Volume 171 — Iowa Reports

—Hon. A. B. Thornell, Judge. Defendant was indicted for the crime of rape. Upon trial to a jury, he was convicted of an assault with intent to commit rape, and appeals.

— Hon ¥m. Hutchinson, Judge. Action to recover damages for negligence resulting in the death of plaintiff’s horse. Judgment for the plaintiffs. Defendant appeals.

— Hon. Milo P. Smith, Judge. Action to enjoin the defendant city from opening up a street over land owned by the plaintiff. The city’s claim is based on an alleged dedication of the strip in controversy to public use. Decree below for the defendant. Plaintiff appeals.

<p>1 GARNISHMENT: Rights Acquired — Defendant in Execution Parting with Interest — Corporate Bonds. It is hornbook law that a garnishment reaches whatever interest the defendant in execution has in the property at the time the garnishment is served and no more. So held where the defendant -in execution had, prior to the service of the garnishment, assigned all his interest in certain corporate bonds held by the garnishee as collateral security.</p> <p>2 FRAUDULENT CONVEYANCES: Conveyances — When Vulnerable to Attack. It is elementary that a conveyance cannot be overthrown in the absence of a showing of (a) fraud or (b) want of consideration.</p> <p>3 GARNISHMENT: Order Not Affecting Plaintiff in Execution — Futility of Objection. A plaintiff in execution wbo, by Ms garnishment, reaches no property of the defendant in execution, because of a good-faith assignment of the property prior to the garnishment, cannot complain of an 'order of the court affecting the assignee only.</p>

<p>APPEAL AND ERROR: Abstracts — Rule for Preparation — Violation — Penalty. "Preserve everything reasonably material and omit everything else” is an ancient rule for the preparation of abstracts. An affirmance may follow a glaring violation of this rule, especially when the cause has been three times tried and the rulings appear correct. (Rule 31, Supreme Court, and Sec. 4118, Code. 1897.y</p> <p>PRINCIPLE APPLIED: In a cause with comparatively simple issues, followed by a verdict for $175, the abstract revealed: Pleadings with exhibits, 303 pages; opening statement, on which no point was raised, 52 pages; evidence, instructions and motions, 316 pages; total 671 pages. Questions and answers were largely copied. A vast mass of correspondence, resolutions, etc., not material to an understanding of the appeal, were inserted. Cause had pended seven years. Three trials. The rulings appeared correct. Affirmed.</p>

— Hon. Thomas Arthur, Judge. Action on a written order for the purchase of goods. Defense that the goods were not as represented; that before receiving the goods the defendant discovered this fact and notified the seller that he rescinded the contract of purchase, and that he refused to receive the goods. Judgment for the defendant. Plaintiff appeals.

— Hon. G-. A. Dun-ham, Judge. Action in equity to cancel a judgment on the ground that it is void because there was no service of the original notice upon the plaintiff. Decree for the defendant in the court below. Plaintiff appeals.

<p>Appeal from Linn District Court. — Hon. W. N. Treichler, Judge.</p> <p>Action to recover damages alleged to have been suffered by plaintiff from a collision with an automobile, and the value of a horse alleged to have been killed thereby, resulted in a verdict allowing damages for personal injuries, but the withdrawal from the jury of the claim for the value of the horse. Judgment was entered thereon, and the plaintiff appeals.—</p>

<p>1 FRAUD: Contract Induced by Fraud — Affirmance—Right to Recover Damages. Affirmance of a contract after full knowledge that it was induced by fraud bars the right to rescind, but waives neither the fraud nor right to recover damages. For instance, one fraudulently induced to buy a note secured by mortgage may affirm the contract after learning of the fraud, foreclose the mortgage, and recover the deficit in damages.</p> <p>2 FRAUD: Representations as to Value — When Actionable. Representations as to value may constitute actionable fraud when the parties do not have equal opportunity to know the truth, and the one with superior opportunity makes the representations, intending them to be taken as a fact and as an inducement to the sale.</p> <p>PRINCIPLE APPLIED: Plaintiff bought a fourth mortgage on land situated in a distant part of the state. The land was covered with snow, which fact was in the minds of the parties as preventing an adequate inspection. The evidence justified a finding that the holder of the mortgage stated that he had been over the land; that he knew its character; that it was worth, and that the owner had been offered, $85 per acre for it; that it was worth $20,000 over all incumbrances; and that the buyer of the mortgage could rely on such statements of value. The holder of the mortgage did nothing to prevent the purchaser from examining the land. Held, finding of actionable fraud was justified.</p> <p>3 FRAUD: Scienter — Sufficiency of Evidence to Show. Evidence reviewed and held sufficient to carry the question of scienler to the jury-</p> <p>4 FRAUD: Purchase of Secured Note — Fraud—Affirmance—Action for Damages — Worthlessness of Security — Insolvency of Makers — ■ Necessity of Proof. He who alleges damages must prove damages. Eor instance, the victim of a fraudulent contract for the purchase of a promissory note secured by mortgage, who affirms the contract and sues for damages, must show (a) the worthlessness of the security, and (b) the insolvency of the maker of the note.</p> <p>5 TRIAL: Argument — Reading Depositions — Discretion of Court. Whether depositions may be read by counsel during argument to the jury, even by way of answer to argument of opposing counsel, is. discretionary with the court.</p> <p>6 FRAUD: Character of Land — Materiality on Value. The "value” of land being a material issue in an action for false representation as to the value of the land, evidence as to the character of the land was admissible as bearing on value, even though 'plaintiff had withdrawn his charge of false representation as to the character of the land.</p> <p>7 APPEAL AND ERROR: Unproved Claim — Failure to Withdraw— Verdict in Justifiable Amount. Oversight in the court in not withdrawing from the jury an unproved claim does not constitute error when the amount of the verdict has full support in the evidence.</p> <p>8 FRAUD: Sale of Real Estate Junior Mortgage Security — Damages— Value "When Redemption Expires.” In actions for damages for fraud in the sale of land, the material inquiry is the value of the laud ‘ ‘ at the time of the sale. ” If, however, the action is for damages for fraud in the sale of a note secured by a junior mortgage on land, the material inquiry is the value of the land ‘ ‘ at the time redemption from senior mortgage could be made,” the parties- clearly contemplating such redemption.</p>

