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the rail to fall and catch appellee's hand. The negligence alleged was (1) that "the boss in charge as agent of said company was negligent and careless in the respect that he did not have some one present to give the signal and words for laying down or dropping the rail; (2) that he was negligent and careless in respect that he allowed any and all the men that were raising or lifting the rail to yell, holler, and give orders at the same time"; (3) that he placed most of the strong men at one end of the rail, and the weaker with plaintiff at the other. We think the findings of the jury are to the effect that appellant and its superintendent of the work were negligent in failing to adopt suitable rules or a system of signals for loading steel rails, and as a result the men assisting gave inconsistent, confusing, and conflicting directions. The jury do not find that these men so assisting and giving the order were negligent, but, under the pleadings and the issues, found such conflicting direction was the result of the negligence of appellant in not giving a system which would have prevented such confusion. The evidence shows that Clarke himself was present, and the work was being done under his supervision, and that he had also a foreman, a Mr. Sullivan, on the flat car on which the rail was being loaded. He admits there ought to have been one to give signals when to drop the rail. It is manifest the jury found that, in failing to give such a signal, the appellant was negligent. While they state the fellow servants of appellee were the ones yelling confusing orders at that time, they do not find such was negligence on their part. Appellee did not allege that these men were negligent in so doing, but that appellant was negligent in its failure to so direct the work as would prevent such confusion; but, if the findings of the jury shall be construed as a finding of negligence on the part of the fellow servants of appellee, the findings under the issue clearly indicate that appellant and its vice principal, Clarke, were negligent in the particulars alleged. The doctrine is well settled in this state that a servant injured by the concurrent negligence of his master and a fellow servant can recover against the mas ter. This, it is said, is because the master in such case would be one of two joint wrongdoers, or tort-feasors, and as such would be responsible to the servant. Having been injured by the combined negligence of the master and his fellow servant, the injured party may have his action against either or both. Railway Co. v. Swinney, 34 Tex. Civ. App. 219, 78 S. W. 547; Railway Co. v. Jackson, 93 Tex. 262, 54 S. W. 1023. We think, under the findings of the jury, the pleadings of the parties, and the evidence, that the trial court properly overruled the motion to render judgment for appellant on the findings of the jury, in answer to the third special issue requested by appellant.

[5] The second assignment of error is: "That the court erred in refusing to give defendant's special instruction No. 1, because the evidence showed that Clarke was an independent contractor, and that plaintiff was an employé of said Clarke."

The proposition presented thereunder is substantially that the evidence conclusively tractor for that part of the road covered by showed that Clarke was an independent conhis contract. The evidence in this case shows that appellant had a contract with the Gulf, Texas & Western Railway Company for the construction of the roadbed and track at the point on the road where appellee was employed. The appellant introduced in evidence which Clarke was to furnish and pay for all a contract signed by it and W. J. Clarke, by tools and labor necessary for and to lay and surface all the track and switches for the Jacksboro-Saylesville extension of the Gulf, Texas & Western Railway Company, to the entire satisfaction of the railway company's chief engineer. Clarke agreed to unload the materials required and store in yards; to load all material on cars for distribution and use in laying the track, and to hold appellant harmless from suits from damages and injuries to persons from Clarke's acts or those of his employés or the railroad company, while working under the direction of Clarke; to execute a bond for the sum of $7,500; pay all bills promptly during the life of the contract for labor, material, and supplies, and, in case Clarke should fail, appellant might pay such bills and deduct the amount from any money due Clarke; to start actual track laying as soon as the grade is ready for track; and to complete track laying and surfacing and in fact all work covered by the contract by December 31, 1912, and to pick up all track materials left along the line when track is complete, etc. Clarke agreed to carry liability insurance covering his employés. The appellant agreed to furnish Clarke necessary train service to enable Clarke to execute the work covered by the contract. Clarke was to receive for all track laying and surfacing and handling all track material $665 per track mile, payment to be made on the 20th of each month. Appellant reserved the right to take charge of the work covered by the contract at any time Clarke should fail to comply with the terms and conditions of same, or when the work should prove unsatisfactory to the chief engineer of the railway company. The appellant was to furnish all necessary track facilities for unloading material. As above shown, the evidence is that appellee was injured June 4, 1913, in the manner alleged by him in his petition, and while engaged in the work alleged; that the parties, Clarke and the employés, working over and with appellee, were negligent in the particulars alleged. The jury found, under proper instructions from the court, that Clarke was not an independent contractor, but the agent of appellant at

