 
the  Territory  of  New  Mexico  compiled  in   1897,   and  introduced   in 


1— Chapman  v.   Chapman,  129  111.  'There    must    be    a    settled,    fixed 

386   (390),   21   N.   E.   806.  abode,  an  intention  to  remain  per- 

2— Barron   v.   Burke,   82   111.   App.  manently,  at  least  for  a  time,  for 

116    (120).  business  or  other  purposes,  to  con- 

The  court  said:     "We  think  that  stitute  a  residence  within  the  legal 

this  instruction  properly  states  the  meaning    of    the    term,'    and    held 

law  as  to  what  constitutes  a  resi-  that,    while    the    defendant's    home 

dence   in   this   state  under   the   at-  or   domicil   was   in    New    York,    he 

tachment  act.  Board  of  Supervisors  had  two  residences,  one  in  Illinois 

v.    Davenport,  40   111.   197;   Wells  v.  and   one  in   New  York.     We   think 

People,    44    111.    40;    Wells    v.    Par-  the  same  is  true  as  to  the  attach- 

rott,  43  111.  App.  656.  In  the  Daven-  ment    act.      In    determining    what 

port      case,      supra,      Mr.      Justice  was  a  residence  under  the  attach- 


Breese,    in    considering    the    ques- 
tion as  to  what  constituted  a  resi- 


ment  act  this  court  in  the  Parrott 
case,  supra,  used   almost   the   iden- 


dence    within    the    meaning   of   the  tical    language    of    Justice    Breese 

revenue    law,    which    provided    for  above   quoted." 

the    taxation    of    property    'of   per-  3 — Barron    v.    Burke,    supra, 
sons   residing   in   this   State,'    said: 

45  705 


706  FORMS  OF  INSTRUCTIONS.  L§  1029- 

evidence  before  us,  is  synonymous  with  and  means  the  same  as  the 
word  "domiciled,"  and,  under  said  article  to  entitle  a  citizen  of  the 
United  States  to  vote  at  an  election  held  in  New  Mexico  he  must,  at 
the  time  the  election  is  held,  have  his  domicil  in  said  territory.4 

§  1029.  Must  be  the  Act  of  Removal  with  Intention  of  Remaining 
to  Constitute  Change  of  Domicil.  The  court  instructs  the  jury,  that 
to  constitute  a  change  of  domicil,  there  must  be  the  act  of  removal 
combined  with  the  intention  of  remaining.  If  the  jury  believe,  from 
the  evidence,  that  J.  L.,  the  husband  of  the  defendant,  some  time  and 

about,  removed  from  this  state  to ,  with  the  intention  of  taking 

up  his  permanent  residence  there  and  without  the  intention  of  re- 
turning to  this  state  as  a  place  of  residence,  and  that  he  never  did 
return  to  this  state,  then  the  domicil  of  the  said  J.  L.,  at  the  time  of 
his  death,  was  not  in  this  state.5 

§  1030.  Residence — Husband  the  Right  to  Select — Desertion,  (a) 
The  jury  are  instructed,  that  in  law  the  domicil  of  the  husband  is  that 
of  the  wife,  and  her  residence  follows  that  of  the  husband.  When  a 
husband  acquires  a  new  home,  it  is  the  duty  of  the  wife  to  go  with 
him,  and  if  she  refuses,  without  justification,  for  two  years,  the  hus- 
band will  be  entitled  to  a  divorce.6 

(b)  That  the  husband  has  the  right  to  select  his  domicil,  and  to 
change  his  residence,  and  it  is  the  duty  of  the  wife  to  accompany  him, 
and  if  she  refuses  without  some  good  and  justifiable  cause,  as  ex- 
plained in  these  instructions,  he  will  not  be  guilty  of  deserting  his 
wife  by  selecting  and  going  to  a  new  home  and  leaving  her  behind.7 

§1031.  Domicil  of  Husband  that  of  Wife— Domicil  of  Widow, 
(a)  The  jury  are  instructed  that  the  domicil  of  the  husband  is  that 
of  the  wife  so  long  as  they  live  together  as  husband  and  wife,  and 
the  domicil  of  the  widow  continues  to  be  that  of  her  late  husband 
until  she  changes  it  of  her  own  volition,  and  if  she  does  change  her 
domicil  of  her  own  motion  and  volition  by  taking  up  her  permanent 
residence  elsewhere,  then  the  presumption  that  her  domicil  is  that  of 
her  late  husband  ceases.8 

(b)  The  jury  are  instructed,  as  a  matter  of  law,  that  the  domicil 
of  the  husband  upon  marriage  at  once  becomes  the  domicil  of  the 
wife,  and  the  domicil  of  the  wife  continues  to  be  the  same  as  that  of 
the  husband  so  long  as  they  remain  together  as  husband  and  wife.9 

4 — Laferiere  v.   Richards,  28  Tex.  Note — See  chapter  46,  on  Divorce. 

Civ.   App.   63,   67  S.  W.   125   (126).  7— Babbit    v.    Babbit,    69    111.    277; 

"The    first    part    of    the    charge  Ashbaugh  v.  Ashbaugh,  17  111.  476; 

criticised  was  properly  given  in  or-  1  Nelson  on  D.  &  S.  sec.  68;  Bish- 

der  to  give  the  jury  a  correct  un-  op   on    M.   &   D.   sec.    788. 

derstanding   of   the   term   'resident'  8— Kennedy    v.    Kennedy,    87    111. 

as    used    in    such    statute,    and    to  250;   Smith  v.   Smith,  28  N.  W.  296. 

our  minds   the  subsequent  part  of  9— Bouvier's     Law      Die;     Web- 

the   clause  does  nothing  more."  ster's     Die;     Board     of     Sups.     v. 

5— Hayes  v.   Hayes,  74  111.   312.  Davenport,    40    111.    197;    HascaiH   v. 

6— Kennedy    v.    Kennedy,    87    111.  Hafford,    107    Tenn.    355,    65    S.   W. 

250;    Hunt   v.    Hunt,    29    N.   J.    Eq.  423,    89   Am.    St.   952. 


§  1032.]  DOMICIL  AND  RESIDENCE.  707 

§  1032.  When  a  Person  is  Not  a  Resident  of  the  State,  (a)  If  the 
jury  believe,  from  the  evidence,  that  the  defendant,  N.,  has  not  main- 
tained a  residence  in  the  State  of  Illinois  previous,  and  did  not  reside 
in  this  state  at  the  issuing  of  the  attachment  in  this  case,  according 
to  the  legal  interpretation  of  the  word,  as  laid  down  in  these  in- 
structions; that  he  had  no  fixed  place  of  abode  or  habitation;  that 
he  never  kept  house  in  M — ;  that  he  spent  only  a  portion  of  his  time 
in  Illinois;  that  his  family  was  divided,  unsettled  and  constantly 
moving  about,  part  of  the  time  in  Illinois  and  part  of  the  time  at 
some  place  or  places  in  some  of  the  eastern  states,  then  the  defendant 
was  not  a  resident  of  the  State  of  Illinois  in  the  true  intent  and 
meaning  of  the  statute,  and  they  will  find  for  the  plaintiff.10 

(b)  The  jury  are  instructed  that  residence  necessarily  involves  the 
idea  of  a  local  habitation  or  place  of  abode,  and  if  the  jury  believe  at 
the  time  of  the  issue  of  the  attachment  writ,  the  defendant  had  no 
local  habitation  or  place  of  abode  within  the  State  of  Illinois,  and 
that  he  was  actually  residing  without  the  said  State  permanently — 
at  least  for  an  indefinite  time — they  should  find  the  issues  upon  the 
attachment  in  favor  of  the  plaintiff.11 

§  1033.  Pauper — Acquiring  Legal  Residence,  (a)  If,  during  en- 
tire period  of  her  four  years'  residence  in  F,  C.  was  supported  by 
herself  or  by  other  persons  without  aid  or  assistance  from  Fair- 
field, then  she  had,  within  the  meaning  of  the  law,  maintained  her- 
self there  without  becoming  chargeable  to  the  town. 

(b)  It  is  claimed  in  argument  that  at  the  time  she  went  to  F.  her 
home  was  in  R.,  and  that  her  stay  in  F.  was  only  a  temporary  one. 
That  is  a  question  for  the  jury  to  decide  from  the  evidence  in  the 
case.  If  the  jury  find  that  she  was  an  inhabitant  of  either  R.  or  D. 
before  she  went  to  F.,  and  that  she  continuously  resided  and  had  her 
home  in  F.,  and  nowhere  else  for  four  years,  and  that  she  maintained 
herself  there  during  that  time  in  the  sense  above  explained,  then  she 
gained  a  legal  settlement  in  F. 

(c)  If  when  she  went  to  F.  she  did  not  have  capacity  to  form  or 
retain  an  intention  as  to  her  place  of  residence,  or  to  make  choice  of 
such  place,  this  fact  of  itself  would  not  prevent  her  from  gaining  a 
legal  settlement  in  that  town.12 

10 — Pullian  v.   Nelson,   28  111.  112.  upon   which   to   base   this    instruc- 

11 — Witbeck      v.      Marshall-Wells  tion,   and   we  find   no   error  in  it." 

Hardware    Co.,    188    111.    154     (156),  12— Town    of    Ridgefield    v.    Town 

aft'g    88    111.    App.    101,    58    N.    E.  of    Fairfield,    73    Conn.    47,    46    Atl. 

929.  245    (246). 

"There    was     sufficient    evidence 


CHAPTER  XLIX. 

EJECTMENT. 
See  Erroneous  Instructions,  same  chapter  head,  Vol.  III. 


§  1034.  Only  legal  title  involved 
where  common  law  rule 
prevails. 

§  1035.  Source  of  title  —  Starting 
point— Title  deduced  from 
a  common  source. 

§  1036.  Title  in  third  party— De- 
fect in   defendant's   title. 

§  1037.  Plaintiff  must  show  better 
title  than  defendant  to  re- 
cover. 

§  1038.  Possession  prima  facie  evi- 
dence of  title  —  Plaintiff 
must  show  good  title  to  re- 
cover. 

§  1039.  Ownership  presumed  from 
actual  peaceable  possession 
—Rebuttable. 


§  1040.  Right  to  possession  must 
be  shown — First  possessor 
has  the  better  title. 

§  1041.  Two  parties  in  constructive 
possession — Oldest  posses- 
sion and  best  title  prevails. 

§  1042.  Occupancy  —  Constructive 
possession  —  Extended  to 
land  described  in  deed — Ex- 
ception. 

§  1043.  Bona  fide  settler— Abandon- 
ment. 

§  1044.  Deeds  to  third  party  as  evi- 
dence. 

§  1045.  Title  conveyed  before  suit — 
Right   to   sue. 


§  1034.  Only  Legal  Titles  Involved  (Where  Common  Law  Bule 
Prevails).  The  court  instructs  the  jury,  that  in  an  action  of  eject- 
ment it  is  only  the  legal  rights  of  the  parties,  as  distinguished  from 
their  equitable  rights,  that  the  jury  have  a  right  to  consider.  In  this 
ease,  if  the  plaintiff  shows  a  legal  title  to  the  premises  in  controversy, 
as  explained  in  the  following  instructions,  then  no  equitable  right  in 
the  defendant  will  bar  the  plaintiff's  right  of  recovery.1 

§  1035.  Source  of  Title— Starting  Point— Title  Deduced  from  a 
Common  Source,  (a)  The  jury  are  instructed,  as  matter  of  law,  if 
you  believe  from  the  evidence  that  the  land  in  question  in  this  case  is 
a  portion  of  the  south  fractional  half  of  Section  29,  etc.,  that  the 
source  of  title  to  such  land  is  in  the  State  of  Illinois,  and  that  in 
proving  title  to  the  land  in  question  it  is  not  necessary  for  the  plain- 
till'  to  commence  with  the  United  States,  or  to  go  further  back  than 
the  State  of  Illinois  as  a  starting  point  in  making  out  its  chain  of 
title  to  said  land.2 

(1))  The  court  instructs  the  jury,  as  a  matter  of  law,  that  where 
both  parties,  in  an  action  of  ejectment,  claim  to  derive  title  through 


1— Newell  on   Eject.   360,   361,  564;  Cahill,    75    Conn.    522,    60   L.    R.    A. 

Sims  v.   Gray,  66  Mo.  613;  Dawson  706. 

v.    Hayden,   67   111.   52;  Buell  v.  Ir-  2— C.  &  A.  R.  R.  Co.  v.  Keegan, 

win.  24  Mich.  145;  Whyte  v.  Smith,  185  111.  70  (78),   56  N.   E.  1088. 

I    Sawyer   (Orepr.)   17;   Phillpotts   v.  Note — See    chapters,   on    Adverse 

dell,     8     Nev.     61:      Kelley     v.  Possession    and    Limitations,    Stat- 

Hendricks,    57    Ala.    193;    Cahill    v.  ute  of. 

708 


§  1036.]  EJECTMENT.  709 

or  under  the  same  person,  then  neither  party  is  bound  to  show  title 
back  of  that  person,  and  the  one  having  the  better  title  or  right  from 
that  common  source  has  the  better  title  for  all  the  purposes  of  the  suit.3 

§  1036.  Title  in  Third  Party— Defect  in  Defendant's  Title,  (a) 
The  jury  are  instructed  by  the  court  that  the  defendant  can  set  up 
any  outstanding  title  in  another  as  a  complete  defense,  and  if  you  be- 
lieve from  the  evidence  that  plaintiff  sold  and  conveyed  the  land  in 
dispute  to  another  prior  to  the  commencement  of  the  suit,  and  the 
title  thereto  was  in  another  at  that  time,  you  should  find  for  the  de- 
fendants.4 

(b)  The  court  instructs  the  jury  that  the  plaintiffs'  right  to  re- 
cover depends  upon  the  strength  of  their  title,  not  upon  the  weak- 
ness of  the  defendant's  title,  or  the  exhibition  of  defects  in  the  de- 
fendant's title,  and  that  the  defendant  may  maintain  his  defense  by 
the  failure  of  the  plaintiffs  to  show  that  a  better  title  is  in  them  than 
is  in  the  defendant,  or  by  the  defendant  showing  the  title  is  not  in  the 
plaintiffs,  but  in  some  one  else.5 

§  1037.  Plaintiff  Must  Show  Better  Title  Than  Defendant  to  Re- 
cover. The  court  charges  the  jury  that  if,  upon  the  evidence  before 
them,  and  the  charge  of  the  court,  they  are  unable  to  saj'  that  plain- 
tiff had  shown  a  better  title  than  defendant  has  shown  by  his  evi- 
dence, then  the  plaintiff  is  not  entitled  to  recover.6 

§  1038.  Possession  Prima  Facie  Evidence  of  Title — Plaintiff  Must 
Show  Good  Title  to  Recover,  (a)  The  court  instructs  the  jury,  that 
in  an  action  of  ejectment,  prior  peaceable  possession  by  the  plaintiff 
claiming  to  be  the  owner  in  fee,  if  proved,  is  prima  facie  evidence 
of  ownership  and  seizin,  and  sufficient  to  authorize  a  recovery  unless 
the  defendant  shall  show  a  better  title.7 

(b)  The  court  instructs  the  jury  that  the  possession  of  land  by 
a  party  claiming  it  as  his  own  in  fee  is  prima  facie  evidence  of  his 
ownership  and  seizin  of  the  land,  and  that  it  is  incumbent  upon  the 
plaintiffs  in  an  action  of  ejectment  to  prove  and  show  in  them  a 
good,  perfect,  and  sufficient  title  to  the  land  to  enable  them  to  re- 
cover from  the  defendant.8 

§  1039.  Ownership  Presumed  From  Actual  Peaceable  Possession— 
Rebuttable,  (a)  A  person  in  the  actual  peaceable  possession  of  real 
estate  is  presumed  to  be  the  owner  of  the  fee,  until  the  presumption 
is  rebutted,  and  he  is  not  required  to  show  in  what  manner,  or  by 
what  title,  he  holds,  until  the  plaintiff  shows  a  better  title.9 

3— Miller   v.   Hardin,   64   Mo.   545;  Edmondson,  127  Ala.  445,  30  So.  61 

Spect  v.  Gregg,  55  Cal.  198;   Morri-  (65). 

son  v.  Wilkersen,  27  la.  374;  Cronin  7 — Sherwood  v.  St.  Paul,  etc.,  Rd. 

v.   Gore,   38   Mich.   381;  Whisenhunt  Co.,  21  Minn.  127;  Barger  v.  Hoobs 

v.    Jones,    78   N.    C.    361.  67   111.    592;   Davis   v.   Thompson,   56 

4— Ellis   v.    Clark    et   al.,    39    Fla.  Mo.   39. 

714,  23  So.  410  (411).  8— Atkinson   v.    Smith,   —   Va.  — , 

5— Atkinson    v.    Smith    et    al,,    —  24    S.    E.    901    (902). 

Va.   — ,   24   S.   E.    901  (902).  9— Doty    v.    Burdiek,    83    111.    47S, 

&— Anniston     City    Land     Co.    v.  Sears  v.  Taylor,  4  Col.   38. 


710  FORMS  OF  INSTRUCTIONS.  [§  1040. 

(b)  That  while  it  is  true  that,  to  entitle  the  plaintiff  in  ejectment 
to  recover,  he  must  not  only  show  title  in  himself,  but  he  must  also 
show  that  he  was  entitled  to  the  possession  of  the  premises  at  the 
commencement  of  the  suit.  Still,  the  law  is,  that  the  one  who  shows 
the  better  legal  title  to  real  estate  is  always  presumed  to  be  entitled 
to  the  possession  of  the  property,  unless  the  other  party  shows  some 
valid  legal  right  to  the  possession  of  the  property,  as  against  the  true 
owner.10 

§  1040.  Right  to  Possession  Must  be  Shown — First  Possessor  Has 
the  Better  Title,  (a)  The  jury  are  instructed,  that  to  entitle  the 
plaintiff  to  recover  in  this  case,  it  is  not  sufficient  for  him  to  show 
that  he  holds  the  legal  title  to  the  premises  in  controversy;  it  must 
further  appear,  from  a  preponderance  of  the  evidence,  that  at  the 
time  of  the  commencement  of  this  suit,  the  plaintiff  was  then  en- 
titled to  the  possession  of  the  premises.11 

(b)  When  both  parties,  in  an  action  of  ejectment,  claim  title  to 
the  premises  by  showing  simply  possession  at  different  times,  under 
claim  of  ownership,  then  the  first  person  is  deemed  to  have  the  bet- 
ter title,  unless  he  delays  for  an  unreasonable  length  of  time  to  as- 
sert his  right  to  the  property.12 

§  1041.  Two  Parties  in  Constructive  Possession — Oldest  Possession 
and  Best  Title  Prevails.  The  court  instructs  you  that  when  two 
parties  are  both  in  constructive  possession  of  land,  he  who  has  the 
oldest  possession  and  the  best  title  must  prevail.13 

§  1042.  Occupancy — Constructive  Possession — Extended  to  Land 
Described  in  Deed — Exception.  The  court  instructs  the  jury  that 
where  a  party  comes  into  possession  under  a  conveyance,  although 
that  conveyance  may  be  void,  and  takes  possession  of  a  part  of  the 
land  claiming  it  all,  that  possession  is  extended  to  the  whole  of  the 
land  so  described  in  the  deed,  except  such  part  as  may  be  in  the  ad- 
verse possession  of  somebody  else.14 

§  1043.     Bona   Fide    Settler — Abandonment.     If   you    do   not   find 

that  A  was  an  actual  bona  fide  settler  on  said  land  on  the  day 

of ,  and  that  his  abandonment,  if  any,  was  temporary,  and 

caused  by  a  well-grounded  fear  of  death  or  serious  bodily  injury,  you 
will  return  a  verdict  for  defendant  upon  the  whole  case.15 

10 — Thompson      v.      Burhans,      15  13 — Connor  v.    Johnson,   59   S.    C. 

Hun   (N.   T.)   581.  115,   37  S.   E.  240   (245). 

11— Kilgour    v.     Gockley,     83     111.  14— Chastang     v.     Chastang,     141 
L09;    (Justin    v.    Barnham,    34   Mich.  Ala.    451,    37   So.    799    (800). 
511;    Lotz    v.    Briggs,    50    Ind.    346;  See   chapter   on   Adverse   Posses- 
Williams  v.    Murphy,   21  Minn.   534;  sion  for  other  instructions   on  this 
San     Felipe,    etc.,    v.     Belshaw,    49  subject. 
Cal.   655.  15— Jones  v.  Wright,  —  Tex.  Civ. 

12— Martin    v.     Bonsack,     61    Mo.  App.  — ,   81   S.   W.   569   (570). 

556;    Clark    v.    Clark,    51    Ala.    498;  "This  charge  would  naturally  be 

Lum    v.    Reed,    53    Miss.    73;    Jones  understood    and    read    as    follows: 

v.    TCasley,   52    Ca.    454;    Southmayo  'If    you    do    not    find    that    said    A 

v.  Henley,  45  Cal.   101.  was  an  actual  bona  fide  settler  on 


§  1044.]  EJECTMENT.  711 

§  1044.  Deeds  to  Third  Party  as  Evidence,  (a)  The  court  charges 
the  jury  that  the  deed  of  B.  to  the  W.  Company,  in  evidence  before 
you,  is  no  evidence  that  B.  or  any  one  else  had  any  right,  title,  or 
interest  in  the  lands  in  dispute  in  this  suit. 

(b)  The  court  charges  you  that  the  paper  writings  or  written  in- 
struments executed  by  F.  to  W.,  introduced  by  the  plaintiff,  and  in 
evidence  before  you,  are  no  evidence  that  said  C.  or  F.  or  any  one 
else,  had  any  right,  title  or  interest  to  convey  in  the  lands  in  con- 
troversy in  this  suit. 

(c)  The  court  charges  you  that  the  deed  of  W.  and  wife  to  J.,  in- 
troduced in  evidence  by  the  plaintiff,  is  no  evidence  that  W.  and  wife, 
or  either  of  them,  or  any  one  else  had  any  title  or  interest  in  the  lands 
in  controversy. 

(d)  The  court  charges  you  that  the  deed  of  E.  to  W.  in  evidence 
before  you,  is  no  evidence  that  said  E.  or  any  one  else,  had  any 
title,  right,  or  interest  in  the  lands  sued  for  in  this  action.16 

§  1045.  Title  Conveyed  Before  Suit— Right  to  Sue.  (a)  The 
court  charges  the  jury  that  if  they  believe  from  the  evidence  that  B. 
had  conveyed  away  his  whole  title  to  the  land  in  controversy  before 
this  action  was  brought,  that  plaintiff  is  not  entitled  to  recover  on  the 
alleged  demise  of  B. 

(b)  The  court  charges  the  jury  that  if  they  find  from  the  evidence 
that  the  0.  Company  had  conveyed  away  its  whole  title  to  the  land  in 
controversy  before  this  action  was  brought,  plaintiff  cannot  recover 
on  the  alleged  demise  of  the  0.  Company. 

(c)  The  court  charges  the  jury  that  if  they  find  from  the  evi- 
dence, under  the  charge  of  the  court,  that  the  W.  Company  had  con- 
veyed away  its  whole  title  to  the  land  in  controversy  before  this 
action  was  brought,  that  plaintiff  is  not  entitled  to  recover  on  the 
alleged  demise  of  W.  Company.17 

said  land  on   the  day  of  ,  ance  of  whatever  right,  title,  or  in- 

and     (if    you     do    not     find)     that  terest  the  grantors  may  have  had 

his   abandonment,   if  any,'   etc.     It  in      the      land,      they      cannot      as 

is  manifest  that  by  the  latter  por-  against    the    defendant,    who    is    a 

tion  of  the  charge  it  was  intended  stranger  to  the  deed,  be  considered 

that   the  jury   should   consider  the  as   showing    that   the  grantor  had 

issue  of  abandonment  in  case  they  any  right,   title,   or  interest  in   the 

found  affirmatively  in  reference  to  land.     The  giving  of  these  charges 

the   first    portion."  at    the    request    of    the    defendant 

16 — Anniston     City    Land    Co.    v.  was    free    from    error.      Malone    v. 

Edmondson,   127  Ala.   445,   30   So.  61  Arends,  116  Ala.  19,  22   So.   500." 

(65).  17 — Anniston    City    Land    Co.    v. 

"Above  charges  assert  the  prin-  Edmondson,  127  Ala.  445,   30  So.  61 

ciple,  that  the  several  deeds  intro-  (65). 

duced  in  evidence  are  not  evidence  "The  court   may,   at   the  written 

that  the  several  grantors  had  any  request    of     either     party,     charge 

interest  or  title  in  the  land  in  dis-  upon    the    effect    of    the    evidence 

pute.     While    the    deeds    in    them-  where    it    is   free   from    conflict   or 

selves    are   evidence    of   a   convey-  adverse  inference." 


CHAPTER   L. 
FORCIBLE  ENTRY  AND  DETAINER. 

See    Erroneous    Instructions,    same  chapter   head,   Vol.   III. 


§  1046.  Title  not  involved— The  real 

question  in  issue. 
§  1047.  Entry      without      force      but 

against  consent  and  will  of 

plaintiff. 
§  1048.  Entry    by    force    or    threats 

essential. 
§  1049.  Obtaining       possession       by 

stealth   or  stratagem. 


§  1050.  Forcible    entry    and    forcible 
detainer  are  distinct. 

§  1051.  What    amounts     to    forcible 
entry. 

§  1052.  What  constitutes  possession. 

§  1053.  What     does     not     constitute 
possession. 


§  1046.  Title  Not  Involved — The  Real  Question  in  Issue,  (a)  The 
court  instructs  the  jury,  that  in  this  action  the  title  to  the  property  in 
question  is  not  involved;  the  material  questions  in  the  case  for  the 
jury  to  determine  are  the  right  to  the  possession  of  the  premises.1 

(b)  That  although  you  may  believe,  from  the  evidence,  that  the 
defendant  was  the  legal  owner  of  the  premises  in  question,  and  was 
lawfully  entitled  to  the  possession  thereof,  still,  if  you  further  be- 
lieve, from  the  evidence,  that  plaintiff  was  in  the  actual,  exclusive 
and  peaceable  possession  of  the  premises,  the  defendant  would  have 
no  right  to  forcibly  enter  and  expel  the  plaintiff  therefrom.2 

(c)  The  jury  are  instructed  that  whether  the  plaintiff  was  lawful- 
ly or  unlawfully  in  the  possession  of  the  premises,  is  a  matter  of  no 
consequence  in  this  suit.  The  material  questions  for  the  jury  to  de- 
termine by  the  evidence,  are  whether,  in  fact,  at  the  time  in  question, 
the  plaintiff  was  in  the  actual,  peaceable  possession  of  the  premises 
in  question,  and  whether  the  defendant  entered  upon  such  possession 
against  the  will  of  the  plaintiff,  and  retains  such  possession;  and  if 
the  jury  find  both  these  points  in  favor  of  the  plaintiff  (and  that  he 
served  a  written  demand  for  such  possession  upon  the  defendant  be- 
fore the  commencement  of  this  suit),  then  the  jury  should  find  the  de- 
fendant guilty.3 

5 1047.  Entry  without  Force,  but  Against  Consent  and  Will  of 
Plaintiff.  If  you  believe,  from  the  evidence,  that  the  plaintiff  was 
in  the  peaceable  possession  of  the  premises  sued  for,  and  that  while 


1— Myers  v.   Kneniner,  5  Neb.  419;  v.    Fee,    52    Mo.    130;    Huftalin    v. 

Evil!    V.    Cnnwell    (182R~>.    2    Blackf.  Mlsner,  70  Til.  205. 
(Ind.)   133.    18   Am.    Dec.   138    (148).  3— Allen    V.     Tobias.    77    111.    169; 

2— Cooley  on  Torts  323;  Dilworth  Jones    v.    Shay,    50   Cal.    508. 

712 


§1048.]  FORCIBLE   ENTRY  AND    DETAINER.  713 

he  was  so  in  possession,  the  defendant,  at  the  time  alleged,  entered 
upon  such  possession,  without  the  consent  and  against  the  will  of  the 
plaintiff,  and  still  holds  such  possession;  and  if  you  further  believe 
from  the  evidence,  that  before  the  commencement  of  this  suit,  the 
plaintiff  made  a  written  demand  upon  the  defendant  for  the  pos- 
sesion of  said  premises  (or  following  the  requirements  of  the 
statute),  then  you  should  find  a  verdict  for  the  plaintiff.4 

§  1048.  Entry  by  Force  or  Threats  Essential.  The  jury  are  in- 
structed that  to  authorize  a  verdict  against  the  defendant,  the  jury 
must  believe  from  the  evidence  that  the  plaintiff  was  in  the  actual 
possession  of  the  premises  prior  to  the  alleged  forcible  entry  or  de- 
tention, and  that  the  defendant  took  the  possession  with  force  and 
violence,  or  by  such  a  show  of  force  and  threats  as  was  reasonably 
calculated  to  intimidate  the  plaintiff,  or  else  that  the  defendant  kept 
such  possession  unlawfully  and  by  force  and  violence,  or  by  threat- 
ening the  same.5 

§  1049.  Obtaining  Possession  by  Stealth  or  Stratagem.  The  law 
is  that  if  a  person  obtains  an  entry  upon  the  possession  of  another  by 
stealth  or  stratagem,  or  in  any  other  way  without  actual  force  or 
violence,  and  the  jury  believe,  from  the  evidence,  that  such  entry  was 
for  the  purpose  and  with  the  intention  of  forcibly  expelling  the  per- 
son in  possession,  and  the  entry  is  followed  up  by  an  actual  expulsion 
of  such  person  by  means  of  personal  threats  or  violence  or  superior 
force,  it  will   amount  to  forcible  entry.8 

§  1050.  Forcible  Entry  and  Forcible  Detainer  Are  Distinct.  The 
offenses  of  forcible  entry  and  forcible  detainer  are  entirely  distinct. 
Every  forcible  entry  is  forbidden  by  law,  and  is,  there  To  re.  unlawful, 
whether  the  person  taking  such  forcible  possession  is  legally  entitled 
tc  the  possession  oi  not.  But  every  forcible  detainer  is  not  forbidden 
by  law;  if  a  perso>  gains  peaceable  possession  and  he  is  then  legally 
entitled  to  possession,  he  may  hold  such  possession  by  force.7 

§  1051.  &•  ac  Amounts  to  Forcible  Entry,  (a)  You  are  in- 
structed that  if  you  believe,  from  the  evidence,  that  some  time  on  and 
about,  etc.,  the  premises  in  question  were  vacant  and  unoccupied,  and 
that  lIig  plaintiff  then  made  a  peaceable  entry  into  said  premises  under 
a  bona  fide  claim  of  right,  and  inclosed  the  same  (with  a  wire  fence), 
then  this  was  an  actual  possession  by  him.  And  if  you  further  be- 
lieve, from  the  evidence,  that  after  the  plaintiff  had  so  taken  pos- 
session, the  defendant,  in  plaintiff's  absence,  took  possession  of  said 
premises  and  forcibly  tore  down  the  said  fence  and  refused  to  sur- 
render possession  to  the  plaintiff  upon  his  demand,  this  would  amount 

4— Croff   v.    Ballinger,    18   111.    200;     People   v.    Smith,   24    Barb.    (S.    C.) 
McCartney    v.    Auer,    50    Mo.    395.         16. 
5— Arehey  v.   Knight.   61  Ind.  311.         7— Hoffman      v.      Harrington.      22 
6— Seitz    v.    Miles,    16    Mich.    456;     Mich.      52;      Evill      v.      Conwell,      2 

Biackf.   (Ind.)  133,  18  Am.  Dec.   138. 


714  FORMS  OF  INSTRUCTIONS.  [§  1052. 

to  a  forcible  entry  and  detainer  and  you  should  find  the  defendant 
guilty.8 

(b)  While  it  is  the  law  that  the  mere  cutting  of  a  few  brush  or 
the  attempt  to  plow  the  land  in  controversy  would  not,  of  itself  con- 
stitute possession,  nor  would  the  attempt  to  enter  upon  the  prior 
actual  possession  of  defendant  (if  he  ever  had  such  possession)  fur- 
nish any  grounds  for  this  action,  you  are  instructed  that  it  is  also 
the  law  that  if  the  plaintiff,  under  an  arrangement  with  C.  entered 

into  the  peaceable  possession  of  the  ground  in  controversy  in  , 

with  the  right  to  occupy  and  use  the  same,  and  you  find  such  to  be 
the  fact  from  the  evidence  before  you;  and  you  also  find  from  such 
evidence  that  at  such  time  the  said  ground  was  open,  vacant,  and  had 
been  abandoned,  and  that  after  C.  obtained  peaceable  possession  of 
said  land  he  built  and  repaired  fences  so  as  to  completely  inclose  the 
same;  and  if  you  find  that  brush  was  cut  in  ,  by  C,  wires  re- 
moved, and  the  fence  maintained  until  April,  ,  and  that  during 

said  month,  while  the  fence  inclosed  said  land,  he  commenced  plow- 
ing said  land,  and  while  the  plow  was  in  the  furrow  the  defendant,  G. 
entered  upon  said  land,  securing  the  plow,  and  preventing  by  threats 
of  personal  violence  the  completion  of  said  plowing  by  R.  for  C, — 
such  entry  upon  the  part  of  G.  would  be  unlawful  and  forcible,  and 
it  would  be  your  duty  to  so  decide  by  your  verdict.9 

§  1052.  What  Constitutes  Possession,  (a)  The  jury  are  instructed, 
that  it  is  not  necessary,  in  order  to  establish  possession  of  real  es- 
tate, that  the  claimant  should  actually  reside  upon  it  or  have  it  in- 
closed with  a  fence.  It  is  enough  if  the  party  is  doing  such  acts 
thereon  as  indicate  in  an  open,  public,  visible  manner,  that  he  is  ex- 
ercising exclusive  control  over  the  land  under  a  claim  of  right  to  such 
exclusive  possession.10 

(b)  The  court  instructs  you,  as  a  matter  of  law,  that  in  order  to 
constitute  possession  of  real  estate,  it  is  not  necessary  that  the  lands 
shall  be  resided  upon  or  surrounded  by  a  fence.  Any  act  that  will 
equally  well  evince  an  intention  to  assert  and  claim  possession,  such 
as  raising  crops,  cutting  grass,  or  herding  cattle  thei'eon,  provided 
such  herding  is  open  and  exclusive — will  constitute  such  a  possession 
as  will  enable  the  party  to  maintain  an  action  of  forcible  entry  and 
detainer  against  any  person  who,  without  the  consent  of  the  party  so 
in  possession,  enters  upon  such  possession  and  wrongfully  and 
forcibly  holds  the  same.11 

§  1053.  What  Does  Not  Constitute  Possession.  If  you  believe, 
from  the  evidence,  that  shortly  before  the  alleged  entry  upon  said 

8 — Campbell      v.      Coonradt,      22  11 — Goodrich     v.     Van     Landing- 

Kans.  704.  ham,  46  Cal.  601;   Bradley  v.  West, 

9— Galligher   v.    Connell,    35   Neb.  60  Mo.  59;  Pensoneau  v.  Bertke  82 

517.   53   N.    W.    383.  111.   161. 

10— Pearson   v.    Herr.    53   111.   145;  « 
Hughes'  Proc.  sees.  326-333. 


§1053.]  FORCIBLE    ENTRY   AND    DETAINER.  715 

premises  by  the  defendant,  and  before  any  entry  thereon  by  the 
plaintiff,  the  defendant  had  been  in  possession  of  the  said  house,  and 
that  when  he  left  he  locked  the  doors,  taking  with  him  the  key  to  the 
outside  door,  and  that  he  retained  possession  of  said  key;  and  if  you 
further  believe,  from  the  evidence,  that  some  time  about  the,  etc.,  and 
while  the  defendant  had  said  key  in  his  possession,  or  under  his  con- 
trol, the  plaintiff  effected  an  entrance  to  said  house  through  one  of  the 
windows,  without  the  knowledge  or  consent  of  the  defendant,  then  a 
possession  thus  acquired  by  the  plaintiff  is  not  sufficient  to  sustain 
this  action.12 

12—2    Cooley    on    Torts,    3d    ed.,    661;   Steinlein    v.   Halstead,   42  Wis. 
422;  Wray  v.  Taylor,  56  Ala.    188. 


CHAPTER  LI. 

FRAUD  AGAINST  CREDITORS. 

See    Erroneous   Instructions,    same   chapter  head,  Vol.  III. 


§  1054.  Fraud  not  presumed— Bur- 
den   of   proof. 

§  1055.  Fraud  not  to  be  presumed 
from  borrowing  money  or 
giving  security. 

§  1056.  Fraudulent  conveyance  — 
Mere  suspicions  not  suffi- 
cient—Sale by  one  indebted 
—Knowledge   of  purchaser. 

§  1057.  Sale  with  intent  to  defraud 
creditors. 

§  105S.  Specific  intent  to  defraud 
subsequent  creditors. 

§  1059.  Must  show  fraudulent  in- 
tent of  assignor  and  knowl- 
edge of  assignee— Burden 
of  proof. 

§  1060.  Good  faith  as  to  credits- 
Intent— Knowledge  of  gran- 
tees—Putting prudent  man 
on  inquiry — Insolvency. 

§  1061.  Fraudulent  conveyance— In- 
tent to  defraud  creditors- 
Valuable  consideration  paid 
— Assignee's  knowledge  of 
intent— What  jury  may 
consio"  er — Series. 

§  1062.  Must  be  a  change  of  pos- 
session— Fraud   per   se. 

§  1063.  Must  be  outward,  visible 
signs  of  change  of  posses- 
sion. 

§  1064.  Retaining  possession — Pre- 
sumptive evidence  of  fraud. 

§  1065.  Possession  of  personal  prop- 
erty evidence  of  ownership 
— Fraud. 

§  1066.  Change  of  possession — Only 
such  change  required  as 
can  reasonably  be  made 
where  articles  are  heavy 
and  cumbersome. 

§  1067.  Delivery  of  personal  prop- 
erty necessary  —  Assump- 
tion  of   ownership. 

§  1068.  Property  in  possession  of 
third  person  —  Symbolical 
delivery. 

§  1069.  Possession   by    agent. 

S  1070.  Possession  of  growing  crops. 

§  1071.  Taking  possession  by  ven- 
dees--Subsequent  loan  to 
vendor. 

716 


§  1072.  Fraudulent  conveyance — In- 
nocent purchaser — What  is 
sufficient  notice  of  fraudu- 
lent intent. 

§  1073.  Innocent  purchaser — Notice 
— Participation  in  fraud — 
Valid  as  to  creditors. 

§  1074.  Purchaser  must  be  charge- 
able with  notice  or  have 
knowledge  of  fraud. 

§  1075.  Fraudulent  intent  and 
knowledge  of  purchaser 
lacking— Adequacy  of  con- 
sideration  immaterial. 

§  1076.  Creditor  not  affected  by 
knowledge,   when. 

§  1077.  Insolvency  —  Knowledge  of 
purchaser. 

§  1078.  Sale  on  credit — Application 
of  proceeds. 

§  1079.  Right  to  prefer  creditors. 

§  1080.  When  fraudulent— Creditor 
may  take  payment  or  se- 
curity in  preference  to  oth- 
ers if  acting  in  good  faith. 

§  1081.  Preference  of  creditors — In- 
solvency— Intent — Payment 
of   antecedent   debt. 

§  1082.  Fraudulent  intent  —  Fraud 
must  be  proven — Prefer- 
ence  of   creditors. 

§  1083.  Fraudulent  preference  — 
Bankruptcy  ■ —  Preponder- 
ance defined  —  Insolvency 
defined — How   proven. 

§  1084.  Preference  of  creditors  of 
an  insolvent  corporation — 
Series. 

§  1085.  Preferring  wife  as  creditor 
— Husband  may  give  to 
wife,   when. 

§  1086.  Conveyances  between  hus- 
band and  wife — Presump- 
tion— Scrutinized    closely. 

§  1087.  Sale  to  relatives  not  neces- 
sarily fraudulent — Right  to 
prefer  creditors. 

§  1088.  Where  vendee  agrees  to  pay 
vendor's  debts — Good  con- 
sideration. 

§  10S9.  Person  indebted  may  sell 
his  property — Not  fraudu- 
lent— Sound  mind. 

§  1090.  Sufficiency  of  property  left 
to  pay  debts. 


§  1054.] 


FRAUD    AGAINST   CREDITORS. 


717 


1091.  Title    of    personal    property 

purchased  in  name  of  an- 
other— Not  subject  to  ex- 
ecution. 

1092.  Fraudulent       conveyance  — 

Sale  of  goods — Levy  on 
proceeds  arising  from  sale. 


§  1093.  Fraudulent  assignment  — 
Mixture  of  goods — Levy  on 
whole  lot  when  inseparable. 

§  1094.  Property  in  hand  of  vendee 
— Right  of  vendor's  credi- 
tors to  attach. 


§1054.  Fraud  Not  Presumed— Burden  of  Proof,  (a)  Fraud  is 
never  presumed,  but  must  be  proved.  The  law  presumes  that  every 
person  transacts  business  honestly  and  in  good  faith,  and  the  burden 
of  proving  fraud  is  on  the  party  who  charges  fraud.  In  this  case 
the  burden  of  proving  fraud  is  on  the  defendant.1 

(b)  The  court  instructs  the  jury  that  fraud  can  not  be  pre- 
sumed, but  must  be  proved. 

(c)  That  fraud  is  never-  to  be  imputed  where  the  transaction 
may  be  fairly  reconciled  with  honesty,  and  if  the  weight  of  evi- 
dence is  in  favor  of  that  conclusion,  it  should  always  be  adopted.2 

(d)  If  the  proof  fails  to  establish  any  of  these  material  facts 
by  a  clear  preponderance  of  the  evidence  then  the  plaintiff  cannot 
recover.3 


1— Crockett  v.  Miller,  2  Neb.  292 
(unof.),  96  N.  W.  491   (493). 

2— Mathews  v.  Reinhardt,  149  111. 
635    (642),    37   N.    E.   85. 

"The  first  of  these  instructions  is 
objected  to.  That  it  announces  a 
correct  proposition  of  law  as  ap- 
plied to  this  case,  can  not  be 
doubted.  It  may  be  admitted  that 
there  are  cases  where  the  law  will 
raise  a  prima  facie  presumption  of 
fraud,  so  as  to  throw  upon  the 
party  implicated,  the  burden  of  ex- 
culpating himself,  as  in  case  of 
dealings  by  a  guardian  with  his 
ward,  or  by  an  attorney  with  his 
client,  and  in  other  cases  of  deal- 
ings between  parties  holding  fidu- 
ciary relations  to  each  other,  but 
no  such  presumption  arises  in  this 
case.  Here  no  such  relations  be- 
tween the  parties  exist,  and  their 
transactions  must  be  held,  prima 
facie,  to  be  fair  and  honest,  and 
consequently,  before  fraud  can  be 
held  to  exist,  it  must  be  proved. 

"Nor  do  we  think  the  instruction 
obnoxious  to  the  objection  made  to 
it,  viz.,  that  it  must  have  been 
understood  by  the  jury  as  holding 
that  fraud  must  be  proved  by  di- 
rect evidence  and  not  by  circum- 
stances. There  is  certainly  noth- 
ing in  the  language  used  warrant- 
ing or  even  suggesting  that  view. 
It  simply  holds  that  fraud  must 
be  proved,  but  does  not  attempt 
to  deal  in  the  least  with  the  ques- 
tion  of   the   mode   of  proof.     And 


when  read  in  connection  with  the 
second  instruction  which  immedi- 
ately follows  it,  and  in  fact  forms 
with  it  one  continuous  proposition, 
it  is  clear  that  there  was  no  pos- 
sible danger  that  the  jury  were 
misled    in    the    way    supposed." 

3— Klipstein  v.  Raschein,  117  Wis. 
248,    94    N.    W.    63    (64). 

"It  should  not  be  overlooked  that 
a  somewhat  greater  degree  of  cer- 
tainty as  to  the  existence  of  facts 
required  to  make  out  the  plaintiffs 
case  is  necessary  where  the  de- 
fendant is  charged  with  fraud,  and 
especially  where  the  charge  is  such 
as,  if  true,  would  indicate  that  he 
committed  a  criminal  offense  of 
some  character,  such  as  that  of  ob- 
taining money  under  false  pre- 
tenses. The  rule  laid  down  in 
Poertner  v.  Poertner,  66  Wis.  644. 
29  N.  W.  386,  is  that  the  facts 
constituting  culpable  liability 
should  be  made  out  by  the  'clear 
and  satisfactory  preponderance  of 
the  evidence.'  It  will  be  observed 
that  the  language  complained  of 
is  so  near  that  used  by  this  court 
in  that  case  as  to  suggest  that  the 
learned  circuit  judge,  in  giving  the 
instructions  complained  of  here, 
had  the  same  in  mind.  It  is  com- 
monly said  in  cases  of  this  kind, 
that  the  plaintiff  is  required  to  es- 
tablish his  cause  of  action  by  clear 
and  satisfactory  evidence.  Blaeser 
v.  Milwaukee  M.  M.  Ins.  Co.,  37 
Wis.  31,  19  Am.  Rep.   747;   F.  Doh- 


718  FORMS  OF  INSTRUCTIONS.  |~§  1055- 

§  1055.    Fraud  Not  to  be  Presumed  From  Borrowing  Money  or 

Giving  Security.  There  is  nothing  unlawful  nor  improper  for  one 
person  to  advance  or  loan  to  another  money,  simply  because  the 
other  is  in  financial  difficulty.  Ordinarily,  that  is  the  only  time 
that  one  wants  financial  assistance.  Neither  is  it  unlawful  to 
require  and  receive  security  therefor.  What  the  law  condemns, 
and  under  which  it  affords  no  protection  to  a  person  loaning  money 
or  purchasing  property,  is  that  the  loan  or  purchase  be  coupled 
with  the  intent  to  defraud,  hinder  and  delay  the  creditors  of  the 
party  obtaining  such  loan  or  making  such  sale.  Hence,  if  you 
shall  find  the  allegations  of  the  petition  to  be  sustained,  as  required 
by  these  instructions,  the  plaintiff  would  be  entitled  to  recover, 
unless  the  allegations  of  the  defendant's  answer  are  by  you  found 
from  the  evidence  to  be  sustained  by  a  preponderance  of  the  evi- 
dence. If  you  shall  find  from  the  evidence,  by  a  preponderance 
thereof,  that  plaintiff  had  possession  of  the  goods  in  question  as 
trustee  for  the  benefit  of  creditors,  then  the  defendant  would  be 
entitled  to  a  verdictj  except  as  to  any  surplus  that  such  goods  have 
been  shown  by  the  evidence  to  have  been  worth  over  and  above 
the  amount  of  the  attachments  held  by  the  defendant,  and  under 
which  he  justifies  the  taking  of  the  goods.  And  that  brings  our 
examination  to  the  other  defense,  alleging  a  conspiracy  of  plaintiff 

and    others    to    defraud    the    creditors    of  ,    and    upon    this 

point  I  read  you  the  instructions  asked  by  the  respective  parties 
to  this  action.4 

§  1056.  Fraudulent  Conveyance — Mere  Suspicions  Not  Sufficient — 
Sale  by  One  Indebted — Knowledge  of  Purchaser,  (a)  Though  a 
sale  of  property  be  fraudulent  on  the  part  of  the  vendor,  and  be 
made  to  defraud  his  creditors,  the  purchaser  cannot  be  affected  by 
the  fraud,  unless  he  participated  in  it  with  a  knowledge  of  the 
fraudulent  design,  or  with  such  knowledge  as  would  put  the  ordi- 
narily prudent  man  upon  inquiry,  and  further  the  accomplishment 
of  such   design. 

(b)     The    fact    that   a   person   selling  his   goods   is    at    the    time 

men  Co.  v.  Niagara  F.  Ins.  Co.,  such  certainty,  clearly,  by  less 
96  Wis.  38,  52,  71  N.  W.  69.  That  than  a  clear  preponderance  of  the 
Is  in  accordance  with  the  rule  laid  evidence,  the  clear  weight  of  evi- 
down  in  the  text  books.  Jones,  Ev.  dence.  The  phrase  usually  em- 
sec.  190.  It  justifies  the  charge  ployed  in  instructing  juries,  and 
complained  of.  We  can  see  no  sub-  the  one  that  has  been  most  fre- 
stantial  difference  between  estab-  quently  applied,  and  which  in  our 
lishlng  a  cause  of  action  or  the  judgment  is  the  better  way  of  stat- 
facts  constituting  a  cause  of  ac-  ing  the  rule,  is  that  the  facts  con- 
tion  or  defense  by  a  clear  prepon-  stituting  the  fraud  must  be  es- 
derance  of  the  evidence  and  estab-  tablished  bv  clear  and  satisfactory 
lishing  the  same  clearly  and  sat-  evidence.  We  are  inclined  to  fa- 
Isfactorily.  In  the  very  nature  of  vor  that  form  of  expression, 
things  no  fact  can  be  established  though  it  means  substantially  the 
toa  reasonable  certainty,  the  cer-  same  as  the  one  used  by  the  trial 
tainty  required   in  any  civil  action,  court." 

by  less  than  the  preponderance  of  4— Barton  v.  McKay,  36  Neb    632, 

the  evidence,  nor  established  with  54    N.    W.    968    (971). 


§  1057.]  FRAUD    AGAINST    CREDITORS.  719 

indebted,  and  does  not  intend  to  apply  the  money  he  receives  for 
them  to  the  debts,  is  not  of  itself  sufficient  to  establish  a  fraudulent 
or  dishonest  purpose.  The  sale  to  be  void  as  to  creditors  must  be 
made  with  the  intent  to  hinder,  delay,  or  defraud  them,  in  which 
the  purchaser  must  participate  by  purchasing  with  a  view  to  abet 
the  fraudulent  design.  Fraud  must  be  proved.  Mere  suspicions 
leading  to  no  certain  result  are  not  sufficient  grounds  to  establish 
it.  It  is  incumbent  upon  a  party  who  attacks  a  conveyance  on  the 
ground  of  fraud  that  it  was  made  to  defraud  creditors,  to  show 
that  if  it  had  not  been  made  the  goods  would  have  been  liable  to 
seizure  and  sale  upon  execution.5 

§  1057.  Sale  With  Intent  to  Defraud  Creditors,  (a)  The  jury 
are  instructed,  that  every  sale  or  conveyance  of  property,  made 
by  the  parties  with  intent  to  hinder,  delay  or  defraud  creditors 
in  the  collection  of  their  debts,  is  fraudulent  and  void  as  to  such 
creditors,  whether  such  sale  or  assignment  is  made  with  or  without 
a  valuable  consideration  therefor.6 

(b)  The  law  presumes  that  every  man  intends  the  necessary 
consequences  of  his  acts,  and  where  the  conduct  of  the  debtor 
necessarily  results  in  defrauding  his  creditors,  .he  is  presumed  to 
have  foreseen  and  intended  such  result.7 

§  1058.  Specific  Intent  to  Defraud  Subsequent  Creditors.  The 
jury  are  instructed  that,  in  order  to  find  a  verdict  for  the  defendant, 
0.,  in  this  case,  it  is  necessary  to  find  from  all  the  evidence  that  at 
the  time  when  the  property  in  question  was  transferred  from  C. 
H.  to  M.  A.,  this  plaintiff,  that  there  was  an  express  design  and 
specific  intent  to  defraud  the  subsequent  creditor  who  obtained  the 
judgment  against  C.  H.  which  has  been  shown  in  this  case  or  sub- 
sequent creditors  generally.8 

§  1059.  Must  Show-  Fraudulent  Intent  of  Assignor  and  Knowl- 
edge of  Assignee — Burden  of  Proof.  The  party  who  asserts  that 
the  title  did  not  pass  by  assignment,  as  against  him,  must  make 
such  proof  as  will  establish  that  proposition.  If  he  does  not,  the 
presumption  which  the  law  indulges  is  that  the  vendee  or  assignee 
rightfully   acquired  possession  of  the  property.     It  devolves  on  him 

5— Purcell   w.    G.    Co.    v.   Bryant,  known    to    and    participated    in    by 

—   Ind     Ter    — ,    89   S.    W.   662.  the  vendee;    but   such   presumption 

6— Campbell    v.    Whitson,    68    111.  may    be    rebutted    by    evidence    of 

240-    Stillings   v.   Turner,   153    Mass.  good  faith.     In  some  of  the  states 

534'  °7   N.   E.   671;    Fluegel   v.   Hen-  such  retaining  of  possession  is  held 

schei     7    N.    D.    276,    74    N.   W.    996,  to  be  conclusive  evidence  of  fraud, 

66   Am.   St.  642.  in    favor    of    the    creditors    of    the 

Note'— In  many  of  the  states,  vendor,  and  not  subject  to  ex- 
the  retaining  of  "the  possession  of  planation.  In  other  states  the  mat- 
personal  property,  by  the  vendor,  ter  is  regulated  by  statute, 
after  an  absolute  sale,  is  held,  in  7-Williams,  Constable  et  al.  v. 
favor  of  the  creditors  of  the  ven-  White,  7  Kan.  664,  53  Pac.  890 
dor,  to  be  prima  facie  or  presump-  (891)- 

tive   evidence   of   a   fraudulent   In-  8-Aldous    v.    Olverson,    17   S.    D. 

tent    on    the    part    of   the    vendor,  190,   95  N.  W.  917  (920). 


720  FORMS  OF  INSTRUCTIONS.  [§  1060. 

who  attacks  the  assignment  to  show,  not  merely  the  fraudulent  in- 
tent on  the  part  of  the  assignor,  but  also  the  knowledge  of  and 
participation  of  such  fraud  by  the  person  to  whom,  or  in  whose 
favor,  such  assignment  is  made;  in  order  to  seize  in  his  hands  the 
goods  so  assigned.9 

§  1060.  Good  Faith  as  to  Creditors — Intent — Knowledge  of  Grantees 
—Putting  Prudent  Man  on  Inquiry — Insolvency,  (a)  The  court  in- 
structs the  jury  that  the  law  requires  the  debtor  to  act  in  good 
faith  with  his  creditors,  and  apply  his  property  not  exempt,  if  need 
be,  to  the  payment  of  his  debts.  If  he  attempts  to  evade  this  duty, 
and  for  the  purpose  of  hindering,  delaying  or  defrauding  his  credi- 
tors, transfers  his  property  to  others,  with  knowledge  on  the  part 
of  such  grantees  of  such  intent,  such  grantees  will  take  no  title 
to  such  property,  as  against  such  creditors  proceeding  to  the  collec- 
tion of  their  claims  by  attachment  upon  said  property. 

(b)  The   court   instructs  the  jury   that   if   they  believe  from  the 

evidence   that  the  property  in  controversy   was  sold  by  ■ 

and  in  making  such  sale  it  was  the  intent  of  the  seller  to  hinder, 
delay  or  defraud  his  creditors,  and  the  plaintiff  purchased  said 
goods,  and  by  herself,  or  her  agent,  acting  for  her,  participated 
in  such  fraudulent  purpose,  or,  at  or  before  the  time  such  sale  was 
made,  had  knowledge  of  such  facts  and  circumstances  as  would 
have  aroused  the  suspicions  and  have  put  a  reasonably  prudent 
man  upon  inquiry,  which  inquiry,  if  pursued,  would  have  led  to  the 
knowledge  or  notice  of  such  fraudulent  intent  on  the  part  of  the 
seller,  then  in  such  case  the  plaintiff  took  no  title  to  the  property 
so  conveyed,  as  against  the  creditors  of  the  seller;  and  the  fact 
that  the  plaintiff  may  have  paid  a  valuable  consideration,  or  even 
full  value,  for  the  goods  will  not  render  such  sale  good  as  against 
the  creditors.10 

(c)  In  determining  whether  the  interpleader  knew  of  S's  inten- 
tion to  defraud,  if  there  was  such  intention,  the  jury  are  instructed 
that  it  is  not  incumbent  on  the  plaintiff  to  prove  such  knowledge 
by  positive  testimony,  but  that  facts  coming  to  the  notice  of  the 
interpleader,  which  would  put  a  prudent  man  upon  inquiry,  and 
which,  if  followed  out,  would  lead  to  a  knowledge  of  the  fraud  on 
the  part  of  S,  are  evidences  from  which  the  jury  may  infer  that  L 
had  knowledge  of  such  fraud.11 

9— Mayer    et    al.    v.     Wilkins,    37  28  Neb.  575,  44  N.  W.  732;  Farring- 

Fla.   244,   19   So.    632    (637).  ton  v.  Stone,  35  Neb.  456,  53  N.  W. 

10— Brown  v.    Sloan,   61   Neb.    237,  389;    Edwards  v.  Reid,   39  Neb.  645, 

85  N.  "W.  37,  citing  Bollman  v.  Lu-  58   N    W    90° 

22    Neb.    796,    36    N.    W.    465;  ii_Ij.    Deere    Plow    Co.    v.    Sulli- 

Sunday    Creek    Coal    Co.    v.    Burn-  van,    158    Mo.    440,    59    S.    W.    1005 

ham,    52    Neb.    364.    72    N.    W.    487;  (1009);     State    v.    Purcell,    131    Mo. 

gre   v.    Hazard,    11    Neb.    323,    9  317,    33    S.    W.    13;     Nat.    Bank    of 

N.  W.  83;  Temple  v.  Smith,  13  Neb.  Com.  v.  Brunswick  T.  W.,  155  Mo. 

513,  14  N.  W.   527;   Beels  v.  Flynn,  App.   602,   56   S.   W.   283. 


§1061.]  FRAUD    AGAINST   CREDITORS.  721 

§  1061.  Fraudulent  Conveyance — Intent  to  Defraud  Creditors- 
Valuable  Consideration  Paid — Assignees  Knowledge  of  Intent — 
What  Jury  May  Consider— Series,  (a)  If  the  sale  or  transfer  of 
the  property,  or  an  interest  therein,  was  made  with  the  intent  to 
hinder,  delay  or  defraud  the  creditors  of  L.  H.,  and  if  the  plaintiff 
knew  of  such  intent  when  he  purchased  the  same,  then  such  sale  or 
transfer  was  void  as  to  such  creditors,  and  the  sheriff  had  a  right 
to  make  the  levy  and  seizure  in  question,  and  this  action  cannot 
■be  maintained.  And,  in  such  case,  the  payment  of  a  valuable  or 
full  consideration  for  the  property  or  interest  purchased  would 
not  protect  plaintiff,  but  such  sale  or  transfer  would  still  be  void 
as  to  L.  H. 's  creditors. 

(b)  If,  however,  the  plaintiff  paid  a  valuable  consideration  for 
the  property,  and  bought  the  same  in  good  faith,  without  any  know- 
ledge of  an  intent  on  the  part  of  L.  H.  to  hinder,  delay  or  defraud 
his  creditors,  then  the  plaintiff  acquired  a  valid  title  thereto,  not- 
withstanding any  fraud  if  such  there  was,  on  the  part  of  L.  H. ;  and 
notwithstanding  the  consideration  paid  was  not  the  full  value  of 
the  property,  should  you  find  that  such  was  the  fact. 

(c)  In  determining  whether  or  not  L.  H.  intended  to  hinder, 
delay  or  defraud  his  creditors,  you  may  inquire  into  the  extent  of 
his  indebtedness,  and  of  his  property,  and  means  of  meeting  it;  and 
as  to  how  far  the  same  was  secured,  whether  in  whole  or  in  part; 
and  as  to  whether  he  claimed  in  good  faith  to  have  a  defense  to 
any  apparent  indebtedness  against  him ;  and,  generally,  as  to  whether 
he  had  or  had  not  a  motive  or  inducement  to  place  his  property 
beyond  the  reach  of  creditors.  But  the  mere  fact  that  he  claimed 
to  have,  and  believed  he  had,  a  good  defense  against  notes  which 
he  had  given,  would  not  justify  him  in  transferring  property  for 
the  purpose  of  protecting  it  against  proceedings  for  enforcing  a 
claim  on  such  note. 

(d)  As  to  plaintiff's  knowledge  of  a  fraudulent  intent  on  the 
part  of  L.  H.,  it  is  not  necessary  that  plaintiff  should  have  had 
actual  and  positive  knowledge  of  such  intent,  if  it  existed;  but  if 
he  had  knowledge  of  facts  and  circumstances  tending  to  show  the 
existence  of  such  an  intent,  and  sufficient  to  lead  a  man  of  ordinary 
perception,  care  and  prudence  to  suppose  that  there  was  such  an 
intent,  this  would  be  equivalent  in  law  to  a  knowledge  thereof,  if 
in  fact  there  was  such  fraudulent  intent  on  the  part  of  L.  H. 

(e)  Evidence  was  received  during  the  trial  as  to  acts  and  declara- 
tions of  L.  H.  prior  to  the  transfer  in  question.  These  were  re- 
ceived only  as  against  him,  and  as  tending  to  show  a  fraudulent 
intent  on  his  part;  but  they  are  not  evidence  against  the  plaintiff 
to  show  fraud,  or  knowledge  of  fraud,  on  his  part. 

(f)  In  determining  whether  the  transfers  in  question  were  fraud- 
ulent as  to  creditors,  you  ai*e  at  liberty  to  consider  the  relation  of 
the  parties  thereto  to  each  other,  the  time  and  circumstances  thereof; 

46 


722  FORMS  OF  INSTRUCTIONS.  [§  1062. 

whether  or  not  L.  H.  was  indebted  beyond  his  means  of  payment, 
or  had  a  motive  to  place  his  property  beyond  the  reach  of  his  credi- 
tors; whether  or  not  the  plaintiff  knew,  or  had  the  means  of  know- 
ing, his  brother  L's  financial  condition,  or  with  what  motive  or  pur- 
pose he  was  making  the  transfer;  what  the  plaintiff's  means  of  pay- 
ment were,  and  his  object  in  making  the  purchase;  the  value  of  the 
property,  and  the  amount  paid  therefor;  and  all  the  facts  and  cir- 
cumstances of  the  transaction  appearing  in  evidence,  in  concluding 
the  agreement  as  to  the  terms  on  which  L.  H.  was  to  hold  the  note 
taken  in  part  payment. 

(g)  Fraud  is  not  to  be  presumed;  and,  in  this  case,  the  burden  of 
proof  is  upon  the  defendant  to  satisfy  you,  by  a  preponderance  of 
evidence,  of  a  fraudulent  intent  on  the  part  of  L.  H.,  and  knowledge 
thereof  on  the  part  of  the  plaintiff.12 

§  1062.  Must  be  a  Change  of  Possession — Fraud  per  se.  (a)  That 
the  change  of  the  possession  of  personal  property  upon  a  sale  thereof, 
must  not  be  merely  nominal  or  momentary;  it  must  be  real,  actual 
and  open,  and  such  as  may  be  publicly  known,  so  far  as  the  circum- 
stances will  reasonably  admit  of.  A  continued  possession  by  the 
vendor  of  personal  property,  as  ostensible  owner,  after  an  absolute 
sale,  renders  the  sale  fraudulent  and  void,  as  against  creditors  of 
the  vendor.13 

(b)  That  any  sale  of  personal  property,  when  it  is  permitted  to 
remain  with  the  vendor,  if  it  is  of  that  character  of  property  that 
it  is  capable  of  being  removed,  or  of  having  a  change  in  the  posses- 
sion of  it  made,  is  fraudulent  in  law,  as  to  creditors  and  subsequent 
purchasers,  notwithstanding  the  sale  may  be  in  good  faith,  and  for 
a  valuable  consideration.14 

(c)  You  are  instructed,  as  a  matter  of  law,  that  any  sale  or  as- 
signment of  personal  property,  when  the  possession  of  the  property 
is  permitted  by  the  purchaser  to  remain  in  the  seller,  is  fraudulent 
and  void  as  against  the  creditors  of  the  seller;  and  where  the 
nature  of  the  property  and  the  situation  of  the  parties  will  ad- 
mit of  it,  in  order  to  constitute  a  change  of  possession,  there  must 
be  some  outward,  open,  visible  change  in  the  relation  of  the  parties 
to  the  goods,  indicating  a  change  in  the  possession  that  could  bo 
seen  and  known  by  persons  dealing  with  the  goods.15 

§  1063.  Must  be  Outward,  Visible  Signs  of  Change  of  Possession, 
(a)  The  jury  are  instructed,  that  when  persons  are  doing  business 
as  a  firm,  and,  in  the  way  of  their  business,  have  in  their  possession 
a  stock  of  goods  in  store,  and  while  they  are  so  doing  business,  they 
contract  debts,  then  no  sale  or  assignment  of  such  stock  of  goods, 

12— Campbell  v.   Holland,   22  Neb.  Bosse   v.    Thomas.    3    111.    App.    472. 

587.   35  N    W.   871    CS78-9).  14— Ticknor  v.   McClelland,   84  111. 

13— Wright   v.    Grover,   27  111.   426;  471. 

Sutton  v.   -Rallou,  46  Iowa  517;   C^-  15— Pickard    v.     Hopkins,     17    111. 

ter    v.     Collins,     2    Mo.     App.     225;  App.  570. 


§  1064.]  FRAUD    AGAINST   CREDITORS.  723 

or  any  interest  therein,  will  be  valid,  as  against  the  creditors  of  the 
firm,  unless  the  creditors  have  actual  notice  of  the  sale,  or  there  is 
such  a  change  in  the  possession  of  the  goods,  and  of  the  outward 
and  visible  signs  of  ownership,  as  would  indicate  to  the  public,  and 
to  those  dealing  with  the  stock,  that  such  sale  or  transfer  had  been 
made.16 

(b)  The  court  instructs  you,  that  while  a  sale  of  property  may 
be  good,  as  between  the  vendor  and  vendee,  without  actual  delivery, 
yet  to  make  such  sale  valid  and  binding,  as  against  the  creditors  o& 
the  vendor,  there  must  be  a  delivery  of  the  property  so  sold;  and 
such  delivery  must  be  an  actual,  manual  delivery,  when  the  prop- 
erty is  susceptible  of  it;  and  when  the  property  is  so  heavy  or  bulky 
that  manual  delivery  is  impracticable,  then  there  must  be  some 
outward  public  act  done  by  way  of  delivering  the  possession,  which 
shows  an  intention  by  the  parties  to  change  the  possession  from 
the  seller  to  the  buyer,  so  far  as  it  can  reasonably  be  done  under 
the  circumstances  of  the  case.17 

(c)  The  sale  must  be  accompanied  by  an  actual  and  continued 
change  of  possession  as  well  as  a  nominal  and  constructive  change, 
or  the  transaction  will  be  deemed  fraudulent  as  against  creditors; 
and  a  construction  which  would  allow  the  vendor  or  assignor  of  a 
stock  of  goods  to  continue  in  possession  thereof,  and  to  sell  them  out 
as  the  agent  of  the  purchaser  or  assignee,  would  render  the  statutory 
provision  for  the  prevention  and  detection  of  frauds  a  mere  nullity, 

that  is,  if  you  should  find  that  was  left  there  in  charge 

of  the  goods  as  a  mere  figure-head,  and  there  was  not  an  honest  and 
open  transfer.18 

§  1064.  Retaining  Possession — Presumptive  Evidence  of  Fraud, 
(a)  The  court  instructs  the  jury,  that  the  law  presumes  every  sale 
of  personal  property  to  be  fraudulent  and  void,  as  against  the  cred- 
itors of  the  seller,  unless  a  change  of  possession  of  the  property, 
from  the  seller  to  the  purchaser,  accompanies  and  follows  the  sale; 
and  this  change  must  be  an  open,  visible  change,  manifested  by  such 
outward  signs  as  render  it  evident  to  persons  dealing  with  the  prop- 
erty, that  the  possession  of  the  former  owner,  as  such,  has  ceased.19 

16 — Wright  v.  McCormick,  67  Mo.  personally    manage    the    business. 

426.  He     had     the     right    to     select     an 

17 — Ticknor  v.   McClelland,    84  111.  agent  to   do  this  for  him.     But  he 

471;    Allen    v.    Carr,    85    111.    388.  could    not    select    a    vendor   of    the 

18 — Hopkins    v.    Bishop,    91    Mich,  goods      as      such       agent,       unless 

328.   51   N.  W.  902,   30  Am.   St.   Rep.  something    was    done    to    give    the 

480.  public      to     understand      that      the 

"The  jury   should   have   been   in-  possession    of  the    vendor   was  the 

structed    that,    if    they    found    that  possession     of    the     plaintiff;     that 

the  possession  of  these   goods  was  there      had      been      a      change      in 

not     actually     and     continually     in  the   ownership  of  the  goods.     This 

the  plaintiff   from    the   delivery  up  change   must    be   an    'open,    visible, 

to    the    time    of    the    levy,    then    it  substantial'    one.     Clark  v.    Lee.   78 

was  for  him  to  show  that  the  sale  Mich.    231,    44    N.    W.    Rep.    260." 

was   an  honest   one.     It  would   not  19 — Osborne     v.     Ratliffe,     53    la. 

be  necessary  that  the  plaintiff  him-  748,    5   N.    W.    746. 
self  should  remain  at  the  store  and 


7^4  FORMS  OF  INSTRUCTIONS.  [§  1065. 

(b)  You  are  further  instructed,  as  a  matter  of  law,  that  where  a 
sale  of  personal  property  is  alleged  to  have  been  made,  and  there  is 
no  change  in  the  possession  of  the  property  accompanying  or  follow- 
ing the  "sale,  then  the  law  presumes  that  such  sale  was  made  with 
intent  to  hinder,  delay  or  defraud  the  creditors  of  the  seller;  and 
to  render  such  a  sale  valid  and  binding,  as  against  such  creditors, 
the  burden  of  proof  is  on  the  purchaser  to  show,  by  a  preponderance 
of  evidence,  that  the  sale  was  bona  fide  and  honest,  and  not  designed 
as  a  mere  trick  to  cover  up  the  property.20 

§  1065.  Possession  of  Personal  Property  Evidence  of  Ownership- 
Fraud,  (a)  The  court  instructs  the  jury,  that  when  one  person 
sells  personal  property  to  another,  and  retains  possession  of  it,  the 
property  would  be  subject  to  levy  under  /an  execution  against  the 
seller,  so  long  as  it  remains  in  his  possession,  such  a  sale  being,  in 
law,  fraudulent,  as  against  subsequent  purchasers  in  good  faith,  and 
execution  creditors  of  the  seller.21 

(b)  The  court  instructs  the  jury,  that  possession  of  personal 
property  is  prima  facie  evidence  of  ownership,  if  there  are  no  cir- 
cumstances accompanying  the  possession  to  rebut  the  presumption 
of  ownership;  and  if  the  jury  believe,  from  the  evidence,  that  the 

plaintiff  had  been  in  possession  of  the  property  in  question  for 

months,  prior  and  up  to  the  time  it  was  taken,  and  under  circum- 
stances indicating  ownership  in  him,  then  it  is  incumbent  upon  the 
defendant  to  show,  by  a  preponderance  of  testimony,  that  the  title 
was  not  in  the  plaintiff,  and  unless  he  has  done  so,  they  should  find 
for  the  plaintiff,  as  to  the  ownership  of  the  property.22 

S 1066.  Change  of  Possession — Only  Such  Change  Required  as  can 
Reasonably  be  Made  Where  Articles  Are  Heavy  and  Cumbersome. 
(a)  In  determining  what  it  takes  to  constitute  a  delivery  and 
change  of  possession  of  personal  property  upon  a  sale  of  it,  the 
jury  should  take  into  consideration  the  character  of  the  property, 
ami  the  situation  of  the  parties  at  the  time  of  the  sale;  and  in  this 
case,  if  the  jury  find,  from  the  evidence,  that  the  plaintiff  purchased 
the  property  in  question  in  good  faith,  and  for  a  valuable  consid- 
eration, before  the  execution,  introduced  in  evidence,  came  into  the 
hands  of  the  officer  (or  was  levied  upon  the  property),  that  plaintiff 
hail  done  everything  which  could  reasonably  be  done,  under  the 
circumstances,  by  way  of  taking  possession  of  the  property,  under 
the  sale  to  him,  then  the  property  would  not  be  liable  to  be  taken 
on  the  execution.23 

(b)  That  the  rule  of  law  requiring  a  change  of  possession  of  per- 
sonal property  upon  the  sale  of  it,  in  order  that  the  sale  shall  not  be 
fraudulent    as    against    creditors,    only    requires    such    a    change    of 

20— Webster  v.  Anderson,  42  Mi-h.         21— Smith    on    Fraud,    164;    Bump 
F.r,»;     Stern    v.    Henley,    6S    Mo.    262;      Fraud.    Con.    60. 
Geisendorff  v.    Eagles,   70   Ir.d.   418.         22— "Bergen  v.   Riggs,  34  111.  170. 

23— Bump      Fraud.      Conv.      165; 


§  1067.]  FRAUD    AGAINST    CREDITORS.  725 

possession  as  the  articles  sold  will  conveniently  and  reasonably  admit 
of,  and  in  the  case  of  heavy  and  cumbersome  articles,  an  actual  de- 
livery of  any  essential  part  thereof,  with  the  intention  of  delivering 
the  whole,  is,  in  law,  equivalent  to  a  delivery  of  the  whole  article 
sold.24 

§  1067.  Delivery  of  Personal  Property  Necessary — Assumption  of 
Ownership.  The  court  instructs  you,  that  although  a  delivery  of 
personal  property  sold  is  necessary  to  pass  the  title  thereto,  as 
against  the  creditors  of  the  seller,  yet  such  delivery  need  not  n 
sarily  be  an  actual  delivery;  but  anything  which  clearly  shows  a 
surrender  of  ownership  by  the  seller,  and  an  assumption  of  owner- 
ship by  the  purchaser,  accompanied  by  such  circumstances  as  would 
reasonably  advise  the  world  of  such  change  of  ownership,  is  all  that 
is  necessary  on  that  point.25 

§  1068.  Property  in  Possession  of  Third  Person — Symbolical  De- 
livery, (a)  The  court  instructs  the  jury,  that  where  personal  prop- 
erty is  sold,  which,  at  the  time  of  the  sale,  is  in  the  actual  possession 
or  under  the  control  of  a  third  person,  no  other  delivery  of  such 
property  is  necessary,  than  that  the  seller  and  purchaser,  together 
with  such  third  person,  should  agree  that  such  third  pei'son  should 
thereafter  keep  possession  of  the  property  for  the  purchaser,  and  lie 
does  so  keep  possession.26 

(b)  The  jury  are  instructed,  that  the  transfer  of  a  bill  of  lading. 
on  a  sale  or  pledge  of  the  property  shipped,  is  a  symbolical  delivery 
of  the  property  to  the  purchaser  or  pledgee,  and,  if  proved,  is  a 
good  delivery  of  the  property  as  against  the  creditors  of  the  ship- 
pers.27 

§  1069.  Possession  by  Agent.  That  a  party  may  be  in  possession 
of  personal  pi*operty,  by  his  agent  as  well  as  by  himself,  and  if  the 
goods  are  sold  in  good  faith,  and  for  a  valuable  consideration,  and 
the  possession  is  delivered  to  the  purchaser,  it  is  not  necessary  that 
he  should  remain  in  the  actual  possession  of  the  property  to  guard 
his  title;  but  such  possession  may  be  by  an  agent,  and  such  agent 
may  be  the  seller  of  property,  if  the  possession  is  such  as  reasonably 
to  advise  the  creditors  of  the  change  in  the  title  of  the  property.28 

§  1070.  Possession  of  Growing  Crops.  The  court  instructs  the 
jury,  that  upon  the  sale  of  personal  property,  where  the  goods  are 
purchased,  and  are  incapable  of  being  handed  over  from  one  to  an- 
other, there  need  not  be  a  manual  delivery;  and  in  the  case  of  the 
sale  of  standing  crops,  the  possession  will  be  in  the  vendee  until  it  is 

Cartright    v.    Phopn'x.    7    Cal.    281;  ?fi— Pirkard     v.     Hopkins,    17    111. 

Allen  v.  Smith.  10  Mass.  30S:  Chase  A  pp.  570. 

v.   Ralston,    30   Penn.    St.   539.  27—1    Pars,    on    Cnnt.    443;    Mich 

24—1   Pars,   on   Cont.    443.  Cent.    Rd.    Co.    v.    Phillips.    60    Til. 

25— Pickard    v.    Hopkins,     17    111.  190. 

App.  570.  28— Warner    v.     Carleton,     22     111 

415. 


726 


FORMS  OF  INSTRUCTIONS.  [§  1071. 


time    to   harvest   them,   and   until   then   he   is   not    required    to    take 
manual  or  actual  possession  of  them.29 

§  1071.  Taking  Possession  by  Vendee— Subsequent  Loan  to  Vend- 
or. If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  pur- 
chased the  property  in  good  faith,  and  paid  a  valuable  consideration 
therefor,  and  then  took  actual  possession  of  the  property  under  such 
sale,  and  continued  such  possession  long  enough  and  under  such 
circumstances  as  to  apprise  the  public  generally  of  a  change  in  the 
ownership  of  the  property,  then,  although  the  jury  should  find,  from 
the  evidence,  that  the  plaintiff  loaned  the  property  temporarily  to 
the  said  A.  B.,  this  would  not  alone  render  the  sale  fraudulent  or 
vnid  (or  not  presumptive  evidence  of  a  fraudulent  sale,  etc.),  as 
against  the  creditors  of  the  said  A.  B.30 

§  1072.  Fraudulent  Conveyance— Innocent  Purchaser— What  is 
Sufficient  Notice  of  Fraudulent  Intent,  (a)  The  deed  from  H.  to 
W.  shows  the  conveyance  by  said  H.  to  said  W.  of  whatever  interest 
he  might  have  or  acquire  in  the  estates  of  his  mother,  his  brothers 
and  sisters.  The  law  presumes  that  the  acquisition  of  these  interests 
by  said  W.  was  by  fraud.  The  defendant  K.  is  in  law  conclusively 
held  to  know  of  such  deed,  and  the  presumption  of  fraud  attaching 
to  the  acquisition  of  the  interests  secured.  You  will  determine 
whether  the  knowledge  of  K.  of  these  facts,  and  of  the  legal  pre- 
sumption attaching  to  the  same,  was  sufficient  to  put  a  reasonably 
prudent  man  upon  inquiry  as  to  whether  or  not  the  interest  in  his 
father's  estate  by  said  H.  in  said  deed  conveyed  was  procured  by 
fraud.  If  you  find  that  it  was,  and  that  such  inquiry,  if  made  and 
pursued  with  reasonable  diligence,  would  have  led  to  the  knowledge 
of  said  fraud,  then  you  are  instructed  that  said  K.  is  not  an  innocent 
purchaser.31 

(1))  The  court  instructs  the  jury  for  the  plaintiff,  that  although 
you  may  believe  from  the  evidence,  that  the  sale  by  P.  to  F.  was 
made  or  contrived  with  the  intent  or  purpose  to  delay  his  creditors, 
yet,  before  you  can  find  for  defendant  M.,  you  must  also  believe, 
from  a  preponderance  of  the  evidence,  that  R.  contrived  the  con- 
veyance, with  malice,  fraud,  covin,  collusion  or  guile,  for  the  purpose 
of  hindering  or  delaying  said  creditors. 

(<■)  The  court  instructs  the  jury  for  the  plaintiff,  that  an  inno- 
cent third  party  is  to  be  protected  in  his  rights  of  pui'chase  and 
payment  of  money,  and  in  this  case,  unless  you  believe,  from  the 
evidence,  that  the  plaintiff  confederated  with  P.  and  F.  and  pur- 
chased  the  goods  to  hinder  and  delay  P. 's  creditors  in  the  collection 
of  their  debts,  and  was  not  a  bona  fide  purchaser,  your  verdict  should 
he  for  the  plaintiff.32 

29— Ticknor  v.   McClelland,  84  111.  31— Fearv  v.   O'Neill,  149  Mo.  467, 

471.  50    S.   W.    918,   73   Am.    St.    Rep.  440. 

30— Cunningham    v.    Hamilton,    25  32 — Mathews     v.     Reinhardt,  149 

111.    228.  111.   635    (643),   37  N.   E.   85. 


§  1073.]  FRAUD    AGAINST    CREDITORS.  727 

(d)  The  court  instructs  the  jury,  that  when  a  transfer  of  prop- 
erty is  made,  with  intent  on  the  part  of  the  person  making  it  to 
hinder,  delay  or  defraud  his  creditors,  and  the  party  to  whcm  the 
transfer  is  made  has  knowledge  of  facts  and  circumstances  from 
which  such  fraudulent  intent  might  reasonably  and  naturally  be  in- 
ferred, by  an  ordinarily  cautious  person,  then  such  transfer  is  fraud- 
ulent and  void  as  against  the  rights  of  the  creditors.33 

§  1073.  Innocent  Purchaser — Notice — Participation  in  Fraud — 
Valid  as  to  Creditors,  (a)  The  plaintiff  was  not  a  creditor  of  X., 
but  a  purchaser;  and  if  he  had  knowledge  of  facts  sufficient  to  put 
an  ordinarily  prudent  man  on  inquiry,  such  knowledge  on  the  part 
of  Y.  would  be  sufficient  to  avoid  the  sale,  without  any  active  par- 
ticipation in  the  fraud  by  him.34 

(b)  And  in  this  case,  if  you  believe,  from  all  the  facts  and  cir- 
cumstances attending  the  sale  in  question,  as  shown  by  the  evidence, 
that  the  sale  was  bona  fide;  and  for  a  valuable  consideration,  and 
not  made  with  intent,  or  for  the  purpose  of  hindering,  delaying  or 
defrauding  the  creditors  of  the  said  A.  B.,  then  such  a  sale  is  as  valid 
and  binding  as  though  the  possession  of  the  property  had  passed  to 
the  plaintiff  at  the  time  of  the  sale.35 

§  1074.  Purchaser  must  be  Chargeable  with  Notice  or  Have 
Knowledge  of  Fraud,  (a)  The  jury  are  instructed,  as  a  matter  of 
law,  that  it  is  not  sufficient,  to  Vitiate  a  sale  of  personal  property, 
that  it  was  made  by  the  vendor  to  hinder,  delay  or  defraud  his 
creditors.  In  order  to  vitiate  such  sale  as  against  the  purchaser,  he 
must  have  had  knowledge  or  notice  of  such  intent  on  the  part  of  the 
seller.36 

(b)  The  court  instructs  you,  that  while  our  statute  declares,  every 
sale  or  assignment  which  is  made  with  intent  to  defraud,  hinder  or 
delay  creditors  in  the  collection  of  their  debts  void,  still  such  sale 
or  assignment  will  not  be  void  as  against  the  purchaser,  unless  he 

33— Boies    v.    Henney,    32    111.    130.  Rich,    61    Mich.    97,    27    N.    W.    867. 

34 — Allen     V.     Stingel     et     al.,     95  The    plaintiff    did    not    claim    upon 

Mich.   195,   54  N.  W.   880.  the   trial    that    when    he    made   the 

"The  law  does  not  prohibit  hon-  purchase  of  the  stock,  he  was  a 
est  sales  of  goods  upon  credit,  even  creditor  of  X.  This  being  so,  de- 
though  the  seller  is  in  debt  at  the  fendant  was  entitled  to  have  the 
time.  It  cannot  be  said  that  the  above  request  given.  Hough  v. 
giving  of  negotiable  notes  was  not  Dickinson,  58  Mich.  89,  24  N.  W. 
a  sufficient  consideration  for  a  sale.  809;  Bedford  v.  Penny,  58  Mich, 
and  it  is  very  clear  that  a  part  of  424,  25  N.  W.  381." 
the  purchase  price  was  paid  by  35— Crawford  v.  Kirksey,  55  Ala. 
plaintiff.  Dixon  v.  Hill,  5  Mich.  282;  Robinson  v.  Uhl,  6  Neb.  328; 
404;  Lewis  v.  Rice,  61  Mich.  97,  27  Morgan  v.  Bogue,  7  Neb.  429;  Mo- 
NT.  W.  867;  Wait  v.  Kellogg,  63  Cully  v.  Swackhamer,  6  Oreg.  438. 
Mich.  138,  30  N.  W.  80.  These  re-  36— Miller  v.  Kirby.  74  111.  242; 
quests,  except  the  above,  assume  Hatch  v.  Jordan.  74  111.  414;  Pres- 
certain  facts  to  exist,  when  there  ton  v.  Turner,  36  la.  671;  Drum- 
is  evidence  from  which  the  jury  mond  v.  Couse  et  al.,  39  la.  442: 
mie-ht  make  a  different  finding.  Loss  v.  Wilkinson,  110  N.  Y.  195. 
Under  such  circumstances,  they  18  N.  E.  99,  1  L.  R.  A.  250,  4  L. 
should    not    be    given.      Lewis    v.  R.  A.   353. 


728  FORMS  OF  INSTRUCTIONS.  [§  1075. 

knew,  or  had  good  reason  to  suppose,  that  the  sale  was  made  by  the 
seller  with  intent  to  defraud  his  creditors,  or  to  hinder  or  delay  them 
in  the  collection  of  their  debts.37 

(c)  You  are  instructed  that  to  impeach  a  sale  of  personal  prop- 
erty upon  the  ground  of  a  fraudulent  intent  on  the  part  of  the  seller, 
it  is  not  necessary  to  establish  a  fraudulent  intent  on  the  part  of  the 
purchaser;  it  will  be  sufficient  if  the  evidence  shows  that  he  knew 
of  the  fraudulent  intent  of  the  seller,  or  had  notice  of  such  facts  as 
would  have  put  a  man  of  ordinary  prudence  upon  inquiry,  which 
would  have  led  to  a  knowledge  of  the  fraudulent  purpose  of  the 
seller.38 

§  1075.  Fraudulent  Intent  and  Knowledge  of  Purchaser  Lacking — 
Adequacy  of  Consideration  Immaterial.  If  the  jury  believe,  from 
the  evidence,  that  the  plaintiff  actually,  and  in  good  faith,  pur- 
chased the  property  in  question  from  L.  H.,  without  any  fraudulent 
intent  on  his  part,  and  with  no  knowledge  of  a  fraudulent  intent  on 
the  part  of  his  grantor,  then  it  is  wholly  immaterial  whether  or  not 
the  consideration  paid,  either  in  money  or  notes,  was  equal  to  the 
value  of  the  property  so  purchased  by  plaintiff.39 

§  1076.  Creditor  not  Affected  by  Knowledge,  When.  The  jury  are 
instructed,  that  when  a  person  purchases  goods  with  the  knowledge 
that  his  vendor  intends  by  the  sale  to  defraud  his  creditors,  or  to 
hinder  and  delay  them  in  the  collection  of  their  debts,  such  pur- 
chaser will  not  be  affected  if  he  takes  the  goods,  in  good  faith,  in 
payment  of  an  honest  debt.  A  creditor  violates  no  rule  of  law  when 
he  takes  payment  of  his  debt,  though  he  knows  that  other  creditors  are 
thereby  deprived  of  all  means  of  obtaining  satisfaction  of  their  own 
equally  meritorious  claims.40 

§  1077.  Insolvency— Knowledge  of  Purchaser.  If  the  jury  believe 
from  the  evidence   that  S.  was  insolvent,  and  that  L.  knew  that  S. 

was  insolvent,  and  with  such  knowledge  gave  to  S.  the  note  for  $ ■ 

payable  on  or  before  two  years  after  date,  as  a  part  consideration  of 
the  purchase,  then  the  sale  of  the  stock  of  goods  to  interpleader  was 
fraudulent  in  law,  and  your  verdict  will  be  for  plaintiff  on  the  in- 
terplead1 

§  1078.  Sale  on  Credit— Application  of  Proceeds.  The  jury  are 
further  instructed,  as  a  matter  of  law,  that  in  the  ease  of  an  absolute 
and  unconditional  sale  of  goods,  the  fact  that  the  vendor  was  in- 
debted at  the  time,  that  the  sale  was  on  credit,  and  that  notes  taken 

37— Bump  Fraud  Conv.  195;  Pres-  38— Jones  v.   Hetherington,  45  la. 

ton    v.    Turner,    39   la.    671;    Gentry  681;  Zuver  v.  Lyons,  40  la.  510. 

v.    Robinson,    15   Mo.    260;    Lipperd  39— Campbell  v.    Holland,  22  Neb. 

v.   Edwards.    39   Ind.   165;    Hicks   v.  582,   35  N.  W.  871   (879). 

Stone,     13     Minn.     434;     Flueerel     v.  40— Grav  v.    St.    John.    35   111.    222. 