— Hon Milo P. Smith, Judge. Action for damages alleged to have been suffered by plaintiff in consequence of misrepresentation as to quality of land sold to him by the defendant. There was a verdict and judgment thereon for plaintiff, and defendant appeals.

— Hon. A. N. Hob-son, Judge. Action to recover damages to cattle, consequent on defendant’s alleged negligence, resulted in a judgment against defendant, from which it appeals.

<p>Appeal from Cedar District Court. — Hon. F. O. Ellison, Judge.</p> <p>Action to recover a commission alleged to have been earned in procuring an exchange of tracts of land resulted in a verdict and judgment as prayed. The defendant appeals.—</p>

<p>1 MASTER AND SERVANT: Employment of Servant — Sufficient Evideuce of — Federal Employer’s Liability Act. An employment “in interstate commerce” is essential to the maintenance of an action under the Federal Employer’s Liability Act. Evidence held sufficient to show that plaintiff was such employee, and not a mere passenger.</p> <p>2 MASTER AND SERVANT: Rules — Practical Construction of — Riding on Engine. A rule forbidding any person to ride on an engine, except employees in the discharge of their duty, has no application to a head brakeman when such place was the customary place where the head brakeman rode, when he was directed by the conductor to ride on the engine, and such had been the practical construction of the rule.</p> <p>3 APPEAL AND ERROR: Inviting Instruction — Estoppel. One inviting a certain action by the court must not complain if the court-accepts the invitation.</p> <p>PRINCIPLE APPLIED: Defendant pleaded a so-called “assumption of risk,” requested instruction thereon and one was given practically as asked. Held, court would not give ear to the claim that the pleading added nothing to the general denial because it amounted to nothing more than a superfluous pleading of “assumption of risk naturally incident to the work, regardless of negligence.”</p> <p>4 APPEAL AND ERROR: Pleading — Specifications of Negligence— Proving Others. Whether the failure to prove defendant guilty of the particular negligence specified, but proving defendant guilty of another confessedly negligent act, and the proximate cause of the injury, presents such exceptional situation as to justify the affirmance of a verdict of recovery, quaere.</p> <p>5 APPEAL AND ERROR: Verdict — Support in Evidence. A verdict on fair conflict of evidence will not be disturbed.</p> <p>6 APPEAL AND ERROR: Instructions — Omission of Fully Established Issue. The failure to submit an issue fully determined and established by the evidence is not error.</p> <p>PRINCIPLE APPLIED: In an action for personal injury under the Federal Employer’s Liability Act, the court failed, in first stating the issues, to require the jury to find “that plaintiff, in order to recover, must show he was employed in interstate commerce at the time he was injured.” In a later instruction the issue was submitted, but appellant claimed that this amounted to no more than an attempt to correct an erroneous instruction by contradicting it. Seld, such omitted matter being fully established in the evidence, the court might have peremptorily instructed that the same was established, and therefore no prejudicial error occurred.</p> <p>7 DAMAGES: Excessive Verdict — Personal Injury. Verdict of $20,000 reduced by trial court to $14,000 held not excessive under facts of instant case.</p> <p>PRINCIPLE APPLIED: Plaintiff injured in jumping from engine in order to avoid collision. Trial over two years after accident. Plaintiff has a permanently stiffened knee, a curvature of the spine and some paralysis. Vertebrae of spine forced out of normal position, resulting in a pinching of the nerves. Unable to walk without crutches. Suffers from nervous disorders. Earning capacity wholly destroyed. Helpless condition is probably permanent. Prior to injury was earning from $100 to $145 per month.</p>

— Hon. C. G. Lee, Judge. Action in equity for abatement in purchase price of a certain town lot. Demurrer to petition sustained and plaintiff appeals.

