was for the jury to determine whether or not the sendee should have been put upon inquiry, and have telegraphed to his family for assurance of the truth of so extraordinary an occurrence as the death of both his father and mother on the same day, or within so short a time, and the question as to whether or not, upon this occasion, the sendee exercised the rea

sonable diligence of an ordinarily prudent person under the circumstances, was for the jury to determine. Western U. Teleg. Co. v. Taylor (1908) - Ky. -, 112 S. W. 844. For former report, see (1907) 31 Ky. L. Rep. 240, 101 S. W. 969. And even though the sendee asked the agent to confirm the correctness of the first telegram, and was assured that it was right, the court said that this only went to the correctness of the transmission of the telegram actually given the telegraph company, and would have no effect in clearing up any mistake that had been made in writing the telegram.

III. Where one acts upon his own interpretation of a doubtful message. When one receives an unintelligible message it is his duty to telegraph back for the correct message, or to ask his correspondent the meaning of it, and where he assumes to act upon his interpretation of the message, which interpretation is totally unwarranted by the terms in which it is sent, he is guilty of contributory negligence, and takes the risk of his own false interpretation. Nusbaum v. Western U. Teleg. Co. (1885) 42 Phila. Leg. Int. (Pa.) 16.

Where the message received by an agent of the plaintiff is an unintelligible jargon, and the agent acts upon it, the telegraph company is not liable, as in such a case the agent takes the risk of his interpretation of the message. Hart v. Direct United States Cable Co. (1881) 86 N. Y. 633.

Negligence of an agent in attempting to interpret an obscure message, instead of seeking confirmation from the sender, may be imputed to his principal, where the latter seeks to recover damages for error in the transmission of the message. WEST

ERN U. TELEG. Co. v. FT. SMITH BODY C*. (reported herewith, ante, 39.)

IV. Where sendee is cognizant of error in telegram.

Where the receiver of a telegram knows that the price of a commodity is considerably more than the quotation erroneously transmitted in the telegram, due to an inadvertence on knowledge on the part of the receiver, the part of the telegraph operator, the of the error in the telegram, is a defense open to the telegraph company in a suit brought against it by the sender of the telegram to recover for the difference between the price stated in the offer as delivered to the telegraph company by the sender, and the price erroneously quoted in the telegram as delivered to the receiver, who had ordered, and been supplied by the sender of the telegram with, the commodity at the erroneously quoted price. Germain Fruit Co. v. Western U. Teleg. Co. (1902) 137 Cal. 598, 59 L.R.A. 575, 70 Pac. 658.

A cattle dealer, who, after receiving a telegram erroneously quoting the sale price of certain cattle at a figure $1 a hundred higher than they actually brought, gets information on the streets of the town from which the said cattle were shipped that such cattle actually brought less than the figure quoted in the telegram, and after the receipt of such information enters into a contract for the sale of cattle in reliance upon the erroneous quotation in the telegram, without assuring himself by repetition of the message, or otherwise, of its correctness, is guilty of contributory negligence which defeats his right of action against the telegraph company. Western U. Teleg. Co. v. Wright (1886) 18 Ill. App. 337. See II. supra.

V. Forged telegrams.

the telegram, identification to be waived, such telegram being written on a receiving blank, which blanks were not open to the public, but used only for messages received by the telegraph company, and the purported payee of the drafts presented to the plaintiff bank three other telegrams, all purporting to come from the drawee of the draft in New York, all the messages being written on the receiving forms of the telegraph company and on the typewriter used by the telegraph company, and having on them the number used by the receiver of New York messages, although none of them had been sent from New York, and evidently they were all concocted in the office of the telegraph company at Dallas, the court held that in this case, where the plaintiff bank sued to recover damages because of being induced to pay the draft on the strength of the spurious telegram, contributory negligence could not become an issue, as the telegraph company, by negligently permitting some employee or other person to forge the telegram and send it by an employee to the plaintiff bank, was guilty of gross fraud upon the rights of the bank, and could not evade the results of that fraud by a plea that the plaintiff bank failed to use means to protect itself against such fraud. The court said: "It matters not that appellee may not have used ordinary care in verifying the telegram, and in identifying the person desiring to profit by it; appellant cannot be heard to say that appellee should not have believed that the telegram was a genuine one, which had come over the wires of appellant from New York, as represented by it. When the telegram was delivered to appellee by appellant, it carried with such de

