Schkade v. Western Union Telegraph Co.
Schkade v. Western Union Telegraph Co.
Opinion of the Court
Appellant sought to recover damages in the sum of $2,500, alleged to have arisen from the negligence of, appellee in not promptly delivering a telegram announcing the death of appellant’s mother, and thereby depriving him of attendance on her funeral. The cause was submitted to a jury, resulting in a verdict and judgment for appellee.
“The fifth ground of motion for a new trial: In the third paragraph of the charge of the court the jury were instructed upon proximate cause, wherein they were told ‘that it was that cause which in a continuous sequence unbroken by any new independent cause, and butj, for which the same would not have occurred.’ ”
What the complaint against the charge is, if there is any, is' not indicated by the assignment. The fifth ground of the motion for new trial nor any part of it is copied into the brief, nor is the paragraph of the charge of the court copied, nor even the substance of it given.
“The jury, after reading paragraph 4 of the court’s charge, wherein their attention was specially called to paragraph 5, which was an instruction upon the weight of evidence and precluded the right of appellant to recover.”
This matter was not copied from the motion for new trial nor any other part of the record. It contains nothing upon which a proposition of law can be founded. It cannot be considered.
The fifth and sixth assignments of error have no counterparts in the record and fail to furnish any basis for propositions of law, and cannot be considered.
“The appellant insisted before court ⅛£⅛ he should have a new trial upon the ground of newly discovered evidence, to wit, that of M. J. Kivlin, postmaster, at Kingsville, Tex., in which he would state, if permitted to do so, that the post office at Kingsville, according to government regulations on December 14, 1917, closed at 6 o’clock p. m."
Had the assignment been copied from the record and contained any proposition to bo considered, it is not followed by proposition or statement, but merely by what is styled an argument. The question as to time of closing should have'been asked of the postmaster when he. was on the stand, and the motion for new trial is not supported by the affidavit of the postmaster.
The judgment is affirmed.
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