— Hon. C. B. Robbins, Judge. Action by an attorney to recover for legal services rendered the defendant’s wife in an action for a divorce brought by tbe husband against the wife, in which the husband established the grounds alleged for a divorce to be true. From a judgment in favor of the plaintiff for the value of such services, defendant appeals.

<p>1 APPEAL AND ERROR: Appealable Judgment — Action to Enjoin Tax —Amount Involved. A judgment or order, iu an action to enjoin the levy and collection of present and future taxes, is appealable irrespective of the amount of taxes involved. (Sees. 4101, 4110, Code, 1897.)</p> <p>2 TAXATION: City and Town Taxes — Agricultural Lands. Lands in good faith occupied and used for agricultural purposes, and not subdivided into parcels of ten acres or less, are not taxable for general city and town purposes. (Sec. 616, Sup. Code, 1913.)</p> <p>PRINCIPLE APPLIED: Plaintiff owned an undivided and unplatted 38 acres to the west of the city. The corporate limits were so enlarged as to extend to plaintiff’s west line. The land was rented for $13 per acre and was used for agricultural purposes, some 25 acres being in corn, some four acres in house, grove and nursery stoek and the balance in pasture. The rental value was increased somewhat by reason of proximity to the city, but not because it was within the corporate limits. One street touched the southeast corner of the land. A road ran along the south side of the land, but no city funds were expended thereon. There were some sidewalks in the neighborhood. There were two near-by gas posts put in by a former owner but never lighted by the city. The nearest city water main was 1,000 feet from the residence. The nearest street light was 856 feet from the nearest corner of the land. Held, the land was not taxable for general city purposes (library tax excepted).</p>

— Hon. W. J. Springer, Judge. Plaintiff, being confined as an inebriate in the Hospital for Insane at Mt. Pleasant, applied to Hon. W. J. Springer, one of the judges of the district court of Clayton county, for a writ of habeas corpus, alleging that she had been cured, and was entitled to her liberty, and was being illegally restrained. The judge issued the writ and the plaintiff was brought before him for hearing.

<p>Appeal from Scott District Court. — Hon. A. J. House, Judge.</p> <p>Appeal from the order of the court granting defendant a new trial.</p>

— Hon. R. P. Howell, Judge. On the 25th day of September, 1909, William Ellenberger, Sr., made what is alleged to be his last will. He died some time in April, 1914. The probating of this will was set to be heard on April 30, 1914. Before probate was granted, the three daughters of testator, now appellees, filed notice of contest, and thereupon probating was suspended, and the contest has not yet been tried.

— Hon. J. H. Applegate, Judge. • Action to recover damages claimed to have resulted from a collision between plaintiff’s automobile and one of defendant’s cars. Judgment in the court below for the plaintiff. Defendant appeals.

— Hon. W. H. Fahey, Judge. As reversal is ordered because we hold that'the trial court should have granted appellant’s petition for removal, our consideration is limited to giving our reasons for reaching said conclusion. The facts will be stated in course of the opinion.

— Hon. M. E. Hutchison, Judge. Action for damages alleged to bave been caused by a defective bridge and want of railing resulted in judgment against the defendant, from which it appeals.

<p>1 TRIAL: Instructions — Invading Province of Jury — Negligence. The court must not, in its instructions, even inferentially, invade the province of the jury. So held where the court, by inference at least, told the jury that the actions of an injured person, in view of certain knowledge, and the failure to do certain things, constituted negligence.</p> <p>PRINCIPLE APPLIED: Plaintiff was injured by falling down the steps leading from a railway depot. On the question of negligence, the court instructed (italics are ours): “In determining whether or not the plaintiff exercised such reasonable and ordinary .care, it is proper for you to consider the number of times plaintiff had passed over the steps in question; that she knew the steps were there; that she knew it was so dark she could not see the steps and as bearing on that question you may also consider whether or not the plaintiff took hold of the door jamb, or asked for lights, or tools any other reasonable precautions and care for her own safety.” Seld error, under above rule.</p> <p>2 TRIAL: Instructions! — Undue Emphasis on Evidence — Biased Recital of Pacts. It is reversible error for the court in its instructions to unduly emphasize the facts and circumstances which tend to disparage plaintiff’s theory, while at the same time giving undue prominence to the facts and circumstances which tend to exculpate defendant. The practice of reciting evidentiary facts is condemned, generally.</p> <p>3 NEGLIGENCE: Care of Premises — Duty to Non-trespasser — Common Carrier. One who, expressly or impliedly, invites people to come upon his premises must keep them in a reasonably safe condition, irrespective of his own convenience. So held where a former passenger, with the consent of the railway company, was waiting at a depot for a conveyance, and was injured by reason of a defect in the building.</p>

— Hon. R. P. Howell, Judge. Action to set aside the probate of a will. Trial to a jury. At the conclusion of plaintiffs’ testimony, a verdict was directed for defendants. Plaintiffs appeal.