Henschel,    7    N.    D.    276,    74    N.    "W.  41— J.    Deere    Plow    Co.    v.    Sulli- 

996,   66  Am.    St.   Rep.   642.  van,    158    Mo.    440,    59    S.    W.    1005 

(1009). 


§  1U79.J  FRAUD    AGAINST    CREDITORS.  729 

for  the  unpaid  price  were  to  be  used  in  the  payment  of  his  debts, 
will  not  alone  establish  fraud  in  such  sale  as  against  his  creditors.'12 

§  1079.  Right  to  Prefer  Creditors,  (a)  The  jury  are  instructed, 
that  a  person  who  is  indebted  and  mi  able  to  pay  all  his  debts  in  full, 
has  a  right  to  prefer  any  one,  or  more,  of  his  creditors  to  the  ex- 
clusion of  all  the  others;  and  in  the  payment  of  a  bona  fide  indebted- 
ness to  one  of  his  creditors,  a  debtor  may  exhaust  the  whole  of  his 
property,  so  as  to  leave  nothing  for  the  other  creditors,  who  are 
equally  meritorious.43 

(b)  And  in  this  case,  if  you  believe,  from  the  evidence,  that  M. 
was  lawfully  indebted  to  defendant,  and  finding  that  he  could  not 
pay  all  his  debts,  transferred  the  goods  in  controversy  to  defendant, 
in  payment,  or  in  part  payment,  of  such  indebtedness,  then,  upon  the 
question  of  the  ownership  of  the  goods,  you  should  find  a  verdict 
for  the  defendant,  unless  you  further  believe,  from  the  evidence, 
that  the  defendant  had  notice  of  the  fraud  practiced  by  M.  in  ob- 
taining possession  of  the  goods,  if  such  fraud  has  been  proven.44 

§  1080.  When  Fraudulent — Creditor  May  Take  Payment  or  Se- 
curity in  Preference  to  Others  if  Acting  in  Good  Faith.  In  order  to 
avoid  the  conveyance  on  the  ground  of  fraud,  there  must  be  a  real 
design  on  the  part  of  the  debtor  to  prevent  the  application  of  his 
property,  in  whole  or  in  part,  to  the  satisfaction  of  his  debts.  A 
creditor  violates  no  rule  of  law  when  he  takes  payment  or  security 
for  his  demand,  if  done  in  good  faith,  though  others  are  thereby 
deprived  of  all  means  of  obtaining  satisfaction  of  their  equally  meri- 
torious claims.45 

§  1081.  Preference  of  Creditors — Insolvency — Intent — Payment  of 
Antecedent  Debt,  (a)  If  the  jury  believe  from  the  evidence  that 
E.,  although  insolvent  or  in  failing  circumstances,  made  an  absolute 
sale  of  his  property  to  E.  in  payment  of  an  antecedent  debt  by  way 
of  preference  over  other  creditors — the  debt  being  honestly  due,  and 
the  price  or  consideration  received  being  fair  and  adequate,  and  no 
interest  being  reserved  by  E. — his  mere  fraudulent  intent  does  not 
vitiate  the  conveyance,  because  the  act  itself  was  legal,  and  fraud 
without  damage  gives  no  right  of  action ;  and  these  concurrent  facts 
rebut  all  inferences  that  might  be  drawn  from  attendant  badges  of 
fraud,  and  impart  validity  to  the  conveyance  as  an  allowable  prefer- 
ence to  the  said  Ely. 

(b)  If  the  jury  believe  from  the  evidence  that  E.,  although  af 
the  time  insolvent,  or  in  failing  circumstances,  made  an  absolute  sale 
of  the  property  in  controversy  to  Ely  in  payment  of  an  antecedent 
debt,   by   way   of   preference   over   other   creditors;    the    debt   being 

42 — Miller  et   al.   v.   Kirby,   74  111.  v.    Tanner,   49  Mass.   411:    Kemp  v. 

242.  Walker,    16    Ohio    118;    Hubbard    v. 

43— Kitchen     v.      McCloskey,     150  Taylor,    5   Mich.    155. 

Pa.  376,  24  Atl.  688,  30  Am.  St.  Rep.  44— Butters  v.  Hau.srhwout,  42  I1L 

811;   Bump  Fraud.  Conv.  183;   State  18. 

v.   Laurie,   1   Mo.   App.   371;    Green  45— Gray  v.    St.   John,   35  111.   222. 

See  note  50. 


730 


FORMS  OF  INSTRUCTIONS. 


[§  1081. 


honestly  due,  and  the  price  or  consideration  received  being  fair  and 
adequate,  and  no  interest  being  reservei  by  E.,  his  mere  fraudulent 
intent  does  not  vitiate  the  conveyance,  because  the  act  was  legal, — 
then  the  jury  will  find  for  the  claimant,  Ely. 

(c)  If  the  jury  believe  from  the  evidence  that  E.  paid  Ely  an 
antecedent  debt  by  conveying  the  property  to  him;  that  the  debt  was 
honestly  due,  and  was  not  materially  less  than  the  value  of  the  prop- 
erty conveyed,  and  no  interest  or  benefit  was  reserved  to  E. — then  the 
conveyance  was  lawful  and  is  not  affected  by  fraudulent  attempt  on 
the  part  of  both  the  parties  thereto;  then  they  should  find  for  the 
claimant,  Ely. 

(d)  If  the  jury  believe  from  the  evidence  that  E.,  the  insolvent 
debtor,  paid  an  antecedent  debt  by  conveyance  of  his  property  to  the 
creditor  Ely,  if  the  debt  was  honestly  due,  and  not  materially  less 
than  the  value  of  the  property  conveyed,  and  no  interest  or  benefit 
was  reserved  to  the  debtor  E.,  then  the  conveyance  was  lawful,  and 
the  jury  will  find  for  the  claimant  Ely,  although  a  fraudulent  intent 
may  have  existed  at  the  time  on  the  part  of  one  or  both  of  the 
parties  thereto.46 


46— Bray  et  al.  v.  Ely,  105  Ala. 
553,  17  So.  180. 

"The  principles  which  govern  the 
determination  of  the  validity  of 
sales  or  conveyances  made  by  an 
insolvent  debtor,  or  a  debtor  in 
failing-  circumstances,  to  a  creditor, 
in  payment  of  a  pre-existing  debt, 
having  notice  of  his  condition  or 
insolvency,  when  the  sale  or  con- 
veyance is  attacked  for  fraud  by 
other  creditors,  have  been  of  such 
frequent  consideration  and  decision 
that  it  would  seem  a  necessity  for 
their  reiteration  could  scarcely  oc- 
cur. So  far  as  now  relevant  in 
Bank  v.  Smith,  93  Ala.  97,  9  So., 
548,  they  were  concisely  and  clear- 
ly summarized  by  Chief  Justice 
Stone:  An  insolvent  debtor  may 
select  which  of  his  creditors — one 
or  more— he  will  pay,  and  pay  them 
in  full  and  thus  disable  himself  to 
pay  the  others  anything;  and  it 
makes  nn  difference  if  the  one  or 
more  preferred  creditors  know  the 
of  the  transaction  will  be  to 
deprive  the  debtor  of  all  means 
with  which  to  pay  his  other  debts. 
Nor  Is  the  wish,  motive  or  inten- 
tion of  the  debtor  a  material  in- 
quiry, if  the  requisite  conditions 
exist.  Those  conditions  in  a  case 
like  the  present  are:  First,  the 
debt  must  be  bona  fide  and  en- 
ble,  not  simulated;  second, 
vment  must  be  absolute,  and 
if  made  in  property  must  not  be 
materially   in   excess    of   the   debt; 


third,  no  pecuniary  benefit  or  con- 
sideration of  value  must  inure  or 
be  secured  to  the  debtor.'  The  sev- 
eral instructions  given  to  the  jury 
on  the  request  of  the  appellee  state 
these  principles  substantially, 
though  in  varying  language.  Some, 
if  not  all  of  them  may  be  subject 
to  the  objection  that  they  are  ar- 
gumentative, now  urged  by  the 
appellants,  and  for  that  reason 
could  have  been  properly  refused 
by  the  court  below.  There  is  no 
error  in  the  refusal  of  an  argu- 
mentative instruction,  for  the  rea- 
son that  instructions  should  be 
clear  and  concise,  presenting  only 
the  point  or  matter  of  law  on 
which  the  party  presenting  them 
may  rely.  If  the  party  requesting 
them  will  not  so  frame  the  in- 
struction, but  passing  beyond  the 
presentation  of  the  point  or  mat- 
ter of  law,  injects  an  argument  of 
the  case,  the  trial  court  does  not 
err  in  the  refusal  of  the  instruc- 
tion. But  in  our  practice  the  giv- 
ing or  refusal  of  such  instructions 
rests  largely  in  the  discretion  of 
the  trial  court,  which  is  not  re- 
visable  on  error.  Whilden  v.  Bank, 
64  Ala.  1.  "We  do  not  regard  either 
of  the  instructions  as  assuming 
as  proved  or  as  existing,  any  fact, 
either  disputed  or  dependent  on 
the  weight  or  credibility  of  the 
evidence.  If  it  was  apprehended 
that  either  of  them  gave  an  undue 
prominence    to    any    phase    of    the 


§ilOS2.J  FRAUD   AGAINST   CREDITORS.  731 

§  1082.  Fraudulent  Intent — Fraud  Must  be  Proven — Preference  of 
Creditor,  (a)  The  court  instructs  the  jury  that  any  fraudulent  in- 
tent that  M.  might  have  had  in  making-  the  deed  of  trust  in  evidence  is 
not  enough  to  vitiate  it.  It  devolves  upon  the  defendant  in  this  case 
to  show  by  tangible  evidence  that  the  plaintiff,  F.,  participated  in  such 
fraudulent  intent,  if  any,  and  purposely  aided  M.  to  defeat  his  other 
creditors  by  covering  up  the  property  of  M.  in  some  improper  way,  to 
the  use  and  benefit  of  the  said  M. 

(b)  The  jury  are  instructed  that,  although  fraud  need  not  be 
proven  by  direct  testimonj',  and  may  be  inferred  from  circumstances, 
still  it  will  never  be  presumed,  but  must  be  proven  by  some  tangible 
and  substantial  facts  in  evidence,  from  which  it  may  be  fairly  in- 
ferred; and  in  this  case  the  burden  is  on  the  defendant  to  show  by 
a  preponderance  of  the  testimony  that  M.  fraudulently  executed  the 
chattel  deed  of  trust  offered  in  evidence,  and  that  the  plaintiff,  F., 
participated  in  such  fraud;  and,  if  the  facts  and  circumstances 
shown  in  evidence  are  as  consistent  with  an  honest  purpose  on  the 
part  of  said  F.  as  with  the  dishonest  one,  then  it  is  your  duty  to 
believe  his  purpose  honest. 

(c)  The  court  instructs  the  jury  that,  even  though  M.  was  in  fail- 
ing circumstances,  he  had  a  right  to  prefer  any  one  or  more  of  his 
creditors  to  the  exclusion  of  the  rest,  although  his  doing  so  operated 
to  defeat  his  other  creditors  in  the  collection  of  their  claims;  and  if 
the  plaintiff,  F.,  took  the  deed  of  trust  in  evidence  for  the  purpose  of 
securing  the  debts  therein  named,  and  did  not  know  of  and  partici- 
pate in  some  fraudulent  design  of  the  said  M.,  if  he  had  any,  the 
deed  of  trust  is  valid,  and  you  must  find  for  the  plaintiff.47 

§  1083.  Fraudulent  Preference— Bankruptcy — Preponderance  De- 
fined— Insolvency  Defined — How  Proven,  (a)  In  order  to  entitle 
the  plaintiff  to  recover  in  this  action,  he  must  establish  by  a  pre- 
ponderance of  the  evidence,  first  that  the  S.  G.  Co.  was  at  the  time 
of  the  transactions  complained  of,  insolvent;  second,  that  the  result 
of  the  transfers  of  money  and  property  was  to  give  to  the  defendants 
a  greater  percentage  of  their  claim  than  any  other  creditor  of  the 
bankrupt  of  the  same  class;  third,  that  the  defendants,  or  one  of 
them,  had  reasonable  cause  to  believe  that  this  result  was  intended; 
and  fourth,  that  such  transactions  occurred  within  four  months  of 
the  filing  of  the  petition  in  bankruptcy;  and  in  order  to  justify  you 
in  finding  a  verdict  for  the  plaintiff,  each  and  all  of  the  propositions 
must  be  established  by  a  preponderance  of  the  evidence.  By  a  pre- 
ponderance of  the  evidence  is  meant  the  greater  weight  of  the  evi- 
dence— that  which  is  the  more  convincing  of  its  truth.  It  is  not 
necessarily  determined  by  the  number  of  witnesses  for  or  against   a 

evidence    or   of    the    case,    the   ap-     quest  for  explanatory  or  additional 
pellants      should     have      protected     instructions."    See  note  50. 
themselves    from    injury   hy    a   re-        47— Feary   v.   O'Neill,  149  Mo.  4<>7. 

50   S.   W.    918,   73  Am.   St.   Rep.   440. 


732  FORMS  OF  INSTRUCTIONS.  [§  1084. 

proposition,  although  all  other  things  being  equal,  it  may  be  so  de- 
termined. 

(b)  A  person  or  corporation  is  insolvent  whenever  the  aggregate 
of  its  property,  exclusive  of  any  property  conveyed,  transferred,  con- 
cealed or  removed,  or  permitted  to  be  concealed  or  removed  with 
intent  to  defraud,  hinder  or  delay  creditors,  is  not,  at  a  fair  valua- 
tion, sufficient  in  amount  to  pay  its  debts.48 

(c)  The  court  instructs  the  jury  that  B.'s  deposition  as  to  his 
pecuniary  condition  is  evidence  which  may  be  considered  on  the 
question  of  his  solvency,  and  insolvency  does  not  have  to  be  shown 
by  a  judgment  and  return  of  "No  property."49 

§ 1084.  Preference  of  Creditors  of  an  Insolvent  Corporation — 
Series,  (a)  The  court  instructs  you  that  a  corporation  in  failing  cir- 
cumstances has  a  right  to  prefer  one  or  more  creditors  over  other  cred- 
itors, and  to  that  end  execute  a  chattel  deed  of  trust,  securing  one  or 
more  of  its  creditors  to  the  exclusion  of  others,  and  such  conveyance 
is  not  rendered  invalid  because,  in  effect,  it  hinders  and  delays  cred- 
itors not  so  preferred. 

(b)  The  court  instructs  you  that  a  corporation  in  failing  circum- 
stances may  prefer  one  or  more  creditors  in  preference  to  others 
in  discharging  its  obligations,  if  such  preference  is  made  in  good 
faith,  while  the  property  of  the  company  is  in  its  possession;  and  the 
mere  insolvency  of  a  corporation  does  not,  of  itself,  transfer  its  as- 
sets into  a  trust  fund  for  the  benefit  of  all  its  creditors;  nor  can  it 
be  said  that  such  a  chattel  deed  of  trust,  though  it  conveys  all  the 
property  of  the  corporation  to  a  trustee  for  the  benefit  of  particular 
creditors  in  preference  to  other  creditors,  is  an  assignment,  within  the 
meaning  of  the  statute  of  assignments,  for  the  benefit  of  creditors. 
There  is  a  clear  distinction  between  such  a  conveyance  by  deed  of 
trust,  and  an  assignment  for  the  benefit  of  creditors  generally.  A 
corporation  may  convey  its  property  in  trust  by  chattel  deed  of 
trust,  preferring  one  or  more  creditors  in  preference  to  others,  pre- 
cisely the  same  as  an  individual  or  partnership  may  do. 

(e)  The  court  further  instructs  you  that  if  you  believe  and  find 
from  the  evidence  that  the  debts  secured  in  favor  of  R.,  and  in  favor 
of  L.,  by  the  terms  of  said  deed  of  trust,  read  in  evidence,  were  both 
bona  fide  indebtedness  for  money  actually  lent  in  good  faith  to  the 
P.  R.  &  S.  Company,  to  the  full  extent  of  the  claims  secured  to  said 
R.  and  said  L.,  then  the  mere  fact  that  R.  was  one  of  the  creditors 
and  an  officer  of  the  P.  R.  &  S.  Company,  and  that  0.  was  another 
director  and  officer  of  said  company,  and  was  interested  in  the  in- 
debtedness secured  in  favor  of  said  L.,  would  not  affect  the  validity 
of  said  deed  "i'  trust. 

(d)  The  court  instructs  you  that  all  the  instructions  given  in  this 
case  are  to  be  read  and  considered  together  in  determining  your  ver- 

48— Wilkinson  v.  Anrlerson-Tnvlor  40— Williamson  v.  Tyson,  105  Ala. 
Co.,   28  Utah   346,  79  Pac.  46   (47).         644,    17    So.    336    (338). 


§1084.]  FRAUD    AGAINST   CREDITORS.  733 

diet,  as  each  and  all  of  said  instructions  constitute  a  part  of  the  law 
applicable  to  the  case. 

(e)  Under  the  evidence  the  directors  of  the  P.  R.  &  S.  Company 
could  hold  a  meeting  of  the  board  of  directors  at  any  time  or  place 
when  all  the  directors  were  present;  and  if  you  believe  and  find  that 

on ,  the  board  of  directors  of  that  company  was  composed  of  0. 

and  R.,  and  that  they  met  as  a  board  al  the  residence  of  said  1'.,  and 
unanimously  adopted  a  resolution  that  a  deed  be  made  and  executed  by 
the  officers  of  the  company  conveying  to  said  J.  H.  G.  all  the  prop- 
erty of  said  company,  in  trust,  for  the  purpose  of  selling  same,  and 
applying  the  proceeds  to  the  payment  of  the  debts  of  said  company 
therein  mentioned,  which  deed  is  the  one  read  in  evidence,  any  subse- 
quent action  or  conduct  by  said  P.,  in  the  direction  of  a  repudiation 
of  his  vote  at  said  board  meeting  in  favor  of  the  execution  of  said 
deed,  wTas  ineffectual  to  invalidate  his  said  vote  or  the  action  of  said 
board. 

(f )  The  court  instructs  the  jury  that  whenever  the  directors  of  an 
insolvent  corporation  attempt,  by  their  own  votes,  to  prefer  themselves 
as  creditors  of  such  corporation,  the  burden  of  showing  that  the  debts 
of  said  directors  so  preferred  are  actual  and  bona  fide  is  cast  upon 
the  persons  claiming  the  benefit  of  such  act ;  and  unless  the  jury 
believe  from  the  evidence  in  the  case,  that  the  relator  has  shown,  by 
a  preponderance  of  evidence,  that  the  debts  due  R.  and  L.,  set  out  in 
the  deed  of  trust  read  in  evidence,  were  the  actual  and  bona  fide 
indebtedness  of  the  P.  R.  &  S.  Co.,  then  the  jury  must  find  that  the 
said  deed  of  trust  was  fraudulent;  and  if  they  believe  from  the  evi- 
dence that  the  relator  herein  in  the  way  participated  in  such  fraud- 
ulent transaction,  if  the  jury  believe  it  was  fraudulent,  then  the  jury 
must  find  for  defendants. 

(g)  The  court  instructs  the  jury  that  whenever  the  directors  of 
an  insolvent  corporation  attempt,  by  their  own  votes  to  prefer  them- 
selves as  creditors  of  such  corporation,  the  law  presumes  that  such 
acts  of  directors,  in  attempting  to  prefer  themselves,  is  a  fraudulent 
act,  and  the  burden  of  showing  that  it  was  honest  and  fair  is  cast 
upon  the  persons  claiming  the  benefit  of  such  act,  to  show,  by  a 
preponderance  of  evidence,  that  such  preference  was  honest,  and  that 
such  directors  acted  in  good  faith;  and  unless  the  jury  believe,  from 
the  evidence  in  this  case,  that  the  relator  has  shown,  by  a  preponder- 
ance of  evidence,  that  R.  and  O.  acted  in  perfect  good  faith  and  hon- 
esty in  voting  to  execute  the  deed  of  trust  referred  to  in  the  evidence, 
then  the  jury  must  find  that  said  deed  of  I  rust  was  fraudulent,  and, 
if  they  believe  from  the  evidence  that  the  relator  heroin  in  any  way 
participated  in  such  fraudulent  transact  ion,  if  the  jury  believe  it 
was  fraudulent,  then  the  jury  must  find  for  defendants. 

(h)  The  court  instructs  the  jury  that  the  knowledge  of  G.,  the 
trustee  in  said  chattel  deed,  in  respect  to  the  unlawful  scheme  and 
purposes  of  said  0.  and  R.,  if  such  there  were,  is  imputable  to  the 
creditors  named  therein,  and  they  are  affected  thereby. 


734  FORMS  OF  INSTRUCTIONS.  [§  1085. 

The  court  instructs  the  jury  that  if,  from  all  the  evidence, 
they  believe  that  the  chattel  deed  herein  was  not  made  and  executed 
in  good  faith,  their  verdict  should  be  for  the  defendants. 

(i)  The  court  instructs  the  jury  that  if  they  believe  from  the 
evidence  that  the  resolution  set  out  in  the  minutes  of  the  meeting, 
December  19,  1895,  authorizing  the  execution  of  a  trust  deed  therein 
referred  to,  was  adopted  by  the  board  of  directors  at  such  meeting 
then  the  jury  are  instructed  that  there  was  no  authority  on  the  part 
of  the  directors  to  execute  the  deed  of  trust  in  question. 

(j)  The  court  instructs  the  jury  that  it  is  not  necessary  to  es- 
tablish a  fraudulent  intent  by  direct  and  positive  evidence,  but  that 
an  intent  to  defraud  may  be  established  by  inference,  in  the  same 
way  as  any  other  fact,  by  taking  into  consideration  the  acts  of  the 
parties  and  all  the  facts  and  circumstances  of  the  case.50 

§  1085.  Preferring  Wife  as  Creditor — Husband  May  Give  to  Wife 
When,  (a)  A  husband  indebted  to  his  wife,  may  prefer  her  to  his 
other  creditors,  and  make  a  valid  appropriation  of  his  property  to 
pay  her  claim,  even  though  he  is  thereby  deprived  of  the  means  to 
pay  other  debts.51 

(b)  A  husband  out  of  debt,  or  when  it  does  not  injure  existing 
creditors,  may  settle  property  on  his  wife,  either  by  having  it  con- 
veyed directly  to  her,  or  to  another  in  trust  for  her,  and  subsequent 
creditors  cannot  reach  it,  and  the  money  in  question,  if  the  jury  be- 
lieve, from  the  evidence,  that  it  was  realized  from  the  sale  of  such 
property,  will  be  hers.52 

§  1086.  Conveyances  Between  Husband  and  Wife — Presumption — 
Scrutinized  Closely,  (a)  The  jury  are  instructed  that  transactions 
between  husband  and  wife  in  relation  to  the  sale  or  transfer  of  prop- 
erty from  one  to  the  other,  whereby  creditors  are  prevented  from 
collecting  their  just  clues  should  be  scrutinized  very  closely,  and  the 
bona  fides  of  such  transaction  should  be  established  satisfactorily,  by 
a  preponderance  of  the  evidence. 

(b)  The  jury  are  instructed  that,  in  a  contest  between  the  wife 
and  the  creditors  of  her  husband  in  regard  to  property  transferred 
by  him  to  her,  there  is  a  presumption  against  her,  which  she  must 
overcome  by  affirmative  proof,  and  prove  by  a  preponderance  of  the 
evidence  the  bona  fides  of  the  sale.53 

(c)  Should  you  find,  as  claimed  by  the  plaintiff,  M.  A.,  that  some 

50 — Stato  ex  rel.   Grimm  v.   Man.  the    common    law    would    not    be 

Rubber  Mfs.  Co.  et  al.,  149  Mo.  181,  proper. 

50   s.    W.   321   (329).  51— Ferguson     v.     Spear,     65    Me. 

It   will,   of  course,  be  understood  277;   Hill  v.   Bowman,  35  Mich.  191; 

that    such    a    preference    as    is    de-  Riley  v.   Vaughan,    116    Mo.   169,    22 

I   in  these  instructions  would  S.  W.  707,   38  Am.   St.   586. 

be  a  violation   of  the  U.    S.   Bank-  52— Lincoln  v.  McLaughlin,  74  111. 

ruptcy   Act,   and   would   be  an   act  11;   Adone  v.  Spencer,  62  N.  J.  Eq. 

of   bankruptcy.     Many  states  have  782,    49    Atl.    10,    90    Am.    St,    Rep. 

insolvency   laws   which    render  the  484,   56  L.   R.  A.   817. 

■  nces   of  creditors  fraudulent  53— Carson    v.'    Stevens,    40    Neb. 

and    such    instructions   based  upon  112,   58   N.   W.   845,   42   Am.    St.    661; 


§  1086.] 


FRAUD    AGAINST    CREDITORS. 


735 


time  in  1897,  at  the  time  when  her  husband  was  free  from  indebted- 
ness, that  he  made  the  transfer  and  gave  her  all  his  property,  and 
that  the  transfer  was  made  in  good  faith,  and  was  made  without 
intent  to  defraud  creditors  then  existing  or  subsequent  creditors  of 
the  said  C.  A.,  as  claimed  by  the  plaintiff  in  this  action,  in  that  event 
you  should  find  for  the  plaintiff  on  all  the  issues.54 

(d)  You  are  instructed  that  if  you  believe,  from  the  evidence  in 
this  case,  that  the  purchase  price  of  the  land  in  controversy,  or  any 
portion  of  the  same,  was  paid  for  either  with  the  separate  estate  of 
N.  L.  C,  or  community  estate  of  N.  L.  C.  and  M.  J.  C,  but  at  the 
time  of  the  purchase  of  the  said  land,  and  the  payment  therefor,  it 
was  the  intention  and  the  purpose  of  the  said  N.  L.  C.  and  M.  J.  C. 
that  the  land  so  bought  should  be  and  become  the  separate  estate  of 
M.  J.  C,  then  you  are  instructed  (the  plaintiff,  W.,  having  notice  of 
the  claim  of  M.  J.  C.  before  his  purchase)  that  the  law  would  recog- 
nize and  protect  the  land  so  bought  as  the  separate  estate  of  M.  J. 
C,  and  if  you  find  the  facts  to  be  so  you  will  find  for  the  defendant, 


Bank  v.  Bartlett,  8  Neb.  328,  1  N. 
W.  199;  Stevens  v.  Carson,  30 
Neb.   544.   46   N.   W.   655. 

54 — Aldous  v.  Olverson,  17  S.  D. 
190.    95    N.    W.    917    (920). 

"One  who  is  not  a  creditor  at  the 
time  the  conveyance  is  made,  so 
long-  as  the  conveyance  is  not  with- 
held from  record,  and  was  not 
made  with  the  intent  of  defraud- 
ing subsequent  creditors,  is  not 
prejudiced  by  the  conveyance. 
Schreyer  v.  Scott,  134  U.  S.  405, 
10  Sup.  Ct.  579,  33  L.  Ed.  955;  Todd 
v.  Nelson,  109  N.  T.  316,  16  N.  E. 
360;  Cole  v.  Brown,  114  Mich.  396, 
72  N.  W.  247,  68  Am.  St.  491; 
Trebilcock  v.  Big  Mo.  Min.  Co., 
9  S.  D.  206,  68  N.  W.  330;  Smith  v. 
Vodges,  92  U.  S.  183,  23  L>.  Ed. 
481;  Moore  v.  Page,  111  U.  S.  117, 
4  Sup.  Ct.  388,  28  L.  Ed.  373;  Jones 
v.  Clifton,  101  IT.  S.  225,  25  L.  Ed. 
908;  Brundage  v.  Cheneworth,  101 
Towa  256,  70  N.  W.  211,  63  Am.  St. 
382." 

"In  the  latter  case  the  Supreme 
Court  of  Iowa,  after  a  full  review 
of  the  cases  decided  by  that  court, 
lays  down  the  rule  applicable  to 
this  class  of  cases  as  follows:  'We 
think  the  correct  rule  is:  (1)  A 
conveyance  which  is  merely  volun- 
tary, and  when  the  grantor  has 
no  fraudulent  view  or  intent,  can- 
not be  impeached  by  a  subsequent 
creditor.  (2)  A  conveyance  actual- 
ly and  intentionally  fraudulent  as 
tn  existing  creditors,  as  a  general 
rule,  cannot  be  impeached  by  sub- 
sequent creditors.  (3)  Tf  a  convey- 
ance is  actually  fraudulent  as  to 
existing  creditors,  and   merely  col- 


orable, and  t,he  property  is  held 
in  secret  trust  for  the  grantor,  who 
is  permitted  to  use  it  as  his  own, 
it  will  be  set  aside  at  the  in- 
stance of  subsequent  creditors.  The 
second  rule  above  laid  down  is  sub- 
ject to  some  exceptions,  among 
which  may  be  mentioned  cases  in 
which  the  conveyance  is  made  by 
the  grantor  with  the  express  intent 
and  view  of  defrauding  those  who 
may  thereafter  become  his  cred- 
itors; cases  wherein  the  grantor 
makes  the  conveyance  with  the 
express  intent  of  becoming1  there- 
after indebted;  cases  of  voluntary 
conveyances  when  the  grantor  pays 
existing  creditors  by  contracting 
other  indebtedness  in  a  like 
amount,  and  wherein  the  subse- 
quent creditors  are  subrogated  to 
the  rights  of  the  creditor  whose 
debts  their  means  have  been  used 
to  pay;  cases  in  which  one  makes 
a  conveyance  to  avoid  the  risks 
of  losses  likely  to  result  from  new 
business  ventures  or  speculations.' 
It  will  be  noticed  by  the  second 
rule  laid  down  that  'a  conveyance 
actually  and  intentionally  fraudu- 
lent as  to  existing  creditors,  as  a 
general  rule,  cannot  he  impeached 
by  subsequent  creditors.'  though 
it  is  subject  to  exceptions,  among 
which  may  be  mentioned  cases  in 
which  the  conveyance  is  made  by 
the  grantor  'with  the  express  in- 
tent and  view  of  defrauding  those 
who  may  thereafter  become  his 
creditors,  or  cases  wherein  the 
grantor  makes  the  conveyance 
with  the  express  intent  of  becom- 
ing thereafter  indebted.'  " 


736  FORMS  OF  INSTRUCTIONS.  [§  1087. 

whether  said  property  was  purchased  with  the  separate  estate  of 
M.  J.  C.  or  not.55 

§  1087.  Sale  to  Relatives  not  Necessarily  Fraudulent — Right  to 
Prefer  Creditors,  (a)  A  man  has  a  perfect  right  to  deal  with  his 
friends  and  relations, — to  buy  or  sell  from  or  to  them,  and  the  pre- 
sumption of  law  is,  that  the  dealings  between  relatives  are  fair  and 
honest,  without  any  fraudulent  intent,  and  no  presumption  of  fraud 
attaches  to  such  dealings;  and  if  a  man  finds  himself  in  failing  cir- 
cumstances he  has  a  right  to  prefer  one  creditor  to  another,— to  so 
dispose  of  his  property  that  one  of  his  creditors  shall  receive  his  pay 
in  full  and  others  receive  nothing.  Nor  is  there  any  presumption  of 
fraud  in  so  doing.56 

vb)  Transactions  between  mere  relatives,  no  one  else  being  pres- 
ent, are  always  viewed  with  suspicion,  and  their  evidence  must  be 
received  with  many  grains  of  allowance;  but  if  it  is  of  such  a  nature 
as  to  carry  conviction  to  your  minds  that  said  witnesses  are  telling 
the  truth,  then  it  is  entitled  to  as  much  consideration  as  that  of  any 
other  witness.57 

§  1088.  Where  Vendee  Agrees  to  Pay  Vendor's  Debts — Good  Con- 
sideration, (a)  If  you  believe,  from  the  evidence,  that  C.  was  in- 
debted to  third  persons  at  the  time  of  the  sale  to  the  plaintiff,  if  such 
sale  has  been  proved,  and  that  the  plaintiff  agreed  to  pay  such  debts, 
this  would  constitute  a  good  consideration  for  the  sale  to  the  plaintiff, 
if  the  sale  was  made  in  good  faith.58 

(b)  That  a  conveyance  or  sale  of  property  made  with  the  intent, 
on  the  part  of  the  vendor,  to  delay,  hinder  or  defraud  a  particular 
creditor  in  the  collection  of  his  debts,  is  void  as  against  all  the  cred- 
itors of  the  vendor,  if  the  intent  be  known  to  or  participated  in  by  the 
vendee,  although  made  for  a  good  and  valuable  consideration.59 

55 — Clardy    et    ux.    v.    Wilson*    24  band     and     his     heirs     and     those 

Tex.  Civ.  App.  196,  58  S.  W.  52  (53).  claiming'    under    him    with    notice. 

"While  we   do  not   desire  to  ap-  The   question   as   to   intention    and 

prove  the  requested  charge  as  the  notice  are   questions  of  fact  to  be 

most   appropriate   that   could   have  determined    like    any    other    facts. 

been    prepared,    we    think    that    it  Presidio   M.   Co.   v.   Bullis,   68   Tex. 

was    sufficient    to    impose    on    the  587,  4  S.  W.  860." 

court  the  duty  of  giving  in  charge  56 — Schroeder    v.    Walsh,    120    111. 

to  the  jury  the  rule  invoked.     We  410,  11  N.  E.  70;  Wightman  v.  Hart, 

understand  the  rule  to  be  that  the  37  111.  123;   Waterman  v.  Donalson, 

taking   of  the   deeds   in   the   wife's  43   111.   29;    Bump   on   Fraud.   Conv. 

name   did   not  make  it  her  separ-  56. 

ate    property,    but    made    it    prima  57— Martin  et  al.  v.  Buffalo  et  al., 

facie  ((immunity  property,  and  that  121  N.   C.   34,  27  S.  E.  995. 

the  burden   of  proving  that  it  was  58 — Warner    v.     Carleton,    22    111. 

not  community  property  was  upon  415. 

the    Cs.      If,    however,    it    was,    at  59— Bump  Fraud   Conv.  198;    Nel- 

tho  time  of  the  purchase,  intended  son   v.    Smith,    28  111.   495;    Chappell 

by   the   husband   to   be   the   wife's  v.    Clapp,    29    la.    191;    Harrison   v. 

separate    property,    and    the    deeds  Jaquess,     29     Ind.     208;     Castro    v. 

were    made    accordingly,     and     so  lilies,    22    Texas    479;    Gardiner    v. 

Pted   by   the  wife,   such  inten-  Otis,  13  Wis.  460. 
tlon  would  be  binding  on  the  hus- 


§1089.]  FRAUD    AGAINST   CREDITORS.  737 

§  1089.  Person  Indebted  May  Sell  His  Property — Not  Fraudulent — 
Sound  Mind,  (a)  The  jury  are  instructed,  that  although  a  sale  of 
a  debtor's  property  may  have  the  effect  to  hinder  and  delay  his  cred- 
itors in  the  collection  of  their  debts,  this  fact  alone  will  not  render 
the  sale  fraudulent  or  void;  a  debtor,  however  insolvent,  may  law- 
fully sell  his  property,  even  for  less  than  its  worth,  if  it  is  done  with 
a  bona  fide  intention  of  applying  the  proceeds  in  discharge  of  any 
legal  liability.60 

(b)  If  you  find  from  the  evidence  that  was  at  the  date 

of  making  said  deed,  ,  a  person  of  sound  mind,  and  capable 

of  transacting  his  business,  you  will  find  for  defendant.61 

(c)  You  are  instructed  that  a  debtor  is  not  deprived  of  his  right 
to  sell  or  dispose  of  his  property  by  reason  merely  of  insolvency  or 
embarrassed  financial  condition,  even  though  a  sale  or  disposition 
thereof  may  hinder  or  delay  his  creditors.62 

§  1090.  Sufficiency  of  Property  Left  to  Pay  Debts.  If  you  believe 
from  the  evidence  that  the  deed,  from  G.  to  his  wife,  was  in  her  iron 
box  containing  her  private  papers  during  her  lifetime,  and  if  you 
further  believe  from  the  evidence  that  the  said  G.  was  at  the  date 
of  said  deed  possessed  of  sufficient  property,  exclusive  of  the  north- 
east quarter  of  outlot  number  sixty-two  (62),  in  W.,  to  meet  his 
obligations  then  existing  at  the  time,  you  will  find  your  verdict  for 
defendant.63 

§  1091.  Title  of  Personal  Property  Purchased  in  Name  of  An- 
other— Not  Subject  to  Execution.     If  you  believe  from  the  evidence 

that  the  defendant,  on  or  about  the  day  of  ,  under  an 

execution  in  favor  of  A.  &  Co.  v.  M.  &  Ev  levied  on  and  sold  a  stock 
of  goods  and  merchandise  which  was  bought  by  plaintiffs  with  money 
of  R.  M.,  but  the  title  thereto  was  taken  in  the  names  of  plaintiffs, 

60— Bump  Fraud.   Conv.  44;    Nel-  ham  v.  Stage,  123  Ind.  281,  23  N.  E. 

son  v.  Smith,  28  111.  495.  756. 

61 — Batman    v.    Snoddy,    132   Ind.  62— Mears  v.  Gage   et  al.,  —  Mo. 

480,    32    N.    E.    327.  App.  — ,  80  S.  W.  712  (714). 

"This     instruction     was     correct.  "Neither  insolvency  nor  financial 

If    the    intestate    was    of  embarrassment  constitutes  a   legal 

sound    mind    when    he    made    the  barrier   to   the   right   of   the   insol- 

deed,    he   had   the   right  to   convey  vent  or  embarrassed   to  trade,  nor 

his  land  to  his  son  for  any  lawful  do      they      taint      his      commercial 

consideration,    or   as   a   gift,    if   he  transactions   with   fraud.     Rupe   v. 

so     desired.       First     Nat.     Bk.     of  Alkire,    77    Mo.    641;    Dougherty    v. 

Indpls.   v.   Root,   107  Ind.   224,    8   N.  Cooper,  id.  528;  Feder  v.  Abrahams, 

E.  105;  Louisville,  N.  A.  &  C.  Rail-  28  Mo.  App.  454.     It  was  not  error 

road    Co.    v.    Thompson,    107    Ind.  therefore    to    instruct    the    jury   as 

442,    8    N.    E.    18    and    9    N.    E.    357;  was  in  substance  done,   that  fraud 

Henrv    v.    Stevens,    108    Ind.    281,    9  could    not    be     inferred     from     the 

N.   E.   356;  Chi..  St.    L.   <fc  P.   R.   R.  mere    fact    that    T.    was    insolvent 

Co.  v.  Bills,  104  Ind.  13.  3  N.  E.  611;  or   financially   embarrassed    al    the 

Purcell    v.    English,    86    Ind.    34,    44  time    of    making    the    trade    with 

Am.     Rep.     255;     Bremmerman     v.  M." 

Jennings,    101    Ind.     253;      Weis    v  63— Gonzales    et    al.    v.    Adoue    et 

City  of  Madison,  75  Ind.  241;  Bing-  al.,  94  Tex.  120,  58  S.  W.  951  (952). 
47 


738 


FORMS  OF  INSTRUCTIONS. 


[§  1092. 


then  said  goods  and  merchandise  were  not  subject  to  levy  under  said 
execution,  and  you  should  find  for  the  plaintiffs.64 

§  1092.  Fraudulent  Conveyance— Sale  of  Goods— Levy  on  Proceeds 
Arising  from  Sale.  If  you  believe  from  the  evidence  that  the  plain- 
tiffs bought  of  J.  0.,  as  assignee  of  M.  &  E.  and  R.  M.  &  Co.,  goods 
and  merchandise,  and  that  at  the  time  of  such  purchase  A.  &  Co. 
were  creditors  of  M.  &  E.,  and  that  as  to  them  said  purchase  was 


64— Mayer  et  al.  v.  Wilkins,  37 
Fla.  244,  19  So.  632   (635). 

"It  was  sought  by  this  charge 
to  invoke  the  established  rule  in 
this  state,  that  when  real  estate 
is  purchased  with  the  money  of 
one  person,  and  the  deed  taken  in 
the  name  of  another,  for  the  pur- 
pose of  defrauding  the  creditors 
of  the  former,  a  trust  results  in 
his  favor,  which  can  only  be 
reached  by  resort  to  equity.  The 
title  never  having  been  in  the  debt- 
or whose  money  went  to  pay  for 
the  land,  it  is  not  subject  to  levy 
under  an  execution  at  law,  and 
can  only  be  reached  in  equity. 
That  this  is  the  rule  in  this  state 
as  to  real  estate  is  settled  in  Rob- 
inson v.  Springfield  Co.,  21  Fla. 
203.  Should  the  same  rule  pre- 
vail as  to  personal  property? 
Counsel  for  appellee  say  that  it 
does  not.  It  is  not  contended  that 
the  facts  of  the  case  did  not  war- 
rant such  an  instruction,  if  good, 
and  the  question  presented  is 
whether  it  was  correct  as  a  legal 
proposition.  We  have  been  im- 
pressed with  the  view  that  in  con- 
sequence of  the  different  natures 
of  real  and  personal  property,  and 
the  evidence  of  title  required  by 
law  as  to  each,  the  rule  as  to  land 
should  not  be  applied  to  personal 
property,  but  we  have  been  un- 
able to  find  this  view  sustained 
by  the  weight  of  authority.  In 
discussing  the  rule  as  to  real  es- 
tate, Mr.  Wait  says  (Fraud.  Con- 
vey, par.  57),  that  'it  may  be  ob- 
served that  a  purchase  of  personal 
property  by  a  debtor  in  the  name 
of  a  third  party  does  not  exempt 
it  from  direct  seizure  by  creditors.' 
He  cites  Godding  v.  Brackett,  34 
Me.  27,  which  sustains  the  text, 
though  the  opinion  is  short,  and 
contains  no  discussion  on  the  sub- 
lect.  Some  American  decisions  do 
not  hold  to  the  view  announced 
In  reference  to  real  estate,  but 
make  real  estate  purchased  with 
money  of  one  liable  to  direct  seiz- 
ure under  execution,  and  in  some 


states  there  are  statutes  regulat- 
ing the  subject.  Maine  has  a  stat- 
ute on  the  subject.  In  dealing 
with  personal  property  subject  to 
execution,  Freeman  on  Executions 
(section  136)  states  the  rule  to  be 
that:  'Where  a  debtor  has  fraudu- 
lently .conveyed  his  property,  it 
may  be  taken  on  execution  against 
him,  because,  in  favor  of  his  cred- 
itors, he  is  still  considered  as  the 
owner  of  the  legal  as  well  as  of 
the  equitable  title.  But  when  he 
has  fraudulently  bought  property, 
and  had  the  title  taken  in  the  name 
of  another,  the  circumstances  are 
different,  though  the  object  is  the 
same.  .  .  .  This  legal  title  can- 
not be  reached  by  levy  of  an  ex- 
ecution against  the  debtor,  be- 
cause he  has  never  owned  it.  The 
creditor  must  therefore  resort  to 
equity,  except  in  a  few  states 
where  statutes  have  been  enacted 
to  enable  them  to  reach  it  at  law.' 
Where  the  debtor  has  never  had 
the  title  of  either  real  or  personal 
property,  the  statute  of  Elizabeth, 
known  as  the  'statute  of  Frauds,' 
does  not  apply,  although  the  prin- 
ciples of  the  common  law,  of  which 
the  statute  was  in  part  declatory, 
will  enable  a  creditor  to  reach  the 
property  of  his  debtor  held  in  trust 
for  him.  The  following  cases  hold 
expressly  that  if  personal  prop- 
erty be  bought  by  one  person,  and 
the  title  is,  at  his  instance,  con- 
veyed to  another  by  the  vendor, 
creditors  of  the  purchaser  cannot 
reach  the  property  by  execution 
at  law,  but  must  seek  relief  in 
equity:  Gray  v.  Faris,  7  Terg. 
155;  Childs  v.  Derrick,  1  Yerg.  79; 
Parris  v.  Thompson,  1  Jones  (N. 
C)  57;  Garret  v.  Rhame,  9  Rich. 
Law  (S.  C.)  407.  This  seems  to  be 
the  prevailing  view.  Other  de- 
cisions hold  that  in  the  absence 
of  statutory  authority  an  equity 
in  personal  property  is  not  subject 
to  be  taken  on  execution  at  law. 
Harris  v.  Alcock,  10  Gill  &  J.  226, 
32  Am.  Dec.  158;  Rose  v.  Bevan, 
10  Md.  466,  69  Am.  Dec.  170." 


§  1093.] 


FRAUD    AGAINST   CREDITORS. 


739 


fraudulent  and  void,  and  that  said  plaintiff  sold  said  goods  and  mer- 
chandise, and,  with  the  proceeds  arising  from  the  sale,  purchased 
other  goods  and  merchandise,  which  were  levied  on  and  sold  by  the 
defendant  under  an  execution  in  favor  of  A.  &  Co.  v.  M.  &  E.,  then 
the  said  levy  was  illegal,  and  you  should  find  for  plaintiffs.65 

§  1093.  Fraudulent  Assignment — Mixture  of  Goods — Levy  on  Whole 
Lot  When  Inseparable.  If  you  find  from  the  evidence  that  M.  &  E. 
made  a  fraudulent  assignment  of  the  stock  of  goods  to  0.,  as  as- 
signee, and  that  the  plaintiffs  knew  that  the  assignment  was  fraud- 
ulent, and,  with  such  knowledge,  purchased  the  goods  from  0.,  and 
mingled  them  with  goods  purchased  by  them  from  other  persons,  so 
that  they  could  not  be  separated  therefrom,  and  that,  after  such 
mingling,  defendant,  as  sheriff,  and  under  a  writ  of  execution  against 
M.  &  E.  levied  upon  the  whole,  and  that  the  levy  was  not  excessive, 
he  would  be  justified  in  such  levy,  and  would  not  be  responsible 
therefor  to  the  plaintiffs.66 

§  1094.  Property  in  Hands  of  Vendee — Right  of  Vendor's  Creditors 
to  Attach,     (a)     If  this  property  so  levied  upon  and  seized,  or  an 


65— Mayer  et  al.  v.  Wilkins,  37 
Fla.    244,   19   So.   632    (636). 

66— Mayer  et  al.  v.  Wilkins,  37 
Fla.   244,   19   So.   632   (635). 

"It  was  held  in  Wright  v.  Skin- 
ner, 34  Fla.  453,  16  So.  335,  that,  in 
order  to  justify  a  forfeiture  of 
goods  because  of  an  intermingling 
of  them  with  the  goods  of  another, 
two  things  must  concur:  First, 
that  the  party  whose  goods  are 
claimed  to  be  forfeited  must  have 
fraudulently  and  wilfully  caused 
the  confusion;  and,  second,  the 
rights  of  the  other  party  after  the 
confusion  must  be  incapable  other- 
wise of  complete  protection.  In 
case  of  fraudulent  mixture  of 
goods,  if  they  are  capable  of  iden- 
tification, it  seems  there  must  be 
a  separation  of  them;  but  it  de- 
volves upon  the  party  whose 
wrongful  act  caused  the  confusion 
to  separate  and  identify  the  goods 
so  mingled,  and  if  he  cannot  do 
so  the  loss  must  fall  upon  him. 
In  2  Kent.  Comm.  364,  it  is  stated 
that:  'With  respect  to  the  state 
of  a  confusion  of  goods,  where 
those  of  two  persons  are  so  inter- 
mixed that  they  can  no  longer  be 
distinguished,  each  of  them  has  an 
equal  interest  in  the  subject,  as 
tenants  in  common,  if  the  intermix- 
ture was  by  accident.  But  if  it 
was  wilfully  made,  without  mutual 
consent,  then  the  civil  law  gave 
the  whole  to  him  who  made  the 
intermixture,  and  compelled  him 
to  make  satisfaction  in  damages  to 
the   other  party  for  what   he   had 


lost.  The  common  law  gave  the 
entire  property,  without  any  ac- 
count, to  him  whose  property  was 
originally  invaded,  and  its  distinct 
character  destroyed.  .  .  .  But 
this  rule  is  carried  no  further  than 
necessity  requires,  and  if  the  goods 
can  be  easily  distinguished  and 
separated,  as  articles  of  furniture, 
for  instance,  then  no  change  of 
property  takes  place.'  The  rule  is 
fully  discussed  in  cases  cited  in 
note  to  Jewett  v.  Dringer,  30  N. 
J.  Eq.  291;  1  Suth.  Dam.  p.  160, 
and  notes.  The  property  levied 
on  in  the  present  case  consisted  of 
goods  and  merchandise  usually 
kept  in  a  general  mercantile  busi- 
ness, and,  on  the  facts  of  the  case, 
we  are  of  the  opinion  that  the 
charge  was  not  improper.  It  sub- 
mitted to  the  jury  the  view  that  if 
the  assignment  from  M.  &  E.  to 
O.  was  fraudulent,  and,  with 
knowledge  of  this  fact,  plaintiffs 
bought  goods  from  the  assignee, 
and  mingled  them  with  other  goods 
purchased  from  other  parties,  so 
that  they  could  not  be  separated, 
the  entire  stock  was  liable  to  be 
taken  on  execution  against  the 
fraudulent  assignors.  The  pur- 
chase of  goods  from  the  assignee, 
with  knowledge  of  the  fraudulent 
purpose  for  which  they  were  as- 
signed, and  the  mingling  of  them 
with  other  goods,  would  place 
plaintiffs  in  the  position  of  parties 
fraudulently  mixing  goods.  Seavy 
v.    Dearborn,  19   N.  H.   351." 


740  FORMS  OF  INSTRUCTIONS.  [§  1094. 

undivided  interest  therein,  was  the  property  of  L.  H.,  as  between  him 
and  his  creditors,  then  such  levy  and  seizure  was  lawful,  and  the 
plaintiff  cannot  recover. 

(b)  If,  on  the  contrary,  the  property  was  wholly  the  property  of 
the  plaintiff,  as  between  him  and  the  creditors  of  L.  H.,  the  order  of 
attachment  gave  the  sheriff  no  authority  to  levy  on  the  property,  and 
the  plaintiff  is  entitled  to  recover.  It  appears  in  evidence  that  prior 
to  any  transfer  of  the  property  to  plaintiff,  L.  H.  had  an  interest 
therein,  as  a  member  of  a  firm  to  which  it  belonged;  that  such  firm 
made  a  transfer  of  the  property  to  the  plaintiff;  and  that,  subse- 
quently, L.  H.  transferred  to  the  plaintiff  whatever  intei'est  he  had 
therein.  By  these  transfers,  the  title  to  the  property  vested  in  the 
plaintiff,  as  between  the  parties  to  the  transfers,  but  whether  or  not 
such  transfers  were  valid  as  to  the  creditors  of  L.  H.  is  a  different 
question,  involving  other  considerations,  and  is  one  of  the  principal 
questions  for  you  to  determine.67 

67— Campbell  v.  Holland,.  22  Neb.    C87,  35  N.  W.  871  (878). 


CHAPTER  LII. 


FRAUD,  FALSE  REPRESENTATIONS,  ETC. 


See  Erroneous  Instructions,  same  chapter  head,  Vol.  III. 


""*  §  1095.  False  representations  de- 
fined— What  constitutes. 
"^§  1096.  False  representations  by 
party  or  his  agent — What 
constitutes. 
.»_  §  1097.  False  representations — Bur- 
den of  proof — Reasonable 
cause   not   sufficient. 

§  1098.  Obtaining  credit  upon  false 
representations  —  Conspi- 
racy— Commercial  agency 
— Agent's  liability  when 
exceeding  authority. 
_  §  1099.  Fraud  or  false  representa- 
tions not  presumed— Must 
be  clearly  proven. 
—  §  1100.  Every  false  affirmation  not 
a  fraud— What  the  jury 
must    consider. 

§  1101.  All  false  representations 
need    not   be   proved. 

§  1102.  Expression  of  opinion- 
Bragging— Bad  or  losing 
bargain. 

§  1103.  Misrepresentation  of  value 
of  property  —  Distinguish- 
ing opinion  from  misrep- 
resentation. 
—  §  1104.  Mere  silence  is  not  fraud, 
when. 

§  1105.  Representation  as  to  the 
law. 

§  1106.  Elements  of  misrepresenta- 
tions —  What  must  be 
proved. 
u-  —  §  1107.  Representations  must  be  of 
the  past  or  present,  not  of 
future  events. 

§  1108.  Injury   must    be   shown. 

§  1109.  Knowledge  of  falsity  and  in- 
tent must  appear  from  the 
evidence  —  Actual  knowl- 
edge not  essential. 

§  1110.  Misrepresentation  may  be 
fraudulent  even  if  not 
known  to  be  untrue. 

§  1111.  Purchaser  knowing  himself 
to  be  insolvent. 

§  1112.  Purchase  with  intent  not  to 
pay. 

§  1113.  Defect    obvious    and   visible. 

741 


from 


from 
-Goods 


§  1114.  Purchaser  must  exercise 
reasonable  caution. 

§  1115.  False  representations  made 
but  not  relied  on — Informa- 
tion sought  elsewhere— No 
recovery. 

§  1116.  Sales  procured  by  fraud- 
Replevin— Purchase  money 
notes. 

§  1117.  Innocent      purchaser 
fraudulent   vendee. 

§  1118.  Innocent         vendee 

fraudulent      vendor- 
taken   in   payment   in  debt. 

§  1119.  Exorbitant  price  as  proof 
of  fraud — Inadequacy  of 
purchase  price. 

§  1120.  Party  defrauding  liable 
whether  he  profited  or  not. 

§  1121.  Misrepresentations  of  lessee 
concerning  rent  paid — Sub- 
lessee paying  excessive 
share. 

§  1122.  False  representations  as  to 
soundness  of  horse — Jury  to 
use  common  sense. 

§  1123.  Money  paid  out  through 
fraud  or  wrong  of  defend- 
ant— Interest   on. 

§  1124.  Misappropriation  of  funds- 
Liability. 

§  1125.  Allowing  property  to  remain 
in  possession  of  another  so 
that  he  obtains  credit  on 
the  faith  of  it  is  not  neces^ 
sarily  an  indication  of 
fraud. 

§  1126.  Accepting  draft  upon  false 
representations  —  Drawing 
check  without  funds. 

§  1127.  Fraud  renders  sale  not  void, 
but  voidable. 

§  112S.  Right  to  affirm  or  disaffirm 
—Return  of  property, 
when. 

§  1129.  Rescission  —  Promptness  — 
Entire  contract — Return  of 
consideration. 

§  1130.  Rescission — Right  of  vendor 
as  against  attaching  or  ex- 
ecution  creditor. 


742 


FORMS  OF  INSTRUCTIONS. 


[§  1095. 


§  1131.  Fraud  justifies  rescinding 
extension  of  loan  and  de- 
manding immediate  pay- 
ment. 

§  1132.  Fraudulent  representations 
of  assumed  agent — When 
principal  may  be  bound. 

§  1133.  Deceit— Defendant  entitled 
to  instruction  as  to  pre- 
sumption of   innocence. 


§  1134.  Bill  for  cancellation  of 
deed— Mental  incapacity  or 
fraud. 

§  1135.  Cancellation  of  deed— Fraud 
— Inadequacy  of  considera- 
tion—Ratification of  deed 
made  while  intoxicated — 
Series. 


§1095.     False    Representations    Denned— What    Constitutes,     (a) 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  if  one  person 
represents  to  another  as  true  that  which  he  knows  to  be  false,  and 
makes  the  representation  in  such  a  way  and  under  such  circumstances 
as  to  induce  a  reasonable  man  to  believe  that  the  matter  stated  is 
true,  and  the  representation  is  meant  to  be  acted  upon,  and  the  per- 
son to  whom  the  representation  is  made,  believing  it  to  be  true,  acts 
upon  the  faith  of  it,  and  suffers  damage  thereby,  this  is  fraud  ^suffi- 
cient to  sustain  an  action  for  deceit.1 

(b)  A  false  representation  is  a  false  statement  or  statements 
made  for  the  purpose  of  inducing  another  to  part  with  money  or 
other  valuable  things,  which  statements  are  calculated  to  influence 
the  person  to  whom  they  are  made,  and  which  statements  do  actually 
deceive  the  person  to  whom  they  are  made,  and  thereby  induce  him 
to  part  with  money  or  other  valuable  things.2 

§  1096.  False  Representations  by  Party  or  His  Agent— What  Con- 
stitutes. As  regards  the  allegations  of  fraud  and  misrepresentations 
charged  in  this  case  by  the  plaintiff  in  his  declaration  filed  in  this 
case,  the  court  instructs  the  jury  that  to  entitle  the  plaintiff  to  re- 
cover damages  in  this  case  the  jury  must  believe,  from  all  the  evi- 
dence, that  the  alleged  misrepresentations  were  in  fact  made  by  the 
defendant  or  some  of  its  duly  authorized  officers  and  that  such 
representations  were  false  when  made ;  and  further  the  jury  must 
believe,  from  the  evidence,  that  they  were  such  representations  as  a 
man  of  ordinary  prudence  would  rely  upon,  and  that  the  plaintiff 
did  in  fact  rely  upon  such  statements,  and  was  induced  thereby  to 
purchase  the  stock  in  question  in  this  suit,  and  to  execute  the  con- 
tract complained  of  in  this  case,  and  has  thereby  been  damaged, 
otherwise  your  verdict  must  be  for  the  defendant.3 

§1097.  False  Representations — Burden  of  Proof — Reasonable  Cause 
Not  Sufficient,  (a)  The  plaintiff  must  also  prove  by  the  prepon- 
derance of  evidence  that  such  representations  were  false. 

(1>)  The  plaint  ill'  must  also  prove  by  the  preponderance  of  evi- 
dence that  the  defendant  knew  that  the  representations  were  untrue. 

(c)  The  petition  also  alleges  that  said  representations  were  known 

1     Cooley   on   Torts   (3d   ed.)    905;  Mich.   211.  102  N.  W.   668  (673). 

56.      Keith  3— Hutchinson  Furnace  &  Smoke 

v.    Goldstone,   22   111.   App.   457.  Cons.    Co.    v.    Lvford,    123    111     30P 

2— McDonald  v.    Smith  et  al.,   139  (302),   13  N.    E.   844. 


§  1098.]  FALSE  REPRESENTATIONS,  ETC.  743 

by  the  defendant,  when  he  made  them,  to  be  untrue  To  prove  the 
allegations  it  is  not  sufficient  to  show  that  the  defendant  had  reason- 
able  cause  to  believe  that  said  representations  were  untrue,  lhe 
plaintiff  must  prove  that  the  defendant  knew  said  representations  to 
be  untrue.4 

§  1098.  Obtaining  Credit  upon  False  Representations-Conspiracy 
-Commercial  Agency-Agent's  Liability  When  Exceeding  Authority, 
(a)  In  the  present  case  if  you  believe  from  the  testimony  that  W. 
told  X  and  Y.  that  they  might  use  his  name  upon  a  paper  exactly 
like  a  former  paper  to  a  Chicago  house,  and  containing  the  same 
number  of  names  as  guarantors  that  the  former  paper  contamed  (rf 
such  former  paper  was  ever  given)  and  said  X.  signed  said  W.  s  name 
to  a  different  paper,  unlike  the  former  paper,  f or  a  different  amount 
and  with  no  other  names  upon  it  except  W.'s;  and  if  said  X.  knew  at 
the  time  that  he  signed  said  W.'s  name  that  said  letter  of  credit  was 
o  Ee  purpose  of°  getting  goods  for  said  Y  and  the  letter  was  so 
used  and  the  goods  got  upon  it,-then  X.  is  liable  to  the  plaintiff  for 

the  value  of  the  goods.5  ,.,,.,        n  „„j   „„„ 

(b)  You  are  instructed  in  this  connection  that  the  alleged  con- 
spiracy cannot  be  established  on  what  the  said  M  might  have  said 
done  or  written  alone,  but  there  must  be  other  evidence,  which  may 
be  shown  by  facts  and  circumstances  showing  the  conspiracy  before 
what  the  said  M.  might  have  said,  done,  or  written  can  be  considered 
bv  vou  as  evidence  against  said  L.G  m 

"  (c)  The  court  instructs  the  jury  that  if  a  merchant  furnishes  to  a 
mercantile  agency,  whose  business  is  to  obtain  and  furnish  to  otheis 
Tatement  or  reports  of  the  financial  ™**^<g^ 
business  men  and  persons  engaged  m  trade  a  willf u  ly  false  state 
ment  as  to  his  circumstances  or  pecuniary  ability  with  intent  to  ob- 
tain a  standing  and  credit  to  which  he  knows  that  he  is  not  justly 
entitled  and  thus  to  defraud  whoever  may  refer  to  the  agency,  and 
in  Stance  upon  the  false  information  there  lodged  may  extend  credit 
to  hL  4  liability  to  any  party  defrauded  by  these  means  is  the 
same's  if  he  had  made  the  false  representation  directly  to  the  party 

4_A11ison    v.    Jack,   76   Iowa  205,  ^^^S^^T^Uol 

40  N.  W    811   (812)-  reoresenta-  is    what    is    alleged    to    have    been 

"The    falsity    of    the    represema  pursuant  to  the  alleged  con- 

tions    and    defendant  s    knowledge  w       obtaining    credit    for    Y, 

thereof    must     be    established     by  |Pirac^taining     for     him     certain 

proof  in  order  to  render  him  liable  and     odui  n    b  eA  f&lge 

Of  course   such  proof  ™fvi*Jn*ey  fitter' of  credit  or  guaranty,  is  the 
the  preponderance  of  tne  eviueiu lc.  action." 

S  is    not    sufficient    to    show  that  S^of  the  act  g7  Iowa  217> 

defendant  had  reasonable  cause  to        «    Wotk  j 

believe    that    the    statements    were  5#*u  keg  fwQ  or  more  to  form 

untrue.     Holmes  v    Clark.  10  Io*a  as  he  words  or  acts  of 

423;  Hallam  v.  Todhunter,  24  Iowa  a  co     P  establish    it.      There 

166;  McKown  v.  Fur  gas  on    47  To*  a  one  evidence  than   that 

636;    Avery    v.    Chapman,    62   Iowa  rnu  i    showin£,  that  L  was  a  party 

147,  17  N.  W.  454."  ,  .       tnp    allegea    conspiracy.      There 

App.™^'  £  "A.'8  ^^  «  error  in  this  instruct,-, 


744  FORMS  OF  INSTRUCTIONS.  [§•  1099. 

injured;  the  court,  therefore,  instructs  the  jury  that  if  they  believe 
from  the  evidence  that  the  defendant,  M.,  made  a  willfully  and  ma- 
terially false  statement  as  to  his  circumstances  and  pecuniary  ability 
with  intent  to  obtain  a  standing  and  credit  to  which  he  knew  that  he 
was  not  justly  entitled,  to  A.  &  Co.,  and  that  A.  &  Co.  was  a  mercan- 
tile agency  of  the  character  above  described,  and  that  said  false 
statement  was  communicated  to  the  plaintiffs,  by  A.  &  Co.,  before 
they,  the  plaintiffs,  extended  to  the  defendant,  credit  on  account 
of  the  goods  in  question,  and  that  the  plaintiffs  relied  upon  said  false 
statement,  and  were  induced  thereby  to  part  with  the  possession  of 
the  goods  in  controversy,  then  the  court  instructs  the  jury,  their  ver- 
dict should  be  for  the  plaintiffs.7 

(d)  If  the  defendant  X.  wrote  the  name  of  W.  on  this  letter  of 
credit  as  maker,  it  was  his  duty  to  know  that  it  was  such  a  paper  as 
W.  had  authorized;  and  if  it  was  not  in  fact  such  a  one  as  he  au- 
thorized, and  X.  afterward  attested  it  for  the  purpose  of  assisting  Y. 
in  obtaining  credit  thereon,  both  knowing  all  the  facts,  both  would 
be  liable,  though  X.  may  have  thought  he  had  authority  to  execute  it. 
He  who  uses  another's  name  must  be  held  to  know  whether  he  has 
authority,  and  if  he  uses  it  without  authority  in  fact,  to  the  injury  of 
another,  he  must  be  held  liable  for  the  injury,  no  matter  what  his 
intention  may  be  in  the  matter.8 

§  1099.  Fraud  or  False  Representations  Not  Presumed — Must  be 
Clearly  Proven,     (a)     You  are  instructed  that  you  cannot  find  the 

defendant  falsely  or  fraudulently  made  representations  to from 

conjecture  or  mere  inference.  Fraud  must  be  clearly  proven  and 
the  burden  of  proof  is  on  the  plaintiff  to  establish  that  fact.9 

7— Moyer  v.   Lederer,  50  111.   App.  E.    995;    Kirkpatrick  v.    Reeves,   121 

94  (96).  Ind.   280.    22    N.    E.    139.     The   party 

"Reliance    may    be    placed    upon  making-  the  statement  is  bound  to 

statements   of  the   financial   stand-  know    whether    it    is    true    or    not, 

ing    of    the    person    making    them,  and    it    is    not    material    what    his 

made  at  different  times  to  different  intentions   may   have    been   at    the 

persons,  who  stand  in  proper  rela-  time." 

tion  to  the  parties,  and  the  subject-  9— Shaw  v.   Gilbert,   111  Wis.   165, 

matter    of    the    statements,    where  86  N.  W.   188    (195). 

the    statements    are   in    substantial  "The  rule  is  general  and  elemen- 

accord,    without    violating    an    in-  tary   that    while   fraud,    and    espe- 

strurtion    given    with    reference    to  cially  the   intent,   may  be   inferred 

any    one   of    the    particular    state-  from    acts,    conduct,    and    circum- 

ments,    and     the    position    of    the  stances,    yet,    as    the    assertion    of 

party    to    whom    it   is    made."  fraud   involves   a   charge   of   moral 

8— Mendenhall  v.  Stewart,  supra,  turpitude,  such  inference  is  not  to 
If  a  person,  for  the  fraudulent  be  lightlv  drawn  from  doubtful 
purpose  of  inducing  another  to  part  and  ambiguous  circumstances  nor 
with  money  or  property,  makes  a  because  of  mere  susmoion  or  con- 
statement  of  a  fact  which  is  not  jecture.  The  field  of  inference  is 
true,  and  the  person  to  whom  the  a  danererous  one.  because  the  most 
statement  is  made  relics  upon  it,  innocent  circumstances  can  bv 
and  parts  with  the  property,  the  juxtaposition  with  others  as  pre- 
partv  making  such  statement  is  sented  by  counsel,  often  be  colored 
«n !\\,°f  v,  /  GVen  thoush  he  w'th  suspicion.  whi<-h.  aided  by 
E«?  tv?  /T  k"?Wn  nt  the  time  sympathy  for  the  suffering  victim 
!£««.  Je  A>mrme,oi  7*.  £lSe;  In"  of  alle^ed  decetit-  may  often  hurry 
galls  v.   Miller,   121  Ind.   188,  22  N.  the   jury   across    the   line   between 


§  1100.]  FALSE  REPRESENTATIONS,  ETC.  V45 

(b)  Fraud  is  never  to  be  presumed,  but  must  be  affirmatively 
proven  by  the  party  alleging  the  same.  The  law  presumes  that  all 
men  are  fair  and  honest — that  their  dealings  are  in  good  faith,  and 
without  intention  to  disturb,  cheat,  hinder,  delay  or  defraud  others; 
where  a  transaction  called  in  question  is  equally  capable  of  two  con- 
structions— one  that  is  fair  and  honest  and  one  that  is  dishonest — 
then  the  law  is  that  the  fair  and  honest  construction  must  prevail 
and  the  transaction  called  in  question  must  be  presumed  to  be  fair 
and  honest.10 

(c)  The  court  instructs  the  jury,  that  while  fraud  is  not  to  be 
presumed  without  proof,  yet  fraud,  like  any  other  fact,  may  be  proved 
by  proving  circumstances  from  which  the  inference  of  fraud  is  nat- 
ural and  irresistible;  and  if  such  circumstances  are  proved,  and  they 
are  of  such  a  character  as  to  produce,  in  the  mind  of  the  jury  a  con- 
viction of  the  fact  of  fraud,  then  it  must  be  considered  that  fraud  is 
proved.11 

§  1100.  Every  False  Affirmation  not  a  Fraud— What  the  Jury 
Must  Consider— What  Must  Be  Proved,  (a)  You  are  instructed, 
that  every  false  affirmation  does  not  amount  to  a  fraud.  If,  by  an 
ordinary  degree  of  caution,  the  party  complaining  could  have  ascer- 
tained the  falsity  of  the  representations  complained  of,  then  such 
party  is  not  entitled  to  a  verdict;  and  in  this  case,  to  entitle  the 
plaintiff  to  a  verdict,  you  must  believe,  from  the  evidence,  not  only 
that  the  representations  complained  of  were  made,  but  also  that  they 
were  made  under  circumstances  calculated  to  deceive  a  person  acting 
with  reasonable  and  ordinary  prudence  and  caution;  and  in  deter- 
mining this  question,  the  jury  should  consider  all  the  circumstances 
under  which  the  alleged  representations  appear,  from  the  evidence, 
to  have  been  made,  and  whether,  under  the  circumstances  the  rep- 
resentations were  such  as  a  person  of  common  and  ordinary  prudence 
would  or  should  have  relied  upon  or  such  as  would  be  likely  to  mis- 
lead such  a  person.12 

(b)  That  the  plaintiff  is  not  entitled  to  recover  in  this  case  unless 
you  believe,  from  the  evidence,  that  the  defendant  made  the  repre- 
sentations alleged  in  the  declaration;  that  such  representations  were 
false;  that  defendant  knew  they  were  false,  or  had  no  apparently 

mere  conjecture  and  legitimate  in-  11-Watkins  v.  Wallace    19  Mich 

ference,   unless  restrained   by   cau-  57;     Darnel    v.     Baca.    2     Cal.     326, 

tionary    instructions    to    sane    and  Waddingham  v.  Lolf r-  f  M°-  \f.' 

careful     watchfulness     over     their  Strauss     v.     Kranert,     56     111.     254 

mental  steps.    Juries  should  always  Bumpus    v.    Bumpus     59    Mich.    95. 

rTe     instructed     that     thev     cannot  26   N.    W.    410:    Newell    v.    Randall, 

draw    a™  inference    of    fraud    ex-  32  Minn.  171.  19  N.   W.   972.   50  Am. 

cent    upon    clear    and    satisfactory  Kep.  bbz. 

eXnce        legitimately        pointing  12-Eameg  y    Morg an    37  111.  260; 

xx.     „+~      1    T^n^a    iTir    mr    190  Antle  v.    Sexton.    137   in.    4iu,    an  g 

^iT-Schroede? %     Waffi    120    111.  32  111.  App.  437.  .27  N.  E.  691;   Com. 

410    11   N    -E.  70;  Hill  v.  Reifsnider,  Nat.   Bk.  v    Pine,   27  C.   C.  A.  171, 

46   Md.    555;    Tompkins   v.    Nichols,  82    Fed.    799. 
53  Ala.   197. 


746  FORMS  OF  INSTRUCTIONS.  [§  1101. 

good  reason  to  believe  they  were  true;  that  they  were  made  with 
intent  to  defraud  the  plaintiff;  that  plaintiff  was  induced  thereby  to 
make  the  trade  in  question,  and  has  sustained  damage  by  means 
thereof.13 

§  1101.  All  False  Representations  Need  not  be  Proved.  To  entitle 
the  plaintiff  to  recover  in  this  case,  it  is  not  necessary  that  he  should 
show  that  all  the  representations  charged  were  made  by  the  defendant, 
or,  if  made,  that  they  were  all  untrue;  it  is  sufficient  if  the  jury  be- 
lieve, from  the  evidence,  that  some  of  the  representations  were  made 
as  charged,  that  they  were  untrue  and  known  to  be  so  at  the  time 
by  the  defendant,  or  that  he  had  no  good  reason  to  suppose  them  to 
be  true,  that  they  were  calculated  to  deceive  an  ordinarily  cautious 
person,  and  were  intended  by  the  defendant  to  deceive  and  defraud 
the  plaintiff — that  without  such  false  and  fraudulent  representations 
the  property  would  not  have  been  delivered  (or  the  credit  given)  and 
that  the  plaintiff  has  been  damaged  by  the  fraudulent  acts  of  the 
defendant.14 

§  1102.  Expression  of  Opinion — Bragging — Bad  or  Losing  Bargain, 
(a)  The  jury  are  instructed,  that  a  purchaser  cannot  maintain  an 
action  against  his  vendor  for  false  statements  in  regard  to  the 
value  of  the  property  purchased,  or  its  good  qualities,  or  the  price 
he  has  been  offered  for  it.15 

(b)  You  are  instructed,  that  when  parties  are  negotiating  a  trade 
for  property,  which  there  is  an  opportunity  for  examining,  each  has 
a  right  to  exalt  the  value  of  his  own  property  to  the  highest  point  the 
other  party's  credulity  will  bear,  and  depreciate  the  value  of  the 
other's  property.  Such  boastful  assertions,  or  highly  exaggerated 
descriptions,  do  not  amount  to  fraudulent  misrepresentation  or  deceit. 
In  such  case,  the  parties  are  upon  equal  ground,  and  their  own  judg- 
ments must  be  their  guide  in  coming  to  conclusions.16 

(c)  That  when  a  party,  capable  of  taking  care  of  his  own  interests, 
makes  a  bad  or  losing  bargain,  the  law  will  not  assist  him,  unless 
deceit  has  been  practiced,  against  which  ordinary  care  could  not 
protect  him.17 

§  1103.  Misrepresentation  of  Value  of  Property— Distinguishing 
Opinion  From  Misrepresentation,  (a)  The  jury  are  instructed  that 
when  one  person  states  to  another  his  opinion  as  to  the  value  of  any 
property,  merely  as  his  opinion,  and  not  as  a  faot  that  he  knows  to 

13—2  Cooley  on  Torts  (3d  ed.)  949;  921;    Payne   v.    Smith,    20   Ga.    654; 

Eames  v.   Morgan,    37  111.   260;    M>  Bristol  v.  Braidwood.  28  Mich    191; 

Kown     v.     {Furgason,     47     la.     636;  Miller  v.  Craig-,  36  111.  109;  Reed  v. 

Sukeforth   v.   Lord,    87   Cal.   399,   25  Sidener,    32    Ind.    373;    Ellis   v.    An- 

P^<T  I97-.  .  drews,   56  N.   Y.   83;   Bante  v.   Sav- 

14— Smith   v.   State,   55   Miss.   513;  age,  12  Nev.  151. 

Beasley  v.   State,   59  Ala.   20.  17— Noetling    v.     Wright,     72    111. 

15— Dillmnn  v.  Nadelhoffer,  19  111.  390;     Reel    v.    Ewing,    4    Mo     Anp. 

App.   375;    Ellis   v.   Andrews,   56  N.  569;    Livingston  v.    Strong,    107     li- 

Y.  83,  15  Am.   Rep.  379.  295 

16—2    Cooley    on    Torts    (3d    ed.) 


§1104.]  FALSE  REPRESENTATIONS,  ETC.  747 

be  true,  then  the  person  to  whom  such  opinion  is  stated  in.  this  manner 
has  no  right  to  rely  on  such  opinion,  but  must  exercise  his  own  judg- 
ment, etc.18 

(b)  All  statements  by  a  vendor  of  the  value  of  property  sold, 
are  not  necessarily  matters  of  opinion ;  if  the  vendor,  knowing  them 
to  be  untrue,  makes  them  with  the  intention  of  misleading  the  pur- 
chaser, and  of  inducing  him  to  forbear  making  inquiries  as  to  the 
value  of  the  property;  and  if  the  vendee  has  not  equal  means  of 
knowledge,  and  is  induced  by  the  statements  of  the  vendor  to  forbear 
making  inquiries  which  he  otherwise  would  have  made,  and,  relying 
on  such  statements,  is  mislead,  to  his  injury,  he  may  avoid  the  con- 
tract or  recover  damages  for  the  injury.19 

(c)  The  difference  between  the  actual  value  of  the  land  conveyed 
to  plaintiff,  and  what  would  have  been  its  value  if  it  had  been  such 
land  as  represented  and  shown  the  plaintiff,  with  6  per  cent  interest 
from  date  of  transfer  to  time  of  trial  is  the  plaintiff's  measure  of 
damages.20 

§  1104.  Mere  Silence  is  not  Fraud,  When.  That  mere  silence  or 
a  failure  to  communicate  facts  within  the  seller's  knowledge,  is  not 
such  a  fraud  as  will  avoid  a  contract,  or  render  the  seller  liable.  To 
have  that  effect,  there  must  be  some  concealment,  as  by  withholding 
information  when  asked,  or  using  some  trick  or  device  to  mislead 
the  purchaser.  The  seller  may  let  the  purchaser  cheat  himself,  if  he 
sees  fit  to  do  so,  but  he  must  not  assist  him,  even  to  cheat  himself.21 

§  1105.  Representation  as  to  the  Law.  That  a  representation  as  to 
what  the  law  will  or  will  not  permit  to  be  done,  or  a  representation 
regarding  the  legal  rights  of  a  party,  is  one  upon  which  the  party 
to  whom  it  is  made,  has  no  right  to  rely;  and  if  he  does  so,  it  is  his 
own  folly,  and  he  cannot  ask  the  law  to  relieve  him  from  its  con- 
sequences.22 

§  1106.  Elements  of  Misrepresentations — What  Must  be  Proved. 
Before  plaintiff  can  recover  in  this  action,  it  must  establish  by  a 
preponderance  of  the  evidence,  as  to  one  or  all  of  its  first  three 
claims  as  explained  in  the  foregoing  instruction:  First,  that  the 
representation    or   representations    as    charged   in   the   petition   were 

18 — F0r  a   very  extensive,   if  not  tual   value  was  the  price  fixed  by 

an   exhaustive,   digest   of  the  cases  the  parties,   he   should    have   asked 

on    this    question,    see   the    note    to  it.      Cox   v.    Allen,    91    Iowa   468,    59 

Hedin    v     Institute,    62    Minn.    146,  N.    W.    335:    Howes    v.    Axtell,    74 

64    N.    W.    158,    35   L.    R.    A.    417,    54  Iowa  401,  37  N.  W.  974." 

Am.    St    Rep.    628.     Byers  v.    Max-  21— Kohl    v.    Lindley.    39    111.    195; 

well,    22    Texas    Civil    App.    269,    54  Mooney    v.    Miller,    102    Mass.    217; 

S    W    789   (791)  Jordan    v.    Pickett,    78    Ala.    331. 

19—' Simar   v.    Canaday,    53    N.    T.  22— Fish    v.    Clelland,    33    111.    23S; 

298;     Nowlen     v.     Snow,     40     Mich.  Townsend    v.    Cowles,    31    Ala.    42S; 

699;    Bacon  v.   Frisbee,  15  Hun  (N.  People  v.  Supervisors,   etc..  27  Cal. 

Y.)    26.  655:    Rogers   v.    Place,    29    Ind.    577; 

20— Connors  v.  Chine:ren,  111  Iowa  Upton  v.   Tribilcock,  91  IT.  S.  Rep. 

437,   82  N.  W.  934  (937).  45-49;  Am.  Ins.  Co.  v.  Capps.  4  Mo. 

"It  was  good  as  far  as  it  went,  App.    571;    Champion   v.   Woods,    79 

and,    if    defendant    desired    an    in-  Cal.    17,    21    Pac.    534,    12    Am.    St. 

struction  to  the  effect  that  the  ac-  Rep.  126. 


FORMS  OF  INSTRUCTIONS.  [§  H07. 


748 

made  by  H.  to  A. ;  second,  that  the  representations  were  false ;  third, 
that  A.  believed  the  representations  to  be  true;  fourth,  that  A.  in 
making  the  purchase,  relied  upon  the  representations,  and  was  only 
induced  to  make  the  purchase  because  of  the  same;  and  fifth,  that. 
for  the  reason  the  cattle  were  not  as  represented,  plaintiff  has  _  suf- 
fered damages.  And  if  you  believe  from  the  evidence  that  plaintiff 
has  made  out  his  case,  as  herein  explained,  as  to  part,  but  not  as 
to  all  three,  of  his  said  claims  for  damages,  then  you  will  allow  him 
damages  accordingly,  measured  as  hereinafter  explained  but,  if  it 
has  not  made  out  its  case  as  to  either  of  said  three  claims,  then 
you  will  find  for  the  defendant.23 

§  1107.  Representations  Must  be  of  the  Past  or  Present,  Not  of 
'  Future  Events.  The  jury  are  instructed,  that  before  a  party  can 
annul  or  treat  a  contract  as  void,  by  reason  of  alleged  false  or 
fraudulent  representations  used  in  procuring  it  to  be  made,  it  must 
appear,  from  the  evidence,  that  the  alleged  false  or  fraudulent 
representations  were  made  regarding  something  which  has  already 
transpired,  or  was  then  alleged  to  eiist.  No  statement  of  one's 
opinions  as  to  what  will  or  will  not  happen,  or  exist,  in  the  future, 
can  affect  a  contract  or  render  it  void.  Every  person,  in  making 
a  contract,  is  at  liberty  to  speculate  or  express  opinions  as  to  future 
events,  and  he  cannot  be  held  to  answer  for  their  truth  or  falsity.-1 

§  1108.  Injury  Must  be  Shown,  (a)  The  jury  are  instructed, 
that  in  order  that  the  defendant  may  avail  himself  of  the  defense 
of  fraud,  set  up  in  the  pleas  in  this  case,  the  jury  must  believe, 
from  the  evidence,  not  only  that  the  statements  and  representations 
set  forth  in  said  pleas  were  made,  but  also  that  such  statements  and 
representations  were  false — that  they  were  made  with  intent  to  de- 
ceive and  defraud  the  defendant — that  the  defendant  was  induced 
thereby  to  enter  into  the  contract,  and  that  he  has  sustained  damage 
by  reason  thereof.25 

(b)  The  court  instructs  you  that  a  mere  fraudulent  representation 
is  not  of  itself  actionable.  To  entitle  the  plaintiff  to  recover,  he  must 
not  only  show,  by  preponderance  of  evidence,  that  the  representations 
were  made,  and  that  they  were  false  and  fraudulent,  but  he  must  also 
show  affirmatively,  by  a  preponderance  of  evidence,  that  he  relied 
thereon  and  that  he  has  been  injured  thereby — that  he  is  in  some 
way  placed  in  a  worse  condition  than  he  would  have  been  had  the 
state  mi 'iits  been  true.26 

§  1109.  Knowledge  of  Falsity  and  Intent  Must  Appear  from  the 
Evidence— Actual  Knowledge  Not  Essential,     (a)     The  jury  are  in- 

23— Hitchcock    et    al.    v.    Gothen-  Cole   v.    Miller.    60    Ind.    463;    Mar- 
Water  P.  &  Irrigation  Co.,  41  shall    v.    Hubbard,    117    U.    S.    415, 
'520.   95   N.   W.   638   (639).  6  Sup.   Court  806;   Holton  v.  Noble, 
24— Payne   v.    Smith,    20    Ga.    654;  83  Cal.  7,  23  Pac.   58. 
Reed  v.   Sidener,   32  Ind.   373;   Bris-         26— Bartlett   v.    Blaine.   83   111.    25; 
to!     v.     Braidwood,     28    Mich.     191;  Skowhegan  First  Nat.  Bk.  v.  Max- 
Turk  v.  Downing,  76  111.  71.  field,   83  Me.    576,   22  Atl.  479. 
25— Mitchell  v.  Deeds,  49  111.  410; 


§  1110.]  FALSE  REPRESENTATIONS,  ETC.  749 

structed,  that  while  fraud  vitiates  every  contract,  every  false  affirm- 
ation does  not  amount  to  fraud.  To  constitute  fraud,  a  knowledge 
of  the  falsity  of  the  representation  must  rest  with  the  party  making 
it,  and  the  representation  must  be  made  with  the  intention  that  the 
other  party  shall  act  upon  it,  and  it  must  also  appear  that  the  other 
party  did  act  upon  the  representation,  to  his  injury.27 

(b)  The  court  instructs  the  jury,  that  any  willful  misrepresenta- 
tion of  a  material  fact,  made  with  a  design  to  deceive  another,  and 
to  induce  him  to  enter  into  a  trade  he  would  not  otherwise  make, 
will  enable  the  party  who  has  been  over-reached  to  annul  the  contract ; 
and  it  makes  no  difference  whether  the  party  making  the  misrepre- 
sentation knew  it  to  be  false  or  whether  he  was  ignorant  of  the  fact 
stated;  provided,  the  matter  stated  was  material,  and  the  party 
making  the  statement  stated  it  as  true,  when,  in  fact,  he  had  no 
apparently  good  reason  for  believing  it  to  be  true,  and  when  the 
other  party,  under  the  circumstances  shown  by  the  evidence,  was 
reasonably  justified  in  relying  upon  the  statement,  and  did  rely  upon 
it  in  making  the  trade,  and  was  deceived  and  injured  thereby.28 

(c)  The  court  instructs  the  jury  that  the  fact,  if  such  be  the 
fact,  that  the  defendant  may  have  been  informed  by  some  third 
party,  or  may  have  believed  that  said  two  cars  had  been  sold,  is  no 
defense  to  this  action  so  far  as  actual  damages  is  concerned,  and  the 
jury  are  instructed  to  disregard  any  and  all  evidence  of  those  facts 
in  determining  plaintiff's  right  to  recover  actual  damages.20 

§  1110.  Misrepresentation  may  be  Fraudulent  Even  if  Not  Known 
to  be  Untrue,  (a)  The  court  instructs  the  jury  that  material 
representations,   made    by    a   vendor,   of   matters    assumed    by   him 

27 — Walker  v.  Hough,  59  111.  375;  will   constructively   supply  the  set- 

Dwight    v.    Chase,    3    111.    App.    67;  enter  because  of  the  reckless  con- 

Davis  v.  Heard,  44  Miss.  50;  Rimer  duct    of    the    utterer   for    the    very 

v.  Dugan,  39  Miss.  477,  77  Am.  Dec.  good   reason  that  a  positive  state- 

687.  ment  of  fact  implies  knowledge  of 

28 — 2  Cooley  on  Torts  (3d  ed.)  953;  such   fact,    and,   if   the   party   who 

Beebe    v.    Knapp,    28   Mich.    53,   76;  makes   it    has   no   knowledge   upon 

Allen  v.  Hart,  72  111.  104;  Litchfield  the   subject,    he   is   telling   scienter 

v.      Hutchinson,      117      Mass.      195;  what  is  untrue — he  is  affirming  his 

Hutchinson  v.  Gorman,  71  Ark.  305,  knowledge,   when   in   truth   he   has 

73  S    W.  793.  no    knowledge    to    affirm.      Hamlin 

29_Serrano  v.  Miller  &  Teasdale  v.  Abell,  120  Mo.  188,  25  S.  W.  516; 

Com.  Co.,  —  Mo.  App.  — ,  93  S.  W.  Caldwell  v.  Henry,  76  Mo.  254;  Du- 

811  (812).  laney  v.  Rogers,  64  Mo.  201;   Dunn 

"When   a   party   makes   a  repre-  v.   White,   63   Mo.   181;    Lovelace   v. 

sentation  of  a  material  fact  as  of  Suter,    93   Mo.    App.    429.   67    S.    W. 

his  own  knowledge,  when  in  truth  737;    Paretti   v.    Rebenack,    81    Mo. 

he   has  no  knowledge  whatever  of  App.     494;     Knappen    v.    Freeman, 

the   subject   either   of  its   truth  or  47  Minn.  491;   50  N.  W.  533;   Fisher 

its     falsity,     in     such     case,     inas-  v.   Mellen,  103  Mass.   503;    Montreal 

much  as  the  utterer  has  no  knowl-  River    Lumber    Co.    v.    Mihills,    80 

edge    on    the    subject   whatever,    it  Wis.    540,    50   N.    W.    507;    Joliffe   V. 

would  be  impossible  to  establish  a  Baker,  11  Q.  B.   Div.   225;   Derry  v. 

scienter  by  proof  showing  that  he  Peek,    L.    R.    14    App.    Cases    337; 

knew     the     representation     to     be  Rothschild    v.    Mack,   115    N.   T.    1, 

false,  for  the  reason  that  no  show-  21    N.    E.    726;    Benjamin    on    Sales 

ing  pro  or  con  on  the  subject  (Bennett's  Notes)  (6th  ed.)  449." 
could  be  made.    Therefore  the  law 


750  FORMS  OF  INSTRUCTIONS.  [§  1UL 

to  be  within  his  personal  knowledge,  are  false  and  fraudulent,  in 
a  legal  sense,  if  made  with  intent  to  deceive  the  vendee,  and  if 
they  are  untrue,  and  are  relied  upon  by  the  vendee  in  making  the 
purchase,  to  his  damage,  although  the  vendor  did  not  know  them 
to  be  untrue.30 

(b)  The  law  is,  if  a  person  recklessly  makes  a  false  representa- 
tion of  the  truth  of  a  matter  of  which  he  knows  nothing  for  the 
fraudulent  purpose  of  inducing  another  to  rely  upon  his  statements, 
and  to  make  a  contract  or  do  any  act  to  his  prejudice,  and  the 
other  party  does  so  rely  and  act  upon  it,  and  thereby  suffers  an 
injury,  the  party  making  the  representation  is  liable  in  an  action 
for  fraud  and  deceit,  as  much  so  as  if  he  had  known  the  statement 
to  be  false  at  the  time  it  was  made.31 

§  1111.  Purchaser  Knowing  Himself  Insolvent.  The  jury  are 
instructed,  that  although  they  may  believe,  from  the  evidence, 
that  the  defendant,  at  the  time  he  purchased  the  goods  in  question, 
was  insolvent  and  knew  himself  to  be  so,  and  did  not  disclose  that 
fact  to  the  person  of  whom  he  purchased  the  goods,  still  the  defend- 
ant would  not  be  guilty  of  fraud  so  as  to  vitiate  the  contract  of 
sale;  provided,  the  jury  further  believe,  from  the  evidence,  that 
he  then  intended  to  pay  for  the  goods,  and  had  reasonable  grounds 
for  believing  that  he  would  be  able  to  do  so.32 

§  1112.  Purchase  with  Intent  not  to  Pay.  The  jury  are  instructed, 
as  a  matter  of  law,  that  in  order  to  render  a  purchase  of  property 
fraudulent,  as  between  the  parties,  it  is  not  necessary  that  there 
should  have  been  any  false  representations  made  by  the  purchaser 
to  effect  his  purpose.  If  the  jury  believe,  from  the  evidence,  and 
from  the  facts  and  circumstances  proved  on  the  trial,  that  the  pur- 
chase in  question  was  made  by  the  purchaser  with  the  intention 
not  to  pay  for  the  property,  then  the  transaction  was  fraudulent 
and  void,  and  vested  no  title  in  the  purchaser.33 

§  1113.  Defect  Obvious  and  Visible.  The  jury  are  further  in- 
structed, that  if  they  believe,  from  the  evidence,  that  the  defect 
complained  of  was  of  such  a  nature  and  size,  and  so  obvious  and 
visible  to  the  senses  that  it  could  have  been  discovered  by  the 
exercise  of  ordinary  care  and  diligence,  in  looking  at  and  examining 
the  horse,  then  the  defendant  is  not  liable  in  this  suit,  unless  the 
jury   further  believe,   from   the   evidence,   that   the   defendant   used 

30— Ind.  P.  &  C.  Rd.  Co.  v.  Tyng,  chaser  is  insolvent  -and  does  not  in- 

63  N.  Y.  653;   1  Page  on  Contracts  tend   to   pay   for   the   goods,    seller 

sec.   57.  can    disaffirm.     Maxwell    v.    Brown 

31— Beebe  v.  Knapp,  28  Mich.  53;  Shoe  Co.,  114  Ala.  304,  21  So.  1009. 
Cooper  v.  Schlesinger,  111  U.  S.  33—2  Cooley  on  Torts  (3d  ed.)  909; 
148,  4  S.  Ct.  360;  Hindman  v.  First  Bowen  v.  Schuler,  41  111.  192;  Ship- 
Nat.  Bank,  50  C.  C.  A.  623,  112  Fed.  man  v.  Sevmour,  4  Mich.  274; 
931,  57  L.   R.  A.  108.  Flower    v.    Farewell.    18    111.    App. 

