Small v. Lutz, 41 Or. 570, approved, 372.

Smith v. Bayer, 46 Or. 143, approved, 408.

Smith v. Day, 39 Or. 531, applied, 332.

Smith v. Farra, 21 Or. 395, applied, 60, 111, 531.

Snider v. Lehnherr, 5 Or. 385, cited, 454.

Solomon v. Bushnell, 11 Or. 277, cited, 189.

South Port. Land Co. v. Munger, 36 Or. 457, approved, 70.
Sovern v. Yoran, 15 Or. 644, applied, 242.

Spaur v. McBee, 19 Or. 76, approved, 70.

Stager v. Troy Laundry Co. 38 Or. 480, approved, 544.
State v. Ah Lee, 18 Or. 540, approved, 253, 628.

State v. Armstrong, 43 Or. 207, cited, 348; distinguished, 489.
State v. Baker, 23 Or. 441, applied, 42.

State v. Baker County, 24 Or. 141, cited, 36.

State v. Belding, 43 Or. 95, approved, 261, 266.

State v. Benjamin, 2 Or. 125, applied, 332.

State v. Bergman, 6 Or. 341, cited, 440.

State v. Brown, 7 Or. 186, approved, 253.

State v. Brown, 28 Or. 147, distinguished, 485, 490.

State v. Carver, 22 Or. 602, cited, 32.

State v. Dilley, 15 Or. 70, followed, 628.

State v. Dodson, 4 Or. 64, approved, 253, 628.

State v. Douglas County Road Co. 10 Or. 198, cited, 257.

State v. Gaunt, 13 Or. 115, approved, 439.

State v. Gibson, 43 Or. 184, cited, 32.

State v. Gray, 43 Or. 446, approved, 31.

State v. Hansen, 25 Or. 391, approved, 345.

State v. Hawkins, 18 Or. 476, approved, 29.

State v. Ingram, 23 Or. 434, cited, 489.

State v. Kelly, 28 Or. 225, cited, 489.

State v. Lawrence, 12 Or. 297, cited, 252.

State v. Lee Yan Yan, 10 Or. 365, approved, 253.

State v. Magers, 36 Or. 38, cited, 166.

State v. Magone, 33 Or. 570, approved, 142.

State v. Marple, 15 Or. 205, applied, 15.

State v. McDaniel, 39 Or. 161, cited, 42, 221, 489.
State v. Miller, 43 Or. 326, cited in footnote, 15.
State v. Moore, 32 Or. 65, cited, 32.

State v. Morse, 35 Or. 462, distinguished, 485, 490.
State v. Murray, 11 Or. 413, applied, 344.

State v. O'Donnell, 36 Or. 222, applied, 42.
State v. Olberman, 33 Or. 556, cited, 489.
State v. Porter, 32 Or. 135, approved, 31.
State v. Rogers, 22 Or. 248, applied, 332.
State v. Saunders, 14 Or. 300, cited, 348, 490.
State v. Savage, 36 Or. 191, cited, 27, 489.
State v. Spencer, 6 Or. 152, approved, 253, 628.
State v. Tom, 8 Or. 177, cited, 486.

State v. Tucker, 36 Or. 291, followed, 252.

State v. Vowels, 4 Or. 324, approved, 439, 440.

State v. Warren, 41 Or. 349, cited, 43.

State v. Wintzingerode, 9 Or. 153, approved, 628.
State v. Wright, 19 Or. 258, approved, 628.

State v. Zorn, 22 Or. 591, applied, 344.

State ex rel. v. Gutridge, 46 Or. 215, cited, 286.

State ex rel. v. Lord, 28 Or. 498, cited. 257.

State ex rel. v. Metschan, 32 Or. 373, cited in footnote, 178.
State ex rel. v. O'Day, 41 Or. 495, approved, 160.

Stingle v. Nevel, 9 Or. 62, approved, 372.

Stinson v. Hardy, 27 Or. 584, approved, 316.

