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cutes this appeal to reverse the judgment essary to pass the title. Hale v. Citizens'. rendered in favor of the defendant. The Bank of Monette, 163 S. W. 775. In that facts are as follows:
case the court held that, where one makes S. M. Williamson testified:
a note payable to himself or order, indorses "I am president of the Williamson Bank it in blank, and delivers it to the agent of the & Trust Company, a banking corporation or company in whose favor it was executed, it ganized under the laws of the state of Ten becomes, in effect, a note payable to bearer, nessee, doing business in the city of Memphis. The bank, in the ordinary course of its business, and its indorsement by the agent of the commakes a practice of discounting notes and nego- pany in whose favor it was made is not nectiable instruments. The note shown me is sign-essary to constitute the holder of it a bona ed by J. B. Miles, Jr., dated August 29, 1912, fide holder in due course of business. Wiland due three inonths after date. Miles executed the pote in favor of himself and indorsed liamson, the president of the plaintiff comit in blank. On the 13th day of November, pany, testified that he purchased the note 1912, our bank purchased the note from Rhea in due course of business, and paid therefor P. Cary, attorney for Lamar Heiskell, receiver, and paid therefor the sum of $200.
Heiskell its face value. He stated that no indorsehad been appointed receiver for the South- ment was made by the receiver from whom western Motor Car Distributing Corporation, he purchased it because the note was made which was the owner of the note. paid for the note was placed to the credit of payable to the maker thereof, and because the receivership to enable the receiver to have the attorney for the receiver guaranteed funds to take care of and pay for certain cars its payment, and on this account it was not which were in the city at that time and upon considered necessary for the receiver to inwhich drafts with bills of lading attached had been drawn. The proceeds thus enabled the dorse the note. Williamson further testified receiver to obtain a very considerable profit for that he paid full value for the note, and placthe receivership by being able to protect the ed the amount to the credit of the receiver in purchase of the cars. Neither the Williamson Bank & Trust Company nor myself had any order to enable the latter to have funds with knowledge or information whatever of the cir- which to take care of and pay for certain cumstances attending the execution of said motor cars; that at the time the bank purnote, except that Mr. Cary stated to me that the note was executed in payment of stock chased the note neither it nor its officers and which had been subscribed by Miles to the agents had any notice whatever of any defect motor car distributing corporation. I had no in the note or that there was any defense to knowledge whatever that there was any defense it. Williamson's testimony in this respect was to the note. The note is past due, and Miles has refused to pay it. I did not know that he uncontradicted. It was reasonable and conclaimed to have any defense whatever to the sistent with itself, and there was no fact or note until this suit was instituted. The suit circumstance introduced in evidence which was commenced on April 17, 1913."
tended in any way to contradict it. ThereThe defendant, J. B. Miles, Jr., testified fore, whatever may be the rule elsewhere, in his own behalf as follows:
under the principles of law decided in the "I executed the note sued on and introduced case of the Bank of Monette v. Hale, 104 in evidence. At the time of the execution of Ark. 388, 149 S. W. 845, the court should have the note a written receipt was given me in directed a verdict for the plaintiff. In that exchange for it, which is as follows: "August 29, 1912. Southwestern Motor Car Distribut- case the amount which the bank paid for the ing Corporation, Memphis, Tennessee. Receiv- note was placed to the credit of the insured from J. B. Miles (note) $200.00 for two hundred shares of the preferred stock of the ance company in whose favor the note was Southwestern Motor Car Distributing Corpora- executed, and the proceeds remained in the tion. In case the stock is fully paid for and bank for a period of one year. On the next is not tendered the consideration received by day after the bank purchased the note it this corporation will be refunded. P. A. Daulter. The consideration for the note was notified by the maker thereof that he was stock in the Southwestern Motor Car Dis-had a valid defense to the note and did not tributing Corporation. The agent of the cor- intend to pay it. Although the amount poration who induced me to subscribe for the which the bank had paid for the note was stock and execute the note represented to me that the corporation had plenty of money, but then in the bank placed to the credit of the only wanted me to take $200 worth of stock be- corporation in whose favor the note was excause of my influence. He told me that if I did ecuted, the court held that the undisputed not get the stock they would pay the money back. The corporation was engaged in selling evidence showed that the bank was a bona automobiles. Before the note was presented for tide purchaser for value in due course of payment the corporation went into the hands of business, and was entitled to recover. a receiver. The stock was never sent to me."