<p>INTOXICATING LIQUORS: Nuisance — Presumption from Possession. The finding of intoxicating liquors in a drug store, the proprietor not having authority to sell the same, raises the presumption that they were possessed with the intent to sell the same in violation of law. (See. 2427, Code, 1897.)</p>

— Hon. M. E. Hutchison, Judge. Action at law upon a policy of fire insurance in tbe defendant company, covering a sawmill, fixtures, and appliances, in the state of Florida. The defendant denied liability, and on the issues joined, the case was tried to the ■ court without a jury, resulting in a judgment for plaintiff, and defendant appeals.

— Hon. W. H. Fahey, Judge. Action on certain notes and an overdraft aided by attachment. After the property levied on was discharged by the execution of a delivery bond, the. defendants were adjudged bankrupts. Thereupon, plaintiff amended the petition by praying that judgment be enjoined in order to -adjudicate defendants’ liability as a basis for an action against the surety on the delivery bond. The relief was denied and plaintiff appeals.

— Hon. A. P. Barker, Judge. Action by mortgagee on a policy issued to mortgagor and made payable to mortgagee as her interest might appear. Judgment and decree in the court below for the plaintiff. Defendant appeals.

<p>Appeal from Black Dawk District Court. — Hon. Franklin C. Platt, Judge.</p> <p>Action for rent resulted in judgment as prayed. Tbe defendant appeals.</p>

— Hon. A. P. Barker, Judge. This, appeal brings up for review the. action of the district court in setting aside an affirmance of judgment in justice court made under and by virtue of the provisions of Sec. 4559 of the Code of 1897, the motion to set aside the judgment of affirmance having been filed after the time fixed in said statute for filing such motion.

<p>PARTNERSHIP: Settlement of Accounts — Conclusiveness. A settlement between partners of partnership accounts, without fraud or mistake, is a finality, especially when such settlement has been ratified and affirmed by the conduct of the parties.</p>

— Hon. J. L. Kamrar, Judge. Action to enjoin defendant county and its board of supervisors from erecting a courthouse and issuing bonds in the sum of $200,000 to pay for the same. Judgment and decree in the lower court for the plaintiffs. Defendants appeal.

<p>1 DIVORCE: Cruelty — Physical Violence — Circumstances Excusing. Evidence reviewed and held, in view of extenuating circumstances, not to justify a divorce on the grounds of cruelty.</p> <p>2 DIVORCE: Cruelty — Questionable Conduct of Spouse Excusing Violence. The violent language and conduct of the husband toward his wife may find excuse, though not justification, in the fact that she, by her own questionable conduct, has given him strong grounds to doubt her chastity.</p> <p>3 DIVORCE: Defective Decree — Dismissal of Proceeding — Effect on Subsequent Action. A signed but unrecorded decree of divorce, subsequently set aside and the proceeding dismissed, is a nullity and has no bearing on a subsequent divorce proceeding.</p>

<p>1 PARTIES: Joinder — Maker of Note — Assignee Assuming Payment —Foreclosure. Several parties who are bound for the same debt but on different contracts may be joined in the same suit. So held in an action against the makers and endorsers of a note and one who had assumed its payment. (Sec. 3465, Code, 1897.)</p> <p>2 VENUE: Foreclosure — Assignee Assuming Payment. An assignee of lands, who has assumed the payment of the mortgage thereon, is not, in an action of foreclosure properly brought in the county where the land is situated, to which action he is a party, entitled to a change of venue to the county of his residence (Sec. 3504, Code, 1897), because (a) such assignee is a necessary party to the action (See. 3462, Code, 1897), and (b) such action to foreclose must be brought in the county where the land is situated (See. 3493, Code, 1897).</p> <p>3 JURY: Right To — Waiver. He who proceeds to trial to the court without objection waives his right to a jury. (See. 3733, Code, 1897.)</p> <p>4 JURY: Equitable Action — Injection of Law Issues by Defendant —Right to Jury. A defendant who presents a law issue in an action properly brought in equity has no right to a jury trial thereon.</p> <p>5 MORTGAGES: Merger — Intention. Merger implies two distinct estates meeting in the same person at the same time. Then, again, merger is essentially bottomed on the matter of intention. Held, that the facts furnish no ground for the application of the doctrine of merger.</p> <p>PRINCIPLE APPLIED: B owned land and conveyed to A. A executed a note to B and secured the same by mortgage on said land. B assigned the note and mortgage to a bank. Later, B again became the owner of the land by conveyance from A, nd conveyed to S, who assumed and agreed to pay said mortgage. The bank brought suit to foreclose against A, B, and S, whereupon B took an assignment of the note and mortgage from the bank and was substituted as plaintiff. Held, neither the act of B in acquiring title to the land from A, nor the act of B in taking an assignment of the note and mortgage from the bank, furnish any ground for applying the doctrine of merger.</p> <p>6 EVIDENCE: Estoppel — Laches—Belated Claim — Assumption of Mortgage Debt. Long delay in making complaint as to the correctness of a contract, while enjoying the benefits thereunder, may preclude one from questioning the correctness of such contract.</p> <p>7 FRAUD: Representations — Statements as to Value — Opinion. Certain statements held to be simply matters of .opinion and to furnish no basis for a charge of fraud.</p>

