Изображения страниц
PDF
EPUB

The judgment is reversed and remanded, with instructions to enter judgment accordingly.

CROW, C. J., and MOUNT, MORRIS, and PARKER, JJ., concur.

And at a subsequent meeting in the presence | est at the legal rate on the first and last of directors Green, Swalwell, and Backus: mentioned sums from the date the same be"Well, they told me at that time that they came due and payable. did not owe me anything at all, didn't owe me a cent, and I remember very distinctly that Mr. Green said to me that he says: 'You have threatened to sue us, and that was no way to do; that wasn't the right way for you to do.' I said: 'Mr. Green, it is just the reverse. You have told me that if I got anything from this company that I would have to sue to get it.' And he says: 'If you want-' He says, 'If you want us to, then go ahead and sue.' He says: 'We will have a nice friendly lawsuit.' He says: 'If we lose, why, we will pay of course. There isn't any use to fall out about it. If you think you have got a claim against us, why, go ahead and sue us. It can be a nice friendly affair. If you can collect, all right, we will pay. We are able to pay.' And he turned to Mr. Joe Swalwell-I remember this distinctly-he turned to Joe, and he says, "That is the proper way to get it, isn't it, Joe? And Joe says, 'I think there is better ways than that,' or words to that effect; but they made it very clear to me at that time that if I got anything that I had to sue to get it. Now, I didn't argue very much with those people at that meeting or any other, except to demand what I thought was coming to me, and I insisted on it; of course it was owing

me.

[ocr errors]

The version given by Green differs materially from the respondent's, but, conceding the latter's version to be true, we think it falls far short of justifying the conclusion that the appellants ratified the assignment of Brown's interest in the original agreement to the respondent, or substituted the respond

ent as sales agent under the agreement in the place and stead of the persons named therein.

The appellants assign error on the refusal of the court to permit them to introduce evidence in support of their second affirmative defense. The nature of this defense we have heretofore sufficiently indicated.

[12] The claim of error is founded on the contention that the agreement of the brokers to procure assignments of the named portions of allotments 8 and 10 was absolute, and for a breach thereof they are entitled to counterclaim in damages. The agreement, in our opinion, will not bear this construction. Without further analysis of its provisions, we think it nothing more than the employment of brokers to negotiate on behalf of the employers for the purchase of certain specified lands, and that the brokers fulfilled their part of the contract when they in good faith used their best endeavor to procure the property. This is the natural construction of the contract, when considered with reference to the services to be rendered, and is emphasized by the clause therein wherein it is agreed to pay stated commissions, even though the land be procured through other sources than the efforts of the brokers.

(11 Okl. Cr. 82) WILLIAMS v. STATE. (No. A-2026.) (Criminal Court of Appeals of Oklahoma. Sept. 18, 1914.)

(Syllabus by the Court.)

INDICTMENT AND IN

1. FORGERY (§ 27*)
FORMATION (§ 119*)-REQUISITES.

(A) Under section 2631, Rev. Laws 1910, any person who has in his possession a forged or counterfeited instrument knowing the same jure or defraud any person whatsoever, is guilty to be forged or counterfeited, with intent to inof forgery in the second degree.

der the foregoing section to allege that any par
(B) It is not necessary for an information un-
ticular person was intended to be injured, and
the insertion of any such name in the informa-
tion is purely surplusage.

tion language which is entirely superfluous, and
(C) The striking out or adding to an informa-
which has no bearing whatever on the validity
of the information or the charge therein, does
not affect the proceedings.

[Ed. Note.-For other cases. see Forgery, Cent. Dig. § 62; Dec. Dig. § 27;* Indictment and Information, Cent. Dig. §§ 311-314; Dec. Dig. § 119.*]

2. FORGERY (§§ 5, 27*)—INFORMATION-REQUISITES-SUFFICIENCY-ELEMENTS OF OFFENSE.

(A) Under section 2631, Rev. Laws 1910, supra, it is not necessary for the information to allege that the person who committed the forgery of the document the accused is charged with having in his possession with intent to defraud by uttering the same as true committed This is purely a statutory offense, and it is the forgery with intent to injure or defraud. sufficient to lay the charge substantially in the language of the statute.

(B) Under section 5743, Rev. Laws 1910, an erroneous allegation in the information as to the person injured or intended to be injured is not material under prosecutions of this character. An intent to defraud any person, association, or body politic or corporate is sufficient. Section 2837, Rev. Laws 1910.