Stone v. Oregon City Mfg. Co. 4 Or. 52, cited 300, 301.

Stout v. Yamhill County, 31 Or. 314, approved, 280, 532.

Strickland v. Geide, 31 Or. 374, applied, 332.

Stringham v. Mutual Life Ins. Co. 44 Or. 447, approved, 322.

Tenny v. Mulvaney, 8 Or. 129, approved, 45.

Thompson v. Connell, 31 Or. 231, cited, 307.

Thornton v. Krimbel, 28 Or. 271, followed, 58 (cited in footnote, 57).
Towns v. Klamath County, 33 Or. 225, applied, 549.

Velten v. Carmack, 23 Or. 282, cited, 70.

Warren v. Crosby, 24 Or. 558, applied, 331.

Watson v. Dundee Mtg. Co. 12 Or. 474, cited, 591.

Weaver v. Southern Or. Co. 30 Or. 348, approved, 139.

West Shore Mills Co. v. Edwards, 24 Or. 475, approved, 310.

White v. Holman, 44 Or. 180, cited, 340.

Whiteaker v. Vanschoiack, 5 Or. 113, distinguished, 374, 395.
Wicktorwitz v. Farmers' Ins. Co. 31 Or. 569, cited, 595.

Wild v. Oregon Short Line Ry. Co. 21 Or. 159, approved, 544.
Wilkes v. Cornelius, 21 Or. 341, cited, 236.

Wilkes v. Cornelius, 21 Or. 348, applied, 236.

Williams v. Culver, 39 Or. 337, cited, 27.

Wimer v. Smith, 22 Or. 469, cited, 156.

Winter v. Norton; 1 Or. 43, applied, 332.

Winters v. George, 21 Or. 251, applied, 332.

Witham v. Osburn, 4 Or. 318, approved, 248.

Wong v. Astoria, 13 Or. 538, cited, 442.

Wormington v. Pierce, 22 Or. 606, distinguished, 77.

Wright v. Ramp, 41 Or. 285, cited, 187.

Wright v. Young, 6 Or. 87, cited, 241.

OREGON CONSTITUTION.

Same as CONSTITUTION OF OREGON.

OREGON STATUTES. Same as STATUTES OF OREGON.

OTHER CRIMES.

Showing Other Offenses When Not Incidental. See CRIM. LAW, 2.
OVERFLOWED LAND.

Description of Overflowed Land Not Swamp. See PUBLIC LANDS, 4.
OVERFLOWING LAND.

Construction of License to Maintain a Dam. See WATERS, 10.

PARENT AND CHILD.

AVOIDING DEED FOR FRAUD RELATIONSHIP OF PARTIES.

A deed from a parent to a child is not void merely because of the
relationship of the parties.

PAROL AGREEMENT.

Powers v. Powers, 479.

Enforcement of After Part Performance. See p. 590.

PAROL EVIDENCE

To Vary Indorsement on Note.
Of Acceptance of Sheriff's Bond.

See BILLS & NOTES, 10.

See SHERIFFS & CONSTABLES, 1, 2.

See EVIDENCE, 15.
See EVIDENCE, 16-18.
See EVIDENCE, 19.

Of Oral Agreement Collateral to Writing.
Affecting Terms or Purpose of Writings.
Of Meaning of Peculiar Terms.

PARTIES.

IDORSEE AS REAL PARTY IN INTEREST.

1. An indorsee of a negotiable note for collection is the real party in
interest in the sense that he may maintain an action on the paper in his
own name: B. & C. Comp. § 27.
Smith v. Bayer, 143.

WAIVER OF OBJECTION OF DEFECT OF PARTIES.

2. An objection because of defect of parties must be made at the first
opportunity after the facts become known to the opposing party, or it will
be waived; for example, when the defect first became known through the
cross-examination of plaintiff, the objection was waived by waiting until
after the return of the verdict to suggest it.
Young v. Stickney, 101.