— Hon. J. J. Clark, Judge. Action at law to recover the balance of the purchase price of a tract of land sold or exchanged by plaintiff to the defendant for certain stocks of merchandise. There was a trial to a jury, resulting in a verdict and judgment for the plaintiff, and defendant appeals.

<p>Appeal from Polls District Court. — Hon. Lawrence DeGraef, Judge.</p> <p>Action for damages consequent upon alleged false representations and breach of warranty. The allegations of the petition were put in issue and a counterclaim interposed. Jury was waived and on trial, the petition was dismissed and judgment entered on the counterclaim. The plaintiffs appeal.</p>

<p>1 INSURANCE: Accident Insurance — Non-Liability “When Violating Law” — Trespass. The provision of an accident insurance policy, to the effect that the insurer shall not be liable if the insured is injured or killed “when violating the law,” is not violated by the insured passing over a fence upon a railroad track at a point in the fence used daily by the public for many years.</p> <p>2 INSURANCE: Injured “When Violating the Law” — Criminal Act or Trespass Only. Whether a violation of law within the meaning of a policy of insurance providing for non-liability in case the insured is killed or injured “when violating the law” must be criminal or may be a mere -naked trespass to whieh no criminal consequences attach, quaere.</p> <p>3 INSURANCE: Policy Payable Through Assessments — Remedy Available. An action • in equity is the only available remedy to enforce the payment of a policy of insurance payable through assessments.</p> <p>dí APPEAL AND ERROR: Appeal for Delay Only — Taxation of Penalty. An appeal manifestly taken in order to delay payment of the judgment will be penalized by an award of damages. In instant case, five per cent, of the judgment is awarded. (See. 4141, Code, 1897.)</p>

— Hon. E. B'. Woodruff, Judge. Action in equity to reinstate a certificate of life insurance alleged to have been surrendered or exchanged, and to recover the amount of indemnity ■ therein provided for. A demurrer to the original petition having been sustained, and an amended and substituted petition having been stricken from the files, the plaintiffs appeal.

— Hon. R. M. Wright. Judge. This action was brought at law by plaintiff to recover the value of a certain bam on the premises of appellant, which was torn down by the defendants and moved off plaintiff’s land about February 10, 1912. The petition alleged that defendants acted wilfully, and plaintiff asked exemplary damages also.

<p>Appeal from Scott District Court. — Hon. M. F. Donegan, Judge.</p> <p>Action to recover damages for personal injuries. Trial to a jury and judgment for plaintiff for $1,000. Defendant appeals.</p>