32— Talcott  v.  Henderson,  31  Ohio  254;     McKenzie    v.    Rothschild,    119 

St.    162;    Diggs    v.    Denney,    86   Md.  Ala.    419,    24    So    716. 
116,  37  Atl.  1037.     Where  the  pur- 


§  1114.]  FALSE  REPRESENTATIONS,  ETC.  751 

some  artifice  or  trick  to  prevent  the  plaintiff  from  seeing  or  dis- 
covering the  defect.34 

§  1114.  Purchaser  Must  Exercise  Reasonable  Caution,  (a)  You 
are  instructed,  that  the  law  imposes  upon  one  purchasing  personal 
property,  that  degree  of  caution  and  diligence  in  ascertaining  the 
title  of  his  vendor,  which  ordinarily  prudent  business  men  usually 
exercise  under  like  circumstances  and  it  charges  him  with  construc- 
tive notice  of  such  facts  only,  as  by  the  exercise  of  such  caution 
and  diligence  he  would  probably  have  discovered.35 

(b)  A  party  must  always  exercise  due  diligence  to  proteet  him- 
self from  fraud.  By  "due  diligence"  is  meant  such  diligence  as 
ordinarily  prudent  men  would  use;  and  he  must  also  continue  to 
use  due  diligence  to  protect  his  rights  all  through,  and,  if  due 
diligence  requires  that  he  should  make  an  effort  to  find  out  whether 
he  is  defrauded,  he  must  use  that  diligence;  and  whether  he  did  is 
a  question  of  fact  for  you.     It  does  not  necessarily  follow,  because 

P.  did  not  erect  the  buildings,  or  start  to,  in  the  spring  of  . 

that  the  defendant  was  bound  to  know  that  he  had  not  bought  the 
lots,  or  bound  himself  to  erect  them.  But  you  may  take  that  into 
account  as  a  circumstance  tending  to  open  the  eyes  of  the  defendant 
and  cause  him  to  make  inquiry  as  to  whether  P.  had  made  the  pur- 
chase. And  a  man  must  exercise  ordinary  diligence  to  protect  him- 
self from  fraud  in  making  contracts,  and  by  "ordinary  diligence" 
is  meant  such  care  and  diligence  as  the  great  majority  of  mankind, 
or  ordinarily  prudent  men,  would  exercise  under  like  circumstances. 
And  whether  such  ordinary  care  and  diligence  were  in  fact  exercised 
is  a  question  of  fact  for  the  jury,  under  all  the  circumstances  dis- 
closed by  the  evidence  in  the  case.  So  a  party  desiring  to  rescind  a 
contract  which  he  has  been  induced  to  enter  into  by  fraud  must, 
within  a  reasonable  time  after  discovering  the  fraud,  so  signify  to 
the  other  party,  and  this  he  may  do  by  an  ordinary  notice.  And 
what  is  a  reasonable  time  is  a  question  of  fact  for  the  jury,  to  be 
determined  by  the  evidence  in  the  ease,  and  all  the  attending  cir- 
cumstances disclosed  by  the  evidence.36 

§  1115.  False  Representations  Made  But  Not  Relied  On — In- 
formation Sought  Elsewhere — No  Recovery.  If  the  defendant  made 
false  and  fraudulent  representations  or  statements,  and  the  plain- 
tiff did  not  rely  on  them,  but  sought  and  obtained  information  as 
to  the  facts  from  other  sources,  and  then,  on  his  own  judgment, 
concluded   to   enter  into   the   contract   mentioned   in   the   complaint, 

34 Ward     v.      Borkenhagen,      50  St.   319;    Kaiser  v.    Nummedor,   120 

Wis.    459,    7    N.    W.    340;    Hoist    v.  Wis.    234,    97   N.   W.   932. 

Stewart.    161    Mass.    516,    37    N.    E.  36— South          Milwaukee          Boul. 

755     42   Am.    St.   Rep.    442.  Heights   Co.   v.    Harte,   95  Wis.  592, 

35— Cochran  v.  Stewart,  21  Minn.  70  N.  W.  821  (822). 
435;    Rockafellow  v.   Baker.  41  Pa. 


752  FORMS  OF  INSTRUCTIONS.  [§  H16. 

and  takes  his  chances  as  to  what  he  should  get  by  reason  thereof, 
then  he  cannot  recover  in  this  action  on  that  issue.37 

§1116.  Sales  Procured  by  Fraud— Replevin— Purchase  Money 
Notes,  (a)  If  a  purchase  of  goods  is  effected  by  means  of  false 
and  fraudulent  representations  on  the  part  of  the  purchaser,  known 
by  him  to  be  false,  and  which  are  relied  upon  by  the  seller,  and  but 
for  which  he  would  not  have  made  the  sale,  then  the  seller  does 
not,  as  against  the  purchaser,  lose  his  title  to  the  goods,  and  he  may 
bring  trover  or  replevin  for  them  against  the  purchaser,  without  first 
making  a  demand  for  them.38 

(b)  And  in  such  a  case,  if  the  purchaser  has  given  a  note  or 
notes  for  the  price  of  the  goods,  the  seller  may  bring  his  suit  with- 
out making  a  previous  tender  of  the  notes;  provided,  the  notes  are 
produced  at  the  trial  to  be  surrendered  to  the  defendant.39 

§  1117.  Innocent  Purchaser  from  Fraudulent  Vendee.  The  court 
instructs  the  jury,  that  when  a  person  who  has  purchased  goods  and 
obtained  possession  of  them  by  false  and  fraudulent  representa- 
tions, sells  them  to  an  innocent  purchaser  for  value  before  they  are 
reclaimed  by  the  vendor,  such  innocent  purchaser  will  acquire  a 
valid  title  to  the  goods.40 

§  1118.  Innocent  Vendee  from  Fraudulent  Vendor — Goods  Taken 
in  Payment  of  Debt.  If  you  believe,  from  the  evidence,  that  the 
defendant  bought  the  goods  in  controversy  from  M.  in  good  faith,  in 
payment,  or  in  part  payment,  of  a  debt  which  M.  owed  defendant, 
and  without  any  knowledge  or  notice  of  the  means  by  which  M. 
obtained  them  from  the  plaintiff,  then,  on  the  question  of  owner- 
ship of  the  goods,  you  should  find  for  the  defendant,  even  though 
you  should  further  find,  from  the  evidence,  that  M.  had  obtained  the 
goods  from  the  plaintiff  by  means  of  false  and  fraudulent  repre- 
sentations, as  alleged.41 

§  1119.  Exorbitant  Price  as  Proof  of  Fraud — Inadequacy  of  Pur- 
chase Price,  (a)  It  is  material  in  this  case  that  you  shall  consider 
the  question  as  to  the  value  of  the  property  sold  and  purchased  at 
the  time  of  the  sale  with  a  view  of  determining  the  truth  as  to  the 
issue  submitted.     If  it  should  appear  that  the  property  in  question 

37— Craig   v.    Hamilton,    118    Ind.  Meyer  v.  Yesser,  32  Ind.  294;  Bow- 

565,  21  N.  E.  315.  man  v.  Carithers,  40  Ind.  90;  Hagee 

"If  the  appellee  did  not  rely  upon  v.  Grossman.  31  Ind.  223.    The  court 

the    representations    made    to    him  erred,  we  think,  in  refusing  to  give 

by   the   appellant,   but   relied   upon  this  instruction." 

information    obtained    from    other  38— Coghill     v.     Boring,     15     Cal. 

sources,    and   upon   his   own   judg-  213;     Thurston     v.     Blanchard,     22 

ment,  he  cannot  be  heard  to  claim  Pick.    18;     Nichols    v.    Michael,    23 

that  he  was  defrauded  by  the  ap-  N.  Y.  264. 

pollant.     To    constitute   fraud   it   is  39— Ibid. 

necessary   that   the   party   alleging  40— Cochran       v.        Stewart.       21 

it  should  show  that  he  relied  upon  Minn.    435;    Ohio,    etc.,    Rd.    Co.    v. 

the    representations    alleged    to    be  Kerr,  49  111.    458;  2  Hill.  Torts  143; 

false.     Pattison  v.  Jenkins,  33  Ind.  Hart    v.    Church,    126    Cal.    471,    58 

87;     Hoffa    v.    Hoffman,    id.    172;  Pac.  910,  77  Am.  St.  195. 

41— Butters     v.     Haughwout,     42 


§  1120.]  FALSE  REPRESENTATIONS,  ETC.  753 

was  sold  to  Mrs.  McE.  at  a  grossly  exorbitant  price, — that  is  greatly 
in  excess  of  its  real  value, — then  this  is  a  circumstance  to  which 
you  will  look  with  a  view  of  determining  the  question  whether  the 
sale  was  fraudulent  or  not;  but  in  order  that  the  price  to  be  paid 
can  be  so  considered  it  must  appear  that  the  amount  was  grossly 
exorbitant.42 

(b)  The  court  instructs  the  jury,  for  the  plaintiff,  that  the  sale 
and  purchase  of  goods  for  a  less  sum  than  the  actual  cash  value  is 
not  fraudulent,  and  although  you  may  believe,  from  the  evidence, 
that  R.  purchased  the  goods  for  less  than  their  real  value  from  F., 
that,  of  itself,  is  not  evidence  of  fraud  or  circumvention  on  the  part 
of  R.,  and  if  you  believe  R.  acted  in  good  faith,  you  should  find  for 
the  plaintiff.43 

§  1120.  Party  Defrauding  Liable  Whether  He  Profited  or  Not. 
When  two  or  more  persons  combine  and  conspire  by  false  repre- 
sentation or  other  fraudulent  acts  to  cheat  and  defraud  another,  all 
of  said  persons  participating  to  aid  said  fraud  are  liable  to  the  per- 
son defrauded,  whether  they  received  any  benefit  from  the  fraud  or 
not.44 

§  1121.  Misrepresentations  of  Lessee  Concerning  Rent  Paid — Sub- 
Lessee  Paying  Excessive  Share.  If  the  jury  find  that  the  defend- 
ant,  either  in   person   or  by   agent,   falsely   represented   to   plaintiff 

that  she  was  paying  $ per  year  as  rent  for  the  store;  that  said 

representation  was  a  material  one  that  plaintiff  had  a  right  to  rely 
upon ;  and  did  all  the  time  rely  thereon,  in  the  exercise  of  reason- 
able care  on  her  part;  and  that  by  reason  of  such  reliance,  and  be- 
lieving the  representations  to  be  true,  she  was  deceived,  and  there- 
by induced  to  pay  to  defendant  certain  sums  of  money  as  plaintiff's 
proper  share  of  rent  in  excess  of  that  which  was  originally  due 
from  her  according  to  the  facts  as  they  existed,  when  in  truth  said 
defendant  was  not  paying  the  amount  of  rent  as  aforesaid,  to  wit 

$ ,   but   a  smaller  amount, — then   the  plaintiff  may  recover  the 

excess  of  money  so  paid  under  such  mistake  of  fact.45 

§  1122.  False  Representations  as  to  Soundness  of  Horse — Jury 
to  Use  Common  Sense.     You  are  the  exclusive  judges  of  fact,  of  the 

111.   18;    Starr  v.   Dow,   —  Neb.   — ,  which    the   instruction   treats   does 

108  N.  W.  1065.     (On  this  point  the  not   apply  to  the  price  paid  by  F 

decisions  in  different  states  are  not  to  the  insolvent  debtor,  but  to  the 

uniform.)  price     paid     by     the     plaintiff,     or 

42 — McElya    v.    Hill    et    ux;    Hill  rather  by  the  plaintiff's  father,  to 

et  ux  v.   McElya,  105  Tenn.  319,  59  F.    Clearly,    if    F    paid    P    an    ade- 

S.   W.   1025    (1027).  quate  price,  the  fact  that   he   sold 

43 — Mathews     v.     Reinhardt,     149  them    to    R    for    less    than    their 

111.  635   (645),  37  N.  E.  85.  actual  value  has  of  itself  no  tend- 

"The   general   rule   is,   that   mere  ency     to     charge      the     purchaser 

inadequacy  of  price  is  not  of  itself  from  him  with  any  fraud  of  which 

a  ground  for  setting  aside  a  trans-  the    defendants    in    this    suit    can 

fer    of    goods    as    fraudulent.      Yet  take   advantage." 

the    inadequacy    may    be    so    great  44— Mendenhall     v.     Stewart,      18 

as  to  amount,  of  itself,  to  evidence  Ind.   App.  262.   47  N.   E    943   (946). 

of  fraud.     But   the   inadequacy   of  45— Du    Souchet    v.    Dutcher,    113 


Ind.  249,   15  N.   E.  459   (462). 


48 


754  FORMS  OF  INSTRUCTIONS.  [§  1123. 

bearing  and  weight  of  the  evidence,  and  of  the  credibility  of  the 
witnesses.  The  charge  against  the  defendant  being  one  of  fraud, 
ought  not  to  be  lightly  inferred;  still,  it  need  not  be  proved  by 
direct  or  positive  evidence.  If  that  were  the  case,  frauds  could 
scarcely  ever  be  proved.  You  may  infer  fraud  from  the  evidence 
and  circumstances  shown  in  the  case.  On  this  point  you  must  be 
guided  by  your  own  judgment,  and  from  all  the  evidence  given  in 
the  cause,  and  matters  and  circumstances  shown  thereby.  You 
must  find  whether  or  not  the  defendant  is  guilty  of  the  fraudulent 
conduct  aforesaid.  The  burden  is  on  the  plaintiff  to  prove  the 
fraudulent  charge  alleged  by  a  preponderance  of  the  evidence.  If 
you  find  for  the  plaintiff,  you  will  assess  his  damages  at  a  sum  equal 
to  the  difference  between  what  the  horse  was  in  fact  worth  and 
what  he  would  have  been  worth  if  he  had  been  sound  as  represented, 
to  which  you  may  add  interest  from  the  time  this  action  was 
brought.46 

§  1123.  Money  Paid  Out  Through  Fraud  or  Wrong  of  Defendant 
— Interest  On.  The  jury  are  further  instructed  by  the  court  that 
if  they  find,  from  the  evidence,  that  the  defendant  is  guilty  under 
any  of  the  issues  herein,  and  that  the  plaintiff  was  required  to  and 
did  pay  out  money  through  the  wrong  or  fraud  of  the  defendant,  it 
will  be  the  duty  of  the  jury  to  find,  from  the  evidence,  the  amount 
of  money  so  paid  out  by  the  plaintiff,  and  the  date  when  the  same 
was  so  paid,  and  the  jury  will  include  in  their  verdict  such  amount 
so  paid,  if  they  find  it  was  paid  out  through  the  fraud  or  the  wrong- 
ful acts  of  the  defendant,  and  also  include  in  the  verdict  interest 
on  such  sum  so  found  to  have  been  so  paid  at  the  rate  of  five  per 

46— Timmis  v.  Wade,  5  Ind.  App.  State,  69  Ind.  163,  35  Am.  Rep    212 

139,   31  N.   E.   827   (829).  In     this     last     case,     however,     the 

"Counsel    insists    that    the    por-  court    makes    the    following    state- 

tion   of   this   charge   which    directs  ment:      'If  the   court    had   express- 

the  jury  that  they  must  be  guided  ly     limited     its     commendation     of 

by   their   own   judgment   brings   it  common    sense    as    a    guide    to    so 

within  the  rule  laid  down  in  Dens-  much  of  the  law  as  had  reference 

more   v.   State,   67   Ind.   306.  to    the    value    and    weight    of    the 

"In  that  case,  the  court,  among  evidence  only  we  might  not  have 
other  _  things,  instructed  the  jury  seen  any  objection  to  that  part  of 
that  in  making  up  their  verdict  the  instruction.'  The  ruling  in 
what  is  called  'common  sense'  is  that  case  does  not  apply  with  any 
perhaps  the  juror's  best  guide,  force  to  the  case  at  bar.  Taking 
The  supreme  court  held  this  to  the  word  'judgment'  as  used  by 
be  erroneous  for  the  reason  that  the  court  in  the  instruction  corn- 
common  sense'_  was  not  'a  better  plained  of  to  mean  a  decision  re- 
guide  to  them  m  the  discharge  of  suiting  from  the  mental  process 
their  duties  than  the  rules  of  law'  of  reasoning,  or  that  faculty  of 
in  determining  the  guilt  or  inno-  the  mind  by  which  a  person  is  en- 
tfH  %  °L  defendant.  Also  for  abled,  by  a  comparison  of  ideas, 
the  further  reason  that  the  term  or  an  examination  of  facts,  to  ar- 
it°«  ™To°"  SeXlte  .  Wal  indefinite  in  rive  at  a  just  conclusion  in  reach- 
ing elJ}ins;  that  each  juror  might  ing  for  the  truth,  we  are  unable 
nflration     ?r£  Stt1andara    \n   its  aP"  to   understand   how   the  jury  could 

£«  innfl^t  a  •us-,produce  end"  have  been  misled  by  the  instruc- 
less  conflict.     A  similar  ruling  was     tion." 

made    in    the    case    of    Wright    v. 


§  1124.]  FALSE  REPRESENTATIONS,  ETC.  755 

cent,   per  annum  from  the   date   of  such  payment  by  the  plaintiff 
until  paid.47 

§  1124.  Misappropriation  of  Funds — Liability,  (a)  The  court  in- 
structs the  jury  that  this  is  a  suit  brought  by  N.,  plaintiff,  against 
R.,  defendant,  to  recover  certain  money,  which  plaintiff  claims  to 
have  furnished  said  defendant  to  be  used  in  buying  a  stock  of  goods 
for  the  joint  ownership  of  said  plaintiff  and  defendant,  and  which 
has  not  been  returned  to  her,  and  which  was  not  used  for  the  pur- 
chase of  such  goods,  and  if,  from  the  preponderance  of  evidence, 
the  jury  find  that  such  is  the  fact,  then  they  will  render  a  verdict 
for  the  plaintiff,  and  assess  her  damages  at  such  sum  of  money  as, 
from  the  evidence,  they  find  she  so  furnished  the  defendant,  to- 
gether with  five  per  cent,  interest  thereon  from  such  date  as  they 
may  find  that  the  evidence,  the  defendant  appropriated  the  same 
to  his  own  use,  if  from  the  evidence  they  find  he  did  so  appropriate 
it,  less  any  payment  or  payments  that  they  find  from  the  evidence, 
may  have  been  made  thereon  by  said  defendant. 

(b)  The  court  further  instructs  the  jury  that,  if  the  money  sued  for 
was  the  property  of  the  plaintiff,  N.,  and  known  to  be  such  by  the 
defendant,  R.,  when  he  received  the  same,  and  was  received  by  him 
for  the  purpose  of  buying  a  certain  stock  of  goods  for  the  joint  use 
and  ownership  of  plaintiff  and  defendant  as  partners,  and  that  he 
did  not  buy  such  goods  nor  repay  said  money  to  plaintiff,  but  used 
the  same  without  plaintiff's  consent  to  pay  off  notes  and  accounts 
owed  to  him  by  plaintiff's  husband,  then  the  plaintiff  is  entitled  to 
recover  in  this  action,  and  the  jury  will  so  find. 

(c)  And  the  court  instructs  the  jury  that,  if  they  believe  from  the 
evidence  that  the  money  furnished  in  this  case  to  the  defendant 
belonged  to  the  plaintiff,  and  was  evidenced  by  the  draft  offered 
in  evidence  herein,  and  that  said  draft  was  made  payable  to  the 
order  of  the  plaintiff  and  by  her  endorsement  on  the  back  thereof 
she  directed  the  same  to  be  paid  to  the  order  of  the  defendant,  and 
that  defendant  received  the  same,  knowing  it  to  be  the  money  of 
plaintiff,  and  that  he  had  agreed  with  her  to  use  it  in  the  purchase 
of  property  for  the  joint  benefit  of  defendant  and  Mrs.  N.,  and  that 
he  converted  said  draft  into  cash  and  retained  the  same,  then  the 
plaintiff  is   entitled   to  recover  in  this  case,   and  the  jury  will  so 

find.48 

§  1125.    Allowing  Property  to  Remain  in  the  Possession  of  An- 

47_Pungs    v     Am.    Brake    Beam  wrongful     acts     of    the     appellant. 

Co      lC   111     App    76    (86),    aff'd   200  And    we    think    it    apparent    when 

Til "  306^  65    N     E     645  the     several     amounts     which     we 

"Claim    is    made    that    the    court  have   held    the   jury   were   justified 

erred  in   giving  the  above  instruc-  in     including     m     the    verdict     are 

tion    in    that    it    permits    the    jury  added   to    the    interest   at    five  per 

to   allow    interest   in   an   action   of  cent    per    annum,    the    amount    of 

tort      We    think    that    the    instruc-  the  verdict   is  not  too  large.    That 

Hon   as   to    interest   does   not   allow  interest    is   allowable  on  the  moneys 

the  jury    to   allow    interest    on   the  paid  out  we  think  was  proper  un- 

item     of    defective    brake    beams,  der  the  statute      (Chap.  74,  sec.  2, 

\ut  only  on  moneys  actually  paid  title:    Interest), 

by    the    appellee    because    of    the  48-Redfern  v.  McNaul,  79  111.  App. 


756  FORMS  OF  INSTRUCTIONS.  [§  1126. 

other  so  that  he  Obtains  Credit  on  the  Faith  of  it  is  Not  Neces- 
sarily an  Indication  of  Fraud.  If  the  claimant  permitted  the  de- 
fendants to  use  the  property  as  their  own,  hold  themselves  out  as  the 
owners  of  the  same,  and  they  obtained  credit  upon  faith  of  it,  then 
you  could  use  that  testimony  to  determine  whether  or  not  it  was  the 
property  of  the  claimant  or  the  property  of  the  defendants,  and  to 
determine  whether  or  no  the  claim  is  one  of  good  faith.49 

§  1126.  Accepting  Draft  Upon  False  Representations— Drawing 
Check  Without  Funds,  (a)  If  yon  find  from  the  evidence  that  the 
plaintiffs  accepted  the  two  drafts  sued  on,  without  being  at  the  time 
informed  by  the  defendant  bank  that  cattle  would  be  snipped  to 
meet  said  drafts  to  plaintiffs,  and  reiving  thereon,  the  plaintiffs 
cannot  recover  in  this  action  against  the  bank.  If,  on  the  other 
hand,  you  find  from  the  evidence  that  at  the  time  plaint  ill's  ac- 
cepted the  two  drafts  in  question,  defendant  bank  had  informed 
plaintiffs  by  telephone  that  cattle  would  be  shipped  to  meet  said 
drafts,  and  that  plaintiffs  relied  on  said  information,  and  by  reason 
thereof  accepted  said  drafts,  and  you  further  find  that  said  cattle 
were  not  shipped,  and  that  plaintiffs  paid  said  drafts  upon  said 
acceptance,  then,  if  you  so  find  from  the  evidence,  the  plaintiffs 
would  be  entitled  to  recover  in  this  case  from  said  bank. 

(b)  If  you  believe  from  the  evidence  that  the  money  repre- 
sented in  the  two  drafts  paid  by  B.  &  F.  was  first  furnished  by  the 
defendant  bank  to  S.  to  buy  cattle,  and  then  drawn  for  by  said 
bank  on  B.  &  F.,  and  paid  by  them  to  said  bank,  and  you  further 
believe  from  the  evidence  that  it  was  the  intention  of  S.  that  the 
cattle  so  purchased  should  be  shipped  to  the  said  B.  &  F.  to  meet 
said  drafts,  and  that  said  bank  so  understood  at  the  time  it  drew 
said  drafts,  and  you  further  find  that  said  cattle  were  afterwards 
diverted  to  Chicago,  with  the  knowledge  of  said  bank,  and  said 
bank  again  received  the  money  so  advanced  by  it  out  of  the  pro- 
ceeds of  the  sale  in  Chicago,  said  bank  would  be  liable  for  the 
money  so  obtained  from  B.  &  F.,  and  your  verdict,  if  you  find  as 
above  stated,  should  be  for  the  plaintiffs  for  the  amount  of  said 
drafts,  with  interest.50 

232  (234),  aff'd  179  111.  203,  53  N.  E.  39  111.  App.  270;  St.  L,.  A.  &  T.  H. 

569.  R-  R.  Co.  v.  Reagan,  52   111.  App. 

"We    think,    after   full    consider-  496." 

ation  of  counsel's  arguments,   that  49 — Giannone  v.  Fleetwood  et  al., 

thei-e     is     nothing     misleading     or  93   Ga,   491.    21    S.   "E.   76. 

calculated    to   mislead   the   jury   in  "The  claimant  allowed  the  furni- 

the    instructions;    that    the    second  ture  to  stay  in  the  shop  to  be  used, 

instruction    is    not    argumentative,  but,   if  it   belonged   to   him,    it   was 

and   tint    the  ending  of  the  second  not  holding  it  out  as  the  property 

and   third  instructions  was  not  im-  of  the  occupants,  or  as  a  basis  for 

proper.      Tt    M-as    the    duty    of   the  giviner    them     credit,     nor     was     it 

jury,    if   the   facts   :>s   stated  in   the  .granting   to    them    any   permission, 

second  and   third  instnictions  were  express    or    implied,    so    to    hold    it 

established     by     the     evidence,     to  out.     Moreover,   there   was  no  evi- 

finrl  for  the  plaintiff  and  there  was  dence  that  credit  was   extended   to 

no    error   in    directing   them    so   to  the   occupants  on  the  faith  of  this 

find.    Piano  Mfg.  Co.  v.  Parmenter,  furniture." 

50— Neb.   Nat.  Bank  v.   Burke  et 


§  1127.]  FALSE  REPRESENTATIONS,  ETC.  757 

(c)  The  jury  are  instructed,  that  a  person  who  draws  a  cheek  or 
order  upon  a  person  in  whose  hands  he  has  no  funds,  and  who  he  has 
no  reason  to  believe  will  honor  the  check  or  order,  is  guilty  of 
fraud;  and  if  he  thereby  acquires  possession  of  property,  the  owner 
may  repudiate  the  sale,  and  bring  trover  or  replevin  for  the  prop- 
erty so  obtained.51 

§  1127.  Fraud  Renders  Sale  Not  Void,  but  Voidable.  Fraud, 
in  the  sale  or  purchase  of  personal  property,  does  not  render 
the  transaction  void,  but  only  voidable,  at  the  option  of  the  party 
defrauded.  The  vendor,  when  defrauded,  may  either  avoid  the 
contract,  or  he  may  ratify  it,  while  the  property  remains  in  the  hands 
of  the  purchaser;  but  after  the  property  has  passed  into  the  hands  of 
a  bona  fide  purchaser  from  the  fraudulent  vendee,  the  seller  cannot 
reclaim  the  property.52 

§  1128.  Right  to  Affirm  or  Disaffirm— Return  of  Property,  When. 
The  court  instructs  the  jury  that  the  law  is,  that  where  a  person  is 
induced  to  part  with  his  property,  under  a  contract  procured  by 
fraud,  on  discovering  the  fraud  he  may  avoid  the  contract  and  claim 
a  return  of  the  property.  He  has  his  election  to  affirm  or  disaffirm 
the  contract,  but  if  he  disaffirms  it,  he  must  do  so  at  the  earliest 
practicable  moment  after  the  discovery  of  the  fraud.53 

§  1129.  Rescission  —  Promptness  —  Entire  Contract  —  Return  of 
Consideration,  (a)  Where  a  party  undertakes  to  rescind  the  con- 
tract of  sale,  on  the  ground  of  the  fraud  of  the  other  party,  he  must, 
as  soon  as  the  fraud  is  discovered,  take  all  reasonable  measures  to 
rescind  it;  and  if  he  undertakes  to  rescind  the  contract,  he  must 
rescind  the  whole  of  it,  and  if  he  has  received  any  money,  or  other 
valuable  thing  under  the  contract,  he  must  return,  or  offer  to  return 
the  same,  so  as  to  place  both  parties  in  the  same  condition  that  they 
were  in  before  the  sale.54 

(b)  The  court  instructs  the  jury  that  a  party  who  seeks  to  re- 
scind a  sale  or  contract  for  fraud  must  act  with  vigilance  and  prompt- 
ness, and  it  is  his  duty  to  disaffirm  within  a  reasonable  time  after 
the  discovery  of  the  fraud;  and  if  H.,  after  he  had  discovered  that 
he  was  in  anywise  defrauded,  kept  the  property  which  he  had  re- 
ceived, and  treated  it  as  his   own  by  exercising  acts  of  ownership 

al„  44  Neb.  234,  62  N.  W.  452  (454).  Kearney  v.   Ry.    Co.,   97  la.   719,   66 

"These  grounds,    upon  which  the  N.  W.  1059,  59  Am.  St.  434. 

defendant     bank     might     he     held  53 — Cochran  v.   Stewart.   21  Minn. 

liable,  were  distinct,  it  is  true,  but  435;    Hall    v.    Fullerton,    69   111.    448; 

each  was  consistent  with  the  other,  Wright  v.  Pelt,  ?6  Mich.  213;   Pear- 

and    either    presented    a    sufficient  soil   v.    Chapin,    44    Penn.    St.    9. 

reason  for  holding  the  bank  liable.  54 — Paboock  v.   Case,   61   Penn.  St. 

There    existed    no    reason    for   min-  427;    .Tewett    v.    Peti*,    4    Mi^h.    508; 

glin-7   these    independent  grounds  of  Coghill  v.   Bon'ng,   15  Cal    213-    n^h 

liability  in  the   same  instruction."  v.  Ry.  Co..  130  Mo    "7    31  S.  W.  962, 

51— Mathews  v.   Cowan.  59  111    341.  36   L.    R.    A.   442:    Petty  v.   Rv.    Co., 

52— Mich.,    etc.,    Rd.    Co.    v.    Phd-  109  Oa.   666.   35  S.   E.  82;   Grymes  v. 

lips,  60  111.   190;    Shappirio  v.   Cold-  Sanders,  93  U.   S.   55. 

berg,   192   U.    S.    232,    24    S.    Ct.    259; 


758  FORMS  OF  INSTRUCTIONS.  [§  1130. 

over  it,  and  afterward  offered  it  for  sale,  that  such  acts  would 
amount  to  acquiescence,  and  to  find  for  defendants.55 

§1130.  Rescission— Rights  of  Vendor  as  Against  Attaching  or 
Execution  Creditor.  The  court  instructs  the  jury,  as  a  matter  of 
law,  that  where  a  party  sells  goods  and  delivers  them,  under  circum- 
stances which  would  authorize  him  to  rescind  the  sale  as  against 
the  purchaser,  as  explained  in  these  instructions,  he  will  have  the 
same  right,  as  against  an  attaching  or  execution  creditor  of  the 
purchaser.56 

§  1131.  Fraud  Justifies  Rescinding  Extension  of  Loan  and  De- 
manding Immediate  Payment.  In  order  to  entitle  the  plaintiff  to 
recover  in  this  action  (that  is,  to  legally  justify  its  action  in  rescind- 
ing the  said  promissory  note  (date),  and  declaring  the  money  for 
which  it  was  given  to  be  due  and  payable  immediately,  and  sue 
for  the  same,  as  was  done),  it  is  incumbent  upon  the  plaintiff,  in 
the  manner  stated,  to  prove  to  your  satisfaction  that  the  defendant's 
said  officers  made  the  representations  charged,  or  some  of  them, 
concerning  the  defendant's  assets  and  financial  responsibility;  that 
the  statements  so  in  fact  made  were,  in  some  material  respects 
charged,  false  in  fact  when  made,  and  were  so  made  for  the  purpose 
of  obtaining  credit,  as  befoi'e  explained;  that  they  were  such  as 
would  be  liable  to  be  believed  to  be  true,  and  acted  upon  as  such,  by 
an  ordinarily  prudent  and  careful  man  in  the  situation  of  the  party 
to  whom  they  were  made,  namely  to  the  president  and  managing 
directors  of  the  plaintiff  bank;  that  the  said  president  and  directors 
did  in  fact  believe  them  to  be  true,  and  did  in  fact  believe  and  ma- 
terially rely  upon  such  statements  as  true,  in  accepting  the  said  note 
(date)  in  place  of  and  in  renewal  of  the  note  for  a  similar  amount 
which  matured  on  that  day,  and  which  had  been  given  for  a  ninety- 
day  loan  made  on  the  previous  (date).57 

§  1132.  Fraudulent  Representations  of  Assumed  Agent — When 
Principal  May  Be  Bound.  If  B.  assumed  to  act  as  the  agent  of  the 
defendant,  S.,  in  the  sale  of  the  farm,  and  had  no  authority  from 
the  defendant  so  to  act,  but  afterwards  the  defendant  carried  out  a 
sale  which  had  been  previously  negotiated  by  said  B.,  the  defendant 
is  bound  by  the  representations  made  by  the  said  B.,  on  which  the 
plaintiff  relied.  In  other  words,  even  if  B.  did  not  in  the  first  in- 
stance have  authority  from  S.  to  act  as  his  agent,  but  in  the  absence 
of  such  authority  entered  into  negotiations  with  the  plaintiff  and 
then  after  S.  took  up  the  negotiations  which  had  been  so  entered 
into  and  carried  them  into  effect,  S.  would  be  bound  by  any  repre- 
sentations thai  B.  might  have  made  prior  to  the  time  he  gave  them 
;nit  hority. 

You  are  instructed  that  if  you  find  from  the  testimony  in  this  case 

55— Wells  v.  Houston.  23  Tex.  57— Nat.  Bank  of  Merrill  v.  111. 
Civ    A  pp.  629.  57  S.  W.  584  (597).  &  W.  L,.  Co.,  101  Wis    247,  77  N.  W. 

56— Schweizer  v.  Tracy,  76  111.  345.     185   (189). 


§  1133.]  FALSE  REPRESENTATIONS,  ETC.  759 

that  the  defendant,  S.,  represented  to  the  plaintiffs  that  there  were 
80  or  90  fruit  trees  on  this  farm,  that  any  representation  previously 
made  by  B.  and  the  written  memorandum  given  to  the  plaintiff  by  B. 
previously,  are  immaterial  to  this  case,  and  the  plaintiff  had  no 
right  to  rely  on  them.58 

§  1133.  Deceit— Defendant  Entitled  to  Instruction  as  to  Presump- 
tion of  Innocence.  The  legal  presumption  is  that  the  defendant  is 
not  guilty,  and  he  is  entitled  to  have  this  presumption  weighed  in 
his  favor.59 

§  1134.  Bill  for  Cancellation  of  Deed— Mental  Incapacity  or 
Fraud.  The  court  instructs  you  that  there  are  two  allegations  in 
the  bill,  either  of  which,  if  true,  would  authorize  you  to  find  the 
issues  presented  to  you  for  the  complainant.  First:  Was  the  com- 
plainant in  such  condition  mentally  at  the  time  of  signing  the  deed 
and  contract  in  evidence  as  not  to  understand  the  nature  and  result 
of  the  act  she  was  performing?  Second:  If  she  did  understand  the 
nature  and  result  of  her  acts,  did  A.  falsely  and  fraudulently  repre- 
sent the  condition  of  her  husband's  estate  to  her  at  the  time,  as 
alleged  in  the  bill,  and  did  she  thereby,  relying  on  such  statements, 
sign  such  deed  and  contract,  when  she  would  not  have  done  so  had 
she  known  the  true  condition  of  such  estate?  If  you  find  that  she 
did  not  understand  the  nature  of  her  act  when  signing  the  deed  and 
contract  in  evidence,  because  of  her  mental  condition,  then  you 
should  find  both  the  issues  submitted  to  you  in  the  affirmative.  If 
you  find  that  she  did  understand  the  nature  and  result  of  her  act 
when  signing  the  deed  and  contract  in  evidence,  but  find  she  signed 
the  same  because  of  false  representations  made  to  her  by  A.,  as  al- 
leged in  the  bill,  then  you  should  find  both  issues  submitted  to  you 
in  the  affirmative.60 

§  1135.  Cancellation  of  Deed— Fraud— Inadequacy  of  Considera- 
tion—Ratification of  Deed  Made  While  Intoxicated— Series,  (a) 
The  court  instructs  you  that  mere  inadequacy  of  price,  or  the  fact 
that  a  hard  bargain  has  been  driven,  is  of  itself  no  valid  ground  for 
setting  aside  a  contract  made  by  a  man  of  sound  mind  and  fair  un- 

58-Aldrich    v.     Scribner    (Mich.),  I"-   645    (652).  21  N.  E.   571. 
mo  at    w    11^1  The  criticism  upon  this  mstruc- 

59-Childs   V  '  Merrill,   66  Vt.   302,  tion  is  that  it  submits  to  the  jury 

Miti    w<mi  issues   different   from   those   wbich 

4he  rule  is  now  generally  recog-  they  were  impaneled   to  try.    This 

nized  that  the  jurv  should  be  told  is    clearly    a    misapprehension.      It 

that   the   presumption   exists.     The  merely    calls    the    attention    of    the 

Plaintiff  does  not  contend  that  such  jury  to  each  of  the  two  substantive 

is  not  the  law,  but  insists  that  the  grounds  of  relief  set  up  in  the  bill 

urv  were   so   instructed.     We   are  and  upon  which  It  is  claimed  that 

of  the  opinion  that  the  request  was  the     instruments     which     the     bill 

not  complied  with      The  jurv  were  seeks   to   have   cancelled   were   im- 

^ld  that  the  c^se  must  be  disposed  properly  and   wrongfully   obtained. 

SVponaconsfleSnof  all  the  The    law    was    .riven    to    the    jury 

fact"  and  eircumstancs  of  the  case  with      substantial      accuracy      and 

appearing    in    evidence.'    thus    ex-  there  was  no  material  error  m  the 

eluding   Ly   presumption   of  inno-  rulings    of    the    court    in    that    re- 

cence."  spect- 

60— Hoobler  et  al.  v.  Hoobler,  128 


760  FORMS  OF  INSTRUCTIONS.  [§  1135. 

derstanding.  In  order  to  consider  the  question  of  the  value  of  the 
property  received  by  J.  M.  H.  you  must  find  that,  in  addition  to  in- 
adequacy of  price,  that  there  was  some  relation  of  confidence  and 
trust,  as  has  been  already  explained  to  you;  and,  in  the  absence  of 
such  confidential  relation,  you  will  not  consider  the  adequacy  of 
price,  unless  you  shall  find  the  inadequacy  so  great  as  to  shock  the 
conscience  by  its  statement. 

(b)  If  you  believe  from  the  preponderance  of   the  evidence   in 

this  ease  that  the  plaintiff,  J.  M.  H.,  was,  on  the  morning  of  the 

(|ay  0f  }  when  he  admits  that  he  executed  the  deed  to  C. 

M.  W.,  drunk  to  the  extent  of  complete  intoxication,  so  as  to  be  no 
longer  under  the  guidance  of  reason  and  unable  to  comprehend  the 
transaction,  and  that  while  in  that  condition  he  did  execute  the  deed 
sought  to  be  set  aside,  then  you  are  instructed  that  said  deed  is  not 
valid,  and  it  should  be  set  aside,  unless  afterwards,  when  sober,  and 
in  his  right  mind,  he  ratified  and  confirmed  the  same,  as  will  here- 
after be  explained  to  you.  If,  however,  he  was  in  such  a  mental 
condition  as  to  understand  the  nature  of  the  transaction,  and  what 
disposition  he  was  making  of  his  property  at  the  time,  the  fact 
that  he  was  drinking,  or  had  been  drinking,  would  not  be  sufficient 
to  avoid  the  deed  in  suit.  And  in  connection  with  this  plea  of 
drunkenness  you  are  instructed  that  the  parties  who  sign  and  exe- 
cute written  instruments  are  presumed  in  law  to  be  sober,  and  com- 
petent to  make  them;  and  the  burden  is  on  J.  M.  H.,  and  not  the 
defendants  to  prove  by  the  preponderance  of  the  evidence  that  at 
the  time  he  executed  said  deed  he  was  under  the  influence  of  drink  to 
the  extent  that  he  could  not  understand  what  he  was  doing. 

(c)  That  if  you  should  find  that  J.  M.  H.  was  so  drunk  on  the 

day  of ,  when  he  executed  the  first  papers,  that  he  did 

not  understand  what  he  was  doing,  or  from  the  effect  of  previous 
hard  drinking  his  mind  was  so  impaired  that  he  could  not  under- 
stand the  nature  of  the  transaction,  but  that  afterward,  while  sober, 
he  did  understand  the  nature  of  the  transaction,  and,  after  fully 
understanding  the  nature  of  the  transaction,  he  did  agree  to  change 
the  contract,  by  the  terms  of  which  J.  M.  H.  received  the  sum  of 
$500  in  cash,  and  received  and  used  said  cash  with  a  full  under- 
standing of  the  transaction  at  that  time,  that  this  would  be  a  ratifi- 
cation of  the  whole  trade;  and,  if  you  so  find,  you  will  render  a 
verdict  in  favor  of  the  defendants. 

(d)  That  if  you  should  find  that  J.  M.  H.  was  so  drunk  on  the 

day  of  ,  when  he  executed  the  first  papers,  that  he 

did  not  understand  what  he  was  doing,  or  that  from  the  effect  of 
previous  hard  drink  his  mind  was  so  impaired  that  he  could  not  un- 
derstand  the  nature  of  a  transaction;  and  if  you  should  further  find 

that  when  J.  M.  H.  went  back,  on  ,  and  had  the  previous 

contracts  changed,  by  which  J.  M.  H.  got  $ in  cash,  and  spent  it, 

that  still  he,  the  said  J.  M.  H.,  did  not  understand  what  he  was 
doing;  but  if  you  believe  that  afterwards,  on  ,  the  said  J. 


§  1135.]  FALSE  REPRESENTATIONS,  ETC.  761 

M.  H.  received  the  said  cattle,  and  acknowledged  that  the  cattle 
then  received  hy  him  was  in  full  compliance  with  the  previous  con- 
tracts; and  if  you  believe  that  at  this  time  the  said  J.  M.  II.  knew 
and  understood  the  nature  of  his  previous  trade,  and  that  with  this 
knowledge  he  accepted  the  cattle  as  a  fulfillment  of  the  contract  in 
part,  then  you  are  instructed  that  this,  in  Law,  would  be  a  ratifica- 
tion of  the  said  trade,  and  you  will  find  for  the  defendants. 

(e)  That  if  you  should  find  that  J.  M.  H.  was  so  drunk  on  the 

■ day  of  ,  when  he  executed  the  first  papers,  that  he  did 

not  understand  what  he  was  doing,  or  that  from  the  effect  of  pre- 
vious hard  drink  his  mind  was  so  impaired  that  he  could  not  under- 
stand  the  nature  of  a  transaction;  and  if  you  should   further  find 

that  when  J.  M.  H.  went  back,  on  ,  and  had  the  previous 

contracts   changed,  by  which   he,   J.   M.   H.,   got  $ in   cash   and 

spent  it,  and  still  he,  the  said  J.  M.  H.  did  not  understand,  and  was 
not  legally  bound  by  said   trade;   and  if  you  further  believe    that, 

when  afterwards,  to  wit,  on  ,  the  said  J.  M.  H.  received  the 

said  cattle,  and  acknowledged  that  the  cattle  then  received  by  him 
was  in  full  compliance  with  the  contract  to  be  performed  on  that 
date,  and  that  at  that  time  the  said  J.  M.  H.  was  so  drunk  that  he 
did  not  know  what  he  was  doing,  or  did  not  have  sufficient  sense  to 
know  what  he  was  doing;  but  if  you  believe  that  after  he  took  pos- 
session of  the  cattle,  and  before  he  dissolved  the  partnership,  he 
did  understand  the  ti'ade  he  had  made,  and  fully  understood  the 
trade  he  had  made,  and  that  with  this  knowledge  he  remained  in 
the  possession  of  the  said  cattle,  and  failed  to  try  or  offer  to  rescind 
the  trade,  this  would  be  acquiescence  on  his  part  in  the  trade,  and 
he  cannot  afterward  break  it,  and,  if  you  so  find,  you  will  find  for 
the  defendants. 

(f)  The  deed  from  J.  M.  H.  to  C.  M.  W.  conveys  not  only  the 
interest  which  he  inherited  from  his  father's  estate,  but  also  any 
interest  which  he  may  inherit  from  his  mother's  estate,  or  his 
brothers  and  sisters.  The  deed  from  C.  M.  W.  to  J.  M.  H.  con- 
veying the  Windmill  pasture,  which  was  admitted  to  have  been  in 
his  possession,  or  subject  to  his  control,  also  recites  the  first  deed, 
and  that  it  conveys  the  interest  of  the  father's  estate  and  of  the 
mother's.  The  jury  are  instructed  that,  after  admitting  the  execu- 
tion of  these  papers,  the  plaintiff  is  conclusively  presumed  to  know 
what  the  papers  contained.  This  is  what  is  known  in  law  as  an 
estoppel  by  deed,  and  he  will  not  be  permitted  to  deny  any  of  the 
contents  of  said  deed. 

(g)  If  you  find  from  the  evidence  that  at  the  time  plaintiff  ex- 
ecuted the  written  dissolution  of  the  partnership  he  had  then  dis- 
covered he  had  been  in  any  material  manner  defrauded,  and  that 
with  such  knowledge  he  executed  the  same,  the  said  instrument 
estops  his  recovery  herein,  even  though  you  should  find  from  the 
evidence  he  afterwards  discovered  other  facts  of  fraud.61 

Gl— Wells     v.     Houston,    23    Tex.    Civ.  App.  629,  57  S.  W.   584   (592-3) 


CHAPTER  LIII. 
HIGHWAYS. 

See  Erroneous  Instructions,  same  chapter  head,  Vol.  III. 


§  1136.  How  created— By  condem- 
nation, use  or  prescription 
and    dedication. 

§  1137.  Presumption  from  laying 
out  and  working-  highway 
— How  laid  out. 

§  1138.  Monuments  control  courses 
and    distances. 

§  1139.  What  would  be  true  line  in 
case  of  difference  between 
road   surveyed   and   plat. 

§  1140.  Prima  facie  evidence  of  lo- 
cation. 

§  1141.  What  is  meant  by  dedica- 
tion— What    constitutes. 

§  1142.  Dedication— What  is  evi- 
dence of. 

§  1143.  Dedication  of  street  by  im- 
plication —  No  particular 
ceremony  required. 

§  1144.  Dedication  must  be  made  by 
the  owner. 


§  1145.  Must  be  an  intention  to 
dedicate  —  Time  dedication 
takes   place. 

§  1146.  Dedication  must  be  ac- 
cepted. 

§  1147.  Dedication  binding  on  the 
owner  and  all  .claiming 
under  him. 

§  1148.  Dedication  by  sale  of  lots 
bounded  on  streets — Right 
of  purchaser  of  lot  to  have 
street  remain  open. 

§  1149.  Prescription — Twenty  years' 
user — Elements   of. 

§  1150.  Prescription  —  Computation 
of — Travel  must  be  con- 
fined to  a  particular  route. 

§  1151.  Prescriptive  right — Adverse 
user — Wild,  uninclosed,  un- 
cultivated  land. 

§  1152.  Ocean  a  public  highway. 

§  1153.  Waiver  —  Acquiescence  by 
public. 

§  1154.  Unsafe  condition  of  road. 


§  1136.  How  Created — By  Condemnation,  Use  or  Prescription 
and  Dedication,  (a)  The  court  instructs  the  jury,  that  a  public 
highway  may  be  acquired  by  condemnation  under  the  statute,  by  grant 
from  the  owner — and  after  (twenty)  years'  use  by  the  public,  a  grant 
will  be  presumed — and  by  dedication  to  and  acceptance  of  the  high- 
way by  the  public;  the  acceptance  of  the  highway  may  be  inferred 
from  travel  by  the  public,  or  from  repairs  made  thereon  by  the 
proper  public  authorities.1 

(b)  You  are  instructed  that  the  plaintiffs  are  at  liberty  to  rely 
upon  establishing  the  highway  in  question  by  proving  either  a 
condemnation  and  the  opening  thereof,  in  due  form  under  the 
statute,  (twenty)  years'  continuous  adverse  use  by  the  public,  or 
dedication  by  the  owner  and  acceptance  by  the  public;  and  if  you 
believe,  from  the  weight  of  the  evidence,  that  the  plaintiffs  have 
proven  the  establishment  of  the  road  in  controversy,  by  either  one 
of  these  methods,  that  is  sufficient  upon  the  question  of  the  road.2 


1— MoQuillin,  Mun.  Ord.  Sec.  527;         2— B.    &    O.    S.    W.    Ry.    Co.    v. 
W,'t«hburn      on      Easements,      125;     Faith,  71  111.  App.  59  (61). 
Grube  v.  Nichols,  36  111.  96.  "When  the  jury  is  instructed  as 

762 


§  1137.]  HIGHWAYS.  763 

(e)  You  are  instructed,  that  the  plaintiff  is  at  liberty  to  rely 
upon  establishing-  the  existence  of  the  road  by  proving  either  a 
condemnation  under  the  statute,  (twenty)  years'  continuous  adverse 
use  by  the  public,  or  dedication  by  the  owner.  And  if  you  believe, 
from  the  evidence,  that  the  plaintiff  has  proved  the  establishment 
of  the  road  in  controversy  by  either  one  of  these  three  methods, 
as  explained  in  these  instructions,  that  is  sufficient  upon  the  ques- 
tion of  the  existence  of  the  road.3 

§  1137.  Presumption  from  Laying  Out  and  Working  Highway — 
How  Laid  Out.  (a)  If  the  jury  believe,  from  the  evidence,  that 
a  public  road  was  laid  out  over  the  place  in  question;  that  it 
was  used  and  traveled  by  the  public,  and  that  it  was  recognized 
and  kept  in  repair  as  such  by  the  public  authorities  for  a  period 
of  (five)  years,  or  more,  before  the  commencement  of  this  suit, 
then  these  facts  furnish  a  presumption,  liable  to  be  rebutted  by 
proof,  that  such  road  is  a  public  highway.4 

(b)  You  are  further  instructed  that  if  you  find  from  the  evi- 
dence the  road  in  question  was  reported  by  the  jury  of  review  to 
follow  certain  land  lines,  but  that  the  road  laid  out  on  the  ground 
by  the  jury  of  review  did  not  in  fact  follow  such  land  lines,  then 
you  are  instructed  that  the  true  public  road  is  the  one  actually 
laid  out  on  the  ground  by  the  jury  of  review,  and  not  the  land 
lines,  or  the  route  delineated  or  described  in  the  report  of  the 
jury  of  review.5 

§  1138.  Monuments  Control  Courses  and  Distances.  The  jury 
are  instructed,  that  the  rule  of  law  is,  if  there  is  any  discrepancy 
between  the  courses  and  distances,  as  given  in  the  order  of  the 
commissioners,  and  the  monuments  mentioned  in  the  survey  of  the 
road,  or  actually  placed  on  the  ground,  then  the  monuments  must 
prevail.6 

§  1139.  What  Would  Be  True  Line  in  Case  of  Difference  Be- 
tween Road  Surveyed  and  Plat.  If  you  believe,  from  the  evidence, 
that  the  surveyor  actually  surveyed,  laid  out  and  located  the  road 
on  the  ground,  on  what  is  known  as  the  (north)  line,  undei  the 
direction  of  the  highway  commissioners,  then  that  would  lie  tin' 
true  line,   although  the  survey  and  plat  called  for  a  different  line.7 

§1140.  Prima  Facie  Evidence  of  Location.  The  court  instructs 
the  jury,  that  the  petition,  report  of  the  commissioners,  the  survey 

to  what  facts  establish  a  highway,  3— Summers  v.  The  State,  51  Ind. 

it   is  for   the   jury  to   say   whether  201. 

such  facts  have  been  proved.    Grube  4— Daniels  v.  The  People,  21  111. 

v.    Nicbols.    36    Til.    97.      While    this  439. 

instruction    might   have   been   more  5— Kelly    v.     State.    46    Tex.     Cr. 

explicit  in  stating  what  was  neces-  App.  23,   80  S.   W.   382   (384). 

<sary  to  prove  in  order  to  establish  6— Daniels    v.    The   People,    21    111. 

a     statutory     highway,     yet     such  'on:     Wit  son    v.    Jones    et    al.,    85 

omission  in  this  case  was  not  ma-  Penn.  St.  117. 

terial  error."  7 — Hiner    v.    The    People,    34    111. 

297. 


764  FORMS  OF  INSTRUCTIONS.  [§  1141. 

and  plat  of  the  surveyor  in  locating  the  road,  at  the  time  the  road 
is  alleged  to  have  been  laid  out,  are  required,  by  law,  to  be  filed 
in  the  office  of  the  town  clerk,  and  when  they  are  so  filed  they 
become  a  part  of  the  public  records  for  the  use  of  the  public. 
And  (the  copies  of)  all  such  papers  as  have  been  used  in  evidence 
in  this  case  are  prima  facie  evidence  of  the  facts  stated  in  them 
respectively.8 

§  1141.  What  Is  Meant  by  Dedication— What  Constitutes,  (a) 
By  dedication  is  meant  a  giving  and  granting  of  a  right;  and 
before  the  jury  can  find  that  there  is  a  valid  road  by  dedication, 
at  the  point  in  controversy,  they  must  believe,  from  the  evidence, 
that  the  owner  of  the  land  intended  to  give,  and  did  give,  to 
the  public  a  right  of  way  over  the  land,  and  that  the  public  accepted 
the   gift.9 

(b)  The  jury  are  instructed  that  if  a  landowner,  by  open  and 
visible  acts  unequivocally  indicates  to  the  public  and  its  citizens  an 
intention  to  throw  open  a  street  or  alley  to  the  public,  and  the 
citizens  and  the  public  have  acted  upon  the  faith  that  there  was  a 
dedication,  the  law  will  treat  the  acts  of  the  owner  as  constituting  a 
dedication.10 

(c)  The  jury  are  instructed,  that  to  constitute  a  dedication  of 
land  for  a  highway,  as  regards  the  general  public,  the  owner  of 
the  fee  must  give  the  right  of  way  to  the  public,  and  it  must 
be  accepted  and  appropriated  to  that  use  by  travel,  or  a  recogni- 
tion of  it  as  a  public  highway  by  repairs,  or  otherwise,  by  the 
proper  public  authorities.  To  show  a  dedication,  the  acts  of  both 
the  donor  and  the  public  authorities,  in  these  respects,  must 
concur.11 

§  1142.  Dedication — What  is  Evidence  of.  The  court  instructs 
the  jury  that  the  unopposed  use  of  a  highway  by  the  public  over 
the  land  of  an  individual  who  is  cognizant  of  the  fact,  for  a  short 
space  of  time,  may  be  sufficient  to  raise  the  presumption  of  a  dedi- 
cation. Indeed,  the  use  of  land  for  a  highway  for  such  a  length 
of  time  that  public  accommodations  and  private  rights  might  be 
materially  affected  by  an  interruption  of  the  enjoyment  would  be 
evidence  that  the  landowner  intended  to  dedicate  it  to  the  public.12 

Although  it  is  necessary,  in  order  to  show  a  dedication  of  land 
to  public  use,  that  the  owner  intended  thus  to  dedicate  it,  still, 
this   intention   may   be   manifested   by  acts   or  words,   or  partly  by 

!— Hiner   v.    The    People,    34    111.  111.  208;  Tupper  v.  Hudson,  46  Wis. 

297.  646,   1  N.   W.  332. 

9— Elliott  Roads  and   Streets   (2d  12— Cromer  v.   State,  supra. 

Ed.),  chapter  5;   Angell  Highways,  "The   principles   of  law  set  forth 

1^2.  in    this   instruction  have  been   rec- 

10— Faust  v.  City  of  Hun+insrton,  oernized  to  be  the  law  in  this  state 

L    Ind     493;    Cromer    v.    State,    21  in  Mauek  v.   State,  66  Ind    177.    Cee 

Ind.  App.  502.  5"  N.  E.  2^9  (240).  Town    of    Marion    v.    Skillman.    127 

11— State    v.    Tucker,    36    Ta.    485:  Tnd.   130,   26  N.   E.   676,   11  L.   R.  A. 

Fisk  v.    The   Town   of  Havana,   88  55. 


§  1143.]  HIGHWAYS.  765 

both,  and  if  the  jury,  after  considering  all  the  evidence  in  the 
case,  believe  therefrom,  that  before,  etc.,  that  the  plaintiff  intended 
to,  and  did  dedicate  the  land  in  question  to  public  use,  and  with 
that  intention,  gave  the  public  the  right  to  travel  thereon,  and  to 
use  the  same  as  a  highway,  and  that  the  public  accepted  the  gift 
by  using  and  working  the  road,  then  this  is  evidence  from  which 
the  jury  ma}'  infer  that  there  was  a  dedication   as  claimed.13 

§  1143.  Dedication  of  Street  by  Implication — No  Particular  Cere- 
mony Required.  (a)  A  land  owner  may  dedicate  real  estate  to 
the  public  use  by  acts  as  well  as  by  express  dedication;  and  if  you 
find  from  the  evidence  in  this  cause  that  the  former  owners  of 
the  real  estate  upon  which  the  railroad  is  located,  sold  real  i 
upon  the  representations  that  said  real  estate  was  dedicated  as  a 
part  of  a  highway  or  street,  and  then  and  there  took  down  the 
fences  and  exposed  the  same  to  use  by  the  public  as  a  highway, 
and  invited  the  public  to  use  the  same,  and  it  did  use  the  same  as 
such  highway,  this  would  be  a  dedication  of  said  real  estate  to 
the  public  use,  and  such  owner  would  have  no  right  to  retract  said 
dedication  or  reclaim  said  real  estate.14 

(b)  That  no  particular  form  or  ceremony  is  necessary  in  the 
dedication  of  land  for  a  public  highway;  all  that  is  required  is 
that  the  owner  shall,  in  some  manner,  manifest  an  intention  to 
dedicate  it,  and  that  the  public  shall  accept  the  dedication.15 

§  1144.  Dedication  Must  Be  Made  by  the  Owner.  The  jury  are 
instructed,  that  a  primary  condition  of  every  valid  dedication  of 
land  to  public  use  is  that  it  should  be  made  by  the  owner  of  the 
fee.    No  one  but  the  owner  in  fee  can  dedicate  land  to  public  use.18 

§  1145.  Must  Be  an  Intention  to  Dedicate — Time  Dedication 
Takes  Place,  (a)  To  effect  a  dedication  there  must  be  an  inten- 
tion so  to  do,  and  such  intention  may  be  manifested  by  acts  and 
accompanying    declarations.      No    particular    time    is    necessary    to 

13— White  v.  Smith,  37  Mich.  291;  dedicate  the  land  to  public  use.  and 

Kennedy  v.  Le  Van,  23  Minn.   513;  others    have    in    good    faith    acted 

Raymond   v.   Wichita,  70  Kan.   523,  upon    his    open    acts    and    declara- 

79  Pac.   323.  tion,    the    fact    that    the    landowner 

14— Pittsburgh  C.  C.  &  St.  L.  Ry.  may    have    entertained    a    different 

Co.    v.    Noftsker,    26   Ind.   App.   614,  intention  from   that   manifested  by 

60  N.  E.  372  (373).  his  acts  and  declarations  is  of  no 

"It  is  well  settled  that  the  intent  consequence.     Such     secret     inten- 

of  the  owner  to  devote  his  land  to  tions    cannot    prevail    against    the 

a   public    use   is    an    essential    ele-  force    of    his     conduct     and     acts. 

ment  of  dedication,  and  that  there  upon    which    the    public    or    those 

can  be  no  valid  declaration  without  dealing     with     him     have     relied.' 

it.    But  this  intention  may  be  im-  P.,   C.   C.   &  St.   L.   Railway  Co.  v. 

plied  from  the  declarations,  acts  or  Noftsger,    148    Ind.    101,    47    N.    E. 

conduct  of  the  landowner.    Upon  the  332." 

formal     appeal,     the     court     said:  15— Morgan    v.    Railroad    Co.,    96 

'When    the    declaration,    acts    and  U.  S.  716;  Skrainka  v.  Allen.  2  Mo. 

conduct   of  the  landowner  as  such  App.   3S7. 

as  fairlv  and  naturallv  lead  to  the  16— Baugan   v.   Mann.   59   111.   492; 

conclusion    that     he     intended     to  Porter  v.  Stone,  51  la.  373,  1  N.  W. 

601. 


766 


FORMS  OF  INSTRUCTIONS.  [§  H46. 


constitute  a  dedication;  it  may  take  place  immediately,  if  the  owner 
of  the  property  intends  it  shall  do  so,  and  the  public  accepts  it.17 

(b)  The  jury  are  instructed,  that  no  specific  length  of  posses- 
sion by  the  public  is  necessary  to  constitute  a  dedication  of  ground 
as  a  street  or  highway.  It  is  only  necessary  that  the  owner  should 
manifest  an  intention  to  dedicate  it  for  that  purpose  either  by  writ- 
ing, by  declarations  or  by  acts,  and  that  the  public  should  accept 
the  dedication  as  made.18 

(c)  The  jury  are  instructed,  that  there  can  be  no  valid  dedica- 
tion of  land  to  public  use  without  an  intention,  on  the  part  of 
the  owner,  to  so  dedicate;  and  although  the  jury  may  believe, 
from  the  evidence,  that  the  land  at  the  point  in  question  had  been 
used  by  the  public  as  a  highway  with  the  knowledge  and  consent  of 
the  owner,  for  years  before,  etc.,  still,  this  alone  is  not  suf- 
ficient to  establish  the  existence  of  a  highway  by  dedication;  it 
must  further  appear,  from  a  preponderance  of  the  evidence,  that 
the  plaintiff  intended  to  dedicate  it  to  the  use  of  the  public  as  a 
highway.19 

§  1146.  Dedication  Must  Be  Accepted,  (a)  The  jury  are  in- 
structed, that  a  dedication  of  land  to  public  use  may  be  made  by 
verbal  declarations,  if  accompanied  by  such  acts  as  are  necessary 
for  that  purpose;  but  to  make  a  valid  dedication  to  the  public, 
an  intention  to  appropriate  the  right  to  the  general  use  of  the 
public  must  exist;  and  in  order  to  establish  a  dedication  of  land 
to  the  public  for  a  street  or  highway,  there  must  not  only  be 
an  act  of  dedication  of  the  land  by  the  owner  for  that  purpose, 
but  there  must  be  some  proof  of  its  acceptance  as  such  by  the 
public,   acting  through   the  proper  authorities.20 

(b)  If  the  jury  believe,  from  the  evidence,  that  A.  B.,  while  he 
was  the  owner  of  the  land  at  the  point  in  question,  dedicated  it 
to  public  use  as  a  highway,  as  explained  in  these  instructions,  and 
that  the  public  accepted  the  dedication,  then  the  portion  so  dedicated 
should  be  deemed  to  be  a  public  highway.21 

§  1147.  Dedication  Binding  on  the  Owner  and  All  Claiming 
Under  Him.  The  jury  are  instructed,  as  a  matter  of  law,  that  a 
valid  dedication,  when  once  made  and  accepted,  is  binding  not  only 
on  the  person  making  it,  but  also  upon  all  persons  claiming  under 
him  by   deed   or  otherwise.22 

17— Rees  v.   City   Chicago,   38   111.  20— Kennedy  v.   LeVan,   23  Minn. 

322;  Wilson  v.  Lakeview  Land  Co.,  513;    111.    Ins.    Co.    v.    Littlefield,    67 

-   Ala.   — ,    39    So.    303;    Coward    v.  111.    368;     Mansur    v.    Haughey,    60 

Llewellyn,    209    Penn.    582,    58    Atl.  Ind.    364;    Field   v.   Village,   etc.,   32 

1066.  Mich.   279;    Pitcairn  v.   Chester,  135 

18— City    Chicago    v.    Wright,    69  Fed.   587. 

111.  318;   Gentleman  v.  Soule,  32  111.  21— Town  of  Havana  v.  Biggs.  58 

271;    Dougan   v.  Greenwich,  77  Conn.  111.  483;   Bartlett  v.  Bangor,  67  Me. 

444,    59  Atl.    505.  460;   Summers  v.   State,  51  Ind.  201. 

19— Henderson      v.      Alloway,      3  22— Rees  v.  C.  of  Chicago,  38  111. 

T.  mi.  Ch.  6S8;   Mansur  v.  State,  60  322. 
Ind.  357. 


§  1148.]  HIGHWAYS.  767 

§  1148.  Dedication  by  Sale  of  Lots  Bounded  on  Streets — Right 
of  Purchaser  of  Lot  to  Have  Street  Remain  Open,  (a)  That  when 
the  owner  of  land,  within  or  near  a  city  or  village,  lays  it  off 
into  lots,  blocks  and  streets,  and  makes  a  plat  of  the  same,  mark- 
ing thereon  the  streets  and  lots,  and  then  sells  one  or  more  of 
the  lots,  by  reference  to  the  plan  or  plat,  he  thereby  annexes  to 
each  lot  sold  a  right  of  way  in  the  street,  which  neither  he  nor 
his  successors  in  the   title  can  interrupt  or  take   away.23 

(b)  The  court  instructs  the  jury,  as  a  matter  of  law,  that  if  the 
owner  of  a  piece  of  land  lays  it  out  into  lots  and  blocks,  with 
streets  and  alleys,  and  then  sells  off  a  lot,  bounding  the  lot  by 
one  of  the  designated  streets,  then  the  purchaser  of  the  lot  will 
acquire  a  right  to  have  the  street  remain  open  for  street  purposes, 
whether  it  is  so  mentioned  in  the  deed  or  not,  or  whether  the  street 
be  accepted  by  the  public  authorities  or  not.24 

§  1149.  Prescription — Twenty  Years'  User — Elements  of.  (a)  If 
the  jury  believe,  from  the  evidence,  that  a  public  road  has  been 
used  by  the  public  over  the  place  in  question,  for  (twenty)  years 
or  more,  without  interruption,  and  that  the  owners  of  the  land 
have  acquiesced  therein  during  all  that  time,  then  the  law  presumes 
a  grant  or  dedication  of  the  ground  upon  which  the  road  runs,  to 
the  use  of  the   public,  for  a  common   highway.25 

(b)  The  court  instructs  you,  that  a  peaceable,  continuous  and 
uninterrupted  use  of  a  piece  of  ground,  as  a  highway,  by  the 
public  for  (twenty)  years,  or  more,  creates  what  is  called  a  pre- 
scriptive right  to  use  the  road  as  such;  and  this  right  continues 
till  it  is  clearly  and  unmistakably  abandoned  by  the  public.  A 
partial  or  transient  non-user  of  a  road,  by  reason  of  the  travel 
being  diverted  to  other  roads,  is  not  sufficient  to  establish  an  aban- 
donment  of  such   l'oad.26 

§  1150.  Prescription — Computation  of — Travel  Must  Be  Confined 
to  a  Particular  Route.  (a)  The  jury  are  instructed,  that  the 
public  cannot  acquire  a  right  by  prescription;  that  is,  by  a  user 
for  (twenty)  years,  to  travel  over  a  tract  of  land  generally.  The 
travel  and  the  right  of  way  must  be  confined  to  a  specific  line  or 
way,  that  could  properly  be  called  a  road.  That  travel  may  slightly 
deviate  from  the  thread  of  a  road  to  avoid  an  obstruction,  and 
still  not  change  the  road  itself.27 

23— Schooling    v.    Harrisburg,    42  land  v.  Fogo,  58  "Wis.  274,  16  N.  W. 

Ore.  494,  71  Pac.  605;  Fla.  E.  Coast  632. 

Rd.    Co.   v.   Worley,   49    Fla.   297,   38  25— State    v.     Green.    41    Ta.     693: 

So.  618:    Bartlett  v.  Bangor,  67  Me.  Elliott    Roads    and    Str.    (2d    Ed.). 

460;    Fisher   et  al.    v.    Beard,   32  la.  Sees.  169-171,  and  cases  there  cited. 

346:  Waugh  v.  Leech,  28  111.  488.  26— Town   <>(   LewistOWTJ    v.    Proc- 

94_His?hbarger     v.      Milford.      71  tor,  27  111.  414:    Dexter  v.  Tree.  117 

Kas    331.  80  Pac.  633;  Clark  v.  Eliz-  111.   532.   6  N.   E.   506;   City  of  Otta- 

abeth,    40    N.    J.    L.    172;    Denon    v.  wa  v.  Yentzer,  160  111.  509.  43  N.  E. 

Clements,     3    Col.    472;     Dewitt     v.  601. 

Ithaca,  15  Hor.    (N.  Y.)    568;    East-  27— Nelson     v.     Jenkins.     42    Neb. 


768  FORMS  OF  INSTRUCTIONS.  [§  1151. 

(b)  You  are  further  instructed,  that  if  various  and  distinct 
lines  of  travel  have  been  used  at  different  times  across  a  piece  of 
land,  the  time  during  which  the  different  lines  have  been  used 
cannot  be  so  computed  as  to  make  up  the  requisite  (twenty)  years 
to  establish  a  prescriptive  right  of  way  to  any  single  line  of  road.28 

§  1151.  Prescriptive  Right— Adverse  User— Wild,  Uninclosed, 
Uncultivated  Land,  (a)  You  are  instructed  that  a  public  highway 
may  be  established  by  adverse  use  for  a  period  of  10  years  or  more. 
A  peaceable,  continuous  and  uninterrupted  use  of  a  piece  of  ground 
as  a  road  by  the  public  for  10  years  or  more  creates  what  is  called 
a  "prescriptive  right"  to  use  the  road  as  such,  and  this  right  con- 
tinues until  it  is  clearly  and  unmistakably  abandoned  by  the  public. 

(b)  The  jury  are  instructed  that,  before  a  highway  can  be 
established  by  adverse  user,  it  must  be  shown  by  a  fair  prepon- 
derance of  the  evidence  that  the  same  has  been  traveled  and  used 
by  the  public  as  a  highway,  and  has  been  claimed  as  such  for  ten 
years  continuously,  and  that  the  travel  thereon  has  been  confined 
to  definite,  fixed  limits,  which  must  be  the  same  as  the  boundaries 
of  the  highway  sought  to  be  established. 

(c)  You  are  instructed  that  no  highway  can  be  established  by 
adverse  user  of  wild,  uninclosed  or  uncultivated   lands.29 

§1152.  Ocean  a  Public  Highway,  (a)  The  court  instructs  the 
jury   that   the  ocean  is   a  public   highway. 

(b)  Cases  must  be  decided  upon  the  evidence  introduced,  and 
not  with  reference  to  any  individual  knowledge  that  any  juror  may 
have ;  and  I  give  now  the  general  instruction  that,  nothing  appearing 
to  the  contrary,  the  ocean  is  a  highway.30 

§  1153.  Waiver — Acquiescence  by  Public.  If  you  believe,  from 
the  evidence,  that  the  public  acquiesced  in  the  placing  of  the  ob- 
struction complained  of  in  the  road  in  question,  by  the  defendant, 
and  that  the  public  accepted  the  road  spoken  of  by  the  witnesses 
as  ("the  north  road")  in  lieu  of  the  road  in  question,  and  used 
the  said  substituted  road  for  a  period  of  (five)  years  before  the 
commencement  of  this  suit,  then  the  public  have  waived  their  right 
in  the  defendant's  land  at  the  point  of  the  obstruction,  and  the 
plaintiff  is  not  entitled  to  recover  in  this  suit.31 

133,  60  N.  W.  311;  Howard  v.  State,  ficient.      Gray    v.    Farmer,    19    Neb. 
47  Ark.  431,  2  S.  W.  331;   Kelsey  v.  69,  26   N.   W.   593;    Bartling-  v.   Beh- 
Furman,  36  la.   614;   Davis  v.   Clin-  rends,    20    Neb.    211,    29    N.    W.    472; 
ton   City  Council,   58  la.    389,  10   N.  Campbell   v.    Holland,    22   Neb.    589, 
W.  768.  35    N.    W.    871;    City    of   Lincoln   v. 
28— Gentleman    v.     Soule,     32    111.  Smith,    28    Neb.    762,    45    N.    W.    41. 
271,  S3  Am.  Dec.  264.  Considering-    these     three    instruc- 
t—Nelson   v.    Jenkins,     42    Neb.  tions   together,   it   is   manifest  that 
133,  60  N.  W.  311.  the  law  was  stated  quite  as  favor- 
"Tt    is    a    familiar    doctrine    that  able  to  the  plaintiff  in  error  as  he 
instructions    to    the    jury    must    be  was   entitled    to." 
construed    together,    and,    if    then  30— Hildreth    v.    Googins,    91    Me. 

the    law    applicable    to  227,  39  Atl.  550  (551). 

the   issues   and   evidence,   it  is   suf-  31— Grube  v.   Nichols,  36  111.  92. 


§  1154.]  HIGHWAYS.  769 

§  1154.  Unsafe  Condition  of  Road.  Under  the  issue  of  this  case, 
the  plaintiff  cannot  recover  unless  the  jury  find  from  the  evidence 
that  nowhere  along  this  road  were  there  two  consecutive  miles  of 
said  road  as  was  required  by  the  charter.  .  .  .  By  the  terms 
of  this  contract,  if  the  defendant  has  not  complied  with  the  pro- 
visions, it  is  incumbent  upon  the  plaintiff  to  show  by  a  prepon- 
derance   of    evidence    that    the    matters    and    things    complained    of 

in   the   original   pleadings,   viz.,   that   the  of  ,  1890,   from 

that  down  to  the  commencement  of  the  action,  the  defendant's  toll 
road  was  broken,  worn  out,  and  destroyed,  and  the  planks  displaced, 
rotten  and  warped,  and  the  roadbed  full  of  holes,  gullies,  ruts, 
excavations,  through,  over  and  upon  the  entire  length;  that  the 
defendant's  road  was  dangerous,  and  continued  to  be  dangerous, 
inconvenient  and  unsafe;  and  that  it  was  not  so  constructed  as  to 
permit  carriages  and  vehicles  conveniently  and  easily  to  pass  each 
other   thereon   for   any   two   consecutive   miles.32 

32— People  v.   Detroit  &   S.  Plank  R.   Co.,  131  Mich.   30,   90  N.  W.  687. 

For    further    instructions    on    this  subject,    see    chapters     on    Negli- 
gence. 


49 


CHAPTER  LIV. 


INSURANCE— FIRE. 


See  Erroneous  Instructions,   sa  me  chapter  head,  Vol.  III. 


§  1155.  Elements  of  contract  of  in- 
surance. 

§  1156.  Destruction   defined. 

§  1157.  Furnishing  proofs  of  loss — 
May  be  made  by  agent. 

§  1158.  Waiving  proofs  of  loss. 

§  1159.  Waiving  prompt  compliance 
— Estoppel. 

§  1160.  Urging  one  ground  of  in- 
validity waives  all  other 
known  forfeiture — Author- 
ity of  adjuster. 

§  1161.  If  defendant  denies  liabil- 
ity plaintiff  not  obliged  to 
furnish   further  proof. 

§  1162.  Mere  silence  not  enough  to 
infer  waiver  of  policy. 

§  1163.  False  swearing  in  proofs  of 
loss,  etc. — Intent  to  de- 
fraud avoids  policy. 

§  1164.  Premises  becoming  unoc- 
cupied renders  policy  void. 

§  1165.  Same  subject  —  Conditions 
under  which  plaintiff  can 
recover. 

§  1166.  Premises  temporarily  va- 
cant. 

§  1167.  Duty  of  the  court  to  inter- 
pret the  policy — Suit  to  be 
brought  within  twelve 
months. 

§  1168.  Non-payment  of  premium — 
Waiving  prompt  payment. 

§  1169.  Estopped  by  uniform  course 
of  business. 

§  1170.  Increased  hazard  —  Knowl- 
edge  of. 

§  1171.  Application  is  made  a  war- 
ranty —  Warranty  as  to 
title. 

§  1172.  Warranty  as  to  amount  of 
incumbrance  —  Waiver  of 
conditions — Estoppel. 


§  1173.  Fraud — Knowledge  of  agent 
knowledge  of  the  company. 

§  1174.  Condition  as  to  other  insur- 
ance— Waiving  condition. 

§  1175.  Other  insurance  known  to 
the   defendant. 

§  1176.  Representations  as  to  incen- 
diarism. 

§  1177.  Non-compliance  with  condi- 
tions. 

§  1178.  Agreement  to  renew — Liabil- 
ity for  failure  to  renew  in- 
surance. 

§  1179.  Location — Removal  of  prop- 
erty as  affecting  risk. 

§  1180.  Property  insured  in  wrong 
name — Husband  and  wife. 

§  1181.  House  falling  over — Fire  oc- 
curring at  the  time  or  after 
its  fall. 

§  1182.  If  jury  cannot  find  market 
value  of  goods  destroyed, 
to  find  for  defendant. 

§  1183.  Burden  of  proof  on  plaintiff 
to  prove  items  of  property 
or  showing  waiver. 

§  1184.  Burden  of  proof  on  defend- 
ant charging  plaintiff  with 
destroying  building  —  Pre- 
ponderance of  evidence. 

§  1185.  Fire  insurance — False  state- 
ments in  procuring  policy 
— Arson — Cash  value — Rule 
of  damage — Series. 

§  1186.  Insurance  contract — Floater 
policy — Series. 

Note.  As  many  of  the  principles 
of  fire  insurance  are  applicable  to 
life  insurance,  and  vice  versa,  this 
and  the  following  chapter  on  life 
insurance  should  be  consulted. 


§  1155.  Elements  of  Contract  of  Insurance.  The  court  instructs 
the  jury  that  in  order  to  make  a  valid  contract  of  insurance  several 
things^  must  concur.  First,  the  parties  must  agree  upon  the  com- 
pany in  which  the  insurance  is  to  be  placed;  second,  the  amount  of 
the  insurance  must  he  definitely  fixed;  third,  the  duration  of  the 
risk  must  be  agreed  upon,  and  the  contract  must  be   definite  and 

770 


§  1156.]  INSURANCE— FIRE.  ?71 

certain  The  absence  of  either  or  any  of  these  requisites  is  fatal, 
and  if  you  believe,  from  all  the  evidence  in  this  case,  that  all  of 
the  above  requisites  were  not  mutually  agreed  upon  and  under- 
stood prior  to  the  destruction  of  the  property,  then  the  plaintifl 
is  not  entitled  to  recover,  and  your  verdict  should  be  for  the 
defendant.1 

§H56.  Destruction  Denned.  If  the  property  or  any  part  ot  it 
was  so  damaged  by  fire  as  to  render  it  useless  for  the  purposes  for 
which  the  property  had  been  used,  then  that  is  a  destruction  withm 
the  meaning  of  the  law.2 

§1157      Furnishing   Proofs    of   Loss— May   Be   Made   by   Agent. 
(a)     The   Iury  are  instructed,  that  the  policy  in  this  case  provides 
that   the   assured   shall,   after   a   loss   by   fire,   forthwith   give   notice 
of    such    loss    to    the    insurer,    and    as    soon    thereafter    as   possible 
render  to  the  company  a  particular  account  of  the  loss,  signed  and 
sworn  to  by  him,  stating,  among  other  things,  how   the  fire  origin- 
ated   etc.;  this  particular  account  and  certificate  of  the  officer  are 
whai    are    understood    as    -proofs    of    loss-    the    meaning    of this 
language   is   that   the    assured   shall,    as   soon   after   the   faie   as   he 
reasonably  can  under  all  the  circumstances  of  the  case,  give  notice 
to  the  company  of  .the  loss  and  furnish  to  the  company  such  proofs 
of  loss;  that  is,  he  shall  not  be  guilty  of  any  unnecessary  delay  m 
giving  such  notice   or  in   furnishing  such   proofs. 
g   (b)      Under  the  terms  of   the  policy   sued   on,   the   plaintiff  was 
required  to  make  proof  of  loss,  and  the  making  of  such  proof  in 
accordance  with  the  terms  of  the  policy  was  a ,  condi to>r precedent 
to  plaintiff's  right  to  recover,  unless  such  proof  of  loss  was  waived 
by     he    defendant;    and   if    the    jury    find    from    the    evidence     ha 
pLf  of  loss  was'  not  made  by   the   plaintiff,  and   that   defendant 
.    did  not  waive  such  proof  of  loss,  then   the  plainttf  cannot  recover, 
and  the  iury  must  return  a  verdict  for  defendant. 

c       The*  court  instructs   the  jury,  that  if  you  beheve    from  the 
•a  I     ft     the   insured,  was,   at   the   time   of   the   fire   absent 

lonThts  hole in  W mXter  Illinois,  and  could  not  be  found  so 
Is  to  make  proofs  of  the  loss  within  the  time  specified  by  he 
Policy,  The^ fifthat  case,  such  proofs  of  loss  could  be  made  by  the 
agent  of  the  said  G.5 

l_lns.   Co.   of  N    A.   v.   Bird    175     Ins^  go    v  ^Lewis    «  U   C.^P.^3. 
111.  42,  aff's  74  111.  App.  306,  51  N.  E.      A^.ei^m  Ala.  iS0,  19  So.   540 

^-Manchester  Fire  Assur    Co    v.     (546).  R  c    Co    v<  North- 

Feibelman    118  Ala    308    23  So. J59.         5-Brunsvvack      ^    ^     ^ 

3-Columbia  Ins.  Co.  V.Lawrence,  ern  pire  Ins.,  p.  693 

2    Peters    25;    Perry    v.    Caledonian  N    \\  ■ ■   •  Hartford  Ins.  Co..  1, 

Ins.  Co.,  103  App.  Div.  113,  93  N.  T.  s4     •       .  ^    553;  Fa  s. 

c:    SO-   Perrv  v.  Greenwich  Ins.  to.,  ;°w*    , '"'        rn    ..    Rravville    74  Pa. 

?37  N.  C   402.  49  S.  E.  SS9:  HodSkms  ^tual  Ins  ^. ^ Grayv.lJ 

v.   Montgomery   etc.,    Ins l    Co.,    84  St..  ■  V^£  pire  In!,    Co.,  31  wis. 


772  FORMS  OF  INSTRUCTIONS.  [§  1158. 

§  1158.  Waiver  of  Proofs  of  Loss,  (a)  If  the  adjuster  of 
defendant  visited  the  scene  of  the  fire,  investigated  the  circum- 
stances attending  it,  and  this  was  in  November  following  the  fire 
in  October,  and  made  no  objection  to  the  failure  of  plaintiff  or 
plaintiff's  assignor  to  furnish  the  proof  of  loss,  then  it  is  the  duty 
of  the  jury  to  ascertain  from  all  the  evidence  whether  the  prelim- 
inary proofs  of  loss  were  thereby  waived. 

(b)  If  the  jury  believe  from  the  evidence  that  the  plaintiff  has 
reasonably  satisfied  you  of  the  truth  of  his  replications,  your  verdict 
will  be  for  the  plaintiff,  unless  they  further  believe  that  either  C. 
or  N.  burned  the  house  or  removed  the  goods  before  the  fire.6 

(e)  And  in  this  ease,  if  you  believe,  from  the  evidence,  that  the 
agent  of  the  company  said  to  the  plaintiff  after  the  company  had 
notice  of  the  loss  and  had  inquired  into  the  circumstances  attending 
it,  that  they  would  not  pay  any  claim  under  that  policy  for  the 
reason  (because  the  building  was  not  occupied  at  the  time  of  the 
fire)  this  would  amount  to  a  waiver  of  the  necessity  of  furnishing 
proofs  of  loss.7 

(d)  If  the  jury  believe,  from  the  evidence,  that  the  plaintiff 
within,  etc.,  furnished  to  the  defendant  what  purported  to  be  proofs 
of  loss,  though  not  in  exact  conformity  with  the  terms  of  the  policy, 
and  that  these  proofs  were  accepted  by  the  company  without  objec- 
tion or  without  suggesting  that  they  did  not  conform  to  the  terms 
of  the  policy  and  objecting  to  them  for  that  reason,  then  the 
defendant  is  estopped  from  claiming  that  such  proofs  were 
insufficient.8 

§  1159.      Waiving   Prompt    Compliance — Estoppel.      The   jury    are 

instructed,  that  an  insurance  company  may  waive,  not  only  imper- 
fections and  deficiencies  in  the  statement  of  loss  and  proofs  re- 
quired by  the  policy,  but  it  may  also  waive  a  prompt  compliance 
with  the  provisions  of  the  policy  as  to  the  time  of  giving  notice 
and  presenting  proofs  of  loss.  And  if  the  jury  believe,  from  the 
evidence,  that  the  plaintiff,  before  the  expiration  of  a  reasonable 
time  for  furnishing  proofs  of  loss  after  the  fire,  went  to  an  agent 
of  the  company  and  requested  time  for  furnishing  such  proofs, 
and  was  then  told  by  the  agent  that  the  question  of  title  was  the 
only  question  so  far  as  the  company  was  concerned,   and   that  he 

kinson.   3  Bush   (Ky.)  328;    Sims  v.  G.  Mut.  Ins.  Co.,  114  Mo.  App.  169, 

State    Ins.    Co.,    47    Mo.    54,    4    Am.  89  S.  W.  568. 

