right to recover is not objectionable, though some issues are involved as to which the burden is on defendant.7°

An instruction that, after plaintiff had adduced evidence establishing his case, the verdict must be for him, unless defendant adduces a preponderance of evidence against same, is erroneous.71

An instruction on questions of law, not applicable to the issues or evidence, is error, though abstractly correct.72

Proof of fraud must be clear, strong, and convincing; and hence it was error to instruct that a slight preponderance of evidence would sustain the burden of proof as to fraud.78

Where improper evidence is received at the instigation of the complaining party, it is not error for the court to eliminate the same from the consideration of the jury."

An instruction that the jury should consider, in connection with all the testimony and circumstances, all testimony on every point including that of medical experts, is not erroneous.75

An instruction that the jury must look to the evidence so far as it is "clear and unambiguous," in order to determine the contract in which the loan sued for is made, is misleading, as implying that if it was not clear and unambiguous it need not be considered.76

curacy and no special instruction was asked, reversible error could not be predicated on an instruction not inherently misleading, if it was supported, amplified, and explained by the other instructions. Grimes v. Emery, 146 P. 1135, 94 Kan. 701, affirming judgment 141 P. 1002, 92 Kan. 911.

Incorporation of the plain language of the pleadings into the instructions held not error, where the issues were fairly presented by the instructions as a whole. Williamson v. Prairie Oil & Gas Co., 146 P. 316, 94 Kan. 238.

70 Kansas State Mut. Hail Ass'n v. Title Guaranty & Surety Co., 155 P. 13, 97 Kan. 271, rehearing denied 156 P. 715, 97 Kan. 651.

In an action by a broker for commission, defendant pleaded fraud in the procurance of the contract by the insertion therein of terms not in accordance with the agreement of the parties, an instruction that if the jury believed, "from a preponderance of the testimony, that there was a contract which expressed the purpose and intention of the plaintiff and defendant" was not erroneous in imposing on plaintiff the burden of proving the validity of the contract. L. L. Tyer & Son v. Wheeler, 41 Okl. 335, 135 P. 351.

71 City of Woodward v. Bowder, 46 Okl. 505, 149 P. 138. 72 Holmes v. Halstid, 76 Okl. 31, 183 P. 969.

78 St. Louis & S. F. R. Co. v. Bruner, 56 Okl. 682, 156 P. 649,

74 Creek Coal Mining Co. v. Paprotta (Okl.) 175 P. 235.

75 Yard v. Gibbons, 149 P. 422, 95 Kan. 802.

76 Coles v. Nikirk, 57 P. 41, 8 Kan. App. 857,

Instructions permitting jury to consider facts and circumstances in evidence, “or," in the disjunctive, other facts and circumstances observed during trial, were not erroneous as permitting jury to consider facts and circumstances observed during trial outside of those in evidence."

In an action for a money judgment and equitable relief, an instruction that part of the evidence was admitted on matters to be decided by the court, but that the jury might consider any of it throwing light on the matters submitted to them, was not errone⚫ ous.' 78

A judgment will be reversed where the jury, being unable to agree, question the court, and he authorizes them to consider the fact that certain evidence was not produced in the justice's court, when in fact the case went by default in that court, and no evidence was offered.79

An instruction that the burden of proof was on defendant to establish the defense of contributory negligence is not open to the objection that the jury might have been misled when none of the evidence tends to prove contributory negligence.80

In an action to recover for injuries sustained by a fireman by reason of the defective apron of a coal chute, where there is evidence that the apron was out of repair six months before the accident and that the chute had been in daily use during this period, the court, in applying the rule that a condition once shown to exist is presumed to continue until the contrary is shown, should inform the jury that such presumption is one of fact which may be rebutted by circumstantial as well as direct evidence.81

Where petition avers wrong in pursuance of conspiracy, it is error to instruct to find for defendants if conspiracy is not shown, if there is any evidence against any of defendants of wrong alleged.$2

In an action to foreclose a chattel mortgage on a threshing outfit, it was error to instruct that the defendant mortgagors were entitled to recover the value of the property, when plaintiff took pos

77 Potter v. Womach, 63 Okl. 107, 162 P. 801.

78 Delgarno v. Middle West Portland Cement Co., 145 P. 823, 93 Kan. 654. 79 Heithecker v. Fitzhugh, 20 P. 465, 41 Kan. 50.