<p>1 MASTER AND SERVANT: Mines — Failure to Furnish Props— Miner Continuing Work — Statutorily “Safe” — Negligence per Se. Whether a mine is “safe” within the meaning of our Mining Act, providing no miner shall work in his place “until it is made safe,” depends on the facts ascertainable by reasonable diligence before the aeeident, and not on the later developments of the accident itself. In other words, if a minen makes an examination such as a reasonably cautious miner would make and discovers nothing that such a miner would deem unsafe, then the place is “safe,” statutorily, and he may continue work, guiltless of negligence per se, even though an aeeident follows, demonstrating that in truth it was unsafe. (Secs. 2489-5a, 2489-16a, Sup. Code, 1913.).</p> <p>PRINCIPLE APPLIED: A miner, injured by a fall of slate because of insufficient propping, had frequently requested, and had been promised, props, but operator had failed to deliver them. In the face of the statute he continued work, after proper examination. Held, he was not guilty of negligence per se— that he had not violated the statute.</p> <p>2 MASTER AND SERVANT: Mines — Unpropped Roof — Miner Continuing Work — Contributory Negligence per Se. Evidence reviewed and held not to show contributory negligence on the part of a miner working in a partially propped room.</p> <p>PRINCIPLE APPLIED: A miner's room ran north and south, was 100 feet long, 20 feet wide and some 4 feet high. A track was laid along west wall and some 5 feet therefrom. The roof was slightly lower on west side of track than on the east side, owing to a “roll” or “step down” in the slate roof. This “roll” was about on the line of the west rail. “Rolls” frequently are attended with “slips” or breaks in the continuity of the slate. There was evidence that this ‘ ‘ roll ’ ’ contained no “slip.” Some days before the accident, plaintiff requested the foreman to timber over his track because of the “roll.” Plaintiff propped the entire roof west of the line of this “roll,” and also the entire roof east of the track, except to within 35 feet of the face, or north end. This 35 feet was partially propped by a row of props 3 or 4 feet apart, near the east rail. The rest of the area remained without props. Plaintiff repeatedly requested other props. Though promised, they had not been furnished. Plaintiff examined the roof, deemed it safe, pushed his ear 35 feet south of the face and commenced to load from the west side of track. At this point, the roof was fully propped west of track, and the short row of props extended along the east 'side of ear and 7 feet north of the ear. The roof fell primarily from the unsupported roof but carried with it part of the supported roof. No fall came from west of the track. The break was along the line of .the ‘ ‘ roll. ’ ’</p> <p>3 MASTER AND SERVANT: Mines — Falling Roof — Failure to Furnish Props — Proximate Cause. When the roof of a mine fell because of the absence of props, the proximate cause of such fall may be deemed the mine owner’s failure to furnish the props, it appearing that the miner had requested the props and would have installed them had they been furnished. (Secs. 2489-5a, 2489-16a, Sup. Code, 1913.)</p> <p>4 MASTER AND SERVANT: Mines — Failure to Furnish Props— Miner Continuing Work — Assumption of Risk. A miner, having requested the mine operator to furnish him props with which to prop the room in which he was. working, does not, by continuing at his work, assume the risk arising from the operator’s failure to furnish them. (Sec. 4999-a3, Sup. Code, 1913.)</p> <p>5 MASTER AND SERVANT: Mines — Failure to Prop Roof — Injury— Facts Essential to Recovery. A miner seeking to recover for injuries received from the falling of the roof of his mining place by reason of insufficient props thereunder must show:</p> <p>1. That he had requested the owner to furnish the props.</p> <p>2. That the owner had failed to do so within a reasonable time.</p> <p>3. That the owner’s failure to furnish the props was the reason for his failure to prop the roof.</p> <p>4. That upon “entering” his place of work, his first act was to diligently examine the said roof.</p> <p>5. That the said examination revealed nothing to him that he deemed unsafe, and that he therefore believed it safe. (Secs. 2489-5a, 2489-16a, Sup. Code, 1913.)</p> <p>6 MASTER AND SERVANT: Instructions’ — Contributory Negligence— Inadvertent Omission. An instruction, intended to cover the subject of contributory negligence, but inadvertently omitting the word “negligence,” hold insufficient'.</p> <p>7 APPEAL AND ERROR: Rulings Adverse to Winning Party — Review. Rulings of the trial court, adverse to the winning party but not affecting the amount of recovery, will not be reviewed by the appellate court.</p>

— Hon. B. M. Wright, Judge. Action at law upon promissory notes aided by attachment. Interveners appeared, claiming the attached property. Upon trial had, there was a decree discharging the property. The plaintiff appeals.

— Hon. Charles A. Dudley and Hon. Hugh Brennan, Judges. Suit in equity to enjoin the contemplated condemnation of land for the purpose of egress and ingress to a coal mine. Temporary injunction ivas issued and served. Defendants moved to dissolve the temporary writ. A hearing was had upon such motion and evidence was introduced. Thereupon the motion was denied. The defendants' appeal.

<p>1 APPEAL AND ERROR: Directed Verdict — Evidence Considered— Presumption. The presumption exists that the court, in ruling on a motion for a directed verdict, considered all evidence introduced up to that stage of the trial.</p> <p>2 APPEAL AND ERROR: Contract of Employment — Master and Servant — Directed Verdict. Evidence reviewed and held to present a jury question on a contract of employment, and whether the same was or was not divisible.</p> <p>3 FRAUDS, STATUTE OF: Parol Contract of Employment — Taking Contract Out of Statute — Part Performance. A parol contract of employment, within the statute of frauds, is not a void contract but is unprovable. In so far as it has been performed, it has been taken out of the statute.</p>

<p>Appeal from Polh District Court. — ITon. Hugh Brennan. Judge.</p> <p>In the district court, this proceeding was an appeal from an order of the board of supervisors establishing a drainage district. Upon hearing had, the order of the supervisors was confirmed by the district court. From such order of the district court, this appeal is prosecuted.</p>

— Hon. E. B. Woodruff, Judge. Action in replevin to recover the possession of personal property. Trial to court without jury. Judgment for defendant and plaintiff appeals. The facts are stated in the opinion.