[Ed. Note.-For other cases, see Forgery, Cent. Dig. §§ 4-6, 62; Dec. Dig. §§ 5, 27.*] 3. CRIMINAL LAW ($ 881*)-APPEAL-PRESEN TATION BELOW-SUFFICIENCY OF VERDICT.

When a person is charged by information with having the possession of a forged or counother by uttering the same, and the jury returns terfeited instrument with intent to injure ana general verdict of guilty, fixing the punishment within the limit prescribed by statute for such offenses, and counsel save no exceptions or dict at the time, this court will not reverse a make no complaint of the sufficiency of the verjust conviction. See Bowlegs v. State, 9 Okl. Cr. 69, 130 Pac. 824.

[Ed. Note. For other cases. see Criminal Law, Cent. Dig. §§ 2089, 2093; Dec. Dig. § 881.*]

We conclude, therefore, that the respondent is entitled to recover the sum of $6.000 as commission for the purchase of allotments 8 and 10, the sum of $90 as a commission on the sale to McCarten, the sum of $70.60 as a commission on the sale to Finch, with interFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Appeal from County Court, Logan County; A. H. Huston, Judge.

Walter Williams was convicted of forgery | 266; Eldridge v. Commonwealth, 21 Ky. Law in the second degree, and appeals. Affirmed. Rep. 1087, 54 S. W. 10.

Hepburn & Chappell, of Guthrie, for plaintiff in error. C. J. Davenport, Asst. Atty. Gen., for the State.

ARMSTRONG, P. J. Plaintiff in error, Walter Williams, was convicted at the January, 1913, term of the district court of Logan county on a charge of forgery in the second degree, and his punishment fixed at imprisonment in the state penitentiary for a period of two years. The information charged the accused with having possession of a forged deed with intent, upon the part of the accused, to injure and defraud by uttering the same as true, the charging part of the information being as follows:

[2] Counsel next contend that the court

erred in permitting the amending of the information. There is no merit in this contention. Section 5743, Rev. Laws 1910, provides:

"When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other legation as to the person injured, or intended to respects to identify the act, an erroneous albe injured, is not material."

This court construed this section in Ellington v. State, 7 Okl. Cr. 252, 123 Pac. 186, and the doctrine announced is controlling here. Section 2837, Rev. Laws 1910, is as follows:

"Whenever, by any of the provisions of this chapter, an intent to defraud is required in order to constitute any offense, it is sufficient if an intent appears to defraud any person, association or body politic or corporate whatever."

Under these sections of the statute and the opinion of the court in the Ellington Case, it is clear that the allegation in the information that the accused intended to injure Agnes O. Gaffney was surplusage and not required. The amendment inserted the name of Robert A. Gaffney also, but this adds nothing to and detracts nothing from the information. State

* Unlawfully, willfully, knowingly, feloniously and falsely have in his possession a certain forged and counterfeited warranty deed, purporting to be the act of one J. E. Baker in conjunction with his wife, Ollie Baker, the tenor of which is as follows, to wit [setting forth deed]. Said deed being then and there forged and counterfeited in this, to wit: That the signature of said J. E. Baker to said deed was false, forged, and counterfeited and not the genuine signature of the said J. E. Baker, as the said Walter Williams then and there well knew, by which said deed the fee-simple title to the real estate therein described purports to be transferred and conveyed to one Agnes O. Gaff-V. Weaver, 149 Iowa, 403, 128 N. W. 559, 31 ney, with the felonious intent then and there, on the part of him, the said Walter Williams, to cheat, wrong, and defraud the said Agnes O. Gaffney by uttering said deed to be true, contrary to and in violation of the statutes in such case made and provided, and against the peace and dignity of the state."

[1] The information is based upon section 2631, Rev. Laws 1910, which is as follows: "Any person who has in his possession any forged or counterfeited instrument, the forgery of which is hereinbefore declared to be punishable, other than such as are enumerated in the last section, knowing the same to be forged, counterfeited or falsely altered with intent to injure or defraud by uttering the same to be true, or as false, or by causing the same to be uttered, is guilty of forgery in the second degree."