Rep.   311;   Cer.  F.  Ins.  Co.  v.  Gru-  8 — Harriman    v.    The    Queen    Ins. 

nert,  112  111.  69.  Co.,  49  Wis.  71,  5  N.  W.  12;  Kenney 

6— Liverpool  &  L.   &  Gl.   Ins.  Co.  v.  Home  Ins.   Co.,   71   N.  T.   396,   27 

v.    Tillis,    110    Ala.    201,    17    So.    672  Am.  Rep.  60;   Sprattey  v.  Hartford 

<674)-  Ins.  Co.,  1  Dill.  Cir.  Ct.  392;  Patter- 

7— Aurora    F.    &    M.    Ins.    Co.    v.  son    v.    Triumph    Ins.    Co.,    64    Me. 

Kranich,    3fi    Mich.    289;    TOenan   v.  500;  St.  Louis  Ins.  Co.  v.   Kayle,  11 

Mo.   St.  Mutual  Ins.  Co.,  12  la.  126,  Mo.  278;   North  British  Xz  Mer.  Ins. 

79  Am.  Dec.  524;   Burgess  v.   Merc.  Co.  v.  Edmundson,  104  Va.  486,  52  S. 

E.  350. 


§  1160.]  INSURANCE— FIRE.  773 

might  take  his  own  time  to  prepare  and  furnish  proofs,  to  furnish 
them  at  his  convenience,  and  plaintiff,  relying  upon  such  state- 
ments, neglected  to  prepare  the  proofs  as  suun  as  he  might  other- 
wise have  done,  but  did,  afterwards,  at  his  convenience  and  more 
than  sixty  days  prior  to  the  bringing  of  this  suit  furnish  to  the 
company  proofs  of  loss,  then  the  company  is  estopped  from  object- 
ing that  the  proofs  were  not  furnished  in  propel  time.9 

§  1160.  Urging  One  Ground  of  Invalidity  Waives  All  Other  Known 
Forfeitures — Authority  of  Adjuster,  (a)  I  charge  you  that  when 
only  one  ground  of  forfeiture  is  urged  as  the  reason  for  the  inva- 
lidity of  the  policy  it  is  a  waiver  of  all  other  forfeitures  or  breaches 
which   were  known   to   the  defendant. 

(b)  If  you  believe  from  the  evidence  that  A.  was  sent  hei*e 
for  the  purpose  of  adjusting  the  loss  of  this  plaintiff,  and  that  he, 
the  said  A.,  had  apparent  authority  to  settle  such  loss  and  that  in 
conformity  with  his  authority  and  apparent  power  the  said  A. 
entered  into  the  investigation  of  said  loss,  and  this  plaintiff  had 
no  knowledge  of  his  limited  authority,  and  no  notice  of  any  facts 
sufficient  to  put  the  plaintiff  on  inquiry  by  which  he  could  discover 
such  limitations,  then  I  charge  you  you  must  find  for  the  plaintiff 
on   the  question  of  authority  of  A.   to  bind  the  defendant. 

(c)  The  burden  of  proof  on  the  plaintiff  as  to  the  authority  or 
power  of  A.  to  waive  breaches  of  the  contract  of  insurance  is  dis- 
charged upon  the  plaintiff  showing  to  your  reasonable  satisfaction 
that   the   said   A.   had   apparent   authority  so   to   do. 

(d)  I  charge  you  that  (lie  letters  introduced  in  evidence  can 
only  be  looked   to  by  you  as   tending  to  show   the   authority  of  A. 

(e)  If  A.  had  apparent  authority  to  waive  on  behalf  of  this 
defendant  a  breach  of  any  conditions  of  the  policy,  then  I  charge 
you  if  you  are  reasonably  satisfied  from  the  evidence  that  said  A. 
was  so  held  out  by  the  defendant,  or  had  apparent  authority  so 
to  do,  then  I  charge  you  that  private  limitations  upon  his  authority 
are  as  though  no  such  limitations  existed  as  to  the  issues  in  this 
cause,  unless  you  further  believe  from  the  evidence  that  the  plaintiff 
knew  of  these  facts  sufficient  to  put  him  on  inquiry,  which,  if  fol- 
lowed,   would    have    disclosed    to    the    plaintiff   such    limitations. 

(f)  Before  you  can  find  that  the  defendant  by  its  conduct 
waived  any  forfeiture  of  the  policy,  if  there  was  such  forfeiture, 
you  must  find  from  the  evidence  that  the  defendant  or  its  authorized 
agent,  had  knowledge  of  the  material  facts  constituting  such 
forfeiture.10 

9— Underwood   v.    Farmers'    Joint  Farmers'  Ins.  Co.  v.  Vog-ol.  —  Ind. 

S.    Ins.    Co.,   57  N.   Y.   500;   Dohn   v.  App.    — ,    73    N.    E.    612.       But    see 

Farmers'  Joint  S.  Ins.  Co.,  5  Lans.  Emanuel   v.   Maryland   Cas.   Co.,    '•'! 

275.  N.    Y.    S.    36,    47    Misc.    (X.    Y.)    378. 

10— Georgia  H.   Ins.  Co.  v.   Allen,  where    it   was   held    adjuster   could 

128  Ala.  451,   30   So.   537   (538);    Ohio  not  waive  provisions  of  policy. 


774  FORMS  OP  INSTRUCTIONS.  [§  1161. 

§  1161.  If  Defendant  Denies  Liability  Plaintiff  Not  Obliged  to 
Furnish  Further  Proofs.  If  you  believe,  from  the  evidence,  that  the 
plaintiff  furnished  to  the  defendant  within,  etc.,  what  purported 
to  be  proofs  of  loss,  though  not  in  exact  conformity  to  the  require- 
ments of  the  policy,  and  that  they  were  objected  to  upon  that 
ground,  still,  if  you  further  believe,  from  the  evidence,  that  the 
defendant  then  denied  any  liability  to  the  plaintiff  under  said 
policy,  and  declared  that  the  company  would  pay  no  alleged  claim 
thereunder,  then  such  declarations  amounted  to  a  waiver  of  any 
further  proof  of  loss,  and  the  plaintiff  was  under  no  obligation  to 
furnish  any  others.11 

§  1162.  Mere  Silence  Not  Enough  to  Infer  Waiver  of  Policy. 
You  are  instructed  that  in  order  to  effect  a  waiver  of  the  condition 
in  the  policy  regarding,  etc.,  you  must  believe,  from  the  evidence, 
that  the  officers  or  agents  of  the  company  either  said  or  did  some- 
thing reasonably  calculated  to  mislead  the  plaintiff  or  throw  him 
off  his-  guard  in  respect  to,  etc.;  mere  silence  is  not  enough  from 
which  to  infer  a  waiver  of  this  condition  of  the  policy.  And  in 
this  case,  if  you  believe,  from  the  evidence,  etc.,  this  would  not 
amount  to  a  waiver  of  the  condition  in  the  policy.12 

§  1163.  False  Swearing  in  Froofs  of  Loss,  Etc. — Intent  to  De- 
fraud Avoids  Policy,  (a)  In  regard  to  the  sworn  statement  of 
plaintiff  in  his  proof  of  loss  that  (lie  was  the  owner  in  fee  simple 
of  the  premises,  etc.,)  the  court  instructs  you  that  although  you 
may  believe,  from  the  evidence,  that  the  plaintiff  at  the  time  was 
occupying  the  premises  under  a  lease,  these  tacts  alone  would  not 
constitute  a  defense  to  this  action.  In  order  to  create  a  defense 
under  the  condition  of  the  policy  in  relation  to  false  swearing,  it 
must  appear,  from  the  evidence,  that  the  plaintiff  not  only  swore 
falsely,  but  that  he  did  so  willfully  and  knowingly  and  with  the 
intention  of  deceiving  the  officers  of  the  company.13 

(b)  If  you  believe,  from  the  evidence,  that  the  plaintiff  included 
in  his  proofs  of  loss,  which  he  furnished  to  the  company,  articles  of 
property  which  did  not  belong  to  him,  knowingly  and  with  intent  to 
defraud  the  company,  knowing  that  he  had  no  right  so  to  do,  this 
would  avoid  the  policy,  and  the  plaintiff  cannot  recover  in  this  suit.14 

11— Harriman  v.  The  Queen  Ins.  102  N.  W.  120:  Herzog  v.  Palatine 
Co.,  49  Wis.  71,  5  N.  W.  12;  Mut.  L.  Ins.  Co.,  36  Wash.  611,  79  Pac.  287; 
Ins.  Co.  v.  Thomas,  101  Md.  501,  61  Ins.  Co.  v.  Mides,  14  Wallace  375; 
Atl.  293;  Bennett  v.  Maryland  Ins.  Franklin  Ins.  Co.  v.  Culver,  6  Ind. 
Co.,  14  Blatchf.  422;  Rogers  v.  137;  Planters'  Mut.  Ins.  Co.  v.  De- 
Traders'  Ins.  Co.,  6  Paige  Ch.  583;  ford  et  al.,  38  Md.  328;  L/ittle  v. 
Phillips  v.  Protection  Ins.  Co.,  44  Phcenix  Ins.  Co..  123  Mass.  380.  25 
Mo.  220.  Am.   Rep.    96;     Parker  v.    Amazon 

12— Muller  v.   S.   S.  P.  Ins.  Co.,  87  Ins.    Co..    34    Wis.    363;    Marion    v. 

Penn.    St.    399;    McDermott     v.   Ly-  Great    Rep.    Ins.   Co.,   35     Mo.     148; 

coming   Ins.    Co.,    44    N.    T.    S.    Ct.  Frankl'n    F.   Ins.   Co.   v.  Updegraff, 

221,  4  Am.  Rep.   664.  43  Penn.  St.  350. 

13— Do^sre  v.  N.  W.  Nat.  Ins.  Co.,  14— Farmers'  Mut.   F.   Ins.  Co.  v. 

49  "Wis.  501,  5  N.  W.  889;  Dalton  v.  Garrett,  42  Mich.  289,  3  N.  W.  951; 
Milw.  Mech.  Ins.    Co.,    126    la.  377, 


§  1164.]  INSURANCE— FIRE.  775 

§  1164.  Premises  Becoming  Unoccupied  Renders  Policy  Void, 
(a)  In  determining,  under  the  evidence,  whether  the  premises  be- 
came unoccupied  and  so  remained  for  thirty  days  or  more,  at  and 
before  the  loss,  you  are  instructed,  as  a  matter  of  law,  that  when 
the  property  insured  is  a  dwelling  house,  the  occupancy  required 
under  such  a  policy  as  this,  is  such  occupancy  as  ordinarily  attends 
a  dwelling  house;  the  word  "unoccupied"  in  the  policy  is  to  be  con- 
strued in  its  ordinary  and  popular  sense;  and  if  you  believe,  from 
the  evidence,  that  after  the  making  of  the  policy,  the  insured  with 
his  family  removed  from  the  house  and  ceased  to  occupy  the  same 
as  a  dwelling  house  until  the  loss,  and  that  this  had  continued  for 
thirty  days  or  more  before  the  fire,  then  the  policy  became  void, 
and  you  should  find  for  the  defendant.15 

(b)  The  court  instructs  the  jury  that  if  at  any  time  after  the 
policy  was  issued  the  occupants  moved  out  of  the  house  and  left 
no  one  living  there,  and  the  house  remained  in  that  condition  for 
ten  days  or  more,  said  house  was  unoccupied  within  the  meaning  of 
the  law  and  the  plaintiffs  are  not  entitled  to  recover,  and  your  verdict 
must  be  for  the  defendant.16 

(c)  One  of  the  representations  made  by  the  plaintiff  in  the  ap- 
plication upon  which  the  policy  was  issued  was  this  (set  out  the 
representation  as  to  occupancy)  and  the  policy  provides  among  other 
things  that  (set  out  the  condition  as  to  the  premises  becoming  va- 
cant). Now,  if  you  believe,  from  the  evidence,  that  at  the  time  of 
the  fire  the  premises  were  vacant,  and  that  the  defendant  and  its 
officers  and  agents  had  had  no  knowledge  or  notice  of  this  fact,  then 
the  plaintiff  cannot  recover.17 

§  1165.  Same  Subject — Conditions  Under  Which  Plaintiff  Can 
Recover.  If  you  believe,  from  the  evidence,  that  the  premises,  etc., 
were  unoccupied  at  the  time  the  policy  was  issued,  and  that  the 
agent  of  the  company  who  took  the  application  and  issued  the  policy 
knew  this,  then  the  fact,  if  proved,  that  the  premises  were  unoe- 

Geib  v.  International  Ins.  Co.,1  Dill,  dwelling  house  is  living  in  it.'  Cook 

Cir.   Ct.  443;    German  Am.   Ins.   Co.  v.  Ins.  Co.,  70  Mo.  610,  35  Am.  Rep. 

v.  Brown,  75  Ark.  251,  87  S.  W.  135.  438.     The  policy,   which   should   al- 

15 — "Western  Assur.  Co.  v.  Mason,  ways  be  closely  read  for  the  pur- 
5  111.  App.  141;  Whitney  v.  Black  pose  of  determining  the  intention 
River  Ins.  Co.,  72  N.  T.  117,  28  Am.  of  the  parties,  describes  the  build- 
Rep.  116;  Knowlton  v.  Patrons'  ing  insured  as  being  'occupied  as  a 
Androscoggin  P.  Ins.  Co.,  100  Me.  private  dwelling.'  It  is  proper,  and 
481,  62  Atl.   289.  often  necessary,  to  consider  the  use 

16 — Hoover   v.    Mercantile     Town  for  which  premises  are  intended  in 

Mut.   Ins.   Co.,   93  Mo.   App.   Ill,   69  determining   the    question    whether 

S.  W.  42   (43).  or  not  they  are  'unoccupied,'  within 

"This      instruction      contains      a  the  meaning  of  such  a  stipulation 

correct  statement  of  the  law,   and  as  is  before  us  now.  Cont.  Ins.  Co. 

the  testimony  offered  by  defendant  v.   Kyle.  124  Ind.  132.   24  N.   E.  727. 

tended  to  establish  the  facts  men-  9  L..  P.  A.  81.  19  Am.  St.  Rep.  77." 
tioned  therein.    It  has  been  held  by        17— Aurora   P.    &   M.    Tns.    Co.    v. 

the  supreme  court  of  Missouri,  fol-  KraniVh.   36  Mich.  289;   Cans  v.  St. 

lowing   a    New   York   case    on    the  "Paul  P.  Ins.  Co..  43  Wis.  108,  28  Am. 

same  subject,  that  'occupation  of  a  Rep.  535. 


776  FORMS  OF  INSTRUCTIONS.  [§  1166. 

cupied   at   the   time   of   the   fire  will   constitute   no   defense  to   this 
action.18 

§  1166.  Premises  Temporarily  Vacant.  Although  the  jury  may 
believe,  from  the  evidence,  that  the  house  was  vacant  and  unoccu- 
pied at  the  time  of  the  fire,  still,  if  the  jury  further  believe,  from 
the  evidence,  that  such  vacancy  was  but  temporary,  and  was  oc- 
casioned by  the  fact  that  one  tenant  had  but  a  day  or  two  before 
moved  out  to  enable  another  tenant  to  move  in,  and  that  such  new 
tenant  had  engaged  to  move,  and  was  about  to  do  so  when  the  fire 
occurred,  this  would  not  render  the  premises  vacant  and  unoccupied 
within  the  meaning  of  the  policy  of  insurance.19 

§  1167.  Duty  of  the  Court  to  Interpret  the  Policy — Suit  to  be 
Brought  Within  Twelve  Months.  The  jury  are  instructed  that  it  is 
the  duty  of  the  court  to  interpret  and  give  the  meaning  of  the  con- 
tract or  policy  offered  in  evidence  in  this  case,  and  the  court  in- 
structs the  jury  that  by  the  terms  of  the  policy,  the  plaintiff  cannot 
sustain  this  suit,  unless  it  was  commenced  within  twelve  months 
after  the  loss,  if  any  occurred,  or  unless  the  defendant  has  waived 
that  provision  of  the  policy,  and  if  the  jury  believe,  from  the  evi- 
dence, that  the  loss  in  question  occurred  on,  etc.,  then  the  jury 
should  find  the  issues  for  the  defendant,  unless  the  jury  further  be- 
lieve, from  the  evidence,  that  the  defendant  had,  in  some  manner, 
waived  the  necessity  of  commencing  suit  within  twelve  months  after 
the  loss,  as  explained  in  these  instructions  on  that  point.20 

§  1168.  Non-Payment  of  Premium — Waiving  Prompt  Payment, 
(a)  If  the  jury  believe,  from  the  evidence,  that  the  premium  men- 
tioned in  the  policy  had  not  been  paid  at  the  time  of  the  fire,  then, 
under  the  pleadings  in  this  case,  to  warrant  a  finding  for  the  plain- 
tiff, the  jury  must  believe  from  the  evidence  that  such  payment  was 
either  waived  by  the  defendant  or  that  the  defendant  agreed  with 
the  plaintiff  to  wait  for  such  payment  until  some  definite  period  of 
time  subsequent  to  the  happening  of  the  loss — and,  in  arriving  at  a 
conclusion  upon  these  questions,  the  jury  have  a  right  to  consider 
the  conduct  of  the  parties  in  reference  thereto,  so  far  as  it  appears 
in  evidence,  together  with  all  the  other  evidence  in  the  case.21 

(b)  The  policy  of  insurance  in  this  case  contains  a  condition  that 
the  company  should  not  be  liable  for  any  loss  occurring  when  the 

18— Aurora   F.    &   M.    Ins.   Co.   v.  Marine  F.  Ins.  Co.  v.  Whitehall,  25 

Kranich,  36  Mich.    289;     iEtna    Ins.  111.  466;   Merchants  Mut.  Ins.  Co.  v. 

Co.  v.  Meyers,  63  Ind.  238.  La  Croix,  35  Tex.  249,  14  Am.   Rep. 

19— Whitney   v.   Black   River  Ins.  370. 

Co.,  72  N.  Y.  117,  28  Am.  Rep.   116;  21— Southern      L.       Ins.       Co.      v. 

Cummins   v.    Agricultural   Ins.   Co.,  Booker,    9    Heisk.    606;    Mich.    Mut. 

67  N.  Y.  260,  23  Am.  Rep.  111.  L.   Ins.  Co.   v.   Powers,  42  Mich.  19, 

20— Riddlesbarger      v.       Hartford  51  N.  W.   962;    Beadle   v.   Chenango 

Ins.   Co.,    7  Wall.    386;    Portage   Co.  County    Mut.    Ins.    Co.,    3   Hill    161; 

Mut.   Ins.    Co.   v.   West,   6   Ohio   St.  Ayre  v.  New  England  Mut.  L.  Ins. 

599;    Keim  v.   Home  Mut.   Ins.   Co.,  Co.,  109  Mass.  430;  Howard  v.  Con- 

42  Mo.   38,   97  Am.   Dec.  291;   Peoria  tinental  Ins.  Co.,  48  Cal.  229. 


§  1169.]  INSURANCE— FIRE.  777 

premium  note  is  wholly  or  in  part  past  clue  and  unpaid;  and  if  you 
believe,  from  the  evidence,  that  when  the  loss  occurred,  there  was 
any  portion  of  the  premium  note  due  and  unpaid,  then  the  defend- 
ant is  not  liable  for  such  loss,  unless  you  further  believe,  from  the 
evidence,  that  the  defendant  had  in  some  manner  waived  or  excused 
tbe  prompt  payment  of  such  premium  note,  as  explained  in  these 
instructions.22 

§  1169.  Estopped  by  Uniform  Course  of  Business.  The  court  in- 
structs you,  as  a  matter  of  law,  that  a  local  agent  of  an  insurance 
company  may  be  authorized  by  the  course  of  business  to  waive  the 
conditions  and  stipulations  in  the  policy,  and  the  company  may  be 
bound  thereby,  notwithstanding  the  policy  says  that  he  may  not  do 
so;  and  if  the  jury  believe,  from  the  evidence,  that  for  a  number 
of  years  it  had  been  the  uniform  practice  of  the  defendant  to  give 
notice  of  the  time  when  the  premium  would  fall  due,  and  to  collect 
the  same  through  a  local  agent  residing  in  the  neighborhood,  then 
good  faith  required  that  this  mode  of  collection  should  not  be  dis- 
continued and  payment  required  at  the  home  office,  under  penalty 
of  a  forfeiture,  without  notice  to  the  plaintiff.23 

§  1170.  Increased  Hazard — Knowledge  of.  (a)  The  court  in- 
structs the  jury  that  the  defendant  cannot  be  held  to  have  waived 
the  condition  of  the  policy  with  respect  to  the  increase  of  risk,  un- 
less the  jury  believe,  from  the  evidence,  the  defendant  by  its  agents 
had  knowledge  of  the  extent  and  character  of  the  increase  of  risk, 
if  the  risk  was  increased;  and  with  such  knowledge  of  the  extent  and 
character  of  such  increase  of  risk  consented  thereto,  or  so  conducted 
themselves  toward  the  plaintiff  as  to  induce  a  reasonable  belief  in 
the  mind  of  the  plaintiff  that  such  increase  of  risk  would  not  be 
insisted  upon  by  the  defendants  as  a  defense  to  the  policy.24 

(b)  If  you  believe,  from  the  evidence,  that  shortly  after  the  first 
fire,  and  from  that  time  forward  until  the  second  fire,  there  was 
a  material  and  considerable  increase  of  the  hazard  from  fire  to  the 
insured  property,  occasioned  by  reconstruction  of  the  premises  and 
building  mentioned  in  the  policy,  and  changes,  alterations  and  re- 
pairs of  the  same,  and  by  the  continuous  pi'esence  during  that  time 
in  said  premises  and  building  of  a  large  number  of  workmen  and 
mechanics  engaged  in  said  work  and  that  the  plaintiff,  during  all  of 
said  time,  had  knowledge  of  said  continuous  work  by  said  workmen, 
and  that  the  plaintiff  did  not  notify  the  company  of  said  facts  so 

22— Garlick  v.  Miss.  Vail  .  Ins.  23— Union  Cent.  L.  Ins.  Co.  v. 
Co  44  la  553:  Shakey  v.  Hnwkeye  Potker,  33  Ohio  St.  459;  31  Am.  Rep. 
Ins  Co  44  la.  540;  Whpeler  v.  555;  Mound  City  Ins.  Co.  v.  Twin- 
Conn  Mutual  Life,  16  Hun  317;  iner.  19  Kans.  349;  Ga.  Ins.  Co.  v. 
Pafh  a'  Phornix  Mut.  Ins.  Co.,  44  Kinner,  28  Gratt.  88;  McCraw  v. 
Vt  481-  Sullivan  v.  Cotton  St.  L..  Olrl  N.  St.  Ins.  Co.,  78  N.  C.  149. 
Tns  Co  43  Ga.  423;  Jefferson  Mut.  24— North  British  Ins.  Co.  v. 
Ins'.  Co.'  v.  Murray,  74  Ark.  507,  86  Stieger,  124  111.  81  (87).  16  N.  E.  95. 
S.  W.  813. 


778  FORMS  OF  INSTRUCTIONS.  [§  1171. 

known  to  him  and  so  increasing  said  hazard,  and  that  the  agents  of 
the  company  at  Chicago,  named  in  the  policy,  did  not  have  knowl- 
edge of  such  fact  while  such  work  was  in  progress,  then  you  are 
instructed  that  the  policy  in  this  case,  by  reason  of  said  increased 
hazard,  became  and  was  wholly  void,  and  in  that  case  no  verdict 
can  be  rendered  upon  it  as  to  the  loss  or  damage  by  the  second 
fire.25 

§  1171.  Application  is  Made  a  Warranty— Warranty  as  to  Title. 
(a)  One  of  the  conditions  in  the  policy  is  that  any  false  repre- 
sentation made  by  the  assured,  of  the  condition  of  the  property,  or 
of  its  occupancy,  or  of  any  fact  material  to  the  risk,  will  avoid  the 
policy;  and  so  the  court  instructs  you,  as  a  matter  of  law,  that  any 
matter  material  to  the  risk,  if  contained  in  the  application,  and  if 
it  was  untrue,  in  fact,  will  avoid  the  policy,  whether  it  was  made 
intentionally  or  not  (unless  you  find,  from  the  evidence,  that  the 
company  is  estopped  by  the  conduct  of  its  agent  from  setting  up 
such  matters  in  defense  as  explained  in  these  instructions.)26 

(b)  The  policy  of  insurance  in  this  case  refers  to  the  written 
application  of  the  plaintiff  and  makes  it  a  warranty  of  all  the  mat- 
ter of  facts  therein  stated.  The  application  contains  these  questions 
and  answers :  Title — is  your  title  to  and  interest  in  this  property 
absolute?  If  not  state  its  amount,  and  give  the  name,  interest  and 
amount  of  others  concerned ;  answer,  Yes.  The  court  instructs  the 
jury  that  the  legal  effect  of  the  policy  and  of  these  questions  and 
answers  is  that  they  amount  to  a  warranty  that  the  plaintiff  was 
the  sole  and  absolute  owner  of  the  property.  While  the  deeds  and 
title  papers  introduced  in  evidence  show  that  the  title  to  an  un- 
divided half  of  the  property  was  in  one  A.  B.  at  the  time,  and  your 
verdict,  therefore,  must  be  for  the  defendant,  unless,  etc.27 

§  1172.  Warranty  as  to  Amount  of  Incumbrance — Waiver  of  Con- 
ditions— Estoppel,  (a)  You  are  instructed  that  by  the  terms  of 
the  policy  introduced  in  evidence,  the  insured  warrants  the  truth 
of  all  the  material  statements  contained  in  his  application  for  in- 
surance, and  among  the  matters  so  warranted  by  the  plaintiff  is  the 
statement  that  the  incumbrances  on  the  property  insured  only 
amounted  at  that  time  to  the  sum  of  ($1,000).  This  was  a  repre- 
sentation of  a  then  existing  fact  respecting  the  property  insured, 
which  was  material  to  the  risk,  and  if  it  was  not  substantially  true, 
this  would  render  the  policy  void.  If,  therefore,  you  believe  from 
the  evidence,  that  at  the  time  of  the  making  of  the  said  application 
there  was  other  incumbrance  on  said  premises  over  and  above  the 
said  ($1,000)  to  the  amount  of,  etc.,  and  that  this  was  not  called 
to  the  attention  of  the  agent  who  took  the  application  and  that  he 

25— Mech.    Tns.    Co.    of    Phila.     v.  Equitable  L..   Assur.   Soc,   71  C.  C. 

Hodge,  149  111.  298  (308),  37  N.  E.  51.  A.   121,  138  Fed.  705. 

26— Jennings  v.  Chenango  County  27— ^tna    Tns.     Co.    v.    Resh.    40 

Mut.   Ins.   Co.,   2  Denio  75;   Doll  v.  Mich.    241;    Rosenstein    v.    Traders 


§  1172.]  INSURANCE— FIRE.  779 

bad  no  notice  or  knowledge  of  such  other  incumbrance,  this  would 
render  tbe  policy  void,  and  the  plaintiff  cannot  recover  in  this 
suit.28 

(b)  Although  you  may  find,  from  the  evidence,  that  there  was 
other  incumbrance  on  the  property  over  and  above  the  ($1,000) 
mentioned  in  the  application  for  insurance,  still,  if  you  further  be- 
lieve, from  the  evidence,  that  all  the  facts  and  circumstances  con- 
nected with  such  other  incumbrance  were  called  to  the  attention 
of  the  agent  who  took  said  application,  and  that  he  advised  the 
plaintiff  that,  in  view  of  such  circumstances,  it  would  be  unneces- 
sary to  mention  such  other  incumbrance  and  that  it  was  in  conse- 
quence of  such  advice  that  such  addition  and  incumbrance  was 
omitted  in  the  application,  then  the  defendant  is  estopped  from 
urging  such  omission  as  a  defense  to  this  action,  and  as  to  that 
question,  you  should  find  in  favor  of  the  plaintiff.29 

(c)  If  'the  evidence  shows  that  U.  was  the  agent  of  the  in- 
surance company  at  Jacksonville,  in  'the  business  of  insurance  of 
such  property  as  it  insured  for  plaintiff,  and  that  he  had  the  policies 
of  H.  in  his  possession,  and  then  knew  that  H.  had  mortgaged  all 
the  one  hundred  acres  of  land  mentioned  in  the  policy,  except  one 
forty  acres  on  which  the  house  or  building  insured  stood,  and  if  the 
evidence  shows  that  said  policy,  on  its  face,  shows  that  the  lands 
named  in  said  policy  consisted  of  one  hundred  acres,  and  if  the 
evidence  further  shows  that  H.  told  U.,  at  the  time,  that  he  had 
made  the  mortgage  to  L.,  and  asked  U.  if  it  was  necessary  to  have 
the  same  indorsed  with  a  permit  or  consent  to  mortgage  the  prop- 
erty, of  the  company,  and  that  U.  told  him  (H.)  that  it  was  not 
necessary  and  that  it  was  only  necessary  to  have  a  permit  for  a 
mortgage  for  the  forty-acre  tract  on  which  the  house  stood,  then,  in 
law,  under  such  facts,  if  proven,  the  defendant  waived  the  for- 
feiture in  said  policy. 

(d)  The  court  further  instructs  the  jury,  that  under  the  insurance 
policy  in  evidence  is  a  provision  that  in  case  any  mortgage  or  in- 
cumbrance is  put  on  the  property  insured,  without  written  consent 
of  the  insurance  company,  indorsed  on  the  policy,  said  policy  shall 
become  void ;  yet,  in  law,  such  forfeiture  may  be  waived  by  the  in- 
surance company,  and  in  this  case,  if  you  find,  from  the  evidence, 
that  a  mortgage  was  put  on  said  premises  without  the  written  con- 
sent or  permit  of  the  defendant  still,  if  the  evidence  shows  that 
very  soon  after  the  execution  of  said  mortgage  H.  wont  to  U.  and 
that  U.  was  then  the  agent  of  said  insurance  company  in  the  busi- 
ness of  insuring  such  property  as  it  insured  for  plaintiff,  and   told 

Ins  Co.,  102  App.  Div.  147,  92  N.  T.  Spring-field  Ins.  Co.,  46  Wis.  671,  1 
S.  326.  N.    W.    426. 

28— Schumitsch  v.  Am.  Ins.  Co.,  29— Rockford  Ins.  Co.  v.  Nelson. 
48   Wis.    26,   3   N.   W.    595;    Ryan  v.     75    111.    548;    Harriman    v.    Queen's 

Ins.  Co.,  49  Wis.  71,  5  N.  W.  12. 


780  FORMS   OF  INSTRUCTIONS.  [§  1173. 

him  of  said  mortgage,  and  that  said  U.  stated  to  him  that  it  was 
all  right,  and  that  there  need  be  no  permit  or  consent  of  the  com- 
pany indorsed  on  the  policy  allowing  said  mortgage,  because  it  was 
not  on  -the  forty-acre  tract,  on  which  the  house  stood,  then,  in  law, 
said  conduct  of  said  agent  would  be  a  waiver  of  said  forfeiture,  and 
under  this  state  of  facts,  if  proven,  the  mortgage  would  not  make 
void  the  policy.30 

§  1173.     Fraud — Knowledge  of  Agent  Knowledge  of  the  Company. 

If  the  jury  believe,  from  the  evidence,  that  the  application  for  in- 
surance was  filled  out  or  drawn  up  by  the  agent  of  the  defendant 
and  that  the  insured  honestly,  frankly  and  fully  disclosed  to  such 
agent  the  real  facts  in  regard  to,  etc.,  and  that  the  insured  was 
induced  to  take  out  the  policy  and  pay  the  premium  by  the  assur- 
ances of  such  agent  that  the  form  in  which  the  facts  in  regard  to, 
etc.,  were  stated  in  the  application  was  the  correct  one,  then  the 
defendant  is  estopped  from  claiming  any  advantage  from  any  mis- 
statement in  the  said  application  in  regard  to,  etc.,  if  the  same  has 
been  proved.31 

§  1174.     Condition    as    to    Other    Insurance — Waiving     Condition. 

(a)  That  among  the  conditions  in  the  policy  sued  on,  is  one  which 
provides:  that  if  the  assured  should  thereafter  procure  any  other 
insurance,  etc.;  and  the  court  instructs  you,  that  if  you  find,  from 
the  evidence,  that  the  plaintiff,  after  receiving  the  policy  from  the 
defendant  company,  and  before  the  loss  in  question  occurred,  ob- 
tained other  insurance  upon  the  property,  which  had  not  expired  at 
the  time  of  the  fire,  and  that  no  notice  thereof  was  given  to  the 
defendant,  its  agents  or  officers,  before  the  fire,  or  to  which  the 
company  or  its  agents  did  not  consent,  then  this  would  render  the 
plaintiff's  policy  void,  and  he  cannot  recover  in  this  suit.32 

(b)  Although  you  may  believe,  from  the  evidence,  that  after  re- 
ceiving (the  policy  from  defendant  the  plaintiff  did  procure  other 
insurance  on  the  property  in  question  (without  having  the  consent 
of  the  secretary  written  on  the  policy),  still,  if  you  further  believe, 
from  the  evidence,  under  the  instructions  of  the  court,  that  A.  B. 
was  at  the  time  the  general  local  agent  at  S.,  and  had  authority  to 
receive   and  take   applications  for  insurance  by  defendants,   and   to 

30— Phenix  Ins.    Co.   v.    Hart,   149  389;   McCall   v.    Phoenix,   etc.,   9  W. 

111.  513  (515,  516,  525),  36  N.   E.  990.  Va.  237,  27  Am.  Rep.  558;  Home  Ins. 

"We  are  of  the  opinion  that   the  Co.  v.  Lewis,  48  Tex.  622. 

company  was  estopped  from  insist-  32 — Am.    Ins.    Co.    v.    Gallatin,    48 

ing-   upon    the   forfeiture   set   up   in  "Wis.    36,    3    N.    W.    772;    Mellen    v. 

its  pleas,  and  while  the  instructions  Hamilton    Fire    Ins.    Co.,    17   N.    T. 

given  may  not  have  been.technical-  609;    Burt   v.   People's  Mut.   F.   Ins. 

ly  correct,  they  stated  the  law  ap-  Co.,  2  Gray  397;  Shurtliff  v.  Phcenix 

plicable   to    the    facts    of    the    case  Ins.   Co.,    57    Me.    137;     New    York 

with    substantial    accuracy."  Cent.  Ins.   Co.   v.  "Watson,  23  Mich. 

31— Lasher  v.  N.  "W.  Nat.  Ins.  Co.,  486;   Lockey   v.   Georgia  Home  Ins. 

55   How,    (N.   T.)   Pr.   318;    Manhat-  Co.,  42  Ga.  456;  Jewett  v.  Home  Ins. 

tan  F.  Ins.   Co.   v.   "Weill,  28  Gratt.  Co.,  29  la.   562. 


§i  1175.]  INSURANCE— FIRE.  781 

make  contracts  for  the  company  in  relation  -thereto — and  further, 
that  while  the  said  A.  B.  was  so  acting  as  agent,  the  plaintiff  noti- 
ced him  of  his  intention  to  take  such  additional  insurance  and  after- 
wards told  him  he  had  done  so,  and  that  neither  the  said  agent,  nor 
any  one  else  on  behalf  of  defendant,  notified  the  plaintiff  that  such 
additional  insurance,  without  being  indorsed  on  the  policy  (or  con- 
sented to  in  writing  by  the  secretary),  would  render  or  had  ren- 
dered the  policy  void,  then  the  defendant  must  be  deemed  to  have 
waived  the  condition  in  the  policy  regarding  such  additional  in- 
surance, and  the  plaintiff's  right  of  recovery  will  not  be  affected 
thereby.33 

§  1175.  Other  Insurance  Known  to  the  Defendant.  Although  the 
jury  may  believe,  from  the  evidence,  that  the  plaintiff  had  other 
insurance  on  the  property  in  question  not  indorsed  upon  the  policy, 
still,  if  the  jury  further  believe,  from  the  evidence,  that  the  exist- 
ence of  such  other  insurance  was  known  to  the  defendant  when  its 
policy  was  issued,  -then  these  facts  would  amount  to  a  waiver  of  the 
condition  requiring  additional  insurance  to  be  indorsed  on  the  policy 
or  consented  to  by  the  defendant  in  writing.34 

§  1176.  Representations  as  to  Incendiarism.  Among  the  questions 
propounded  to  the  insured,  in  the  application  for  insurance,  was  this : 
Incendiarism — have  you  any  reason  to  believe  your  property  is  in 
danger  from  it?  and  the  answer  is,  No.  And  the  court  instructs 
the  jury,  as  a  matter  of  law,  that  that  question  and  answer  related 
to  a  matter  which  was  material  to  the  risk,  and  if  you  believe,  from 
the  evidence,  that  at  the  time  that  application  was  made  and  the 
policy  sued  on  in  this  case  issued,  the  plaintiff  knew  that  an  attempt 
had  then  recently  been  made  to  burn  the  premises  insured,  and  that 
he  failed  to  disclose  that  fact  to  the  defendant's  agent  who  took  the 
application  and  delivered  the  policy,  then  these  facts  would  render 
the  policy  void,  and  the  jury  should  find  for  the  defendant.35 

§  1177.  Non-Compliance  with  Conditions.  Among  the  conditions 
of  this  policy  is  this:  ("If  the  interest  of  the  assured  in  the  prop- 
erty be  other  than  the  entire,  unconditional  and  sole  ownership  of 
the  property  for  the  use  and  benefit  of  the  assured,  it  must  be  so 
represented  to  the  company,  and  so  expressed  in  the  written  part 
of  this  policy,  otherwise  this  policy  shall  be  void;")  and  the  court 
instructs  you,  that  if  you  believe,  from  the  evidence,  that  the 
plaintiff   was    not    the    sole    and    absolute    owner    of    the    property 

33— Am.   Ins.    Co.    v.    Gallatin,   48  Bank  v.   Hartford   F.    Ins.    Co.,   11 

Wis.    36,   3  N.   W.  772;    Geib  v.   In-  Cush.  265. 

ternational  Ins.  Co.,  1  Dill.  Cir.  Ct.  34 — Richardson  v.  Westchester  F. 

443;    Goodall  v.  New  England  Mut.  Ins.    Co.,    15   Hun  472;    Carr  v.    Hi- 

F.  Ins.  Co.,  25  N.  H.  169;  Ins.  Co.  of  hernia  F.  Ins.  Co.,  2  Mo.  App.  466; 

N.  Am.  v.  McDowell,  50  111.  120,  99  Goodall    v.    New   England    Mut.    F. 

Am.    Dec.   492;    Schenck   v.    Mercer  Ins.  Co.,  25  N.   H.  169;    Ins.  Co.  of 

County  Mut.  Ins.  Co.,  24  N.  J.  447;  N.  Am.  v.  McDowell,  50  111.  120,  99' 

Hayward  v.  N.  Ins.  Co.,  52  Mo.  181,  Am.  Dec.  497. 

14  Am.  Rep.  400;  Contra:  Worcester  35— North    Am.     F.     Ins.     Co.    v. 


782  FORMS  OF  INSTRUCTIONS.  [§  1178. 

insured,  holding  the  same  for  his  own  use  and  benefit  at  the 
time  he  made  the  application  for  insurance  and  he  did  not  notify 
the  agent  of  the  company  of  that  fact,  then  this  would  render  the 
policy  void,  and  the  plaintiff  cannot  recover,  unless  the  jury  further 
believe,  from  the  evidence,  that  the  agent  of  the  company  knew  the 
facts  in  relation  to  the  ownership  of  the  property  or  had  knowledge 
of  such  facts  as  ought  to  have  put  a  reasonably  prudent  and  careful 
man  upon  inquiry  with  reference  thereto.30 

§  1178.  Agreement  to  Renew — Liability  for  Failure  to  Renew 
Insurance,  (a)  In  this  case,  the  burden  of  proof  is  on  the  plain- 
tiff, and  unless  the  evidence  preponderates  in  behalf  of  plaintiff  he 
cannot  recover.  In  no  event  can  he  recover  more  than  $ .  Be- 
fore the  plaintiff  can  recover,  he  must  prove  by  a  preponderance 
of  the  evidence  that  the  defendant,  by  an  agent  authorized  so  to  do, 

agreed  to  renew  the  $ policy  for  the  plaintiff,  and  failed  to  do 

so,  and  that  the  property  described  in  the  policy  was  lost  by  fire. 

(b)  By  law  it  was  not  the  duty  of  defendant  to  renew  such  policy. 
The  defendant  oould  only  be  made  liable  by  its  agreement  to  renew, 
and  the  burden  of  proof  is  on  the  plaintiff  to  show  that  the  defend- 
ant did  agree  to  renew  the  $ policy. 

(c)  The  court  instructs  the  jury  'that  any  statement  in  the  board 
of  directors  by  any  individual  that  the  company  ought  to  pay  the 
loss  is  not  binding  on  the  company,  and  should  not  be  considered  by 
the  jury. 

(d)  It  is  not  shown  here  that  the  association  could  recover  the 
loss  if  it  paid  it,  of  the  notary,  and  you  should  disregard  all  argu- 
ments or  statements  of  counsel  to  that  effect,  or  that  tend  to  dis- 
credit the  witnesses  called  by  him.37 

§  1179.  Location — Removal  of  Property  as  Affecting  Risk.  If 
the  jury  conclude  from  the  evidence  that  said  property  was  not  lo- 
cated in  said  two-story  building  at  the  time  defendant  assumed 
the  risk,  then  the  removal  of  the  property  from  other  location  would 
not  violate  the  contract,  of  insurance  as  defendant  has  not  alleged 
such  removal  as  a  defense  to  plaintiff's  action:  Rather,  in  this  case, 
the  defendant  not  having  alleged  it  it  would  not  give  to  the  de- 
fendant the  right  to  prove  it  and  rely  on  it  in  this  case.  And  with 
that  correction  I  charge  you  that — because  it  makes  no  difference 
where  the  property  was  actually  located ;  it  is  where  defendant  as- 
sumed the  risk;  and  removal  from  or  absence  from  the  place  is  suf- 
ficient to  avoid  the  insurance,  and  removal  from  one  place  to  an- 
other cannot  be  excused  because  the  removals  did  not  begin  from 

Throop,   22   Mich.    146,    7  Am.    Rep.  F.    Ins.   Co.,   114  La.   146,   38   So.   87. 

638.  See    also    Glens    Falls    Ins.    Co.    v. 

36— Smith  v.  Commonwealth  Ins.  Michael,   —   Ind.    — ,    74   N.    E.    964, 

Co.,  49  Wis.  322,   5  N.  W.  804;   Ins.  where  contract  held  to  be  voidable 

Co.  of  No.  Am.  v.  Erickson,  50  Fla.  instead   of  void. 

419,  39  So.   495;    St.   Landry  Whole-  37— Andryczka    v.    The    Towarzs- 

sale  Merc.   Co.   v.  New  Hampshire  two,  86  111.  App.  229  (231). 


§  1180.]  INSURANCE— FIRE.  783 

the  place  where  defendant  assumed  the  risk,  and  the  defendant  did 
allege  that  the  property  was  removed  from  the  two-story  building 
where  it  assumed  the  risk,  and  had  the  right  to  prove  it  and  to  rely 
on  it  in  the  case,  because  it  was  the  effect  of  the  removal,  to  wit: 
the  absence  of  the  property  from  the  place  of  assumption  of  risk, 
and  not  the  act  of  removal,  'that  was  material.38 

§  1180.  Property  Insured  in  Wrong  Name — Husband  and  Wife, 
(a)  The  defendant  alleges  that  this  property  was  insured,  not  in 
the  name  of  Mary  J.  M.,  but  in  the  name  of  J.  D.  M.,  and  that 
Mary  J.  M.  was  not  insured  at  all  by  'the  defendant.  The  defend- 
ant must  prove  that  by  the  preponderance  of  the  evidence. 

(b)  In  a  civil  case,  a  party  who  alleges  a  fact  material  to  the 
ease  must  prove  it.  And  so  a  plaintiff  that  comes  into  court  and 
alleges  that  the  defendant  is  indebted  to  him  in  a  certain  way,  set- 
ting out  the  facts  out  of  which  the  indebtedness  arises,  is  bound  to 
prove  the  allegations  necessary  to  establish  his  claim  by  the  pre- 
ponderance of  the  evidence.  And  in  this  case  the  plaintiff  must 
prove  what  she  alleges  in  this  complaint  in  reference  to  the  insur- 
ance of  her  property  by  the  defendant,  and  the  destruction  of  the 
property  while  the  insurance  was  in  force,  and  the  failure  of  the 
defendant  to  pay  its  obligations  arising  upon  the  destruction  of  the 
property.  If  she  establishes  these  facts  she  is  entitled  to  a  verdict, 
unless  the  defendant  defeats  her  right  to  recovery  by  something 
which  it  alleges  on  its  part. 

(c)  The  court  instructs  you  that  if  a  party  acts  for  his  wife  in 
insuring  and  could  insure  for  her  by  insuring  in  her  own  name,  and 
acts  as  her  agent  in  adjusting  her  loss  in  his  name,  and  makes  de- 
mand for  her  in  his  name,  she  would  be  bound  by  a  suit  instituted 
.for  recovery  in  his  name  as  a  suit  for  her  by  her  agent  or  express 

trustee,  if  the  suit  was  expressly  instituted  by  him  as  trustee  or 
agent  of  his  wife,  but  not  otherwise.  If  the  suit  had  gone  into  final 
judgment  on  the  merits  of  the  case  it  might  be  a  bar,  but  not  other- 
wise; but  if  it  should  appear  to  you,  from  the  facts  of  the  case, 
that  there  has  been  another  suit  in  this  case  by  the  husband  of  the 
plaintiff  in  reference  to  the  insurance,  and  that  suit  was  terminated 
by  a  discontinuance  of  the  suit,  and  not  by  the  judgment  of  the 
court  in  determining  the  rights  of  the  parties,  and  determining  that 
the  plaintiff  was  not  entitled  to  recover,  but  by  a  discontinuance — 

38 — Montgomery  v.  Del.  Ins.  Co.,  other  than   that  at  which  insured, 

67  S.  C.  399,  45  S.  E.  934  (938).  by  his  8th,  9th,  10th,  11th  and  12th 

"The  question  here  is,  whether  requests,  under  which  the  judge 
the  judge  erred  in  charging  the  charged,  substantially,  that  the  de- 
jury  as  above  quoted.  We  think  fendant  would  not  be  liable  for  a 
not.  There  was  no  allegation  in  the  loss  by  fire  at  a  location  other  than 
answer  of  insurance  in  the  Clarke  that  at  which  it  was  when  insured, 
building,  or  of  removal  therefrom,  unless  the  defendant  had  waived 
and  such  removal  was  not  an  issue  its  right  to  object  to  the  removal 
in  the  cause.  The  defendant  got  by  consent  given  before  or  after, 
the  benefit  of  the  law  of  removal  or  by  acquiescence." 
and   of   destruction   at   a   location 


784  FORMS  OF  INSTRUCTIONS.  [§  1181. 

something  that  does  not  determine  the  rights  of  the  parties  at  all — 
then  it  could  not  he  a  bar,  either  to  the  agent  himself,  J.  D.  M.,  to 
renew  the  suit,  and  specially  not  to  the  plaintiff,  if  she  were  of  his 
principal,  or  his  cestui  que  trust,  the  party  for  whom  he  was  trustee. 

(d)  If  the  acts  of  J.  D.  M.  did  not  bind  M.  J.  M.  in  all  respects 
as  to  taking  out  insurance,  suing  on  the  policy  in  his  name,  and 
dealing  with  the  adjuster,  M.  J.  M.  cannot  treat  the  acts  of  the 
adjuster  as  transactions  with  her,  redounding  to  her  benefit  as  mat- 
ters of  waiver,  if  the  acts  of  the  adjuster,  or  his  declarations  or 
dealings  or  conduct,  were  made  solely  with  reference  to  J.  D.  M.  as 
a  person;  but  if  they  were  made  with  reference  to  this  property, 
then  whatever  binding  effect  they  might  have  on  the  company,  so 
far  as  the  property  was  concerned,  would  redound  to  the  benefit  of 
the  owner  of  the  property,  or  at  least  to  the  party  that  was  actually 
insured  against  loss  by  insurance  of  the  property.  So,  if  the  mat- 
ter is  true  in  this  case,  that  there  were  such  acts  or  declarations,  or 
transactions  of  the  adjuster  in  reference  to  the  property,  then  M. 
J.  M.  can  claim  the  benefit  of  that,  just  as  if  she  had  been  the  actual 
party  with  whom  the  adjuster  was  dealing  at  the  time.30 

§  1181.  House  Falling  Over — Fire  Commencing  at  the  Time  or 
After  its  Fall,  (a)  The  court  instructs  you  that,  even  though  you 
may  believe  from  the  evidence  that  the  plaintiff's  building,  which 
was  insured  by  the  defendant,  was  blown  from  its  blocks  by  the 
wind  and  turned  over  on  its  side,  yet  if  you  further  believe  from 
the  evidence  that  said  building  remained  intact  and  retained  its 
identity  as  a  building,  then  and  in  such  case  the  said  building  did 
not  fall  within  the  meaning  of  the  clause  in  defendant's  policy  of 

39 — Montgomery  v.  Del.  Ins.   Co.,  husband's     name     instea'd     of     the 

67  S.   C.    399,  45  S.   E.  934   (936),  100  wife's,  and  the  husband  thereafter 

Am.   St.   Rep.   750.  thought  it  necessary,  by  reason  of 

"J.  D.  M.  testified  that  he  made  this  erroneous  entry,  to  make  proof 
proof  of  loss  and  brought  action  in  of  loss  and  bring  action  in  his  own 
his  own  name,  because  informed  by  name,  and  afterwards,  upon  fur- 
the  agent  of  defendant  that  the  ther  advice,  discontinued  such  ac- 
only  record  of  any  insurance  of  this  tion  before  judgment  entered,  we 
property  was  on  what  is  known  as  do  not  think  that  such  proof  of  loss 
the  'register'  and  'that  was  in  my  and  action  instituted  would  estop 
name,'  that  he  never  claimed  the  the  wife  from  claiming  the  insur- 
property  in  his  own  name,  except  ance  money  in  an  action  afterwards 
as  he  was  made  to  do  in  the  proof  instituted  in  her  own  name.  And 
of  loss;  and  that  he  claimed  it  was  at  the  time,  and  under  the  same 
his  wife's  property  from  the  time  circumstances,  we  think  that  the' 
he  bought  it.  With  this  testimony  declarations  and  acts  of  the  corn- 
before  the  court,  the  defendant  can-  pany's  authorized  agents  made  to 
not  complain  that  the  judge  in-  the  husband  in  his  own  person  in 
structed  the  jury  that  the  former  relation  to  the  property  insured, 
action  might  be  a  bar  to  this  action  while  he  was  in  fact  acting  as  to 
if  it  had  gone  into  final  judgment,  this  same  property  in  the  interest 
but  not  otherwise.  Bigelow  Es-  of  his  wife,  the  real  owner,  would 
toppel  (2d  Ed.)  pp.  24,  25;  Freeman  be  as  binding  upon  the  company  as 
on  Judg.  §§  261,  262.  If,  through  if  made  to  the  wife.  There  was  tes- 
the  agent's  mistake  and  without  timony  on  all  these  matters- 
fault  on  the  part  of  J.  D.  M.,  entry  whether  established  as  facts,  was 
was   made   on   the  register  of  the  left  to  the  jury." 


§  1182.]  INSURANCE— FIRE.  785 

insurance,  providing  that  if  said  building,  or  any  part  thereof,  should 
fall,  except  as  a  result  of  fire,  all  insurance  by  said  policy  on  such 
building  or  its  contents  should  immediately  cease. 

(b)  Before  it  can  be  held  that  the  plaintiff's  house  had  fallen, 
you  must  find  from  the  evidence  that  his  house  had  fallen  to  pieces, 
and  was  not  left  intact  as  a  building  after  it  had  been  blown  from 
its  foundation  or  posts  upon  which  it  was  standing  before  the 
storm.40 

§  1182.  If  Jury  Cannot  Find  Market  Value  of  Goods  Destroyed, 
Should  Find  for  Defendant.  If  the  jury  believe  from  the  evidence  that 
any  wine,  whisky,  brandy,  beer,  tobacco,  cigars,  or  other  merchan- 
dise was  destroyed,  then  it  will  be  for  the  jury  to  find  from  the  evi- 
dence how  much  of  such  liquors  or  other  merchandise  was  destroyed 
and  the  market  value  thereof;  and  if  the  jury  cannot  find  from  the 
evidence  the  market  value  of  the  liquors  or  merchandise  destroyed, 
then  they  cannot  find  for  the  plaintiff  as  to  such  liquors  or  mer- 
chandise.41 

§  1183.  Burden  of  Proof  on  Plaintiff  to  Prove  Items  of  Property 
or  Showing  Waiver,  (a)  The  burden  is  upon  the  plaintiff  to  satisfy 
you  of  what  was  there.  You  are  to  say  whether  there  was  there  at 
the  time  of  the  fire  the  items  of  property  which  are  described  in 
plaintiff's  proof  of  loss.  If  they  were  there,  then,  of  course,  he 
would  be  entitled  to  recover  of  this  insurance  company  the  value  of 
the  property  which  was  thus  found  upon  the  premises  at  the  time 
of  the  fire.42 

(b)  The  court  instructs  the  jury  that  the  burden  of  showing  a 
waiver  of  the  condition  requiring  action  to  be  commenced  within  six 
months   after  the  fire   occurred  is   on   the   plaintiffs,   and   they  must 

40 — Teutonia   Ins.   Co.   v.   Bonner,  that  as  shown  by  the  evidence  that 

81  111.   App.   231   (234).  the  building-  had   fallen   within  the 

"We   are   of  the   opinion   that   to  proper   meaning-  of   the   term   'fall' 

hold  that  a  well  constructed  frame  as  used  in  said  clause  of  the  policy, 

building    has    fallen,    when    it    has  still,  if  it  had  caught  fire  before  it 

merely  been  blown  from  blocks  on  fell,  or  was  in  process  of  being  con- 

which  it  rested,  and  turned  over  on  sumed  when  it  fell,  the  fact  that  it 

its    side,    remaining  intact   and    re-  did    fall   while  being  so   consumed, 

taining    its    identity     as    the     same  though  from  other  causes  than  the 

building,   would   be  to   give   to    the  fire,    would    not    bar    a    recovery." 

word  'fall'  its  most  ext      "ed  mean-  41 — Manchester     F.      A.      Co.      v. 

ing   in    favor    of    forfeiture,    when,  Feibelman,   118  Ala.   308,   23   So.   759 

under      such      circumstances,      we  (762). 

should    give   it   the   most  restricted  "This   was   a   proper   charge   and 
meaning    consistent     with     reason,  should    have   been   given.     If   there 
would   be  to  give  to  it  a  more  ex-  was    no    evidence    upon    which    the 
tended  meaning  than  writers  on  in-  jury    could     satisfactorily    base    a 
su ranee  law  usually  have  given  to  finding  as  to  the  value  of  the  prop- 
it.     Therefore   we   hold    that   appel-  erty   mentioned,   then    it   would   fol- 
lant's    exceptions    to   the    action    of  low,    that    they    could    not    find    for 
the  trial  court  in  the  giving    .     .     .  the  plaintiff  as  to  such  property." 
of    the    instruction     complained     of  42— McCoubrev     v.      German-Am. 
are    not   well    taken.     We   are   also  Ins.    Co.,    177    Mass.    327,    58    N.    E. 
of  opinion  that  even  if  it  could  be  1080. 
held   under   the   facts   of  this   case 
50 


786  FORMS  OF  INSTRUCTIONS.  [§  1184. 

show  the  same  by  a  preponderance  of  the  evidence,  or  they  cannot 
recover  in  this  action.43 

§  1184.  Burden  of  Proof  on  Defendant  Charging  Plaintiff  with 
Destroying  Building — Preponderance  of  Evidence.  Now  upon  that 
issue,  upon  that  defense,  the  defendant  here  has  the  affirmative,  and 
must  satisfy  you  by  a  preponderance  of  the  evidence  that  this  plain- 
tiff either  directly  or  indirectly  caused  the  destruction  of  that  build- 
ing by  fire,  in  order  to  entitle  it  to  the  defense  it  has  set  up.  I 
have  so  often  explained  to  you  what  the  preponderance  of  evidence 
is  in  such  cases  that  I  do  not  deem  it  necessary  to  dwell  upon  it 
here.44 

§  1185.  Fire  Insurance— False  Statements  in  Procuring  Policy — 
Arson — Cash  Value — Rule  of  Damages — Series,  (a)  If  B.  or  K., 
or  either  of  them,  knowingly  made  to  the  agents  of  the  insurance 
companies  a  false  and  fraudulent  statement  of  the  value  of  the 
property  to  be  insured,  in  order  to  procure  the  insurance,  then  the 
plaintiff  cannot  recover,  and  you  should  find  for  the  defendants; 
but  a  misstatement  of  such  value  made  in  good  faith,  believing  the 
same  to  be  true,  would  not  avoid  the  insurance. 

(b)  If  B.  in  the  proofs  of  loss  knowingly  made  a  false  and 
fraudulent  statement  of  the  value  of  the  property  destroyed  by  fire, 
then  he  cannot  recover;  but  a  misstatement  of  such  value  made  in 
good  faith,  believing  the  same  to  be  true,  will  not  avoid  the  policy. 

(c)  If  B.  and  K.  or  either  of  them,  set  fire  to  and  burned  the 
property  insured,  or  intentionally  caused  the  same  to  be  done,  the 
plaintiff  cannot  recover. 

(d)  If  B.  and  K.,  or  either  of  them,  made  any  false  and  fraud- 
ulent statement  as  to  matters  of  fact  material  to  the  risk  to  the 
agents  of  the  insurance  companies,  or  fraudulently  suppressed  any 
matter  of  fact  material  to  the  risk,  in  order  to  procure  the  insur- 
ance, then  in  such  case  the  plaintiff  cannot  recover;  but  the  mere 
omission  to  sitate  that  the  stock  was  second-hand,  or  that  they  had 
bought  it  at  a  discount  of  forty-eight  per  cent.,  would  not  be  suffi- 
cient to  avoid  the  insurance,  unless  the  same  was  done  with  intent 
to  defraud. 

(e)  By  "cash  value"  is  meant  the  cash  market  value  at  the 
time  and  place  where  the  property  was  situated,  and  where  the  fire 

43 — "We   are   of  the  opinion  that  the  evidence.'     There  was  no  error 

the  rules  of  law  involved  here  were  in  this  respect,  for  it   must  be  as- 

correctly    given."                                  .  sumed    that    the    jury    understood 

Allemania  F.  Ins.   Co.  v.  Peck  et  what    the    court    meant    by   a   pre- 

al.,   133   111.   220   (227),    24   N.   E.   538,  ponderance  of  the  evidence,  and,  if 

23  Am.  St.  Rep.  610.  counsel  for  appellant  was  not  satis- 

44— Schornak  v.  St.  Paul  F.  &  M.  fled  on  that  point,  it  was  his  duty 

Ins.   Co..  96  Minn.     299,    104    N.  W.  to  call  special  attention  to  it  under 

1087  (108S).  thp  rule  in    Steinbauer  v.   Stone,  85 

"Exception    was    taken      to    this  Minn.  274,  88  N.  W.  784,  and  Apple- 

charg-p.    unon    thp   ground    that    the  We  v.  Perry,  87  Minn.  242,  91  N.  W. 

court  did  not  inform  the  jury  what  893." 
it    meant    by    'a    preponderance    of 


§  1186.]  INSURANCE— FIRE.  787 

occurred,  if  there  was  such  market  value.  If  there  was  no  such 
market  value  there,  then  the  cash  value  in  the  nearest  adjacent 
markets,  or,  if  that  is  not  shown,  then  the  intrinsic  value  of  the 
property.  In  determining  the  cash  market  value  at  the  time  and 
place  where  the  fire  occurred,  you  may  consider  the  intrinsic  value 
of  'the  property;  what  value,  if  any,  it  had  in  other  adjacent  mar- 
kets; the  ease  or  difficulty  of  transporting  it  from  place  to  place; 
the  demand,  or  lack  of  it,  for  such  property;  thai  it  was  second- 
hand, if  it  was  such;  the  deterioration,  if  any,  from  value  at  first 
hand;  the  price  paid  for  it  by  plaintiff  by  K. ;  the  opinion  of  wit- 
nesses who  knew  the  market  or  other  value,  if  such  arc  in  evidence; 
and  all  other  facts  and  circumstances  in  evidence  tending  to  show 
value.  Prospective  and  unrealized  profits  are  not  to  be  taken  into 
consideration,  but  realized  profits  may  be  taken  into  consideration. 

(f)  If  you  find  for  the  plaintiff,  you  will  ascertain  the  actual 
cash  value  of  the  stock  destroyed,  take  three-fourths  of  it,  and  divide 
that  equally  between  the  two  policies;  but  in  no  event  can  you  find 
against  the  defendants  more  than  two  thousand  dollars  each,  ex- 
clusive of  interest,  no  matter  what  the  value  of  the  property.4"' 

§  1186.     Insurance      Contract — Floater      Policy — Series,     (a)      In 

measuring  the  value  of  testimony  in  this  case,  and  in  all  cases,  it  is 
important  to  keep  in  view  certain  leading  ideas  that  help  you  to 
measure  the  force  of  the  testimony.  In  some  cases  the  testimony, 
perhaps  all  of  the  way  through,  may  be  truthful,  or  some  witnesses 
may  be  mistaken,  and  innocently  mistaken.  You  may  fail  to  believe 
their  testimony,  or  rather  fail  to  give  credence  or  weight  to  it  on 
the  ground  that  you  believe  that  they  are  innocently  mistaken — sim- 
ply mistaken.  On  the  other  hand,  you  may  fail  to  give  value  to  the 
testimony  because  you  may  believe  it  bears  the  impress  of  perjury. 
Another  thought  is  that  the  manner  and  appearance  of  witnesses 
upon  the  stand  may  help  you  to  some  extent  to  determine  the  value 
of  the  testimony.  So  that  the  testimony  in  a  ease  of  some  witnesses 
may  be  as  genuine  as  a  standard  coin;  of  others  it  may  be  as  -worth- 
less as  a  counterfeit.  It  may  measure  up  to  par,  or  be  absolutely 
worthless.  Some  of  it  may  impress  you  as  being  simply  of  witnesses 
wdio  did  not  intend  to  testify  falsely  or  who  perhaps  were  careless, 
or  whose  memory  as  to  the  facts  was  wrong. 

(b)  Coming,  then,  to  this  ease,  with  these  suggestions  in  measur- 
ing the  testimony,  the  main  turning  point  is  the  question  whether 
there  was  a  contract  executed  here  which  bound  these  insurance 
companies  to  pay  (he  insurance.  There  is  no  contest  as  to  the 
amount  of  the  loss,  and  no  contradiction  of  the  testimony  showing 
exactly  what  the  loss  was.  There  is  no  dispute  that  proofs  of  loss 
were   sent.     But   the  fact   that    there  was   a   loss,   and   the    fact    that 

45— German-Am.    Ins,   Co.    v.   Brown,  75  Ark.   251,  87  S.  W.  135  (136). 


788  FORMS  OF  INSTRUCTIONS.  [§  118 G. 

proofs  of  loss  were  sent  in,  does  not  make  a  contract.  I  cannot 
compel  you  to  pay  a  loss,  arising  from  fire  or  from  any  other  source 
other  than  a  tort,  where  you  do  a  willful  wrong  or  injury.  I  can- 
not compel  you  to  pay  the  same,  based  on  a  contract,  simply  because 
I  claim  it.  If  you  dispute  my  right,  or  deny  that  there  was  any 
contract  between  us,  the  burden  is  upon  me  to  show  that  contract 
and  establish  it  by  the  weight  or  the  evidence.  So  here,  when  the 
plaintiff,  the  Art  Syndicate,  comes  along  with  claims  based  upon 
contracts  which  the  company  alleges  were  made  with  these  insurance 
companies,  and  the  insurance  companies  contest  the  point  that  there 
were  contracts,  the  burden  is  upon  the  plaintiff  to  satisfy  you,  by 
the  weight  of  the  evidence,  that  there  was  a  contract.  A  contract 
for  what?  A  contract  covering  ceramic  art  goods  located  we  will 
say  at  Atlantic  City;  perhaps  not  necessarily  there,  because  if  the 
testimony  is  to  be  believed,  it  was,  substantially,  that  a  floater  pol- 
icy, which  it  is  alleged  was  the  kind  of  policy  contracted  for  here,  is 
just  what  the  term  "floater"  means — floating  about  from  point  to 
point.  I  may  not  exactly  recall  the  cities;  but,  as  illustrating  the 
manner  of  their  business,  there  was  some  testimony  that  in  three 
months  they  exhibited  at  perhaps  Chicago,  Cleveland,  Boston,  New 
York,  and  Pittsburg.  So  that  a  floater  meant  a  policy  that  floated 
around  with  these  goods,  and  insured  them  to  the  extent  that  the 
understanding  of  the  parties  agi'eed  they  should  be  insured.  Now, 
was  there  a  contract  made?  If  there  was  no  contract,  no  binding 
agreements  between  these  parties,  that  is  the  end  of  the  plaintiff's 
case.  The  plaintiff  must  show  a  contract  which  binds  the  defend- 
ants. It  is  for  you  to  determine  whether  there  was  a  contract,  and, 
if  so,  what  it  was. 

(c)  It  is  alleged  by  the  plaintiff  that  it  was  a  floater  policy,  and 
the  meaning  of  that  I  think  is  quite  clear  from  the  testimony. 
These  policies  were  policies  to  the  extent  of  $5,000.  There  is  some 
dispute  as  to  whether  the  goods  were  to  be  in  Atlantic  City.  Prob- 
ably, within  the  fair  atmosphere  of  all  the  testimony,  the  policy 
was  intended  to  be — but  that  is  for  you  to  say — a  floater  policy 
covering  Atlantic  City,  to  run  a  year  at  the  rate  of  3  per  cent.,  and 
covering  any  other  points  within  the  express  arrangement  of  the 
parties,  if  there  was  an  express,  definite  arrangement  made.  It 
takes  three  links  to  make  the  contract.  Two  out  of  the  three  will 
not  make  it.  All  of  the  links  must  be  established.  If  it  is  clear 
that  the  first  link  in  the  contract  is  established,  that  the  minds  of 
these  two  agents  met,  and  it  was  clearly  understood  to  be  a  floater 

policy  to  the  extent  of  $ ,  covering  ceramic  art  goods,  and  then 

if  it  is  clear  that  that  meant  a  floater  policy,  whei"ever  the  goods 
might  be,  that  part  of  the  link  would  be  established,  unless  the 
expression,  "wherever  they  might  be."  was  qualified  by  some  other 
definite  arrangement.  If  it  was  definitely  understood  between  them 
that   while  it  was  to  be  a  floater  policy,  which  meant  floating  from 


§  1186.]  INSURANCE— FIRE.  789 

point  to  point,  the  insurance  was  not  to  cover  every  place  that  these 
goods  might  float  or  be  placed,  but  was  only  to  cover,  say,  the  best 
hotels,  or  high-class  hotels,  and  railroad  depots;  if  that  is  all,  even 
if  their  minds  met  to  that  extent,  that  is  the  second  point  in  the 
case.  If  they  were  to  cover  simply  those  points,  then  there  could  be 
no  recovery  in  this  ease,  because  stores,  no  matter,  how  good  they 
were,  were  not  part  of  the  arrangement.  If  the  arrangement  was 
generally  to  cover  hotels,  depots,  and  good  stores,  and  if  this  was 
a  fairly  good  store,  which,  perhaps,  cannot  very  well  be  disputed, 
then  the  policy  would  cover  the  store.  If  it  did  not  cover  the  store, 
in  the  sense  that  the  parties  agreed,  if  they  agreed  at  all,  but  simply 
covered  railroad  stations  or  depots  and  good  hotels,  then,  of  course, 
the  plaintiff  cannot  recover.  Then  another  step  or  link  which  would 
be  essential,  even  if  it  is  all  established  up  to  that  point,  is  what 
were  the  terms  of  payment?  The  rate  was  3  per  cent.  That  can- 
not be  disputed,  and  if  the  testimony  of  Mr.  H.  is  to  be  believed 
it  was  to  cover  a  year.  It  is  asserted  here,  as  a  principle  of  law, 
that  because  the  premium  was  not  actually  paid  at  the  time  there 
could  be  no  recovery.  That  might,  or  might  not,  be  a  good  pi'opo- 
sition ;  but,  leaving  that  out  of  the  case,  as  not  for  your  consid- 
eration, we  have  a  set  of  facts  which  settle  that  question,  if  you 
believe  the  testimony. 

(d)  On  the  question  of  payment,  within  the  general  scope  and 
method  in  which  these  two  agents  did  business  with  each  other, 
there  is  testimony  that  L.  &  Bro.  and  Mr.  H.,  in  the  interchange  of 
business,  amounting  sometimes,  as  Mr.  H.  says,  to  nine  or  ten 
policies  a  day,  and  in  the  hurry  of  business  necessarily,  and  in 
accordance  with  the  general  custom  of  all  the  insurance  agents  in 
the  City  of  P.  credit  was  extended,  in  the  sense  of  running  accounts, 
perhaps  as  a  clearing  house  would  run  and  clear  at  the  end  of  20 
or  30  days,  or  whatever  the  custom  was  as  between  L.  &  Bro.  and 
Mr.  H.,  to  settle  the  balance  as  shown  by  the  contra  accounts,  what- 
ever business  L.  &  Bro.  had  charged  againsl  II.  would  be  summed 
up  in  an  account,  whatever  business  II.  had  against  L.  &  Bro.  would 
be  summed  up,  and  the  difference  between  the  two  accounts  would 
represent  the  cash  balance  due  from  one  to  the  other,  and  then  a 
settlement  would  be  made  and  the  cash  paid.  If  it  is  true  that 
there  was  this  genera]  custom,  not  only  between  these  two  parties, 
but  generally  among  the  agencies  here  insurance  agents,  to  run  a 
line  of  credit  and  conduct  the  business  in  that  way,  then  it  is  fair 
to  implv  that  this  transaction,  being  one  of  perhaps  do/ens  had  be- 
tween the  parties,  went  into  the  account  in  thai  way,  and  therefore 
it  was  a  sufficient  contract,  as  to  thai  lint,  and  hound  these  com- 
panies. Mr.  T;..  of  T;.  tv  Bro..  who  represented  these  insurance  com- 
panies, testifies  that  the  contract  was  not  dosed.  Of  course  von 
are  to  take  your  own  recollection,  and  from  that  point  of  view  weigh 
the  value  of  the  testimony,  but  I  believe  Mr.  L.'s  testimony  is  that 


790  FORMS   OF   INSTRUCTIONS.  [§  1186. 

Mr.  H.  came  to  see  him,  and  there  is  no  dispute  about  that.  There 
was  some  talk  about  a  floater  policy,  and  Mr.  L.  said  to  him  that  he 
would  like  to  know  where  these  goods  were.  Mr.  H.  replied  that 
he  was  not  sure,  but  he  judged  they  were  at  Atlantic  City,  because 
the  telegram  came  from  there.  Mr.  L.  's  testimony  is  that  he  refused 
to  bind  himself,  refused  to  make  a  contract,  unless  the  location  of 
the  property  in  the  floater  policy  was  limited  to  railroad  depots  or 
stations,  and  high-class,  or  first-class,  or  best  hotels.  Now,  if  that 
story  is  true,  if  that  is  exactly  what  he  agreed  to  do,  and  to  that 
extent  he  was  willing  to  make  a  contract,  he  would  be  bound  only 
to  that  extent.  If  the  contract  did  not  include  stores,  then  there 
was  no  contract  as  to  stores,  and,  of  course,  these  companies  would 
not  be  liable,  and  the  plaintiff  could  not  recover. 

(e)  Then  there  is  a  letter  that  is  important  here.  Mr.  H.  said, 
in  chief,  when  he  was  on  the  stand,  that  he  made  an  absolute  con- 
tract ;  that  is,  he  made  a  closed  contract  with  Mr.  L.,  not  a  contract 
that  was  subject  to  any  restrictions,  not  a  contract  subject  to  any 
condition  which  left  the  actual  full  contract  open,  to  be  settled 
afterwards,  but  that  he  made  a  full  contract.  Mr.  L.  denies  that. 
Is  Mr.  H.  supported  in  his  allegations  that,  at  the  time  he  alleges 
the  contract  was  made,  it  was  actually  made,  a  completed  full  con- 
tract, contracting  all  of  the  essential  links  that  bound  the  parties. 
Is  that  true?  It  is  for  you  to  judge,  to  some  extent,  as  to  that, 
from  the  letter  which  Mr.  H.  subsequently  wrote  to  Mr.  G.,  who  is 
now  dead,  but  who  was  the  president  of  the  plaintiff  company  at 
that  time.  Mr.  H.  wrote  Mr.  G.  on  April  1,  1902,  after  he  had  this 
alleged  conversation  with  Mr.  L. :  "We  wired  you  this  morning  in 
reply  to  your  telegram  as  follows :  $5,000  covered,  subject  to  con- 
dition, particulars  by  mtail' — which  we  now  beg  to  confirm."  The 
condition  referred  to  is  "that  it  will  be  absolutely  necessary  to  in- 
corporate the  full  coinsurance  clause  in  the  firm  in  order  to  get  the 
company  to  accept  the  floater  business. ' '  Now,  if  his  testimony 
in  the  first  instance  was,  regardless  of  this  letter,  that  he  bad  ac- 
tually made  a  full  contract,  complete  in  all  its  term,  clearly  under- 
stood by  all  of  the  parties,  and  binding  upon  the  parties,  why  did 
he  write  this  letter?  The  condition  referred  to  is  that  it  will  be 
absolutely  necessary  to  incorporate  the  full  coinsurance  clause  in 
the  form.  Absolutely  necessary  to  do  that  in  order  to  do  what? 
In  order  to  get  the  company  to  accept  the  floater  business.  From 
that  would  you,  or  would  you  not,  infer  that  he  had  not  completed 
his  contract?  If  you  infer  that  he  had  not  completed  his  contract 
with  Mr.  L.,  that  the  terms  were  not  all  fully  agreed  upon,  that 
there  were  still  something  to  be  done — if  that  is  the  true  interpre- 
tation— there  could  be  no  recovery  here  by  the  plaintiff,  and  your 
verdict  for  the  defendant.  If  the  completion  of  the  contract  de- 
pended upon  Mr.  G. 's  wiring  or  writing  back  in  reply  to  this  letter, 
"That  is  entirely  satisfactory,  you  may  close  the  contract,"  there 


§  1186.]  INSURANCE— FIRE.  791 

never  was  any  telegram  and  never  was  any  letter  back  from  Mr. 
G.,  prior  to  the  fire,  stating  he  was  satisfied  to  add  the  coinsurance 
clause  and  therefore  close  the  contract.  Not  having  done  that,  the 
contract,  not  having  been  closed  pi*ior  to  the  fire,  the  defendant  would 
be  entitled  to  a  verdict. 

(f)  I  do  not  know  that  there  is  anything  more  to  say,  gentle- 
men, unless  we  have  overlooked  something.  If  there  is  anything 
counsel  would  like  to  have  us  call  the  attention  of  the  jury  to,  we 
would  be  glad  to  do  it.  In  a  general  way,  and  by  way  of  repetition, 
it  is  for  you  to  say  whether  there  was  a  completed  contract,  com- 
pleted in  the  sense  that  there  was  no  condition  attached  to  it, 
completed  in  the  sense  that  Mr.  L.  and  Mr.  H.  met  and  talked  about 
it,  and  agreed  that  the  insurance  should  be  placed,  and  should  be 
placed  in  the  sense  that  it  was  absolutely  binding  and  fixed,  and  no 
condition  whatever  attached  to  it,  and  that  it  covered  the  goods,  in 
the  floater  sense,  in  stores.  As  before  stated,  even  if  the  minds  of 
the  parties  met  upon  a  contract,  and  that  contract  did  not  cover 
stores,  but  did  cover  railroad  depots  and  good  hotels,  these  insur- 
ance companies  would  not  have  to  pay.  If  they  did  not  contract  in 
their  floater  arrangement  to  cover  stores,  it  does  not  matter  how 
good  the  stores  were,  or  where  they  were,  they  would  not  be  bound 
to  pay.  If  the  contract  was  to  cover  merely  railroad  stations,  goods 
in  transit  and  in  good  hotels,  then  that  is  what  the  parties  agreed 
upon  and  are  bound  by.46 

46— The  above  oral  charge  to  the     Ceramic  Art  Syndicate  v.   German 
jury   was   approved    in   Grossbaum     Ins.   Co.,   213   Pa.    506,   62   Atl.    1107. 


CHAPTER  LV. 


INSURANCE— LITE. 


See  Erroneous  Instructions,  same  chapter  head,  Vol.  III. 


*}  1187.  Must  furnish  proofs  of  death 
before  suit  is  begun — Com- 
pany to  furnish  blanks. 

§  1188.  Condition  in  application  and 
policy  amounting-  to  war- 
ranty. 

§  1189.  Misrepresentation  as  to  oc- 
cupation —  Knowledge  of 
agent. 

§  1190.  Questions  and  answers  in 
the  application  do  not  con- 
cern disorders  or  ailments 
lasting  only  for  brief 
period. 

§  1191.  Waiving  errors,  in  applica- 
tion for  reinstatement, 
after  death. 

§  1192.  Suffering  from  an  ailment  at 
the  time  of  delivery  of  the 
policy — Failure  to  com- 
municate it  to  the  com- 
pany   is    fraudulent. 

§  1193.  Jury  to  judge  of  nature  of 
sickness  —  Falsehood  — 
Burden    of  proof. 

§  1194.  Concealing  state   of   health. 

§  1195.  Brother  dying  of  consump- 
tion— Misrepresentation  by 
insured    or   beneficiary. 

§  1196.  Becoming  sick  after  applica- 
tion and  before  delivery  of 
policy. 

§  1197.  Delivery  of  certificate  by 
agent  of  companv  knowing 
insured  to  be  sick  at  the 
time  is  a  waiver  of  legal 
right  arising  out  of  such 
sickness. 

§  1198.  Habitual  drunkard— Ques- 
tion for  jury. 

§  1199.  Strong  drinks  taken  for 
medicinal    purposes. 

§  1200.  Tender  of  premium — Agency. 

§  1201.  Giving  note  for  premium — 
Retention  of  policy  by  ap- 
plicant waiver  of  fraud. 


§  1202.  Cancellation  of  policy— No- 
tice— Return  of  premium. 

§  1203.  Abandonment  of  rights  un- 
der the  policy. 

§  1204.  Accident  insurance — Proof 
of  accidental  death — Sui- 
cide. 

§  1205.  Assignment  of  a  life  in- 
surance policy — Series. 

FRATERNAL    AND    BENEFIT 
SOCIETIES. 

§  1206.  Misrepresentations  as  to  use 
of  liquor — Application. 

§  1207.  Legal  definition  of  suicide — 
Must  be  sane  in  order  to 
commit. 

§  1208.  Committing  suicide  in  sane 
state  of  mind — No  liability 
— Narcotics   or   opiates. 

§  1209.  Taking  own  life  not  proof  of 
insanity. 

§  1210.  Presumption  of  death  from 
seven  years'  absence. 

§  1211.  "Good  health"   defined. 

§  1212.  Delay  in  payment  of  the 
premium — Waiver  of  for- 
feiture— Burden  of  proof  on 
defendant  to  show  forfeit- 
ure— Reinstatement. 

§  1213.  Verdict  of  coroner's  inquest 
is  evidence  of  cause  of 
death. 

§  1214.  Incapacity  for  manual  labor 
— Manual  labor  defined. 

§  1215.  Total  disability— Right  to 
sue — Notifying  board  be- 
fore suit. 

§  1216.  If  plaintiff  is  able  to  do  any 
work,  not  liable  under 
"total  disability"   clause. 

Note.  As  many  of  the  principles 
of  life  insurance  are  applicable  to 
fire  insurance,  and  vice  versa,  this 
and  the  preceding  chapter  on  fire 
insurance  should  be  .consulted. 


§  1187.  Must  Furnish  Proofs  of  Death  Before  Suit  is  Begun — 
Company  to  Furnish  Blanks,  (a)  The  jury  are  instructed  that 
the  furnishing  of  satisfactory  proofs  of  death  of  the  insured  is  a 

792 


§  1188.]  INSURANCE— LIFE.  793 

condition  precedent  to  the  right  to  bring  and  maintain  an  action  on 
the  policy  of  insurance  herein  sued  upon,  and  it  devolves  upon  the 
plaintiff  to  prove,  by  a  preponderance  of  the  evidence,  that  sucu 
proofs  were  furnished  to  F.  L.  A.,  one  of  the  constituent  corpora- 
tions, before  this  suit  was  begun.1 

(b)     Under    the    stipulations    in    the    policy,    defendant,    upon 
ceiving  notice  of  the   death  of   the   insured,  was   to   use  reasu 
diligence   in   furnishing   the   beneficiary   or   her   agent   proper    1)1  u 
forms  upon  which  to  make  proofs  of  death;  that,  under  the  p 
which  provided  that  proofs  should  be  made  out   upon  forms   to    • 
furnished  by  the  insurer,  it  was  incumbent  on  defendant  to  do 
than  inclose  such  blanks  in  an  envelope  duly  addressed  and  properly 
stamped,  and  to  deposit  the  same  in  the  post  office  at  Minneapolis, 
but  it  must  actually  deliver  such  forms  to  the  agent  or  the  plaintiff 
or  her  agent,  using  all  reasonable  diligence  to  accomplish  that  end. 
Further,  that,  upon  receipt  by  defendant  of  notice  of  the  death  of 
the   insured   on  or  before   the  day   of  ,  it   did,  in   com- 
pliance with  a  request  for  the  blanks,  mail  the  same  to  plaintiff,  but 
that  such  forms  were  never  received  by  the  beneficiary  or  her  agent.2 

§  1188.  Conditions  in  Application  and  Policy,  Amounting  to  War- 
ranty. If  the  jury  believe  from  the  evidence  that  the  policy  in  suit 
was  issued  upon  an  application  containing  the  following  provision : 
"I  hereby  apply  for  insurance  for  the  amount  herein  named,  and 
I  declare  and  warrant  that  the  answers  to  the  above  questions  arc 
complete  and  true,  and  were  written  opposite  the  respective  ques- 
tions by  me,  or  strictly  in  accordance  with  my  directions.  I  agree 
that  said  answers  with  this  declaration  shall  form  the  basis  of  a 
contract  of  insurance  between  me  and  the  P.  I.  Company  of  Amer- 
ica, and  that  the  policy  which  may  be  granted  by  the  company 
in  pursuance  of  this  application,  shall  be  accepted  subject  to  the  con- 
ditions and  agreements  contained  in  such  policy.  I  further  agree 
that  no  obligation  shall  exist  against  said  company  on"  account  of 
this  application,  although  I  may  have  paid  premiums  thereon,  unless 
said  company  shall  issue  a  policy  in  pursuance  thereof  and  the  same 
is  delivered  to  me" — then  the  court  instructs  the  jury  as  a  matter  of 
law,  that  by  virtue  of  said  provision,  each  and  every  answer  in  said 
application  was  warranted  to  be  true,  and  if  the  jury  believe  from 
the  evidence  that  any  answer  in  the  said  application  was  not  true, 
then  the  court  instructs  the  jury  that  they  must  find  for  the  de- 
fendant.3 

1 — Franklin  Life  Ins.  Co.  v.  Hick-  paying-  premiums  upon  it,  wheth°r 

son,   197  111.   117   (119),   64  N.   R.   248.  that  was  done  by  the  assured  or  by 

2 — Robinson       v.        Northwestern  one  acting  for  him,  whether  by  his 

Nat.   Ins.    Co.,   92  Minn.   30,   100   N.  authoritv  or  as  a  volunteer,  the  as- 

W.  2?fi  (227).  sured   and   his  administratrix,   now 

3 Prudential    Ins.     Co.   v.    Fred-  representing  him.  have  adopted  the 

ericks   41  111.  App.  419  (421  and  422).  policy   as   it    reads,    with    the  same 

"By'   accepting    the    policy    and  effect,    as    if    he    had    intelligently 


794  FORMS   OF  INSTRUCTIONS.  [§  1189. 

§  1189.  Misrepresentation  as  to  Occupation— Knowledge  of  Agent, 
(a)  If  the  jury  believe  from  the  evidence  that  McC.  was  the  agent 
of  the  defendant  at  the  time  of  taking  and  soliciting  the  application 
of  W.  for  a  policy  of  insurance  in  defendant  company,  and  that 
said  agent  was  truly  informed  of  the  occupation  of  said  W.,  and 
that  the  defendant  was  informed  as  is  shown  by  the  application, 
■that  said  W.  had  no  intention  of  changing  his  occupation,  and  that 
said  defendant,  with  such  knowledge  issued  and  delivered  the  policy 
sued  on  to  said  W.,  it  is  for  you  to  decide  from  the  evidence  whether 
or  not  the  defendant  waived  that  provision  contained  in  said  ap- 
plication where  it  states  that  the  applicant  agrees  not  to  engage  in 
any  specially  hazardous  occupation;  and  if  you  find  from  the  evi- 
dence that  the  defendant  company  did  waive  said  provision  in  said 
contract,  it  is  now  estopped  from  setting  up  a  breach  of  such  prom- 
ise as  a  defense  to  this  action. 

(b)  If  the  jury  believe  from  the  evidence  that  the  defendant 
with  a  full  knowledge  of  the  facts  upon  which  it  now  disputes  the 
validity  of  the  policy  sued  on,  issued  and  delivered  said  policy  to 
W.  during  his  life  and  continuance  in  good  health,  it  is  now 
estopped  from  setting  up  such  facts  as  grounds  for  avoidance  of  the 
payment  of  said  policy.4 

§  1190.  Questions  and  Answers  in  the  Applications  do  Not  Con- 
cern Disorders  or  Ailments  Lasting  Only  for  Brief  Periods.  The 
court  instructs  the  jury  that  the  questions  and  answers  contained  in 
the  applications  mentioned  herein  do  not  concern  accidental  disor- 
ders or  ailments  lasting  only  for  brief  periods,  and  unattended  by 
any  substantial  injuries  or  inconveniences,  and  do  not  relate  to  a 
slight  and  temporary  indisposition  speedily  forgotten,  but  apply  only 
to  matters  of  a  substantial  character,  and  of  such  a  nature  as  to 
affect  the  hazard  risks  incurred  or  assumed  by  reason  of  the  issu- 
ance of  the  policy  of  insurance  mentioned  herein.5 

§  1191.  Waiving  Errors,  in  Application  for  Reinstatement,  After 
Death.  The  jury  is  instructed  that  if  they  believe,  from  the  evi- 
dence,  that  soon  after  the   death  of  J.   the  plaintiff  called  at   the 

answered  each  question  and  signed  5 — 111.  L.  Ins.  Co.  v.  Lindley,  110 
his  name  to  the  application.  He  and  111.  App.  161  (163-4). 
his  representative  must  adopt  the  "This  instruction  is  not  an  incor- 
whole  or  none  of  the  complete  trans-  rect  statement  of  the  law  of  the 
action.  It  is  only  by  adopting  the  case  for  the  reason  that  the  main 
policy  that  the  appellee  has  any  question  in  the  application  is: 
standing,  and  such  adoption  neces-  'Have  you  ever  had  any  of  the  fol- 
sarily  embraces  all  the  terms  of  the  lowing  diseases?'  That  this  con- 
policy.  Draper  v.  Charter  Oak,  2  struction  accords  with  the  general 
Allen  (Mass.)  569;  Richardson  v.  trend  of  authorities  is  shown  by 
Maine  Ins.  Co.,  46  Me.  394,  74  Am.  Masonic  Ben.  Soc.  v.  Winthrop.  85 
Dec.  459;  Goddard  v.  Monitor  Ins.  111.  542;  Drew  v.  Continental  L.  D. 
Co.,  108  Mass.  56.  11  Am.  Rep.  307."  Co.  24  Fed.  Rep.  620;  Fidelity  Mut. 
4— Triple  L.  Mut.  Ind.  Ass'n  v.  L.  Assn.  v.  Miller,  34  C.  C.  A.  211. 
Williams,  121  Ala.  138,  26  So.  19  92  Fed.  Rep.  719;  Cushman  v.  TJ.  S. 
(25),  77  Am.  St.  Rep.  34.  L.   Ins.  Co.,  70  N.  Y.  72;   Conn.   L. 