— Hon. Charles A. Dudley, Judge. Action at law to recover in the first count upon an account, and in tbe second count upon a note. Trial to the court without a jury. Judgment for plaintiff on both the account and the note. Defendants appeal.

<p>1 EXTRADITION: “Fugitive from Justice” — Facts Constituting. The old rule that, to constitute one a fugitive from justice, he must actually flee from the state in order to avoid prosecution, has long ago been abandoned. A “fugitive from justice,” within the meaning of Federal law, is one who commits a crime within one state jurisdiction and, when called upon to answer therein, is not there — that is, has removed, it matters not in what manner or for what purpose, to another state jurisdiction.</p> <p>PRINCIPLE APPLIED: The accused, for several years, and in the course of his employment, collected money for his employer. On several occasions, he was short in his accounts. His employer rebuked him, but gave him time to make good his shortage, and even encouraged him to remain in his employ. The accused finally told his employer the amount of his shortage, and that he was going to Iowa to enter into other business in order to earn enough to make good the shortage. The employer did not object. Later, when the accused reached Iowa, he so informed his former employer and sent him a small payment. Extradition proceedings soon thereafter were instituted in the foreign state. Held, the accused was a fugitive from justice.</p> <p>2 EXTRADITION: Guilt or Innocence of Accused — Duty of Governor. It is not the duty or even the right of the governor to pass upon the question of the guilt or innocence of one sought to be extradited as a fugitive from justice. His duty is discharged when he determines (a) that an extraditable offense has been regularly charged and (b) that the accused was within the jurisdiction of the demanding state when such offense was committed.</p> <p>3 EXTRADITION: Habeas Corpus — Motive of Prosecution. When a requisition is made in due form and honored by the governor, it is not within the province of the court upon habeas corpus to inquire into the motive which actuates the prosecution in the foreign state.</p>

— Hon. Frank Bici-ielberger, Judge. Action in certiorari to declare void a certain ordinance passed by the defendant city vacating a certain street. Judgment for the defendants.

— Hon. A. B. Thornell, Judge. Action to recover an alleged balance due the plaintiff on his salary as a former sheriff of the defendant county. A demurrer to the petition was sustained. The plaintiff elected to stand thereon and his petition was dismissed. He appeals.

<p>1 VENUE: Pottawattamie County — Avoca and Council Bluffs District —Office or Agency. An action may properly be brought in the Avoca district of Pottawattamie county against a resident of Council Bluffs in said county, when the action grew out of or was connected with an agency maintained by defendant at Avoca, irrespective of the question whether such two districts are the equivalent of two counties. (Sec. 3500, Code.)</p> <p>2 ATTACHMENT: Pottawattamie County — Place of Levy — Removal of Property from “County.” The sheriff of Pottawattamie county may legally serve a writ of attachment in any part of said county, whether the action is commenced at Avoca or Council Bluffs. Service held proper for the additional reason that the property was removed from the Avoca district to the Council Bluffs district after the sheriff received the writ and was pursued and seized by the sheriff “within 24 hours” thereafter. (Sec. 3893, Code.)</p> <p>3 VERDICT: Directed Verdict — When Inevitable. When the record shows without dispute (a) the price defendant agreed to pay for the property, (b) delivery, (e) an attempted rescission by defendant and an abandonment of the attempt, and (d) the withdrawal by defendant of all his counterclaims, a directed verdict is inevitable.</p>

<p>PAUPERS: Legal Settlement of Insane Wife — Removal of Husband —Effect. The legal settlement of a wife not abandoned by her husband, follows that of her husband. (See. 2224, Code.) The reason is that the husband has the right and authority to control the abiding place of his wife, in order to meet his duty as head, provider and support of the family. The law ends, however, where the reason ends. The legal settlement of an insane wife, committed to the Hospital for the Insane from the county of her residence and legal settlement, remains unchanged by any act on the husband’s,part so long as such public restraint continues.</p> <p>PRINCIPLE APPLIED: A husband and wife had their .residence and legal settlement in Polk county. The wife became insane and was duly committed to the State Hospital for Insane, where she remained six years, and was then returned to the authorities of Polk county as incurable. She was then committed to the Polk County Hospital for Insane. Three years after she ■ was returned as incurable, her husband removed from Polk county to Clarke county, and thereafter maintained his residence in Clarke county, though he did not abandon his wife. Twenty-six years later, Polk county brought suit against Clarke county, under the statute governing support of paupers, on the theory that the legal settlement of the insane wife followed her husband into Clarke county. Held, the legal settlement of the wife remained in Polk county.</p>

<p>Appeal from Scott District Court. — Hon. ¥m. Ti-ieophilus, Judge.</p> <p>The opinion sufficiently states the case.</p>

— Hon. John F. Talbott, and Hon. K. E. Willcockson, Judges. Action in equity for a decree restraining the city of Grinnell, its mayor and council, from constructing or installing certain changes in its sewer system and from letting any contract therefor, or in any other manner authorizing such work. A motion to dissolve the temporary injunction was heard before Judge Talbott and sustained, from which ruling an appeal was taken.