the time appellee was injured. The facts in this case are sufficient to warrant the finding that the work by Clarke was being done under the direct management of Samuel Kaye and others, who, it is conclusively shown, were at that time in the employ of appellant. The appellee was employed by Mr. Kaye to work on the road, and he made the contract with appellee to work on the road, paid his railroad fare to the work and his hotel expenses at Mineral Wells, where he was employed. The testimony is sufficient to warrant the jury in finding that Kaye directed the work as it was being done on the road, and directed the employés in the work. He did this when Clarke was present, as well as when he was absent. The testimony indicates that Clarke, Kaye, and Hughes directed the work and the manner in which it should be done. The evidence shows that Kaye told appellee when he employed him, that he (Kaye) was then working for appellant, and that he never told him that he (appellee) was employed by Clarke. Appellee knew nothing of Clarke's contract until after the suit was filed. His wages were paid by check signed by appellant, per Kaye, and countersigned by Clarke. When appellee was injured, Kaye told the doctor to treat him, and that appellant would pay his bill, which it did afterwards. Kaye also, for appellant, paid the hotel bill of appellee at which appellee stopped while his injuries were being attended to, which was something like a month. Kaye testified that appellee was working for Clarke when he was hurt. Kaye says when he employed hands he did so for Clarke, who paid him for his time. He also says that he had nothing to do with Clarke's men, only when he was working for Clarke, and said he would not swear that he told Reed he would work for Clarke, but does testify that he told Reed he (Kaye) was working for appellant. Mr. Bock, the general superintendent for the railroad company, testified that the railway company had a contract with appellant to do the work, and for that purpose the railway company furnished a work train to appellant to do the work, and for the use of which it paid the railway company, and that appellant had complete charge of the train and crew while they used it; that appellant had several men in charge of the work during the entire time the work was in progress. One of them was John Hughes, who stayed on the work in a tent and directed and looked after the work. He testified that Zimmerman and Kaye had charge of the office of appellant at Jacksboro at different times. If the work did not come up to the contract, the railway company made complaint to the appellant. They made several complaints, some to Hughes and some to Kaye. Clarke used the train which appellant, under the contract, had the right to use. We think the facts in this case were sufficient to warrant the jury in finding that the appellant company exercised control over the

manner in which Clarke was to do the work, the means by which it was to be done, and that the persons engaged in the work with Clarke were under the control of and management of appellant, and that Clarke in fact was but an employé. The facts were also sufficient to warrant the conclusion that appellant, under the provisions of the contract, had taken immediate charge of the work. While Clarke testified he was doing the work under the contract, he does not testify that he employed appellee or the other men on the work, or that he paid them. On the contrary, the evidence shows that appellant paid the wages and paid the physician and hotel bills for appellee while he was under treatment for the injury, as well as that of another employé who was injured at the same time and in the same way. The trial court gave the jury a proper charge as to what would constitute an independent contractor, and when he would not be such. The jury had sufficient evidence, in our judgment, to warrant them in finding for appellee on this question. Wallace v. Southern Cotton Oil Co. (Sup.) 40 S. W. 399; Southern Cotton Oil Co. v. Wallace, 23 Tex. Civ.. App. 12, 54 S. W. 638; Drennon v. Patton-Worsham Drug Co. (Civ. App.) 109 S. W. 218. The second assignment will therefore be overruled.