§  1192.]  INSURANCE— LIFE.  795 

general  offices  of  the  defendant  company  in  the  city  of  C.  and  there 
informed  M.,  the  president  of  the  defendant  insurance  company,  of 
the  real  facts  in  relation  to  the  sickness  and  condition  of  health  of 

J.  on  and  prior  to  the  day  of  ,  and  that  the  said  J.  had 

consulted  and  been  treated  by  physicians  prior  to  that  time,  and 
said  M.,  president  of  said  company,  alter  he  knew  all  of  said  facts, 
informed  the  plaintiff  that  if  she  would  make  out  or  cause  to  be 
made,  proofs  and  certificates  of  the  death  of  said  J.,  and  present  the 
same  to  said  defendant  company,  that  said  policy  would  be  paid, 
and  that  the  plaintiff,  relying  upon  said  statements,  thereafter  at 
trouble  and  expense  to  her,  if  any  there  was,  caused  proofs  and 
certificates  of  death  to  be  prepared  and  presented  to  the  defendant 
company,  which  said  proofs  and  certificates  were  accepted  and  re- 
tained by  said  company  and  its  officers,  the  defendant  thereby 
waived  its  right  to  insist  upon  the  policy  being  void  because  of 
misrepresentations  contained  in  the  application  for  reinstatement.6 

§  1192.  Suffering  from  an  Ailment  at  the  Time  of  Delivery  of 
the  Policy — Failure  to  Communicate  it  to  the  Company  is  Fraud- 
ulent, (a)  If  at  the  time  of  the  delivery  of  the  policy  in  suit  to 
the  decedent,  M.  was  suffering  from  an  ailment  wThieh,  if  known  to 
the  defendant,  would  have  caused  the  rejection  of  the  risk,  or  the 
exaction  of  a  higher  rate  of  premium,  then  the  failure  to  communi- 
cate it  to  the  company  was  a  fraud  upon  the  company;  it  is  not 
bound,  and  the  verdict  should  be  for  the  defendant. 

(b)  If  M.,  the  deceased,  spat  blood  or  had  an  habitual  cough,  or 
if  she  had  a  physician  attending  her  for  lung  trouble,  before  the 
application  for  the  policy  in  suit  was  made,  then  there  can  be  no 
recovery,  and  the  verdict  should  be  for  the  defendant.  If  she  had 
these  troubles,  they  were  material  to  the  risk,  and  if  she  made  false 
representations  on  that  subject,  the  policy  is  void,  and  the  verdict 
should  be  for  the  defendant.  An  "habitual  cough"  does  not  mean 
a  cough  contracted  from  a  cold.  It  does  mean  a  cough  that  comes 
on  at  times.  It  means  a  cough  that  is  the  normal  condition  of  the 
patient;  a  cough  that  is  chronic;  a  cough  that  has  become  a  habit. 

Ins.  Co.  v.  Union  Tr.  Co.,  112  U.  S.  the  continued  validity  of  the  policy 

250,  5  S.  Ct.  119."  by  requiring-  the  appellee  to  go  to 

6— Traders    Mut.    L.    Ins.     Co.     v.  the    trouble    and    expense,    if    any, 

Johnson,    200    111.    359    (362-3).    affg.  of  preparing  proof  of  the  death  of 

Triple    L.    L.    Ins.    Co.    v.    Johnson,  ':he  assured  and  of  other  facts  eon- 

101  111.  App.   559,  65  N.  E.  634.  nected    with    the   loss,    an   intention 

"If  the  appellee,   after  the  death  to  waive  the  forfeiture  or  breach  of 

of  the  assured,   advised   the  appel-  warranty  contained  in  the  applica- 

Iant    company    fully   as   to    all   the  tion   for  re-instatement   would   fol- 

facts    with    relation    to    the    alleged  low  as  a  lesjal  result.     German  Fire 

false   representations  and   fraud    in  Ins.  Co.   v.  Grunert,  112  111.  «<;   Su- 

the    application    for    the    reinstate-  preme  Tent  K.  of  M.  v    Wolkert,  57 

ment    of   the   assured,    upon    which  N.    E.    Rep.    203;    Titus   v.    Ins.   Co., 

rested  the  alleged  right  to  declare  a  81  N.  Y.  410:   Cannon  v.  Home  Tns. 

forfeiture  of  the  policy,  and  the  ap-  Co..  53  Wis.  585,  11   NT.  W.  11;  1  Am. 

pellant    company  did    not   then    in-  &  Eng.  Ency.  of  Law  (2nd  ed.)  938, 

sist  on  a  forfeiture,  but  recognized  941;  Joyce  on  Ins.  sec.  586." 


796  FORMS  OF  INSTRUCTIONS.  [§  1193. 

It  does  not  mean  a  cough  that  a  person  has  when  they  have  a  cold, 
but  an  habitual  cough  is  what  is  referred  to.  The  evidence  upon 
that  subject  will  be  for  you.7 

§  1193.  Jury  to  Judge  of  Nature  of  Sickness — Falsehood — Burden 
of  Proof.  It  is  for  you  to  determine  the  extent  of  the  injury  re- 
ceived by  T.,  and  whether  it  was  of  such  a  character  or  nature  as  to 
make  his  reply  to  the  interrogatories  a  falsehood  or  not.  It  is  for 
the  jury  to  say  from  the  evidence,  in  regard  to  the  extent,  nature, 
and  kind  of  sickness,  whether  the  attack  which  the  insured  suffered 
from  was  of  a  character  to  make  his  answer  "never  sick"  a  false- 
hood. The  burden  of  proof  is  on  the  defendant.  The  company  sets 
up  the  defense,  and  the  jury  must  be  satisfied  from  the  evidence  that 
the  untruth  of  the  statement  has  been  established,  otherwise  their 
verdict  should  be  for  the  plaintiff.8 

§  1194.  Concealing  State  of  Health.  If,  at  the  time  of  the  de- 
livery of  the  policy  in  suit,  the  decedent,  M.,  was  suffering  from 
phthisis  pulmonalis,  tuberculosis,  or  consumption,  which  afterwards 
contributed  to  her  death,  then  she  was  not  at  the  time  of  the  de- 
livery of  the  policy  in  suit  in  sound  health,  as  required  by  the  pro- 
visions thereof,  and  your  verdict  should  be  for  the  defendant.  If 
you  find  that  she  had  any  of  these  diseases,  the  evidence  is  for  you; 
and  if  she  knew  it,  and  concealed  it  when  she  was  asked  to  reveal  it, 
this  point  is  affirmed.  Those  questions  would  be  material  to  the 
risk.9 

§  1195.  Brother  Dying  of  Consumption — Misrepresentation  by 
Insured  or  Beneficiary.  The  court  instructs  you  that  if  Mrs.  D., 
the  mother  of  the  insured,  and  one  of  the  joint  beneficiaries  in  the 
policy,  was  present  when  the  application  was  made  and  stated,  or 
caused  her  son  to  state,  that  his  brother  died  of  malarial  fever,  when, 
as  a  matter  of  fact,  he  died  of  consumption,  then,  if  such  statement 
was  adopted  by  the  insured  and  relied  on  by  the  company  it  was 
material  to  the  risk,  and  the  son,  soon  thereafter  dying  of  consump- 
tion, it  would  avoid  the  policy,  whether  the  incorrect  statements 
were  made  intentionally,  or  through  mistake  and  in  good  faith,  and 
thei'e  could  be  no  recovery.  If  she  helped  her  son  make  the  an- 
swers it  was  her  duty  as  well  as  his,  in  the  utmost  good  faith,  to 
disclose  fully  and  truthfully  in  answer  to  questions  all  that  either 
of  them  knew  about  the  health  of  the  applicant,  his  exposure  to  a 
contagious  or  infectious  disease,  and  what  his  brother  died  of,  and 
if  they,  or  either  of  them,  misstated  or  concealed  the  fact  that  the 
brother,  some  time  before,  died  of  consumption,  and  the  insured,  a 
short  time  after  died  of  consumption,  then  the  court  charges  that 
such  misstatement  or  concealment  was  a  fact  material  to  the  risk, 

7- -March  v.   Met.  L.   Ins.   Co.,  186         8— Knickerbocker    L.    Ins.    Co.    v. 
Pa.    629,   40   Atl.   1100   (1101),   65  Am.     Trefz,  104  TJ.  S.  197  (205). 
St.  Rep.   887.  9— March  v.   Met.  L.  Ins.  Co.,  186 


§  1196.]  INSURANCE— LIFE.  797 

and    avoided    the    policy,    whether    intentionally    made,    or    made 
through  mistake,  and  the  verdict  must  be  for  defendant.10 

§  1196.  Becoming  Sick  After  Application  and  Before  Delivery  of 
Policy.  If  the  applicant,  H.,  had  fulfilled  all  of  the  requirements 
entitling  him  to  a  certificate,  and  the  B.  U.  had  failed  to  deliver  the 
certificate  of  insurance  after  it  had  been  issued,  and  the  applicant, 
H.,  had  then  become  sick,  and  was  entitled  to  the  policy  or  certifi- 
cate of  insurance  upon  the  payment  of  his  assessments  or  dues,  the 
company  was  liable,  whether  the  certificate  had  been  delivered  or 
not,  if  the  said  H.  was  in  good  health  at  the  time  of  the  examination 
by  the  company's  medical  examiner  and  the  date  of  the  policy  of 
insurance.11 

§  1197.  Delivery  of  Certificate  by  Agent  of  Company  Knowing 
Insured  to  Be  Sick  at  the  Time  is  a  Waiver  of  Legal  Right  Arising 
Out  of  Such  Sickness.  The  delivery  of  the  certificate  of  policy  of 
insurance,  whether  the  party  were  sick  or  not,  if  done  by  the  agents 
of  the  defendant,  was  a  waiver  of  any  representation  of  the  de- 
ceased; and  the  receipt  of  the  dues  by  the  agents  of  the  B.  Union 
was  an  acknowledgment  that  the  deceased,  H.,  was  a  member  of  the 
order,  and  entitled  to  all  of  its  benefits  under  the  policy;  provided 
that  the  agent  of  the  defendant  knew  at  the  time  of  the  delivery 
of  the  certificate  or  policy  of  insurance  that  the  party  was  sick, 
and  delivered  the  policy,  then  it  would  be  a  waiver.  A  waiver  im- 
plies the  idea  that  one  has  a  right,  and,  with  knowledge  of  his  rights 
and  that  which  might  defeat  his  rights,  does  an  act  by  which  he 
waives  the  right  to  stand  upon  his  legal  position  or  his  legal  right.12 

§  1198.  Habitual  Drunkard — Question  for  Jury,  (a)  I  think 
that  there  is  no  rule  of  law  which  says  that,  in  order  to  make  a 
man  a  drunkard,  he  must  drink  every  day  or  every  week  to  excess. 
Neither,  on  the  other  hand,  does  a  single  or  an  occasional  excess 
make  man  an  habitual  drunkard;  but,  if  you  find  that  the  habit  and 
rule  of  a  man's  life  is  to  indulge  periodically  and  with  frequency, 
and  with  increasing  frequency  and  violence,  in  excessive  fits  of  in- 
temperance such  a  use  of  liquor  may  properly  cause  the  finding  of 
habitual  drunkenness.  It  is  the  fact  of  the  certainty  of  these 
periodical  sprees,  accompanied  with  their  frequency,  which  marks 
the  habit.  If  a  man  should  indulge  in  such  a  debauch  once  in  a 
year  only,  it  could  not,  in  my  opinion,  properly  be  said  that  he 
was   an   habitual   drunkard;   he   would   be   an   occasional   drunkard. 

Pa.   629,  40  Atl.   1100   (1101),  65  Am.  ments    must    necessarily    be    mere 

St.    Rep.    887.  opinions;     but     there     is     certainly 

10 — Supreme   Lodge   K.    of   H.    v.  nothing    of    which    defendant    can 

Dickson,  102  Tenn.  255,  52  S.  W.  862  complain,    as     it  was    putting    the 

(864).  case  on  his  theory." 

"This   was   stating    the    case    as  11— Hollings    v.    Bankers'    Union, 

contended  for  by  defendant,  and,  as  63  S.  C.  192,  41  S.  E.  90  (92). 

we  think,  too  strongly,  specially  as  12— Hollings    v.    Bankers'    Union, 

to  matters  about  which  the  state-  supra. 


798  FORMS  OF  INSTRUCTIONS.  [§  1199. 

But  if  such  debauches  increase  in  frequency,  and  the  certainty  of 
their  increasing  frequency  becomes  established,  then  the  time  finally 
arrives  when  the  line  between  an  occasional  excess  and  habit  is 
crossed.  It  is  for  you  to  say  whether  C.  was  at  the  time  of  the 
application,  or  became  afterward,  the  victim  of  such  a  habit. 

(b)  If  you  find  that,  after  the  making  of  the  policy,  C.  became 
so  far  intemperate  as  to  impair  his  health,  the  policy  is  avoided,  and 
the  verdict  will  be  for  the  defendant.13 

§  1199.  Strong  Drinks  Taken  for  Medicinal  Purposes,  (a)  If 
the  jury  should  believe  that  the  efficient  controlling  cause  of  the 
death  of  D.  was  the  excessive  and  continuous  use  of  strong  drinks 
for  several  days  and  nights  immediately  preceding  his  death,  yet  if 
they  believe  that  it  was  taken  in  good  faith  for  medicinal  purposes 
under  medical  advice,  such  use  was  not  a  violation  of  that  condition 
of  the  policy  which  declares  that  it  shall  be  null  and  void  if  he 
shall  become  so  far  intemperate  as  to  impair  his  health  or  induce 
delirium  tremens. 

(b)  Whether  the  health  of  D.  was  impaired  by  the  use  of  alco- 
holic stimulants  not  taken  in  good  faith  for  medicinal  purposes  or 
under  medical  advice,  is  a  matter  to  be  determined  by  the  jury  under 
all  the  evidence. 

(c)  If  the  testimony  does  not  so  satisfy  you,  that  D.  became  so 
intemperate  in  the  use  of  alcoholic  spirits   as  to  impair  his  health, 

or  that  at  A.,  in  ,  he  indulged  in  the  use  of  alcoholic  liquor 

to  such  an  extent  as  to  induce  delirium  tremens,  or,  if  you  are 
convinced  that  all  the  liquor  which  he  used  was  used  in  good  faith, 
under  medical  advice  and  for  medicinal  purposes,  as  claimed  by  the 
plaintiff,  then  your  verdict  should  be  for  the  plaintiff. 

(d)  It  is  in  evidence  that  D.  did  take  alcoholic  stimulants  under 
medical  advice.  If  his  taking  them  was  only  under  such  advice 
and  only  in  such  quantities  as  prescribed  by  his  physician,  even  if 
impairment  of  health  followed,  yet  the  policy  would  not  become 
void.  If  from  all  the  testimony  in  this  ease  you  conclude  that  D. 's 
condition  in  this  respect  was  produced  by  a  strict,  fair  and  bona 
fide  following  of  Dr.  K. 's  prescription,  then  that  impairment  of 
health,  if  there  was  any,  which  it  is  alleged  existed,  known  as  cirr- 
hosis of  the  liver,  does  not  avoid  this  policy. 

(e)  That  prescription  was,  as  Mrs.  D.  gives  it  to  us,  to  take  an 
egg  with  sherry  wine  in  the  morning  and  a  milk  punch  before  re- 
tiring at  night,  and  brandy  and  water,  if  he  needed  it,  during  the 
day.  I  leave  it  entirely  with  you  to  say,  whether,  if  you  believe 
the  witnesses  of  the  defendant  and  some  of  the  witnesses  for  the 
plaintiff  as  to  the  habit  of  D.  in  the  use  of  intoxicating  liquor  for 
many  years  prior  to   his   death,   you   can   conscientiously  say  that 

13— N.  W.   L.  Ins.  Co.  v.  Muskegon  Bank,  122  U.  S.  501   (507),  7  S. 

Ct.   1221. 


§  1200.]  INSURANCE— LIFE.  799 

such  was  a  bona  fide  following  of  medical  advice;  otherwise  the 
condition  is  broken  if  impairment  of  health  follows.14 

§  1200.  Tender  of  Premium — Agency,  (a)  If  the  jury  should 
find  that  an  agent  of  an  insurance  company  is  duly  authorized  by 
the  conrpany  to  accept  the  payment  of  a  premium,  and  if  the  pay- 
ment is  offered  to  him,  then  he  has  the  power  to  bind  the  company 
so  far  as  to  prevent  the  forefeiture  of  the  policy  if  he  declines  to 
receive  it,  or  directs  that  the  payment  shall  be  made  at  a  future 
time  upon  the  return  of  the  policies  to  be  rewritten,  as  indicated  by 
the  proof  in  this  case  they  were  to  be  rewritten  according  to  an 
agreement  of  the  parties. 

(b)  I  charge  the  jury  as  the  law  that  if  he  (F.)  had  authority 
from  the  company  to  receive  these  premiums,  and  if  the  premium 
was  offered  to  him,  and  if  he  directed  that  the  payment  should  be 
withheld  until  the  policy  had  been  rewritten  and  returned,  and  if 
the  death  occurred  before  that  was  done,  then  that  would  be  bind- 
ing upon  the  company  so  far  as  to  prevent  the  forfeiture  of  the 
policy.15 

§  1201.  Giving  Note  for  Premium — Retention  of  Policy  by  Ap- 
plicant Waiver  of  Fraud.  It  appears  that  the  defendant  received 
a  policy  of  insurance,  or  a  bond,  as  it  is  called,  from  the  plaintiff, 
in  response  to  this  application  which  she  had  signed,  and  in  pay- 
ment of  the  premium  for  which  the  note  in  question  is  claimed  to 
have  been  given.  It  was  the  duty  of  the  defendant  on  receiving 
this  policy,  if  she  believed  it  was  obtained  by  fraud,  to  have  either 
returned  the  policy  to  the  company,  notifying  the  company  or  its 
agent  that  she  would  not  accept  the  policy,  and  to  do  this  within  a 
reasonable  time  after  receiving  it,  or  within  a  reasonable  time  after 
learning  of  the  fraud  she  claimed  was  practiced  upon  her.  This 
question  is,  in  a  sense,  independent  of  whether  or  not  the  defendant 
was  induced  to  sign  the  note  by  misrepresentation  on  the  part  of 
the  agent.  That  is  to  say,  if.  you  should  find  that  the  defendant 
signed  the  note  by  reason  of  some  fraud  practiced  upon  her  in  the 
manner  she  claims,  still,  it  appearing  that  this  application  was  sent 
in  to  the  company,  and  the  policy  sent  to  the  defendant,  which  she 
retained,  under  all  the  evidence  in  the  ease,  it  has  appeared  in  the 
evidence,  she  retained  it  an  unreasonable  length  of  time,  or  failed 
for  an  unreasonable  length  of  time  to  notify  the  company  or  its 
agent  that  she  repudiated  the  transaction  and  would  not  be  bound 
by  the  note,  then  such  retention  of  the  policy  without  complaint 
would  be  a  waiver  of  any  fraud  she  claimed  and  would  bind  her  to 
pay  the  note.16 

§  1202.  Cancellation  of  Policy — Notice — Return  of  Premium.  I 
have  been  requested  to  instruct  you  that  if,  at  the  time  the  policy 

14 — This  charere  approved  in  J^ltna,        15 — U.  S.  L.  Ins.  Co.  v.  Lesser,  126 
L.    Ins.   Co.   v.   Ward,   140  U.   S.  76     Ala.  568,  28  So.  646  (648). 
(84),  11  S.  Ct.  720.  16— National    Life    &    T.     Co.     V. 


800  FORMS  OF  INSTRUCTIONS.  [§  1203. 

of  insurance  is  canceled,  the  insurer  returns  to  the  insured  the  last 
premium  paid  by  him,  along  with  a  notice  of  such  cancellation,  the 
insured  does  not  by  retaining  such  premium  acquiesce  in  the  revoca- 
tion and  cancellation  of  the  policy.  Well,  gentlemen,  that  is  sub- 
stantially correct.  I  hesitate  to  charge  it  in  the  exact  language  it 
is,  because  I  am  not  allowed  to  charge  upon  the  facts.  But  the 
statement  here,  that  the  policy  of  insurance  is  canceled,  and  the 
premium  returned  with  a  notice  of  such  cancellation,  the  assured 
does  not  by  retaining  such  premium  acquiesce  in  the  revocation  and 
cancellation  of  the  j3olicy,  that  is  a  question  of  fact  for  you.  But  as 
a  question  of  law,  a  contract  of  insurance  is  like  any  other  contract. 
Whether  it  is  canceled,  or  not  canceled,  is  a  question  of  fact  for  the 
jury  to  pass  upon.17 

§  1203.     Abandonment  of  Rights  Under  the  Policy.     If  you  find, 

from    the    evidence,    that    the    letter    of    R.    dated   ,    and    the 

transactions  and  mutual  understanding  of  the  parties  in  connection 
with  its  signing  and  delivery,  constituted  an  abandonment  by  R. 
'  of  all  rights  on  the  part  of  R.  which  had  in  the  past  or  might  in 
the  future  accrue  to  him  by  reason  of  the  Braun  insurance  matter, 
then  you  will  find  the  issues  for  the  defendant.18 

§  1204.  Accident  Insurance — Proof  of  Accidental  Death — Suicide. 
The  jury  are  instructed  that,  in  order  for  the  plaintiff  to  recover,  it 
is  not  necessary  that  she  should  show  by  direct  evidence  that  the 
particular  and  specific  cause  of  the  death  of  W.,  provided  you  be- 
lieve from  the  evidence  and  the  facts  and  circumstances  in  evidence 
that  his  death  was  produced  either  by  drowning  or  by  a  fatal  wound 
in  the  head,  or  by  a  combination  of  both  of  these  causes,  and  pro- 
vided you  further  find  that  W.  did  not  commit  suicide  and  was  not 
insane  at  the  time  of  his  death.19 

§  1205.  Assignment  of  a  Life  Insurance  Policy — Series,  (a) 
The  court  instructs  the  jury  that  the  rule  of  law  was  annexed,  and 
still  attaches  to  all  other  kinds  of  choses  in  action,  such  as  policies 
of  insurance,  or  non-negotiable  papers,  like  a  bond  for  the  payment 
of  money.  A  man  may  assign  or  transfer  these  articles,  may  sell 
them  outright,  or  may  assign  them  conditionally  as  he  sees  fit,  but 
the  rule  of  law  attaches  that  whenever  he  does  assign  or  transfer 
them  upon  a  condition,  or  reserving  to  himself  any  equity  or  right 


Omans,    137    Mich.    365,    100   N.    W.  out    comment    upon    them    by    the 

595.  judge.       This     exception     is     over- 

17 — Thompson  v.  Family  Pro.  U.,  ruled." 

66  S.   C.   459,   45   S.   E.  19    (20).  18— N.   Y.   L.    Ins.    Co.    v.    Rilling, 

"The  assignment  of  error  in  the  219  111.  72  (74),  76  N.  E.  73. 

exception     is     that      the     presiding  19 — Fidelity  &  Cas.  Co.  v.  Weise, 

judge    expressed    an    opinion    upon  80    111.     App.     499     (508).       Case   re- 

the  f.n^ts  of  the  jury.  By  reference  versed  in  182   111.   496,   55  N.  E.   540, 

to  the  foregoing  it  will  be  seen  that  for  error  in  another  instruction  on 

the    facts    were    entirely    submitted  the  burden  of  proof, 
for  determination  by  the  jury  with- 


§  1205.]  INSURANCE— LIFE.  801 

in  it,  any  person  who  subsequently  takes  it,  takes  it  subject  to  that 
equity  or  right  which  the  original  assignor  retains  in  himself. 

(b)  If  the  jury  believe  that  this  policy  of  insurance  was  valid  in 
its  inception,  then,  even  if  A.  and  R.  had  agreed  between  them- 
selves that  the  assignment  to  R.  should  not  be  absolute,  but  that 
A.  should  retain  some  equity  in  the  policy  nevertheless,  if  A.  exe- 
cuted  the   assignment   to  R.  dated  ,   which   I  have   instructed 

you  would  be  on  its  face  an  absolute  assignment  and  delivered  the 
policy  so  assigned  to  R.,  and  the  defendant  herein  was  not  advised 
of  the  said  agreement,  or  put  on  inquiry  concerning  the  same,  and 
by  reason  thereof  on  the  faith  of  the  said  policy  and  assignment,  he 
was  led  into  dealing  with  the  apparent  owner,  the  defendant  will 
be  protected,  and  both  A.  and  the  plaintiff,  who  is  in  law  legally  his 
privy,  are  estopped  from  setting  up  said  agreement. 

(c)  It  is  now  a  well-established  principle  that  when  the  true 
owner  of  property  holds  out  another,  or  allows  him  to  appear  as 
the  owner  of,  or  as  having  full  power  of  disposition  over,  the  prop- 
erty, and  innocent  third  parties  are  thus  led  into  dealing  with  such 
apparent  owner,  they  will  be  protected.  Their  rights  in  such  cases 
do  not  depend  upon  the  actual  title  or  authority  of  the  party  with 
"whom  they  have  directly  dealt,  but  they  are  derived  from  the  act 
of  the  real  owner,  which  precludes  him  from  disputing,  as  against 
such  third  party,  the  existence  of  the  right  or  power  which  he 
caused  or  allowed  to  appear  to  be  vested  in  the  party  making  the 
sale,  and  if  such  third  party  should  agree  to  indulge  such  apparent 
owner,  if  his  debtor  generally,  and  does  so  indulge  him  for  a 
reasonable  time,  and  receives  the  property  as  security,  then  the 
owner  and  his  privies  are  estopped  from  repudiating  the  transaction. 

(d)  If  the  jury  believe  that  this  policy  of  insurance  was  valid 
in  its  inception,  then,  even  if  A.  and  R.  had  agreed  between  them- 
selves that  the  assignment  to  R.  should  not  be  absolute,  but  that  A. 
should  retain  some  equity  in  the  policy,  nevertheless,  if  A.  executed 

the  assignment  to  R.   dated  ,  which  I  have  instructed  you 

would  be  on  its  face  an  absolute  assignment  and  delivered  the 
policy  so  assigned  to  R.  and  A.  had  notice  from  R.  that  he  intended 
to  use  this  policy  so  assigned  for  the  purpose  of  pledging  the  same 
to  S.,  for  a  valuable  consideration  and  remained  quiescent  for  the 
purpose  of  allowing  R.  to  use  said  policy  as  his  absolute  property, 
and  keep  from  the  knowledge  of  S.  any  latent  equities  existing 
therein,  and  defendant  herein  was  not  advised  of  the  said  agree- 
ment or  out  on  inquiry  concerning  the  same  and  by  reason  thereof, 
en  the  faith  of  the  said  policy  and  assignment,  he  was  led  into  deal- 
ing with  the  apparent  owner  the  defendant  will  be  protected,  and 
both  A.  and  the  plaintiff  who  is  in  law,  legally  his  privy,  are 
estopped  from  setting  up  said  agreement. 

fe)     The  jury  is  instructed  that  a  policy  of  insurance  is  what  is 
termed  in  law   a  chose  in   action,   and   any  number  of  subsequent 
51 


802  FORMS  OP  INSTRUCTIONS.  [§  1205. 

assignees  take  and  hold  the  same  subject  to  all  of  the  equities,  rights 
and  defenses  existing  between  the  original  parties  to  such  assign- 
ment. 

(f)  The  jury  is  instructed  that  a  policy  of  life  insurance  is  non- 
negotiable,  and  is  classed  and  characterized  as  a  chose  in  action  and 
is  different  in  its  nature  and  purport  to  that  of  the  negotiable  in- 
strument, and  the  law  which  applies  to  negotiable  instruments,  such 
as  promissory  notes,  does  not  apply  to  a  policy  of  insurance  in 
that  the  subsequent  assignees  of  the  policy  of  insurance  take  it 
subject  to  all  of  the  defenses,  rights  and  equities  existing  between 
the  original  parties  to  such  transfer. 

(g)  The  jury  is  instructed  that  the  statutes  and  decisions  of  this 
state  recognize  a  well-marked  distinction  in  the  rights  of  assignees 
between  negotiable  instruments  and  those  which  are  not  negotiable. 
A  policy  of  insurance  is  a  chose  in  action  and  the  assignees  thereof 
are  not  protected  by  the  equity  of  purchasers  for  valuable  consid- 
eration without  notice.  Therefore,  even  if  the  jury  should  find  that 
E.  S.  was  a  bona  fide  assignee  of  this  policy  of  insurance  mentioned 
in  the  complaint,  he  took  the  same  subject  to  all  the  rights  and 
equities  that  originally  existed  between  A.  and  R. 

(h)  The  jury  is  instructed  that  the  defendant,  S.,  a  subsequent 
assignee  of  the  policy  of  insurance  herein  cannot  claim  the  protec- 
tion of  the  equity  rule  in  favor  of  purchasers  for  valuable  considera- 
tion without  notice,  but  that  he  took  the  said  assignment  of  policy 
subject  to  all  of  the  rights,  defenses  and  equities  that  existed  be- 
tween the  original  parties,  to  wit,  A.  and  R.,  and  the  jury  are  fur- 
ther instructed  that  the  administratrix  of  the  estate  of  A.  stands  in 
his  stead  and  is  entitled  to  all  the  rights  and  privileges  that  would 
have  been  accorded  to  A.  by  law. 

(i)  The  defense  of  a  purchaser  for  value,  without  notice,  is  an 
equitable  defense,  and  is  subject  to  that  absolute  rule  of  law  that 
any  assignee  of  a  chose  in  action  takes  the  same  subject  to  what- 
ever rights  existed  between  the  original  parties  to  such  chose  in 
action ;  and  so  in  this  case  if  you  conclude  that  there  was  any  right 
or  any  reservation  subsisting  between  A.  and.R.  the  rule  of  law 
protects  that  right  and  makes  it  superior  to  the  claim  of  a  pur- 
chaser for  value  without  notice;  and  in  that  view  of  the  case  the 
doctrine  of  purchaser  for  value  without  notice  would  have  no  ap- 
plication in  this  suit. 

(j)  The  jury  is  instructed  that  before  a  person  can  set  up  a 
plea  of  bona  fide  purchaser  for  value  without  notice,  it  must  be 
shown  that  the  party  claiming  such  benefit  parted  with  money  or 
some  valuable  consideration,  at  the  time  of  the  transaction,  and 
where  a  party  has  already  parted  with  property  or  money,  such 
consideration  cannot  enter  into  and  establish  the  plea  of  bona  fide 
purchaser  for  value,  and  on  the  contrary  he  should  have  held  that 
where  a  party  has  already  parted  with  property  or  money  the  same 


§  1206.]  INSURANCE— LIFE.  803 

should  be  a  basis  to  a  plea  of  bona  fide  purchaser  for  value,  if  there 
was  thereafter  an  agreement  to  indulge  the  debt,  or  generally  at- 
tended by  actual  forbearance  for  a  reasonable  time. 

(k)  The  jury  are  instructed  that  if  R.  and  S.  bore  no  blood  rela- 
tion to  A.,  then  they  would  have  no  insurable  interest  in  the  life  of 
A.;  the  policy  of  insurance  taken  out  in  the  name  of  such  stranger 
or  transferred  to  such  stranger  without  some  specific  valuable  con- 
sideration would  be  void  in  law,  as  the  same  would  be  a  mere  wager 
policy. 

The  jury  are  instructed  that  if  a  person  procures  a  policy  on 
the  life  of  another  person  who  bears  no  blood  relation  to  the  per- 
son procuring  such  insurance,  or  if  such  person  procures  the  assign- 
ment of  the  policy  from  a  person  who  bears  no  blood  relation  to 
such  assignee,  then  I  charge  you  as  a  matter  of  law  that  such  policy 
would  be  held  to  the  extent  of  the  money  or  other  valuable  con- 
sideration actually  advanced  for  the  procurement  of  such  policy, 
or  the  assignment  thereof.20 

FRATERNAL  AND  BENEFIT   SOCIETIES. 

§  1206.  Misrepresentations  in  Application  as  to  Use  of  Liquor, 
(a)  The  court  instructs  the  jury  that,  unless  you  believe,  from  a 
preponderance  of  the  evidence,  that  plaintiff's  husba-nd  at  the  time 
the  policy  sued  on  was  issued  was  in  the  habit  of  using  intoxicating 
liquors   to   some   extent,   that  then  upon  the  question   of  the  policy 

20 — "Westbury   v.    Simmons,    57   S.  signment  is  as  follows:     'For  value 

C.  467,  35  S.  E.  764  (770).  received,    I    hereby   assign    and   set 

Comment   of  the   court:  over  unto   R.  all  of  my  right,  title 

"We   will    first   consider   whether  and   interest   in   the   within   policy. 

the  provisions  of  section  133  of  the     Witness  my  hand  and  seal  this  

Code    are    applicable    to    the    case,      day  of .  A.  (L.  S.)'     The  prin- 

That  section  is  as  follows:  'In  the  ciple  is  well  settled  in  this  state 
case  of  an  assignment  of  a  thing  in  that  the  assignee  of  a  non-negotia- 
action  the  action  by  the  assignee  ble  chose  in  action  takes  it  sub- 
shall  be  without  prejudice  to  any  ject  to  the  equities  existing  be- 
set-off or  other  defense  existing  at  tween  the  original  parties.  Patter- 
the  time  of  or  before  the  notice  of  son  v.  Rabb.,  38  S.  C.  138,  17  S.  E. 
the  assignment;  but  this  section  463,  19  L.  R.  A.  831;  Gibson  v. 
shall  not  apply  to  a  negotiable  Hutchins,  43  S.  C.  287,  21  S.  E.  250; 
promissory  note  or  bill  of  exchange  British-Am.  Mortgage  Co.  v. 
transferred  in  good  faith  and  upon  Smith,  45  S.  C.  83,  22  S.  E.  747; 
good  consideration  before  due.'  Pittman  v.  Raysor,  49  S.  C.  469,  27 
This    section,    it    will    be    observed,  S.   E.   475. 

refers  to  an  action  'by  the  assignee'  "The  form  of  assignment  by  A.  to 
and  has  no  application  to  an  action  R.  was  such  as  is  usually  and  or- 
by  the  representatives  of  an  as-  dinarily  employed  in  transferring 
signor  against  a  subassignee.  the  title  to  non-negotiable  instru- 
"We  will  next  consider  whether  ments,  and  we  see  nothing  upon 
the  action  of  A.  was  such  as  might  the  face  thereof  that  could  reason- 
reasonably  have  been  expected  to  ably  have  been  expected  to  mislead 
induce  a  person  to  purchase  from  S.,  he  being  presumed  to  know  that 
his  assignee,  R.,  without  making  the  assignee  of  a  non-negotiable 
inquiry  as  to  the  consideration  up-  chose  in  action  takes  it  subject  to 
on  which  the  assignment  was  made  the  setoffs  and  defenses  existing 
by  A.  to  R.     The  form   of  the  as-  at  the  time  of  the  assignment." 


804 


FORMS  OF  INSTRUCTIONS. 


[§  1207. 


having  been  obtained  by  false  representation,  you  will  find  for  the 
plaintiff,  and  the  court  instructs  the  jury  that  a  habit  means  more 
than  a  rational  or  incidental  use.21 

(b)  The  court  instructs  the  jury  that  a  single  or  an  occasional 
excess  does  not  make  a  man  an  habitual  drunkard;  but,  if  you  find 
that  the  habit  and  rule  of  a  man's  life  is  to  indulge  periodically 
and  with  frequency  and  with  increasing  frequency  and  violence  in 
excessive  intemperance,  such  a  use  of  liquor  may  properly  cause  the 
finding  of  habitual  drunkenness.22 

§  1207.  Legal  Definition  of  Suicide — Must  Be  Sane  in  Order  to 
Commit,  (a)  The  court  instructs  the  jury  that  suicide,  or  self- 
destruction,  as  these  terms  are  to  be  understood  in  the  law,  implies 
that  the  act  was  deliberately  done  by  a  person  capable  in  law  of 
forming  a  legal  intention  to  do  the  act;  and  if  you  find,  from 
the  evidence  in  this  case,  that  the  said  W.  was  insane  at  the  time 
he  took  his  life,  and  even  though  he  intended  that  the  result  of  his 
act  should  be  death,  yet  if  his  reasoning  faculties  were  so  impaired 
that  he  was  not  able  to  understand  the  moral  character,  the  general 
nature,  consequences  and  effects  of  the  act  he  was  about  to  commit, 
or  if  he  was  impelled  thereto  by  an  insane  impulse  which  he  had  not 
the  power  to  resist,  then  his  act  was  not  suicide  in  the  legal  sense  of 
these  terms,  and  you  should  find  the  issue  in  favor  of  the  plaintiff, 
so  far  as  that  issue  is  concerned.23 


21— Grand  Lodge  A.  O.  TJ.  W.  v. 
Belcham,  145  111.  308  (312),  33  N.  E. 
886. 

"The  language  embodied  in  the 
application  must  receive  a  reason- 
able construction,  one  within  the 
contemplation  of  the  parties  at  the 
time  the  contract  of  insurance  was 
consummated.  What  was  the  pur- 
pose of  requiring  the  assured  to 
state  in  the  application  to  what  ex- 
tent he  used  alcoholic  stimulants, 
tobacco  and  opium?  But  one  object 
can  be  perceived,  and  that  was  to 
guard  against  the  risk  of  insuring 
the  life  of  one  who  was  in  the  habit 
of  using  the  articles  or  either  of 
them  to  such  an  extent  as  to  im- 
peril the  health  and  life  of  the  in- 
dividual. If  a  man  drank  a  glass 
of  liquor  or  smoked  a  pipe  of  opium 
or  a  cigar  once  a  month,  it  is  plain 
that  such  a  use  could  not  endanger 
the  life  of  the  person,  and  that 
such  a  use  was  not  within  the  con- 
templation of  the  parties  when  the 
contract  of  insurance  was  entered 
into  by  the  parties.  It  may  be  that 
the  language  of  the  question  and 
answer  in  regard  to  the  use  of  al- 
coholic stimulants,  if  given  a  strict 
and  technical  construction,  might 
be  interpreted  that  the  insured  did 


not  use  alcoholic  liquors  at  all,  but 
in  our  opinion  an  insurance  com- 
pany propounding  a  question  of 
that  character  should  not  be  al- 
lowed to  indulge  in  a  strict  and 
technical  construction,  but  on  the 
other  hand  the  language  should  re- 
ceive a  fair  and  reasonable  con- 
struction, a  construction  which 
would  imply  more  than  a  rational 
use.  There  should  be  to  some  ex- 
tent at  least  a  habit  or  custom. 
This  is  the  rule  established  in  Van 
Valkenburg  v.  A.  P.  L.  Ins.  Co.,  70 
N.  Y.  605,  and  we  think  it  the  cor- 
rect  one." 

22— N.  W.  L.  Ins.  Co.  v.  Muske- 
gon Bank,  122  TJ.  S.  501  (510),  7  S. 
Ct.  1221. 

23— Grand  Lodge  I.  O.  M.  A.  v. 
Wieting,  168  111.  408  (418),  aff'g  68 
111.  App.  125,  61  Am.  St.  Rep.  123, 
48  N.  E.  59. 

"The  foregoing  instruction,  given 
on  behalf  of  defendant,  was  ap- 
proved in  an  action,  upon  a  benefit 
certificate  containing  the  following 
provision:  'Provided  however  that 
should  the  said  W.  commit  suicide, 
then  and  in  that  case  only  the 
amount  paid  by  the  said  W.  into 
the  beneficiary  fund  by  virtue 
hereof  shall   be  paid   to  the  bene- 


1207.] 


INSURANCE— LIFE. 


805 


(b)     Suicide  While  Sane  or  Insane — Where  Policy  so  Provided  Is 
Void.     The  court  instructs  the  jury:     if  you  believe,  from  the  weight 

of  the  evidence,  that  took  his  life,  and  that  he  at  the 

time  was  so  insane  as  to  be  incapable  of  forming  an  intention  to  take 
his  life  and  did  not  comprehend  and  understand  the  physical  nature 
and  results  of  his  acts,  then  the  fact  of  his  taking-  his  own  life  under 


ficiaries  above  named,  which  said 
amount  shall  be  in  full  of  all  de- 
mand whatsoever  arising  out  of  or 
under  this  beneficiary  certificate.' 
It  has  been  uniformly  held,  so  far 
as  w  e  are  advised,  that  if  a  policy 
contains  no  provision  on  the  sub- 
ject, the  death  of  assured  from  his 
own  act  resulting  from  insanity  is 
as  much  assured  against  as  death 
resulting  from  any  other  physical 
affliction.  Suicide  at  common  lawr 
ranked  as  a  crime  and  was  pun- 
ished by  forfeiture  of  goods  and 
ignominious  burial  (4  Blackstone's 
Com.  189-190),  and  many  authorities 
in  view  of  this  fact  have  construed 
clauses  in  policies  exempting  the 
assurer  from  liability  if  the  as- 
sured should  commit  suicide  as 
effective  only  when  the  circum- 
stances of  the  self-killing  and  the 
mental  condition  of  the  assured 
were  such  it  would  have  been 
deemed  by  the  common  law  he  had 
committed  the  crime  of  self  mur- 
der. ...  In  America,  however, 
self-destruction  is  not  a  crime,  and 
the  meaning  given  to  the  word 
'suicide'  in  criminal  law  seems  to 
have  been  abandoned  in  construc- 
tion of  insurance  policies,  and  the 
phrase  'committed  suicide'  has 
been  declared  synonymous  with  the 
other  phrases  employed  to  convey 
the  idea  of  voluntary  intentional 
self-destruction. 

"The  supreme  court  of  the  U.  S. 
is  committed  to  the  doctrine  that  in 
order  to  relieve  the  insurer  from 
liability  because  of  the  proviso  of 
the  character  here  involved,  there 
must  have  been  sufficient  mental 
understanding  to  realize  the  moral 
turpitude  of  the  act  of  self  de- 
struction. Life  Insurance  Co.  v. 
Terry,  15  Wall.  580;  Bi^elow  v. 
Berkshire  Life  Insurance  Co.,  93  U. 
S.  284,  19  Am.  Rep.  628;  Manl 
L.  Ins.  Co.  v.  Broughton,  109  U.  S. 
121.  3  S.  Ct.  99.  In  Life  Ins.  Co.  v. 
Terry  (supra)  after  a  full  review  of 
the  previous  decisions,  the  court  re- 
marked: 'We  hold  the  rule  on  the 
question  before  us  to  be  this:  if 
the  assured,  being  in  the  possession 


of  his  ordinary  reasoning  faculties, 
from  anger,  pride,  jealousy  or  de- 
sire to  escape  from  the  ills  of  life, 
intentionally  takes  his  own  life,  the 
proviso  attaches  and  there  can  be 
no  recovery.  If  the  death  is  caused 
by  the  voluntary  act  of  the  as- 
sured, he  knowing  and  intending 
that  his  death  shall  be  the  result 
of  his  act,  but  when  his  reasoning 
faculties  are  so  impaired  that  he  is 
not  able  to  understand  the  moral 
character,  the  general  nature,  con- 
sequences and  effect  of  the  act  he 
is  about  to  do,  or  that  he  is  im- 
pelled thereto  by  an  insane  im- 
pulse, which  he  has  not  the  power 
to  resist,  such  death  is  not  within 
the  contemplation  of  the  parties  to 
the  contract,  and  the  insurer  is 
liable.'  This  view  has  met  the  ap- 
proval of  the  court  of  last  resort  in 
the  state  of  New  York,  Vanzandt 
v.  Mut.  B.  L.  Ins.  Co.,  55  X.  Y. 
169;  14  Am.  Rep.  215;  Newton  v. 
Same,  76  N.  Y.  426,  32  Am.  Rep.  335; 
Pennsylvania,  Commercial  I,.  Ins. 
Co.  v.  Groome,  86  Pa.  St.  92,  27  Am. 
Rep.  689;  Am.  L.  Ins.  Co.  v.  Isett, 
74  Pa.  St.  176,  15  Am.  Rep.  545; 
Maryland  Knickerbocker  L.  Ins. 
Co.  v.  Peters,  42  Md.  414;  Bank  of 
Oil  City  v.  Guardian  Mut.  L.  Ins. 
Co.,  5  Big.  Ins.  Cas.  478;  Tennes- 
see, Phadenhauer  v.  Germania  L. 
Ins.  Co.,  7  Heisk  567,  19  Am.  Rep. 
623;  Georgia.  Marritt  v.  Cotton 
States  L.  Ins.  Co.  55  Ga.  103;  L. 
Assocn.  of  Am.  v.  Wallar,  57  id. 
533;  Mich..  John  Hancock  Mut.  L. 
Ins.  Co.  v.  Moore,  34  Mich.  41;  Ver- 
mont. Hathaway  v.  Nat.  B.  Ins. 
Co.,  48  Vt.  335;  and  Ohio,  Schultz 
v.  Ins.  Co.,  40  Ohio  St.  217,  48  Am. 
Rep.  676.  And  upon  principle  j1"- 
well  as  what  seems  to  be  the 
vailing  judicial  sentiment  in  the  U. 
S.  we  accept  and  ad. >i>t  it.  .Mut.  Life 
Ins.  Co.  v.  Terry,  1",  Wall.  580,  21 
L.  236:    SchultZ   v.    Ins.   Co..  40  Ohio 

St.  217:  Brasted  v.  Farmer's  L.  & 
T.  Co.,  4  Hill  74;  St.  Louis  Mut.  Life 
Tns.  Co.  v.  Graves.  6  Hush  (Ky.)  268; 
Phadenhauer  v.  Germania  L.  Ins. 
Co.,  supra;  2  Biddle  on  Insurance, 
831-832." 


806  FORMS  OF  INSTRUCTIONS.  [§  1208. 

such  circumstances  would  not  defeat  a  recovery  for  the  full  amount 
of  the  policy.24 

§  1208.  Committing  Suicide  in  Sane  State  of  Mind— No  Liability- 
Narcotics  or  Opiates,  (a)  The  court  instructs  the  jury  that  you  are 
the  sole  judges  of  the  facts  in  this  case,  and  although  the  jury  may 
believe,  from  the  evidence,  that  said  W.  at  times  acted  strangely 
and  in  such  a  manner  as  to  cause  some  people  to  believe  him  to  be 
insane,  yet  if  they  believe,  from  all  the  evidence  in  the  case,  that 
said  W.  when  he  committed  the  act  of  hanging  himself  by  his 
own  hand,  was  not  so  insane  but  that  he  knew  what  he  was  doing, 
then  he  knew  death  would  result  from  the  act,  and  that  he  com- 
mitted the  act  intentionally  to  put  an  end  to  his  life,  and  that  at  the 
time  his  mental  faculties  were  not  so  impaired  but  that  he  was  able 
to  understand  the  moral  character  and  general  nature,  consequences 
and  effect  of  the  act  he  was  about  to  commit  and  that  he  was  not 
impelled  thereto  by  such  an  insane  impulse  as  he  had  not  the  power 
to  resist,  then  the  court  instructs  the  jury,  as  a  matter  of  law,  that 
the  defendant  is  not  liable  upon  the  beneficiary  certificate  sued  on  in 
this  case  except  to  the  extent  of  the  amount  paid  by  the  said  W.  into 
the  beneficiary  fund  of  the  defendant,  which,  it  is  admitted  by  the 
parties,  is  $ 

(b)  If  the  jury  believe,  from  the  evidence,  that  said  W.  came 
to  his  death  by  hanging  himself,  and  although  the  jury  may  fur- 
ther believe,  from  the  evidence,  that  said  W.  was  then  insane,  and 
that  he  acted  under  the  influence  and  impulse  of  insanity,  and 
that  his  act  of  self-destruction  was  the  direct  result  of  insanity. 
yet  if  the  jury  further  believe,  from  the  evidence,  that  the  said 
W.  was  not  then  in  a  state  of  madness  or  delirium,  and  that  such 
act  of  self-destruction  was  the  result  of  the  will  and  intention  of 
the  said  W.,  he  adopting  the  means  to  the  end  and  contemplating 
the  physical  nature  and  effects  of  the  act,  then  the  court  instructs 
the  jury,  as  a  matter  of  law,  that  the  defendant  is  not  liable  on  the 
beneficiary   certificate   sued   on   except   to   the  extent  of  the   amount 

24 — Supreme  L.  K.  of  P.  v.  Clarke,  was   aware   of   its   physical   effect.' 

88  111.  App.  600  (605).  The    clause    in    the    policy    in    this 

"The    Supreme    Court,    in    Grand  case  contained  the  provision  that  if 

Lodge  I.    O.   M.   A.    v.   Wieting,   168  his   death   should    'result  from   sui- 

111.  408,  48  N.  E.  59,  61  Am.  St.  Rep.  cide    either    voluntary    or    involun- 

123,    in    passing   upon   the   question  tary   whether       .     .     .     sane   or   in- 

whether  the  assured   commits  sui-  sane  at  the  time,'  the  amount  to  be 

cide    when    insane    the   policy    will  paid   the  beneficiary  would   be   the 

necessarily   be   void,    if   it   contains  value  of  the  certificate  at  his  death 

a  proviso  to  that  effect,  said:   "There  to  be  computed  in  the  manner  set 

is    much    conflict    of     opinion     and  forth  in  the  stipulation.  Under  this 

authority    as   to    the   effect   of    the  condition,   the   instruction   was   er- 

condition   or   proviso   of   the   policy  roneous." 

when  insanity  has  so  far  overcome  As  will   be   observed,   that  under 

the  consciousness  of  the  assured  as  the  provision   of  the  policy  in   this 

that  he  is  unable  to  appreciate  the  case  the  giving-  of  this  instruction 

moral  wrong  involved  in  the  act  of  was  error.    It  would  however  be  a 

taking  his  own  life,  though  he  had  proper  instruction  in  form  "a"  this 

mind  enough  to  intend  the  act  and  section. 


§  1209.]  INSURANCE— LIFE.  807 

paid  by  the  said  W.  into  the  beneficiary  fund  of  the  defendant  by 
virtue  of  such  beneficiary  certificate.25 

(c)  "Whenever  the  defendant  has  produced  evidence  which  pre- 
ponderates in  favor  of  the  view  that  said  did  take  narcotics 

or  opiates  with  the  intention  of  producing  death,  and  you  find  that 
same  did  produce  death,  then  it  has  met  the  requirement  of  the 
law,  as  applied  to  the  cases  of  persons  who  unintentionally  commit 
suicide,  and  in  such  ease  your  verdict  will  be  for  the  defendant.26 

§  1209.  Taking  Own  Life  Not  Proof  of  Insanity.  The  court  in- 
structs the  jury  that,  if  you  believe,  from  the  evidence,  that  said  W. 
took  his  own  life,  that  fact  alone  does  not  raise  a  presumption,  and 
is  not  of  itself  evidence,  that  he  was  insane  at  the  time  of  com- 
mitting said  act;  but  the  jury  may  weigh  such  act  and  the  circum- 
stances attending  it,  so  far  as  disclosed  by  the  evidence,  in  con- 
nection with  all  the  evidence  in  the  ease  bearing  on  that  question, 
in  determining  his  mental  condition  at  the  time  of  the  act  of  self- 
destruction.27 

§  1210.  Presumption  of  Death  from  Seven  Years'  Absence, 
(a)  The  court  instructs  the  jury,  as  a  matter  of  law,  that  if 
you  find  from  the  preponderance  of  the  evidence  in  this  case  that 
R.,  the  insured,  left  his  residence  and  home  and  has  been  con- 
tinuously absent  therefrom  for  a  period  of  over  seven  years  with- 
out any  intelligence  being  received  of  his  whereabouts  by  the  mem- 
bers of  his  family,  relations,  neighbors  and  acquaintances  within 
said  period  or  at  any  time  thereafter,  then  such  continued  absence, 
together  with  such  lack  of  intelligence,  raises  the  presumption  of 

25 — Grand  L.  I.  O.  M.  A.  v.  Wiet-  insanity.   The  law  presumes  normal 

ing,   168   111.    408    (416),   aff'g  68   111.  conditions  to  exist,— hence  that  all 

App.   125,   48   N.   E.   59,   61  Am.   St.  men   are   sane.     Insanity  being  an 

Rep.  123.  abnormal  condition  must  be  proven 

The  foregoing-  instruction,  given  as  a  question  of  fact  .  .  .  The 
on  behalf  of  defendant,  was  ap-  law  does  not  declare  that  one  who 
proved  in  an  action  upon  a  benefit  takes  his  own  life  is  to  be  deemed, 
certificate  containing  the  following  as  a  matter  of  law,  to  be  insane, 
proviso:  "Provided  however  that  nor  that  the  act  of  suicide  shall 
should  the  said  W.  commit  suicide,  not  be  considered  in  determining 
then  and  in  that  case  only  the  whether  such  person  was  of  a 
amount  paid  by  the  said  W.  into  sound  mind.  Whether  insane  or 
the  beneficiary  fund  by  virtue  here-  not  is  a  question  of  fact  in  de- 
of  shall  be  paid  to  the  beneficiaries  termining  which,  it  is  competent 
above  named,  which  said  amount  to  consider  the  acts  and  conduct  of 
shall  be  in  full  of  all  demand  what-  the  party  in  question,  and  no  reas- 
soever  arising  out  of  or  under  this  on  is  perceived  why  the  act  of  self- 
beneficiary     certificate."  destruction,  the  manner  and  mode 

26— "This     statement     is     correct  thereof,   and  all  attendant  circum- 

law."     Endowment  Rank  O.  of  K.  stances,  should   be    excluded    from 

P.   v.   Steele,  107  Tenn.  1,   63  S.    W.  consideration.  This  view  finds  sup- 

1126   (1128).  port  in  Karow  v.  N.  Y.  Continental 

27— Grand    L.    of   I.    O.    M.    A.    v.  L.  Ins.  Co.,  57  Wis.  56,  15  N.  W.  27, 

Wieting,    168   111.   408    (415),   aff'g   68  46  Am.   Rep.  17;   and  Terry  v.   Ins. 

111.  App.  125,  48  N.  E.  59,  61  Am.  St.  Co.,    3    Dill.    408.       The    instruction 

Rep.   123.  properly  left  the  question  of  insan- 

"There  is  no  presumption  of  law  ity  to  be  determined  from  the  evi- 

that    self-destruction    arises    from  dence  as  one  of  fact." 


808  FORMS  OF  INSTRUCTIONS.  [§  1211. 

death  of  the  said  R.,  and  the  jury  on  such  proof  have  a  right  to 
presume  his   death.28 

(b)  The  jury  are  instructed  that  if  you  believe  from  the  evi- 
dence and  all  the  facts  and  circumstances  shown  on  this  trial  that 
the  insured,  R.,  was  not  dead  at  the  time  of  the  commencement  of 
this  suit,  then  your  verdict  must  be  for  the  defendant.29 

§1211.  "Good  Health"  Denned,  (a)  Upon  the  law  of  the  case 
you  are  instructed  that,  if,  at  the  time  the  benefit  certificate  in 
question  was  delivered  to  L.,  he  was  in  good  health,  the  plaintiff 
is  entitled  to  recover.  In  this  connection  you  are  instructed  that 
by  being  in  good  health  is  meant  that  at  the  time  of  the  delivery 
of  the  benefit  certificate,  L.  did  not  have  any  disease  of  a  serious 
nature. 

(b)  But  if  you  believe  from  the  evidence  that  L.  at  the  time 
said  beneficiary  certificate  was  delivered  to  him  was  not  sick,  then 
you  will  find  for  plaintiff. 

(c)  Or,  if  you  believe  from  the  evidence  that  at  the  time  the 
beneficiary  certificate  was  actually  delivered  the  said  L.  was  unwell, 
but  that  the  illness  was  not  of  a  serious  nature  and  did  not  affect 
the  risk  or  the  probable  duration  of  his  life,  then  you  are  in- 
structed that  within  the  meaning  of  the  conditions  of  the  certificate, 
said  L.  was  in  good  health.30 

(d)  The  court  instructs  the  jury  that  the  words  "good  health," 
when  applied-  to  a  human  being,  mean  that  the  person  said  to  be  in 
good  health  is  in  a  reasonably  good  state  of  health,  and  that  he  is 
free  from  any  disease  or  illness  that  tends  seriously  or  perma- 
nently   to   weaken    or    impair   the    constitution.31 

§  1212.  Delay  in  Payment  of  the  Premium — Waiver  of  Forfeiture 
— Burden  of  Proof  on  Defendant  to  Show  Forfeiture — Reinstate- 
ment, (a)  The  court  also  instructs  the  jury  that  the  certificate 
of  membership  which  was  filed  with  the  petition  in  this  cause,  and 

28— The  Policemen's  Ben.  Ass'n  v.  Travis,   56   App.   Div.   317,   67  N.  Y 

Ryce,    213    111.    9    (14)    aff'g   115    111.  Sup.  745." 

App.   95,   72   N.   E.  769,  104  Am.   St.  30— Woodmen   v.   Locklin,   28  Tex. 

Rep.    190.  Civ.   App.   4S6,  67  S.  W.   331  (337). 

29 — Policemen's     Ben.      Ass'n     v.  "The     issue     submitted     by     the 

Ryce,   supra.  court  is  simple,  and  the  jury  must 

"It  is  claimed  that  the  above  in-  have  understood  it  in  the  proper 
struction  given  for  appellee  in  ef-  sense,  and  we  cannot  see  that  they 
feet  required  the  jury  to  find  in  her  were  misled  by  the  court's  charge." 
favor,  since  it  does  not  permit  the  31 — Court  of  Honor  v.  Dinger,  221 
jury  to  consider  the  circumstances  111.  176  (181),  77  N.  E.  557. 
attending  R.'s  disappearance  and  "This  instruction  gives  a  reason- 
bearing  upon  the  question  as  to  able  definition  to  the  term  'good 
whether  he  was,  in  fact  dead.  We  health'  and  we  think  a  correct  one. 
think  the  contention  is  not  sound,  At  all  events,  it  is  the  defendant's 
and  is  not  supported  v>v  the  cases  own  definition,  and  we  see  no  good 
cited  and  especially  relied  on,  viz.:  reason  why  it  should  not  be  bound 
Winter  v.  Supreme  Lodge,  etc.,  96  by  it.  Certainly,  under  that  defini- 
Mo.  App.  1-19,  69  S.  W.  662;  Mutual  tion  the  special  findings  of  the  jury 
B.  L.  I.  Co.  v.  Martin,  108  Ky.  11-  were  in  no  sense  inconsistent  with 
18,    55    S.    W.    694;     and    Dunn    v.  the  general  verdict." 


§  1212.]  INSURANCE— LIFE.  809 

has  been  read  in  evidence  by  the  plaintiff,  is  proof  that  McM. 
was  in  good  standing  with  the  order  at  the  time  when  said  cer- 
tificate was  issued,  and  that  the  law  presumes  that  such  good 
standing  continued  thereafter;  and  the  burden  of  proof  is  upon 
the  defendant  to  show  to  the  satisfaction  of  the  jury  that  at  the 
time  of  his  death  the  said  McM.  had  lost  his  good  standing  in  the 
order.  If  the  jury  are  satisfied  from  the  evidence  that  it  had  not 
been  the  practice  of  the  finance  keeper  of  A.  Tent  to  exact  prompt 
payments  of  assessments  when  due ;  that  he  and  said  Tent  had 
allowed  assessments  to  remain  unpaid  several  days  or  weeks  after 
they  became  due,  and  then  accepted  payment  of  the  same  without 
requiring  McM.  to  submit  a  physician's  certificate;  and  if  the  jury 
also  from  the  evidence,  believe  and  find  that  the  deputy  supreme 
commander  of  the  defendant  order  for  the  state  of  Nebraska  at 
the  time  knew  of  this  practice  of  said  finance  keeper  of  said  Tent, 
and  made  no  objection  thereto, — then  these  are  facts  from  which 
the  jury  may  find  that  the  defendant  waived  literal  compliance  with 
the  conditions  as  to  punctual  payment  of  assessments  and  furnishing 
such   certificate. 

(b)  The  court  instructs  the  jury  that  the  mere  fact  that  the 
finance  keeper  of  A.  Tent  had  received  any  prior  assessment  from 
the  deceased  after  the  time  when  under  defendant's  laws  it  was 
due  or  after  the  deceased  stood  suspended,  without  a  physician's  cer- 
tificate of  good  health,  if  you  find  the  finance  keeper  did  so  receive 
any  assessment,  did  not  bind  the  defendant  to  a  course  of  conduct 
or  practice  or  custom  so  as  to  make  it  compulsory  on  the  finance 
keeper  of  A.  Tent  or  defendant  to  receive  assessment  No.  92  without 
a  physician's  certificate  of  good  health  at  the  time  it  was' mailed 
to   said   finance   keeper.32 

(c)  The  jury  are  instructed  that  the  relation  between  the  district 
courts  and  the  supreme  court  of  defendant  is  that  of  agency,  and 
whatever  the  district  court  did,  through  its  proper  officer,  in  the 
matter  of  the  suspension  and  re-instatement  of  D.,  is  binding  on 
the   defendant. 

(d)  You  are  instructed  that  Morning  Glory  Court  No.  705  of  the 
Court  of  Honor  was  an  agent  for  the  supreme  court  in  all  its 
dealings  with  the  deceased,  D. :  and  if  the  jury  believe,  from  the 
evidence,  that  said  local  court,  acting  by  its  officer,  the  recorder, 
D.,  accepted  from  the  said  A.  assessments  and  general  dues  after 
his  suspension  on  December  1,  1902,  and  re-instated  him,  upon  the 
bonds  of  said  local  lodge,  and  if  the  jury  further  believe,  from 
the  evidence,  that  the  said  D.  was  a  member  in  good  standing  upon 
the  books  of  said  local  court  at  the  time  of  his  death,  and  that 
he  had  paid  all  assessments  and  general  dues  then  owing  by  him 
to  said  order,  that  is  evidence  from  which  the  jury  might  infer  that 

32— McMahon    v.    Supreme   T.    K.     Maccabees,   151   Mo.    522,    52   S.   W. 

384   (386). 


810  FORMS  OF  INSTRUCTIONS.  [§  1213. 

the  defendant  waived  the  right  to  declare  contract  of  insurance  for- 
feited.33 

§  1213.  Verdict  of  Coroner's  Inquest  Is  Evidence  of  Cause  of 
Death.  The  court  instructs  the  jury  that  the  verdict  of  the  cor- 
oner's jury  offered  in  evidence  in  this  case  is  competent  to  be  con- 
sidered by  the  jury  in  connection  with  the  other  evidence  in  the 
case  in  determining  the  cause  of  the  death  of ,  the  insured.34 

§  1214.      Incapacity    for   Manual    Labor — Manual    Labor    Denned. 

The  term  "manual  labor"  in  its  ordinary  and  usual  meaning  and 
acceptation  means  labor  performed  by  and  with  the  hands  or  hand, 
and  it  implies  the  ability  for  such  sustained  exercise  and  use  of 
the  hands  or  hand  at  labor  as  will  enable  a  person  thereby  to  earn 
or  assist  in  earning  a  livelihood.  Being  able  to  temporarily  use 
the  hands  or  hand  at  and  in  some  kind  of  labor,  but  without  the 
ability  to  sustain  such  ordinary  exercise  and  use  of  the  hands  at 
some  useful  labor  whereby  money  may  be  earned  to  substantially 
assist  in  earning  a  livelihood  at  some  kind  of  manual  labor  as  it 
must  be  understood  was  contemplated  by  the  parties  to  the  indem- 
nity contract  sued  upon  and  relied  upon  in  this  action.35 

§  1215.  Total  Disability — Right  to  Sue — Notifying  Board  Before 
Suit.  The  constitution  of  the  defendant  society  provides  that  a 
member  making  a  claim  for  indemnity  on  account  of  total  dis- 
ability shall  present  his  proof  of  such  disability,  and  that 
the  question  of  his  right  to  receive  payment  shall  be  re- 
ferred to  a  board  of  the  officers  of  the  grand  lodge,  and  fur- 
ther provides,  if  such  claims  are  disallowed  by  the  board,  the 
claimant  may  appeal  to  the  grand  lodge  in  session.  This  provision 
does  not  deprive  the  plaintiff  of  his  right  to  sue  the  claim  in  a 
court  of  law.     But  it  was  his  duty  before  beginning  such  suit  to 

33 — Court    of    Honor    v.     Dinger,  pay  the  amount  of  his  delinquency 

221  111.  176    (181,  182),  77  N.  E.  557.  to  the  recorder  of  the  local  society 

"It  is  insisted  that  both  of  these  and  if  he  was  in  good  health  he 
instructions  ignored  the  provision  had  the  right  to  be,  and  the  record 
of  section  147  of  appellant's  consti-  shows  that  he  was  in  that  pro- 
tution  and  by-laws,  which  provides  vision,  regularly  re-instated  to  all 
that  a  district  recorder  is  an  agent  his  rights  as  a  member  of  the  or- 
of  the  district  court  and  not  an  der.  We  do  not  see  how  it  can  be 
agent  of  the  Court  of  Honor.  Ad-  seriously  contended  that  the  re- 
mitting that  the  constitution  and  corder  of  the  district  court  in  this 
by-laws  contain  such  a  provision,  respect  did  not  act  as  the  agent  of 
yet  under  the  facts  and  circum-  the  supreme  court.  We  have  held 
stances  of  this  case  as  they  appear  in  several  cases  that  in  view  of 
in  evidence  the  court  was  justified  such  facts  the  officers  of  the  subor- 
in  assuming  the  contrary  and  in  so  dinate  lodge  act  as  the  agents  of 
instructing  the  jury.  Upon  the  sus-  the  supreme  lodge.  Grand  Lodge  A. 
pension  of  a  member,  if  he  paid  his  O.  U.  W.  v.  Lachmann,  199  111.  140, 
dues    within    sixty    days    after    the  64  N.  E.  1022." 

delinquency  he  was  entitled   to  be  34 — Supreme  Court  of  H.  v.  Bar- 
re-instated  in  the  society,  provided  ket.   96   111.   App.   490  (498). 
he  was  at  that  time  in  good  health.  35 — Grand    L.    of    B.    of    L.    F.    v. 
All  A.  had  to  do,  as  far  as  his  re-  Orrell,  206  111.  208  (211),  69  N.  E.  68. 
instatement  was  concerned  was  to 


§  1216.] 


INSURANCE— LIFE. 


811 


first  lay  his  claim  before  the  proper  officers  or  board  of  the  de- 
fendant, and  give  it  opportunity  to  pay  without  further  litigation; 
and,  if  he  failed  to  show  that  he  had  made  such  proofs  before  com- 
mencing this  suit,  he  cannot  recover.30 

§  1216.  If  Plaintiff  Is  Able  to  Do  Any  Work,  Not  Liable  Under 
"Total  Disability"  Clause.  The  jury  are  instructed  that  it'  they 
find,  from  the  evidence,  that  the  plaintiff  is  able  to  do,  perform 
or  direct  any  kind  of  labor  or  business,  then  their  verdict  will  be 
for  the  defendant.37 


36— Lillie  v.  Brotherhood  of  Ry. 
Trainmen,  114  Iowa  252,  86  N.  W. 
279   (280). 

"Accepting'  plaintiff's  disability, 
as  we  must,  in  view  of  the  record, 
as  being  covered  by  the  policy,  this 
instruction  announces  a  correct 
rule  of  law.  The  facts  are  that 
plaintiff's  claim  was  presented  to 
defendant,  and  on  its  disallowance 
he  says  he  took  an  appeal  to  the 
grand  lodge.  He  is  not  contradicted 
on  this  point.  Such  being  the  case, 
plaintiff  is  certainly  not  deprived 
of  his  right  to  sue  at  law.  There  is 
no  provision  of  the  constitution 
which  attempts  to  make  the  de- 
cision of  the  lodge  tribunal  a  final- 
ity, as  in  Anacosta  T.  of  Redmen 
v.  Murbach,  13  Md.  91,  71  Am.  Dec. 
625,  and  kindred  cases,  except  arti- 
cle 44;  and,  as  we  have  said,  no 
question   is   made   under   that   pro- 


vision. Apparently  plaintiff  had 
exhausted  his  remedies  within  the 
order.  Under  the  authorities  cited 
by  appellant,  he  was  entitled  to 
proceed  in  the  courts.  Nibl.  Mut. 
Ben.  Soc.  para.  311  et  seq.  See  also 
Bauer  v.  Lodge,  102  Ind.  262,  1  N. 
E.  571;  Dolan  v.  Court  G.  Samari- 
tan No.  5910  A.  O.  O.  F.,  12S  Mass. 
437.  There  are  cases  like  McNa- 
mara  v.  Harrison,  81  Iowa  203,  52 
N.  W.  125,  9  L.  R.  A.  S41,  in  which 
it  was  held  valid  to  make  the  de- 
cision of  a  third  person  a  condition 
precedent  to  the  right  to  sue.  But 
there  was  no  attempt  here  to  do 
this,  so  far  as  is  claimed." 

37 — Supreme  T.  of  K.  of  Macca- 
bees v.   King,  79  111.   App.   145  (149). 

This  was  an  action  upon  a  bene- 
fit certificate  which  provided  for 
payment  in  case  of  "total  disabil- 
ity." 


CHAPTER  LVI. 
INTOXICATING  LIQUORS— CIVIL .* 

See  Erroneous  Instructions,  same  chapter  head,   Vol.  III. 


§  1217.  Suit  by  wife  for  death  of 
husband  —  What  must  be 
proved  —  Statutory  provi- 
sions. 

§  1218.  Injured  in  means  of  support 
by  sale  of — Enforcement  of 
law   on    the   statute   books. 

§  1219.  Degree    of    intoxication. 

§  1220.  Sufficient  if  the  liquor  sold 
contributed,  etc. 

§  1221.  Proximate  cause  —  New  or 
intervening   cause. 

§  1222.  Exact  date  of  sale  not  re- 
quired —  Preponderance  of 
evidence  sufficient. 


§  1223.  Permission  to  defendant  by 
wife  to  sell  liquors  to  hus- 
band occasionally  not  bar 
to  action — Exemplary  dam- 
ages. 

§  1224.  Liability  of  owner  of  prem- 
ises where  illegal  sales  of 
liquor  are  made. 

§  1225.  Suit  against  the  saloon- 
keeper and  owner  of  the 
building. 

§  1226.  Setting  aside  and  annulling 
license. 


§1217.  Suit  by  Wife  for  Death  of  Husband— What  Must  Be 
Proved — Statutory  Provisions,  (a)  The  jury  are  instructed,  that  by 
the  law  of  this  state,  every  person  who  sells  or  gives  intoxicating 
liquors  to  another,  and  thereby,  in  whole  or  in  part,  causes  the  in- 
toxication of  such  person,  is  liable  to  the  wife  of  the  person  so  be- 
coming intoxicated,  for  any  injury  which  she  may  sustain  in  her 
means  of  support,  resulting  from  the  death  of  her  husband,  if  his 
death  ensues  as  a  consequence  of  such  intoxication.1 

(b)  The  jury  are  instructed,  that  if  they  believe,  from  the  evi- 
dence, that  the  plaintiff  was  the  wife,  and  is  now  the  widow  of  the 
said  F.  M.,  and  that  the  said  defendants,  or  any  or  either  of  them,  or 
the  servants,  employes  or  any  person  acting  for  said  defendants,  or 

any  or  either  of  them,  did  on  or  about sell  or  give  to  the  said 

F.  M.  beer,  or  any  intoxicating  liquor,  and  thereby,  in  whole  or  in 
part,  cause  the  intoxication  of  the  said  M.,  and  that  the  said  M.,  while 
under  the  influence  of  such  intoxication,  and  in  consequence  thereof, 
lost  his  life  in  manner  and  form  as  charged  in  the  declaration,  and 
that  the  plaintiff  was  thereby  damaged  in  her  means  of  support,  then 
the  jury  should  find  the  said  defendants,  or  such  of  them  as  are 
proved  to  have  contributed  to  such  intoxication,  in  whole  or  in  part, 
guilty,  and  assess  the  plaintiff's  damages.2 


*Note. — The  statutes  of  the  dif- 
ferent states,  giving  a  right  of 
action  for  injuries  sustained  in 
consequence  of  the  intoxication  of 
any  person,  vary  somewhat  in  their 
details,  although  they  are  similar 
in  their  general  features,  The  fol- 
lowing instructions,  adapted  to  this 


class  of  cases,  with  uiight  changes, 
will  generally  be  found  applicable 
to  the  laws  of  most  of  the  different 
states. 

1 — O'Halloran  v.  Kingston,  16  111. 
App.  659. 

2 — Fountain  v.  Draper,  49  Ind. 
441;    Emory    v.    Addis,    71    111.    273; 


812 


§  1218.]  INTOXICATING  LIQUORS  813 

(c)  The  court  instructs  the  jury,  that  to  entitle  the  plaintiff  to 
recover  against  any  one  or  more  of  the  defendants,  the  jury  must 
believe,  from  the  evidence,  that  such  defendants  sold  or  gave  intoxi- 
cating liquors  to  the  deceased,  and  thereby  caused  or  contributed  to 
cause,  his  intoxication,  in  whole  or  in  part;  and  so  far  as  the  injury 
complained  of  results  from  the  death  of  the  deceased,  it  must  appear 
that  the  death  was  caused  by  such  intoxication.3 

§  1218.  Injured  in  Means  of  Support  by  Sale  of — Enforcement  of 
Law  on  the  Statute  Books,  (a)  The  court  instructs  the  jury  that 
it  is  not  for  them  to  inquire  into  or  consider  the  propriety  of  the  law 
in  force  relating  to  the  sale  of  intoxicating  liquors  under  which  this 
action  is  brought.  The  law  as  it  now  stands  upon  the  statute  books 
of  this  state  should  be  enforced,  and  if  the  jury  believe  from  a  pre- 
ponderance of  the  evidence  in  this  case  that  the  defendants  or  any  of 
them  contributed  to  the  intoxication  of  said  B.,  if  such  intoxication 
has  been  proven  by  a  preponderance  of  the  evidence  in  this  case,  and 
that  said  B.  was  a  person  in  the  habit  of  becoming  intoxicated,  and 
that  in  consequence  of  such  intoxication  the  plaintiffs  have  been  in- 
£ared  in  their  means  of  support  by  reason  of  such  intoxication,  then 
the  jury  should  find  for  the  plaintiffs  and  against  the  defendants  or 
such  of  them,  as  the  jury  shall  find  from  the  evidence  have  con- 
tributed to  such  intoxication  in  whole  or  in  part.4 

(b)  You  are  instructed  that,  by  the  law  of  this  state,  every  person 
who  sells  or  gives  intoxicating  liquors  to  another,  and  thereby,  in 
whole  or  in  part,  causes  the  intoxication  of  such  person,  is  liable  to 
the  wife  of  the  person  so  becoming  intoxicated  for  any  injury  she  may 
sustain  to  her  means  of  support  resulting  as  a  consequence  of  such 
intoxication.5 

§  1219.  Degree  of  Intoxication.  The  court  further  instructs  you 
that  it  is  not  sufficient  in  order  to  hold  the  defendant  liable  in  this 
case  that  the  deceased  merely  felt  the  liquor  which  he  had  been  drink- 
ing, or  that  he  was  slightly  under  the  influence  of  liquor,  or  that  he 
was  feeling  good  merely,  but  that  it  is  absolutely  essential,  before 
there  can  be  any  recovery,  for  you  to  believe,  from  all  the  evidence, 
that  the  deceased  was  intoxicated.     And  if  you  further  believe  from 

Woolheather  v.   Risley,   38   la.   486;  been     sanctioned     by     this     court 

Worley    v.     Spurgeon,     38    la.    465;  in  every  decision  upon  the  subject 

Kehrig  v.  Peters,  41  Mich.  475,  2  N.  from  Roose  v.   Perkins,   9  Neb.  304, 

W.   801;   Flynn   v.    Fogarty,   106  111.  2    N.    W.   715,    to    the   present    time, 

263.  and  is  the  settled  law  of  this  state. 

3— Kratch    et    al.    v.    Heilman,    53  See    Elshire    v.    Schuyler,    15    Neb. 

Ind.  517;   Flynn  v.  Fogarty,  106  111.  561,  20  N.  W.  29;  Kerkow  v.  Nauer 

263.  15   Neb.    150,   18   N.    W.   27;    McClay 

4 — Johnson     v.     McCann,     61     111.  v.    Worrall,    18    Neb.    44,    24    N.    W. 

App.  110  (113).  429;    Warrick    v.    Rounds,    17    Neb! 

5— Murphy  v.  Gould,  40  Neb.  128,  411,   22   N.   W.   785;    Wardell  v.   Mc- 

59  N.   W.   383.  Connell,  23  Neb.  152,  36  N.  W.  278; 

"The   doctrine   enunciated   in   the  Jones  v.   Bates,   26  Neb.   693,  42  N. 

foregoing    request    to    charge    has  "W.   751,   4  L.   R.   A.   495." 


814  FORMS  OF  INSTRUCTIONS.  [§  1220. 

all  the  evidence  that  the  deceased  was  not  intoxicated,  and  that  when 
he  left  defendant's  place  of  business  on  the  evening  in  question  he 
was  perfectly  able  to  take  care  of  himself,  and  did  not  thereafter  be- 
come intoxicated  from  liquors  obtained  from  the  defendant,  then  you 
must  find  the  defendant  not  guilty.6 

§  1220.  Sufficient  if  the  Liquor  Sold  Contributed,  etc.  (a)  The 
jury  are  further  instructed  that  though  they  may  believe,  from  the 
evidence,  that  the  deceased  had  liquor  in  his  house,  or  about  his 
person,  or  had  bought  or  taken  it  at  places  other  than  at  the  saloon 
of  the  defendants,  still,  this  fact  would  constitute  no  defense  to  this 
action;  provided  the  jury  believe,  from  the  evidence,  that  the  de- 
ceased obtained  intoxicating  liquors  at  the  saloons  of  the  defendant, 
which  contributed  to  his  intoxication,  and  that  his  death  resulted  as 
a  consequence  of  such  intoxication.7 

(b)  In  order  to  make  a  dram-shop  keeper  liable  for  injuries  oc- 
casioned by  intoxication,  which  results  from  the  drinking  of  intoxi- 
cating liquors  sold  by  him,  it  is  not  necessary  that  such  intoxication 
should  be  wholly  produced  by  liquor  sold  by  him;  it  is  only  necessary 
to  show  that  the  liquor  sold  by  him  contributed  or  assisted  in  pro- 
ducing such  intoxication.8 

(c)  If  you  believe  from  the  evidence  that  the  defendant,  A.,  on 
September  11th,  1902,  by  himself  or  his  servant,  in  a  certain  building 
occupied  by  him,  sold  or  gave  to  the  deceased  intoxicating  liquors, 
which  in  the  whole  or  in  part  caused  the  intoxication,  if  any,  of  the 
said  deceased,  then  your  verdict  should  be  for  the  plaintiffs.9 

§  1221.  Proximate  Cause — New  or  Intervening  Cause,  (a)  As  a 
matter  of  law,  damages,  to  be  recoverable,  must  be  the  natural  and 
reasonable  result  of  the  defendant's  act;  and  if  of  such  a  character 
as  in  the  ordinary  course  of  things  would  flow  from  the  act,  they  may 
be  recovered,  otherwise  they  are  too  remote.  A  party  cannot  be  held 
responsible  for  injuries  which  could  not  reasonably  have  been  fore- 
seen or  expected,  as  the  result  of  his  misconduct.10 

(b)  The  damages  to  be  recovered  in  an  action  must  always  be 
the  natural  and  proximate  consequence  of  the  wrongful  act  com- 
plained of.  If  a  new  force  or  power  has  intervened,  of  itself  suf- 
ficent  to  stand  as  the  cause  of  the  mischief  or  injury,  the  first  must  be 
considered  as  too  remote.11 

6— Shorb  v.  Webber,   89  111.   App.  400;     Kelley    v.     Malhort,     115    111. 

474   (478),  aff'd  188  111.   126,   58  N.   E.  App.   23. 

949.  10— Phillips    v.    Dickerson,    85    111. 

7— Roth  v.  Eppy,  80  111.  283;  Boyd.  11;    Shugart    v.    Egran,    83    111.    56; 

v.    Watt,    27    Ohio    St.    259;    Wool-  Schroeder  v.   Crawford.   94  111.   357; 

heather  v.  Risley,  38  la.  4S6;  Jessen.  Hart  v.  Duddleson,  20  111.  App.  619; 

v    Wilhite,   —   Neb.    — ,    104   N.    W.  Schulte  v.  Menke,  111  111.  App.  212, 

1064.  aff'd  210   111.   357,   71  N.   E.   325. 

8— O'Halloran  v.  Kingston,  16  111.  11— Schmidt    v.     Mitchell,    84    111. 

App.   659.  195;    Currier  v.   McKee,   99   Me.   364, 

9— Triggs     v.     Mclntyre,     215    111.  59   Atl.    442. 
369,  aff'g  115  111.  App.  257,  74  N.  E. 


§  1222.]  INTOXICATING  LIQUORS.  815 

(c)  If  you  believe  from  the  evidence  that  the  deceased  came  to 
his  death  by  suffocation  and  that  the  cause  of  such  suffocation  is  not 
shown  by  the  evidence,  then  you  will  find  the  defendants  not  guilty. 

(d)  Even  though  you  may  believe  from  the  evidence  that  the  de- 
ceased procured  intoxicating  liquor  from  the  defendant,  A.,  and  that 
he  became  intoxicated  therefrom,  still  if  you  further  believe  from  the 
facts  and  circumstances  in  evidence  in  this  that  he  came  to  his  death 
by  reason  of  the  willful  or  criminal  act  of  some  person  or  persons, 
unknown,  which  act  was  not  provoked  by  said  deceased,  and  that  such 
willful  or  criminal  act,  and  not  his  intoxication,  was  the  effective 
cause  of  his  death,  then  you  should  find  the  defendants  not  guilty.12 

§  1222.  Exact  Date  of  Sale  Not  Required — Preponderance  of  Evi- 
dence Sufficient,  (a)  The  jury  are  instructed  that  in  order  to  en-' 
title  the  plaintiff  to  recover  it  is  not  necessary  that  the  plaintiff 
should  prove  that  the  sales  were  made  on  the  particular  days  set  out 
in  the  declaration;  that  in  order  to  recover  under  the  counts  covering 
a  period  of  time  the  plaintiff  must  show  a  sale  within  the  period 
named;  but  that  under  the  counts  where  particular  days  are  set  out, 
the  2^1aintiff  may  recover  for  injuries  which  she  suffered  by  reason  of 
a  sale  made  on  any  day  not  used  as  a  basis  for  recovery  under  any 
other  count.13 

(b)  The  jury  are  further  instructed,  that  in  civil  actions  of  this 
kind,  it  is  not  necessary  that  the  fact  of  the  sale  of  intoxicating 
liquors,  or  any  other  fact  necessary  to  a  recovery,  should  be  proved 
beyond  a  reasonable  doubt;  it  is  only  necessary  that  the  facts  should 
be  proved  by  a  preponderance  of  the  evidence.14 

(c)  Unless  from  a  consideration  of  all  the  evidence  it  is  shown  by 
a  preponderance  of  all  the  evidence  that  the  effective  cause  of  the 
death  of  the  deceased  was  by  reason  of  drinking  intoxicating  liquor, 
your  verdict  should  be  not  guilty.15 

§  1223.  Permission  to  Defendant  by  Wife  to  Sell  Liquors  to  Hus- 
band Occasionally  Not  Bar  to  Action — Exemplary  Damages,  (a)  Al- 
though you  may  believe  from  the  evidence  that  the  plaintiff  wrote  the 
defendant  G.  that  she  did  not  object  to  his  selling  her  husband  in- 
toxicating liquors  occasionally,  such  fact  would  not  bar  her  action, 
but  if  such  fact  is  proven  by  a  preponderance  of  the  evidence,  it  may 
be  considered  by  the  jury,  together  with  the  other  evidence  in  the 
case,  in  estimating  the  damages  of  the  plaintiff,  if  the  jury  believe, 
from  the  evidence,  the  plaintiff  is  entitled  to  recover  damages. 

(b)  The  court  instructs  the  jury  that  if  they  find,  from  the  evi- 
dence, the  plaintiff  has  sustained  actual  damages,  then  they  may  give 

12— Triggs    v.    Mclntyre,    215    111.  14— Mayers   v.    Smith,   121  111.   442, 

369.  aff'g  115  111.  App.  257,  74  N.  E.  13  N.  E.  216. 

400  15— Triggs    v.    Mclntyre,    215    111. 

13— Sackett    v.    Ruder,    152    Mass.  369,  aff'g  115  111.  App.  257,  74  N.  E. 

397,  25  N.   E.   736   (740),  9  L.   R.   A.  400. 
391. 


816  FORMS  OF  INSTRUCTIONS.  [§  1224. 

her  exemplary  or  punitive  damages,  if  they  find,  from  the  evidence, 
the  conduct  of  the  defendants  whom  they  find  guilty  has  been  wanton 
and  in  willful  disregard  of  the  plaintiff's  rights.16 

§  1224.  Liability  of  Owner  of  Premises  Where  Illegal  Sales  of 
Liquor  are  Made.  The  jury  are  instructed,  that  under  our  statute, 
the  owner  of  premises  upon  which  intoxicating  liquors  are  kept  for 
sale,  contrary  to  law,  is  not  guilty  of  an  offense  if  he,  in  good  faith, 
leased  them  for  a  lawful  purpose,  and  did  not  afterwards  affirmatively 
assent  to  such  unlawful  use;  the  mere  failure  to  prevent,  or  to  at- 
tempt to  prevent,  the  illegal  use  or  sale  of  the  liquors,  does  not  sub- 
ject him  to  the  penalties  of  the  statute.17 

§  1225.  Suit  Against  the  Saloon-Keeper  and  Owner  of  the  Building 
Jointly.  The  court  instructs  the  jury,  that  the  law  under  which 
this  suit  is  brought,  provides  that  every  wife,  who  shall  be  injured 
in  person  or  property,  or  means  of  support,  in  consequence  of  the  in- 
toxication, habitual  or  otherwise,  of  her  husband,  may  have  a  right 
of  action,  in  her  own  name,  against  any  person  or  persons  who  shall, 
by  selling  or  giving  intoxicating  liquor  to  her  husband,  have  caused 
such  intoxication,  in  whole  or  in  part;  and  the  law  further  provides, 
that  any  person  owning  any  building  or  premises  where  such  liquors 
are  sold  therein,  and  knowingly  permitting  such  sale,  shall  be  liable 
jointly  with  the  person  or  persons  selling  or  giving  such  intoxicating 
liquors,  for  all  damages  which  may  be  sustained  in  the  manner  above 
stated.18 

§  1226.  Setting  Aside  and  Annulling  License.  If  you  find  that  said 
sales  of  liquor  were  made  in  the  city  of  Omaha,  and  at  the  time  the 
plaintiffs  had  paid  into  the  city  treasury  the  sum  of  $1,000  and  had 
their  bond  therefor  on  file  and  approved  with  the  clerk  of  said  city, 
and  a  license  thereupon  issued  to  them  by  the  authorities  of  said  city 
for  the  year  ,  then  your  verdict  should  be  for  the  plaintiffs,  al- 
though such  license  may  have  been  dated  April  11,  ,  and  two 

days  before  the  commencement  of  the  municipal  year  of .19 

16— Earp    v.     Lilly,    217    111.     582,  their    license,    I    should    be    of   the 

120  111.  App.  123,  75  N.  E.   552.  opinion    that    this    instruction    was 

17— State   v.   Ballingall,   42  la.   87.  erroneous,    but,    upon    a    collateral 

18— Loan  v.  Hiney,  53  la.  89,  4  N.  issue    by    a    party    who    has    pur- 

W.    865;    Triggs    v.    Mclntyre,    215  chased   of  the   licensees,   who  have 

111.    369,    aff'g   115    111.    App.    257,    74  sold    in   good    faith,    and   especially 

N.  E.  400.  as    there    is    no    evidence    tending 

19— Gillen    v.    Riley,    27   Neb.    158,  to    prove    that   the   plaintiffs    were 

42  N.  W.  1054  (1057).  without  a  license  issued  within  the 

"Were  this  a  direct  proceeding  on  municipal      year      in      which      the 

the    part    of    the   proper   authority  liquors  were  sold,  I  am  of  the  opin- 

against  the  plaintiffs   for  the  pur-  ion  that  there  is  no  reversible  er- 

pose  of  setting  aside  and  annulling:  ror  in  the  charge." 