80 St. Louis & S. F. R. Co. v. Johnson, 86 P. 156, 74 Kan. 83.

81 Atchison, T. & S. F. Ry. Co. v. Lloyd, 75 P. 478, 68 Kan. 369. 82 Harbison v. White, 56 Okl. 566, 156 P. 335.

session under its mortgage, authorizing it to do so on the mortgagors' default, where the taking did not constitute a conversion.83 Where, in an executor's action against an attorney for money collected for the estate and not paid over, defendant testified to collecting $620, $220 of which was due him for fees, and that he had the balance, it was not error to instruct the jury to find for plaintiff in a sum not less than $400.s+

84

§ 1231. Withdrawal of instructions

Where certain instructions are given in favor of the defendant over the objection of plaintiff, and after the jury have retired and before a verdict is reached, the court, on reflection, concludes that the instructions were wrong, and calls the jury into open court and by written instruction withdraws them, if they were contrary to the law, the action of the court in withdrawing was not reversible error.8

85

§ 1232. Instructions on issues

86

The court should instruct as to the law applicable to the issues of fact raised by the evidence. He should submit to the jury and give instructions upon any issue, theory, or defense which the evidence tends to support, although there is countervailing testimony.87

83 J. I. Case Threshing Mach. Co. v. Barney, 54 Okl. 686, 154 P. 674.

84 Baker v. Tate, 138 P. 171, 41 Okl. 353.

85 Long v. Kendall, 87 P. 670, 17 Okl. 70.

86 Missouri, O. & G. Ry. Co. v. Davis, 54 Okl. 672, 154 P. 503.

Refusal to give an instruction applicable to facts in evidence not covered by other instructions is error. St. Louis & S. F. Ry. Co. v. Boyce, 48 P. 949, 5 Kan. App. 678.

It is the duty of the trial court to instruct the jury upon all questions upon which there is a conflict of testimony. National Bank of Paola v. Hampson, 45 P. 970, 4 Kan. App. 217.

87 Spurrier Lumber Co. v. Dodson, 30 Okl. 412, 120 P. 934; Menten v. Richards, 54 Okl. 418, 153 P. 1177; Henryetta Coal & Mining Co. v. O'Hara, 50 Okl. 159, 150 P. 1114; Binkley v. Dewall, 58 P. 1028. 9 Kan. App. 891.

It is duty of court to submit by proper instructions, theory of defense supported by evidence. Mountcastle v. Miller (Okl.) 166 P. 1057.

The court when duly requested must submit by instructions any material issue, theory, or defense which is supported by evidence. Holmboe v. Neale (Okl.) 171 P. 334. The right on request to have any material issue, theory, or defense submitted to the jury, if supported by evidence, is not affected by the fact that there is evidence to the contrary. Id.

In case tried to a jury court must submit plaintiff's theory where there is

It is not necessary that each separate instruction embody every element essential to sustain or defeat an action, or cover the entire case.88

evidence reasonably tending to support it, and a failure to give requested instructions which are correct and applicable, either in language requested or substantially so, is reversible error. Bristow v. Central State Bank (Okl.) 173 P. 221.

Where defendant was induced to enter into contract by reason of tricks, dissembling, etc., constituting fraud within Rev. Laws 1910, § 903, it was error to refuse its request to so instruct jury. Choctaw Cotton Oil Co. v. Williams (Okl.) 168. P. 792.

A requested charge as to the construction by the parties of a written contract which was construed by the court held properly refused as immaterial. McKnight v. Strasburger Bldg. Co., 150 P. 542, 96 Kan. 118.

It was not error to instruct on the nature of the pleading, so that jury might determine whether allegations were supported by proof. Shawnee-Tecumseh Traction Co. v. Newcome, 59 Okl. 271, 158 P. 1193.

Instructions which fairly recite the claims and contentions of the parties are not rendered erroneous by reading to the jury the contracts involved in the action. Wisconsin Engine Co. v. Altoona Portland Cement Co., 126 P. 1076, 87 Kan. 806.

Damages. Where derailment of a train is alleged to be due to the negli gence of defendant in certain specified particulars, and the railroad offers evidence of facts which it claims caused the accident, and which would relieve it from responsibility, the court should present both theories to the jury. St. Louis & S. F. R. Co. v. Posten, 124 P. 2, 31 Okl. 821.