[6] Under the fifth assignment it is asserted that the findings of the jury in answer to the seventh issue is uncertain in its meaning. The issue submitted is as follows: "Seventh Issue. Was W. J. Clarke an independent contractor or a subcontractor and agent of the Texas Building Company?" To which the jury answered: "Subcontractor or agent." The eighth issue submitted: "Was W. J. Clarke engaged in operating a railroad?" The jury answered: "Yes." "If so, was it for himself, as an independent contractor, or as agent of the building company?" The jury answered: "As agent or the Texas Building Company." The jury clearly answered the seventh issue when their answer is read in the light of the issue submitted that Clarke was not an independent contractor. A subcontractor may, under certain facts, be merely an agent or employé within the meaning of the rule making the master liable. The jury, by their answer to the seventh issue, leave it doubtful whether Clarke was an agent of the building company or merely a subcontractor; but all doubt as to what they did find is removed by their answer to the eighth issue, which makes it clear that they found that Clarke was not an independent contractor, but was then the agent of the Texas Building Company. There is no necessary conflict in the findings of the jury, and hence the court could render the judgment upon the manifest conclusion that Clarke was not an independent contractor, but was then the agent of appellant. Kelley v. Ward, 94 Tex. 289, 60 S. W. 311; Railway Co. v. Bender, 32 Tex. Civ. App. 568, 75 S. W. 561.

We do not believe there is any reversible error assigned, and the judgment is affirmed.

(No. 7985.)

(Court of Civil Appeals of Texas. Ft. Worth.
May 23, 1914. Rehearing Denied
June 20, 1914.)

1. PLEADING (§ 412*)-SPECIAL MATTERS OF
DEFENSE-FAILURE TO ANSWER-WAIVER.

Plaintiff's failure to answer special matter of defense, as required by Rev. St. 1911, art. 1829, as amended by Acts 33d Leg. c. 127, § 3, with the result, as there provided, that any fact so pleaded, and not denied by plaintiff, shall be taken as confessed was waived, where, without objection, there was a trial as though quest an instruction that such allegations be there were a denial, and defendant did not retaken as confessed, but requested instructions submitting the matters thereby alleged as controverted issues for the jury.

Cent. Dig. 88 1387-1394; Dec. Dig. § 412.*]
[Ed. Note. For other cases, see Pleading,
2. APPEAL AND ERROR (§ 263*)-NECESSITY OF
BILL OF EXCEPTIONS-RULINGS ON INSTRUC-
TIONS.

In the absence of a bill of exceptions, rultions are to be regarded as approved, and an ings in giving, refusing, or qualifying instrucassignment of error, based thereon, is without merit; Rev. St. 1911, art. 2061, as amended by Acts 33d Leg. c. 59, § 3, providing such rulings shall be regarded as approved "unless excepted to as provided in the foregoing articles," and the foregoing articles of the chapter containing such article relating solely to bills of exceptions and the necessary requisites thereof. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1516-1523, 1525-1532; Dec. Dig. § 263.*]

[7-9] The appellant, by the sixth assign- | mittitur had been so filed, and the judgment ment, urges error on the part of the trial decree a recovery for the amount of the vercourt in rendering a judgment on the verdict dict, less the remittitur. of the jury for the sum of $578, because in doing so appellant asserts the court in fact set aside the findings of the jury on one issue submitted by them. In answer to the issue submitted by the court to the jury to find the TEXAS & P. RY. CO. v. TOMLINSON et al. damages to appellee by "being prevented from engaging in labor, and by reason of mental and physical pain," they found $78 for loss from inability to engage in labor and $500 for physical and mental suffering. Appellee requested the issue submitted to the jury as to whether appellee was permanently injured as to his earning ability. They, in answer to this issue, found $578. The court, in its judgment entry, recites that it appears the jury had rendered a double verdict for the sum of $578, and that it was the purpose of the jury to render but one verdict for the sum of $578 for loss of time, mental and physical pain, and permanent impairment of earning ability, and that, counsel for appellee, in open court, having remitted all in excess of $578, and agreed and asked the court to render a judgment only for the sum of $578, the judgment was therefore rendered for such amount. The appellee filed a remittitur of all in excess of the sum of $578. The jurors, each trying the case, made àffidavit to the effect that it was their intention to render a verdict only for the sum of $578, covering the entire damages, to which appellee was entitled. We think, from reading the verdict itself, this was the manifest, intended purpose of the jury. The verdict supports the judgment rendered, and the fact that it was not rendered for all, found by the jury, did not injure the appellant. The appellee had the right, we think, to file a remittitur and cure any error by reason of an excessive verdict. It has been held that it is within the power of the trial court to permit a remittitur, rather than grant a new trial. Railway Co. v. Jackson, 61 S. W. 440; Railway Co. v. Johnson, 24 Tex. Civ. App. 180, 58 S. W. 623. This judgment is not one rendered contrary to the verdict, but is based on the finding of the jury, and we believe the jury only found for the sum of $578 damages for appellee. They evidently so understood that such was their verdict. The assignment is not that the verdict was excessive, and that the trial court should have set it aside, but is only that the court should not have rendered a judgment for a less amount than that found by the jury. The appellee clearly had the right to relinquish any amount so found and have it so stated in the judgment. If the judgment had been entered up for the full [1] The damages claimed were for alleged amount found by the verdict of the jury, a negligent rough handling and delay. By spo remittitur could have been filed under the cial answer appellant alleged that if plaindecisions of our various courts and the stat- tiff's cattle were injured, such injuries were utes, and we see no reason why it could not the proximate result of their own weak and be so stated in the judgment entry that a re-feeble condition; that plaintiff held the cattle For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Appeal from Stephens County Court; N. N. Rosenquest, Judge.