It follows that the court erred in not di[1, 2] The undisputed evidence shows that recting a verdict for the plaintiff. For that Miles, the maker of the note, drew it to his error the judgment will be reversed, and, own order, and then indorsed it in blank and inasmuch as the case has been fully developdelivered it to the agent of the Southwestern ed, judgment will be entered here for the Motor Car Distributing Corporation. It be- amount of the note, with interest thereon at came then, in legal effect, a note payable to 6 per cent. per annum from the 29th day bearer, and no written indorsement was nec- of August, 1912.
delivered to appellant's agent at said town of WESTERN UNION TELEGRAPH CO. v. Reagan, for transmission to A. G. Johnson, CHAMBERLAIN. (No. 5357.)
charges prepaid, at 1136 Wall Street, Los (Court of Civil Appeals of Texas. Austin. Angeles, Cal., the following telegram: May 13, 1914. Rehearing Denied June
"Bring children. Will pay fare. 17, 1914.)
“[Signed] A. J. Chamberlain.” 1. DAMAGES (8 117*)-BREACH OF CONTRACT MEASURE OF DAMAGES.
That his daughter was the wife of said Damages are recoverable for a breach of Johnson, and was then contemplating a visit contract, and the proper measure is pecuniary to appellee. That the children mentioned in compensation for the injury suffered. [Ed. Note.-For other cases,
said message were the children of his said
see Damages, Cent. Dig. $$ 285, 286, 288; Dec. Dig. § 117.*j daughter, and the grandchildren of appellee. 2. TELEGRAPHS AND TELEPHONES (8 68*)--DE- That his daughter was not financially able LAY IN TRANSMISSION OF MESSAGES—DAM to pay the railroad fare of said children, and
would have brought them had said telegram In case of delay or negligence in the trans- been promptly delivered, but not otherwise. mission of a telegram, damages for resulting mental anguish may, contrary to the rule of the That an affectionate regard existed between common law, be recovered.
appellee and his said grandchildren, all of [Ed. Note.-For other cases, see Telegraphs which facts were explained and fully known to and Telephones, Cent. Dig. $$ 69, 70; Dec. Dig. appellant's agent at Reagan, when he receir$ 68.*]
ed said telegram for transmission. That ap3. TELEGRAPHS AND TELEPHONES (8 68*)DE- pellant negligently failed to deliver said
LAY IN TRANSMISSION OF MESSAGES—"MEN-
telegram until the 8th day of June, 1912, in Mental anguish is that keen and poignant consequence of which appellee's daughter suffering which results from some great grief; left Los Angeles on her visit to appellee on and hence mere disappointment because plaintiff's grandchildren were prevented from visit- June 6, 1912, without bringing said children ing him on account of delay in the transmis- with her. That appellee, on account of such sion of a telegram was not mental anguish for failure to deliver said telegram, was dewhich damages might be recovered. [Ed. Note. For other cases, see Telegraphs dren and enjoying their society, by reason of
prived of the pleasure of seeing said chiland Telephones, Cent. Dig. $$ 69, 70; Dec. Dig. which he "suffered great mental anguish and § 68.*
For other definitions, see Words and Phrases, pain." vol. 5, p. 4475.]
[1, 2] It is a general principle of law that 4. TELEGRAPHS AND TELEPHONES (8 68*)- Ac- damages are recoverable for breach of conTIONS FOR DELAY IN TRANSMISSION OF MES- tract, and that the proper measure of damSAGES.
For the sender of a telegram to recover ages is pecuniary compensation for the indamages for mental anguish resulting from de jury suffered. Mental suffering, in a proper lay in its transmission, the facts must have case, has always been recognized as an injury been such that the sender would naturally suffer mental anguish in case of delay, and they must for which damages are recoverable. The have been known to the agent of the telegraph common law, however, from motives of pubcompany.
lic policy, adopted certain standards by [Ed. Note.-For other cases, see Telegraphs which damages for breach of contract were and Telephones, Cent. Dig. $$ 69, 70; Dec. Dig. to be measured, which excluded mental suf$ 68.*]
fering. For instance, the measure of damAppeal from Falls County Court; W. E. ages for failure to pay money is the lawful Hunnicutt, Judge.