Counsel filed a demurrer to the information, which was overuled by the court, and of this action of the court they complain. The information was entirely sufficient. In the case of People v. Smith, 125 Mich. 566, 84 N. W. 1068, the Supreme Court of Michigan, discussing a similar statute, said:

L. R. A. (N. S.) 1046, Ann. Cas. 1912C, 1137, and cases cited; State v. Stark, 202 Mo. 210, 100 S. W. 642. See, also, Wishard v. State, 5 Okl. Cr. 611, 115 Pac. 796.

[3] Counsel next contend that the verdict is insufficient. This contention is also without merit. The verdict is in the following form:

"We, the jury, sworn and impaneled in the above entitled cause, do upon our oaths find the defendant guilty and assess his punishment at two years in state penitentiary."

Counsel and the accused were present when this verdict was returned and made no objection and took no exception at the time. The verdict is sufficient although in bad form. Counsel and the accused evidently understood for what he was being tried, and also of what he had been found guilty. See Bowlegs v. State, 9 Okl. Cr. 69, 130 Pac. 824.

There is no error in this judgment. The accused is clearly guilty under the facts. In our opinion the judgment should be affirmed; and it is so ordered.

DOYLE, J., concurs. FURMAN, J., absent and not participating.

(43 Okl. 277) MAPLE et al. v. STATE. (No. 3663.) (Supreme Court of Oklahoma. Sept. 1, 1914.)

"The first assignment of error is that the in formation charges no offense under the statute, as it does not allege that the ticket was falsified, forged, or counterfeited by some person with intent to injure or defraud; that there is no allegation of intent to injure or defraud in connection with the alleged forgery of the ticket. The information, we think, cannot have the construction contended for. It alleges that the respondent had in his possession a certain false, forged, and counterfeit ticket, with intent to injure and defraud. This was a strict compliance with section 2631 of the statute above quoted. Haskins v. Ralston, 69 Mich. 63, 37 N. W. 45 [13 Am. St. Rep. 376]." See, also, State v. Turner, 148 Mo. 206, 49 S. W. 988; ty Lockard v. Commonwealth, 87 Ky. 201, 8 S. W.

(Syllabus by the Court.) PLEADING (§ 8*) PETITION-SUFFICIENCY CONCLUSIONS OF PLEADER.

In this case suit was instituted by the counattorney of Blaine county in the name of the state against defendant in error, John Ger

kin, as surety upon a bail bond. The petition, file suit thereon. That by reason of and alleges the return of an indictment in the dis-on account of the forfeiture of said bond, trict court, charging the principal defendant

with unlawfully maintaining a certain place in the said defendants and each of them are said county wherein intoxicating liquors were indebted to the state of Oklahoma, for the sold; the order of the district court transferring use and benefit of Blaine county, in the sum said proceeding to the county court; the execu- of $750, and prayed judgment for said tion and filing of the appearance bond; the failure of defendant to appear, and an order directing the county attorney to file suit thereon; that defendants were indebted to the plaintiff by reason of the forfeiture of said bond. A general demurrer was filed to the petition, which was by the court overruled. Defendants refused to plead further, and judgment was rendered against them for the amount of the bond. Held, that said petition stated a good cause of action as against a general demurrer, and the court committed no prejudicial error in overruling said demurrer and rendering judgment.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 12-282, 68; Dec. Dig. § 8.*]

Error from District Court, Blaine County; James R. Tolbert, Judge.

amount. A general demurrer was filed to the petition, which was by the court overruled and exceptions taken. The defendants refused to plead further, and judgment was entered upon the petition in favor of plaintiff in the sum of $750, the amount of said bail.

Defendants allege six assignments of error, but the only assignment discussed and relied upon is error of the court in overruling the general demurrer to the petition. It is the contention of defendants that the petition failed to state facts entitling plaintiff to recover. We have carefully read the argument and authorities cited by defendants, and from an examination of the authorities cited, we find most of them inapplicable to the case at bar. While the allegation of the peWm. O. Woolman, of Watonga, for plaintiffs in error. A. L. Emery, Co. Atty., of Wa-tition "that by reason of and on account of

Action by the State against Wilbert Maple and others. Judgment for plaintiff, and defendants bring error. Affirmed.

tonga, for the State.

the forfeiture of said bond, the said defendants and each of them are indebted to the state of Oklahoma, for the use and benefit of Blaine county, in the sum of $750," is in a certain sense a conclusion of the pleader, yet the facts were set out in the petition upon which this conclusion was based, and

Section

purpose of determining its effect, its allegations "In the construction of any pleading, for the shall be liberally construed, with a view to substantial justice between the parties."