Action by J. E. Tomlinson and others. against the Texas & Pacific Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Earl Conner, of Eastland, for appellant. Alexander, Power & Ridgway, of Ft. Worth, for appellees.

DUNKLIN, J. J. E. Tomlinson, S. B. Louder, and M. W. Lane instituted this suit against the Texas & Pacific Railway Company, the Texas & New Orleans Railway Company, and the Ft. Worth Belt Railway Company to recover damages for injuries sustained by a shipment of 395 head of cattle from Athens to Cisco. A judgment was rendered against the Texas & Pacific Railway Company for the sum of $800, from which it has appealed, judgment being rendered in favor of the other two defendants.

in pens at Athens prior to the shipment from 24 to 40 hours on a feed of dry hay only; that the weaker cattle were loaded into cars with the stronger ones; that the stronger ones trampled and injured them; that the injuries were the result of the conditions above named, and as a result of the negligent failure of the plaintiff to attend to the same during transportation as he had contracted to do. This special plea was duly verified. No special denial was filed by plaintiffs to this special plea, and by appellant's first two assignments of error the contention is made that, as plaintiff failed to specially deny the facts so alleged, those facts should have been taken as confessed, and that the judgment rendered was erroneous, in that it was contrary to the facts so alleged. Act of the Regular Session of the Thirty-Third Legislature of 1913, page 256, amending article 1829 of the Revised Statutes of 1911, reads: "If any special matter of defense shall be pleaded by the defendant, the plaintiff shall be required to answer to each paragraph, either admitting or denying the same, or denying that he has any knowledge or information thereof sufficient to form a belief. And any fact so pleaded by the defense that is not denied by the plaintiff shall be taken as confessed."

did arrive. Thus it appears that there is no merit in the assignment, and for the same reason the further assignment, that the verdict of the jury and judgment of the court is unsupported by the evidence, must be overruled.

[2] The remaining assignments of error are addressed to certain instructions given by the trial court and to the refusal of the court to give special instructions requested by appellant. No bills of exceptions appear in the record to those rulings of the court and appellee insists that appellant is in no position to urge those assignments for that reason. By act of the Thirty-Third Legislature (see Gen. Laws 1913, p. 114) article 2061 of the Revised Statutes of 1911 was amended so as to read as follows:

"The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing articles."

