Wunderlich v. Holt , 86 Mont. 260 ( 1929 )

ON MOTION FOR REHEARING. (Decided January 9, 1930.) On petition for rehearing but one question deserves consideration. We are urged to reconsider the propriety of the court's action in refusing to give offered instruction K, an instruction to the effect that the jury should view all evidence of conversations with deceased with caution.

The court had given instruction 4L, which directed the jury to view plaintiff's evidence of such conversations with caution. But, since the record discloses that a witness other than plaintiff had testified regarding such conversations, it is contended instruction K should have been given.

Upon a request being made, the court should have instructed the jury that all evidence of such conversations should be viewed with caution. But the offered instruction, in addition to this subject, contained argument and advice to the jury similar to that which was condemned by this court in Knowles v. Nixon,17 Mont. 473, 43 P. 628, and was therefore erroneous and properly refused.

A rehearing is denied.