RIDDLE, J. Plaintiffs in error will be denominated defendants, and defendant in error, the plaintiff. This is a proceeding in error filed in this court by defendant in error, John Gerkin, from a judgment of the district court of Blaine county rendered the whole petition must be construed togethagainst him. The petition in the district er in determining its sufficiency. court, briefly stated, alleged: That on Sep-4766, Rev. Laws 1910, provides: tember 27, 1910, an indictment was returned against the defendant Wilbert Maple with unlawfully maintaining a certain place in Blaine county in which intoxicating liquors were sold. A copy of the indictment is attached to the petition, marked "Exhibit A." That said indictment and cause was on the same day, by order of the district court, transmitted to the county court for trial. A copy of the order of the transfer is attached to and made a part of the petition, marked "Exhibit B." That on October 11, 1910, defendant Maple appeared as principal and M. E. Proffitt and John Gerkin as sureties and executed an appearance bond, providing for the principal defendant Maple, to make his personal appearance before the October, 1910, term of the county court of said county. A copy of said bond was attached to and made a part of said petition, marked "Exhibit

In carrying out the mandates of the law, as expressed in this section, we are of the opinion that the petition stated a good cause of action, entitling the plaintiff to a recovery of the amount of the bail. No subs antial injustice has been done to any of the parties. This is in harmony with the holding of this court in the case of State ex rel. Buckley v. Drake et al., 40 Okl. 538, 139 Pac. 976, and the case of Kelly v. State, 145 Pac. 319, decided at this term.

The judgment of the trial court is affirmed. All the Justices concur.

(43 Okl. 342) FIRST STATE BANK OF IDABEL ▼. BANK OF BRAGGS et al. (No. 5339.)

(Syllabus by the Court.)

1. BANKS AND BANKING (§ 64*)—LIQUIDATION-PAYMENT OF DEPOSITORS-DISTRIBUTION OF ASSETS.

C." At the January, 1911, term of said (Supreme Court of Oklahoma. Sept. 8, 1914.) court, said cause was assigned for trial on the 28th day of February. That on said date said defendant was called, but failed to appear, and made default. That his bondsmen were each called three times in open court to produce the body of said Maple in court. That an order and judgment of the county court was made and entered of record, declaring said bail forfeited, and the county attorney was ordered to proceed to

The purpose of the liquidation provided for by section 277. Rev. Laws 1910, is to provide state banks with a ready means of withdrawing from the banking business, and it contem

plates the immediate payment of all the deposi

tors of the liquidating bank and the distribution of the balance of its assets, to the end that

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

such bank may cease to be further subject to
the provisions of the banking laws of the state.
[Ed. Note. For other cases, see Banks and
Banking, Cent. Dig. § 125; Dec. Dig. § 64.*]
2. BANKS AND BANKING (§ 72*)-LIQUIDATION
-CERTIFICATE OF DEPOSIT.

The effect of such liquidation upon a certificate of deposit issued by the liquidating bank which upon its face is not due is to mature it.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. 88 148-152; Dec. Dig.

72.*]

3. BANKS AND BANKING (§ 71*)-LIQUIDATION-CERTIFICATE OF DEPOSIT REMEDY OF

HOLDER.

voluntary liquidation of said Bank of Braggs has become, and is now, wholly matured. That said Bank of Braggs and said Guaranty State Bank of Braggs have entered into an agreement whereby said Guaranty State Bank of Braggs has gone into possession of a large part of the assets of said Bank of Braggs; that said Bank of Braggs and said stockholders and said Guaranty State Bank of Braggs have whol ly and totally ignored and refused to pay the claim of this plaintiff, as evidenced by said certificate of deposit, and that said Bank of Braggs and said defendants, their Where a state bank seeks to liquidate pursuant to section 277, Rev. Laws 1910, and in officers and agents and directors and said process of such liquidation pays off all its cred-State Guaranty Bank of Braggs, which itors except the holder of one of its certificates has gone into the possession of a large part of deposit whom it refuses to pay, and there- of the assets of said Bank of Braggs, will after transfers the greater portion of the balance of its assets to another banking corpora- continue to neglect to pay this plaintiff's tion without providing for the payment of such claim, and will disburse all the assets of claim, such creditor may ask a court of equity the said Bank of Braggs, in exclusion of to administer sufficient of the assets of the liquidating bank through a receiver, or otherwise, to the plaintiff's claim, unless they be restrained by the court from so doing, and unless the court make and enter an order herein appointing some suitable person as a receiver to take charge of the assets and properties the same for the purpose of impartially disof said Bank of Braggs, and administer stockholders, officers, and directors of said tributing its assets and collect from the Bank of Braggs such sums, if any, that have been distributed to them in the liquidation of said bank, and such sums as may be necessary for them to prorate in their individual capacities, and further take possession of all the assets of said Bank of Braggs that have gone into the possession of the said defendant the Guaranty State Bank of Braggs, and that this plaintiff is liable to and may lose its claim unless such receiver be appointed, for all of which it has no adequate remedy at law.