CHAPTER  LVIL 

LANDLORD  AND  TENANT. 

See  Erroneous  Instructions,  same  chapter  head,   Vol.  III. 


§  1227.  Relation  of  landlord  and 
tenant  must  exist  —  Con- 
tract   of   renting. 

§  1228.  Tenant  holding-  over — Con- 
tract   implied. 

§  1229.  Holding  over— Certain  de- 
mands by  tenant — Acquies- 
cence of  agent. 

§  1230.  Holding  over  —  Increased 
rental — New    contract. 

§  1231.  Wrongful  holding  over- 
Good  faith — Double  rent. 

§  1232.  Landlord  not  bound  to  re- 
pair —  Altering  building  — 
Waiver. 

§  1233.  Title  to  crops— To  be  divided 
after  harvest — Right  of 
possession. 

§  1234.  Diminished  enjoyment — Ten- 
ant remaining — Bound  to 
pay    rent. 

§  1235.  Premises  rendered  unten- 
antable by  fire  or  ice  gorge 
— Liability    for    rent. 

§  1236.  Condition  of  basement — 
Concealed  fraudulently  — 
Liability  for   rent. 

§  1237.  Action  for  rent — Lease  taken 
in   name  of  tenant's  agent. 


§  1238.  Receipt  for  rent — Presump- 
tion  as    to   back   rent. 

§  1239.  Right  of  landlord  to  enter 
for  condition  broken — 
Leased  for  a  particular 
purpose — Forfeiture. 

§  1240.  Written  lease — All  prior 
agreements  merged — Alter- 
ing or  varying  terms. 

§  1241.  Tenant  can  not  deny  land- 
lord's title — Proper  to  de- 
fine purpose  and  object  of 
evidence. 

§  1242.  Heating  of  apartments — 
Death  of  child  by  failure 
of. 

§  1243.  Surrender  of  premises — How 
effected — Must  be  assented 
to   by   landlord. 

§  1244.  Surrender  of  premises — 
Moving  away — Giving  up 
keys. 

§  1245.  What  constitutes  eviction — 
Forcible  expulsion  not  nec- 
essary. 

§  1246.  Eviction  from  part  of  the 
premises  —  Extinguishment 
of  all   rent. 

§  1247.  Wrongful  eviction — Right  to 
procure  warrant — Malice — 
Probable  cause. 


§  1227.  Relation  of  Landlord  and  Tenant  Must  Exist — Contract 
of  Renting,  (a)  Although  the  jury  may  believe,  from  the  evidence, 
that  the  plaintiff  was  the  owner  of  the  property  in  question  during 
the  time  alleged  and  that  the  defendant  occupied  the  same  during, 
etc.,  still  this  would  not  authorize  the  plaintiff  to  recover  unless  the 
jury  believe,  from  the  evidence,  that  the  defendant  acknowledged  the 
rights  of  the  plaintiff  in  the  property  and  he  held  the  same  under  the 
plaintiff.1 

(b)  The  court  instructs  the  jury  that  the  defendant  had  the  right 
and  power  to  rent  the  said  storehouse  to  plaintiffs,  and  if  the  jury 
believe  from  the  evidence  that  plaintiffs  and  defendants  agreed  on 

1— Lockwood  v.  Thunder  Bay,  Mills  Co.  v.  Hart,  124  Mass.  123; 
etc.,  42  Mich.  536,  4  N.  W.  292;  Moore  v.  Hirvev,  50  Vt.  297;  Gal- 
Moses  v.  Arnold,  43  Iowa  187;  lagher  v.  Hirnilberger,  57  Ind.  63. 
Noyes  v.  Loving,  55  Me.  408;   Cent. 

52  817 


818 


FORMS  OF  INSTRUCTIONS. 


[§  1228. 


the  price  to  be  paid  therefor,  and  the  time  same  was  to  be  occupied 
by  plaintiffs,  and  that  plaintiffs  were  then  in  possession  of  said  store- 
room, they  will  find  for  defendants.  Unless  they  so  believe,  they  will 
find  for  plaintiffs.2 

§  1228.  Tenant  Holding  Over— Contract  Implied,  (a)  The  court 
instructs  the  jury,  that  when  a  tenant  holds  over  after  the  expira- 
tion of  his  term,  with  the  assent  of  the  landlord,  expressed  or  im- 
plied, if  there  is  no  special  agreement  to  the  contrary,  it  will  be  up- 
on an  implied  agreement  or  liability  to  pay  rent  thereafter  on  the 
same  terms  as  to  amount  and  times  of  payment  as  were  provided  in 
the  original  lease.3 

(b)  The  court  instructs  the  jury  that  if  you  believe  from  the  evi- 
dence that  the  defendant  is  holding  possession  of  the  premises  in  ques- 
tion without  right,  and  after  the  determination  of  a  lease  of  the  said 
premises,  then  you  must  find  the  issues  for  the  plaintiff.4 

(c)  The  jury  are  instructed  that  if  they  believe  from  the  testi- 
mony that  the  defendants,  after  the  close  of  the  three-years'  lease, 
induced  the  plaintiff  to  believe  that  the  defendants  desired  to  keep  or 
would  keep  the  premises  in  question  for  another  year,  then  they 
should  find  for  plaintiff  in  the  amount  sued  for.5 

§  1229.  Holding  Over — Certain  Demands  by  Tenant — Acquiescence 
of  Agent.     If  you  believe  from  a  preponderance  of  the  evidence  that 


2— Boltx  v.  Miller,  23  Ky.  991,  64 
S.   W.    630    (631). 

"This  instruction  was  substan- 
tially correct,  and,  in  substance, 
should  have  been  given  to  the 
jury." 

3— Tavlor's  Land,  and  Ten.  (9th 
Ed.)  §525;  Clapp  v.  Noble,  84 
111.  62;  Weston  v.  Weston,  102 
Mass.  514;  Schuyler  v.  Smith,  51 
N.  Y.  309;  Bacon  v.  Brown,  9  Conn. 
334;  Finney  v.  St.  Louis  et  al.,  39 
Mo.  177;  City  of  Plattsmouth  v. 
New  Hampshire  Sav.  Bank,  71  C. 
C.  A.  507,  139  Fed.  631. 

4 — Kessel  v.  Mayer,  118  111.  App. 
267    (269). 

"Appellant  contends  that  the 
phrase  'without  right'  contained  in 
this  instruction  is  unintelligible 
even  to  the  legal  mind,  and  it  is 
quite  problematic  in  what  light  the 
jury  viewed  it,  or  wrhat  effect  it 
had  in  the  rendition  of  the  verdict. 
A  sufficient  answer  to  this  objec- 
tion is  found  in  par.  4,  sec.  2,  ch. 
57.  R.  S.,  1903,  Hurd,  which  reads: 
'The  person  entitled  to  the  posses- 
sion of  the  lands  or  tenements  may 
be  restored  thereto  in  the  manner 
hereinafter  provided  when  any 
lessee  of  the  lands  or  tenements 
or  any  person   holding  under  him, 


holds  possession  without  right, 
after  the  determination  of  the 
lease  or  tenancy  by  its  own  limi- 
tation, condition  or  terms,  or  by 
notice    to    quit    or    otherwise.' 

"Further,  the  court  at  the  re- 
quest of  appellant  gave  an  instruc- 
tion to  the  jury  setting  forth  the 
particulars  of  the  verbal  lease  un- 
der which  appellant  claimed  pos- 
session of  the  premises,  and  there- 
by cleared  away  the  doubt,  if  any 
doubt  existed,  as  to  the  meaning 
of  the  phrase  'without  right.' 
Stringham  v.  Parker,  159  111.  310, 
42  N.  E.  748;  Calumet  Dock  Co. 
v.  Morawetz,  195  111.  406,  63  N.  E. 
165." 

5 — Abeel  v.  McDonnell  —  Tex. 
Civ.    App.   — ,    87   S.    W.    1066    (1067). 

"This  charge  does  not  militate 
against  the  view  that,  if  the  ten- 
ants held  over  after  the  term  had 
expired,  the  law  would  imply  a 
liability  upon  their  part  for  the 
full  term,  but  it  is  to  the  effect 
that,  if  the  defendants  induced  the 
plaintiff  to  believe  that  they 
would  keep  the  premises,  then 
they  would  be  liable  for  another 
year;  which  instruction,  as  far  as 
it  went,  was  correct.  If  such  facts 
existed,  the  defendants  would  be 
liable." 


§1230.]  LANDLORD  AND  TENANT.  819 

at  the  time  of  the  expiration  of  the  written  lease  the  tenant  had 
notified  plaintiff's  agent  that,  without  certain  improvements  were 
made,  the  defendants  would  only  hold  the  house  in  question,  and 
whether  the  improvements  would  be  made  was  undecided  on  Jan. 
1,  190 — ,  and  when  defendants  paid  the  monthly  rental  for  January, 
190 — ,  they  notified  plaintiff's  agent  that  they  would  remain  only  as 
tenants  from  month  to  month,  and  the  agent  accepted  the  month's 
rent  with  such  notice,  and  acquiesced  in  said  statement  of  the  tenants, 
then  if  you  so  find,  your  verdict  will  be  for  the  defendants.6 

§  1230.  Holding  Over — Increased  Rental — New  Contract.  That 
when  a  tenant,  under  a  lease  from  year  to  year,  is  notified  by  his 
landlord,  before  the  expiration  of  his  term,  that  if  he  occupies  the 
premises  another  year  he  will  have  to  pay  a  certain  increased  rent, 
and  the  tenant  holds  over  without  any  further  contract  or  under- 
standing between  the  parties,  such  act  of  holding  over  will  be  con- 
strued as  an  implied  agreement  that  he  will  hold  the  premises  upon 
the  new  terms  imposed.7 

§  1231.  Wrongful  Holding  Over— Good  Faith— Double  Rent.  That 
the  question  whether  the  defendant  wrongfully  held  over  the  pos- 
session of  the  premises  after  the  expiration  of  his  lease,  is  a  ques- 
tion of  fact  to  be  determined  by  the  jury,  from  all  the  evidence  in 
the  case ;  and  though  the  jury  may  believe,  from  the  evidence,  that 
the  defendant  did  hold  over  wrongfully,  still  if  they  further  believe, 
from  the  evidence,  that  the  defendant  had  reasonable  grounds  for  be- 
lieving, and  did  believe,  he  had  a  right  to  hold  over,  then  he  would 
not  be  liable  to  the  penalty  of  paying  double  rent  for  the  premises.8 

§  1232.  Landlord  Not  Bound  to  Repair — Altering  Building — 
Waiver,  (a)  The  jury  are  instructed,  that  under  the  lease  intro- 
duced in  evidence  the  landlord  was  under  no  obligation  to  make  re- 
pairs on  the  premises,  or  to  pay  for  any  made  by  defendant;  and 
unless  the  jury  believe,  from  the  evidence,  that  some  subsequent 
agreement  or  arrangement  has  been  made  by  the  parties,  by  which  the 
plaintiff  has  agreed  to  make  such  repairs,  or  to  pay  for  those  made 
by  defendant,  then,  as  to  the  question  of  repairs,  the  jury  should  find 
for  the  plaintiff. 

(b)  That  without  some  express  agreement  to  that  effect,  a  landlord 
is  under  no  obligation  to  make  repairs  on  the  premises  during  the 
time  for  which  they  are  leased.9 

6— Abeel    v.    McDonnell,    —    Tex.  Y.   374;   Higgins  v.  Halligan,  46  111. 

Civ.  App.  — ,  87  S.  W.  1066-8.  173;    Hunt  v.   Bailey,  39  Mo.  257. 

"We   are   inclined    to    the   opinion  8 — Stewart    v.     Hamilton,    66    111. 

that  this  charge  embodied  a  proper  255.     Sub-tenant  holding-  over,  same 

issue    to    be    submitted    under    the  rule  applies.     Fletcher  v.   Fletcher, 

facts    of    the    case.      Such    conduct  123  Ga.  470,   51  S.  E.  418. 

of    the    agent,    if    true,    would    be  9 — Taylor's    Land,    and    Ten.    (9th 

an  implied  assent  to  the  terms  pro-  Ed.)    §    327;    Phelan   v.   Fitzpatrick, 

posed  by  the  tenants."  188  Mass.  237,  74  N.  E.  326;  Rhoades 

7— Despard    v.    Walbridge,    15    N.  v.   Seidel,  139  Mich.   608,  102  N.  W. 


820  FORMS  OF  INSTRUCTIONS.  [§  1233. 

(e)  If  you  believe,  from  the  evidence,  that  the  plaintiff  verbally 
authorized  the  defendants  to  make  the  change,  if  any,  which  you 
may  believe,  from  the  evidence,  was  made  in  the  building,  this  was  a 
waiver  by  the  plaintiff  of  the  provision  of  the  lease  that  no  alteration 
should  be  made  without  the  written  consent  of  plaintiff  as  that  pro- 
vision was  inserted  in  the  lease  for  the  benefit  of  plaintiff,  and  he 
had  a  right  to  waive  it.10 

§  1233.  Title  to  Crops— To  Be  Divided  After  Harvest— Right  of 
Possession,  (a)  The  title  to  the  crop  raised  on  rented  land  is  not 
in  the  landlord,  so  as  to  empower  him  to  sue  for  and  recover  upon  it 
in  trespass  or  its  value  in  trover.  He  has  a  special  lien  upon  it  given 
by  statute,  which  may  be  enforced  by  distress  for  rent.11 

(b)  The  law  is,  in  the  case  of  a  leasing  of  land  for  a  share  of  the 
crops  raised,  to  be  divided  after  they  are  raised  and  gathered,  that 
the  title  to  the  whole  of  the  crop  will  be  and  remain  in  the  tenant, 
until  the  crop  has  been  divided  and  possession  given  to  the  landlord 
of  his  share.12 

(c)  In  farming  on  shares,  the  tenant,  as  against  the  landlord,  is 
entitled  to  the  possession  of  the  whole  crop  while  it  is  growing,  and 
may  recover  damages  from  the  landlord  if  the  cattle  of  the  latter 
wrongfully  break  into  the  field  and  injure  the  crop.13 

§  1234.  Diminished  Enjoyment — Tenant  Remaining — Bound  to  Pay 
Rent.  The  court  instructs  the  jury  that,  if  you  believe  from  the  evi- 
dence that  any  wrongful  act  of  the  plaintiff  or  omission  to  perform 
anything,  required  of  her  by  her  lease,  was  such  as  tended  merely  to 
diminish  the  beneficial  enjoyment  of  the  premises  leased  by  the  de- 
fendant, lie  was  still  bound  for  the  rent  if  he  continued  to  occupy  the 
same,  and  that,  if  the  defendant  did  not  abandon  the  leased  premises, 
his  obligation  to  pay  the  rent  therefor  remained,  but  he  might  show, 
as  a  matter  of  defense  in  what  manner  such  beneficial  enjoyment  of 

102r,:    JSurke   v.    Hulett,   216   111.    545,  lieve    that    he    would    not    enforce 

75  N.  E.  240.  the    forfeiture   provided    for   in    the 

10— Moses   v.    Loomis,   156  111.   392  lease,    and    they    with    that    belief 

(395),   40   N.   E.   952.  having    made     the     alterations     in 

"The  maxim  that  an  instrument  question,  he  ought  equitably  to  be 

under    seal    cannot    be    varied    or  estopped   from   availing  himself   of 

abrogated  by  words  not  under  seal  the   forfeiture." 

is  not  applie'd  in  this  state  without  11— Morrill  v.  Barnes,  57  Ga.  404. 

various     modifications      (White     v.  12— Sargent    v.     Courrier,     66     111. 

"Walker,  31  111.  422).    Thus  it  is  held  245;  Townsend  v.  Isenberger,  45  la. 

that  the  release  of  a  debt  secured  670. 

by  a  mortgage  need  not  be  under  13— Frout  v.   Hardin,   56   Ind.   165. 

seal    (Ryan    v.    Dunlap,    17    111.    40,  It    seems,     the     tenant,     farming 

63  Am.  Dec.  334),  and  usually  where  land     on     shares,     cannot     sue    the 

parties    are   bound    to    one    another  landlord    in   trespass  to  recover  for 

by  writing  under  seal,  the  oblisrors  injury    done    to    the    growing    crop 

will   be   disoharared    by   parol   proof  by  live  stock  belonging  to  the  land- 

of  facts,   if  sufficient  in  themselves  lord,  for  the  parties  are  co-tenants 

to     constitute     a     discharge.       The  of  the  property.     Wells  v.   Hollen- 

plaintiff  having,  by  his  words  and  beck,  37  Mich.  504. 
conduct,  caused  the  lessees  to  be- 


§  1235.]  LANDLORD  AND  TENANT.  821 

the  premises  was  diminished  by  such  act  or  omission  to  act  of  the 
plaintiff.14 

§  1235.  Premises  Rendered  Untenantable  by  Fire  or  Ice  Gorge — 
Liability  for  Rent,  (a)  The  court  instructs  the  jury  as  matter  of  law 
that  where  a  lease  is  made  of  a  portion  of  a  building  and  such  portion 
is  damaged  by  fire,  and  the  premises  rented  are  rendered  untenantable, 
but  the  premises  are  not  totally  destroyed  but  are  capable  of  repair, 
these  facts  will  not  relieve  the  tenant  from  his  liability  to  pay  rent, 
unless  the  lease  so  provides.  And  if  you  believe,  from  the  evidence, 
in  this  case,  that  the  premises  leased  by  the  plaintiff  to  the  defendant 
in  this  case  were  rendered  untenantable  by  fire,  but  were  not  totally 
destroyed  and  were  capable  of  repair,  then  that  fact  did  not  relieve 
the  tenant  from  its  liability  to  pay  rent,  as  provided  by  the  lease.15 

(b)  The  jury  are  instructed  that  you  should  find  for  the  plaintiff 

any  unpaid  amount  of  the  sum  of dollars,  stipulated  in  the 

lease  as  a  monthly  rent,  and  may  allow  interest  on  any  such  month- 
ly installment  from  the  time  said  monthly  rent  was  due,  unless  they 
shall  believe  from  all  the  evidence  that  the  value  to  the  defendant  of 
the  premises  for  its  purpose  was  diminished  without  any  fault  or  neg- 
ligence of  the  defendant  by  reason  of  destruction  of  any  building  or 
structure  on  the  premises  by  the  ice  or  ice  gorge  set  out  in  the  de- 
fendant's special  plea,  in  which  event  the  jury  should  allow  the 
defendant  such  abatement  of  the  stipulated  rent  as  they  may  be- 
lieve from  all  the  evidence  to  be  a  reasonable  reduction  of  the  rent  on 
account  of  such  destruction;  but  if  the  jury  shall  believe  from  the 
evidence  that  the  injuries  to  the  leased  premises  caused  by  said  ice 
gorge  spoken  of  herein  were  caused  by  the  fault  or  negligence  of  the 
defendant,  or  that  the  premises  were  not  rendered  less  valuable  to  the 
defendant  thereby,  they  should  make  no  reduction  in  the  said  rent  on 
that  account. 

(c)  If  the  jury  believe  from  all  the  evidence  that  any  of  the  build- 
ings or  structures  upon  the  leased  premises  were  destroyed  without 
fault  or  negligence  of  the  defendant  by  the  ice  or  ice  gorge  in  de- 
fendant's plea  set  out,  and  were  not,  before  the  bringing  of  this  suit, 
replaced  in  whole  or  in  part,  and  that  in  consequence  thereof  the 
value  of  the  premises  to  the  defendant  for  its  purposes  was  dimin- 
ished, they  are  instructed  that  the  defendant  should  be  allowed  a 
reasonable   abatement  therefor,  and  the  plaintiff  is  only  entitled   to 

14— Rubens    v.    Hill,    213    111.    523  term,   and   if  they  are  injured  and 

(541),  72  N.  E.  1127.  rendered  untenantable,  but  not  de- 

15 — Humiston,  K.  &  Co.  v.  Wheel-  stroyed,   the  tenant  is  not  relieved 

er,    175    111.    514    (518),    aff'g    70    111.  from  his  covenant,  but  may  repair 

App.   349,   51   N.   E.   893.  the    damage    and    restore    them    to 

"It    is    alleged    against    this    in-  their    former    condition    and    enjoy 

struction    that    it    was    too    broad,  them    to    the    end    of   the    term    (3 

but  we  find  no  fault  in  it.    There  is  Kent's    Com.    465;     Heck    v.     Led- 

no   implied   warranty   of   the   land-  widge,    25    111.    109;     Smith    v.    Mc- 

lord    that    the    premises    shall    re-  Lean,    123    id.    210,    14    N.    E.    50;    12 

main  tenantable  to  the  end  of  the  Am.   &  Eng.    Ency.   of  Law,   741)." 


822  FORMS  OF  INSTRUCTIONS.  [§  1236. 

recover  the  agreed  rent  of  $ per  month,  less  a  reasonable  esti- 
mate for  defendant's  damages  occasioned  by  such  destruction  of 
buildings  or  structures.10 

§  1236.  Condition  of  Basement  Concealed  Fraudulently — Liability 
for  Rent.  If  the  jury  find  from  the  evidence  thai  the  basement  had, 
before  the  execution  of  the  lease,  been  a  wet  cellar,  and  the  plaintiff 
knew  this  fact,  but  fraudulently  concealed  it  from  defendant  at  the 
time  of  making  the  contract,  and  that  the  basement  afterwards  be- 
came wet,  and  its  condition  injurious  to  the  health  of  defendant  and 
its  agents, — in  other  words,  a  nuisance,  -and  that  defendant,  through 
reasonable  fears  of  injury  to  health,  abandoned  the  premises  on  that 
account,  then  defendant  would  not  be  liable  for  rent,  and  the  jury 
should  answer  the  issue,  "No."  But  if  the  jury  should  not  find  from 
the  evidence  that  the  basement  had  been  a  wet  cellar  before,  or  that 
plaintiff  had  knowledge  of  it  and  concealed  it  from  the  defendant,  or 
if  they  should  believe  that  the  condition  of  the  basement  became  a 
nuisance,  or  that  defendant  left  the  premises  through  reasonable  fears 
of  injury  to  health,  but  on  some  other  account,  then  they  should 
answer  the  issue,  "Yes,"  and,  in  that  event,  should  find  what  amount 
is  due.17 

§  1237.  Action  for  Rent — Lease  Taken  in  Name  of  Tenant's  Agent. 
The  court  instructs  the  jury  that,  if  they  believe,  from  the  evidence, 
that  W.  entered  into  the  lease  in  evidence  with  the  plaintiff  X.  in  his 
own  name,  and  at  the  time  of  signing  and  execution  of  said  lease  it 
was  understood  and  agreed  that  said  lease  was  being  executed  for  the 
Company  then  in  process  of  becoming  incorporated,  and  that  said 
Company  after  becoming  incorporated  moved  into  the  premises  so 
demised,  occupied  and  paid  rent  to  the  said  X.  at  the  rate  mentioned 
in  said  lease,  and  that  said  X.  recognized  said  Company  as  her  tenant, 
then  the  jury  are  instructed  that  they  should  find  the  issues  for  the 
plaintiff.18 

§  1238.  Receipt  for  Rent — Presumption  as  to  Back  Rent.  It  is  a 
presumption  of  law  where  a  tenant  shows  a  receipt  for  rent  that  all 
previous  rent  has  been  paid  to  his  landlord;  ami  the  jury  are  in- 
structed that  if  they  believe  from  the  evidence  that  the  defendant 

has  introduced  a  receipt  or  paid   a  check    indorsed    by    the 

plaintiff,  which  they  are  instructed  is  equivalent  to  a  receipt,  for  the 

rent  of  the  premises  in  question  for  the  month  of  ,  then  they 

are  instructed  that,  the  presumption  of  law  is  that  the  rent  for  said 
premises  for  all  back  months  was  paid,  and  they  will  find  for  the  de- 

16— Richmond   Ice   Co.   v.   Crystal  18— Crvstal    W.    S.    Co.    v.    Rose- 
Ice.    Co.,    103  Va.    465,    49    S.    E.    650  boom.    91    111.    App.    551    (553). 
652,  663).  "We  see  no  error  in  this  instruc- 

17 — Gaither    v.     Hascall-Richards  tion.     On    the    contrary,    it    seems 

S.    G.   Co.,   121   N.   C.   384,   28   S.   E.  to    us    to    be    carefully    prepared; 

546   (547).  to    fairly    present    the    question    of 


§  1239.]  LANDLORD  AND  TENANT.  823 

fendant,  unless  they  shall  believe  from  the  evidence  that  such  pre- 
sumption has  been  removed  by  competent  evidence.19 

§  1239.  Right  of  Landlord  to  Enter  for  Condition  Broken — Leased 
for  a  Particular  Purpose — Forfeiture,  (a)  The  court  instructs  the 
jury  that  the  lease  introduced  in  evidence  gave  the  plaintiff  the  pos- 
session of  the  store  in  question,  "to  be  occupied  for  a  grocery  store 
and  for  no  other  purpose  whatever"  and  that  the  plaintiff  had  no 
right  to  use  the  premises  for  any  other  purpose,  or  for  the  purpose  of 
a  store  room.  And  if  the  jury  believe  from  the  evidence  that  before 
the  time  it  is  claimed  the  defendant  entered  the  store  rented  to  the 
plaintiff,  as  charged  in  the  declaration,  the  plaintiff  had  ceased  to 
occupy  the  premises  as  a  grocery  store  and  was  not  occupying  the 
same  or  intending  to  occupy  the  same  as  a  grocery  store  after  the 
time  the  plaintiff  so  ceased  to  occupy  them,  then  the  defendant  had 
the  right  to  enter  said  store  and  take  possession  thereof.20 

(b)  The  court  instructs  the  jury  as  a  matter  of  law,  that  if  the 

jury  believe  from  the  evidence  that  the  plaintiff, ,  violated  the 

terms  and  conditions  in  the  lease  under  which  he  occupied  the  prem- 
ises in  question  under  the  defendants,  then  by  the  terms  of  the  lease 
the  defendant  had  a  right  to  remove  the  plaintiff  or  his  employes  and 
property,  using  no  unnecessary  force,  the  plaintiff  cannot  recover  in 
this  action. 

(c)  The  court  instructs  the  jury  that  the  plaintiff  is  only  entitled 
to  recover  the  actual  damage  he  has  sustained,  as  may  be  shown  by 
the  evidence,  which  was  the  direct  result  of  the  wrongful  conduct  of 
the  defendants,  if  the  jury  believe  from  the  evidence  that  the  de- 
fendants were  not  warranted  in  declaring  the  lease  forfeited  by 
reason  of  the  default  of  the  plaintiff.21 

§  1240.  Written  Lease — All  Prior  Agreements  Merged — Altering 
or  Varying  Terms.     The  court  further  instructs  you  in  regard  to  the 

fact  upon  the  evidence,  and  to  state  223.     The  above  instruction  should 

the    law    correctly."  have   been   given. 

19— Ottens  v.   Krug  Brewing  Co.,  "  'To    be    occupied    as    a   grocery 

58   Neb.   331,   78   N.   W.   622    (623).  store'    means,    not    that    the    prem- 

"There  can  be  no  question  about  ises  are  to   be   used  as   a  place   to 

the  correctness  of  the  general  prop-  store  groceries,  but  a  place  where 

osition  that  a  receipt  for  rent  cov-  the   trade   of  selling  groceries   was 

ering    a    particular    month    affords  to    be    conducted;      and    that    the 

presumptive     evidence     that     rent  trade  had  been  discontinued  is  in- 

previously  accruing  has  been  paid,  disputable. 

Decker    v.     Livingston,    15    Johns.  "This  court  has  gone  back  to  the 

479;    Brewer  v.   Knapp,  1  Pick.   332  common   law,    as   held   in   Hoots  v 

(Mass.);     Patterson    v.    O'Hara,    2  Graham,    23    111.    81,    that    a    tres- 

E.    D.   Smith,   58."  passer   or   a    person    in    possession 

20— White  v.  Naerup,  57  111.  App.  as    a    wrongdoer    can    not    recover 

114    (118).  against  the  owner  of  the  fee,  with 

"Can   there  be  a  doubt   that  the  right     of    possession.       Frazier    v. 

intent  of  the  parties  was  that  the  Caruthers,    44    111.     App.     61;     and 

appellee   should   have   the    store   if  more  at  large  in  Harding  v.  Sandy 

he  occupied   it  as  a  grocery  store.  43    111.    App.    442;    and    see    Mueller 

and  otherwise  he  should  not  have  v.  Kuhn,  46  111.  App.  496." 

it?  21— Schaefer  v.  Silverstein,  46  111. 

"And    the   intent   governs.      Kew  App.    608    (609). 
v.   Trainor,    150   111.    150,    37    N.    E. 


824  FORMS  OF  INSTRUCTIONS.  [§  1241. 

lease  in  question  that  all  prior  and  contemporaneous  agreements  re- 
specting and  leasing  are  merged  into  the  written  lease,  and  no  prior 
or  contemporaneous  agreement  can  alter  or  vary  the  terms  of  the 
written  lease  offered  in  evidence.22 

§  1241.  Tenant  Cannot  Deny  Landlord's  Title — Proper  to  Define — 
Purpose  and  Object  of  Evidence.  You  are  instructed  thai  a  tenant 
cannot  deny  the  landlord's  title  to  premises  which  he  obtains  by 
virtue  of  his  lease.  The  shed  or  annex  which  \V.  built  and  attached  to 
defendant's  planing  mill  became  a  part  of  said  mill,  and  the  ground 
on  which  it  stood  became  a  part  of  defendant's  premises,  so  far  as 
W.  and  his  mortgagee,  the  plaintiff,  are  concerned.  You  arc  therefore 
instructed  to  disregard  all  of  the  testimony  about  the  boiler  and  en- 
gine being  in  the  alley,  except  so  far  as  it  has  a  bearing,  if  any  at  all, 
upon  the  question  of  whether  said  boiler  and  engine  were  trade  fix- 
tures or  not.23 

§  1242.  Heating  of  Apartments — Death  of  Child  by  Failure  of. 
Unless  the  jury  believe  and  can  say  from  the  evidence  that  the  alleged 
failure  of  the  defendant  to  supply  steam  heat,  if  there  was  such  a 
failure,  has  something  to  do  with  the  death  of  the  child  (meaning 
plaintiff's  intestate)  by  way  of  bringing  about  such  death,  you  should 
find  the  defendant  not  guilty.24 

§  1243.  Surrender  of  Premises — How  Effected — Must  be  Assented 
to  by  Landlord,  (a)  In  respect  to  the  alleged  surrender  of  the 
premises,  the  court  instructs  the  jury,  that  a  valid  surrender  of  a 
lease,  and  of  the  estate  thereby  created,  can  only  be  made  by  a  mutual 
agreement,  or  assent  of  the  landlord  and  tenant,  to  that  effect.25 

(b)     The  jury  are  instructed,  that  no  surrender  of  the  premises  in 

22 — "This      instruction      correctly  given     the     jury     would     probably 

states   the   law."     Munson   v.   Her-  have   entered    into   a   consideration 

zog,   109   111.   App.   302    (305).  of  the  case  with  a  view  of  its  dis- 

23 — Brownell    v.    Fuller,    60    Neb.  position    upon    the    question    as    to 

558,    83   N.   W.   669.  whether   the    property    was   on    de- 

"We  find  no  valid  objection  to  fendant's  lot,  and,  if  not,  then  he 
this  instruction.  Counsel,  if  we  could  have  no  valid  claim  to  it. 
understand  them  rightly,  contend  .  .  .  As  between  the  parties,  for 
that  the  idea  of  the  court  is  not  all  other  purposes,  its  location  in 
clear  from  the  language  used,  and  the  alley  made  no  difference.  It 
implied  that  it  had  no  bearing  at  belonged  to,  and  formed  a  part  of, 
all.  If  the  instruction  was  not  en-  the  leased  premises.  Bliss  v. 
tirely  satisfactory,  counsel  should  Whitney,  9  Allen  114,  85  Am.  Dec. 
have  tendered  one  free  from  the  745;  Arnold  v.  Crowder,  81  111.  56, 
uncertainty  existing  in  the  one  25  Am.  Rep.  260;  Redlon  v.  Bar- 
given.  Home  Fire  Ins.  Co.  v.  ker,  4  Kan.  445,  96  Am.  Dec.  180; 
Decker,  55  Neb.  346,  75  N.  W.  841;  Haider  v.  Insurance  Co.,  671  Minn. 
C.  B.  &  Q.  R.  Co.  v.  Oyster,  5S  514,  70  N.  W.  805,  5  L.  R.  A.  594; 
Neb.  1,  78  N.  W.  539.  But  we  do  McGorrish  v.  Dwyer,  78  Iowa  279, 
not  think  the  instruction  merits  the  43  N.  TV.  215,  5  L.  R.  A.  594." 
criticism  urged  against  it.  It  was  24 — O'Donnell  v.  Rosenthal,  110 
proper  for  the  court  to  direct  the  111.  App.  225  (228). 
jury  as  to  the  purpose  and  object  25 — Nelson  v.  Thompson.  23  Minn, 
of  the  evidence  as  to  the  location  508;  Morgan  v.  Smith,  70  N.  Y. 
of  the  machinery  in  dispute.  With-  537;  Ladd  v.  Smith,  6  Oreg.  316. 
out    an    instruction    of    the     kind 


§  1244.]  LANDLORD  AND  TENANT.  825 

question,  by  the  defendant,  could  take  effect  unless  the  plaintiff,  by 
himself  or  by  some  authorized  agent,  accepted  such  surrender;  and 
although  the  jury  may  believe,  from  the  evidence,  that  the  defendant 
vacated  the  premises  in  controversy,  and  gave  notice  thereof  to  the 
plaintiff,  yet  this  alone  would  not  exonerate  the  defendant  from  the 
payment  of  rent  thereafter,  unless  the  surrender  was  assented  to  by 
the  plaintiff,  as  a  surrender  of  the  possession  to  him.26 

§  1244.  Surrender  of  Premises— Moving  Away— Giving  Up  the 
Keys.  The  jury  are  instructed,  that  although  they  may  believe,  from 
the  evidence,  that  the  defendant  moved  away  from  the  premises  in 
question,  and  sent  the  keys  of  the  building  to  the  plaintiff,  and  that 
the  plaintiff  retained  the  keys,  this  alone  would  not  constitute  a  sur- 
render of  the  premises  by  the  defendant,  and  an  acceptance  of  such 
surrender  by  the  plaintiff.27 

§  1245.  What  Constitutes  Eviction— Forcible  Expulsion  Not  Neces- 
sary, (a)  The  court  instructs  the  jury,  that  some  acts  of  interference 
by  the  landlord  with  the  tenant's  enjoyment  of  the  premises  may  be 
mere  acts  of  trespass,  or  they  may  amount  to  an  eviction.  The  ques- 
tion whether  they  partake  of  the  latter  character  depends  upon  the 
intention  with  which  they  are  done,  and  the  character  of  the  acts.  If 
they  clearly  indicate  an  intention  on  the  landlord's  part  that  the 
tenant  should  no  longer  continue  to  hold  the  premises,  and  he  thereby 
loses  the  beneficial  use  of  the  same,  this  would  constitute  an  eviction ; 
otherwise  they  would  amount  to  no  more  than  acts  of  trespass.28 

(b)  To  constitute  an  eviction  the  acts  of  interference  by  the 
landlord  with  the  tenant's  possession  must  clearly  indicate  an  inten- 
tion, on  the  part  of  the  landlord,  that  the  tenant  shall  no  longer 
continue  to  hold  the  premises,  or  some  material  part  thereof.29 

(c)  Forcible  expulsion  is  not  necessary  to  cause  an  eviction;  any 
act  done  in  violation  of  the  rights  of  the  tenant  without  his  consent, 
which  deprives  him  of  the  beneficial  use  and  enjoyment  of  a  material 
part  of  the  premises  leased,  will  amount  to  an  eviction;  if  the  jury 
in  this  case  believe,  from  the  evidence,  that  the  plaintiff,  after  making 
the  lease,  without  the  consent  of  the  defendant,  took  possession  of 
any  material  part  of  the  premises  leased,  then  the  defendant  is  re- 
leased from  the  payment  of  all  rent  accruing  after  that  date.30 

§  1246.  Eviction  from  Part  of  the  Premises — Extinguishment  of 
All  Rent,     (a)     If  you  believe,  from  the  evidence,  that  the  defendant 

26— Taylor's  Land,  and  Ten.    (9th  and  Ten.   (9th  Ed.)  §  3S0;  Myers  v. 

Ed  )     §     515;     Wray-Austin     Mchy.  Gemmel,    10    Barb.    537;    Hazlett    v. 

Co.    v.    Flower,    140    Mich.    452,    103  Powell,  30  Penn.   St.  293;   Mirick  v. 

N    W.  873.  Hoppin,   118  Mass.   582. 

27— Townsend   v.   Albert,   3   E.   D.  29— Morriss  v.   Tillson,  81  111.   607; 

Smith    560;    Withers    v.    Larrabee,  Arkley  v.  Union  Sugar  Co.,  147  Cal. 

48    Me.    570;    Smucker   v.    Grinberg,  195,   81  Pac.    509. 

27  Pa.  Super.  Ct.   531.  30— Townsend   v.    Albert,    3   E.   D. 

28— Haynes  et  al.  v.  Smith,  63  111.  Smith    560;    Royce   v.    Guggenheim, 

430,  14  Am.  Rep.  124;  Taylor's  Land.  106  Mass.  201,  8  Am.  Rep.  322. 


826  FORMS  OF  INSTRUCTIONS.  L§  12^7- 

was  a  tenant  of  the  premises  at  the  time  in  question,  under  a  lease 
from  the  plaintiff,  and  that  against  defendant's  consent,  and  without 
any  understanding  or  agreement  permitting  it,  the  plaintiff  took  pos- 
session of  any  material  part  of  said  premises  and  evicted  the  de- 
fendant therefrom,  and  prevented  him  from  using  and  occupying  the 
same,  then  such  eviction  worked  an  extinguishment  of  all  rent  for  the 
whole  of  said  premises  from  the  time  such  eviction  occurred,  notwith- 
standing the  defendant  continued  to  occupy  a  portion  of  said  prem- 
ises after  that  time.31 

(b)  Although  the  jury  may  believe,  from  the  evidence,  that  the 
defendant  has  never  been  disturbed  in,  or  evicted  from,  the  main  build- 
ing on  the  leased  premises,  and  thai  he  has  had  the  use  and  enjoyment 
of  the  same,  still,  if  they  further  believe,  from  the  evidence,  that  the 
plaintiff  has  taken  possession  of  any  material  part  of  the  premises 
leased  without  the  consent  of  the  defendant,  this  in  law  is  an  evic- 
tion, and  the  defendant  is  not  bound  to  pay  any  rent,  during  the 
time  of  such  eviction,  for  the  part  of  the  premises  which  he  did  use 
and  occupy.32 

§  1247.  Wrongful  Eviction — Right  to  Procure  Warrant — Malice — 
Probable  Cause,  (a)  By  the  plea  of  justification  the  defendants  ad- 
mit that  they  procured  the  warrant  described  in  plaintiff's  declaration, 
and  that  under  it  plaintiff  was  dispossessed  of  the  property  in  ques- 
tion in  the  manner  as  alleged — that  is  to  say,  by  the  constable  in  H. 
county;  and  the  law  casts  upon  them  the  burden  of  showing  that  they 
had  the  right  to  procure  said  warrant  t<>  dispossess  the  plaintiff,  and 
this  they  must  do  to  your  reasonable  satisfaction,  by  a  preponderance 
of  evidence. 

(b)  Before  you  can  find  damages  against  the  defendants  in  this 
case,  you  must  find  that  the  dispossessory  warrant  was  procured  ma- 
liciously and  without  pi'obable  cause,  both  concurring. 

(c)  Did  the  defendants  procure  this  warrant  and  dispossess  the 
plaintiff  without  probable  cause,  and  with  malice?  If  they  did,  and 
you  find  the  other  issues  for  the  plaintiff,  they  would  be  liable  to  him 
for  damages,  and  it  would  be  your  duty  to  so  find.33 

31— Price  v.  P.,  Ft.  W.  &  C.  Ry.  262;    Day   v.   Watson,   8   Mich.    535; 

Co.,   34   111.   13.  Sknggs  V.    Emerson,    50   Cal.    3. 

32— Taylor's    Land.    &    Ten.    (9th  33— Mitchell    et    al.    v.    Andrews. 

Ed.)    §    378;    Walker   v.    Tucker,    70  94  Ga.  611,  20  S.  E.  130. 

111.    527;    Lewis   v.    Payn,    4   Wend.  Note. — For    Landlord's    Lien    see 

423;    Colburn  v.   Morrill,   117  Mass.  chapter   on    Mortgages   and    Liens. 


CHAPTER  LVIII. 
LIMITATIONS— STATUTE  OF. 


See    Erroneous    Instructions,   same   chapter   head,   Vol.   III. 


§  1248.  Statute  of  limitations  de- 
fined—When it  begins  to 
run. 

§  1249.  Running-  accounts  —  When 
the  right  of  action  accrues. 

§  1250.  Mutual  running  accounts- 
Statute  runs  from  the  last 
mutual   item. 

§  1251.  When  statute  is  suspended 
by  absence  from  the  state 
— Fraud  and  deceit. 

§  1252.  Debt  revived  by  new  prom- 
ise— What  is  not  a  promise. 

§  1253.  Continuous  accouDt  or  serv- 
ice—Statute runs  from  the 
last   item. 


§  1254.  Giving  credit  voluntarily 
upon  an  outlawed  account 
does  not  save  the  running 
of    the    statute. 

§  1255.  Adverse  possession  —  Estop- 
pel— Statute  does  not  run 
against  infants  and  luna- 
tics. 

§  1256.  Adverse  possession  —  When 
statute  of  limitation  runs 
against  minors  —  Married 
women. 

§  1257.  Devisee  has  no  better  title 
than  devisor. 

§  1258.  Adverse  possession — Compu- 
tation —  Limitation  —  Life 
estate    intervening. 


§  1248.     Statute  of  Limitations  Defined— When  it  Begins  to  Run. 

(a)  The  statute  of  limitations  is  sometimes  called  a  "statute  of  re- 
pose"— a  statute  to  quiet  possession.  A  statute  of  limitations  does 
not  originate  in  the  idea  of  its  being  a  title,  but  it  is  in  law  a  tres- 
pass, begins  as  a  trespass;  and  if  one  goes  and  takes  possession  of 
real  estate  and  holds  it  openly  and  notoriously,  and  the  true  owner 
fails  to  assert  his  rights,  then  the  law  says  you  are  barred,  you  have 
slept  on  your  rights  and  on  your  title,  and  you  cannot  bring  this  ac- 
tion, if  he  has  held  it  for  the  statutory  period,  then  the  defendant 
would  be  entitled  to  possession.1 

(b)  As  regards  the  defense  of  the  statute  of  limitations  inter- 
posed in  this  case,  the  jury  are  instructed,  that  if  one  person  gives 
credit  to  another  until  he  gets  into  a  certain  condition  financially, 
or  until  the  happening  of  a  certain  event  or  contingency,  then  a 
cause  of  action  will  not  arise  until  the  party  gets  into  such  financial 
condition,  or  until  such  event  or  contingency  has  happened;  and  the 
statute  of  limitations  does  not  begin  to  run  until  the  cause  of  action 
has  arisen,  that  is,  until  a  suit  could  be  brought  for  the  debt.2 

§1249.  Running  Accounts— When  the  Right  of  Action  Accrues. 
(a)  The  court  instructs  the  jury,  as  a  matter  of  law,  that  in  the 
case  of  running  accounts  between  parties,  the  date  of  the  last  trans- 

1— ffudduth  v  Sumeral,  61  S.  C.  2—3  Page  on  Contracts,  §  1650; 
■>76  39  S  E  534,  85  Am.  St.  Rep.  2  Par.  on  Cont.  370;  see  Bradley  v. 
ggg'  '  Cole,  67  la.  650,  25  N.  W.  851,  note. 

827 


828  FORMS  OF  INSTRUCTIONS.  [§  1250. 

action,  which  was  properly  the  subject  matter  of  entry  in  such 
account,  or  the  date  when  such  item  became  payable,  is  the  time 
at  which  the  right  of  action  accrues  for  the  recovery,  by  either  party, 
of  any  balance  remaining  due  on  such  accounts.3 

(b)  If  there  be  mutual  running  accounts  between  parties,  and 
there  is  any  item  for  which  a  credit  or  a  charge  could  be  properly 
made  within  (five)  years  before  bringing  suit,  or  where  a  payment 
has  been  made  by  one  of  the  parties  upon  the  account  within  (five) 
yeai's,  such  credit,  charge  or  payment  is  evidence  of  a  promise  im- 
plied by  law  to  pay  the  balance  of  such  account.  And,  in  such  case, 
a  suit  for  such  balance,  if  brought  within  (five)  years  after  such 
credit,  charge  or  payment,  is  not  barred  by  the  statute  of  limitations.4 

§  1250.  Mutual  Running  Accounts — Statute  Runs  from  the  Last 
Mutual  Item.  If  you  believe  from  the  evidence,  that  there  are  mutual 
running  accounts  between  the  parties,  and  involved  in  this  suit,  and 
that  any  items  thereof  were  created  in  favor  of  the  respective  parties 
within  (five)  years  prior  to  the  commencement  of  this  suit,  then  the 
statute  of  limitations  should  -not  be  allowed  as  a  bar  against  any 
part  of  such  accounts,  whether  for  plaintiff  or  defendant.  And,  in 
such  case,  it  is  immaterial  whether  such  demands,  or  any  part  thereof, 
consist  of  book  accounts,  or  rest  merely  in  memory;  neither  is  it 
material  in  such  case,  whether  any  or  all  of  such  demands  consist  of 
money  loaned,  goods  furnished,  labor  performed,  or  for  board  or 
rent.  In  either  case  the  whole  of  such  accounts  should  be  taken 
into  consideration  by  the  jury,  without  reference  to  the  statute  of 
limitations.5 

§  1251.  When  Statute  is  Suspended  by  Absence  from  the  State — 
Fraud  and  Deceit,  (a)  You  are  instructed,  that  if  a  party  is  resid- 
ing within  this  state  when  the  cause  of  action  against  him  accrues, 
then,  in  order  that  his  absence  from  the  state  shall  suspend  the 
operation  of  the  statute,  it  must  appear  not  only  that  he  has  left 
the  state,  but  also  that  he  resides  out  of  the  state.6 

(b)  The  court  instructs  the  jury,  that  in  the  case  of  a  claim  or 
demand  founded  on  fraud  or  deceit,  the  statute  of  limitation  does 
not  begin  to  run  until  after  the  fraud  and  deceit  are  discovered  by 
the  injured  party.7 

§  1252.  Debt  Revived  by  New  Promise — What  is  Not  a  Promise. 
(a)    The  jury  are  instructed,  that  where  there  has  once  been  a  legal 

3— Bradley  v.   Cole,   67  la.   650,   25  6— (111.   Statute.)  Bradley  v.  Cole, 

N.    W.    852,    note.  67  la.    650,   25  N.  W.   857,   note. 

4— Burch  v.  Woodworth,  68  Mich.  But  see   Bemis  v.   Ward,  —  Tex. 

519,   36   N.   W.   721.  Civ.  App.  — ,  84  S.  W.  291,  where  a 

5 — Angell   on   Lim.    §   147;    3  Page  change    of    residence    is    held    not 

on    Contracts,    §  1655;     2     Greenleaf  necessary.       Absence    on    business 

Ev.      §  445;    Carpenter     v.     Plngge,  or    pleasure     held     sufficient. 

192  111.  82,   61   N.   E.   530;   Padden  v.  7— McAlpine    v.    Hederes,    21    Fed. 

Clark,    124    Ta.     94,    99   N.     W.     152;  Rep.     689;     Odell     v.     Burnham,    61 

Hannon  v.   Engleman,   49  Wis.  278,  Wis.  562,  21  N.  W.  635. 
5  N.  W.  791. 


§  1253.]  LIMITATIONS— STATUTE  OF.  829 

obligation  to  pay,  and  it  has  become  barred  by  the  statute  of  limita- 
tions, the  moral  obligation  to  pay  the  debt  is  a  sufficient  consider- 
ation to  support  a  subsequent  promise  to  pay;  and  in  this  case, 
though  the  jury  may  find,  from  the  evidence,  as  to  any  of  the  plain- 
tiff's demands,  that  the  same  were  once  due  from  the  defendant, 
but  that  the  cause  of  action  accrued  more  than  (five)  years  prior 
to  the  commencement  of  this  suit,  yet,  if  the  jury  further  find,  from 
the  evidence,  that  the  defendant  has,  within  the  said  period  of  (five) 
years,  promised  the  plaintiff  to  pay  such  debt,  then,  as  to  such  de- 
mand, the  jury  should  find  for  the  plaintiff.8 

(b)  If  the  jury  believe,  from  the  evidence,  that  upon  the  occasion 
referred  to  by  the  witnesses,  the  defendant  said,  ("that  account  is 
correct,")  or,  ("I  received  the  money,")  or  ("I  had  the  goods,") 
or  ("that  is  my  note,")  this  would  not  alone  amount  to  a  promise 
to  pay  the  debt.9 

§  1253.  Continuous  Account  or  Service — Statute  Runs  from  the 
Last  Item,  (a)  The  jury  are  instructed,  that  where  all  the  items  of 
an  account  are  on  one  side,  the  fact  that  some  of  them  are  within 

years  before  the  commencement  of  the  action  will  not  take  the 

others  of  longer  standing  out  of  the  operation  of  the  statute  of 
limitations,  and  in  such  case  only  the  items  of  account  that  have 
accrued  within  six  years  can  be  recovered  for.  But  it  is  otherwise 
when  the  items  of  account  are  for  work  and  labor  done  continuously 
upon  an  entire  contract,  if  one  of  the  items  be  within  the  period  of 
limitations,  all  are  saved. 

(b)  The  jury  are  instructed,  that  against  an  account  for  work 
and  labor  done  under  an  agreement  for  payment,  not  specifying  at 
what  time  such  payment  should  be  made  or  how  long  such  labor 
should  continue  or  be  performed,  the  statute  of  limitations  does  not 
commence  running  until  the  labor  ends.  Therefore,  if  the  jury 
believe  from  the  evidence  that  the  plaintiff  performed  labor  for  the 
defendant's  intestate,  under  an  agreement  to  be  paid  therefor,  with- 
out specifying  at  what  time  such  payment  should  be  made  or  how 
long  such  labor  should  continue  or  be  performed,  then  the  statute  of 
limitations  would  not  commence  running  until  such  labor  was  ended.10 

8 — Bradley  v.   Cole,  67  la.  650,   25  because  the   statute   of  limitations 

N.    W.    857,    note;    Koons    v.    Vau-  prevented    a    recovery     for     more 

consant,    129    Mich.    260,     88     N.    W.  than  six  years  preceding  the  death 

630,    95    Am.    St.    Rep.    438.  of   said   X.     The   service    was   con- 

9 — Ayers  v.   Richards,  12  111.  146;  tinuous  for  nearly  20  years.  When 

3  Page  on  Contracts,  sec.  1675,  and  the  service   ended,   the  statute  be- 

cases  there  cited.  gan  to  run.     That  the  instructions 

10 — Knight     v.      Knight,     6     Ind.  correctly  stated  the  law  is  unques- 

Apn.  268,  33  N.  E.  456.  tionable,  and  so  well   settled   as  to 

The  court   in   comment  said  that  require  no  citation  of  authority  in 

the  "contention  of  the  appellant  is  their  support." 
that  these  instructions  were  wrong 


830  FORMS  OF  INSTRUCTIONS.  [§  1254. 

§  1254.  Giving  Credit  Voluntarily  upon  an  Outlawed  Account  Does 
Not  Save  the  Running  of  the  Statute.  If  you  find  that  there  was  no 
understanding  or  agreement  in  regard  to  the  credit  of  the  fifteen 
dollars,  then  it  does  not  avail  as  a  payment  to  take  this  claim  out 
of  the  statute  of  limitations,  to  prevent  its  being  barred,  because 
the  parties  must  agree  upon  the  payment.  The  plaintiff  cannot,  by 
giving  credit  upon  an  account, — upon  an  outlawed  bill,  or  a  bill  that 
may  be  outlawed, — for  the  purpose  of  preventing  the  running  of  the 
statute,  make  a  credit,  of  his  own  volition,  on  that  account,  and  save 
the  running  of  the  statute.  He  cannot  do  so  unless  it  is  agreed 
between  the  parties  that  there  is  to  be  an  application  upon  the  ac- 
count, and  that  is  a  question  for  you  to  determine,  whether  or  not  it 
was  understood  between  the  parties  that  such  a  credit  was  to  be  made 
to  X.,  and  that  it  was  to  be  credited  upon  that  account,  and  properly 
applied  upon  it.11 

§  1255.  Adverse  Possession — Estoppel — Statute  Does  Not  Run 
Against  Infants  and  Lunatics,  (a)  If  those  who  have  an  interest  in 
the  land — a  claim  of  any  kind  in  the  land — sit  silently  by,  and  let 
others  set  up  their  claims,  and  take  possession  for  ten  years,  as  to 
such  people  the  law  would  turn  a  deaf  ear,  and  will  not  hear  them. 
They  have  lost  the  right  of  action.    They  came  too  late  into  court. 

(b)  You  heard  the  expression  in  argument  about  a  statute  "run- 
ning"; that  the  statute  will  not  "run"  or  will  "run."  That  is  a 
technical  term,  very  plain  to  the  members  of  the  bar,  but  not  so  plain 
to  intelligent  jurors.  But  when  the  expression  is  used  that  the  statutes 
will  run  against  some  parties  it  means  that  the  time  of  the  com- 
mencement of  the  ten  years  is  referred  to;  that  the  operation  of 
the  statute  is  having  its  effect ;  and,  if  the  statute  runs  for  ten 
years,  then  the  barrier  is  complete,  and  the  defense  is  established.  It 
will  not,  of  course,  run  against  those  who  are  unable  to  stop  it, 
because  people  can  stop  the  running  of  a  statute.  Those  who  have 
a  claim  for  the  land  can  assert  their  claims  during  the  ten  years, 
and,  if  they  do  so,  they  will  stop  the  running  of  the  statute  against 
them.  Some  cannot,  in  law,  stop  it.  An  infant — one  under  age — 
cannot.  A  lunatic  could  hardly  do  so.  And  also  a  party  as  you 
have  heard  spoken  of  as  remainder-man  of  a  life  estate  may  not  be 
able  to  do  so  until  the  death  of  the  life  tenant.  The  statute,  there- 
fore, does  not  run  against  every  person.  It  runs  only  against  those 
who  could,  if  they  would,  stop  it.  It  could  not  run  against  those  who 
legally  have  not  the  power  to  stop  it,  which  shows  that  the  law  will 
take  care  of  those  only  who  cannot  take  care  of  themselves.12 

(c)  The  jury  are  instructed,  that  under  the  statute  of  this  state 

11— Bay  City  I.  Co.  v.  Emery,  128  38  S.  E.  150  (153),  82  Am.  St.  Rep. 
Mich.   506,   87  N.   W.   652.  848. 

12— Sutton  v.  Clark,   59   S.  C.   440. 


§  1256.]  LIMITATIONS— STATUTE  OF.  831 

(twenty  years)  of  continuous,  exclusive,  uninterrupted,  and  adverse 
possession  of  real  estate,  not  only  has  a  right  of  action  therefor,  but 
it  also  confers  a  complete  title  as  a  written  conveyance,  against 
every  one  who  is  not  under  legal  disabilities  during  any  part  of  such 
time.13 

§  1256.  Adverse  Possession — When  Statute  of  Limitation  Runs 
Against  Minors — Married  Women,  (a)  If  you  believe,  from  the  evi- 
dence, that  the  defendant  took  possession  of  the  thousand-acre  survey 
of  land,  of  which  the  land  in  controversy  is  a  part,  as  explained  in 

the  main  charge,  prior  to  the  year  ,  the  date  of  the  death   of 

Mrs.  K. ,  then  you  are  charged  that  the  cause  of  action,  if  any, 

accrued  to  the  children  of  the  said  Mrs.  K.  at  the  date  of  her  death 
and  their  plea  of  minority  will  not  avail  anything  in  this  case. 

(b)  You  are  charged  that,  if  you  believe,  from  the  evidence,  that 
the  defendant  took  possession  of  the  thousand-acre  survey  of  land, 
of  which  the  land  involved  in  this  suit  is  a  part,  as  explained  in  the 
main  charge,  prior  to  the  date  of  the  decree  of  court  dissolving  the 
bonds  of  matrimony  between  J.  Y.,  formerly  F.,  and  her  then  hus- 
band, A.  F.,  then  you  are  charged  that  her  right  of  action,  if  any, 
accrued  to  her  on  the  date  of  such  decree  of  divorce,  and  her  plea 
of  coverture  will  not  avail  her  anything  from  the  date  of  such  decree 
of  divorce.1* 

§  1257.  Devisee  Has  No  Better  Title  than  Devisor.  If  S.  's  right  of 
action  to  recover  the  land  from  C.  in  his  own  lifetime  was  barred 
by  the  statute  of  limitation,  then  he  had  no  right  to  leave  the  land 
or  devise  the  lands  in  his  will;  and,  if  he  did  so,  then  his  devisee 
could  not  set  up  any  higher  claim  than  S.  himself.15 

§  1258.  Adverse  Possession — Computation — Limitation — Life  Estate 
Intervening.  If  the  statute  began  to  run  in  the  lifetime  of  S.,  no 
life  estate  intervening  would  stop  its  currency;  and  if  the  defendants, 

13 — Root  v.    Beck  et  al.,   109  Ind.  tention.      An    open,    notorious,    ex- 

472,  9  N.   E.  698   (699).  elusive   and   uninterrupted    adverse 

"This    instruction    is    said    to    be  possession,       continued       for       the 

faulty  in  not   stating  that  adverse  period    of   20   years,    is    effectual    to 

possession,   in  order  to  confer  title  confer  a  complete  title  on  the  per- 

in  fee,  under  the  statute  of  limita-  son  so  occupying-,  and  it  is  not  es- 

tions,  must  be  under  color  of  title,  sential  that  such  possession  should 

While  conceding-  that  color  of  title  have     been    under     color     of     title. 

is    not    necessary   to    constitute    an  State. v.  Portsmouth  Sav.  Bank,  106 

adverse    holding,    so    as    to    bar    an  Ind.  435-461,  7  N.   E.  Rep.  379;   Sims 

action  under  the  statute  of  limita-  v.    City   of   Frankfort,    79   Ind.    446; 

tions,  appellant's  counsel  neverthe-  Brown  v.  Anderson,  90  Ind.  93,  and 

loss    contend   that,   in   order   to   ac-  cases  cited;   Hargis  v.  Inhabitants, 

quire    a    title    in    fee    by    adverse  etc.,  29  Ind.  70;  Bauman  v.  Grubbs, 

possession,      the     occupancy     must  26  Ind.  419." 

have  been  under  claim  or  color  of  14 — Yarborough  v.  Maves,  —  Tex. 

title.      Some     of   the     earlier     cases  Civ.   App.  — ,   91  S.  W.   624. 

seem    to    recognize    the    distinction  15— Sutton  v.   Clark,   59   S.   C.  440, 

contended   for.   The  later  decisions,  38   S.   E.   150   (155),   82  Am.   St.   Rep. 

however,  leave  little  room  for  con-  848. 


832  FORMS  OF  INSTRUCTIONS.  [§  1258. 

or  those  under  whom  they  claim,  held  adversely  for  ten  years,  which 
holding  began  during  the  lifetime  of  S.,  plaintiff's  action  would  be 
barred.  The  point  for  you  to  decide  is,  if  they  held  possession,  did 
that  possession  take  place  or  begin  during  the  lifetime  of  S.f  A 
different  law  would  apply  if  it  began  after.  But  if  it  began  during 
his  lifetime,  and  was  kept  up  continuously  for  ten  years,  part  of  the 
ten  years  being  during  his  life  and  part  after  his  death,  then  no 
life  estate  intervening  would  stop  the  running  of  the  statute.18 

16— Sutton   v.   Clark,   supra. 


CHAPTER  LIX, 

MALICIOUS  PROSECUTION. 


See  Erroneous  Instructions,  same  chapter  head,  Vol.  III. 


§  1259.  Malicious  prosecution — What 
must    be    proved. 

§  1260.  Probable    cause   defined. 

§  1261.  What  is  sufficient  to  show- 
probable  cause — Settlement 
of  transaction  on  which 
criminal    suit    was    based. 

§  1262.  What  is  want  of  probable 
cause. 

§  1263.  Dismissal  of  civil  suit  prima 
facie  evidence  of  want  of 
probable  cause. 

§  1264.  What  may  be  admitted  in 
evidence  to  show  want  of 
probable  cause. 

§  1265.  What  negatives  the  idea  of 
want  of  probable  cause. 

§  1266.  What  defendant  believed 
when  he  made  complaint 
and  not  the  guilt  or  inno- 
cence of  plaintiff  the  true 
inquiry. 

§  1267.  Malice  defined — Charge  must 
be  wilfully  false. 

§  1268.  When  a  prosecution  is  ma- 
licious— Malice  immaterial 
if  probable  cause  is  proved. 

§  1269.  Not  permissible  to  testify 
directly  to  the  existence 
of   malice. 

§  1270.  Prosecution  for  purpose  of 
collecting  private  debt  is 
abuse  of  process — Would 
also  be  conclusive  evidence 
of  malice. 

§  1271.  The  jury  may  but  need  not 
necessarily  infer  malice 
from  want  of  probable 
cause. 

§  1272.  Want  of  probable  cause 
cannot  be  inferred  from 
proof  of  malice  but  may  be 
considered — May  also  con- 
sider delay  in  commencing 
prosecution. 


§  1273.  Not  necessary  that  a  crime 
should  have  been  commit- 
ted. 

§  1274.  The  prosecution  must  be 
ended. 

§  1275.  Acquittal  before  justice  of 
the  peace — No  Indictment 
by  grand  jury. 

§  1276.  Person  beginning  criminal 
prosecution  must  exercise 
care  of  an  ordinarily  pru- 
dent man. 

§  1277.  Collusion  and  conspiracy  to 
incarcerate  plaintiff — Dam- 
ages. 

§  1278.  Maliciously      swearing      out 

search    warrant. 
§  1279.  Advice  of  counsel. 

§  1280.  Full  statement  of  facts  to 
counsel. 

§  1281.  Presumption  from  good 
character. 

§  1282.  Burden  of  proof  on  the 
plaintiff. 

§  1283.  Action  for  malicious  prose- 
cution— Admission  or  con- 
fession of  one  not  evidence 
against  other  defendants 
to   prove   conspiracy. 

§  1284.  Malicious  prosecution  — 
Series. 

§  1285.  False  imprisonment— What 
.constitutes. 

§  1286.  Arresting  without  warrant 
— When  it  may  be  done — 
Probable   cause. 

§  1287.  Submission  to  threat  is  not 
a  consent   to   restraint. 

§  1288.  False  imprisonment— Tres- 
pass on  land  of  another. 


§  1259.  What  Must  Be  Proved,  (a)  Before  the  plaintiff  will  be 
entitled  to  recover  anything,  he  must  prove,  by  a  preponderance  of 
the  evidence,  (1)  that  the  plaintiff  was  charged  with  the  crime  of 
embezzlement;  (2)  that  he  was  arrested  upon  said  charge;  (3)  that 
he  was  tried  and  acquitted  upon  said  charge ;  (4)  that  the  defendants, 
53  833 


834  FORMS  OF  INSTRUCTIONS.  [§  1260. 

or  such  as  are  held  liable,  caused  the  arrest  of  the  plaintiff,  or  were 
instrumental  therein,  or  in  some  way  voluntarily  aided  or  abetted  in 
the  prosecution  of  the  plaintiff;  (5)  that  such  prosecution  was  malici- 
ous and  without  probable  cause.1 

(b)  If  the  jury  believe,  from  the  evidence,  that  the  defendant 
had  probable  cause  to  believe  that  the  plaintiff  was  guilty  of  the 
offense  charged  against  him,  then  it  is  not  material  whether  the 
defendant  was  actuated  by  proper  or  improper  motives  in  instituting 
the  criminal  proceedings  against  the  plaintiff.  To  authorize  a  re- 
covery in  this  class  of  cases  it  must  not  only  appear  that  the  defend- 
ant was  actuated  by  malice,  but  the  jury  must  further  believe,  from 
the  testimony,  that  the  defendant  had  no  probable  cause,  or  no 
reasonable  ground,  to  believe  that  the  plaintiff  was  guilty  of  the 
offense  charged  against  him.  And  the  court  further  instructs  the 
jury,  that  probable  cause  means  a  reasonable  ground  of  suspicion, 
supported  by  circumstances  in  themselves  sufficiently  strong  to  war- 
rant a  reasonably  cautious  and  prudent  man  in  the  belief  that  the 
person  accused  is  guilty  of  the  offense  charged.2 

§  1260.  Probable  Cause  Defined,  (a)  If  you  believe,  from  the 
evidence,  that  defendant  had  probable  cause  to  institute  the  criminal 
proceedings,  then  the  plaintiff  cannot  recover  in  this  suit;  and  prob- 
able cause  is  defined  to  be  reasonable  ground  for  suspicion,  supported 
by  circumstances  sufficiently  strong  themselves  to  warrant  an  im- 
partial and  reasonably  prudent  man  in  the  belief  that  the  person 
accused  is  guilty  of  the  offense  with  which  he  is  charged.3 

(b)  Probable  cause  has  been  defined  to  be  such  a  state  of  facts 
in  the  mind  of  the  prosecutor  as  would  lead  a  man  of  ordinary  cau- 
tion and  prudence  to  believe  or  entertain  an  honest  and  strong 
suspicion  that  the  person  arrested  is  guilty.  .  .  .  Whether  the 
facts  known  to  the  defendant  were  such  as  to  lead  him,  as  a  man 
of  ordinary  caution  and  prudence,  to  believe  and  entertain  an  honest 
and  strong  suspicion  that  plaintiff  was  guilty  of  either  charge  is 
submitted  to  the  jury,  to  be  decided  as  a  question  of  fact.4 

(c)  By  the  term  probable  cause  is  meant  the  existence  of  such 
facts  and  circumstances  as  would  excite  the  belief  in  a  reasonably 

1— Evansville   &  T.  H.  R.  Co.  v.  if   the    facts    warrant    it,    may    be 

Talbot,   131   Ind.   221,   29   N.   E.   1134  against    some    of     the     defendants 

(1135).  and    in    favor    of   the    others;    but 

"To    this    instruction    the    appel-  there    can    be    no    finding    against 

lnnts   object   because,    they   say,    it  any  defendant  who  is  not  shown  to 

'assumes  that  some  of  the  defend-  have  been   connected   with   the  in- 

ants    will    be    held    liable.'    We    do  stigation     or    carrying    on    of    the 

not    think     the    objection     is     well  prosecution.'  " 

founded.     In    our   opinion,    the    in-  2 — Ames    v.     Snider,    69    111.    376; 

struction    is   unobjectionable   when  Flickinger  v.  Wagner,  46  Md.   580; 

it   is   read,   as  it   must   be,   in   con-  Josselyn    v.     McAllister,     22    Mich, 

nection  with  the  other  instructions  300;    Carey   v.    Sheets,    67   Ind.    375. 

given.      By    its    sixth    instruction,  3— Smith  v.  Zent,  58  Ind.  362. 

the  court  charged  the  jury  as  fol-  4— Eggert  v.   Allen,   119  Wis.  625, 

lows:     'Your  verdict  in  this  case,  96  N.  W.  803  (805-6). 


§  1261.]  MALICIOUS  PROSECUTION.  835 

prudent  man's  mind,  acting  on  the  facts  or  information  within  the 
knowledge  of  the  complaining  witness  at  the  time  that  the  person 
charged  was  guilty  of  the  crime  for  which  he  was  prosecuted.5 

(d)  That  to  constitute  probable  cause  for  a  criminal  prosecution, 
there  must  be  such  reasonable  grounds  of  suspicion,  supported  by 
circumstances,  sufficiently  strong  in  themselves,  to  warrant  an  ordi- 
narily prudent  man  in  the  belief  that  the  person  arrested  is  guilty 
of  the  offense  charged.6 

§  1261.  What  is  Sufficient  to  Show  Probable  Cause — Settlement  of 
Transaction  on  Which  Criminal  Suit  was  Based,  (a)  Probable 
cause  for  instituting  a  criminal  prosecution  is  a  reasonable  ground 
of  suspicion,  supported  by  circumstances  sufficiently  strong  in  them- 
selves to  warrant  a  reasonably  prudent  cautious  man  in  the  belief 
that  the  person  accused  is  guilty  of  the  offense  charged.7 

(b)  Even  if  the  lease  was  not  authorized  or  ratified,  if  the  plain- 
tiff, in  going  upon  the  premises,  acted  under  an  honest  belief  of 
right  so  to  do,  then  a  prosecution  therefor  would  not  be  well  founded; 
and,  if  defendant  knew  that  plaintiff  so  acted,  then  the  prosecution 
would  be  without  probable  cause,  the  same  as  it  would  if  the  lease 
had  been  authorized  or  ratified.  If,  on  the  other  hand,  the  lease 
was  not  authorized  or  ratified,  and  the  defendant  had  reason  to  be- 
lieve, from  a  talk  had  with  plaintiff  with  reference  to  a  settlement 
of  damages  claimed  by  defendant,  or  from  other  matters,  that  the 
plaintiff  knew  that  his  claim  to  the  premises  was  unfounded,  but 
persisted,  against  the  objections  of  defendant,  in  going  upon  the 
premises  in  question,  then  the  defendant  would  have  probable  cause 
for  instituting  the  prosecutions.8 

5 — Stoeoker  v.   Nathanson,  5  Neb.  held  error,   the  proper  word   to  be 

(Unof.)    435,    98   N.    W.    1061    (1064).  used    being    "prudent." 

"In    the    case   of  Tucker   v.    Can-  7 — Galloway    v.     Burr,     32     Mich. 

non,  twice  examined  by  this  court,  332;    Ames    v.    Snider,    6D    111     376; 

28    Neb.    196,    44    N.    W.    440   and    32  McClafferty    v.    Philip,    supra.     See 

Neb.  444,  49  N.  W.  435,  the  only  in-  preceding-   section, 

struction  given  on  the   question  of  8 — Noble  v.    White,  103  Iowa  352, 

probable    cause,    was    one    general  72    N.    W.    556    (558). 

in  its   nature,   and   of  similar  pur-  "Appellant   contends   that,   as   no 

port  to  the  fifth  Instruction  in  the  lease   was   pleaded    or  put    in   evi- 

instant   case.     In   this    case    there  dence,  it  was  error  for  the  court  to 

was    .-judgment    for     the     plaintiff,  recognize  the  existence  of  a  lease, 

and     the    .iudgment     was    affirmed,  The     undisputed    evidence     showed 

and   at  the   rehearing   the   instruc-  the  existence  of  a  lease,  and  it  was 

tion   was   approved,   and   the   court  not   error    for  the    court    to    recog- 

clearly   indicated    that   the   rule   of  nize  that  fact   in   the   instructions, 

review  in  cases  of  this  nature  was  ....    Appellant    insists    that    it 

the  same  as  in  other  civil  cases."  was     error     to     instruct     that,     if 

6— Cooley  on  Torts,  3d  Ed.  321  et  plaintiff  acted  upon   an  honest  be- 

seq.;    Farnam    v.    Feeley.    56    N.    Y.  lief  of   right   to   occupy   the   prem- 

45] ;     "Winebiddle    v.    Porterfield,    9  ises,  .  then    the    prosecutions    were 

Penn.   St.  137;   Collins  v.  Hayte,  50  not    well    founded,    for    the    reason 

111.  353;   Fagnan  v.  Knox,  66  N.  Y.  that  plaintiff's  belief  could  not  in- 

525.  fluence  the  action  of  the  defendant 

See    also    McClafferty    v.    Philip,  in  bringing  the  prosecutions.    This 

151    Pa.    St.    86    (90),    24    Atl.    1042,  claim  ignores  the  fact  that  in  the 

where    the  word     "cautious"    was  same    connection    the    court    said: 


836  FORMS  OF  INSTRUCTIONS.  [§  1262. 

(e)  If  you  believe  from  the  evidence  in  this  case  that  the  facts 
and  circumstances  upon  which  the  complaining  witness,  S.,  in  the 
criminal  case  based  his  action  in  the  prosecution  of  the  plaintiff, 
were  such  as  to  excite  the  belief  in  a  reasonably  prudent  man's 
mind,  acting  on  such  facts  and  circumstances  as  is  shown  from  the 
evidence  were  within  the  knowledge  of  the  said  complaining  witness 
at  the  time  said  prosecution  was  instituted,  that  the  plaintiff  N. 
was  guilty  of,  the  crime  charged,  and  for  which  he  was  prosecuted, 
then  there  was  probable  cause  for  his  arrest ;  or  if  you  find  from 
the  evidence  that  plaintiff  N.  for  the  purpose  of  terminating  the 
criminal  cause,  and  preventing  the  due  prosecution  of  the  same, 
settled  or  consented  to  the  settlement  of  the  transaction  on  which 
said  criminal  suit  was  based,  then  in  either  event  you  should  find 
for  the  defendant  S.  in  this  case.9 

§  1262.  What  Is  a  Want  of  Probable  Cause,  (a)  If  the  jury  be- 
lieve, from  the  evidence,  that  the  defendant  instituted  a  criminal 
proceeding  against  the  plaintiff,  as  charged  in  the  declaration,  and 
if  they  further  find,  from  the  evidence,  that  there  were  no  circum- 
stances connected  with  the  transaction,  out  of  which  the  prosecution 
grew,  and  that  no  information  regarding  it  came  to  the  knowledge 
of  defendant,  which  would  warrant  a  reasonable  and  prudent  man 
in  believing  that  the  plaintiff  was  guilty  of  the  charge  made  against 
him,  then  there  was  no  probable  cause  for  the  prosecution.10 

(b)  The  court  instructs  you  that  both  the  questions  of  probable 
cause  and  malice,  as  well  as  the  questions  of  the  prosecution  by  the 
defendant  and  its  termination  in  acquittal  or  discharge  of  the  plain- 
tiff, are  questions  for  the  jury  to  determine  and  find  from  the  evi- 
dence. 

(c)  Probable  cause  for  a  criminal  prosecution  is  understood  to  be 
such  conduct  on  the  part  of  the  accused  as  may  induce  the  jury  to 
infer  that  the  prosecution  was  undertaken  for  public  motives.11 

§  1263.  Dismissal  of  Civil  Suit  Prima  Facie  Evidence  of  Want  of 
Probable  Cause.  The  court  instructs  the  jury  that  the  bringing  and 
dismissal  of  the  suits  in  the  manner  in  which  they  were  brought  and 
dismissed  is  prima  facie  evidence  of  the  want  of  probable  cause, 
but  is  not  conclusive  evidence  of  the  want  of  probable  cause;  and 
if  the  jury  believe  from  all  the  evidence  and  circumstances  as  exist, 

'If   the  defendant   knew  he  so  acted,  the     fullest     and     most     complete 

then     the     prosecution     would     be  which  might  have  been  given,  yet 

without      probable      cause;'      thus  it  was   one   approved   by  courts   of 

making-   defendant's    knowledge   an  great  respectability.    Ulmer  v.   Le- 

element   of  the  injury."  land,    1    Greenl.    135,    10    Am.    Dec. 

9 — Stoecker  v.  Nathanson.  5  Neb.  48   and   cases   cited  in   note  to  Bell 

(Unof.)    435,    98    N.    W.    1061.  v.    Graham,    9    Am.    Dec.    691;    Bit- 

10— MeWilliams      v.      Hoben,      42  ting   v.    Ten   Eyeck,  82   Ind.   421,   42 

Md.    56;    Harpham   v.   Whitney,    77  Am.    Rep.    505.      If   defendant    was 

111.   32.  dissatisfied      with      the       definition 

11 — Lewton  v.  Hower,  35  Fla.  58,  given,    it    was    his    duty    to    have 

16  So.    616   (617,   618).  proposed   a  better  definition." 

"The    definition    given    was    not 


§  1263.] 


MALICIOUS  PROSECUTION. 


837 


and,  as  shown  by  the  evidence,  excuse  the  bringing  and  dismissal  of 
the  .cases,  and  that  there  was  in  the  defendant 's  mind  a  well-grounded 
belief,  and  that  he  had  probable  cause  to  believe  the  facts  as  testi- 
fied to  by  him,  then  the  plaintiff  is  not  entitled  to  recover.12 


12— Kolka  v.  Jones,  6  N.  D.  461, 
71  N.  W.  558  (563),  66  Am.  St.  Rep. 
615. 

The  above  instruction  was  given 
in  an  action  brought  for  malicious 
prosecution,  in  which  the  alleged 
malicious  prosecution  consisted  in 
bringing  three  successive  civil 
suits  before  a  Justice  of  the  Peace 
upon  the  same  claim,  each  case 
being  voluntarily  dismissed  by  the 
plaintiff  (defendant  in  this  case) 
when  the  day  of  the  trial  arrived. 
The  court  said:  'We  find  no  er- 
ror in  this.  It  is  well  settled  that 
the  voluntary  dismissal  of  a  suit 
is  prima  facie  evidence  of  want 
of  probable  cause.'  "Wetmore  v. 
Mellinger,  64  Iowa  741,  18  N.  W. 
870.  52  Am.  Rep.  465;  Burhans  v. 
Sanford,  19  Wend.  417;  Nicholson 
v.  Coghill,  4  Barn.  &  C.  21;  Green 
v.  Cochran,  43  Iowa  544;  Cooley, 
Torts,  page  185.  Such  dismissal, 
unexplained,  is  as  cogent  evidence 
of  want  of  probable  cause  as  the 
failure  of  the  prosecutor  in  a 
criminal  action  to  make  out  a  suf- 
ficient case  to  satisfy  a  commit- 
ting magistrate.  And  yet  it  has 
been  repeatedly  held  that  the  dis- 
charge of  the  plaintiff  in  the  mali- 
cious prosecution  action  by  a  com- 
mitting magistrate  is  prima  facie 
evidence  of  want  of  probable 
cause.  Cooley  Torts,  page  184; 
Bigelow  v.  Sickles,  80  Wis.  98,  49 
N.  W.  106,  27  Am.  St.  Rep.  25; 
Barhight  v.  Tammany,  158  Pa. 
545,  28  Atl.  135,  38  Am.  St.  Rep. 
853;  Brown  v.  Vittur,  47  La.  607, 
17  So.  193;  Smith  v.  Association, 
116  N.  C.  73,  20  S.  E.  963;  Newell 
Mai.  Pros.  p.  283.  But  it  is  urged 
that  the  statute  law  in  this  case 
gives  the  plaintiff  in  an  action 
an  absolute  right  to  dismiss  it  at 
any  time  before  it  is  finally  dis- 
posed of,  and  that,  therefore,  such 
a  dismissal  cannot  be  held  to  con- 
stitute even  prima  facie  evidence 
of  want  of  probable  cause.  Coun- 
sel for  appellant  asserts  that  such 
a  rule  of  evidence  would  take 
away  the  plaintiff's  absolute  right 
to  dismiss  his  action.  But  the 
most  superficial  consideration  of 
the  matter  will  suffice  to  show  the 
unsoundness  of  this  reasoning. 
The    rule    of    evidence    which    we 


uphold  and  apply  in  this  case  is 
one  which  creates  a  mere  pre- 
sumption. It  does  not  purport  to 
render  illegal  that  which,  both  un- 
der the  statute  and  at  common 
law,  is  strictly  lawful.  If  the 
plaintiff  has  probable  cause  for 
commencing  his  suit,  the  dismis- 
sal thereof  will  not  render  action- 
able the  institution  of  such  suit.  It 
will  merely  call  upon  him  to  show 
that  there  was  in  fact  probable 
cause  for  bringing  the  action.  And 
it  is  entirely  reasonable  that  the 
voluntary  discontinuance  by  a 
party  of  an  action  which  he  abso- 
lutely controls  should,  in  an  ac- 
tion of  this  character,  shift  the 
burden  of  proof.  To  establish 
want  of  probable  cause  is  to  prove 
a  negative,  and  it  is  elementary 
that  to  prove  a  negative  requires 
only  slight  evidence.  See  Newell, 
Mai.    Pros.    p.    282,    para.    7. 

At  the  threshold  of  the  case  we 
are  met  with  the  contention  that 
for  the  malicious  institution  and 
prosecution  of  a  civil  action  with- 
out probable  cause  there  is  no 
remedy,  unless  the  person  of  the 
defendant  in  such  an  action  has 
been  arrested  or  his  property 
seized  therein,  or  unless  there 
exist  special  circumstances  remov- 
ing the  case  from  the  category  to 
which  belong  ordinary  civil  ac- 
tions. On  this  very  interesting 
question  we  find  the  decisions  in 
hopeless  conflict.  In  this  jurisdic- 
tion it  is  an  open  question,  and 
we  shall  therefore  settle  it  upon 
principle  and  in  accordance  with 
the  weight  of  argument,  without 
reference  to  the  number  of  author- 
ities which  can  be  arrayed  upon 
the  opposite  sides,  respectively,  of 
this  controversy.  It  may  not  be 
amiss,  however,  to  remark  that  in 
our  opinion  the  scales  in  which 
are  balanced  the  relative  weight 
of  authority  on  this  point  have 
turned,  and  that  now  it  is  no 
longer  true,  as  erstwhile  it  was, 
that  the  adjudications  preponder- 
ate in  favor  of  the  English  rule, 
that  in  the  absence  of  the  arrest 
of  the  person  or  of  the  seizure  of 
property  or  of  other  special  cir- 
cumstances, the  successful  de- 
fendant   has    no    remedy,     despite 


838 


FORMS  OF  INSTRUCTIONS. 


[§  1264. 


§  1264.  What  May  be  Admitted  in  Evidence  to  Show  Want  of 
Probable  Cause.  The  court  instructs  you  that  it  was  proper  to 
introduce  the  proceedings  of  the  county  commissioners  relating  to  the 
establishment  of  the  alleged  highway,  •  »  *  anj  from  all  the 
facts  and  circumstances  as  shown  by  the  evidence,  it  was  for  the 


the  fact  that  his  antagonist  pro- 
ceeded against  him  maliciously 
and       without       probable       cause. 

Favoring  the  English  doctrine, 
we  find  the  following  authorities: 
Potts  v.  Inlay,  4  N.  J.  Law  377; 
Mayer  v.  Walter,  64  Pa.  St.  289; 
Ebeiiy  v.  Rupp,  90  Pa.  St.  259; 
McNamee  v.  Minke,  49  Md.  122; 
Wetmore  v.  Mellinger,  64  Iowa 
741,  18  N.  W.  870,  52  Am.  Rep. 
465;  Mitchell  v.  Railroad,  75  Ga. 
398;  Ely  v.  Davis,  —  N.  C.  — ,  15 
S.  E.  878;  Terry  v.  Davis,  114  N. 
C.  31,  18  S.  E.  943;  Rice  v.  Day, 
34  Neb.  100,  51  N.  W.  464;  Gorton 
v.  Brown,  27  111.  489,  81  Am.  Dec. 
245. 

Opposed  to  the  English  rule, 
we  marshal  decisions  from  the 
states  of  Connecticut,  New  York, 
Minnesota,  Kansas,  Kentucky, 
Missouri,  Colorado,  Ohio,  Louisi- 
ana, Michigan,  Tennessee,  Indiana, 
Vermont,  Massachusetts  and  Cali- 
fornia: Lipscomb  v.  Shofner,  96 
Tenn.  112,  33  S.  W.  818;  McCardle 
v.  McGinley,  86  Ind.  538,  44  Am. 
Rep.  343;  Lockenour  v.  Sides,  57 
Ind.     360;     McPherson    v.     Runyon, 

41  Minn.  524,  43  N.  W.  392,  16  Am. 
St.    Rep.    727;    Closson    v.    Staples, 

42  Vt.  209,  1  Am.  Rep.  316;  Whip- 
ple v.  Fuller,  11  Conn.  582,  29  Am. 
Dec.  330;  Marbourg  v.  Smith,  11 
Kan.  554;  Cox  v.  Taylor's  Admr., 
10  B.  Mon.  17;  Pangburn  v.  Bull, 
1  Wend.  345;  Eastin  v.  Bank,  66 
Cal.  123,  4  Pac.  1106;  Woods  v. 
Finnell,  13  Bush.  629;  Allen  v. 
Codman.  139  Mass.  136,  29  N.  E. 
537;  Smith  v.  Burrus,  106  Mo.  94, 
16  S.  W.  881,  27  Am.  St.  Rep.  329, 
13  L.  R.  A.  59;  Johnson  v.  Meyer, 
36  La.  Ann.  333;  Hoyt  v.  Macon,  2 
Colo.  113;  Brady  v.  Ervin,  48  Mo. 
533;  Antcliff  v.  June,  81  Mich.  477, 
45  N.  W.  1019;  21  Am.  St.  Rep. 
533;  10  L.  R.  A.  621;  Pope  v.  Pol- 
lock, 46  Ohio  St.  367,  21  N.  E. 
356,  15  Am.  St.  Rep.  608;  Brand  v. 
Hinchman.  68  Mich.  590,  36  N.  W. 
664,  13  Am.  St.  Rep.  362;  O'Neill 
v.  Johnson,  53  Minn.  429,  55  N.  W. 
601,  39  Am.  St.  Rep.  615;  Dolan  v. 
Thompson,  129  Mass.  205;  Sartwell 
v.  Parker,  141  Mass.  405,  5  N.  E. 
807. 

*  *  *  Without    at    this    point    ad- 


verting more  particularly  to  the 
facts,  we  will  dispose  of  the  ques- 
tion whether  the  action  will  lie, 
assuming  the  suit  to  have  been 
maliciously  brought  without  prob- 
able cause.  We  wish  to  settle  the 
law  in  this  state,  not  upon  the 
peculiar  features  of  this  case,  but 
upon  the  broad  basis  that  the 
malicious  prosecution  of  a  civil 
action  without  probable  cause  is 
a  legal  wrong  for  which  the  law 
will  afford  redress,  without  ref- 
erence to  any  inquiry  touching 
the  seizure  of  property,  the  arrest 
of  the  person,  or  other  special  cir- 
cumstances. Before  the  statute  of 
Marlbridge  (52  Hen.  Ill)'  an  ac- 
tion for  the  malicious  prosecution 
without  probable  cause  of  a  mere 
civil  action  would  lie.  Closson  v. 
Staples,  42  Vt.  209-214,  1  Am.  Rep. 
316;  Lockenour  v.  Sides,  57  Ind. 
364;  Lipscomb  v.  Shofner,  96  Tenn. 
Sup.  112,  33  S.  W.  818;  Pope  v. 
Pollock,  46  Ohio  St.  367,  21  N.  E. 
356,  15  Am.  St.  Rep.  60S,  4  L.  R.  A. 
255,  14  Am.  &  Eng.  Enc.  Law.  32. 
Why  this  rule  should  have  been 
departed  from  after  the  act  of  52 
Ken.  Ill  had  been  passed,  is  ap- 
parent from  the  language  of  that 
act.  It  gave  to  the  defendant 
who  had  prevailed  in  the  cause, 
not  merely  his  costs,  but  also  his 
damages;  and,  to  make  apparent 
the  purpose  of  parliament  to  sub- 
stitute this  remedy  for  the  action 
for  malicious  prosecution,  these 
costs  and  damages  were  given 
only  in  actions  which  were  mali- 
cious, and  not  at  all  in  actions 
generally.  Railroad  Co.  v.  Mc- 
Farland,    44   N.    J.    Law   674-676. 

Subsequent  legislation  in  Eng- 
land shows  that  the  statute  of 
Marlbridge  was  enacted  not  as  a 
general  law  regulating  costs,  but 
to  afford  a  summary  remedy  to 
the  successful  defendant  in  place 
of  the  existing  right  of  action  to 
recover  his  damages  on  account 
of  the  malicious  prosecution  of  a 
civil  action  against  him.  The 
statute  of  Gloucester  (6  Ed.  I,  c.  1) 
gave  the  defendant  costs  where  he 
recovered  damages,  and  finally,  by 
the  act  of  23  Hen.  VIII,  c.  15,  the 
defendant   was    snven    costs    in   all 


§  1264.] 