livery a representation upon the part of appellant that it had been received in due course over its wires from New York, and appellee was authorized to act on the assurance of its genuineness, and no duty devolved upon it to exercise diligence to ascertain if the telegram had really been sent from New York. That duty rested on appellant, and it was guilty of perpetrating a fraud when it allowed a telegram to leave its office which had been prepared in that office, and had never come over its wires. Appellee had no means of knowing that the telegram was spurious, and could act on the presumption that appellant was acting carefully in the discharge of its business. The fraud would be no less reprehensible, whether it occurred. through negligence or design, but if the representations of a party are made through ignorance, carelessness, or mistake, and the other party is deceived and misled thereby, the person making the representations would be liable for any damage resulting therefrom, no matter whether the party who acted on the representations acted with ordinary care or not."

A bank which receives a forged telegram transmitted by the defendant. telegraph company, purporting to have been sent from another bank, ordering the former to pay a party named in the telegram a certain sum of money, is not as a matter of law guilty of contributory negligence in paying the money to the party named in the telegram without identification, and without waiting to make inquiry of the other bank. Citizens Nat. Bank v. Western U. Teleg. Co. (1913) 159 Iowa, 720, 139 N. W. 552, Ann. Cas. 1915D, 243. R. P. D.

Evidence relative to financial condition, poverty, indebtedness, etc., of plaintiff, was not admissible.

Graeber v. Derwin, 43 Cal. 495; Vedder v. Delaney, 122 Iowa, 583, 98 N. W. 373; Malone v. Hawley, 46 Cal. 409, 13 Am. Neg. Cas. 426; Shea v. Potrero & B. V. R. Co. 44 Cal. 414; Johnston v. Beadle, 6 Cal. App. 251, 91 Pac. 1011; 13 Cyc. 197, subsec. 5; 17 C. J. p. 872, notes 68, 71, 72; Steinberger v. California Electric Garage Co. 176 Cal. 386, 168 Pac. 572, 17 N. C. C. A. 926; Blue Bar Taxicab & Transfer Co. v. Hudspeth, 25 Ariz. 296, 216 Pac. 246; Tom Reed Gold Mines Co. v. Morrison, 26 Ariz. 291, 224 Pac. 822.

The verdict and judgment were not justified or sustained by the evidence, and were contrary to law.

Silver King v. Kendall, and Tom. Reed Gold Mines Co. v. Morrison, supra; Blue Bar Taxicab & Transfer Co. v. Hudspeth, 25 Ariz. 287, 216 Pac. 246. Mr. S. D. Stewart for appellee.

Ross, Ch. J., delivered the opinion of the court:

The plaintiff, Berd, in a suit under the Employers' Liability Law, chap. 6, title 14, Civil Code 1913, obtained a verdict and judgment against the defendant, Tom Reed Gold Mines Company, for the sum of $10,000, and from an order overruling a motion for a new trial and from the judgment, the company has appealed.

The accident, in which plaintiff claims he was hurt, occurred August 9, 1924, in the 400 level of the Katherine mine, Mohave county. At the time he was lifting a drilling machine, weighing about 150 pounds, for the purpose of removing it from the danger zone of some blasts about to be put off, and while in such act his feet slipped and the drilling machine, as he alleges, struck him in the abdomen and groin and about the hips and legs and injured him internally and in his back, spine, hips, and certain nerves, muscles, and tissues of his body, permanently disabling him, etc.

The first six assignments of error are based upon the misconduct of plaintiff and his counsel during the trial. The seventh is that the jury acted under the influence of bias,

260 Pac. 191.)

passion, and prejudice, induced by such misconduct, and rendered an excessive verdict. We do not find it necessary to consider the other assignments, and therefore do not state them. We will consider those mentioned in the order stated.

This is a second trial, the first trial being had in November, 1925, and this one in June, 1926. In the first trial plaintiff was successful before the jury, but for some reason the verdict was set aside and a new trial granted. It would seem, therefore, that unless the errors complained of are clearly prejudicial the verdict and judgment should not be disturbed.