protect such claim.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 143-147; Dec. Dig. § 71.*]

Error from District Court, Muskogee County; R. P. De Graffenreid, Judge. Action by the First State Bank of Idabel against the Bank of Braggs and others. demurrer to the petition was sustained, and plaintiff brings error. Reversed and remanded.

A

Wilson & Tomerlin, of Oklahoma City, for plaintiff in error. Bailey, Wyand & Moon, of Muskogee, for defendants in error.

KANE, C. J. This was a suit in equity, commenced by the plaintiff in error, plaintiff below, against the Bank of Braggs, which was in process of liquidation pursuant to section 277, Rev. Laws 1910, its stockhold

ers and the Guaranty State Bank of Braggs, to whom it is alleged the Bank of Braggs had transferred practically all of its assets. A general demurrer was sustained to the petition of the plaintiff, to reverse which action of the court below this proceeding in error was commenced.

[1] We think the petition states facts sufficient to constitute a cause of action against the Bank of Braggs and the Guaranty State Bank of Braggs. The statute (section 277, Rev. Laws 1910, supra) provides that:

"Any bank doing business under this chap ter may voluntarily liquidate by paying off all its depositors in full; and upon filing a ver fied statement with the bank commissioner setting forth the fact that all its liabilities have been paid, and the surrendering of its certifi cate of authority to transact a banking business, it shall cease to be subject to the provisions of this chapter, and may continue to transact a loan and discount business under its charmake an examination of any such bank for the ter: provided, that the bank commissioner shall purpose of determining that all its liabilities have been paid."

The petition alleges, in substance, that the plaintiff is the owner of a certificate of deposit issued by the Bank of Braggs, dated the 11th day of October, 1912, which, upon its face, matures three years after date; that after the issuance of said certificate and before its maturity the Bank of Braggs filed its application for a voluntary liquidation, pursuant to the foregoing stat- [2] It is obvious that the liquidation proute; that since filing said application for vided for by the foregoing section cannot take voluntary liquidation said bank has proceed- place with any show of justice and accorded to liquidate and pay all of its obliga- ing to the intention of the law until all listions except the obligation of this plaintiff;bilities to the creditors of the liquidating that it has failed, refused, and neglected, bank have been met and paid. If there are and still fails, refuses, and neglects to pay claims presented which the liquidating said obligation, although said obligation, by bank is not willing to acknowledge as just operation of law, by reason of going into debts, there is nothing in the statute which

[Ed. Note.-For other cases, see Death, Dec. Dig. § 10.*1

2. EXECUTORS AND ADMINISTRATORS (§ 49*)—

is inconsistent with the right of the bank | And such action may be prosecuted to final to obtain a judicial determination of the judgment by the administrator, notwithstanding controversy by process against the claimant, that death resulted from such injuries. nor with that of the claimant to collect by suit debts due him. The very purpose of the liquidation provided for is to pay the debts of the bank that the remainder of the assets may be reduced to money and distributed among the stockholders or otherwise disposed of. The necessary effect of such liquidation upon the executory contracts of the bank undoubtedly is to mature them. 10 Cyc. 1312.