MALICIOUS  PROSECUTION. 


839 


jury  to  determine,  not  whether  there  was  a  legal  highway  within 
the  limits  of  which  the  overseer  was  engaged  in  removing  an  obstruc- 
tion, but  whether  these  defendants  honestly  believed,  and  had  reason 
to  believe,  that  such  was   the  fact — in  other  words,  whether  there 


cases  in  which  he  was  successful 
whether  he  recovered  damages  or 
not,  provided  the  case  was  one  in 
which  the  plaintiff  could  have  re- 
covered costs  had  he  been  the  pre- 
vailing- party.  Railroad  Co.  v.  Mc- 
Farland,    supra. 

The  act  of  the  British  Parlia- 
ment which  was  held  to  take  away 
the  existing-  cause  of  action  for 
damages  for  the  malicious  prose- 
cution of  a  civil  suit  was  an  act 
which  in  terms  was  limited  to 
cases  of  that  kind;  and  when  it  is 
remembered  that  it  gave  the  de- 
fendant not  merely  his  costs  but 
also  his  damages,  it  is  obvious 
that  the  statute  was  framed  to 
give  the  successful  defendant  his 
remedy  in  the  very  case  in  which 
he  was  maliciously  prosecuted, 
instead  of  compelling  him  to  seek 
redress  in  an  independent  action. 
Between  such  legislation  and  the 
statutory  enactments  of  this 
country  on  the  subject  of  costs, 
there  is  the  widest  possible  differ- 
ence. The  statute  of  Marlbridge 
was  limited  to  civil  actions  mali- 
ciously prosecuted,  and  gave  the 
defendant  the  damages  he  had  suf- 
fered because  of  such  perversion 
of  the  forms  and  remedies  of  the 
law,  whereas  the  statutes  regu- 
lating costs  on  this  side  of  the 
water  are  not  restricted  to  actions 
in  which  the  motive  prompting 
the  litigation  was  unjustifiable, 
but  are  intended  to  apply  to  all 
cases,  to  the  end  that  some  in- 
demnity to  the  other  suitor  may 
be  afforded  in  every  case,  inde- 
pendently of  the  state  of  mind  of 
the  person  bringing  the  suit,  on 
the  question  whether  he  had  rea- 
sonable ground  for  believing  that 
the  action  could  be  maintained; 
leaving  the  remedy  for  a  perver- 
sion of  legal  machinery  to  the 
common-law  maxim  that  for  every 
wrong  the  law  will  give  legal 
redress.  General  statutes  regu- 
lating costs  make  no  discrimina- 
tion between  the  honest  suitor, 
who,  having  a  valid  claim,  may 
yet  fail,  for  some  reason,  to  es- 
tablish it  in  court,  and  the  malig- 
nant persecutor  and  harasser  of 
a  citizen,  who,  by  his  abuse  of 
legal  forms,   causes  heavy  damage 


to  such  citizen,  in  property,  repu- 
tation and  business  prospects,  by 
the  unfounded  suit,  which  he  who 
institutes  it  knows  full  well  he 
cannot  maintain.  Each  must  pay 
the  statutory  costs,  and  the  same 
rule  measures  the  liability  of  each 
for  such  costs.  That  our  meager 
bill  of  costs  was  intended  to  rec- 
ompense the  victim  of  the  mali- 
cious prosecution  of  a  civil  suit 
is,  to  our  minds,  unthinkable.  It 
is  true  that  our  statute  gives  the 
successful  suitor  a  right  to  re- 
cover some  trifling  items  of  costs, 
and  certain  specified  disburse- 
ments, as  indemnity;  but  it  is  in- 
demnity for  the  defense  (in  the 
case  of  a  defendant)  of  an  action, 
without  reference  to  the  question 
whether  there  has  been  a  mali- 
cious perversion  of  legal  remedies. 
If  it  was  enacted  to  cover  cases  of 
an  abuse  of  legal  machinery,  then 
it  is  evident  that  all  remedy  for 
such  an  abuse  was  intended  to  be 
withheld;  for,  in  such  a  view  of 
the  statute,  he  who  lawfully  uses 
and  he  who  maliciously  perverts 
the  right  to  sue  would  stand  upon 
precisely  the  same  footing  with  re- 
spect to  the  question  of  liability 
for  their  respective  acts.  Even 
when  the  plaintiff  has  acted  in 
the  utmost  good  faith  the  de- 
fendant will  often  suffer  on  ac- 
count of  the  suit,  damages  which 
taxable  costs  will  not  even  ap- 
proximately compensate.  But  it  is 
the  policy  of  the  law  not  to  throw 
around  the  right  of  the  citizen  to 
appeal  to  the  courts  for  redress 
such  risks  that  fear  of  the  pos- 
sible consequences  will  deter  him 
from  asserting  a  claim  he  honest- 
ly deems  himself  entitled  to  en- 
force. In  ordinary  cases,  the  In- 
jury a  defendant  suffers,  beyond 
the  slight  indemnity  which  statu- 
tory costs  afford  him,  is  one  of 
the  many  inevitable  burdens  which 
men  must  sustain  under  civil  gov- 
ernment. He  is  forced  to  bear  it 
for  the  public  good.  A  wise  pol- 
icy requires  that  the  honest  claim- 
ant should  not  be  frightened  from 
invoking  the  aid  of  the  law  by  the 
statutory  threat  of  a  heavy  bill 
of  costs  against  him  in  case  of 
defeat.      But    certainly    no    policy 


840  FORMS  OF  INSTRUCTIONS.  [§  1265. 

was  probable  cause  for  instituting  criminal  proceedings  against  the 
plaintiff.  Although  it  may  now  appear  that  the  plaintiff  was  not 
guilty  of  any  offense,  for  the  reason  that  there  was  no  legally 
established  highway,  *  *  *  although  it  may  appear  in  this 
action  that  she  was  utterly  innocent,  the  defendants  cannot  be  held 
liable  for  her  arrest  unless  it  appears  from  the  evidence  that  there 
was  as  to  them  a  want  of  probable  cause;  and  the  burden  is  upon 
the  plaintiff  to  show  by  a  fair  preponderance  of  the  evidence  both 
want  of  probable  cause  and  that  the  prosecution  was  malicious.13 

§  1265.  What  Negatives  the  Idea  of  Want  of  Probable  Cause. 
(a)  If  the  jury  believe,  from  the  evidence,  that  the  defendant, 
when  he  instituted  the  prosecution  complained  of,  honestly  believed 
the  plaintiff  was  guilty  of  the  offense  charged,  and  that  defendant's 
belief  was  founded  on  a  knowledge  of  circumstances  tending  to  show 
such  guilt,  and  sufficient  to  induce,  in  the  mind  of  an  ordinarily  rea- 
sonable and  prudent  man,  the  belief  in  such  guilt,  then  such  belief 
on  the  part  of  the  defendant  negatives  the  idea  of  the  want  of 
probable  cause.14 

(b)  If  the  jury  believe,  from  the  evidence,  that  the  defendant, 
when  he  instituted  the  prosecution  complained  of,  honestly  believed 
the  plaintiff  was  guilty  of  the  offense  charged,  and  the  defendant's 
belief  was  founded  on  a  knowledge  of  circumstances  tending  to 
show  guilt,  and  sufficient  to  induce  in  the  mind  of  an  ordinarily 
reasonable,  prudent  man  the  belief  in  such  guilt,  then  such  belief 
on  the  part  of  the  defendant  negatives  the  idea  of  the  want'  of 
probable  cause.15 

§  1266.  What  Defendant  Believed  When  He  Made  Complaint  and 
Not  the  Guilt  or  Innocence  of  Plaintiff  the  True  Inquiry.  Upon  the 
question,  whether  the  defendant  had  probable  cause  for  commencing, 
etc.,  the  jury  are  instructed,  that  the  true  inquiry  for  them  to 
answer  is  not  what  were  the  actual  facts  as  to  the  guilt  or  innocence 
of  the  plaintiff,  but  what  did  the  defendant  have  reason  to  believe, 
and  what  did  he  believe  in  reference  thereto,  at  the  time  he  made 
the  complaint.16 

demands    that    malice    should,    by  merits   of   our   system   of  jurispru- 

the  assurance  of  protection  in  ad-  dence    must   inevitably   be    shaken, 

vance,  be  encouraged  to  vex,  dam-  and     the     courts     themselves     will 

age  and  even  ruin  a  peaceful  citi-  seem   to   have  forsaken    their  high 

zen    by    the    illegal    prosecution    of  function    as    protectors    and    vindl- 

an  _    action      upon     an,    unfounded  cators    of    invaded    rights,    and    to 

claim.  have   become,   instead,   the   accom- 

*  *  *  The     malicious     prosecution  plices   of   evil   men." 

of   legal   remedies   to    subserve   un-  13 — Richardson     v.     Dybedahl,    17 

worthy   personal    ends    is   not   only  S.  D.  629,  98  N.  W.  164  (166). 

an     injury    to    the    victim     of    the  14— Hirsch   v.   Feeney,   83   111.   548; 

particular  persecution,   but   also  to  Brennan  v.  Tracy.  2  Mo.  App.   540. 

society   at    large,    if   it    is    suffered  15— Schattgen     \.     Holnback,     149 

to    go     unwhipped    of    justice.      If  111.   646    (652),   36   N.   E.    969. 

the  law  will  not  punish  such  con-  16— Galloway    v.    Burr,    32    Mich, 

duct,      public      confidence     in     the  332. 


§  1267.]  MALICIOUS  PROSECUTION.  841 

§  1267.     Malice   Defined— Charge    Must    Be    Willfully   False,     (a) 

Malice  is  defined  as  any  indirect  motive  of  wrong;  .  .  .  and, 
in  the  legal  sense,  any  unlawful  act  which  is  done  willfully  and 
purposely  to  the  injury  of  another,  is,  as  against  that  person,  mali- 
cious; and  by  malice  is  meant  not  the  act  but  the  motive  which  prompts 
the  act.  It  consists  of  a  bad  motive,  or  such  reckless  disregard  of 
the  rights  of  others  as  to  show  evil  intent.  It  is  an  action  based 
upon  an  improper  motive,  and  does  not  necessarily  presuppose  per- 
sonal hatred,  ill  will  or  revenge.  The  improper  motive  or  want  of 
proper  motive  inferable  from  a  wrongful  act  based  upon  no  reason- 
able ground  constitutes  of  itself  all  the  malice  deemed  essential  in 
law  to  the  maintenance  of  the  action.  The  malice  necessary  to  be 
shown  in  order  to  maintain  this  action  is  not  necessarily  revenge 
or  other  base  and  malignant  passion ;  whatever  is  done  willfully  and 
purposely,  if  it  be  at  the  same  time  wrong  and  unlawful,  and  that 
known  to  the  party,  is,  in  legal  contemplation,  malice.  If,  however, 
the  accused  is  in  fact  guilty  of  the  offense  charged,  that  would  be 
a  complete  defense  in  this  action,  and  it  would  be  immaterial  whether 
the  proceedings  complained  of  were  malicious  or  not.17 

(b)  To  sustain  the  charge  of  malice,  the  criminal  charge  must  ap- 
pear, by  a  preponderance  of  the  evidence,  to  have  been  willfully  false. 
To  sustain  a  suit  for  malicious  prosecution,  the  facts  ought  to  be 
such  as  to  satisfy  any  unprejudiced,  reasonable  mind  that  the  accused 
had  no  ground  for  the  prosecution,  except  his  desire  to  injure  the 
accused.18 

§  1268.  When  a  Prosecution  Is  Malicious — Malice  Immaterial  if 
Probable  Cause  Is  Proved,  (a)  Malice  may  consist  of  any  motive 
other  than  a  desire  to  bring  a  guilty  party  to  justice.  A  prosecution 
is  malicious  when  actuated  by  hostile  or  vindictive  motive,  provided 
there  is  also  a  lack  of  probable  cause,  as  is  hereinafter  explained. 
A  prosecution  instituted  willfully  and  purposely,  to  gain  some  ad- 
vantage to  the  prosecutor,  or  through  mere  wantonness,  or  careless- 
ness, if  it  be  at  the  same  time  wrong  and  unlawful,  within  the 
knowledge  of  the  actor,  and  without  probable  cause,  is,  in  the  legal 
contemplation,  malicious.19 

(b)  The  mere  failure  of  the  prosecution  (that  is,  the  suits 
brought  by  these  defendants  against  this  plaintiff)  does  not  establish 
a  want  of  probable  cause.  To  maintain  the  present  actions,  the 
plaintiff  must  satisfy  the  jury  by  a  preponderance  of  evidence  of  the 
existence  of  the  two  essential  elements  of  his  case,  viz. :  (1)  that 
the  defendants  acted  maliciously  in  bringing  the  suits  against  the 
plaintiff;  (2)  that  the  defendants  acted,  in  bringing  the  suits  against 

17 — Miles  et  al.  v.  Walker,  66  found  approved  in  Tucker  v.  Can- 
Neb.    728,    92   N.    W.    1014    (1016).  non,   32    Neb.   445,    49   N.   W.    435." 

"There  seems  nothing  of  which  18— Harpham  v.  Whitney,  77  111. 
defendants    can    complain    in    this     32. 

instruction.      Most    of    it    is    to   be        19— Egg-ert  v.  Allen,  119  Wis.  625, 

96   N.    W.    803    (805-6). 


842 


FORMS  OF  INSTRUCTIONS. 


[§  1269. 


the  plaintiff,  without  probable  cause.  The  question  of  probable 
cause  does  not  depend  upon  whether  the  plaintiff  was  guilty  of  the 
offense  charged  in  the  defendants'  writs,  but  depends  wholly  upon 
the  defendants'  honest  belief  of  the  plaintiff's  guilt,  based  upon 
reasonable  ground.  The  defendants  were  at  liberty  to  act  upon 
the  appearances;  and,  if  the  apparent  facts  were  such  that  a  dis- 
creet and  prudent  person  would  be  led  to  the  belief  that  the  plaintiff 
had  done  the  acts  complained  of,  the  defendants  are  not  liable  in 
this  action,  and  your  verdict  will  be  for  the  defendants,  although 
upon  the  whole  evidence  you  may  believe  that  the  plaintiff  did  not 
do  the  acts  complained  of,  and  that  the  defendants  were  mistaken 
in  their  belief  that  he  did.  If  there  was  probable  cause  for  the 
actions  brought  by  the  defendants,  of  which  cause  the  defendants 
were  informed,  at  the  time  they  brought  the  actions,  the  justification 
is  complete,  and  it  is  immaterial  whether  the  defendants  were  actuated 
by  malice  or  not.20 

§  1269.  Not  Permissible  to  Testify  Directly  to  the  Existence  of 
Malice.  The  court  charges  the  jury  that  malice  cannot  be  testified 
about  by  V.  &  Co.,  whether  it  existed,  but  the  law  is  that  the  jury 
must  look  at  the  circumstances  bearing  on  the  inquiry,  the  circum- 
stances of  the  issuance  and  levy  of  the  attachment,  and  the  conduct 
of  the  defendants  in  instituting  the  attachment  suit.21 


20— Cohn  v.  Saidel,  71  N.  H.  558, 
53   Atl.    800. 

In  approving'  the  instruction  the 
court  said  that  "the  defendants' 
request  that  the  jury  be  instructed 
that  the  mere  failure  of  the  prose- 
cution (that  is,  the  suits  brought 
by  these  defendants  against  this 
plaintiff)  does  not  establish  a  want 
of  probable  cause,  should  have 
been  granted.  The  failure  of  those 
suits,  though  necessary  to  be 
proved,  was  but  a  short  step  to- 
ward the  maintenance  of  an  ac- 
tion for  malicious  prosecution. 
Shaw,  C.  J.,  in  Cloon  v.  Gerry,  13 
Gray  201.  In  every  case  of  an  ac- 
tion for  malicious  prosecution  or 
suit,  it  must  be  averred  and  proved 
that  the  proceeding  instituted 
against  the  plaintiff  has  failed; 
but  its  failure  has  never  been  held 
to  be  evidence  of  either  malice 
or  want  of  probable  cause;  much 
less,  that  it  is  conclusive  of  those 
things.  Strong,  J.,  in  Stewart  v. 
Sonneborn,  98  U.  S.  187,  195,  25  L. 
Ed.  116.  In  determining  the  ques- 
tion of  probable  cause — the  most 
vital  point  in  the  case — it  is  mani- 
fest that  the  jury  would  be  very 
likely  to  give  great  weight  to  the 
failure  of  the  defendants'  suits 
against  the  plaintiff,  and  therefore 


that  the  defendants  were  entitled  to 
and  should  have  received  the  bene- 
fit of  the  instruction  requested. 
Not  only  was  this  denied  them, 
but  the  jury  were  left  wholly  un- 
instructed  on  this  point,  and  free 
to  draw  such  inferences  as  to  them 
might  seem  proper,  and  which 
could  not  well  be  otherwise  than 
highly  prejudicial  to  the  defend- 
ants." 

21— Vandiver  &  Co.  v.  Waller, 
143    Ala.    411,    39    So.    140. 

The  court  said  "it  is  true  that 
it  is  not  permissible  for  a  party 
to  testify  directly  as  to  the  exist- 
ence or  not  of  malice.  Malice  as  a 
motive  which  inspires  the  action 
of  a  person,  when  necessary  to 
be  shown,  must  be  gathered  from 
a  consideration  of  all  the  evi- 
dence in  the  case  bearing  upon 
the  inquiry.  Four  letters  written 
by  Vandiver  &  Co.  were  offered 
in  evidence — two  of  them  by  the 
plaintiff  and  two  by  the  defend- 
ant— which  the  appellants  insist 
shed  light  upon  the  question  of 
malice.  It  is  insisted  by  appel- 
lants that  the  charge  given  at 
the  request  of  the  plaintiff  pro- 
hibited the  jury  from  considering 
either  of  the  letters  on  the  ques- 
tion of  malice.     We  do  not  so  con- 


§  1270.]  MALICIOUS  PROSECUTION.  843 

§  1270.  Prosecution  for  Purpose  of  Collecting  Private  Debt  Is 
Abuse  of  Process — Would  Also  Be  Conclusive  Evidence  of  Malice, 
(a)  The  jury  are  instructed,  as  a  matter  of  law,  that  the  com- 
mencement of  a  criminal  prosecution,  simply  for  the  purpose  of  col- 
lecting a  debt  or  private  claim,  is  an  abuse  of  the  process  of  the 
court,  and  would  be  conclusive  evidence  of  malice  on  the  part  of  the 
person  commencing  such  proceeding,  and  in  such  case  the  advice 
of  counsel  would  be  no  protection.  Whether  in  this  case  the  proceed- 
ings were  commenced  against  the  plaintiff  with  a  bona  fide  intention 
of  prosecuting  a  supposed  criminal  offense  or  merely  for  the  purpose 
of  securing  a  private  claim,  are  questions  to  be  determined  by  the 
jury,  from  the  evidence.22 

(b)  If  the  criminal  prosecution  was  commenced  for  the  purpose 
of  collecting  a  debt  due  defendant  from  plaintiff,  or  for  the  purpose 
of  punishing  plaintiff  for  not  paying  said  debt,  and  not  for  the 
purpose  of  vindicating  the  law  and  punishing  crime,  then  from  such 
facts  you  will  be  justified  in  finding  that  said  criminal  prosecution 
was  commenced  by  defendant  from  malicious  motives.23 

(c)  The  court  instructs  the  jury  that  if  the  defendant  knew  that 
his  only  remedy  was  in  a  civil  action,  and  willfully  or  recklessly 
commenced  the  criminal  prosecutions,  this  would  show  malice, 
although  the  defendant  was  in  fact  entitled  to  the  possession  of  the 
premises;   and  malice   would   especially  be   shown  if  the   defendant 

had  in  fact  authorized  to  lease  the  premises  upon  the 

terms  upon  which  it  was  leased  by  the  latter,  but,  by  reason  of  having 
got  a  better  offer  on  the  land,  instituted  the  criminal  prosecutions 
for  the  purpose  of  forcing  the  plaintiff  to  abandon  the  land  in 
question.24 

strue  the  charge.  It  may  be  that  think  otherwise.  Appellant  also 
the  charge  was  misleading-  in  this  complains  of  that  part  of  the  in- 
respect,  but,  as  we  have  repeated-  struction  to  the  effect  that  if  de- 
ly  said  in  this  opinion,  the  fact  fendant  knew  that  his  remedy  was 
that  a  charge  has  a  misleading  in  a  civil  action,  this  would  show 
tendency  will  not  render  the  giv-  malice  in  commencing  the  crim- 
ing of  it  error  unless  it  clearly  inal  prosecutions.  It  is  insisted 
appears  that  the  jury  were  misled  that  his  remedy  was  not  a  civil 
by  it  to  the  prejudice  of  the  party  action;  but,  be  that  as  it  may, 
against  whom  it  was  given.  "We  one  or  more  of  the  counsel  whom 
cannot  say  that  the  jury  was  mis-  he  consulted  so  advised  him,  and 
led  to  the  prejudice  of  the  de-  the  inquiry  is  as  to  the  knowledge 
fendants  by  the  charge.  The  de-  under  which  he  acted.  It  is  claimed 
fendants,  by  asking  an  explana-  that  the  court  erred  in  saying  that 
tory  charge,  could  have  protected  there  could  be  malice  in  bringing 
themselves  from  the  supposed  mis-  the  prosecutions,  'although  the  de- 
leading   tendencies   of  the  charge."  fendant  was  in  fact  entitled  to  the 

22— Livingston    v.    Burroughs,    33  possession  of  the  premises.'    Taken 

Mich.   511.  alone    this     might    be     error,     but 

23— Clark    v.     Forlkers,     1     Neb.  taken   in   its    connection    it   is   not. 

(Unof.)    96,    95   N.    W.    328    (329).  It    was    bringing    the    prosecutions 

24— Noble  v.  "White,  103  Iowa  352,  knowing  that  his  only  remedy  was 

72  N.  W.  556  (558).  in  a  civil  action  that  shows  malice, 

"Appellant    contends    that    there  even  if  he  was  entitled  to  posses- 
is    no    evidence    that    there    was   a  sion." 
better   offer   on    the    land,    but    we 


844  FORMS  OF  INSTRUCTIONS.  [§  1271. 

§  1271.  The  Jury  May,  But  Need  Not  Necessarily  Infer  Malice 
From  Want  of  Probable  Cause,  (a)  The  jury  are  instructed,  that 
while  the  law  is,  that  they  may  infer  malice  from  the  want  of 
probable  cause  for  the  institution  of  the  criminal  prosecution  against 
the  plaintiff,  if  they  believe,  from  the  evidence,  that  such  prosecution 
was  commenced  without  probable  cause,  still,  the  jury  are  not  bound 
to  infer  malice  from  that  fact.  The  law  is,  that  malice  may  be,  but 
it  is  not  necessarily,  inferred  from  want  of  probable  cause  for  the 
commencement  of  a  criminal  prosecution.25 

(b)  The  court  instructs  the  jury,  that  if  they  believe,  from  the 
facts  and  circumstances  proved  on  this  trial,  that  defendant  had 
not  probable  cause  for  prosecuting  the  plaintiff,  and  that  he  did 
prosecute  him,  as  charged  in  the  declaration,  then  the  jury  may 
infer  malice  from  such  want  of  probable  cause.26 

(c)  If  you  believe,  from  the  facts  and  circumstances  as  given 
in  evidence,  that  the  defendant  had  not  probable  cause  for  the  arrest 
and  imprisonment  of  the  plaintiff,  then  and  in  such  case  you  may 
infer  malice  from  such  want  of  probable  cause.27 

§  1272.  Want  of  Probable  Cause  Cannot  Be  Inferred  from  Proof 
of  Malice,  But  May  Be  Considered— May  Also  Consider  Delay  in 
Commencing  Prosecution,  (a)  Though  probable  cause  cannot  be  in- 
ferred from  malice,  yet  in  determining  whether  there  was  or  was  not 
probable  cause,  the  fact  that  there  was  ill  will  or  malice  may  be  con- 
sidered. 

(b)  The  jury  may  consider,  as  tending  to  support  the  action, 
delay  in  commencing  the  prosecution  after  the  alleged  commission 
of  the  offense,  and  in  bringing  said  prosecution  to  a  trial  after  it 
was  commenced.28 

(c)  The  court  instructs  the  jury,  that  in  order  to  sustain  the 
action  for  malicious  prosecution,  it  must  be  proved,  by  a  preponder- 
ance of  the  evidence,  that  the  prosecution  complained  of  was  made 
with  malice,  and  also  without  probable  cause;  and  if  both  these 
requisites  are  not  so  proved,  the  jury  should  find  for  the  defendant.20 

(d)  The  court  instructs  the  jury,  that  want  of  probable  cause, 
though  negative  in  its  character,  must  be  shown  by  the  plaintiff,  by 

25— Panket    v.    Livermore,    5    la.  27— Roy    v.    Goings,    112    111.    662; 

277;    Smith   v.    Howard,    28    la.    51;  Merrell  v.  Dudley,  139  N.  C.  57,  51 

Lunsford    v.    Dietrich,    86    Ala.    250  S.   E.  777. 

(253),    5    So.    461,    11    Am.    St.    Rep.  28— Evansville  &  T.  H.  R.  Co.  v. 

37;    Cooley   on  Torts    (3d   Ed.),   337.  Ta]bot>   131  ind.   221,  29   N.   E.   1134 

26— Cooley  on  Torts   (3d  Ed.)  337;  (1135) 
Ewing    v.     Sanford,     19    Ala.     605; 

Harkrader   v.    Moore,    44    Cal.    144;  29— Cooley     on     Torts     (3d     Ed.), 

Pankett    v     Livermore,    5    Clarke  335;      LegaTlee     v.      Blaisdell,      134 

(la)    277-    Krug    v     Ward     77    HI.  Mass.    473;     Casperson    v.    Sproule, 

603;    Holliday    v.    Sterling,'  62    Mo.  39    Mo.     39;     Center    v.     Spring,    2 

321-      Carson      v.      Edgeworth,      43  Clarke    (la.)    393;    Heyne   v.    Blair, 

Mich     241     5  N.   W.   282;    Wertheim  62   N.   T.   19;   Skidmore  v.   Bricker, 

v.    Altsch'uler,    12    Nebf  591,    12    N.  77  111.   164. 
W.  107. 


§  1273.]  MALICIOUS  PROSECUTION.  845 

affirmative  evidence,  and  the  jury  have  no  right  to  infer  it  from 
any  degree  of  malice  which  may  be  proved.30 

§  1273.  Not  Necessary  that  a  Crime  Should  Have  Been  Committed. 
The  court  instructs  the  jury,  that  to  justify  an  arrest  on  a  criminal 
charge,  it  is  not  required  that  a  crime  shall  in  fact  have  been  com- 
mitted. If  the  facts  which  come  to  a  person's  knowledge  are  such 
as  to  create  a  belief  that  a  crime  had  been  committed  by  the  person 
charged,  in  the  mind  of  an  impartial,  reasonable  man,  this  would 
be  sufficient  to  constitute  probable  cause  for  making  an  arrest, 
although  no  crime  had  in  fact  been  committed.31 

§  1274.  The  Prosecution  Must  Be  Ended.  The  jury  are  instructed, 
that  in  order  to  maintain  an  action  for  malicious  prosecution,  it  must 
appear,  from  the  evidence,  that  the  alleged  malicious  prosecution  has 
been  legally  terminated.  Striking  the  case  from  the  docket,  on 
motion  of  state's  attorney,  with  leave  to  reinstate  the  same,  is  not 
a  legal  termination  of  the  prosecution.32 

§  1275.  Acquittal  Before  Justice  of  the  Peace — No  Indictment  by 
Grand  Jury,  (a)  The  court  instructs  the  jury  that  the  fact  that 
the  grand  jury  ignored  the  information,  and  that  defendant  was 
acquitted  before  the  justice  of  the  peace,  is  no  evidence  of  want  of 
probable  cause,  but  the '  testimony  on  this  point  is  only  admitted 
to  show  that  the  prosecutions  in  question  have  ended.33 

(b)  That  the  fact  that  the  plaintiff  was  discharged  by  the  justice 
of  the  peace  before  whom  he  was  brought,  upon  the  charge  made 
against  him,  is  not  such  evidence  of  a  want  of  probable  cause  as 
will  alone  sustain  an  action  for  a  malicious  prosecution.34 

§  1276.  Person  Beginning  Criminal  Prosecution  Must  Exercise 
Care  of  an  Ordinarily  Prudent  Man.  (a)  The  jury  are  instructed 
that  it  does  not  depend  upon  whether  or  not  the  person  so  prosecuted 
was  actually  guilty  of  the  crime,  but  whether  or  not  an  ordinarily 
prudent  and  careful  man  under  the  facts  as  they  appeared  to  him  in 
the  exercise  of  reasonable  care  to  ascertain  the  facts,  or  from  the 
knowledge  or  honest  belief  of  the  facts  then  had,  would  be  justified 
in  the  honest  belief  that  a  crime  had  been  committed,  and  the  person 
accused  was  guilty  of  such  crime. 

(b)  The  jury  are  instructed  that  if  the  defendant  in  bringing 
the  prosecution  did  not  use  the  means  which  an  ordinarily  careful 
and  prudent  man  would  exercise  under  like  conditions  to  ascertain 

30— Brown   v.    Smith,    83    111.    291;  Cardinal   v.    Smith,    109    Mass.   159; 

Boyd  v.   Cross,  35  Md.  194;   Cottrell  Leever    v.     Hammill,    57    Ind.    423; 

v.  Richmond,  5  Mo.  App.  588;  Lav-  Lamprey   v.    Hood    &    Sons,    73    N. 

ender     v.     Hodgins,     23     Ark.     763;  H.    384,   62  Atl.    380. 

Smith   v.    Zent,    59   Ind.   362;    Evens  33— Noble  v.  White,  103  Iowa  352 

v.  Thompson,  12  Heisk.   534.  72    N.    W.    556    (558). 

31— Flicking-er      v.      Wagner,      46  34— Thorpe     v.     Balliett,     25     111. 

Ind.  580.  339;   Scott  v.  Dewey,  23  Pa.   Super. 

32— Blalock     v.     Randall,     76     111.  Ct.    396. 
224;   Clark  v.  Cleveland,  6  Hill  344; 


846  FORMS  OF  INSTRUCTIONS.  [§  1277. 

the  facts  connecting  the  plaintiff  with  the  crime  alleged  to  have  been 
committed,  and  if  you  find  from  the  facts  and  circumstances  as  they, 
at  the  time,  were  known  or  appeared  to  the  defendant  that  he  was 
not  justified  in  believing  that  the  plaintiff  had  committed  the  crime 
for  which  he  was  afterwards  arrested,  then  such  proceedings  would 
have  been  commenced  without  probable  cause.35 

§  1277.  Collusion  and  Conspiracy  to  Incarcerate  Plaintiff — Dam- 
ages. The  burden  of  proof  is  upon  the  plaintiff  to  satisfy  your 
minds  by  a  preponderance  of  evidence  that  the  defendants  wrongfully 
conspired  and  colluded  with  each  other  to  have  the  plaintiff  incarcer- 
ated in  the  lunatic  asylum,  unlawfully  and  against  her  will,  each 
defendant  acting  his  part  maliciously,  wantonly,  and  out  of  a  spirit 
of  reckless  disregard  for  the  rights  and  liberties  of  the  plaintiff,  and 
with  intent  to  injure  the  plaintiff  in  her  reputation  and  character 
and  standing  before  the  people,  and  that  she  was  in  fact  thereby 
damaged;  and  that,  if  the  evidence  fails  to  satisfy  your  minds,  you 
should  find  for  the  defendants  upon  this  allegation  in  the  declara- 
tion; but  that  it  should  not  of  itself  bar  recovery  for  actual  damages, 
if  the  jury  should  believe  from  the  evidence  that  the  plaintiff  is 
entitled  to  recover  actual  damages.36 

§  1278.  Maliciously  Swearing  Out  Search  Warrant.  If  the  jury 
believe  from  the  evidence  that  the  defendant  caused  or  procured 
the  premises  of  the  plaintiffs  in  question  to  be  searched  and  that 
such  search  was  unreasonable,  malicious,  and  made  without  probable 
cause,  then  the  jury  will  find  the  defendant  guilty.37 

§  1279.  Advice  of  Counsel,  (a)  There  is  evidence  tending  to 
show  that  F.  acted  as  attorney  for  the  defendant  in  the  proceed- 
ings before  B.  Of  course,  the  defendant  is  liable  if  he  either  com- 
menced these  prosecutions  himself  or  authorized  and  directed  his 
attorney  to  do  so,  if  in  other  respects  the  cause  of  action  stated  in 
the  complaint  is  proved.  Now,  even  if  the  signature  to  this  com- 
plaint is  not  defendant's,  yet  if  the  defendant  was  there  counseling 
and  advising  the  prosecution  of  the  plaintiff,  and  taking  part  in 
maintaining  the  prosecution,  he  would  be  just  as  liable  as  if  he 
signed  the  complaint.  However,  you  may  consider  the  question 
whether  he  signed  the  complaint,  and  what  he  supposed  as  to  the 

35 — "Walker    v.     Camp,     63     Iowa  ard  of  action  for  the  governing-  of 

630,    19    N.    W.    802;    Flam   v.    Lee,  one    who    is    about    to    institute    a 

116   Iowa  289,   90   N.   W.   70   (73),   93  prosecution      which      if      not      well 

Am.   St.  Rep.  242.  founded,     may     work     incalculable 

"It  is  said  that  the  language  im-  injustice    to    an    innocent    person, 

poses    too    high    a    degree    of    care  The    rule    announced    by   these   in- 

upon   a   person   beginning   a   crim-  structions    we    regard    as    in    har- 

inal     prosecution.      We     think    the  mony     with     the     well     established 

criticism    is   not   well   founded.     All  principles    in    reference    to    actions 

that    is    required    of    an    informant  for    malicious    prosecution." 

in  criminal  proceedings  by  this  in-  36 — Bacon     v.      Bacon,     76     Miss, 

struction    is   that   he   shall   exercise  458,    24    So.    968    (970). 

the   care   of  an   ordinarily  prudent  37 — Spingold     v.     Tigner,     82     I1L 

man.    This  is,  not  too  high  a  stand-  App.   337    (338). 


§  1279.]  MALICIOUS  PROSECUTION.  847 

nature  of  the   proceedings,  whether  they  were   tort  or  criminal    in 
their  nature,  as  bearing  on  the  question  of  malice.38 

(b)  If  a  party  about  to  commence  a  criminal  prosecution  com- 
municates to  the  state's  attorney  all  the  material  facts  affecting 
the  question  of  the  guilt  of  the  party  about  to  be  accused,  which 
are  known  to  him,  or  of  which  he  had  notice,  and  then  acts  upon  his 
advice,  the  presumption  of  malice  is  rebutted,  and  an  action  against 
him  for  malicious  prosecution  will  fail.39 

(c)  If  you  believe,  from  the  evidence,  that  the  defendants  insti- 
tuted the  criminal  prosecution  from  a  fixed  determination  of  their 
own,  rather  than  from  the  opinions  of  legal  counsel,  or  that  a  full, 
fair  and  true  statement  of  all  the  facts  known  to  them  was  not  sub- 
mitted to  the  counsel,  then,  in  either  case,  the  opinion  given  by  the 
counsel  is  no  defense  in  this  action,  if  you  believe,  from  the  evidence, 
that  the  criminal  charge  was  false,  and  made  without  probable  cause. 
Before  the  defendant  can  shield  himself  by  the  advice  of  counsel, 
it  must  appear,  from  the  evidence,  that  he  made,  in  good  faith,  a  full, 
fair  and  honest  statement  of  all  the  material  circumstances  bearing 
upon  the  supposed  guilt  of  the  plaintiff  which  were  within  the 
knowledge  of  the  defendant,  or  which  the  defendant  could,  by  the 
exercise  of  ordinaiy  care,  have  obtained,  to  a  respectable  attorney 
in  good  standing,  and  that  the  defendant  in  good  faith  acted  upon 
the  advice  of  said  attorney  in  instituting  and  carrying  on  the  prosecu- 
tion against  the  plaintiff.40 

(d)  The  court  instructs  the  jury,  that  whether  or  not  the  defend- 
ant did,  before  instituting  the  criminal  proceedings,  make  a  full,  fair 
and  honest  disclosure  to  the  attorney  of  all  the  material  facts  bear- 
ing upon  the  guilt  of  the  plaintiff,  of  which  he  had  knowledge,  and 
which  he  could  have  ascertained  by  reasonable  diligence,  and 
whether,  in  commencing  such  proceedings,  the  defendant  was  acting 
in  good  faith  upon  the  advice  of  his  counsel,  are  questions  of  fact 
to  be  determined  by  the  jury,  from  all  the  evidence  and  circumstances 
proved  in  the  case.  And  if  the  jury  believe,  from  the  evidence,  that 
the  defendant  did  not  make  a  full,  fair  and  honest  disclosure  of  all 
such  facts  to  his  counsel,  then  such  advice  can  avail  him  nothing 
in  this  suit.41 

(e)  The  court  instructs  the  jury,  as  a  matter  of  law,  that  when 
a  party  communicates  to  counsel  in  good  standing  all  the  facts 
bearing  upon  the  guilt  of  the  accused,  of  which  he  has  knowledge, 
or  could  have  ascertained  by  reasonable  diligence,  and  in  good  faith 

38— Eggert  v.  Allen,  119  Wis.  625,  40— Roy    v.    Goings,    112    111.    663; 

96  N.   W.    803    (806).  Logan  v.  Wavtag,  57  la.  107,  10  N. 

39— Calef   v.    Thomas.   81    111.    478;  W.    311:    Porter    v.    "Knight.    63    la. 

Andersen     v.     Frind,     71     111.     475;  365,  19  N.  W.   282;   Cooper  v.  Flem- 

MrCarthy  v.    Kitchen.    59   Ind.    500;  ming,   114  Tenn.  40,   84   R.   W.    801. 

Johnson  v.  Miller,  69  la.   562,   29  N.  41 — Roy    v.    Goings,    112    111.    663: 

"W.  743;    Smith   v.   Austin,   49  Mich.  Abel  v.   Downey,   110  111    Add    343. 
286,  13  N.   W.   593. 


848  FORMS  OP  INSTRUCTIONS.  [§  1280. 

acts  upon  the  advice  of  such  counsel  in  prosecuting  the  party  accused, 
he  cannot  be  held  responsible  for  malicious  prosecution.42 

§  1280.  Full  Statement  of  Facts  to  Counsel,  (a)  The  court  in- 
structs the  jury  that  the  advice  of  counsel,  to  be  of  any  avail  to 
the  defendant,  must  be  given  upon  a  full,  fair  and  honest  statement 
of  all  the  facts  known  to  the  defendant,  and  must  be  honestly  given 
by  the  attorney,  or  to  be  so  understood  by  the  defendant.  If  the 
defendant  made  false  statements  of  the  material  facts  to  his  attor- 
ney, or  withheld  material  facts  which  were  favorable  to  the  plain- 
tiff, then  the  advice  of  counsel  would  be  of  no  avail  to  him  in  this 
action.  If  the  attorney  who  advised  the  defendant  to  cause  the 
arrest  had  an  agreement  or  understanding  with  the  defendant  that 
the  defendant  could  rely  on  the  advice  of  counsel  as  a  defense,  and 
the  defendant  for  that  reason  made  the  complaint,  then  the  advice 
of  counsel  would  be  of  no  avail. 

(b)  The  court  instructs  the  jury  that  in  order  to  show  probable 
cause  for  the  arrest  of  the  plaintiff,  the  defendant,  ,  is  re- 
quired to  show  his  sincere  belief  that  the  plaintiff  was  guilty  of  the 
charge  made,  and  such  belief  must  be  based  upon  such  facts  as  would 
justify  such  a  belief  in  the  mind  of  a  reasonable  man.  The  discharge 
of  the  plaintiff  by  the  examining  magistrate  is  prima  facie  evidence 
of  the  want  of  probable  cause,  sufficient  to  throw  upon  the  defendant 
the  burden  of  proving  the  contrary.  In  this  case  it  is  not  shown  by 
the  evidence  that  the  defendant  made  any  statement  of  the  facts  and 
circumstances  connecting  the  plaintiff  with  the  crime  charged  against 
him,  but  it  appears  that  the  defendant  was  present  at  the  examina- 
tion of  the  witnesses  before  Justice  S.  on  a  complaint  against  M., 
in  connection  with  the  district  attorney,  and  that  the  defendant  with 
the  district  attorney  were  both  present  when  statements  were  made 
by  R.  as  to  the  purchase  of  Paris  green  by  the  plaintiff,  and 
perhaps  other  statements  made  by  other  parties.  It  is  for  you 
to  determine  from  the  evidence  whether  any  other  statement  was 
made  in  regard  to  the  connection  of  the  plaintiff  with  this  crime 
in  the  presence  of  the  defendant  and  the  district  attorney.  If  the 
evidence  given  before  Justice  S.  and  the  statements  made  by  R.  or 
other  persons  at  the  conclusion  of  such  examination  in  the  presence 
of  the  defendant  and  the  district  attorney  would  lead  a  cautious, 
reasonable,  and  prudent  man,  under  similar  circumstances,  to  hon- 
estly believe  that  the  plaintiff  was  guilty  of  the  offense  charged 
against  him  in  the  complaint,  and  upon  such  evidence  and  state- 
ments the  defendant  was  advised  by  the  district  attorney,  in  his 
official  capacity,  that  there  was  good  ground  for  making  the  com- 
plaint against  the  plaintiff  for  the  offense  charged,  and,  in  pursuance 

42— Josselyn      v.      McAllister,      22  low.  20  Ohio  119;  "Walter  v.  Sample, 

Mich.    300;    Brinsley   v.    Schulz,   124  25  Pa.   St.   275;    Sharpe  v.   Johnson, 

Wis.  426,   102    N.  W.   918;   Andersen  59   Mo.    557;    Acton   v.    Coffman,    74 

v.    Frind,   71   111.   475;    Ash  v.   Mar-  la.  17,  36  N.  W.  774. 


§  1280.] 


MALICIOUS  PROSECUTION. 


849 


thereof,  the  defendant  made  this  complaint,  then  the  defendant  is 
not  liable.43 

If  you  believe  from  the  evidence  that  the  prosecution  against  the 
plaintiff  B.,  was  instituted  or  participated  in  by  the  defendants,  or 
any  of  them,  and  that  the  said  prosecution  was  without  probable 
cause,  and  not  for  motives  affecting  public  interest,  but  for  the 
purpose  of  defeating  the  claim,  if  any,  which  the  said  B.  had  or 

might  have  had  upon  the  policy  of  insurance  issued  by  the  

Company  upon  the  property  belonging  to  the  plaintiff  which  was 
consumed  by  fire,  then  you  will  find  for  the  plaintiff  against  such 
of  the  defendants  as  you  believe  from  the  evidence  participated  in 
said  prosecution  or  ratified  the  same,  unless  you  find,  under  the 
instructions  hereinafter  given  you,  that  said  M.  made  a  full  and 
fair  statement  of  all  the  facts  within  his  knowledge  concerning  said 
fire  to  the  county  attorney  of  K.  county,  and  that  he  advised  or 
required  the  prosecution.44 


43— Messman  v.  Ihlenfeldt,  89 
Wis.   585,   62  N.  W.   522    (523). 

44 — Brady  v.  Georgia  H.  Ins.  Co., 
24  Tex.  Civ.  App.  464,  59  S.  W. 
914    (915). 

The  comment  of  the  court  fol- 
lows: "It  may  be  said  in  this 
connection  that  in  order  to  re- 
cover in  a  suit  of  this  character 
the  plaintiff  must  establish  the 
concurrence  of  the  following  facts: 
First,  that  a  criminal  prosecution 
was  instituted  without  probable 
cause  therefor;  second,  that  the 
motive  in  instituting  it  was 
malicious;  and,  third,  that  the 
prosecution  has  terminated  in  the 
acquittal  or  discharge  of  the  ac- 
cused. If  it  be  shown  that  a 
criminal  proceeding  was  instituted, 
but  upon  probable  cause,  it  would 
not  matter  what  may  have  been 
the  underlying  motive  that  caused 
action  upon  the  part  of  the  prose- 
cutor. The  motive  may  be  of  the 
basest  character,  and  yet  it  can- 
not be  made  the  foundation  of  an 
action,  unless  it  be  shown  that  no 
probable  cause  existed  for  the 
prosecution.  As  said  by  the  court 
in  the  case  of  Griffin  v  Chubb, 
7  Tex.  603:  *To  maintain  the  ac- 
tion it  was  incumbent  on  the 
plaintiff  to  prove  both  the  want  of 
probable  cause  and  malice. 
Neither  alone  is,  in  general,  suf- 
ficient.' The  question  in  cases  of 
tort  is  whether  or  not  the  .com- 
plaining party  has  suffered  a  legal 
wrong  at  the  hanrls  of  the  defend- 
ant, and  the  good  or  bad  motive 
back  of  the  action  cannot  make  a 
right  action  wrong,  or  a  wrong  ac- 
54 


tion  right,  in  the  eyes  of  the  law. 
As  said  by  Cooley  in  his  work  on 
Torts  (page  832):  'Malicious  mo- 
tives make  a  bad  act  worse,  but 
they  cannot  make  that  a  wrong 
which  in  its  own  essence  is  law- 
ful.' To  apply  it  to  this  case,  if 
M.  acted  upon  probable  cause  in 
making  the  affidavit  against  B., 
appellees  are  not  liable,  no  mat- 
ter if  the  object  of  the  prosecu- 
tion was  to  defeat  payment  of  the 
insurance  money.  Citizens  should 
be  encouraged  in  enforcing  the 
laws  of  the  country,  and  should 
not  be  _  deterred  from  attempting 
to  punish  one  whom  they  have 
probable  cause  to  believe  to  be 
guilty,  although  their  activity 
may  be  the  outcome  of  sinister 
motives.  It  is  the  rule,  it  is  true, 
that,  to  justify  a  prosecution  on 
the  ground  that  it  was  advised 
by  an  attorney,  a  statement  of 
all  the  facts  known  to  the  prose- 
cutor must  be  made  in  good  faith, 
which  would  seem  to  contain  the 
idea  that  motive  might  be  of 
conseouence  in  cases  of  malicious 
prosecution;  but  the  matter  of 
good  faith  refers,  not  to  the  ob- 
ject of  the  prosecution,  but  to  the 
honest  desire  of  the  prosecutor  to 
ascertain  if  the  facts  stated  make 
out  a  case  against  the  accused. 
'It  is  to  be  presumed  that  the 
county  attorney  would  not  be  in- 
fluenced by  any  private  spite  or 
interest  of  the  complainant,  and 
that  no  citizen  would  be  prose- 
cuted by  the  pubiic  prosecutor, 
except  upon  what  the  office  be- 
lieved to  be  reasonable  ground  for 


850  FORMS  OF  INSTRUCTIONS.  [§  1281. 

§  1281.  Presumption  from  Good  Character.  If  the  jury  believe, 
from  the  evidence,  that  the  plaintiff,  up  to  the  time  of  his  arrest, 
uniformly  bore  a  good  reputation  for  honesty  and  integrity,  and 
that  defendant  knew  his  reputation  to  be  such  up  to  the  time  of  his 
arrest,  then  that  fact  is  a  proper  one  to  be  considered  by  the  jury, 
in  connection  with  all  the  other  evidence  in  the  ease,  in  determining 
whether  or  not  defendant  had  px*obable  cause  to  believe,  and  did 
believe,  in  good  faith,  that  the  plaintiff  was  guilty  of  the  crime 
charged  against  him.45 

§  1282.  Burden  of  Proof  on  the  Plaintiff,  (a)  The  jury  are  in- 
structed, that  to  warrant  a  conviction  in  this  ease,  the  plaintiff  must 
not  only  prove  malice,  but  he  must  also  show  that  there  was  no 
probable  cause  for  the  prosecution  in  question;  and  the  defendant  is 
not  bound  to  prove  probable  cause  unless  the  plaintiff  has  introduced 
some  evidence  tending  to  show  the  absence  of  it.  And  though  the 
jury  may  believe,  from  the  evidence,  that  the  plaintiff  has  shown 
malice  on  the  part  of  the  defendant,  in  causing  the  criminal  prosecu- 
tion in  question  to  be  commenced,  still,  if  the  jury  further  believe 
that  the  plaintiff  has  failed  to  show,  by  a  preponderance  of  evidence, 
the  want  of  probable  cause,  then  the  jury  should  find  for  the 
defendant.46 

(b)  In  an  action  for  malicious  prosecution,  the  burden  of  proof 
is  on  the  plaintiff  to  show  that  the  defendant  acted  maliciously,  and 
without  any  reasonable  or  probable  cause.47 

§  1283.  Action  for  Malicious  Prosecution — Admissions  or  Con- 
fessions of  One  Not  Evidence  Against  Other  Defendants  to  Prove 
Conspiracy,  (a)  Any  statements,  declarations,  admissions,  or  con- 
fessions that  may  have  been  made  by  X.  in  the  absence  of  Y.  and  Z., 
since  the  termination  of  the  prosecution  of ,  cannot  be  con- 
sidered by  you  as  against  Y.  and  Z. 

(b)     The  alleged  statements  made  by  X.  in  the  absence  of  Y.  and  Z., 

since  the   termination   of  the   prosecution  against  ,   to   the 

effect  that  he  had  been  induced  by  Y.  and  Z.,  or  either  or  them,  to 

such  proceeding1.  It  is,  therefore,  termined  that  there  was  probable 
evident  that,  if  the  state  has  se-  cause  for  the  prosecution;  and  con- 
lected  a  proper  officer  to  represent  sequently  the  court  did  not  err  in 
it,  no  malice  of  the  informant  can  submitting-  that  issue  to  the  jury, 
influence  the  prosecution,  unless  it  even  though  such  charge  had  not 
be  to  suppress  a  part  of  the  facts,  been  also  asked  by  the  appellant." 
or  to  state  that  which  was  not  45 — Woodworth  v.  Mills,  61  Wis. 
true,  in  which  event,  if  knowingly  44,  20  N.  W.  728. 
done,  he  would  not  be  protected  46 — Cooley  on  Torts  (3d  Ed.), 
from  punishment  by  having  se-  334-337;  1  Hill,  on  Torts  416;  Bur- 
cured  the  advice  of  the  prosecut-  ton  v.  St.  Paul,  M.  &  M.  Ry.  Co., 
ing  attorney.'  There  was  evidence  33  Minn.  189,  22  N.  W.  300;  Dwain 
tending  to  show  that  M.  acted  in  v.  Descalso,  66  Cal.  415,  5  Pac.  903. 
good  faith,  and  fairly  and  hon-  47— Calef  v.  Thomas,  81  111.  478; 
estly  communicated  all  the  facts  Fleckinger  v.  "Wagner,  46  Md.  580; 
known  to  him  to  the  county  at-  Brennan  v.  Tracy,  2  Mo.  App.  540. 
torney,     and    that    the    latter    de- 


§  1284.] 


MALICIOUS  PROSECUTION. 


851 


testify  falsely  on  the 
against  Y.  and  Z.4S 


trial,  cannot  be  considered  by  you  as 


§  1284.  Malicious  Prosecution — Elements  of — Series,  (a)  In  an 
action  of  this  character,  gentlemen,  malice  is  the  principal  element. 
The  ground  of  the  complaint  is  an  alleged  malicious  prosecution, 
and  such  an  action  may  be  brought  to  recover  damages  sustained 
by  the  plaintiff  by  the  reason  of  his  having  been  prosecuted  for 
some  crime  or  offense  by  a  defendant  or  at  the  instance  of  the 
defendant,  from  malicious  motives  and  without  probable  cause.  There 
are  three  essentials  which  must  concur  before  a  malicious  prosecu- 
tion can  be  successfully  maintained,  and  I  ask  your  close  attention 
to  these  three,  that  you  may  apply  them  as  tests  to  the  evidence  in 
this  case,  and  decide  whether  or  not  the  plaintiff  has  made  out  his 
case;  and  upon  all  three  the  burden  of  proof  is  upon  the  plaintiff  to 
establish  each  of  the  three  and  all  three,  by  the  preponderance  of 
the  testimony,  so  that  the  jury  will  be  satisfied  that  each  of  the 
three  has  been  proved:  First,  it  must  be  affirmatively  shown  that 
the  plaintiff  was  prosecuted  through  malicious  motives;  second,  that 
the  prosecution  was  without  probable  cause;  and  third,  that  the 
prosecution  had  ended,  either  by  an  acquittal  or  by  a  judgment  in  the 
plaintiff's  favor,  before  the  commencement  of  the  action  for  damages, 
or  that  the  prosecution  had  been  abandoned,  and  the  cause  dismissed 


48— Roberts     v.     Kendall,     3    Ind. 
App.    339,    29    N.    E.    487. 

"The  court  did  not  err  in  ad- 
mitting the  testimony  objected  to, 
for  it  was  competent  as  against 
X.  himself;  but  the  court  did  err 
in  refusing  to  give  the  above  in- 
structions asked  by  Y.  and  Z. 
...  It  is  settled  that  when  a 
conspiracy  is  once  established, 
and  until  the  consummation  of  the 
object  in  view,  if  the  conspiracy 
last  that  long,  every  act  and  dec- 
laration of  one  conspirator  in  pur- 
suance of  the  original  concerted 
plan,  and  in  reference  to  and  in 
furtherance  of  the  common  object,  . 
even  in  the  absence  of  others,  is 
in  contemplation  of  law  the  act 
and  declaration  of  all,  and  is 
therefore  original  evidence  against 
each.  All  are  deemed  to  assent  to 
or  commend  what  is  said  or  done 
by  anyone  in  furtherance  of  the 
common  project.  Ford  v.  State, 
112  Ind.  373.  14  N.  E.  241:  Moore 
v.  Shields.  121  Ind.  267.  23  N.  E. 
89.  But  the  existence  or  nature  of 
a  con=r|irn<-'v  cannot  be  estab- 
lished by  the  acts  or  declarations 
of  one  conspirator  in  the  absence 
of  the  others,  unless  the  acts  or 
declarations  were  in  themselves  in 
execution  or  for  the  promotion   of 


the  common  design.  Clawson  v. 
State,  14  Ohio  St.  234.  The  dec- 
larations which  are  admissible  are 
those  which  are  made  between  the 
beginning  and  ending  of  the  con- 
spiracy for  the  promotion  of  the 
common  criminal  or  evil  purpose. 
If  the  conspiracy  has  not  yet  been 
formed  or  if  it  has  ended  by  the 
consummation  of  the  wrongful  de- 
sign, admissions  or  narrations  of 
what  has  taken  place  are  not  ad- 
missible against  those  who  were 
not  present  when  the  admissions 
were  made.  This  rule  is  based 
upon  familiar  elementary  princi- 
ples of  the  law  and  sound  reason. 
Ford  v.  State,  supra;  Moore  v. 
Shields,  supra:  McKee  v.  State, 
111  Ind.  378,  12  N.  E.  510;  People 
v.  Parker.  67  Mich.  222,  34  N.  W. 
720.  11  Am.  St.  Rep.  57S;  Johnson 
v.  Miller,  63  Iowa  529,  17  N.  W.  34; 
State  v.  WeaA-er,  57  Iowa  730,  11 
N.  TV.  675:  Estes  v.  State,  23  Tex. 
App.  600,  5  S.  W.  176;  Armstead 
v.  State.  22  Tex.  App.  51,  2  S.  W. 
627:  3  Greenl.  Ev.  para.  94.  The 
indictment  and  conviction  of  the 
appellee  of  the  charge  of  arson 
was  the  object  of  the  conspiracy. 
This  failed,  and  the  conspiracy 
must  be  held  to  have  ceased  when 
the  object  to  be  accomplished 
failed." 


852  FORMS  OF  INSTRUCTIONS.  [§  1284. 

before  the  commencement  of  the  action  for  damages.  You  will  bear 
in  mind  that  the  burden  of  proof  is  upon  the  plaintiff  to  establish 
these  three  requisites  as  facts — not  merely  to  establish  one  of  them 
or  two  of  them,  but  all  three ;  and  should  he  fail  to  satisfy  the  jury 
as  to  one  of  them,  he  could  not  and  should  not  get  a  verdict,  and  the 
defendants  would  prevail.  It  is  important  therefore  that  the  jury 
should  clearly  understand  what  is  meant  by  " malice"  in  what  is 
called  a  "malicious  prosecution,"  and  also  to  know  what  is  meant 
by  "want  of  probable  cause"  and  to  have  a  clear  idea  of  what  is 
meant  in  law,  as  a  "termination  of  the  prosecution,"  or  an  "aban- 
donment of  the  prosecution ; ' '  and  I  shall  endeavor  to  make  these 
three  essential  requisites  clear  to  you. 

Malice  Defined,  (b)  First  then,  as  to  malice.  As  technically 
used  in  legal  definitions,  malice  is  by  no  means  the  same  as  malice 
spoken  of  in  common  conversation,  which  usually  means  simply  ill- 
will,  hatred,  animosity  or  some  similar  feeling.  A  man  may  prose- 
cute another  with  the  bitterest  animosity,  the  fiercest  hatred,  a  most 
violent  ill-will,  and  yet  be  entirely  free  from  the  malice  without 
which  there  can  be  no  malicious  prosecution,  because  malice  in  law 
is  not  simply  a  rancor  of  the  mind.  Envy,  hatred,  and  malice  are 
separate  and  distinct  passions,  and  the  worst  of  these  is  malice, 
because  it  is  a  deliberate  purpose  to  do  an  injury  to  some  person 
without  just  cause  or  excuse.  I  repeat  it:  Malice  in  law  is  the 
deliberate  purpose  to  injure  another  without  just  cause  or  excuse. 
It  means  the  willing  act  of  an  evil  mind — the  intention  to  wrong 
another  unjustly.  It  implies  the  making  up  of  the  mind  to  do  evil 
to  some  one.  Therefore  any  indirect  motive  of  wrong  is  a  malicious 
motive.  For  example,  if  one  sets  the  criminal  law  in  motion  against 
another,  not  for  the  purpose  of  bringing  that  other  to  justice  for 
the  violation  of  some  law,  but  for  the  purpose,  for  instance,  of 
aiding  the  prosecutor  to  collect  a  debt,  a  jury  might  well  consider 
that  that  was  evidence  of  a  malicious  motive,  because  the  criminal 
law  was  not  designed  to  aid  creditors  in  the  enforcement  or  payment 
of  debts;  and  he  who  sets  the  criminal  law  in  motion  for  such  a 
purpose  should  smart  for  it,  and  in  a  proper  case  would  be  made 
to  smai-t  for  it.  I  trust  you  clearly  understand  now  what  is  meant 
by  the  malice  which  must  be  present  as  the  motive  in  a  malicious 
prosecution.  That  malice  or  malicious  motive  must  be  proved  to 
the  satisfaction  of  the  jury  by  the  greater  weight  of  the  testimony. 
It  is  not  necessary  that  malice  be  expressly  shown, — for  instance  by 
proof  of  threats  or  the  like.  Malice  may  be  implied.  It  may  be 
inferred  from  circumstances.  For  example,  malice  may  be  in- 
ferred in  a  prosecution,  if  the  prosecution  is  one  without  probable 
cause.  If  the  jury  are  satisfied  from  the  testimony  that  the  prose- 
cution was  wholly  without  cause,  or  without  probable  cause,  that 
thev  may  infer,  and  justly  infer,  that  it  was  prompted  by  malice; 
that  would  be  a  presumption  or  inference;  being  merely  a  presump- 
tion may  be  removed  and  made  to  disappear  from  the  case  by  suffi- 


§1284.]  MALICIOUS  PROSECUTION.  853 

eient  and  competent  testimony  showing  that  even  without  probable 
cause  there  was  no  evil  intention,  no  deliberate  purpose  to  do  wrong, 
no  malice.  It  may  have  been  on  misinformation.  But  nothing  else 
appearing,  the  want  of  probable  cause  would  justify  an  inference 
of  malicious  intent,  malicious  motive.  It  is,  of  course,  impossible 
to  formulate  and  lay  down  any  general  rule,  any  rigid  test,  by  which 
the  question  of  what  constitutes  malice  in  a  prosecutor  may  be 
determined.  The  question  arises  in  each  case,  and  must  be  decided 
by  the  circumstances  in  each  individual  case ;  and  you  alone  can 
determine  from  the  testimony  in  this  case  whether  there  was  malice 
in  the  alleged  prosecution,  and  you  must  determine  that  according 
to  the  testimony  in  the  case.  You  alone  can  decide  whether  there 
was  or  was  not  malice  in  the  alleged  prosecution.  But  it  is  safe 
to  say,  and  I  so  charge  you,  that  the  facts  from  which  malice  is 
found,  the  evidence  by  which  malice  is  proved,  must  be  such  as  to 
satisfy  any  reasonable  man  that  the  prosecutor  had  no  ground  for 
the   prosecution   except   his   evil   desire   to   injure   the   accused. 

Probable  Cause  and  Want  of  Probable  Cause,  (c)  So  much  then 
for  malice.  We  now  come  to  the  second  requisite  in  a  malicious 
prosecution :  that  is  want  of  probable  cause.  And  I  charge  you 
that  probable  cause  is  such  a  state  of  facts  and  circumstances  pres- 
ent in  the  mind  of  the  prosecutor  at  the  time  of  issuing  warrant 
as  to  lead  a  man  of  ordinary  intelligence  and  caution  and  pi'udence, 
acting  conscientiously,  fairly  and  without  prejudice  upon  the  facts 
as  he  believes  them,  or  as  he  believes  he  knows  them,  to  believe 
the  person  accused  to  be  guilty.  Probable  cause  therefore  is  some- 
thing more  than  merely  ground  for  suspicion,  or  even  reasonable 
ground  for  suspicion.  In  addition  to  that  there  must  be  such  an 
appearance  of  facts  and  circumstances  as  would  warrant  and  justify 
a  man  of  ordinary  intelligence  and  caution  and  prudence  in  believing 
that  the  person  accused  was  guilty  of  the  offense  or  crime  charged. 
Probable  cause  I  would  say,  by  way  of  illustration,  is  the  measure 
of  proof  which  justifies  a  grand  jury  in  finding  a  true  bill.  That 
is  to  say,  the  existence,  or  the  seeming  existence  of  such  facts  and 
circumstances,  as,  nothing  else  appearing,  would  warrant  a  reason- 
able man  and  a  prudent  man,  in  believing  that  the  person  accused 
was  guilty  and  should  be  tried.  The  state  is  bound  to  furnish  a 
grand  jury  with  probable  cause,  before  that  jury  can  find  a  true 
bill  against  a  man.  It  does  not  mean  that  they  try  a  man  and  find 
him  guilty,  but  they  simply  say,  "If  this  evidence  be  true"  and 
only  one  side  is  heard,  the  state's  side, — "If  this  evidence  be  true, 
this  man  should  be  tried;  upon  these  facts,  he  must  be  guilty,  if 
they  be  true."  That  furnishes  probable  cause.  I  have  already  said 
that  the  want  of  probable  cause  is  an  essential  element  in  a  ma- 
licious prosecution,  and  the  plaintiff  therefore  is  bound  to  prove 
that  there  was  no  probable  cause  for  the  prosecution.  That  looks 
like  requiring  him  to  prove  a  negative,  which  is  supposed  to  be  in 
logic  a  very  difficult  thing  to  do.     It  is  almost  equivalent  to  asking 


854  FORMS  OF  INSTRUCTIONS.  [§  1284. 

a  plaintiff  to  prove  that  he  was  innocent  of  the  charge,  and  the  law 
does  not  usually  require  a  man  to  prove  his  innocence,  but  on  the 
civil  side  of  the  court,  when  he  alleges  that  he  has  been  prosecuted 
from  malicious  motives,  and  that  there  was  no  ground  for  the 
prosecution,  he  must  prove  that  there  was  a  want  of  probable  cause, — ■ 
that  the  prosecution  was  without  probable  cause.  It  must  be  borne 
in  mind,  gentlemen,  that  proof  of  malice,  no  matter  how  strong,  or 
complete  or  convincing,  cannot  take  the  place  of  proof  of  want  of 
probable  cause.  Clear  and  satisfactory  proof  of  malice  will  not 
supply  the  lack  of  proof  of  want  of  probable  cause.  And  note  this 
also,  gentlemen:  Want  of  probable  cause  must  not  be  inferred  or 
implied  from  proof  of  malice,  although  as  I  have  already  charged 
you,  malice  may  be  inferred  from  the  want  of  pi-obable  cause.  One 
who  accuses  another  of  crime  may  act  upon  appearances,  and  if 
the  facts  or  what  seems  co  him  to  be  the  facts,  are  such  that  a  man 
of  ordinary  intelligence  and  caution  and  prudence,  acting  conscien- 
tiously and  without  prejudice,  would  under  the  circumstances  be  led 
to  believe,  or  be  warranted  in  believing,  that  the  person  accused  was 
guilty,  the  accuser  or  prosecutor  will  be  justified  in  such  prosecution, 
even  though  the  appearances  had  misled  him,  although  they  were  in 
fact  no  just  ground  for  prosecution.  Because  one  may  be  deceived 
or  misled  by  appearances,  but  if  he  has  acted  only  under  the  effect 
of  such  misleading  or  deception,  and  even  though  the  accused  was 
innocent  the  accuser  in  such  a  case  could  not  be  justly  held  liable 
for  damages  for  malicious  prosecution,  having  acted  upon  appear- 
ances, and  honestly  acted  upon  appearances.  But  a  prosecution 
based  upon  mere  conjecture  or  suspicion,  or  groundless  suspicion, 
would  justly  render  a  prosecutor  liable  for  damages,  because  there; 
must  be  reasonable  ground  for  the  suspicion  and  it  must  be  strength- 
ened by  circumstances  and  facts,  or  what  seemed  to  be  facts,  suffi- 
ciently strong  to  lead  a  man  of  ordinary  prudence  and  intelligence 
to  believe  in  the  guilt  of  the  accused.  And  this  is  right.  No  man 
should,  with  impunity,  set  the  criminal  law  in  motion  against  another, 
and  deprive  him  of  his  liberty,  even  for  a  brief  period  upon  slight 
suspicion  or  mere  conjecture  that  he  has  committed  the  offense 
charged.  Nor  is  it  sufficient  that  the  prosecutor  should  believe  in 
the  guilt  of  the  accused.  Mere  belief  is  not  sufficient  to  justify 
a  criminal  prosecution,  because  there  must  be  reasonable  or  prob- 
able grounds  for  that  belief.  If  there  be  probable  cause  it  is  imma- 
terial what  were  the  motives  of  the  prosecution, — whether  it  was  a 
desire  to  subserve  the  interests  of  public  justice  or  to  gratify  private 
spleen  or  personal  revenge,  or  any  other  improper  motive.  Clear 
proof  of  probable  cause — of  the  existence  of  probable  cause — makes 
it  unnecessary  to  inquire  further  into  the  motives  of  a  prosecution; 
and  where  probable  cause  exists,  there  can  be  no  ground  for  a 
malicious  prosecution.  It  is  manifest,  therefore,  gentlemen,  from  all 
I  have  said,  that  this  question  of  probable  cause  is  a  mixed  question 
cf  law  and  fact.     It  is  the  duty  of  the  court  to  define,  as  I  have 


§  1284.]  MALICIOUS  PROSECUTION.  855 

endeavored  to  do,  probable  cause.  It  is  tbe  duty  of  the  jury  to 
apply  the  law  to  the  facts  in  evidence,  and  determine  the  question, 
was  there  a  want  of  probable  cause,  or  did  the  probable  cause  exist? 

Termination  of  or  Abandonment  of  Charge  or  Prosecution,  (d) 
The  third  requisite,  which  must  concur  with  the  other  two  as  a 
basis  to  maintain  an  action  for  damages  for  malicious  prosecution, 
is  the  termination  of  the  prosecution  or  charge,  or  the  abandonment 
of  the  charge  or  prosecution.  As  to  this  it  is  enough  for  the  pur- 
poses of  this  case  to  charge  you,  in  view  of  the  evidence  submitted, 
that  if  the  accused  has  been  arrested  and  committed,  or  held  to  bail 
for  his  appearance  at  court,  and  is  discharged  by  the  prosecuting 
attorney  or  solicitor  without  any  true  bill  or  any  bill  or  any  action 
by  the  grand  jury  Whatever,  that  is  a  sufficient  termination  to  meet 
the  requirements  of  a  complaint  like  this.  This  complaint  alleges 
that  the  said  charge,  complaint  and  prosecution,  and  each  of  them 
are  wholly  ended  and  determined  in  favor  of  the  plaintiff.  It  is 
not  necessary,  as  I  have  just  said,  that  the  grand  jury  should  have 
acted,  or  that  they  should  have  found  no  bill,  or  if  they  had  found 
a  true  bill  that  the  plaintiff  should  have  been  tried  and  acquitted. 
That  would  be  a  termination,  but  a  verdict  and  judgment  on  the 
merits  of  the  charge  are  not  necessary.  It  is  enough  if  the  case 
has  been  dismissed  by  the  court  or  abandoned  by  the  prosecution, 
or  if  the  case  has  been  formally  discharged  by  the  solicitor  or  the 
case  formally  dismissed  by  the  order  of  the  court.  That  is  a  suffi- 
cient termination  of  the  case  to  comply  with  the  requirements  of 
pleading  in  a  complaint  of  this  character. 

Damages — Actual  and  Punitive,  (e)  The  action  is  one  for  dam- 
ages, and  in  a  case  of  this  nature,  if  tbe  jury  decide  to  find  for  the 
plaintiff  (in  other  words  if  they  decide  that  he  has  made  out  his 
case, — that  he  has  been  a  victim  of  malicious  prosecution),  then 
they  are  not  limited  in  estimating  the  damages  to  the  actual  dam- 
ages proved  or  sustained,  but  they  are  at  liberty  in  their  sound 
discretion,  if  the  facts  proved  justify  it,  to  award  exemplary  punitive 
damages,  as  I  have  explained, — not  as  I  said,  to  enrich  the  plaintiff, 
but,  to  a  certain  extent,  to  punish  the  defendant.  The  jury  there- 
fore are  at  liberty,  in  estimating  damages,  to  allow  for  injury  to 
reputation  as  well  as  to  person  and  injury  to  credit  in  a  business 
man  to  compensate  for  wrong  and  indignity  suffered  by  a  plaintiff, 
and  to  indemnity  for  wrong  done  to  a  plaintiff's  feelings;  and  as 
to  the  amount  of  damages  the  jury  is  the  sole  and  proper  judge 
limited  only  by  the  amount  claimed.  In  this  case  if  you  come  to 
the  conclusion  that  the  plaintiff  is  entitled  to  damages,  no  matter 
if  the  plaintiff  may  satisfy  the  jury  that  he  should  be  paid  more, 
or  that  a  larger  sum  than  the  amount  claimed  should  be  awarded, 
you  cannot  go  beyond  the  amount  claimed.  That  amount  or  any 
amount  less,  is  wholly  within  the  province  of  the  jury  to  determine. 

Probable  Cause— Defense  in  Such  Action.  (f)  My  charge  thus 
far  has  shown  what  is  required  to  be  proved  by  the  plaintiff  in  a 


856  FORMS  OP  INSTRUCTIONS.  [§1284. 

case  like  this,  and  I  have  attempted  to  explain  the  theory  of  dam- 
ages applicable  to  a  case  like  this.  I  shall  now  add  a  few  words 
as  to  the  defense  proper  in  an  action  of  this  character.  It  is  a  good 
defense,  in  an  action  of  this  character,  that  there  was  probable 
cause.  If  the  evidence  shows  that  there  was  probable  cause,  that 
ends  the  matter;  the  investigation  may  stop  there,  and  the  verdict 
should  be  for  the  defendants.  So  also  the  defense  is  complete  if 
the  action  of  the  prosecutor  (the  defendant)  was  not  the  result  of 
malice  (if  he  was  not  actuated  by  malice)  and  the  question  of  prob- 
able cause  does  not  depend  on  whether  the  accused  is  guilty  or 
innocent,  but  upon  the  belief  of  the  prosecutor,  and  upon  the 
grounds  of  that  belief.  It  is  quite  conceivable  that  an  innocent 
man  may  be  prosecuted  and  prosecuted  vigorously.  It  is  also  con- 
ceivable that  the  prosecutor  may  have  acted  towards  that  innocent 
man  with  hatred  and  ill  will.  But  if  the  prosecutor,  acting  upon 
appearances,  and  believing  honestly  that  the  facts  and  circumstances 
justified  him  in  considering  the  innocent  person  guilty, — in  that 
case  he  could  not  be  liable  for  damages  for  malicious  prosecution — - 
because  he  would  not  be  actuated  by  malicious  motives.  I  have 
already  said  more  than  once  that  a  prosecutor  is  entitled  to  act 
upon  appearances,  and  if  the  appearances  be  such  that  they  would 
lead  a  man  of  ordinary  intelligence  and  discretion  to  believe  that 
the  accused  had  committed  the  crime  or  the  offense  charged,  in 
that  case  the  prosecutor  would  not  be  liable  in  damages,  even  though 
the  accused  were  wholly  innocent.  If,  therefore,  there  be  an  honest 
belief  in  guilt,  and  there  be  reasonable  grounds  for  such  belief,  the 
prosecutor  will  be  justified,  and  not  liable  in  damages.  But  mere 
belief  in  guilt  standing  alone,  is  no  justification.  There  must  be 
reasonable  or  probable  grounds  for  the  belief.  And  I  charge  you, 
if  there  was  probable  cause  for  the  prosecution,  the  defendants 
cannot  be  held  liable  in  damages,  even  though  they  were  actuated 
by  improper  and  malicious  motives  if  there  was  probable  cause.  A 
defendant  may  defeat  an  action  of  this  character  by  proving  the 
existence  of  probable  cause,  or  by  proving  that  the  prosecution  was 
free  from  malice.  It  is  obvious,  therefore,  that  if  probable  cause 
is  shown,  the  absence  of  malice  need  not  be  shown ;  but  where  there 
is  a  failure  to  prove  probable  cause,  then  proof  of  malice  would 
be  indispensable. 

Advice  of  Counsel — Want  of  Improper  Motive,  (g)  A  good  deal 
was  said  in  your  hearing  about  the  advice  of  counsel  in  a  case  of 
this  character — in  advising  the  prosecutor.  I  charge  you  that  a 
defendant  in  a  case  like  this  may  endeavor  to  rebut  the  presumption 
of  malice  by  proof  that  he  acted  under  the  advice  of  counsel.  He  is 
allowed  to  show  that  he  communicated  to  his  counsel,  his  lawyer,  all 
the  facts  or  what  seemed  to  him  to  be  the  facts,  bearing  upon  the 
srnilt  or  innocence  of  the  accused,  which  were  known  to  him,  or 
which  he  might  reasonably  have  information  of,  and  to  show,  also, 
that,   acting  upon  his  lawyer's  advice,  he  brought  the  prosecution, 


§  1285.]  MALICIOUS  PROSECUTION.  857 

and  that  he  acted  solely  on  the  advice  of  his  counsel,  and  from  no 
improper  motives.  That  would  be  a  complete  defense  and  would 
justify  the  finding  for  the  defendant  in  a  proper  case.  You  are  to 
say  whether  this  is  such  a  ease  or  not.  The  testimony  is  before  you, 
and  you  are  to  say  what  weight  it  deserves.  The  whole  advice  of 
counsel  is  evidence  intended  to  rebut  the  presumption  or  imputation 
of  malice ;  but  where  malice  is  expressly  proved,  the  advice  of  one 's 
lawyer  will  not  free  a  defendant  from  liability,  that  is,  where  malice 
is  expressly  proved. 

(h)  I  have  said  that  a  defendant  is  allowed  to  show  that  he  acted 
on  the  advice  of  counsel, — allowed  to  tell  what  he  said  to  counsel 
as  to  facts,  or  appearance  of  facts,  that  induced  him  to  bring  the 
prosecution,  and  that  he  acted  solely  upon  the  advice  of  counsel  and 
from  no  improper  or  evil  motives,  not  the  mere  fact  that  he  acted 
on  the  advice  of  counsel.  That  is  not  sufficient.  It  must  be  also 
shown  that  he  acted  on  no  improper  motives.  Advice  of  counsel  is 
to  go  to  the  jury  with  all  other  evidence.49 


FALSE  IMPRISONMENT. 

§  1285.  False  Imprisonment — What  Constitutes,  (a)  The  court 
instructs  the  jury,  that  in  order  to  sustain  a  charge  for  false  impris- 
onment, it  is  not  necessary  for  the  plaintiff  to  show  that  the 
defendant  used  violence  or  laid  hands  on  him,  or  shut  him  up  in  a 
jail  or  prison;  but  it  is  sufficient  to  show  that  the  defendant,  at  any 
time  or  place,  in  any  manner,  restrained  the  plaintiff  of  his  liberty, 
or  detained  him  in  any  manner  from  going  where  he  wished,  or 
prevented  him  from  doing  what  he  wished;  provided,  this  is  done 
without  legal  authority,  as  explained  in  these  instnictions.50 

(b)  If  the  jury  believe,  from  the  evidence,  that  the  defendant 
met  the  plaintiff  at  S.,  and  took  the  plaintiff  into  his  custody,  and 
there  kept  him,  and  brought  him  to  M.  against  his  will,  and  offered 
to  deliver  him  into  the  custody  of  the  sheriff,  then  the  defendant  is 
guilty  as  charged  in  the  declaration,  and  the  jury  should  find  for 
the  plaintiff;  unless  the  jury  further  find,  from  the  evidence,  under 
the  instructions  of  the  court,  that  the  defendant  was  warranted  in 
law  in  making  such  arrest,  as  explained  in  these  instructions.51 

(c)  To  constitute  an  arrest  and  imprisonment,  it  is  not  necessary 
that  the  party  making  the  arrest  should  actually  use  violence  or 
force  towards  the  party  arrested,  or  that  he  should  even  touch  his 
body.     If  he  profess  to  have   authority  to  make   the   arrest  and  he 

49— T?*ker  v.   Hornik  et  al.,   57  S.  245;   Harkins  v.   State.   6  Tex.   Anp. 

C.    21*.   35   S.    E.    524    (527).  452;     Murphy    v.     Martin,     58    Wis. 

50— Onoley     on     Torts     (3d     Ed.),  276.    16    N.    W.    603:    apl^en1enrhtpr 

297:     Rmshaber    v.     Stag-emann,    22  v.   Neimeyer,  64  Wis.  316,  25  N.  W. 

Mi^h.   266;    2  Arldison  on  Torts  697;  442. 

Hawk     v.     Ride-way,     33     111.     473;  51— Hawk  v.  Ridgway,  33  111.  473. 
Bonesteel     v.     Bonesteel,     28    Wis. 


858  FORMS  OF  INSTRUCTIONS.  [§  1286. 

commands  the  person,  by  virtue  of  such  pretended  authority,  to 
go  with  him,  and  the  person  obeys  the  order,  and  they  walk  together 
in  the  direction  pointed  out  by  the  person  claiming  the  right  to 
make  the  arrest,  this  is  an  arrest  and  imprisonment  within  the 
meaning  of  the  law.52 

§  1286.  Arresting  Without  Warrant — When  It  May  Be  Done- 
Probable  Cause,  (a)  In  the  case  it  is  admitted  by  the  defendant 
that  he  had  no  warrant  for  the  arrest  of  the  plaintiff.  The  laws 
of  the  state  permit  an  arrest  without  a  warrant  or  "on  view"  as 
it  is  sometimes  termed,  either  (1)  when  a  public  offense  is  com- 
mitted, or  attempted  in  the  presence  of  the  officer;  or  (2)  when  a 
public  offense  has  in  fact  been  committed,  and  he  has  reasonable 
ground  for  believing  that  the  person  to  be  arrested  has  committed 
it.  It  is  claimed  by  defendant  in  his  answer  that  he  arrested  plain- 
tiff for  the  first  cause, — that  is,  for  a  public  offense  committed  or 
attempted  in  his  presence;  and  unless  this  fact  has  been  proven  by 
him  by  a  preponderance  of  the  evidence,  his  plea  of  justification 
has  failed,  and  justification  at  your  hands  cannot  be  made  out  upon 
any  other  ground  than  that  set  up  by  the  defendant  in  his  plea  of 
justification.53 

(b)  The  police  have  no  more  right  than  any  other  citizen  to  lay 
hands  upon  a  citizen,  where  no  felony  is  claimed  to  have  been 
committed,  nor  no  breach  of  the  peace  takes  place  in  their  sight; 
and,  neither  being  claimed  to  have  been  committed  in  this  case, 
plaintiff  is  entitled  to  recover,  whether  the  plaintiff's  or  the  de- 
fendant's evidence  be  taken  to  be  true.54 

(c)  Whether  the  ring  was  actually  stolen  or  not,  if  you  believe 
from  the  evidence  that  the  defendant  had  probable  cause  for  believing 
it  was  stolen  by  plaintiff,  then  your  verdict  should  be  for  defendant.55 

§  1287.  Submission  to  Threat  Is  Not  a  Consent  to  Restraint.  If 
you  find  from  the  evidence  that  the  plaintiff  remained  in  the  store 

of  L.,  W.  &  Co.,  on  the  evening  and  night  of  the  of  , 

voluntarily  and  of  her  own  free  will  and  accord,  then  I  charge  you 
that  this  does  not  constitute  an  unlawful  imprisonment  as  charged 
in  the  complaint.  Submission  to  the  threatened  and  reasonably  ap- 
prehended use  of  force  is  not  to  be  considered  as  a  consent  to  the 
restraint  by  the  one  claiming  to  have  been  imprisoned.56 

§  1288.  False  Imprisonment — Trespass  on  Land  of  Another,  (a) 
We  have  a  statute  in  this  state  which  provides  that  "Whoever  un- 
lawfully enters  upon  the  lands  of  another,  and  severs  from  the  soil 
any  product  or  fruit  growing  thereon,  the  property  of  another,  of 

52— Cnoley     on     Torts     (3a     Ed.),  54— Zube   v.    "Weber,    67   Mich.   52; 

297;  2  Addison  on  Torts  §  799;  Mar-  34   N.   W.   264   (268). 

tin   v.    Houck,   141    N.    C.    317,    54   S.  55— Rich     v.     Mclnery,     102     Ala, 

E.  291.  345,  15  g0>  663  (664)?  49  Am.  St.  Rep. 

53— Stewart    v.    Feeley,    118    Iowa  32. 

524,   92   N.   W.   670    (671).  56— Ring-ham    v.    Lipman,    W.    & 

Co.,  40  Ore.  363,  67  Pac.  98  (101). 


§  1288.]  MALICIOUS  PROSECUTION.  859 

the  value  of  ten  cents  or  upward,  upon  conviction  thereof  shall  be 
fined  in  any  sum  not  exceeding  one  hundred  dollars,  to  which  may  be 
added  imprisonment  in  the  county  jail  for  not  more  than  six  months." 
As  you  will  observe,  the  penalty  provided  by  such  statute  is  by 
way  of  fine  not  exceeding  one  hundred  dollars,  to  which  may  be 
added  imprisonment  in  the  county  jail  for  not  more  than  six  months; 
and  I  instruct  you  that,  if  the  plaintiff  were  guilty  of  taking  cherries 
from  the  defendant  or  defendants  without  their  consent  and  against 
their  will  such  offense  would  not  be  a  felony.  It  would  be  what 
is  known  in  law  as  ' '  criminal  trespass. ' '  If  the  value  of  the  cherries 
so  taken  amounted  to  ten  cents  or  upwards,  and  would  constitute 
a  misdemeanor  if  it  were  committed  by  the  plaintiff,  the  defendant 
would  have  no  right  to  seize  and  tie  plaintiff,  and  without  any 
warrant  or  process  confine  him  in  the  house  of  defendants  against 
his  will,  unless  it  was  reasonably  necessary  to  do  so  for  the  purpose 
of  preventing  such  act  of  trespass  on  his  part. 

(b)  If  you  find  from  the  evidence  that  the  plaintiff  at  the  time 
alleged  was  engaged  in  taking  cherries  from  the  tree  of  the  de- 
fendants, without  their  consent,  of  the  value  of  ten  cents  or  less, 
such  an  act  would  be  trespass  on  the  part  of  the  plaintiff;  and  if 
while  he  was  taking  such  cherries  the  defendant  discovered  him, 
she  would  have  the  right  to  prevent  such  an  act  or  trespass  on 
the  plaintiff's  part,  using  such  force  as  was  reasonably  necessary 
for  that  purpose.  But  if  she  used  an  excessive  force  to  prevent  such 
trespass,  then  she  would  be  liable  in  damages  for  such  excessive 
use  of  force,  and  if  such  act  of  trespass  could  have  been  prevented 
or  if,  when  she  discovered  plaintiff  committing  such  an  act  of 
trespass  he  discontinued  the  same  and  attempted  to  flee  from  the 
premises  of  the  defendants,  and  it  was  not  necessary  for  her  to 
use  any  force  to  prevent  the  continuance  of  such  trespass,  then  I 
instruct  you  that  said  defendant  would  have  no  right  to  seize  the 
plaintiff,  and  bind  him  with  rope,  and  confine  him  in  the  house  of 
the  defendants  against  his  will,  and  if  she  did  so  she  would  be 
liable  to  the  plaintiff.57 

57 — Golibart    v.    Sullivan,    30   Ind.  of  society.    The  felon  who  is  seen 

App.   428,  66  N.   E.  188  (190).  to  commit  murder  or  robbery  must 

"The  instruction  considered   as   a  be  arrested  on  the  spot  or  suffered 

whole     correctly    states    the      law.  to   escape.     So,   although   not   seen, 

Upon    the    evidence    of    appellant,  yet    if   known    to   have    committed 

plaintiff  was  guilty  only  of  a  mis-  a  felony  and  pursued  with  or  with- 

demennor.     In   Doering  v.   State,  49  out  a  warrant,  he  may  be  arrested 

Ind.  60,  19  Am.   Rep.   669,   it  is  said  by    any    person.     And    even    where 

that   the  law  applicable   to   arrests  there    is    only    probable    cause    of 

by   private    citizens    is    stated    with  suspicion,    a    private    person    may, 

great    precision    and    clearness    by  without  warrant,  at  his  peril,  make 

Tilghman,     C.     J.,     in    Wakely     v.  an   arrest.    I   say  at   his   peril,   for 

Hart,  6  Bin.  316,  where,  after  quot-  nothing  short  of  proving  the  felony 

ing   a   provision   of   the   state   con-  will  justify   the   arrest.    These   are 

stitution   and   commenting  thereon,  principles  of  common  law  essential 

it  is  said:     'But  it  is  nowhere  said  to  the  welfare  of  society,  and  not 

that  there  shall  be  no  arrest  with-  intended  to  be  altered  or  impaired 

out    warrant.      To     have     said     so  by  the  constitution.'  " 
would  have  endangered  the  safety 


CHAPTER  LX. 
MALPRACTICE. 
See     Erroneous     Instructions,  same  chapter  head,  Vol.  III. 


§  1289.  Warranty  of  skill,  knowl- 
edge and  care  implied. 

§  1290.  Degree  of  care  required — 
Ordinary — Not  the  highest 
skill  and  care. 

§  1291.  Care  and  skill  required  by 
dentist — Patient  must  con- 
form to  advice  and  co-op- 
erate with  doctor. 

§  1292.  Degree  of  learning  and  skill 
ordinarily  possessed  means 
such  learning  and  skill 
contemporaneous  with  the 
transaction  —  Advanced 
state   of  profession. 

§  1293.  Practitioner  possessing 
learning  and  skill  but  fail- 
ing to   exercise   it. 

§  1294.  Ordinary  care  by  agent  of 
physician. 

§  1295.  Different  schools  of  medicine 
— Rule  by  which  physician 
is  to  be  judged. 


§  1296. 
§  1297. 

§  1298. 
§  1299. 

§  1300. 


1301. 
1302. 


1303. 


Specialist — Degree  of  skill 
and  care  required. 

Action  for  damages  for 
shortening  of  leg  in  con- 
sequence  of   fracture. 

Patient  can  only  recover  for 
additional   pain. 

Patient  bound  to  follow  in- 
structions —  Should  co-op- 
erate  with — Failure  to  obey. 

Physician  is  the  proper 
judge  of  the  necessary  fre- 
quency of  visits. 