PARTNERSHIP.

See, also, MINES, 1.

INDORSEMENT OF PAPER PAYABLE TO FIRM NAME.

Negotiable paper drawn to a firm name, or a business name, may be
endorsed by the person who is doing business under that name.

PART PERFORMANCE.

Gardner v. Wiley, 96.

Effect of Part Performance of Oral Contract. See p. 590.

PASSENGERS.

Rights at Station Before and After Train Time-Duty of Carrier to
Light Platforms-Walking on Dark Platform. See CARRIERS, 1, 8.

PAUPERS.

Power to Compel Support of by Relatives. See COUNTIES, 4.

PAYMENTS.

COMPETENT EVIDENCE OF RATIFICATION.

Where plaintiff testified that he wrote defendant a letter, which was
mailed to him in the ordinary course of the mail, informing him that
plaintiff had credited a certain sum due defendant as a payment on his
note to plaintiff, such evidence being sufficient to raise a presumption that
the letter was received, as provided by B. & C. Comp. §788, subd. 24, it
should have been submitted to the jury as bearing on the inquiry whether
defendant had ratified plaintiff's appropriation of his money in part
payment of the note.
Sloan v. Sloan, 36.

PERSONAL INJURIES. See CARRIERS, and MASTER & SERVANT.

PHOTOGRAPHS as Evidence. See EVIDENCE, 20.

PHRASES. Same as WORDS & PHRASES.

PHYSICIANS AND SURGEONS.

SCOPE OF CROSS-EXAMINATION.

1. In an action against a physician for injuries to plaintiff, owing to
negligent treatment of his fractured arm, a physician having been asked
on his examination in chief if there was not an X-ray machine in the
city where plaintiff was treated, and he having answered that a certain
physician had one, it was not improper cross-examination to inquire
whether it was usual in that locality for surgeons to have such appliances.
Beadle v. Paine, 424.

MALPRACTICE TESTING KNOWLEDGE OF WITNESS.

2. An expert witness having testified to some general surgical propo-
sitions, and that a specified treatise was a standard authority, it was not
improper cross-examination to ask the witness if that work did not contain
statements contradictory of his testimony.
Beadle v. Paine, 424.

INSTRUCTION AS TO DEGREE OF SKILL REQUIRED OF SPECIALISTS.

3. The court instructed that a physician or surgeon making a specialty
of the practice of surgery is not bound to use any greater skill, care or
diligence in the treatment of the case than a specialist in the same general
locality in which such physician or surgeon resides and practices his pro-
fession. Held, that while the instruction might properly have called for
such skill, care and diligence as were observed in like or similar localities,
there was no error in omitting to do so, the court having in previous
instructions explicitly informed the jury that the degree of skill required
would be that possessed by the average members of the profession prac-
ticing as specialists in similar localities, regard being had to the advanced
state of medical science.
Beadle v. Paine, 424.

INSTRUCTION-REPEATING QUALIFYING EXPRESSIONS.

4. For instance, where, in an action for malpractice of surgery, the
court gave instructions as to the degree of skill that should be observed
by persons holding themselves out as specialists in the practice of sur-
gery, it was not necessary to make reference to specialists in giving an
instruction to the effect that it was not negligence for defendant not to
have an X-ray machine unless it was usually employed by physicians
and surgeons in that locality.
Beadle v. Paine, 424.

MALPRACTICE NEGLIGENCE OF PATIENT.

5. In an action for malpractice of surgery, where the defendant is
charged with negligence or nonobservance of proper care, or want of skill,
it is a good defense that the patient was negligent at the time, which
conduced or contributed to produce the injury complained of, but it will
not suffice to defeat the action that the injured party was subsequently
negligent, and thereby conduced to the aggravation of the injury primarily
sustained, though this later negligence of the patient may be shown in
mitigation of damages.
Beadle v. Paine, 424.

INSTRUCTIONS AS TO CARE BY PATIENT.