[3] The journal entry of judgment states that the bill was dismissed for want of equity. In our judgment, the petition states facts sufficient to entitle the plaintiff to the equitable relief prayed for against the liquidating bank and the bank to whom its assets were transferred. There seems to

be authority by analogy for the principle that where a state bank seeks to liquidate by resolution of its stockholders under section 277, supra, and in pursuance of such liquidation pays off all its creditors except the holder of one of its certificates of deposit whom it refuses to pay, and transfers the greater portion of the balance of its assets to another banking corporation, such creditor may ask a court of equity to administer the assets of the liquidating bank through a receiver or otherwise, and a proper basis for such relief is laid by an allegation that the bank in process of liquidation, although it has paid all its other creditors, has refused to pay the claim of the plaintiff, and is about to transfer a large portion of its assets to another bank and distribute the balance among its stockholders without providing for the payment of such claim. Law v. Rich et al., 47 W. Va. 634, 35 S. E. 858.

For the reasons stated the judgment of the court below is reversed and the cause remanded with directions to overrule the demurrer and to proceed in accordance with the views herein expressed. All the Justices

concur.

(42 Okl. 784)

ST. LOUIS & S. F. R. CO. v. GOODE. (No. 2688.) (Supreme Court of Oklahoma. May 12, 1914. Rehearing Denied Sept. 15, 1914.)

(Syllabus by the Court.)

1. DEATH (§ 10*)-ACTION-RIGHT OF ACTION -PERSONAL INJURIES.

ASSETS-RIGHT OF ACTION FOR PERSONAL
INJURIES.

The damages recoverable in such action, when revived, are only such as were sustained by the injured person in his lifetime (such as accrued in the period between the injury and his death), and when recovered are assets of his estate, and are not for the benefit of the widow and next of kin, except as they may take as heirs upon the final distribution of the estate. and Administrators, Cent. Dig. §§ 301, 303[Ed. Note.-For other cases, see Executors 305; Dec. Dig. § 49.*]

3. EXECUTORS AND ADMINISTRATORS (§ 51*)-
JUDGMENT (§ 610*)-ASSETS OF ESTATE-RE-
COVERY FOR WRONGFUL DEATH ВАВ ТО
SUBSEQUENT RECOVERY.

tions 5281, 5282, Rev. Laws 1910), create a
Sections 5945, 5946, Comp. Laws 1909 (sec-
new cause of action, to be prosecuted for the
exclusive benefit of the beneficiaries named
therein; the damages recovered in such suit do
Such
not become assets of decedent's estate.
action is not dependent upon any common-law
right, and the right to maintain same is inde-
pendent of sections 5943, 5944, Comp. Laws
1909. Nor will a recovery under these sections
for the benefit of the widow and next of kin bar
a recovery for the benefit of the estate of dece-
dent, on account of the suffering and loss the
decedent sustained through the injuries wrong-
fully inflicted on him, where death was not in-

stantaneous.

[Ed. Note.-For other cases, see Executors and Administrators, Dec. Dig. § 51;* Judgment, Dec. Dig. § 610.*]

4. WITNESSES (§ 64*) - COMPETENCY-HUSBAND AND WIFE.

Neither the statute nor the common law prevent one spouse, after the marriage relation has terminated, from testifying, in a case in which the other is a party, as to independent facts, within the knowledge of the witness, and not coming within the definition of privileged communications.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 180, 181; Dec. Dig. § 64.*]

5. APPEAL AND ERROR (§ 1140*)—JUDGMENTREMITTITUR.

Where a verdict in a damage suit itemizes the damages allowed, and some of the amounts allowed are not justified under any view of the evidence, but the other amounts allowed seem to have been proper, the court being able to separate the legal from the illegal allowances, plaintiff will be offered the right to remit the amount he is not entitled to receive.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4462-4476; Dec. Dig. 1140.*]

The right of action of a person, injured | 6. APPEAL AND ERROR (§ 1140*)-HARMLESS ERROR-INSTRUCTIONS. through the wrongful act of another, to recover Where an instruction has permitted the juthe damages sustained thereby, existed at common law, but abated upon the death of such in-ry to award an illegal item of damage, and the jured person. This common-law right of action illegal allowance can be clearly determined by survives, and is thus preserved, in the personal this court on the record, and a remittitur to cover the illegal allowance is offered and acceptrepresentative of decedent, by the terms of sections 5943, 5944, Comp. Laws 1909, and the ed by plaintiff, the error in the instruction because of action and its survival are quite inde- comes harmless. pendent of sections 5945, 5946, Comp. Laws 1909, relating to the recovery of damages for the benefit of certain beneficiary therein named.' 1140.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 142 P.-75

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4462-4476; Dec. Dig. §

« ПредыдущаяПродолжить »