The foregoing articles of the chapter in which that article is found relate solely to bills of exceptions and the necessary requisites in order to constitute the same, and in Taylor v. Butler (No. 7928) 168 S. W. 1004, and Heath v. Huffhines (No. 7936) 168 S. W. The issues tendered by the special plea 974, both of which cases have heretofore were tried as though there had been a veri- been decided by this court, but which are fied special denial thereof by the plaintiff; not yet officially published, we held that, in appellant introducing testimony to sustain the absence of a bill of exceptions, rulings the allegations and plaintiff introducing tes- of the court in giving, refusing, or qualifying timony in rebuttal thereof without objection instructions to the jury would be regarded as from appellant. Furthermore, appellant re-approved, and that an assignment of error quested special instructions submitting the matters alleged in the special plea as controverted issues to be determined by the jury, and did not request an instruction that those allegations should be taken as confessed. The statute quoted having been passed for the benefit of litigants, the same could be waived by them, and we are clearly of the opinion that there was such a waiver by appellant in this instance, and accordingly the assignments now under discussion must be overruled. 31 Cyc. pp. 733–735.

based thereon under such circumstances is without merit. Those decisions we think

sound and are decisive of the questions now under discussion in favor of appellee's contention. See, also, Mut. Life Ins. Ass'n of Donley Co. v. Rhoderick, 164 S. W. 1067. The judgment is affirmed.

SOUTHWESTERN TELEGRAPH & TELE-
PHONE CO. v. ANDREWS.
(No. 7997.)

June 6, 1914.)

1. TELEGRAPHS AND TELEPHONES (§ 66*) FAILURE TO TRANSMIT TELEPHONE CALL -DAMAGES-SUFFICIENCY OF EVIDENCE.

Evidence, in an action for failure to transmit a telephone call, whereby attempt was made to notify plaintiff of the expected death of his sister, who died and was buried the next day, held insufficient to show whether the train, on which plaintiff testified he would have traveled had he received the message, would have arrived in time for him to attend the funeral.

By another assignment of error appellant (Court of Civil Appeals of Texas. Ft. Worth. insists that no testimony was introduced to show the market value of the cattle in their condition when delivered at point of destination and what would have been their market value at the same time and place if they had been handled with ordinary care. Several witnesses testified that the cattle were in good condition before they started on their journey, and that while in transit some of them were killed and the remainder more or less skinned, bruised, and crippled; and sevéral witnesses, who were experienced shippers, testified to the value of the cattle that were killed, and further testified that the remainder, consisting of 390 head, would have been worth from $24 to $26 per head if they had arrived at Cisco in good condition, but that they were not worth exceeding from $21 to $23 per head at Cisco in the condition they

[Ed. Note. For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.*] 2. TELEGRAPHS AND TELEPHONES (§ 68*) FAILURE TO TRANSMIT-MENTAL SUFFERING -HALF SISTERS AND BROTHERS.

The relationship of half-brother and halfsister between plaintiff and one whose expected death was attempted to be communicated to him by telephone is sufficiently close to authorize recovery for mental suffering, from being

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

prevented from attending her funeral, by reason of the telephone company's negligent failure to transmit the call.

[Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68.*]

3. TELEGRAPHS AND TELEPHONES (§ 68*) FAILURE TO TRANSMIT-MENTAL SUFFERING -NOTICE.

The notice to a telephone company being that it was desired to transmit to plaintiff a message that his "sister" was expected to die, though she was only his half-sister, yet his mental suffering from being prevented, by the company's negligent failure to transmit the tall, from attending the funeral, being as great as if she had been his sister, damages to that extent are recoverable.

[Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68.*]

4. TRIAL ( 232*) SUBMISSION OF SPECIAL ISSUES INSTRUCTIONS.

The giving, preliminary to the statement of the special issues, on which a trial is had, of instructions in the nature of a general charge on the material issues in the case, should be avoided, as tending to confuse and mislead the jury; but this does not apply to the giving of definitions entirely proper in connection with the special issues submitted.

[Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 524, 525; Dec. Dig. § 232.*] 5. TRIAL (§ 352*)—SPECIAL ISSUES-GENERAL

ITY.