interest on same; for failure to deliver perAction by A. G. Chamberlain against the sonal property contracted to be sold, the difWestern Union Telegraph Company. From ference between the market price and the a judgment for plaintiff, defendant appeals. price agreed to be paid, etc. The reason Reversed and remanded.
for this was that, in the absence of such Geo. H. Fearons, of New York City, and standard, the uncertainty as to the amount Spell & Sanford and W. W. Naman, all of of damages that might be recovered would Waco, for appellant. Tom Connally, of Mar- open up an unlimited field of litigation, lin, for appellee.
to the discouragement of business and the
annoyance of the citizens. For these reasons, JENKINS, J. This suit was brought to it became a general rule of the common law recover damages for mental suffering alleged that damages for purely mental suffering, to have been occasioned by the negligent fail- unaccompanied with bodily pain or willful or ure of appellant to promptly deliver the tele- malicious wrong, were not recoverable; and gram hereinafter set out. From a judgment hence that such damages were not recoverin favor of appellee, appellant appeals and able, where they arose solely from breach of assigns error upon the action of the court contract. Mental suffering was not excluded in overruling its general demurrer to appel- for the reason that it might not, in some inlee's petition.
stances, be just as acute and intense from Appellee alleged: That on June 3, 1912, the breach of a contract as when induced by he resided near Reagan, in Falls county, traumatic injury. But by reason of the ease Tex., and that on that day be caused to be with which it might be simulated, and the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes difficulty of disproving it on account of the, all the cases in this and other states where intangible nature of mind, and the varying such damages are allowed is 'grief and mental
The lexicographers define degrees of temperament, it was thought best anguish to be 'intense pain of body or mind.' that this field of litigation be entirely closed. It is derived from the Latin word 'anguis,' a
The introduction of telegraphy, and the pe- snake, referring to the writhing and twisting of culiar duties of telegraph companies as pub- the animal body when in great pain.” lic service corporations, was thought by the This definition of "mental anguish” might Supreme Court of Texas, and as the writer well have been deduced from the general thinks justly so, to demand a modification of tenor of Texas cases on this subject, and is the ancient rule that damages for mental suf- in accord with the decisions in other states. fering were not recoverable for breach of We quote from 37 Cyc. p. 1780, as follows: contract unaccompanied by bodily pain, or "It is well settled, however, that damages the element of willful wrong.
So Relle v.
cannot be recovered on this ground for every
mental disturbance or injury to the feelings, and Telegraph Co., 55 Tex. 308, 40 Am. Rep. 805. that to constitute mental anguish there must This doctrine has been followed in several be something more than worry, vexation, or other jurisdictions, though a majority of the disappointment or anger or resentment.” states and the Federal courts still apply the
When the telegram relates to the sickness old rule to telegraph cases.
or death of a near relative, the failure to It is the settled doctrine of this state that transmit and deliver it promptly may result damages are recoverable for mental suffer- in depriving the party to whom it is sent of ing of a certain character, occasioned by the the opportunity of ever again seeing the lovfailure to promptly transmit and deliver a ed one alive, or of looking upon the face of telegram under certain circumstances. In the beloved dead, or of assisting in the sad addition to cases where the telegram related rites of sepulture. Common experience tells to the sickness or death of a near relative, us that these results are calculated to fill or where physical suffering resulted, this doc- the heart with poignant grief and sadden trine has been applied in this state in the the life of the sufferer, and such results following cases: Telegraph Co. v. Procter, ought to be anticipated from a general 6 Tex. Civ. App. 300, 25 S. W. 813; Telegraph knowledge of the human heart with its human Co. v. Norton, 62 S. W. 1081; Rich v. Tel- affections. Not so, however, where the allegaegraph Co., 110 S. W. 95; Telegraph Co. v. tions, as in the instant case, show only a Simpson, 73 Tex. 422, 11 S. W. 386. Appli- temporary disappointment calculated to procation of this doctrine has been denied in the duce regret, and perhaps resentment, toward following cases: Telegraph Co. v. Arnold, 96 the telegraph company for its inexcusable Tex. 494–496, 73 S. W. 1043; Telegraph Co. negligence. It is not alleged that the conv. Luck, 91 Tex, 181, 41 S. W. 469, 66 Am. St. templated visit of the grandchildren was Rep. 869; De Voegler v. Telegraph. Co., 10 appellee's last opportunity to see them. For Tex. Civ. App. 229, 30 S. W. 1107; Ricketts aught that appears to the contrary, they v. Telegraph Co., 10 Tex. Civ. App. 226, 30 may have been of sufficient age to have come S. W. 1105; Telegraph Co. v. Bell, 61 S. W. by themselves, had appellee sent them money 942; Telegraph Co. v. Partlow, 30 Tex. Civ. with which to pay for their transportation, App. 599, 71 S. W. 584; Telegraph Co. v. upon hearing that they had not come with Edmonson, 91 Tex, 206, 42 S. W. 550; Mor- their mother; or appellee might have visitrison v. Telegraph Co., 24 Tex. Civ. App. 347, ed them at an expense not exceeding that 59 S. W. 1127.
