Sufficiency.

140. (1884.) Evidence in an action by the owner of a livery stable to recover damages for the wrongful hiring out of plaintiff's horse, resulting in its death, sustains a verdict for plaintiff. Homan v. Boyce, 15 Neb. 545 (19 N. W. 590).

141. (1889.) Evidence in an action for damages for breach of a contract held not to sustain the verdict, as if plaintiff was entitled to recover all, the verdict is too small. Hancock v. Stout, 28 Neb. 301 (44 N. W. 446).

C. Proceeding for Assessment. Physical examination of person injured.

142. (1884.) It is not error for the court during the progress of a trial to refuse to order the plaintiff, who sues for injuries to his person, to submit to an examination of his person by physicians who are witnesses for the defendant, in the absence of any showing whatever that justice would be promoted thereby, and especially so when the plaintiff submits to an examination by such witnesses in the presence of the jury. Sioux City & P. R. Co. v. Finlayson, 16 Neb. 578 (20 N. W. 860; 49 Am. Rep. 724).

143. (1885.) If a personal examination is desired, the application should be made before the trial begins and experts agreed upon by the parties or appointed by the court. Stuart v Havens, 17 Neb. 211 (22 N. W. 419).

144. (1885.) In an action for personal injuries, where the defendant during the trial asks for an order requiring the plaintiff to submit his person to the personal examination of certain experts selected by the defendant, the application should be denied. Stuart v. Havens, 17 Neb. 211 (22 N. W. 419).

144a. (1889.) It is not error to refuse to order a plaintiff, in an action for damages for personal injuries to submit to a physical examination in the absence of showing that justice would be promoted thereby. Sioux City & P. R. Co. v. Finlayson, 16 Neb. 578 (20 N. W. 860).

145. (1894.) In an action for a personal injury a judge of the district court has no jurisdiction at chambers outside of the county in which the cause is pending to make an order requiring plaintiff to submit his body to a personal examination by a board of physicians appointed by the judge for such purpose. Ellsworth v. City of Fairbury, 41 Neb. 881 (60 N. W. 336).

146. in an action for personal injuries, to appoint physicians to examine plaintiff physically, if proper in any case, it is only on application made before the trial begins. City of Chadron v. Glover, 43 Neb. 732 (62 N. W. 62). Determination by jury.

(1895.) If it is proper for a court,

147. (1888.) Jurors proceeded to mark down the sum of damages, according to the opinion of each juror respectively, which several sums they added together, taking the gross sum as a dividend, taking their own number as a divisor, and agreed upon the quotient as the amount of their verdict, and returned it into court as such, without any agreement in advance of ascertaining such quotient. Held, That this method was within the rule of propriety, and not obnoxious to the law. Village of Ponca v. Crawford, 23 Neb. 662 (37 N. W. 609; 8 Am. St. Rep. 144). [See Burke v. Magee, 27 Neb. 156 (42 N. W. 890).]

148. (1894.) Where there is no evidence of special damages the jury may determine the general damages by their own opinions and judgment as reasonable men. Ellison v. Brown, 43 Neb. 68 (61 N. W. 97).

Questions for court and jury.

149. (1886.) In an action for damages alleged to have been sustained by the next of kin to a deceased, whose death is alleged to have been caused by the negligence of the defendant, the question as to the amount of damages sustained by reason of such death is for the jury to determine, under such testimony as to the measure of damages as may be submitted to them. Johnson v. Missouri P. R. Co., 18 Neb. 690 (26 N. W. 347).

150. (1898.) What acts, omissions, facts and circumstances are competent evidence of damages to be considered by a jury are questions of law for the court; but whether such acts, omissions, facts or circumstances affect an owner's property and damage it, and the amount of such damages, are for the jury. Jaynes v. Omaha Street R. Co., 53 Neb. 631 (74 N. W. 67; 39 L. R. A. 751).

Computation of definite sum.

151. (1901.) Where damages are susceptible of actual computation, the amount thereof should not be left to conjecture. Paxton & Gallagher v. Vaddonker, 1 Unof. 776 (96 N. W. 378). Instructions.

- In general.

152. (1885.) Where the answer is a general denial, and the witnesses disagree as to

the amount of damages, an instruction that "the question of amount of damages scarcely requires much attention, since in the trial the defendant has made no contest thereon." is erroneous. Republican V. R. Co. v. Fink, 18 Neb. 89 (24 N. W. 691).

153.

(1902.) In an action, by an infant in the care and custody of its father, for personal injuries it is error to instruct the jury that his lessened earning capacity is an olement of damages, unless it be limited to the period from which he would be entitle to his earnings. Chicago, B. & Q. R. Co. v. Krayenbuhl, 65 Neb. 889 (91 N. W. 880).

154. (1902.) The court is not required to cover the rule as to the measure of damages in any one particular paragraph of its instructions. It will be sufficient if the instructions as a whole correctly state the rule. Rath v. Rath, 2 Unof. 600 (89 N. W. 612).

Elements of damage in general. 155. (1888.) An instruction, "You should carefully examine all the evidence as to the nature, character, and extent of the injury, and the result; whether the disability, if any resulted from the injury, is permanent or temporary; its extent, whether total or partial. If any permanent disability resulting, you should consider plaintiff's age, his reasonable expectancy of life, how much money he could earn as he was before the injury, how much, if any, he could earn with his reduced capacity, if any there was on account of the injury, and allow him rea sonable compensation for any loss of time and capacity resulting from the injury. You should also allow him for his suffering. The law lays down no rule for estimating his damages on this account, but leaves it to your sound judgment. And you should allow such amount as in your best judgment would be just under the circumstances, not exceeding in all the sum claimed-$25,000," correctly states the law. Sioux City & P. R. Co. v. Smith, 22 Neb. 775 (36 N. W. 285).