A requested special issue, calling for all the information given to the agent of defendant telephone company when W. attempted to get in communication with plaintiff, is too general, and perhaps misleading to the jury, the only material fact sought being whether the agent was notified that W. expected to tell plaintiff that his sister was at the point of death.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. § 352.*]

6. PLEADING (§ 412*)

DENIAL OF SPECIAL PLEAS-WAIVER OF FAILURE. Plaintiff's failure to deny special pleas of contributory negligence, as required by Rev. St. 1911, art. 1829, as amended by Acts 33d Leg. c. 127, providing that specially pleaded matters of defense not denied by plaintiff shall be taken as confessed, is waived, defendant not calling attention thereto, at the trial, by request that such pleas be taken as confessed, or otherwise, but only requesting an instruction for a verdict, without embodying such contention therein or in the objection to the refusal

thereof.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1387-1394; Dec. Dig. § 412.*] 7. APPEAL AND ERROR (§ 1040*) HARMLESS ERROR-FAILURE TO PARAGRAPH PETITION. The facts alleged in the petition being specifically and specially answered by defendant, any error in overruling an exception to the petition as not complying with Rev. St. 1911, art. 1827, as amended by Acts 33d Leg. c. 127, requiring a petition to plead by separate paragraphs, consecutively numbered, each fact going to make up the cause of action and other allegations, was harmless.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. 8 1040.*]

8. TELEGRAPHS AND TELEPHONES (§ 66*) FAILURE TO TRANSMIT-MENTAL SUFFERING -NOTICE TO COMPANY.

tempt was made to notify plaintiff of the impending death of his half-sister, that she was dearer to plaintiff than his full sisters, is improper; defendant having been given no notice of such special affection.

[Ed. Note. For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.*]

9. TELEGRAPHS AND TELEPHONES (§ 65*) – FAILURE TO TRANSMIT-ACTION-VARIANCE.

Variance between the allegation of the petition in an action for failure to transmit a telephone call, whereby attempt was made to notify plaintiff of the impending death of S., that S. was plaintiff's sister, and proof that she was his half-sister, is not material, defendant having been told when the call was put in that S. was plaintiff's sister.

[Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 54-60; Dec. Dig. § 65.*]

10. TELEGRAPHS AND TELEPHONES (§ 65*) — FAILURE TO TRANSMIT-ACTION-VARIANCE.

Variance between the allegation of the petition and the proof as to the place of death and burial of S. is not material, in an action for failure to transmit a telephone call, in an attempt to notify plaintiff of the impending death of S., whereby plaintiff was prevented from attending her funeral.

[Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 54-60; Dec. Dig. § 65.*]*

11. TRIAL (§ 125*)—ARGUMENT OF COUNSELDAMAGES FROM MENTAL SUFFERING.

The remark of plaintiff's counsel, in argument to the jury, in an action for failure to transmit a telephone call, whereby plaintiff half-sister, that the jury should allow such damwas prevented from attending the funeral of his ages as should compensate them for the grief that they would have suffered under the same circumstances, is improper.

Dig. §§ 303-307; Dec. Dig. § 125.*] [Ed. Note.-For other cases, see Trial, Cent. 12. TELEGRAPHS AND TELEPHONES (§ 66*) –

-

FAILURE TO TRANSMIT-ACTION-EVIDENCE.

ure to transmit a telephone call, put in at 8:30 Testimony of plaintiff, in an action for failH., that at 9:30 that evening he, over his resip. m., by W. at P., for plaintiff at his home at dence telephone, called up defendant's operator, at H., and asked whether she had received a call from him, saying he had been absent from home a short while, and that his sister was sick, and he was expecting a call, is admissible, over the objection of incompetency, irrelevancy, and immateriality; W. having testified that the operator at P. had stated to him that she was informed over the long-distance telephone that plaintiff was absent from home and so could not be reached, and that later in the evening, at 11 o'clock, she told him she had received a report from the operator at H. that plaintiff had no telephone in his house.

[Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.*]

13. TRIAL (§ 352*)-SPECIAL ISSUES-DOUBLE QUESTION.

The special issue, submitted to the jury, "If J., had gotten in telephone connection with

*

*

W..

*

could he and would he have attended the funeral?" embodies two questions, which should be submitted separately, as the same answer might not be given to both.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. § 352.*] Appeal from District Court, Clay County;

Evidence, in an action for failure of a telephone company to transmit a call, whereby at-P. A. Martin, Judge.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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