which he would have incurred had the tel The distinction in principle, as applied egram been promptly delivered. to the two lines of cases above cited, may  In order for appellee to recover, not not, in some of them, be very clear, but run-only must such facts be alleged as would ning through them all it may be safely said reasonably indicate that appellee would sufthese two elements are announced or recog- fer mental anguish by reason of the failure nized as essential to recovery, viz.: The suf- to deliver the telegram, but it must also be fering must be of that character denominated alleged that appellant's agent was advised mental anguish, and the circumstances must of such facts, otherwise he would not be rebe such that the company could reasonably quired to anticipate such result. have anticipated that such suffering would For the reason that it does not appear probably result from the failure to promptly from the allegations of the petition that the transmit and deliver the telegram.
telegram was sent under such circumstances What is mental anguish? The Supreme as reasonably required appellant to anticiCourt of North Carolina in Hancock v. Tel- pate that appellee would suffer mental anegraph Co., 137 N. C. 497, 49 S. E. 952, 69 guish, if such telegram was not promptly L. R. A. 403, said:
delivered, the general demurrer should have "There is a very material difference between been sustained, and, for the error of the the significance of those words (disappointment trial court in overruling the same, this cause and 'regret') and that keen and poignant mental suffering signified by the words mental an- is reversed and remanded.
whether the building was constructed; nor GORDON v. RATLIFF et al. (No. 5292.) did he allege that Gordon had converted any (Court of Civil Appeals of Texas. Austin.
of the material to his own use. In submit March 11, 1914. Rehearing Denied ting the cross-action to the jury the trial June 10, 1914.)
court instructed them, in substance, that if 1. TRIAL ($ 251*)-INSTRUCTIONS–CONFORM- they found that there was a contract between ITY TO ISSUES.
Gordon and Coker, and that in pursuance In replevin, where defendant set up as a thereof Coker delivered any of the material counterclaim plaintiff's breach of a construction contract, but did not allege plaintiff's conver- to Gordon on the lot where the building was sion of material deposited on the lot where the to be erected, and Gordon refused to allow building was to be erected, the submission to Coker to proceed with the construction of the jury of the question whether plaintiff was the building and failed and refused to comply liable for the conversion was erroneous.
[Ed. Note.--For other cases, see Trial, Cent. with his contract, to find for Coker the reaDig. 88 587–595; Dec. Dig. $ 251.*]
sonable value of the material so furnished
by him to Gordon. Error is assigned upon 2. PLEADING (8 127*)-CONSTRUCTION.
Where plaintiff generally denied defend that portion of the charge for the reason that ant's cross-petition, which though alleging de- Coker had sued appellant for the profits he fendant deposited material on plaintiff's prem- would have made if he had been permitted ises did not charge a conversion, the filing of a to perform his part of the contract, and he special plea, alleging that plaintiff purchased the material, is not an admission against inter- did not allege that Gordon had either pur. est authorizing recovery by defendant for the chased or converted any of the material conversion.
which Coker had placed upon the lot, and (Ed. Note.-For other cases, see Pleading, Cent. Dig. 88 264–268; Dec. Dig. 8 127.*]
intended to use in the construction of the 3. APPEAL AND ERROR (8 1173*)—DETERMINA- The plea asserting the cross-action is as
building, and we sustain that assignment. TION-REVERSAL.