Where plaintiff sues as sole owner for damages to property, and the evidence tends to show a joint ownership with another, it is error to refuse to submit the issue thus raised to the jury. St. Louis & S. F. R. Co. v. Webb, 128 P. 252, 36 Okl. 235.

In an action against a railroad company to recover for property destroyed by fire set by sparks escaping from a locomotive, the giving or refusal of an instruction predicated on the theory that the engine was properly constructed, in good order, and skillfully managed, could not be prejudicial, where the jury failed to find the facts on which the instruction was predicated. Atchison, T. & S. F. R. Co. v. Huitt, 41 P. 1049, 1 Kan. App. 781.

Where judgment creditor acting in good faith, refused to satisfy judgment, and there is evidence in judgment debtor's action for damages tending to support such defense, it was duty of court to give an instruction correctly stating the law applicable to such issue. First State Bank v. Carr (Okl.) 180 P. 856.

In an action against a driver of automobile for killing a boy, the refusal of an instruction that children of tender age are required to exercise such care as persons of their age, experience, and intelligence are ordinarily expected to exercise under like circumstances was erroneous, where instructions given did not cover that phase of case. Eames v. Clark, 104 Kan. 65, 177 P. 540.

In an action for damages to interstate shipment of live stock, where de88 Chickasaw Compress Co. v. Bow, 47 Okl. 576, 149 P. 1166.

Where it is evident plaintiff has introduced testimony in support of his theory of the case, it is not error for the court, after stating plaintiff's theory, to charge that he has introduced evidence in support of it.89

It is not error to refuse an instruction on an immaterial matter.""

§ 1233.

Applicability to pleadings and evidence

The court should give instructions that are fairly correct and state the law applicable to the case, and do not state mere abstract principles."1

Instructions are properly refused which, though abstractly correct, are not applicable to facts pleaded."2

The scope of an instruction is not to be determined alone by the

fendant offered a contract making notice of a claim a condition precedent to recovery, failure to give requested instruction on such provision was error. St. Louis & S. F. R. Co. v. Whitefield (Okl.) 172 P. 637.

Where railroad company is charged with failing to use ordinary care in several particulars, it cannot split the charges into the items mentioned, and ask for ruling as to each, but the general question of negligence was to be determined. Dickinson v. Granbery (Okl.) 174 P. 776.

89 Missouri, O. & G. Ry. Co. v. Parker, 50 Okl. 491, 151 P. 325.

Evidence in a drawbridge employé's action for injuries received in the operation of a drawspan held to authorize an instruction on dangerous employment. Heavey v. Leavenworth Terminal Ry. & Bridge Co., 156 P. 699, 97 Kan. 737.

90 Minneapolis Steel & Machinery Co. v. Schalansky, 165 P. 289, 100 Kan. 562.

Refusal of instruction that plaintiff had lien for work and materials held not error. Redus v. Mattison, 121 P. 253, 30 Okl. 720.

91 Chickasaw Compress Co. v. Bow, 47 Okl. 576, 149 P. 1166. Instructions embracing abstract statements of law, and which are misleading as applied to the issues, are properly refused. Meyer v. Reimer, 70 P. 869, 65 Kan. 822.

It is not error to refuse instructions which, though abstractly correct, are not applicable to the facts. Fowler v. Fowler, 61 Okl. 280, 161 P. 227, L. R. A. 19170, 89.

An instruction which although abstractly correct, is inapplicable to any inquiry which is legitimately before the jury, and might mislead them, is erroneous. Union Pac. Ry. Co. v. Fray, 3 P. 550, 31 Kan. 739; Atchison, T. & S. F. R. Co. v. Harvey, 3 P. 568, 31 Kan. 750.

92 Williams v. Arends, 57 Okl. 556, 157 P. 313.

Refusal of requested instruction which was inapplicable to the issues held not error, though it correctly stated an abstract rule of law. Grosshart v. Shaffer, 52 Okl. 204, 152 P. 441.

Refusal of an abstractly correct instruction inapplicable to the facts held not error. St. Louis & S. F. Ry. Co. v. Henry, 46 Okl. 526, 149 P. 132.