Burden  of  proof  on  plaintiff. 

Dentist — Due  care  and  skill 
required — Series. 

No  warranty  of  cure — Im- 
plied  contract  of  ordinary 
skill — Measure  of  damages 
— Burden  of  proof — Con- 
tributory negligent  e — 
Series. 


§  1289.     Warranty  of  Skill,  Knowledge   and  Care  Implied.     The 

court  instructs  the  jury,  that  if  a  person  holds  himself  out  to  the 
public  as  a  physician  and  surgeon,  he  must  be  held  to  possess  and 
exercise  ordinary  skill,  knowledge  and  care  in  his  profession  in  every 
case  of  which  he  assumes  the  charge,  whether  in  the  particular  case 
he  receives  fees  or  not.1 

§  1290.  Degree  of  Care  Required — Ordinary — Not  the  Highest 
Skill  and  Care,  (a)  Where  an  injury  results  from  a  want  of  ordinary 
skill,  or  from  a  failure  to  exercise  ordinary  skill  or  attention  in 
the  treatment  of  a  case,  the  physician  or  surgeon  is  held  responsible 
for  such  injury.2 

(b)  The  highest  degree  of  care  and  skill  is  not  required  of  a 
physician  to  relieve  him  from  liability  for  damages  resulting  from 
his  treatment  of  a  patient — only  reasonable  care  and  skill  are 
required.3  , 

1— McNevins  v.  Lowe.   40  111.  209;  Hutchinson,    88    la.    320,    55    N.    W. 

Cooley    on    Torts    (3d    Ed.),    1391;    1  511. 

Hill,   on   Torts,   224;    McCandless  v.  2— Barnes    v.    Means.    82   111.    379; 

McWha,   22   Penn.   261:    Simonds   v.  McKenzie  v.  Carman,  103  App.  Div. 

Henry,    39    Me.    155;     Geiselman    v.  246,    92    N.    Y.    S.    1063. 

Scott,     25    Ohio     St.     86;     Peck    v.  3— Holtzman  v.   Hoy,  118  111.  534, 

860 


§  1291.]  MALPRACTICE.  861 

(c)  The  care  and  skill  required  of  the  defendant  is  not  the 
highest  degree  of  knowledge  and  skill  known  to  the  profession,  but 
such  as  is  possessed  by  men  of  his  profession  in  the  neighborhood.* 

(d)  While  persons,  who  hold  themselves  out  to  the  public  as 
physicians  and  surgeons,  are  not  required  to  possess  the  highest 
degree  of  knowledge  and  skill  whieh  the  most  learned  in  their  pro- 
fession may  have  acquired,  yet  they  are  bound  to  possess  and 
exercise,  in  their  practice,  at  least  the  average  degree  of  knowledge 
and  skill  possessed  and  exercised  by  the  members  of  their  profession 
generally  in  the  locality  in  which  they  practice.5 

(e)  Every  person  who  offers  his  services  to  the  public  generally, 
in  any  profession  or  business,  impliedly  contracts  with  those  who 
employ  him,  that  he  is  a  person  of  the  skill  and  experience  which 
is  possessed,  ordinarily,  by  those  who  practice,  or  profess  to  under- 
stand the  same  art  or  business,  and  which  is  generally  regarded  by 
those  most  conversant  with  that  profession  or  employment,  as  neces- 
sary to  qualify  him  to  engage  in  such  business  successfully.6 

(f)  If  the  jury  believe,  from  the  evidence,  that  the  defendant 
held  himself  out  to  the  public  as  a  physician  and  surgeon,  and  that 
lie  was  employed  to  treat,  as  a  surgeon,  an  injury  sustained  by  the 
plaintiff,  as  charged  in  the  declaration,  and  that  he  undertook  such 
employment,  and  that  he  did  not  treat  the  said  injury  with  ordinary 
skill  and  knowledge,  and  that  the  plaintiff  sustained  any  injury  or 
damage  by  reason  thereof,  then  the  jury  should  find  for  the  plaintiff.7 

§  1291.  Care  and  Skill  Required  by  Dentist — Patient  Must  Con- 
form to  Advice  and  Co-operate  with  Doctor,  (a)  The  defendant 
is  responsible  to  the  plaintiff  only  for  ordinary  care  and  skill  and 
the  exercise  of  his  best  judgment;  not  for  the  want  of  the  highest 
degree  of  skill.  It  was  the  duty  of  the  plaintiff  to  co-operate  with 
the  defendant,  and  to  conform  to  his  advice;  and,  if  he  advised  her 
to  return  upon  the  tooth's  giving  her  trouble,  and  she  did  not  return, 
either  from  want  of  inclination,  because  her  father  was  busy,  or  on 
account  of  sickness,  it  was  her  own  neglect,  provided,  the  defendant 
used  ordinary  skill  and  his  best  judgment. 

(b)  That  if  the  defendant  did  not,  at  the  time  of  treating  the 
plaintiff,  possess  the  learning  and  skill  ordinarily  possessed  by  mem- 
bers of  the  dental  profession,  and  by  improper  treatment  the  plain- 
tiff was  injured,  the  defendant  would  be  liable  for  s  ?h  damages  as 
the  plaintiff  sustained  by  reason  thereof,  and  the  jury  should  answer 
the  first  issue,  "Yes. "8 

8   N.   E.    832;   Wood  v.   Wveth,  106  Hanks,   34   la.    286;    Almon  v.   Nu- 

App.  Div.  21,  94  N.  Y.   S.  360.  gent,  34  la.  300. 

4 — McCracken  v.  Smathers,  122  N.  6 — Holtzman  v.  Hoy,  supra. 

C.    799,   29   S.   E.  354    (355).  7— ftallam    v.    Means,    82    111.    379; 

5— Gates     v.     Fleischer,     67    "Wis.  Shockley  v.  Tucker,  127  la.  456,  103 

504.   30  N.   W.   674;    Gramm  v.   Boe-  N.  W.  360. 

ner,    56    Ind.    497.     See    Smother   v.  8— McCracken     v.     Smathers,    122 

N.   C.   799,  29  S.   E.   354  (355). 


862  FORMS  OF  INSTRUCTIONS.  [§  1292. 

§  1292.  Degree  of  Learning  and  Skill  Ordinarily  Possessed  Means 
Such  Learning  and  Skill  Contemporaneous  with  the  Transaction — 
Advanced  State  of  Profession,  (a)  The  degree  of  learning  and 
skill  which  the  physician  and  surgeon  holds  himself  out  to  possess 
is  that  degree  which  is  ordinarily  possessed  by  the  profession,  as 
it  exists  at  the  time  or  contemporaneous  with  himself,  and  not  as  it 
may  have  existed  at  some  time  in  the  past;  and  the  physician  and 
surgeon  must,  in  general,  be  held  to  apply  in  his  practice  what  is 
thus  settled  in  his  profession.9 

(b)  The  implied  contract  of  the  defendant  when  he  assumed 
charge  of  the  treatment  of  plaintiff's  injuries  was  that  he  possessed 
and  would  employ  in  the  treatment  of  the  case  such  reasonable  skill 
and  diligence  as  were  ordinarily  exercised  in  his  profession  at  and 
in  localities  similar  to  that  in  which  he  practiced,  by  the  members 
as  a  body ;  that  is,  the  average  of  the  reasonable  skill  and  diligence 
ordinarily  exercised  by  the  profession  at  the  time  and  in  places 
similar  to  G.  Regard  is  to  be  had  in  determining  this  ordinary  skill 
and  diligence  to  the  improvement  and  advanced  state  of  the  pro- 
fession at  the  time  the  case  was  treated.10 

§  1293.  Practitioner  Possessing  Learning  and  Skill  but  Failing  to 
Exercise  It.  That,  if  the  defendant  did  possess  the  learning  and 
skill  which  ordinarily  characterizes  his  profession,  and  failed  to 
exercise  it  in  this  case,  and  the  plaintiff  was  injured  in  consequence 
thereof,  the  defendant  would  be  liable  to  such  damages  as  the  plaintiff 
sustained.11 

§  1294.  Ordinary  Care  by  Agent  of  Physician,  (a)  The  court 
instructs  the  jury  that  if  you  shall  believe  from  the  evidence  that  K. 
was  the  agent,  servant  or  employe  of  defendants,  and  that,  as  such 
agent,  servant  or  employe,  said  K.  rendered  treatment  to  plaintiff, 
then  it  was  his  duty  to  treat  her  with  ordinary  care  and  skill ;  and 
if  you  shall  believe  from  the  evidence  that  while  he  was  treating 
her,  as  the  agent,  servant  or  employe  of  defendants,  he  violently 
bruised,  bent,  twisted  or  wrenched  plaintiff's  back  or  spine,  and 
that  such  treatment  was  improper,  and  not  such  as  an  ordinary, 
careful  and  skillful  man  would  have  given  the  plaintiff  under  the 
circumstances,  you  will  find  that  defendants'  treatment  of  the  plain- 
tiff by  said  K.,  as  their  agent,  servant  and  employe,  was  careless, 
negligent   and   unskillful. 

(b)  The  court  instructs  the  jury  that  if  you  shall  believe  from 
the  evidence  that  K.,  as  the  agent,  servant  and  employe  of  the 
defendants,  did  carelessly,  negligently  and  unskillfully  treat  plaintiff, 
as  defined  in  the  previous  instructions,  and  that  by  such  treatment 

9— McCracken         v.         Smathers,  "That   it    announced    the    correct 

supra.  ru]e   ;s   conceded." 

10— Decatur   v.    Simpson,    115    la.  11— McCracken    v.    Smathers,    122 

348,  88  N.  W.  839   (840).  N.  C.  799,  29  S.  E.  354  (355). 


§  1295.]  MALPRACTICE.  863 

he  did  hurt,  bruise  and  injure  plaintiff  in  and  upon  her  back,  spine 
or  pelvic  organs,  your  verdict  must  be  for  the  plaintiff.12 

§  1295.  Different  Schools  of  Medicine — Rule  by  Which  Physician 
Is  to  Be  Judged.  If  there  are  distinct  and  different  schools  of  prac- 
tice, and  a  physician  of  one  of  those  schools  is  called  in,  his  treat- 
ment is  to  be  tested  by  the  general  doctrines  of  his  school  and  not  by 
those  of  other  schools.  It  is  to  be  presumed  that  the  parties  so 
understood  it.  The  jury  are  not  to  judge  by  determining  which 
school,  in  their  own  view,  is  best.13 

§  1296.  Specialist — Degree  of  Skill  and  Care  Required.  A  physician 
or  surgeon  making  a  specialty  of  the  practice  of  surgery  is  not 
bound  to  use  any  greater  skill,  care,  or  diligence  in  the  treatment 
of  the  case  than  a  specialist  in  like  or  similar  localities  in  which 
said  physician  or  surgeon  resides  and  practices  his  profession.14 

§  1297.  Action  for  Damages  for  Shortening  of  Leg  in  Consequence 
of  Fracture.  Although  the  jury  may  believe,  from  the  evidence,  that 
the  plaintiff's  leg  became  shortened  in  consequence  of  the  fracture, 
or  during  the  course  of  treatment  subsequent  to  the  fracture,  still 
the  defendant  is  not  liable  in  damages  therefor,  unless  the  shortening 
was  due  to  the  want  of  reasonable  and  ordinary  care  and  skill  on 
his  part ;  and  if  the  jury  further  believe,  from  the  evidence,  that 
the  extension  of  the  limb  could  not  well  and  safely  be  effected,  nor 
the  means  and  appliances  for  that  purpose  be  safely  used,  before  the 
time  for  bony  union  to  commence,  and  that  bony  union,  under  proper 
treatment,  would  not,  and  did  not  commence  before  the  defendant 
was  discharged,  and  the  plaintiff  placed  under  the  charge  of  another 
surgeon,  then  the  defendant  would  not  be  liable  in  damages  resulting 
from  the  shortening  of  the  limb.15 

§  1298.  Patient  Can  Only  Recover  for  Additional  Pain,  (a)  In 
a  suit  against  a  surgeon  for  malpractice  in  treating  an  injury,  the 
plaintiff  is  not  entitled  to  recover  anything  on  account  of  the  pain 
and  suffering  caused  by  the  injury,  but  only  for  such  additional  pain, 
suffering  and  injury  as  is  produced  by  the  negligence  or  want  of 
skill  of  the  defendant  in  the  treatment.16 

(b)  And  if,  from  the  evidence  in  the  case,  the  jury  further 
believe,  that  the  plaintiff  did  not  receive  from  the  defendant  such 

12 — Longan   v.   "Weltmer,    180   Mo.  been    made    with     propriety.      But 

322,   79  S.  W.  655   (656),  64  L.  R.   A.  the  court  had  in  previous  instruc- 

969.  tions     so     explicitly     informed     the 

13— Force    v.    Gregory,    63    Conn,  jury   that    the    degree    of   skill    re- 

167,  27  Atl.  1116,  22  L.  R.  A.  343,  38  quired  would   be  such  as  was  pos- 

Am.   St.  Rep.  371;  Martin  v.  Court-  sessed  by  the  average  members  of 

nev,   75  Minn.  255,   77  N.   W.   813.  the    profession    practicing    as    spe- 

14— Beadle   v.   Paine,   46   Ore.   424,  cialists  in  similar  localities,  resrard 

80  Pac.  903   (905).  beina:  had  to  the  advanced  state  of 

The  criticism  was  that  the  skill,  medical   science    at    the   time,   that 

care,  and  diligence  required  of  de-  they  could  hardly  have  been  mis- 

fendants.    were    such    as    are    ob-  led  bv  this  instruction." 

served   in  like  or  similar  localities.  15 — Kendall  v.   Brown,   74  III.   232. 

"The     qualification     might     have  16— Wenger  v.   Calder,   78  111.  275. 


864  FORMS   OF   INSTRUCTIONS.  [§  1299. 

care,  attention  and  skill,  and  that  in  consequence  thereof,  and  with- 
out fault  on  his  part,  the  plaintiff  suffered  increased  pain,  and 
suffered  the  injury  complained  of  in  the  declaration,  then  the  de- 
fendant is  liable  in  this  suit,  and  the  jury  should  render  a  verdict 
for  the  plaintiff.17 

§  1299.  Patient  Bound  to  Follow  Instructions — Should  Co-operate 
with — Failure  to  Obey,  (a)  The  court  instructs  the  jury,  that 
where  a  person  employs  a  physician  or  surgeon  to  treat  a  disease 
or  an  injury  the  patient  is  bound  to  adopt  and  follow  out  all  rea- 
sonable directions  and  requirements  of  the  physician,  relating  to 
the  treatment  or  care  of  the  disease  or  injury;  and  if  he  does  not 
do  so,  and  injurious  consequences,  affecting  the  disease  or  injury, 
result  from  his  failure  so  to  do,  he  cannot  recover  of  the  physician 
or  surgeon,  alleging  a  want  of  skillfulness  on  the  part  of  the  physician 
or  surgeon.18 

(b)  The  jury  are  further  instructed,  that  it  is  the  duty  of  a 
patient  to  co-operate  with  his  physician  or  surgeon,  and  to  conform 
to  all  reasonably  necessary  prescriptions  and  directions,  regarding 
the  care  or  treatment  of  the  disease  or  injury;  and  if  he  will  not, 
or  if,  under  the  pressure  of  pain,  he  cannot,  then  he  cannot  hold  his 
surgeon  responsible  for  any  injurious  consequences  arising  from  his 
failure  to  obey  such  prescriptions  or  instructions,  if  any  such  is 
shown  by  the  evidence.19 

(c)  If  the  jury  find,  from  the  evidence,  that  the  defendant  di- 
rected the  plaintiff  to  observe  absolute  rest  as  a  part  of  the  treat- 
ment of  the  injury  in  question,  and  that  that  direction  was  such  as 
a  surgeon  or  physician  of  ordinary  skill  would  adopt  or  sanction, 
and  further,  that  the  plaintiff  negligently  failed  to  observe  such 
direction,  or  purposely  disregarded  the  same,  and  that  such  neglect 
or  disobedience  directly  contributed  to  the  injuries  of  which  the 
plaintiff  complains,  then  he  cannot  recover  in  this  action,  although 
the  jury  may  believe,  from  the  evidence,  that  the  defendant's  negli- 
gence or  want  of  skill  also  contributed  to  such  injuries.20 

§  1300.  Physician  Is  the  Proper  Judge  of  the  Necessary  Frequency 
of  Visits.  The  jury  are  instructed,  as  a  matter  of  law,  that  the 
physician  attending  a  patient  is  the  proper  and  sole  judge  of  the 
necessary  frequency  of  the  visits  to  his  patient  so  long  as  the  patient 
is  in  his  charge,  and  in  an  action  for  his  services  the  physician  is 
not  required,  under  the  law,  to  prove  the  necessity  of  his  making 
the  number  of  visits  that  he  makes,  and  for  which  he  is  seeking 
compensation.21 

17— Kendall  v.  Brown,  86  111.  387.  1394;   1   Hill,   on   Torts  225;  Lanson 

18— Gramm     v.     Boener,     56     Ind.  v.  Conaway,  37  W.  Va.  159,  16  S.  E. 

497;    Geiselman    v.    Scott,    25    Ohio  564,  38  Am.  St.  Rep.  17,  18  L.  R.  A. 

St.    86;    Beadle    v.    Paine,    46    Ore.  627. 

424.  80  Pac.  903.  20— Geiselman  v.   Scott,   supra. 

19— Cooley     on     Torts     (3d    Ed.)  21— Ebner  v.  Mackey,  186  111.  297 


§  1301.]  MALPRACTICE.  865 

§  1301.  Burden  of  Proof  on  Plaintiff,  (a)  The  jury  must  re- 
member that  the  burden  of  proof  is  on  the  plaintiff  to  maintain  all 
the  material  facts  necessary  to  make  out  his  case  by  a  preponderance 
of  the  evidence.  The  presumptions  of  the  law  in  absence  of  evi- 
dence to  the  contrary  are  that  the  defendant  is  not  guilty,  and 
unless  by  a  preponderance  of  the  testimony  the  jury  are  made  to 
believe  that  the  defendant  is  guilty  as  charged,  then  the  verdict  of 
the  jury  will  be  not  guilty.22 

(b)  The  jury  are  instructed  that  the  plaintiff,  in  this  case,  is 
bound  to  prove,  by  a  preponderance  of  evidence,  some  one  or  more 
of  the  charges  of  negligence  contained  in  the  declaration,  and  that 
these  charges  relate  to  the  setting  or  reducing  the  fracture  of  the 
plaintiff's  leg,  and  also  to  the  subsequent  treatment  thereof;  and 
unless  the  plaintiff  has  proved,  by  a  preponderance  of  evidence,  that 
the  leg  was  not  properly  set  in  the  first  instance,  or  that  the  sub- 
sequent treatment  of  the  leg  by  the  defendant  was  unskillful  and 
improper,  to  such  an  extent  as  to  show  want  of  ordinary  skill,  care, 
or  attention  to  said  leg,  then  it  will  be  the  duty  of  the  jury  to 
render  a  verdict  for  the  defendant.23 

§  1302.  Dentist— Due  Care  and  Skill  Required— Series,  (a)  If 
you  find  from  the  evidence  that  defendant  advised  plaintiff  not  to 
consult  a  surgeon  or  secure  medical  treatment  after  her  jaw  was 
injured  by  defendant,  if  you  find  the  same  was  carelessly  and  negli- 
gently injured  by  defendant,  and  that  plaintiff  relied  thereon,  and 
did  not  consult  a  physician  or  surgeon  for  a  number  of  weeks  after 
such  injury,  and  that  by  reason  of  such  delay,  plaintiff's  injuries 
were  aggravated  and  made  worse,  and  that  it  was  more  difficult  and 
impossible  to  treat  or  cure  such  injuries  of  plaintiff,  and  that  thereby 
such  injuries  became,  and  are  permanent  and  cannot  be  cured,  and 
the  same  has  affected  the  general  health  of  plaintiff,  and  she  has 
become  and  is  sick  and  disordered  and  unable  to  work  or  perform 
labor  or  support  herself  by  her  own  labor  and  work  as  she  did  prior 
to  such  injuries,  if  you  find  that  she  did  so  work  and  support  herself 
before  she  was  injured  by  defendant — then  I  instruct  you  that  you 

(299),  aff'g  87  111.  App.  306,  57  N.  E  and    faithful    attention    to    his    pa- 

834,    78   Am.   St.   Rep.   280,    51   L.    R.  tient,    a   contrary  rule  would  work 

A.   298.  great  hardship  to  him  and   subject 

"Upon     this     subject,    "Wood      on  him  to  undue  perils.'     To  the  same 

Master  and  Servant  (sec.  177)  says:  effect  is  Todd  v.  Myers,  40  Cal.  357; 

'A   physician   is  to  be   deemed   the  C.    B.    &   Q.    R.    R.    Co.    v.    George, 

proper   judge    of    the    necessity    of  19    111.    510,    71    Am.    Dec.    239,    does 

frequent   visits  to   his   patient,   and  not,   as  supposed,  announce  a  con- 

the  court  will  presume  that  all  the  trary  doctrine.     Under  the  cireum- 

professional    visits  #made    by    him  stances,    of   this    case,    the   instrue- 

were   necessary.     Hence,    in  an  ac-  tion  was  proper." 

tinn     for    his    services,     he    is    not  22 — Chase  v.   Nelson,   39   111.    App. 

called  upon  to  prove  the  necessity  53   (59  &  60). 

of    making    the    number    of    visits  23— Kendall  v.  Brown,  86  111.  387: 

he    did.     The    physician    being    re-  Holtzman    v.    Hoy,    118    111.    534,    8 

sponsible     for    the    want     of    care  N.  E.  832. 

55 


866    .  FORMS  OF  INSTRUCTIONS.  [§  1303. 

may  take  all  such  matters  into  consideration  in  fixing  the  damage 
incurred  by  plaintiff  by  such  acts. 

(b)  Should  the  evidence  fail  to  show  that  defendant  did  not 
exercise  ordinary  skill,  care  and  prudence  in  the  work  which  he 
did  for  plaintiff,  then  you  must  find  a  verdict  for  the  defendant. 
You  should  also  bear  in  mind  that  the  contention  of  plaintiff  that 
there  was  a  lack  of  care  or  skill  on  the  part  of  defendant  is  a  fact 
which  the  law  requires  the  plaintiff  to  prove  by  a  preponderance  of 
the  evidence,  the  same  as  any  other  fact  or  facts  in  the  case,  and 
the  jury  would  not  be  satisfied  in  finding  this  as  a  fact  upon  mere 
surmises  or  assumptions. 

(c)  If  the  plaintiff  sought  the  services,  care  and  skill  of  the 
defendant  for  dental  work,  and  the  defendant  accepted  her  employ- 
ment to  do  such  work,  the  law  only  required  of  him  the  possession 
of  such  skill  and  learning  in  his  profession,  and  only  required  of 
him  in  the  performance  of  his  work  such  ordinary  care  and  skill 
as  is  ordinarily  possessed  by  a  person  following  such  profession,  and 
if  you  find  from  the  evidence  in  this  case  that  the  defendant  at  the 
time  he  performed  services  for  the  plaintiff  did  possess  skill  and 
learning,  and  that  in  his  services  rendered  to  the  plaintiff,  in  all  the 
work  performed  for  her  by  him  he  exercised  that  skill  and  care  and 
good  judgment,  then  you  must  find  a  verdict  for  the  defendant,  even 
if  you  should  also  find  from  the  evidence  that  the  plaintiff  suffered 
injuries  and  pain  after  such  services  were  performed  for  her,  even 
if  caused  by  the   work  of  the  defendant.24 

§  1303.  No  Warranty  of  Cure — Implied  Contract  of  Ordinary  Skill 
— Measure  of  Damages — Burden  of  Proof — Contributory  Negligence — 
Series,  (a)  The  court  instructs  the  jury  that  one  who  holds  him- 
self out  to  the  public  as  a  physician  and  surgeon,  the  law  implies 
a  promise  and  duty  on  his  part  that  he  will  use  reasonable  skill  and 
diligence  in  the  treatment  and  for  the  care  of  those  who  may  employ 
him.  Therefore,  if  you  believe  from  the  evidence  that  plaintiff  em- 
ployed defendant  to  set  and  heal  the  dislocation  of  plaintiff's  shoul- 
der, and  that  defendant  negligently,  carelessly  and  unskillfully 
treated  and  managed  said  dislocation,  and  that  said  dislocation  was 
not  set,  placed  or  reduced,  and  through  such  negligence  plaintiff's 
shoulder  has  become  permanently  injured,  lamed  and  disfigured,  then 

you  will  find  for  the  plaintiff  in  a  sum  not  to  exceed  

dollars. 

(b)  The  court  instructs  the  jury  that  the  only  question  in  this 
case  for  your  determination  is  whether  the  defendant,  when  called 

to  see  plaintiff  on   the  day   of  ,  properly   reduced 

and  treated  the  dislocated  shoulder  of  plaintiff,  and  gave  her  proper 
and  necessary  directions  and  instructions  for  the  care  of  same.  If 
he  did,  then  he  cannot  be  held  liable  for  any  injury  resulting  from 

24— Mernin   v.    Cory,    145   Cal.    573,     79  Pac.   174   (175). 


§  1303.]  MALPRACTICE.  867 

any  redislocation  of  said  shoulder  that  may  have  afterwards  oc- 
curred. On  the  other  hand,  if,  when  called  to  see  plaintiff  on  said 
date,  he  failed  to  reduce  and  properly  treat  said  dislocated  shoulder 
and  give  proper  and  necessary  directions  for  the  care  of  same,  or 
failed  to  exercise  such  care  and  skill  as  is  used  by  the  average 
members  of  his  profession  under  like  conditions  and  circumstances 
in  attempting  to  so  reduce  and  treat  said  dislocation,  then  you  should 
find  the  issues  for  plaintiff,  according  to  the  rule  given  in  instruction 
No.  1. 

(c)  The  court  instructs  the  jury  that  the  terms  "careless"  and 
"negligent,"  as  used  in  these  instructions,  do  not  imply  lack  of 
skill  or  capacity  but  simply  a  disregard  of  ordinary  prudence,  and, 

although  you  may  believe  the  defendant, ,  to  have  possessed 

all  the  qualifications  necessary  to  a  competent  and  skillful  physician 
and  surgeon,  yet  if  it  has  been  proven  that  he  was  careless  and 
negligent  in  reducing  the  dislocation  of  plaintiff's  shoulder,  and  that 
through  such  carelessness  and  negligence  plaintiff's  shoulder  has 
been  permanently  injured,  lamed  and  disfigured,  then  the  mere 
fact  that  the  defendant  may  have  been  competent  and  skillful  con- 
stitutes no  defense  to  this  action. 

(d)  The  court  instructs  the  jury  that  in  determining  this  case 
they  are  to  consider  that  the  defendant  did  not  warrant  a  cure,  but 
his  contract,  as  implied  in  law,  was  that  he  possessed  that  reason- 
able degree  of  learning,  skill  and  experience  which  is  ordinarily 
possessed  by  others  of  his  profession ;  that  he  would  use  reasonable 
and  ordinary  care  and  diligence  in  the  treatment  of  the  case;  and 
that  he  would  use  his  best  judgment,  in  all  matters  of  doubt  as  to 
the  proper  course  of  treatment.  The  defendant  is  not  responsible 
in  damages  for  want  of  success,  unless  it  is  shown  from  the  evidence 
to  result  from  the  want  of  ordinary  skill  and  learning,  and  such  as 
is  ordinarily  possessed  by  others  of  his  profession,  acting  under  like 
circumstances,  and  from  want  of  ordinary  care  and  attention.  The 
employment  of  the  defendant  by  plaintiff  was  not  for  extraordinary 
diligence  and  care,  and  defendant  cannot  be  made  responsible  in 
damages  for  errors  in  judgment,  or  mere  mistakes  in  matters  of 
doubt  or  uncertainty,  provided  he  exercised  and  used  in  the  treatment 
of  the  plaintiff  such  reasonable  skill  and  diligence  as  is  ordinarily 
exercised  and  used  in  the  practice  of  the  profession  of  defendant  by 
those  who  practice  under  like  conditions. 

(e)  The  court  instructs  the  jury  that  the  services  of  the  wife 
belong  wholly  to  her  husband,  and  if  you  believe  from  the  evidence 
that  plaintiff  is  a  married  woman,  having  a  living  husband,  then,  in 
estimating  her  damages,  if  any  you  find  she  has  sustained,  you  will 
not  take  into  consideration  her  loss  of  time  or  service  as  a  result 
of  her  injury,  if  any. 

(f)  The  court  instructs  the  jury  that  the  burden  of  proving  that 
the  defendant  was  careless  and  negligent  in  his  treatment  of  the 
plaintiff  is  placed  upon  her,  and,  before  she  can  recover  herein,  she 


868  FORMS  OF  INSTRUCTIONS.  [§  1303. 

must  establish  such  facts  by  a  preponderance  of  testimony,  and  in 
the  absence  of  such  preponderance,  they  will  find  the  issues  for  the 
defendant. 

(g)  The  burden  is  upon  the  defendant  to  prove  to  the  reasonable 
satisfaction  of  the  jury,  by  the  preponderance  of  the  evidence,  the 
defense  of  contributory  negligence  set  up  and  pleaded  in  his  answer; 
and,  if  he  has  failed  to  so  prove  and  satisfy  the  jury,  the  finding 
must  be  for  the  plaintiff  on  the  issue  of  contributory  negligence. 

(h)  If  the  shoulder  joint  of  the  plaintiff  slipped  out  of  place 
(that  is,  was  redislocated)  after  being  properly  set  and  treated  by 
defendant  when  called  upon  to  treat  her  for  dislocation  of  the  shoul- 
der as  charged,  and  the  patient  dismissed,  then  the  plaintiff  cannot 
recover  herein,  and  the  verdict  must  be  for  defendant. 

(i)  The  court  instructs  the  jury  that  proof  of  negligence  need 
not  be  by  direct  testimony,  but  may  be  infen-ed  by  the  jury  from 
all  the  facts  and  circumstances  in  evidence  in  the  case. 

(j)  The  court  instructs  the  jury  that  it  is  admitted  by  the  plead- 
ings that  defendant, ,  is  a  physician  and  surgeon,  that  plain- 
tiff's shoulder  was  dislocated,  and  that  plaintiff  employed  defendant 
to  set  and  heal  the  said  dislocation.25 

25— "Wheeler    v.    Bowles,    163    Mo.  398,  63  S.  W.  675  (677). 

Note.— See  chapter  32  on  Attorneys  for  want  of  skill  of  attorneys 

of  law. 


CHAPTER  LXI. 


MORTGAGES  AND  LIENS. 
See  Erroneous  Instructions,  same  chapter  head,   Vol.  III. 


§  1304. 
§  1305. 

§  1306. 

§  1307. 
§  1308. 

§  1309. 

§  1310. 

§  1311. 
§  1312. 

§  1313. 

§  1314. 
§  1315. 

§  1316 


MORTGAGES. 

Mortgage        securing        two 
debts,  one  valid,   the  other 
illegal. 
Person     having     Interest     in 
goods    covered    by    chattel 
mortgage    who    stands    by 
and   allows   property   to   be 
sold,  estopped. 
Property    bought    would    be 
measure  of  credit  if  sale  is 
fair. 
Penalty   for   failure    to    can- 
cel  mortgage   on  records. 
Application      of      payment- 
Mortgage    debt— Unsecured 
debt. 
Agreement      and      mortgage 
constituting  an  assignment 
—Power  of  attorney. 
Mortgage  —  Good        between 
the  parties  without  record- 
ing. 
As  to  creditors  must  be  ac- 
knowledged   and    recorded. 
To      constitute      notice      de- 
scription in  mortgage  must 
be  sufficient. 
Fraudulent     purpose— Notice 
of  such  facts  as  would  lead 
a    man    of    ordinary    pru- 
dence to  acknowledge. 
Intent   to   defraud   must   ex- 
ist at  time  of,  etc. 
Priority      between      lien      of 
judgment        and        chattel 
mortgage— Mortgagor       re- 
taining  possession. 
Possession    by    the    mortga- 
gor   after    default. 
Possession      by      the     mort- 
gagee— Must     take     posses- 
sion of  the  property,  when. 


before 


1318.  Taking      possession 

debt  due. 

1319.  Sale      by      mortgagor— With 

the  consent  of  the  mort- 
gagee—For benefit  of  mort- 
gagee. 

i  1320.  Mortgage  to  secure  contin- 
gent liability. 

\  1321.  Giving  mortgage  for  more 
than  is  due— Good  faith- 
Future  advances. 

§  1322.  Mortgage  of  stock  of  goods 
—Sale  in  the  usual  course 
of   trade. 

§  1323.  Purpose  for  which  given — 
Burden  of  proof. 

LIENS. 

Lien  of  execution  by  statute. 

Lien  of  warehouseman — 
When  protected. 

Storage  charges— Right  of 
bailee   to    claim. 

Lien  -for  ladvances— Notice 
of  lien. 

Lien  of  farm  laborer— Stat- 
utory limitation. 

Vendor's    lien — Arises    when. 

What  landlord's  lien  for 
rent  includes— By  statute- 
Levy   on   crops. 

Levy  of  distress  warrant 
not  necessary  to  perfect 
lien. 

Lien  against  purchaser 
from  tenant— When. 

Lien  on  product  of  rented 
land— Knowledge  of  pur- 
chaser— Series. 
.  Mechanic's  lien— Brick  mak- 
ing machinery. 
.  Mechanic's  lien— Assignment 
of  contract— Claim  o'  lien 
filed  by  assignor  after  as- 
signment. 


§  1324. 
§  1325. 

§  1326. 

§  1327. 

§  1328. 

§  1329. 
§  1330. 

§  1331. 

§  1332. 
§  1333 

§  1334 
§  1335 


MORTGAGES. 

§  1304.  Mortgage  Securing  Two  Debts,  One  Valid,  the  Other  Illegal. 
If  one  gives  a  good  and  valid  consideration,  and  thereupon  another 
promises  to  do  "two  things,  one  legal  and  the  other  illegal,  he  shall 

869 


870  FORMS  OF  INSTRUCTIONS.  [§  1305. 

be  held  to  do  that  which  is  legal,  unless  the  two  are  so  mingled  and 
bound  together  that  they  cannot  be  separated,  in  which  case  the 
whole  promise  is  void;  and  this  is  so  whether  the  law  which  is 
violated  be  statute  or  common  law.1 

§  1305.  Person  Having  Interest  in  Goods  Covered  by  Chattel 
Mortgage,  Who  Stands  by  and  Allows  Property  to  be  Sold,  Estopped, 
(a)  If,  from  the  evidence,  you  find  that  the  plaintiff  had  knowledge 
that  the  defendant  was  about  to  sell  the  mortgaged  property,  and  that 
he  was  present  at  the  time  of  sale,  and  stood  by,  and  saw  the  same 
sold,  and  possession  taken  thereunder,  and  made  no  objections 
thereto,  then  he  is  estopped  from  claiming  damages  by  reason  of 
said  sale,  and  cannot  recover  by  reason  of  the  alleged  wrongful  con- 
version of  the  mortgaged  property  so  sold.2 

(b)  The  court  instructs  the  jury  that  although  you  find  from  the 
evidence  that  E.  received  from  M.  &  Co.  an  account  against  H.  &  Co. 
for  collection,  and  that  he  placed  his  mortgage  on  record  immediately 
after  receiving  said  account,  and  that  he  did  not  notify  M.  &  Co. 
that  he  had  a  mortgage  on  said  stock  of  goods,  these  facts  are  not 
sufficient  to  constitute  a  defense  of  estoppel  herein,  if  you  further 
find  from  the  evidence  that  the  note  and  chattel  mortgage  read  in 
evidence  was  given  by  said  H.  &  Co.  to  said  E.  (in  good  faith)  for 
a  valid  debt.3 

§  1306.  Property  Bought  Would  be  Measure  of  Credit,  if  Sale  is 
Fair.  If  the  property  was  sold  openly,  and  notice  was  published, 
and  it  was  a  fair  sale,  and  fairly  done,  then  the  amount  of  money 
that  the  property  brought  would  be  the  measure  of  credit.  The  de- 
fendant would  be  entitled  to  a  credit  only  for  the  amount  that  the 
property  sold  for  if  the  sale  was  had  fairly  and  honestly,  openly, 
and  after  due  notice  was  given.4 

1 — Smith   v.    Smith,    87   la.   93,    50  chased   the  property   that  such  es- 

N.    W.    64    (66),    citing    Casady    v.  toppel  would  avail." 

Woodbury  Co.,  13  Iowa  117.  3— State  ex  rel.   Kennen  v.  Fidel- 

2— Richardson  v.   Coffman,   87  la.  ity    &    Deposit    Co..    94    Mo.    App. 

121,  54  N.  "W.  356   (358).  184,    67    S.    W.    958    (962),   4   Am.    St. 

"In  support  of  the  above  propo-  Rep.  368. 

sition,   we   are   cited   to  authorities  "The  use   of  the  phrase   'in  good 

which    hold    that    one    'who    negli-  faith'    was    mere    surplusage,    and 

gently  or  culpably  stands  by,   and  did   not   in  the   least   prejudice   ap- 

allows   another  to   contract   on   the  pellants   or  invalidate   the   instruc- 

faith  and  understanding  of  a  fact  tion." 

which  he  can  contradict,  cannot  4— Morris  v.  Hubbard,  14  S.  D. 
afterwards  dispute  that  fact  in  an  525.  86  N.  W.  25  (28). 
action  against  the  person  whom  he  "The  only  evidence  offered  touch- 
has  himself  assisted  in  deceiving.'  ing  the  disposition  of  the  property 
Gregg  v.  "Wells,  10  Adol.  &  E.  90;  retained  by  the  mortgagee  was 
Miles  v.  Left,  60  Iowa  168,  14  N.  given  by  the  plaintiff,  the  sub- 
W.  233.  In  the  above  case,  how-  stance  of  which  has  been  stated. 
ever,  the  court  held  that  this  rule  In  the  absence  of  any  evidence  to 
did  not  apply  owing  to  the  fact  the  contrary,  it  should  be  pre- 
that  the  mortgagee  became  the  sumed  that  the  plaintiff  acted  law- 
purchaser  at  the  sale;  that  it  was  fully.  Therefore  the  mortgagors 
only   where    innocent    parties    pur-  were    only    entitled    to    credit    for 


§  1307.]  MORTGAGES  AND  LIENS.  871 

§  1307.  Penalty  for  Failure  to  Cancel  Mortgage  on  Records,  (a) 
If  the  jury  believe  from  the  evidence  that  the  plaintiff  had  fully 
paid  the  mortgages  and  had  served  written  notice  upon  the  defendant 
to  mark  the  records  "Satisfied"  and  that  the  defendant  failed  for 
more  than  two  months  to  satisfy  the  records  after  having  received 
said  notice,  it  is  not  necessary  for  the  plaintiff  to  prove  that  he  sus- 
tained any  damages  on  account  of  such  failure. 

(b)  This  suit  is  brought  for  the  recovery  of  a  penalty  on  account 
of  the  failure  of  the  defendant  to  mark  the  records  "Canceled" 
or  "Satisfied."  The  gist  of  the  action  is  the  failure  on  the  part  of 
the  defendant  to  satisfy  the  records  after  notice  in  writing  to  satisfy, 
and  the  plaintiff  does  not  have  to  prove  that  he  has  sustained  any 
damages.5 

§  1308.  Application  of  Payment — Mortgage  Debt — Unsecured  Debt. 
In  this  case,  gentlemen,  you  are  charged  that  when  a  debtor  owes  a 
secured  and  unsecured  debt  to  a  creditor,  and  pa37ments  are  made 
by  the  debtor  without  any  agreement  as  to  how  the  application  of  the 
payments  should  be  made,  the  proceeds  of  the  mortgaged  property 
should  be  applied  to  the  mortgage  debt  in  preference  to  the  unse- 
cured debt.6 

§  1309.  Agreement  and  Mortgage  Constituting  an  Assignment — 
Power  of  Attorney,  (a)  The  defendant  in  this  case  interposes  two 
defenses:  First,  that  the  mortgage  which  has  been  introduced  in 
evidence,  and  under  which  the  plaintiff  claims,  together  with  the 
agreement  signed  and  executed  about  the  same  time  as  the  execu- 
tion of  the  mortgage,  constituted  an  assignment,  and  under  the  law, 
the  same  was  void,  for  the  reason  that  affidavit  and  bond  had  not 
been  made,  as  the  law  regulating  assignments  makes  necessary. 

(b)  That  if  under  the  mortgage  and  agreement  first  executed  at 
or  about  the  same  time  as  the  mortgage,  and  which  have  been  in- 
troduced in  evidence,  the  property  was  taken  possession  of  by  the 
plaintiff,  and  handled  or  disposed  of  or  managed,  then  the  court  in- 
structs you  that  such  agreement  and  mortgage  together  constitute 
an  assignment,  and  that  the  mortgage  would  be,  therefore,  void.  But 
it  is  contended  by  the  plaintiff  that,  subsequent  to  the  execution  of 
the  mortgage  and  the  first  agreement,  that  a  power  of  attorney  was 
executed  to  the  plaintiff  by  H,  and  that  that  power  of  attorney  took 
the  place  of  and  was  substituted  for  the  agreement  which  was 
executed  at  or  about  the  time  of  the  execution  of  the  mortgage.  If 
you  are  satisfied  from  the  evidence  that  this  power  of  attorney  was 
executed  and  took  the  place  of  the  agreement  executed  at  the  same 
time  as  the  mortgage,  and  that  the  property  was  taken  possession  of 

the    amount    for   which    the    prop-  5 — Hoffman    v.    Knight,    127    Ala. 

erty  was   sold,   and    the   charge   of  149,  28  So.  593  (594). 

the    court    was    more    favorable   to  6 — Howard  et   al.   v.   Schwartz  et 

the  defendant  than  it  should  have  al.,    22    Tex.    Civ.    App.    400,    55    S. 

been."  W.    348    (349). 


872  FORMS  OP  INSTRUCTIONS.  [§  1310. 

and  managed  under  the  power  of  attorney,  and  not  under  the  agree- 
ment, and  that  the  agreement  was  not  in  force,  that  then  and  in 
that  event,  the  court  instructs  you  that  the  mortgage  and  power  of 
attorney  did  not  constitute  an  assignment,  and  that  the  mortgage  was 
therefore  not  void,  but  in  full  force  and  effect.  Hence  the  question 
of  the  invalidity  of  the  mortgage  or  its  validity  is  a  question  foi 
your  determination  from  all  the  evidence  in  the  case,  depending,  as 
I  have  said,  upon  the  question  whether  the  agreement  was  in  force 
with  the  mortgage,  or  the  power  of  attorney  subsequently  executed 
was  in  force  with  the  mortgage,  and  took  the  place  of  agreement. 
If  the  agreement  and  mortgage  were  in  force,  then  the  mortgage 
was  void,  and  in  that  event  upon  this  issue  you  should  find  lor  tin- 
defendants;  but,  if  the  power  of  attorney  and  mortgage  were  in 
force,  then  the  mortgage  was  good,  and  upon  that  issue  you  should 
find  for  the  plaintiff.7 

§  1310.  Chattel  Mortgage  as  Against  Judgment  Creditors — Mort- 
gage Good  Between  the  Parties  Without  Recording.  The  court  in- 
structs the  jury,  that  the  chattel  mortgage,  introduced  in  evidence 
in  this  case,  if  made  and  received  in  good  faith  on  the  part  of  the 
mortgagee,  is  sufficient  to  invest  him  witli  the  right  to  take  the 
property  therein  described  and  to  retain  it  for  the  purpose  of  selling 
it,  as  provided  in  the  mortgage,  even  though  it  has  not  been  recorded 
as  required  by  law.8 

§  1311.  As  to  Creditors,  Must  be  Acknowledged  and  Recorded. 
(a)  If  the  chattel  mortgage  is  not  acknowledged  before  a  justice 
of  the  peace  of  the  town  where  the  mortgagor  resides,  and  an  entry 
of  it  made  on  his  docket,  or  if  it  is  not  tiled  for  record  in  the  office  of 
the  recorder  of  deeds,  then,  as  to  the  creditors  of  the  mortgagor,  it 
will  be  invalid,  and  they  may  levy  an  execution  on  the  property,  as 
though  no  mortgage  had  been  made.0 

(b)  The  court  instructs  you  that  unless  one  is  charged  with 
record  or  constructive  notice  of  said  mortgage  his  purchase  would 
be  superior  to  and  free  from  lien  of  plaintiff's  mortgage.  Construct- 
ive or  record  notice  is  such  notice  as  is  presumed  to  be  imparted  by 

7— Hargadine-McKitrick      D.      G.  same    time    as    the    mortgage    was 

Co.    v.    Bradley,    4   Ind.    T.    242,    69  laid  aside  between  the  parties,  and 

S.   W.    862   (865).  the   power  of  attorney   substituted 

"Taking  the  court's  entire  charge  in    its    place,    and    that,     if     they 

and   comparing   it   with    the   direc-  found   one   way   or   other,    the   law 

tions    and    holding    of    the    circuit  with     reference     to     their     finding 

court  of  appeals  of  the  Eighth  eir-  made   the  mortgage  void   or   valid, 

cuit,  we  are  satisfied  that  it  fully,  asthey  should   find.    And   the  cir- 

fairly,  and  cogently  announces  the  cuit  court  of  appeals  say  that  this 

law  of  the  case  in  accordance  with  was  the  question  in  the  case  to  be 

said   decision.  The  charge  was  not  submitted  and  referable  to  a  jury." 

misleading   in    any    way.    It    fairly  8— Fuller  v.   Paige,   26  111.    358,   79 

told   the  jury  that  it  was  in  their  Am.  Dec.  379. 

province  to  say  whether  or  not  the  9— Porter  v.  Dement,  35  111.  478. 
agreement   made    at    or   about   the 


§  1312.]  MORTGAGES  AND  LIENS.  873 

recording    in    the    proper    county    a    properly    drawn    and    properly 
acknowledged  instrument.10 

(c)  The  jury  are  further  instructed,  that  a  chattel  mortgage  not 
acknowledged  or  recorded,  though  obligatory  and  binding  between 
the  parties  to  it,  is  void  as  to  creditors  and  purchasers  in  good 
faith.11 

§  1312.  To  Constitute  Notice,  Description  in  Mortgage  Must  be 
Sufficient,  (a)  To  be  properly  drawn  it  must  contain  a  sufficient  de- 
scription of  the  property  intended  to  be  mortgaged.  If  the  description 
of  the  property  be  not  sufficient,  the  recording  of  the  mortgage  will 
not  constitute  notice.  The  description  contained  in  the  mortgage  in 
question,  on  the  face  thereof,  appears  to  be  sufficient  in  law.  It  is 
for  you  to  determine  whether  it  is  sufficient  in  fact,  from  the  evidence 
in  the  case. 

(b)  The  defendant  claims  that  the  description  contained  in  the 
mortgage  is  not  sufficient  in  fact.  To  be  sufficient  in  fact,  the  de- 
scription must  be  such  that  a  third  person  may  take  said  mortgage, 
and  from  the  facts  therein  stated,  and  inquiries  therein  suggested, 
and  such  only,  can  identify  the  property  covered  by  said  mortgage 
with  certainty.  A  description  is  sufficient  which  enables  a  third 
party,  aided  by  the  inquiries  which  the  instrument  itself  suggests, 
to  identify  the  property  covered  by  it.  If  it  directs  the  mind  of  the 
inquirer  to  facts  or  evidence  from  which  he  may  ascertain  the  mort- 
gaged property  with  certainty,  it  is  sufficient.  When  a  mortgage 
contains  a  description,  part  of  which  is  true  and  part  false  and  er- 
roneous, that  which  is  false  or  erroneous  may  be  stricken  out  as 
redundant  or  superfluous,  and  the  description  will  be  sufficient  if 
enough  remains  to  lead  a  third  party,  by  the  inquiries  it  suggests,  to 
the  identification  of  the  property  covered  by  it.  You  are  to  take  the 
mortgage  in  question,  and,  under  the  rules  above  announced,  as- 
certain whether  the  property  described  in  it,  under  the  evidence 
before  you,  can  thus  be  identified.  If  it  can  thus  be  identified  the 
description  is  sufficient,  and  the  recording  of  the  chattel  mortgage 
in  question  constituted  constructive  notice  to  the  defendant  of  the 
existence  of  said  mortgage,  and  his  purchase  of  the  cattle  in  contro- 
versy was  subject  to  the  lien  thereof. 

(c)  If  you  find  that  the  description  in  said  mortgage  is  sufficient 
under  the  rules  set  forth,  you  will  find  for  the  plaintiffs  as  to  such 
property  in  controversy  as  you  find  covered  by  said  mortgage,  unless 
you  should  further  find  the  plaintiffs  have  waived  the  lien  of  their 
mortgage  as  above  indicated.  If  you  find  that  the  property  described 
in  the  mortgage  can  not  be  identified  with  certainty  under  the  rules 
above  given,  and  you  find  that  the  description  is  insufficient,  then 
the  recording  of  the  mortgage  in  question  would  not  constitute  notice 

10— Livingston  v.   Stevens,  122  la.      Grimmer  v.    Nolen,   —   Ala.   — ,   40 
62,  94  N.  W.  925  (927-8).  So.  97. 

11— Forest  v.  Tinkham,  29  111.  141; 


874  FORMS  OP  INSTRUCTIONS.  [§  1313. 

to  defendant  of  the  existence  of  said  mortgage,  and  his  purchase 
of  the  cattle  in  controversy  was  free  from  and  superior  to  the  claims 
of  the  plaintiffs  under  their  mortgage,  and  you  will  find  for  the  de- 
fendant.12 

§  1313.  Fraudulent  Purpose — Notice  of  Such  Facts  as  Would 
Lead  a  Man  of  Ordinary  Prudence  to  a  Knowledge.  The  jury  are 
instructed  that  the  mortgage  introduced  by  the  plaintiff  in  evidence 
is  not  fraudulent  on  its  face;  and,  in  order  for  you  to  find  for  the 
defendant,  you  must  believe  that  there  was  a  fraudulent  purpose  in 
the  making  and  receiving  of  the  same,  which  was  shared  by  both  the 
plaintiff  in  this  action  and  R,  who  made  the  same.  Or  that  R  had 
such  fraudulent  purpose,  and  plaintiff  had  notice  of  such  facts  as 
would  lead  a  man  of  ordinary  prudence  to  a  knowledge  of  such 
fraudulent  purpose  on  the  part  of  said  R ;  and  you  are  also  in- 
structed that  such  a  belief  must  be  formed  from  believing  that  a 
preponderance  of  the  testimony  goes  to  establish  such  facts.13 

§  1314.  Intent  to  Defraud  Must  Exist  at  Time  of,  Etc.  To  render 
a  chattel  mortgage  fraudulent,  the  intent  to  defraud  must  exist  when 
the  mortgage  is  made.  The  mortgagor's  subsequent  conduct  in  deal- 
ing with  the  property,  while  it  may  be  considered  by  the  jury  in  de- 
termining whether  there  was  fraud  in  the  making  of  the  mortgage, 
will  not  itself  render  the  mortgage  void.14 

§  1315.  Priority  Between  Lien  of  Judgment  and  Chattel  Mort- 
gage— Mortgagor  Retaining  Possession,  (a)  If  the  jury  believe, 
from  the  evidence,  that  the  plaintiff's  only  claim  to  the  property  in 
question  was  derived  from  the  mortgage  in  evidence  and  that  the 
property  was  allowed  to  remain  in  the  possession  of  the  mortgagor, 
after  the  expiration  of  the  time  for  the  payment  of  the  debt  secured 
by  said  mortgage,  and  after  a  reasonable  time  for  the  mortgagee  to 
take  possession  of  the  property,  and  that  while  it  was  so  in  the 
possession  of  the  mortgagor,  the  execution  introduced  in  evidence 
was  placed  in  the  hands  of  the  officer  (or  was  levied  on  the  property), 
then  the  law  is,  that  the  property  was  liable  to  such  execution.15 

(b)     You  are  instructed  that  a  chattel  mortgage,  although  filed 

12 — Livingston  v.  Stevens,  122  la.  which,     if     inquired     into,     would 

62,  94  N.  W.  925  (927-8).  have   led   to   a   knowledge   thereof. 

13— Kay  v.   Noll,   20   Neb.   380,   30  But  in  the  case  at  bar  there  is  no 

N.  W.  269  (272).  evidence  of  a  fraudulent  intent  on 

The  court  approved  the  above  in-  the   part   of  the   mortgagor   at   the 

struction,  but  held  that  in  the  case  time    of   the   execution    or   delivery 

at    bar   there   was   no   evidence   to  of  the  mortgage,   nor  the  slightest 

sustain   it,    saying:  evidence    of    any    fact,    known    or 

"The    foregoing    instructions,     as  unknown    to    the    mortgagee,    indi- 

given,    no    doubt    contain    a    very  eating,   or  tending  to   indicate,   the 

fair  exposition  of  the  law  applica-  existence    of    a    fraudulent    intent 

ble  to  a  case  where  there  was  evi-  on  the  part  of  R.,  the  mortgagor." 

dence    of    a    fraudulent    intent    on  14 — Horton  v.  Williams,  21  Minn, 

the  part  of  the  mortgagor,   and  of  187. 

the  existence  of  facts,  at  the  time  15 — Whisler    v.     Roberts,     19    111. 

of  the   execution   of  the  mortgage,  274;  Richley  v.  Childs,  114  111.  App. 

indicating   such   fraudulent    intent,  173. 


g  1316.]  MORTGAGES  AND  LIENS.  875 

for  record,  is  prima  facie  fraudulent  as  to  creditors  and  bona  fide 
purchasers  if  the  mortgagor  retains  possession  of  the  mortgaged 
property;  and  the  person  claiming  under  such  mortgage  must  make 
it  appear  that  the  same  was  made  in  good  faith,  in  order  to  re- 
cover. 

(c)  You  are  instructed  that  it  is  not  only  the  honesty  of  the  debt 
secured,  but  the  purpose  of  the  conveyance,  to  which  the  statute 
has  referred.  An  honest  debt  is  an  important  part  of  the  transac- 
tion, but  if  the  mortgage  was  given  by  the  mortgagor  and  taken  by 
the  mortgagee  with  intent  to  hinder  and  delay  creditors,  theu  it  is 
void,  though  an  honest  debt  be  secured  by  the  instrument.16 

§  1316.    Possession  by  the  Mortgagor  After  Default.    The  jury  are 

instructed,  as  a  matter  of  law,  that  when  mortgaged  chattels  have 
been  reduced  to  possession,  after  default,  and  the  title  has  become 
absolute  in  the  mortgagee,  he  may  then  loan  the  property  to  the 
mortgagor,  precisely  as  he  might  any  of  his  other  property,  and  such 
repossession  by  the  mortgagor  would  not  render  the  mortgage,  or 
the  mortgagee's  title  under  it,  fraudulent  or  void  as  to  creditors.17 

§  1317.  Possession  by  the  Mortgagee — Must  Take  Possession  of 
the  Property,  When,  (a)  If  you  believe,  from  the  evidence,  that  the 
mortgage  introduced  in  evidence  in  this  case,  was  made  in  good  faith, 
and  given  for  a  good  and  valuable  consideration,  and  that  the 
mortgagee  had  taken  the  property,  and  was  in  possession  of  it  under 
the  mortgage  when  the  attachment  writ  (or  execution)  was  issued 
and  levied,  then  the  mortgagor  had  but  a  right  of  redemption  in  the 
property,  and  this  right  would  not  be  subject  to  be  taken  by  the 
creditors  of  the  mortgagor,  unless  they  first  paid  to  the  mortgagee 
the  amount  of  his  claim  against  ,the  property.18 

(b)  The  court  instructs  the  jury,  that  the  law  requires  a  person 
having  a  chattel  mortgage  on  property,  in  order  to  hold  the  property 
as  against  innocent  purchasers  and  creditors,  to  take  possession  of 
the  property,  under  the  mortgage,  as  soon  as  it  can  reasonably  be 
done,  after  the  debt  which  it  is  made  to  secure  becomes  due.  If 
there  is  any  unnecessary  delay  in  taking  such  possession  of  the 
property,  then  the  property  will  be  liable  to  be  levied  upon,  or  sold  as 
the  property  of  the  mortgagor.19 

§  1318.  Taking  Possession  Before  Debt  Due.  The  jury  are  in- 
structed that  under  the  mortgage  introduced  in  evidence  it  was  com- 
petent for  the  defendant  to  take  possession  of  and  sell  the  mortgage 
property  at  any  time  when  he  should  deem  himself  insecure,  not- 
withstanding the  debt  had  not  matured  or  become  due  and  payable, 
and  if  the  jury  believe,  from  the  evidence,  that  the  property  iu 
question   was  embraced  in   the   mortgage,    and   that  the  defendant, 

16 — Marcus  v.  Leake,  4  Neb.  18 — Nash  v.  Norment,  5  Mo.  AjL-p. 
(UTiof.)  354,  94  N.  W.  100.  545. 

17— Funk  v.   Staats,   24  111.   632.  19— Barbour  v.  White,   37  111.  164. 


876  FORMS  OF  INSTRUCTIONS.  [§  1319. 

when  he  took  the  property  in  good  faith,  deemed  himself  insecure, 
then  he  had  a  right  to  take  the  property,  when  he  did  take  it  and  on 
that  point  the  jury  should  find  for  the  defendant.20 

§  1319.  Sale  by  Mortgagor— With  the  Consent  of  the  Mortgagee — 
For  Benefit  of  Mortgagee,  (a)  If  the  jury  believe  from  the  evi- 
dence, that  the  chattel  mortgage  introduced  in  evidence  was  made 
in  good  faith  and  to  secure  a  bona  fide  indebtedness,  then,  even 
though  the  jury  should  further  believe,  from  the  evidence,  that  the 
mortgagor,  from  time  to  time,  sold  off  certain  portions  of  the 
property,  with  the  knowledge  and  consent  of  the  mortgagee,  these 
facts  alone  would  not  render  the  mortgage  void  as  to  the  balance  of 
the  property.21 

(b)  Although  the  jury  may  believe  from  the  evidence  that  after 
the  said  mortgage  was  given  the  mortgagor  was  permitted  by  the 
plaintiff  to  sell  and  dispose  of  portions  of  the  property  covered  by 
the  mortgage,  still  this  would  not  render  the  mortgage  void  as  to 
the  creditors  of  the  mortgagor,  provided  the  jury  further  believe, 
from  the  evidence,  that  the  said  A.  B.  was  actually  indebted  to  the 
plaintiff — that  the  mortgage  was  made  in  good  faith  to  secure  such 
indebtedness  and  that  the  permission  by  the  plaintiff  to  sell  such 
property  was  given  in  writing  and  only  upon  condition  that  the 
avails  of  such  sales  should  be  turned  over  to  the  plaintiff  to  be  used 
in  discharge  of  the  indebtedness  secured  by  the  mortgage.22 

(c)  If  you  find  from  the  evidence,  by  the  greater  weight  thereof, 
that  the  plaintiffs,  at  the  time  of  the  sale  of  the  cattle  in  question 
to  T,  and  of  the  execution  of  the  mortgage  in  suit,  knew  that  it  was 
the  purpose  and  intent  of  T.  to  ship  said  cattle  out  to  Iowa 
and  sell  the  same,  for  the  purpose  of  procuring  money  with  which 
to  pay  the  purchase  price  thereof,  and  with  such  knowledge  made 
such  sale  to  him,  and  took  such  mortgage  from  him  in  contemplation 
of  the  sale  of  said  cattle  by  said  T,  then  you  may  inf  that  the 
plaintiff's  consent  to  such  sale,  and  by  such  acts  waived  the  lien 
of  the  mortgage ;  or,  if  you  find  from  the  evidence  by  the  greater 
weight  thereof  that  the  plaintiffs  at  the  time  of  the  sale  of  said 
cattle  and  the  execution  of  said  mortgage  orally  consented  to  the  sale 
of  said  cattle  by  T.,  you  will  find  that  they  waived  the  lien  of 
their  said  mortgage.23 

§  1320.  Mortgage  to  Secure  Contingent  Liability.  Although  the 
jury  may  believe  from  the  evidence  that  the  said  A.  B.  was  not  in- 
debted to  the  plaintiff  at  the  time  he  made  the  mortgage  in  question, 
still  if  the  jury  further  believe  from  the  evidence  that  at  that  time 
the  plaintiff  was  security  for  the  said  A.  B.   as    (a  guarantor)   on 

20— Evans    v.    Graham,    50    Wis.  22— Goodheart  v.  Johnson,   88  111. 

450,    7   N.    W.    380.  58. 

21— Jaffrav   v.   Greenbaum,   64  la.  23 — Livingston  v.   Stevens,   122  la. 

492,  20  N.  W.  775,  52  Am.   Rep.  449.  62,  94  N.  W.  925  (927). 


§  1321.]  MORTGAGES  AND  LIENS.  877 

certain  notes,  etc.,  and  that  the  said  chattel  mortgage  was  in  good 
faith  given  to  secure  the  said  plaintiff  against  his  contingent  liability 
as  such  guarantor",  then  the  said  mortgage  would  be  a  good  and  valid 
security  in  favor  of  said  plaintiff.24 

§  1321.  Giving  Mortgage  for  More  Than  is  Due — Good  Faith — 
Future  Advances,  (a)  You  have  heard  the  explanation  of  the  par- 
ties; and,  if  you  believe  (from  the  evidence)  that  the  plaintiffs' 
theory  is  true;  that  the  mortgage  was  given  in  good  faith,  to  secure 
a  present  indebtedness,  and  to  secure  this  further  indebtedness,  if 
there  is  any,  become  due  thirty  days  before  this  suit  was  commenced, 
— then  the  plaintiffs  are  entitled  to  recover  at  your  hands;  other- 
wise, not.  There  has  been  something  said  to  the  effect  that  this 
mortgage  was  fraudulent.  Now,  gentlemen,  while  it  is  a  badge  of 
fraud  to  give  a  mortgage  for  more  than  is  due,  a  mortgage  is  not 
fraudulent  for  including  future  advances. 

(b)  If  you  find  (from  the  evidence)  that  the  mortgage  was  given 
in  good  faith,  to  secure  an  honest  indebtedness  at  the  time, — it  would 
secure  it  as  between  all  the  parties  to  this  contention,  and  it  would 
also  secure  them  in  subsequent  indorsements,  bills,  notes  and  ad- 
vances made  by  them  for  the  benefit  of  coming  within 

the  contemplation  of  the  paper;  and  if,  thirty  days  before  this  suit 
was  commenced,  they  had  made  notes,  bills  and  advances  and  they 
were  due  and  payable  and  not  paid  thirty  days  before  the  suit  was 
commenced  in  this  cause,  the  plaintiffs  are  entitled  to  recover.25 

(c)  You  are  instructed  that  although  the  taking  of  the  mortgage 
by  the  mortgagee  for  a  greater  amount  than  was  actually  due  may 
be  regarded  as  one  of  the  badges  of  fraud,  yet  this  fact  alone  does 
not  render  the  mortgage  fraudulent  or  void,  if  no  fraud  was  really 
intended.26 

(d)  The  court  instructs  the  jury,  that  a  chattel  mortgage,  made 
in  good  faith,  to  secure  an  existing  indebtedness,  >and  also  further 
advances,  may  be  a  good  and  valid  mortgage.  It  is  not  essential  to 
the  validity  of  such  a  mortgage  that  it  should  show,  on  its  face,  that 
it  was  made  in  part  to  secure  such  future  advances.27 

(e)  Although  the  jury  may  believe,  from  the  evidence,  that  there 
was  a  good  consideration  for  the  said  note,  to  the  extent  of  $125, 
still,  if  the  jury  further  believe,  from  the  evidence,  that  there  was  no 
consideration  for  more  than  that  amount  and  that  the  said  note 
and  chattel  mortgage  were  given  for  a  greater  amount  than  was 
due,  for  the  purpose  of  defrauding,  hindering  and  delaying  creditors 
of  the  said  mortgagor,  then  the  said  note  and  mortgage  are  wholly 

24— Goodheart  v.  Johnson,  88  111.  Speer  v.   Skinner,   35   111.   282;   Mil- 

58.  ler    v.     Lockwood,     32    N.    T.     293; 

25— Hyde  v.   Shank,   77  Mich.   517,  Shirras     v.     Craig,     7     Cranch     34; 

43  N.  W.  890  (892).  Tulley   v.    Harlow,    35    Cal.    302,    95 

26— Pike  v.  Colvin,  67  111.   227.  Am.   Dec.  102;   Brown  v.  Kiefer,  71 

27— Bumo    on    Fraud.    Con  v.    229;  N.  Y.  610. 


878  FORMS  OF  INSTRUCTIONS.  [§  1322. 

void,  and  confer  no  right  whatever  upon  the  said,  etc., not 

even  for  the  $125.28 

§  1322.  Mortgage  of  Stock  of  Goods — Sale  in  the  Usual  Course  of 
Trade.  The  court  instructs  the  jury,  that  a  chattel  mortgage  of  a 
stock  of  goods,  used  in  the  way  of  retail  trade,  and  where  the  mort- 
gagor is  allowed  to  continue  in  the  possession  of  the  property,  and  to 
sell  the  goods  in  the  usual  course  of  trade,  is,  in  law,  fraudulent  and 
void,  as  against  the  creditors  of  the  mortgagor,  no  matter  whether 
the  parties  intended  any  actual  fraud  or  not.29 

§  1323.  Purpose  for  Which  Given — Burden  of  Proof.  In  reference 
to  the  several  mortgages  which  have  been  read  in  evidence  before 
you,  I  instruct  you  that  either  party  may  show  by  pi'oof  that  the 
mortgage  was  given  and  received  for  any  purpose  other  than  what  is 
expressed  in  the  instrument  itself,  but  in  such  case  the  burden  is  on 
the  persons  asserting  that  the  mortgage  was  given  for  such  purpose, 
other  than  the  purpose  therein  stated,  as  the  law  presume.s  that  the 
parties  to  the  instrument  expressed  the  contract  correctly  in  the 
language  they  used  in  the  instrument.30 


LIENS. 

§  1324.  Lien  of  Execution  by  Statute.  The  jury  are  instructed, 
that  the  execution  read  in  evidence,  was  a  lien  upon  all  the  personal 
property  of  A.  B.,  the  defendant  therein,  from  the  time  the  execu- 
tion came  into  the  hands  of  the  officer,  and  that  no  sale  or  transfer 
of  such  property,  by  the  said  A.  B.,  after  tha.t  time,  could  destroy 
or  affect  such  lien.  And  if  the  jury  believe,  from  the  evidence,  that 
the  alleged  sale  and  delivery  of  the  property,  by  A.  B.  to  the  plain- 
tiff, was  made  after  the  execution  came  into  the  hands  of  the  officer, 
such  sale  would  be  void  as  against  the  execution  creditors,  no  matter 
whether  made  in  good  faith  and  for  a  valuable  consideration  or  not, 
and  the  property  could  properly  be  taken  on  the  execution.31 

§  1325.  Lien  of  Warehouseman — When  Protected.  And,  in  this 
case,  if  you  believe,  from  the  evidence,  that  the  defendants,  A.  and 
B.,  on  or  about,  etc.,  received  the  property  in  question  in  the  regular 
course  of  their  business  as  warehousemen,  and  paid  to  the  carrier 

the  sum  of  $ ,  which  had  accrued  for  the  carriage  of  the  goods, 

and  afterwards  kept  the  goods  in  store,  then  the  defendants  would 
have  a  right  to  retain  the  possession  of  the  goods  until  the  sum  ad- 

28— Hoey  v.  Pierron,  67  Wis.  262,  541;    Dodsre   v.    Norlin,   66   C.   C.    A. 

30  N.  W.  692.  425.  133  Fed.  363. 

29— Davis  v.   Ransom,   18  111.   396;  30— Abbott    v.    Stiff,    —    Tex.    — , 

Cheatham    v.    Hawkins.    80    N.    C.  81   S.  W.   562   (563). 

161;     Peiser    v.    Peticolas,    50    Tex.  31— Childs   v.    Jones,    60   Ala.    352; 

638.   32  Am.   Rep.   621:    Anderson  v.  Marsh  v.  Newton,  71  Ind.  22. 
Patterson,    64    Wis.    557,    25    N.    W. 


§  1326.]  MORTGAGES  AND  LIENS.  879 

vanced  by  them,  and  all  proper  charges  for  storage,  was  paid  or 
tendered.32 

§  1326.  Storage  Charges — Right  of  Bailee  to  Claim.  If  you  do 
not  believe  that  the  plaintiff  agreed  to  take  back  the  pumps  and 
credit  them  on  the  defendant's  indebtedness,  as  defendant  alleges, 
but  believe  that  they  were  only  taken  back  and  stored  as  defendant's 
property,  then  you  will  find  for  the  plaintiff  the  full  amount  of  the 
account  of  storage  and  of  the  note,  with  interest  and  attorney's  fees 
on  the  principal  and  interest  on  the  note.33 

§  1327.  Lien  for  Advances — Notice  of  Lien.  The  court  charges 
the  jury  that  if  they  believe  from  the  evidence  that  the  poles  sued 
for  were  cut  from  lands  in  the  possession  of  the  defendant,  by  B.  un- 
der an  agreement  that  defendant  was  to  make  certain  advances  to  B. 
and  was  to  hold  and  keep  possession  of  such  poles  till  his  stumpage 
■and  such  advances  were  paid,  and  if  they  further  believe  from  the 
evidence  that  at  the  time  they  were  inspected  by  plaintiff's  agent 
that  they  were  then  in  the  possession  of  the  defendant,  and  that  the 
said  agent  was  notified  by  defendant,  while  he  was  inspecting  said 
poles,  of  such  arrangement,  and  that  defendant  insisted  on  its  per- 
formance, and  that  such  poles  were  not  removed  when  inspected,  but 
were  left  where  inspected,  then  the  giving  by  the  said  agent  to  B. 
of  a  receipt  for  the  poles  inspected  by  him  would  not  be  such  a 
delivery  of  the  poles  as  would  take  them  out  of  the  possession  of 
the  defendant;  and  if  they  further  believe  from  the  evidence  that 
all  the  stumpage  due  defendant  has  not  been  paid  or  tendered,  and 
that  the  advances  have  not  been  paid,  then  they  must  find  for  the  de- 
fendant.34 

32— Hale    v.    Barrett,    26    111.    195;  by     appellee.    If     there     was     no 

Stoddard    v.    Crocker,    100   Me.   450,  agreement    for    the    return    of    the 

62  Atl.   241.  goods,   and   that   is   made   a   condi- 

33 — Smith    v.    Heitman    Co.,    tion    of    the    finding    of    the    jury, 

Tex.  ,  98  S.  W.  1074.  what  was  done  by  appellee  in  stor- 

"The  first  objection  to  this  ing  the  goods  was  done  solely  in 
charge  is  that  it  authorizes  the  appellant's  interest  and  for  his 
jury  to  allow  the  storage  charges  benefit.  Appellee  might  have  re- 
paid by  the  appellee,  even  though  fused  to  have  anything  to  do  with 
appellant  had  not  authorized  ap-  the  stuff;  but,  having  shipped  it 
pellee  to  store  the  goods,  or  agreed  without  notice  or  instruction  of 
to  pay  for  the  same.  If,  in  fact,  any  kind,  appellant  cannot  avoid 
S.  had,  as  claimed  by  appellee,  liability  for  storage  charges  actu- 
shipped  the  goods  to  it  without  ally  paid  on  this  ground.  By  his 
notification  or  instruction,  and  positive  'act  he  constituted  ap- 
without  any  previous  agreement  pellee  his  bailee  without  hire  or 
with  regard  thereto,  appellee  be-  compensation,  and  will  not  be  al- 
came  the  gratuitous  bailee  there-  lowed  to  impose  upon  it  the  addi- 
of  for  appellant,  and  in  such  case  tional  burden  of  the  payment  of 
he  had  a  right  to  store  the  goods,  the  storaere  charges,  which  in  no 
which  is  shown  to  have  been  nee-  way  inured  to  its  benefit.  Schouler 
essary  for  their  safe-keeping  and  on  Bailments,  62;  Story  on  Bail- 
protection,  without  further  author-  ments,  par.  121;  16  Cyc.  193,  and 
-V  from  appellant  to  do  so,  and  note,  citing  cases." 
.  vpellant  would  be  liable  for  neces-  34 — Austin  v.  Heironymus,  117 
yavy  storage  charges  actually  paid  Ala.   620,   23   So.   660   (661). 


880  FORMS  OF  INSTRUCTIONS.  [§  1328. 

§  1328.  Lien  of  Farm  Laborer — Statutory  Limitation.  If  they  find 
that  plaintiff  had  a  lien  for  work  done  as  alleged  in  his  declaration, 
then  any  such  lien  expired  six  months  from  the  last  day  on  which 
any  such  work  and  labor  were  performed,  and  that,  unless  the  evi- 
dence shows  that  this  suit  was  commenced  within  such  period  of  six 
months,  the  plaintiff  cannot  maintain  his  claim  to  a  lien  on  said 
land.35 

§  1329.  Vendor's  Lien — Arises,  When.  An  implied  vendor's  lien 
is  such  as  arises  by  operation  of  the  law  in  favor  of  the  vendor  of 
the  land,  as  against  the  vendee,  to  secure  the  former  in  the  payment 
of  the  consideration  which  the  latter  owes  him  for  the  land.  Or- 
dinarily, where  one  party  sells  land  to  another,  and  makes  him  a 
deed,  an  implied  lien  arises,  independent  of  any  agreement  between 
the  parties,  to  secure  the  vendor  in  the  payment  of  any  unpaid  part 
of  the  purchase  money,  unless  it  appear  from  the  evidence  that  it 
was  intended  between  the  parties  that  no  lien  should  exist,  or  that 
the  lien  was  understood  between  the  parties  to  be  waived.36 

§  1330.  What  Landlord's  Lien  For  Rent  Includes — By  Statute — 
Levy  on  Crops,  (a)  The  jury  are  instructed,  that  the  statute  of  this 
state  gives  a  landlord  a  lien  upon  the  crops  grown  or  growing  upon 
the  demised  premises,  in  any  year,  for  the»rent  that  shall  accrue  for 
that  year,  whether  the  rent  be  payable  in  money,  labor,  or  a  share 
of  the  crops  raised;  and  this  lien  is  not  confined  to  any  particular 
crop,  but  embraces  all  the  crops,  or  any  portion  of  them,  no  matter 
upon  which  particular  part  of  the  premises  they  were  raised.37 

(b)  Under  our  statute  the  landlord  has  a  lien  upon  the  crops  grown 
and  growing  upon  the  demised  premises,  in  any  year,  for  the  rent 
thereof  for  that  year,  and  such  lien  continues  for  the  period  of  six 
months  after  the  expiration  of  the  term  for  which  the  premises  were 
rented,  and  no  levy  of  the  crops  thus  grown,  or  sale,  under  an  exe- 
cution against  the  tenant,  will  divest  the  landlord  of  such  lien.38 

§  1331.  Levy  of  Distress  Warrant  not  Necessary  to  Perfect  Lien. 
The  court  instructs  the  jury,  that  the  law  gives  the  landlord  a  lien 
upon  the  crops  grown  or  growing  upon  the  rented  premises,  in  any 
one  year,  for  the  rent  of  that  year;  that  such  lien  does  not  depend 
upon  the  levy  of  any  distress  warrant,  but  is  given  by  the  statute, 
and  no  creditor  of  the  tenant  can  defeat  the  landlord's  lien  by  levy- 
ing an  attachment  or  an  execution  upon  the  property  before  the  is- 
suing of  a  distress  warrant  by  the  landlord.39 

35— Hume  v.  Simmons,  34  Fla.  584,  erred   in   refusing  to   give   the   in- 

16   So.   552   (554).  struction  asked  by  appellant." 

"We    are    satisfied    that    the    six  36— Cross    v.     Kennedy,    —    Tex. 

months  limitation  prescribed  in  the  Civ.   App.   — ,   66   S.   TV.   318. 

seventeenth    section    of  the   act   of  37 — Thompson    V.     Mead,     67    111. 

1887  applies  to  all  actions  for  en-  395;  Parks  v.  Laurens  Cotton  Mills, 

forcing   liens  created   by  the  third  70  S.   C.   274,  49  S.  E.   871. 

sorption   of   said   act,   the  only  one  38— Miles  v.  James,  36  111.  399. 

under    which    appellee    can    insist  39— Mead  v.  Thompson,  78  111.  62. 

that  he  had  any  lien  on  the  land,  Except  as  to  growing  crops,  the 

and,  this  being  the  case,  the  court  lien  of  the  landlord  does  not  arise, 


§  1332.]  MORTGAGES  AND  LIENS.  881 

§  1332.    Lien  Against  Purchaser  From  Tenant,  When,    (a)    And 

when  a  purchaser  of  corn  from  a  tenant  knows  of  the  fact  of  tenancy, 
and  that  his  vendor,  as  such  tenant,  had  raised  the  corn  on  the  de- 
mised premises,  this  will  be  notice  to  him  of  any  lien  the  landlord 
may  have  upon  the  same  for  unpaid  rent.40 

(b)  The  court  instructs  the  jury,  that  if  they  believe,  from  the  evi- 
dence, that  when  the  defendant  purchased  the  grain  in  question  he 
knew  that  A.  B.  rented  from  the  plaintiff  the  land  whereon  the  grain 
was  raised,  and  that  he  neglected  and  failed  to  inquire  into  the  facts 
regarding  the  plaintiff's  lien  thereon,  to  the  extent  that  a  reasonably 
prudent  man  should  have  done  under  the  circumstances  proved,  then 
the  jury  should  find  for  the  plaintiff.41 

§  1333.  Lien  on  Product  of  Rented  Lands — Knowledge  of  Pur- 
chaser— Series,  (a)  The  court  charges  the  jury  that  a  person  is 
chargeable  with  knowledge  of  the  landlord's  lien  who  knows  that 
the  property  purchased  is  the  product  of  rented  lands. 

(b)  If   the   jury   believe   from   the   evidence   that   S.   rented   the 

land  called  the  "N.  Place"  from  the  plaintiff  in  the  year ,  and 

raised  cotton  thereon  and  removed  the  same  therefrom  without  pay- 
ing the  rent  thereof  for  the  said  year,  and  without  the  consent  of 
the  plaintiff,  and  shipped  the  same  to  defendants,  and  they  sold  the 
same,  and  failed  and  refused  to  pay  said  rent  to  plaintiff,  and  the 
defendants,  before  they  sold  said  cotton,  had  knowledge  of  any  fact 
sufficient  to  put  them  on  inquiry,  which,  if  prosecuted  with  reason- 
able diligence,  would  have  disclosed  to  them  the  fact  that  said  cotton 
was  raised  on  land  rented  by  said  S.  from  the  plaintiff  in  said  year, 
they  must  find  for  the  plaintiff,  and  it  is  immaterial  from  what  source, 
or  by  what  method,  or  at  what  time,  the  information  was  ob- 
tained. 

(c)  If  the  jury  believe  from  the  evidence  that  the  plaintiff  con- 
sented to  S.  shipping  and  selling  the  cotton  raised  upon  the  rented 
place  before  paying  the  rent,  then  they  ought  to  find  a  verdict  for 
the  defendants,  and  such  consent  may  be  expressed  or  implied  from 
the  dealings  between  the  parties. 

(d)  The  court  charges  the  jury  that  any  statement  that  S.  may 
have  made  to  the  plaintiff  to  the  effect  that  defendants  had  told 
him  to  ask  plaintiff  to  extend  the  date  of  the  payment  of  rent  is  no 
evidence  as  against  them  that  defendants  sent  plaintiff  any  such 
message,  and  should  not  be  considered  by  the  jury  as  evidence  that 
defendants  sent  any  such  message. 

(e)  The  court  charges  the  jury,  that  if  defendants  had  no  knowl- 
edge or  notice  of  plaintiff's  lien  for  rent,  or  of  facts  putting  them 

in    Illinois,    until    levy    of    distress        40— Watt  v.   Scofield,  76  111.  261. 
warrant.      See    Springer    v.    Lipsis,        41— Prettyman    v.   TJnland.   77   111. 

ilO  111.   App.   109,   aff'd   209   111.   261,  206;  Thomas  v.  Tucker.  Zeve  &  Co., 

70  N.   E.  641.  —  Tex.  Civ.  App.  — ,  89  S.  W.  802. 

56 


882  FORMS  OF  INSTRUCTIONS.  [§  1334. 

upon  inquiry  as  to  such  lien,  the  jury  ought  to  find  a  verdict  for  de- 
fendants. 

(f )  The  court  charges  the  jury  that  if  they  believe  from  the  evi- 
dence, that  S.  shipped  his  cotton  to  defendants,  and  that  they  sold 
the  cotton  and  accounted  to  S.  for  it  by  applying  part  of  the  pro- 
ceeds to  the  payment  of  S.'s  debt  to  defendants,  and  by  paying  S.'s 
drafts  for  the  balance  before  plaintiff  demanded  his  rent  of  de- 
fendant, the  jury  ought  to  find  a  verdict  for  defendants,  unless  they 
further  believe  that  defendants  knew  that  part  of  the  cotton  was 
raised  upon  rented  land,  or  had  notice  of  the  fact  that  would  reason- 
ably put  a  merchant  upon  inquiry  as  to  such  rental,  and  which,  if 
followed  up  by  diligent  inquiry,  would  have  resulted  in  knowledge 
on  the  part  of  defendants  of  such  renting,  and  the  burden  of  proving 
such  knowledge  or  notice  would  under  the  circumstances  stated  above 
be  upon  the  plaintiff.42 

§  1334.  Mechanic's  Lien — Brick-Making  Machinery.  That  if  the 
jury  from  the  evidence  believes  the  facts  to  be  that  defendant  G. 
Brick  &  Quarry  Company  acquired  the  lots  which  are  in  the  pe- 
tition and  lien  claim  in  this  cast;  described  for  the  purpose  of  erect- 
ing thereon  a  plant  for  the  manufacture  of  brick  by  the  dry  process; 
that  at  the  time  when  defendant  so  acquired  said  lots  there  was 
standing  thereon  in  an  unfinished  condition  a  building  designed  to  be 
used  in  the  manufacture  of  brick;  that  thereafter  said  defendant 
ordered  from  plaintiff  the  brick  press  mentioned  in  said  petition, 
and  also  ordered  from  plaintiff  the  brick  in  said  petition  speci- 
fied; that  plaintiff  delivered  said  brick  to  said  defendant;  and  the 
same  were  at  the  instance  of  said  defendant  used  in  putting  up  neces- 
sary kilns  for  the  completion  of  said  plant;  that  plaintiff  also 
brought  to  defendant's  premises  said  press  and  so  affixed  and  built 
the  same  into  the  building  aforesaid  that  the  same  became  a  part 
thereof;  that  there  was  also  attached  to  said  building  a  boiler  and 
engine  room  and  boiler,  engine  and  machinery  necessary  to  operate 
said  plant,  and  that  said  press  was  at  the  instance  of  said  defendant 
connected  with  said  machinery;  that  conveyors  and  other  appliances 
were  also,  at  the  instance  of  said  defendant  placed  in  said  premises 
and  that  thereby  the  said  kilns  were  connected  with  said  machinery 
and  press ;  and  that  all  of  the  erections  pertaining  to  said  plant  were 
placed  under  one  continuous  and  permanent  roof,  so  that  there  would 
be  no  exposure  to  the  elements  of  the  machinery  or  material  used 
in  the  manufacture  of  brick  in  said  plant ;  and  if  the  jury  also  be- 

42 — Foxworth  v.   Brown,  114  Ala.'  of    rented    land,    he    is    chargeable 

299,   21   So.   413   (414).  with    knowledge    of    the    landlord's 

Charges    (a)    and     (b)    were    re-  lien    and    should    have   been    given, 

quested  by  plaintiff.     The  remain-  Masterson   v.    Bentley.   60  Ala.   520; 

ing  insti'uctions  were  requested  by  Boggs    v.    Price,    64    Ala.    519.     "We 

defendant.     The  court  said:  have   examined   the   second    charge 

"The      first      charge      asked      by  asked  by  plaintiff  and  refused  and 

plaintiff    and    refused    asserts    sim-  can   find    no   objection   to   it   under 

ply    the    correct    proposition,    that  the     evidence     and     principles    we 

when  a  purchaser  knows  that  the  have  announced   above." 
property  purchased  is  the  product 


§  1335.]  MORTGAGES  AND  LIENS.  883 

lieves  and  finds  that  said  connected  building  and  erections  as  above 
described  extended  in  part  over  or  upon  the  several  lots  aforesaid, — 
then  the  jury  should  find  that  said  buildings,  press  kilns,  boiler, 
engine  and  machinery  constitute  one  structure,  and  that  the  same 
and  the  lots  of  ground  aforesaid  are  subject  to  a  mechanic's  lien 
for  the  full  balance  due  the  plaintiff  for  the  press  aforesaid,  and 
work  and  labor  of  plaintiff  connected  therewith,  and  for  the  brick 
so  delivered  to  defendant  by  plaintiff;  and  the  jury  will  find  that 
plaintiff  is  entitled  to  such  lien,  provided  that  plaintiff  has  by  the 
evidence  proved  to  the  satisfaction  of  the  jury  all  other  averments 
of  said  petition  essential  to  the  establishment  of  a  mechanic's 
lien.43 

§  1335.  Mechanic's  Lien — Assignment  of  Contract — Claim  of  Lien 
Filed  by  Assignor  After  Assignment,  (a)  The  court  instructs  the 
jury  that  if  they  shall  find  and  believe  from  the  evidence,  that  prior 

to   the   3d   day  of  May,   ,   the   plaintiff,   had   acquired   from   D. 

Bros,  the  absolute  ownership  of  the  debt  due  them  from  H.  on  their 
contract  with  him,  and  did  not  hold  the  same  as  collateral  security, 
merely,  then  D.  Bros,  had  no  right  to  a  lien  against  defendant, 
the  Pipe  Company's  property,  and  the  lien  paper  filed  by 
said  D.  Bros,  on  the  3d  day  of  May,  ,  and  the  subsequent  as- 
signment in  writing  thereof  to  plaintiff,  were  and  are  of  no  validity, 
and  that  the  plaintiff  is  not  entitled  to  a  mechanic's  lien  against  the 
property  described  in  the  petition. 

(b)  The  court  instructs  the  jury  that,  in  order  to  entitle  D. 
Bros,  to  perfect  a  mechanic's  lien  against  the  property  of  the  de- 
fendant, the  Ripe  Company,  these  two  things  must  have 
occurred:  First,  The  defendant  H.  must,  at  the  date  said  mechanic's 
lien  paper  was  filed,  have  been  indebted  in  some  amount  on  his  con- 
tract with  said  D.  Bros. ;  second,  said  P.  Bros,  must  at  that  time  have 
been  the  owner  of  said  debt  against  said  H.  No  one  except  D.  Bros, 
ever  had  any  right  to  file  a  mechanic  *s  lien  based  on  the  debt  of 
H.  to  them,  and  in  order  to  sustain  the  lien  sought  to  be  enfoi'ced 
in  this  case,  the  jury  must  find  from  the  evidence  that  D.  Bros,  had 
not  parted  absolutely  with  their  right  to  the  debt  due  them  from  the 
defendant  H.  Hence  if  you  find  and  believe  from  the  evidence  that 
the   orders   given   by  D.   Bros,    to   plaintiff  and   dated   respectively 

and     ,     were     given     by     them     and     accepted     by 

plaintiff  with  the  intention  of  passing  to  the  plaintiff  all  of 
their  right  and  interest  in  the  payments  that  were  then  due  or  might 
thereafter  become  due  to  them  from  said  H.,  and  not  merely  as  se- 
curity for  their  own  indebtedness  then  due  or  to  become  due  to  the 
plaintiff,  then  the  plaintiff  is  not  entitled  to  a  mechanic's  lien  in 
this  case  against  the  property  in  question.4* 

43— Progress    P.-B.    &    M.    Co.    v.  The    court    said    that    the    above 

Gratiot   B.   &   Q.    Co.,   151   Mo.    501,  "instructions   when   taken   tog-ether 

52  S.  W.  401  (402),  74  Am.   St.  Rep.  contain  a  clear  and  accurate  state- 

557.  ment    of    the    law    governing    the 

44— Ittner  v.   Hughes,  154  Mo.  55,  case." 
55  S.  W.  267  (269). 


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