1. It is claimed defendant's rights were prejudiced by a statement of plaintiff while testifying, to the effect that defendant had caused a witness of plaintiff to absent himself from the trial. To begin with, plaintiff, as the record clearly shows, is an illiterate, uneducated foreigner. From his answers it is apparent he had difficulty in understanding questions put to him and, likewise, in making himself understood. He was asked by his attorney if other men were working on the 300 level at the time he was hurt and in answer to the question he said there. was. And to the further question, "Do you know where he is now?" (referring to one of such workmen), he answered, "He was the other day; he was in; but the company take him away from me before last night." The plaintiff had no grounds for making such an accusation. It appears from the record that it was an assertion without any supporting evidence. That an insinuation or assertion that the adversary had secured the absence of the witness was improper is obvious. Untrue and unsupported statements of the kind in the presence of the jury were certainly calculated to do harm and deserve, whether volunteered by the witness or solicited by counsel, the severest condemnation. Such misconduct has been

Appeal-statement that wit

ness was con

cealed.

held sufficient to require a reversal of judgments (Ashland Land & LiveStock Co. v. May, 51 Neb. 474, 71 N. W. 67, and Missouri, K. & T. R. Co. v. Wood, 26 Tex. Civ. App. 500, 63 S. W. 654) when the guilty party was not rebuked nor the jury admonished by the court not to be influenced by it. But in this case the court ordered the answers stricken and told the jury to disregard them. It was rectified so far as the court

-correction of

error.

was able to rectify it, and with an honest and intelligent jury we think we should assume wholly so.

2. The plaintiff was asked by his counsel if one Murphy rubbed him with liniment, and he answered, "No, sir; my wife did." The defendant objected to the answer, moved that it be stricken, and the jury instructed to disregard it. It now contends that a failure to grant its motion was error. In support of this contention defendant cites the rule announced in Silver King v. Kendall, 23 Ariz. 39, 201 Pac. 102, wherein it was said that evidence that plaintiff had a dependent wife and daughter was, under the Employers' Liability Law, irrelevant, and, since such evidence would tend to excite the sympathy of the jury for the plaintiff, it was prejudicial. But in that case the record shows that the evidence was offered and admitted for the purpose of enhancing the verdict. If the situation here were the same, the rule would be the same. The statement by plaintiff that his wife rubbed him, if the question was proper, was also prop

That plaintiff had a wife was brought out incidentally and not for the purpose of augmenting the verdict or winning the sympathy of the jury. To extend the rule to hold that such accidental disclosure was injurious would be going

-evidence-disclosing existence of wife in personal-injury case.

too far, we think.

3. The plaintiff sought to put before the jury, by questions propounded to him by his counsel, his

financial condition at the time of the accident and during the interim to the time of trial. For instance, he was asked if he had any money saved up, how he had managed to live, if he made any money trying to farm or in the store business, if he had been able to make a livelihood, to which questions he made answer, in effect, that he had some money when hurt, but had since spent it; that his efforts to make a livelihood had been futile; that his living had been poor; and that he had borrowed, or tried to borrow, from friends. These questions and answers were foreign to the issue. The plaintiff had asked in his complaint for damages for permanent injuries only. He alleged no special damages, as for loss of wages, or for medical care, or otherwise. The evidence should have been confined to the issue. The defendant either interposed objections to these questions or moved that the answers thereto be stricken and the jury instructed to disregard them, which objections and motions were uniformly sustained by the court. In one or two instances the court stated in ruling out such evidence that the question was whether or not the plaintiff's earning capacity had been decreased by reason of the alleged injuries.

The persistence of plaintiff's counsel in repeating these questions after the court had ruled thereon was almost contemptuous and exhibited a contentiousness that is unpardonable; and, if it were in our power to inflict punishment upon the attorney without condemning at the same time his client, we would be inclined to do so. Evidence of poverty in cases Evidence-of of this kind should dition-Employnever be allowed. The damages recov

pecuniary con

ers' Liability Act.

erable depend upon the nature of the injury sustained and not upon the wealth or poverty of the plaintiff. Johnston v. Beadle, 6 Cal. App. 251, 91 Pac. 1011; Green v. Southern P. Co. 122 Cal. 563, 55 Pac. 577; 17 C. J. 872. But, in view of the rulings