licl;lDse, he siu'lply points to the fact that it has terminated. His right to insist on the provision from which this result· flows is as sacred as of the defendant, arising from other provisions. . The purchase of was not made· from the , They were constructed by others, on the defendant's order, to be used in the manufacture of flour under the license. The plaintiff derived no advantage from their construction or purchase. The aJIegations of the answer in this respect ·are n.ot sustained by the. proofs. The plaintiff is entitled to a decree for an account, and an injunction.
UNITED STATES t1. LALONE
(Circuit Court, E. D. Wisconsin. December, 1890.)
The commissioner of pensions is not a judicial officer, and bis rulings in granting pension upon improper or fraudulent testimony do not estop the govtlrument from recovering back moneys paid thereunder.
Elihu Coleman, for the United States. J. E. Malone and E. S. Bragg, for defendant.
GRESHAM, J., (ora11y.) Joseph Lalone was mustered into the military service of the United States as a private soldier in summer or during the litllof1864, and sent to the first Wisconsin Heavy Artillery, which was then stationed somewhere on the Potomac river, where he contracted ague. He was discharged in the summer of 1865, and went to his home in Wisconsin, sLill suffering from that diseal;le. In 1888, on an application filed in 1880, Lnloneobtained a pension 011 the ground that aUer his discharge he was paralyzed, the paralysis resulting from the ague contracted in the service. This suit was brought to recover money paid to Lalone as a pensioner, on the theory that the pension was obtained by fraud. The evidence shows that a year or more after his discharge Lalone WIlS thrown or pitched from a wagon and injured, and subsequently became paralyzed; and the government insists that the paralysis resulted from that injury, and not from the disease which he contracted in the service. We are satisfied, after fairly weighing the evidence, that this contention is correct. Several witnesses testified that they saw Lalone thrown from the wagon, and that he was injured thereby. It is claimed, however, that there was ill feeling existing between the Lalone lamilyand those .vitnesses, growing out of acontroversyill regar4 to thl;llayingout of a highway. Lalone himself did not testify that there was any such ill feeling. His wife was the only witness who testified that there was
anunftiendly feeling between her husband and some of the government witnesses·. We do not think the positive testimony of the persons who saw Lalone thrown from the wagon has been discredited. That accident reasonably accounts for the' subsequent paralysis, while the defendant's theory as to the cause of hisdifmbility is highly improbable. We have carefully considered the testimony of Dr. Halleck, one of Lalone's witnesses,and do not think it entitled to much weight. His stll.teroents indicate that he was strongly parlisan, and willing to sustain the pension whether Lalone was entitled to it or not. On the whole cafle, we are satisfied that the government has a preponderance of the evidence, that the pension was obtained fraudulently, and that the money paid on it should be recovered.
General Bragg. I should like the court to pass directly upon the proposition as to whether the government is not bound by the acts of its executive officers. The Court. It is not. The commissioner of pensions is not a judicial officer, and his rulings do not conclude the government in a case like this. If he grants a pension upon improper or fraudulent testimony, and the government subsequently pays money on that pension, it may be recovered. It seems rather remarkable that a pension should be granted to a soldier for paralysis resulting from ague.
DAVIDSON V. SOUTHERN PAC.
COCrcuCt Goun, W. D. Tea;a,s, San Antonio Division. November 24, 1890.)
LIJ\lITATION OF ACTIONS-SUSPENSION OF STATUTE.
In Texas the filing' of a petition in court is a commencement of the action, so aa to stop the running of the statute of limitations; and, as the laws of the state require the clerk upon the filing of the petition to issue citation, any delay in the issuance of process to affect the running of the statute must result from the instructionll or request of plaintiff or his authorized attorney. Emp10yers are bound to provide machinery reasonably safe and suitable for the use of their employe's, and a,re liable for injuriell caused by defects in such machinery which are or ought to be known to them, and which are unknown to the servant.' A servant who remains ill the service, knowing of a defect in the machinery useQ. by him, witbout giving notice thereof, assumes the risk of injury therefrom.
MASTER AND SERVANT-NEGLIGENOE OF MAsTER.
SAME-AIISUMPTION OF RISKS.
A servant will be presumed to know of defects which are obvious and open to observation.
MEASURE OF DAMAGES FOR TORTs.
In estimating damages fQr personal injuries, the jury may consider (1) such special expenses as were incurred by plaintiff by reason of the injuries; (2) the value of the time lost by him from his usual occupation by reason thereof; (3) fair compensation for mental and physical suffering; (4) the probable future effect of the in· juries on his health; and (11) any diminution of his power to labor and pursue the course of life he might otherwise have done.