Mr. Justice Goodwin
delivered the opinion of the court.
3. Appeal and error, § 1316*—when not assumed that jury decided case on another theory. Where the instructions offered on behalf of both parties showed the case was submitted to the jury upon a certain theory, held that the court could not decide the case upon an hypothesis, resting upon surmise and conjecture, that the jury decided the case upon another theory. 4. Instructions, § 18*—lohen fatally erroneous because argumentative and misleading. Where the testimony as to a party’s intoxication was sharply conflicting and the question was of importance, an instruction as to the consideration of such testimony which was argumentative and misleading, held to be fatally erroneous. O’Connor, P. J., dissenting.
Free access — add to your briefcase to read the full text and ask questions with AI