156. (1891.) Where two instructions are given which state different rules for estimating damages upon the same state of facts, thereby leaving the jury in doubt as to the correct rule, the verdict will be set aside, notwithstanding one of said instructions may have been correct and based upon the testimony. School District v. Foster, 31 Neb. 501 (48 N. W. 267).

Harmless error.

157. (1896.) Even where the damages are unliquidated, where the trial court has by an instruction, submitted to the consi eration of the jury an element of damages not sustained by the evidence, the error will be treated as harmless where, from an eramination of the evidence and the verdict, it is reasonably certain that the jury was not misled, and that it allowed nothing on account of the element improperly submitted. Chicago, R. I. & P. R. Co. v. Archer, 46 Neb. 907 (65 N. W. 1043)

Failure to caution against punitive damages.

158. (1903.) Failure to caution the jury against punitive damages is not error where the court has instructed them to allow such damages as "under all evidence would be a just compensation for the injury." Whiting v. Carpenter, 4 Unof. 342 (93 N. W. 926).

Permanency of injuries.

159. (1896.) In an action for personal injuries it is error to submit to the jury a consideration of the question, in assessing damages, as to whether the injuries were permanent, in the absence of evidence tend ing to establish such permanency of injuries with reasonable certainty. Chicago, R. I. & P. R. Co. v. Archer, 46 Neb. 907 (65 N. W. 1043).

160. (1904.) In an action for personal injuries it is error to give an instruction allowing the jury to assess damages for permanent injuries or lasting impairment of health, unless there is evidence showing, with reasonable certainty, that such perma nent injuries or lasting impairment of health in fact sustained by the plaintiff. Goken v. Dallugge, 72 Neb. 23 (103 N. W. 287).

were

Compromise by jury.

161. (1889.) An instruction that "If the jury wished to compromise the amount of damage, they could each one write his amount of damage separately on paper and then add them together and divide them by five, the number of jurymen, and let that be their verdict," is erroneous, as it subst tutes chance or hazard for the deliberate judgment of the jury as a whole. Burke V Magee, 27 Neb. 156 (42 N. W. 890).

Directing verdict.

162. (1895.) Where damages are liqui dated and there is no conflict of evidence

Damages.

CROSS-REFERENCES.

Negligence and wrongful acts as grounds for, see specific topics.

See, also, Damages; Negligence.

Abatement and revival of action on death of party, see Abatement and Revival.

Liability for, from liquor furnished, see Intoxicating Liquors, §§ 346-354.

Title to mortgaged chattels on death of mortgagor, see Chattel Mortgages, § 232. Admissibility of mortality tables in action. for, see Damages, §§ 135-138a.

Death of grantor as tolling statutes as to creditor's right to set aside conveyance for fraud, see Fraudulent Conveyances, § 382.

Causing death as a crime, see Homicide. Admissibility of Carlisle tables in action against liquor dealers, see Intoxicating Liquors, $$ 416-417.

As terminating life estate, see Life Estates.

I. EVIDENCE OF DEATH AND SURVIVORSHIP.

Presumption of death from absence.

1. (1884.) When defendant in an action to annul her marriage, relies on the presumption that her former husband was dead, and the evidence shows that soon after such husband left her, she moved from the state where they had been living, and later moved again, and made no effort to ascertain his whereabouts, an instruction to find that such husband was dead if he left defendant "and that she has never heard from him for more than seven years at the time of her marriage," is erroneous. Thomas v. Thomas, 16 Neb. 553 (20 N. W. 846).

2. (1881.) In order to raise the presumption of death by an absence of sevea years, it must be shown that the party alleged to be dead has been absent from his usual place of resort for more than seven years and that during that time he has not been heard from by those who would naturally do so. Thomas v. Thomas, 16 Neb. 553 (20 N. W. 846).

3. (1886.) Where a husband leaves his wife in anger, declaring an intention never to return, and there is evidence to show that he was seen within seven years pris: to the wife's remarriage, the presumption of his death is overcome, and the second marriage dissolved on the prayer of the second husband. Thomas v. Thomas, 19 Neb. 81 (27 N. W. 84).

4. (1885.) Evidence of character, habits, domestic relations, and the like, making the abandonment of home and family improb able, and showing a want of all those motives which can be supposed to influence men to such acts, may be sufficient to raise the presumption of death, or from which the death of one absent and unheard from may be inferred without regard to the duration of such absence. Cox v. Ellsworth, 18 Neb. 664 (26 N. W. 460; 54 Am. Rep. 827).

5. (1886.) The death of an absent person may be presumed in less than seven years from the date of the last intelligence from him, from facts and circumstances other than those showing his exposure to danger which probably resulted in his death. Cox v. Ellsworth, 18 Neb. 664 (26 N. W. 40, 54 Am. Rep. 827).

5a. (1907.) A presumption of death arises from the continued and unexplained absence of a person from his home cr place of residence for seven years, where nothing has been heard from or concerning him during that time by those who, were he living would naturally hear from him. Hold v. Livingston, 79 Neb. 238 (112 N. W. 31)

5b. (1907.) Proof of a change of resi dence from one state to another, and that such person has not been heard of in the former state for a period of seven years. does not create the presumption. Holdrege v. Livingston, 79 Neb. 238 (112 N. W. 341).

6. (1903.) Depositions given in the same action about five years previous to the final decision, showing next of kin to be then alive, carry a presumption of their exist ence at the time of the verdict. Chicago R.