In replevin against two defendants, one of stated by counsel for appellant, and, while whom counterclaimed for breach of contract, a it alleges that Coker had delivered certain judgment for both will be reversed and remand- material to Gordon on the lot where the ed, when an improper issue on the counterclaim was submitted and the rights of the parties to building was to be constructed, it does not the goods replevined depended upon the deter- allege that Gordon promised to pay for the mination of the issues raised by the counter- material, or that he had converted it to his claim.
The substance of the plea is that, [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $8 4562–4572, 4656; Dec. for an agreed consideration of $1,000, Coker Dig. 1173.*]
was to furnish the material and construct
stone walls for the building of certain diAppeal from Brown County Court; Frank mensions on a certain lot in the town of H. Sweet, Judge.
Brownwood, and that, although Coker was Action by E. B. Gordon against Arch Rat- able and willing to perform his part of the liff and one Coker, who counterclaimed. contract, he was prevented from doing so From a judgment for defendants, plaintiff by Gordon, and had therefore lost the profit appeals. Reversed and remanded.
which he would have made, as stated in the W. D. Gordon and Thos. J. Baten, both of pleading. It is true that the plea alleged that Beaumont, and I. J. Rice, of Brownwood, for ('oker had delivered certain specified maappellant. Arch Grimman and Harrison & terial of certain specified values upon the lot Wayman, all of Brownwood, for appellees. where the building was to have been erected;
but the allegation that it was so delivered to KEY, C. J. This is the second appeal in Gordon did not show that he had become liathis case, and we refer to our former opinion ble to pay for the value of that material. If for a statement of the nature of the suit. he was liable at all, it is for the breach of Ratliff v. Gordon, 149 S. W. 196. At the last his' contract, and the measure of the plaintrial the jury found against the plaintiff, tiff's damage was the profit he would have Gordon, upon his suit to recover the wagon made if there had been no breach. Of course, and team, and found in favor of the defend- if Gordon converted to his own use any of ant, Coker, on his cross-action against the the plaintiff's material which he had placed plaintiff for $451, and the plaintiff, Gordon, upon the lot, the plaintiff might have the has appealed.
right, upon a proper plea, to recover the val [1, 2] In his cross-action Coker sought to ue of the property so converted. And also a recover from Gordon the profits which he similar right would exist if any of the maalleged he would have made if he had not terial was sold to Gordon and has not been been prevented by Gordon from performing paid for. But Coker's pleading failed to alhis part of the contract between him and lege either a sale or conversion, and therefore Gordon, by which he agreed to furnish the he was not entitled to recover for the value material and construct the stone walls of a of the material; and this is especially true certain building for Gordon. He did not al- as to the 7,000 feet of lumber which he al. lege that he had sold any material to Gor-leged he had delivered upon the lot, and don to be paid for by the latter, regardless of which it seems was no part of the material •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
to be used by him in the construction of the that a verdict allowing him $10,000 was not walls of the building. According to the aver
excessive. ments in his pleading, he only undertook to Cent. Dig. 83 372-385, 396; Dec. Dig. $ 132. * )
[Ed. Note.-For other cases, see Damages, construct the walls, and yet he alleged and
2. TRIAL (
8256*)-INSTRUCTIONS-REQUESTsubmitted testimony tending to prove that he
ED CHARGE-DUTY TO MAKE REQUEST. delivered upon the lot 7,000 feet of lumber In general, if a party desires to have in. of the value of $175, but he did not allege accuracies in instructions given cured, it is that Gordon had ever agreed to pay him for his duty to ask properly prepared special in
structions for 'that purpose. the lumber, or that he had converted it to
[Ed. Note.-For other cases, see Trial, Cent. his own use.