6. In an action for injuries to plaintiff owing to the negligence of
defendant in treating plaintiff's fractured arm, the court instructed that
if plaintiff, after having been treated for some time by defendant, was
told by defendant to return for further treatment, and was instructed in
the proper care and use of his arm, and he failed to return for treatment
and used his arm in a different manner, the jury might take such facts
into consideration in determining whether the plaintiff was negligent.
Held, that the instruction was not erroneous.
Beadle v. Paine, 424.

Fees of as Element of Damages. See DAMAGES, 1.

PLATFORMS.

Right to Exercise in Dark-Risk of Injury.
Duty to Light Stations at Reasonable Times.

PLEADING.

ALLEGATIONS AND PROOFS MUST CORRESPOND.

See CARRIERS, 7.

See CARRIERS, 2-4.

1. The allegations of a pleading cannot be abandoned on a trial and
some other defense substituted not stated in the pleadings. For example,
under an answer to a mortgage foreclosure suit that part of the principal

was a judgment fraudulently confessed by plaintiff as defendant's attorney,
it is not competent to show that part of the principal was usurious charges
for loans and extensions of time, as the testimony does not tend to sup-
port the pleading.
Thayer v. Buchanan, 106.

PLEADING SEPARATE CAUSES OF ACTION.

2. Separate rights of action must always be separately stated, while
separate statements of a single right may or may not be allowed, as the
occasion may require.
Harvey v. Southern Pacific Co. 505.

COMPLAINT INFERENCE OF RISK ASSUMED.

3. In an action by a servant for personal injuries, a complaint showing
that a board in a platform on which plaintiff was compelled to stand while
feeding a mangle in a laundry had been negligently allowed to become
smooth and broken, so that while in the performance of her duty she
slipped and fell forward, whereby her hand was caught between the rollers
of the machine, is not insufficient on the ground that plaintiff must from
the facts stated necessarily have known of the defect, and thereby have
assumed the risk involved.
Busch v. Robinson. 539.

PLEADING CONCLUSIONS.

4. Where a matter is collateral to the essential act involved, it is
usually sufficient to allege it generally, as, that a certain election was
duly held, or that one purporting to be a public officer was duly elected;
but that will not do when the existence of the ultimate fact is the very
question in dispute, then the basic facts must be set forth in detail.
State ex rel. v. Malheur County Court, 519.

DENYING MATTER OF INDUCEMENT.

5. Matters of inducement in a pleading are not material, and need not
be denied.
Fleishman v. Meyer, 267.

EFFECT OF DENYING MATTER NOT ALLEGED.

6. A denial of a statement not pleaded does not raise an issue, and no
evidence should be permitted in support of it. Brown v. Feldwert, 363.

EFFECT OF DENYING ADMITTED ALLEGATIONS,
7. A denial of an allegation of fact already admitted is not a denial
at all the pleading is controlled by the admission.

Brown v. Feldwert, 363.

AMENDING PLEADINGS AFTER REVERSAL IS DISCRETIONARY.

8. Under B. & C. Comp. $102, providing that the court, at any time
before trial, and on such terms as may be proper, may allow any pleading
to be amended, it is not an abuse of discretion, after reversal of a judg-
ment, to permit plaintiff to amend his complaint, without imposing as a
condition the payment of costs and disbursements incurred by defendant
on the former trial and appeal, which were made a valid charge against
plaintiff by Section 563.
Nye v. Bill Nye Milling Co. 302.

AMENDMENTS ARE DISCRETIONARY.

9. An application for leave to amend a pleading is addressed to the
discretion of the trial court, and that discretion seems not to have been
unjustly exercised in this instance.
Brown v. Feldwert, 363.

MOTION TO COMPEL ELECTION.

10. A motion to require a party to elect which cause of action will be
pursued may be made after an appeal from a justice's court and at any
time before the examination of witnesses begins.

Harvey v. Southern Pacific Co. 505.

[44-46 Or.]