It is true that Gordon alleged Dig. $$ 628-641; Dec. Dig. $ 256.*] in his answer to Coker's cross-action that he 3. TRIAL (8 253*)-INSTRUCTIONS-REQUESThad bought from Coker all the material re- ED CHARGE-ELIMINATION OF ISSUES. ferred to, and had paid him for it, but he also Where, in an action for injuries to a servfiled a general denial, and therefore the aver- ant, plaintiff alleged negligence in the employment referred to in his special answer cannot in the furnishing of defective and dangerous
ment of incompetent fellow servants, and also be considered in aid of Coker's pleading, as an machinery, a requested charge that plaintiff admission against Gordon. Bauman v. Cham- could not recover on account of his fellow servbers, 91 Tex. 108, 41 S. W. 471. This is the ant's negligence if defendant exercised proper
care in employing him, and concluding by inonly reversible error pointed out in appel- structing the jury that if they found the facts lant's brief. No doubt Coker will replead and to be as therein recited to return a verdict for thereby obviate some of the objections urged defendant, were properly refused as eliminating against his pleading.
plaintiff's right to recover, based on the ground
of defendant's furnishing defective machinery.  The appellee, Ratliff, insists that the [Ed. Note.-For other cases, see Trial, Cent. case should be affirmed as between bim and Dig. $8 613-623; Dec. Dig. $ 253.*] appellant, Gordon, even though it be reversed 4. TRIAL ($ 260*)-REQUESTED CHARGE-INas between Gordon and Coker; but we are STRUCTIONS GIVEN-CONTRIBUTORY NEGLI
GENCE. of opinion that the entire case should be re
The court having charged that, if the jury versed and sent back for another trial. The believed from the evidence that plaintiff was wagon and mules which Gordon sought to Degligent in going on the block of a cotton press recover from Ratliff had been sold to the by which he was injured, or in not acting as latter by Coker. Coker alleged and testified under all the circumstances, then he was not
an ordinarily prudent person would have acted that he and Gordon had made the contract entitled to recover, other requested instructions above referred to, and that Gordon had sold on the issue of contributory negligence were him the wagon and mules in part payment properly refused. upon that contract. Gordon denied the ex
[Ed. Note.-For other cases, see Trial, Cent. istence of any such contract, and testified Dig. $$ 651-659; Dec. Dig. '$ 260.*)
5. APPEAL AND ERROR (8 1058*)-HARMLESS that he had never sold the wagon and mules
ERROR-RECEPTION OF EVIDENCE - CURING to Coker, but had merely loaned them to him. ERROR. Upon that vital issue the testimony was in Error in excluding certain evidence is cursharp conflict, and the rights of both Ratliff ed where the facts sought to be proved are
otherwise shown before the end of the trial. and Gordon depend upon whether the con
[Ed. Note.-For other cases, see Appeal and tract and transactions between Gordon and Error, Cent. Dig. 88 4195, 4200-4204, 4206; Coker were as stated by Coker; and there. Dec. Dig. $ 1058.*] fore we think it would be more in harmony with justice to have that issue finally tried
Appeal from District Court, Caldwell Counbut once, and let the rights of all the parties ty; F. S. Roberts, Judge. depend upon the result of such final trial.
Action by Jesse Hart against the La Reversed and remanded.
Grange & Lockhart Compress Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Hunt, Myer & Teagle, of Houston, and E. LA GRANGE & LOCKHART COMPRESS B. Coopwood, of Lockhart, for appellant. CO. V. HART. (No. 5366.) †
Lane, Wolters & Storey, and Wm. A. Vinson, (Court of Civil Appeals of Texas. Austin.
all of Houston, and Paul Kayser, of LockJune 3, 1914. Rehearing Denied hart, for appellee.
July 4, 1914.) 1. DAMAGES ($ 132*) – EXCESSIVENESS PER- KEY, C. J. We copy from appellant's SONAL INJURIES.
brief the following concededly correct statePlaintiff's feet were caught in a cotton press and crushed in such a manner as to ren- ment of the nature and result of this suit: der him a cripple for life. It was necessary to
“This is an action by Jesse Hart to recover amputate both at the junction of the in- damages for personal injuries sustained haystep with the heel, and one of plaintiff's physi- ing his feet crushed in a cotton press on the cians testified that he would never be able to 11th day of August, 1913. Plaintiff based his walk without crutches. He was about 43 years action on the negligence of a fellow servant in old at the time of the accident, in good health, turning on the steam which operated said press industrious, of good character, and able to get while the plaintiff was standing on the lower manual labor at good wages, and was qualified platform thereof; he also alleged that the press for no other character of employment. Held,'was weak and defective, and that the servant •For other cases see same topic and section NUMBER in Dec. Dig. & Am, Dig. Key-No. Series & Rep'r Indexes