<p>1 TRIAL: Directed Verdicts — Test to Determine — Allowable Inferenees. When the court is met by motion to direct a verdict, it should carry to the aid of the evidence every inference reasonably permissible in support of the issues. Motion held properly sustained.</p> <p>2 MASTER AND SERVANT: Negligence — Action—Chosen Grounds of Negligence — Failure to Prove. It is hornbook law that a plaintiff must stand or fall on his chosen ground of negligence.</p> <p>PRINCIPLE APPLIED: Hams were conveyed to the servant’s table by a mechanical carrier. His duty was to trim the hams and 'throw them into a truck. His chosen ground of negligence was: "That defendant neglected to provide a truck into which he could throw the hams, whereby the hams which he had trimmed became so piled up as to render the place unsafe; and-that a ham was thrown upon the table either from the carrier or by dropping from the pile and drove a knife through his hand.” The record showed (a) that the servant was under no command to so pile up the hams, (b) that an unfilled truck was at hand, and (c) plaintiff did not know whether the ham that hit him dropped from the pile or from the carrier or was one thrown upon the table by a fellow workman. Held, directed verdict against plaintiff was inevitable.</p>

— Hon. Francis M. Hunter, Judge. Action at law by the administratrix of the estate of Edward C. Thompson against the defendant to recover for the alleged conversion of certain five notes, the property of the decedent. Defendant admitted the possession of the notes and appropriation thereof to his own use, but denied the conversion and set up a written endorsement and assignment of each of the same by the decedent to himself. There was a verdict for the plaintiff.

<p>1 INTOXICATING LIQUORS: Constructions against Evasions — Duty of Court. The statute (See. 2431, Code, 1897), directing such construction of the Intoxicating Liquor Act as will prevent evasions of the act, neither authorizes nor permits arbitrary action against the accused, but it does emphasize the duty of the court to scrutinize the record to prevent evasions. Evidence reviewed, and held to support a conviction for contempt.</p> <p>2 INTOXICATING LIQUORS: Violation of 'Statute — Evidence—Certifled Copy of Federal Tax Receipt Holders. The certified copy, provided for in Sec. 2427-a, Sup. Code, 1913, of the names of those who have paid the Federal tax on the sale of intoxicating liquors is prima-faeie evidence that such persons are selling and keeping for sale intoxicating liquors in violation of law.</p>

— Hon. A. N. Hobson, t Judge. Action for damages for pergonal injury alleged to have been caused by the negligence of the defendant. From a verdict against plaintiff, he appeals.

<p>1 NEGLIGENCE: Automobile Accident — Evidence. Evidence, reviewed and held to support a finding that defendant was negligent in the handling of an automobile in a crowded public street.</p> <p>2 NEGLIGENCE: Automobile Accident — Wife as Employee of Husband — Negligence of Wife — Liability of Husband. A wife engaged in the transaction of the business of the husband or the business of both of them, though only for their mutual pleasure, is the agent and employee of the husband, with consequent liability of the husband for the negligence of the wife. So held in an automobile accident.</p> <p>PRINCIPLE APPLIED: A husband, two months before the accident in question, bought an automobile for the use and pleasure of both himself and his wife. He never had any driver but his wife. She used the machine on such trips as she cared to take. Ha accompanied her when he cared to do so and often when she requested him to do so. He invited guests to accompany them. Evidently he paid the expense of the trips. On the occasion in question, he was present at the suggestion of the wife on a sight-seeing trip to a fair and permitted the wife to operate the car. She ran the ear over deceased. Sold, the wife was the agent and employee of the husband, with consequent liability on his part for her negligence,.</p> <p>3,5 MUNICIPAL CORPORATIONS: Congested Street Crossings — Right to Use — Duty to Choose New Route — Negligence. There is no arbitrary right to use at any and all times and under any and all circumstances all parts of a public street. Circumstances, and ordinary prudence in view thereof, are an ever-present limitation on the right. Circumstances often demand a stop arid even a turning aside and the choosing of another route. So held where defendant drove an automobile across a congested street crossing.</p> <p>4 NEGLIGENCE: "Common Enterprise’ ’ — Husband and Wife. A husband and wife, engaged in a pleasure trip with invited guests and with an automobile owned by the husband and under his control but driven by the wife, are pursuing a "common enterprise. ’ ’</p> <p>PRINCIPLE APPLIED: (See No. 2.)</p> <p>3, 5 MUNICIPAL CORPORATIONS: Congested Street Crossings — Right to Use — Duty to Choose New Route — Negligence.</p> <p>6 NEGLIGENCE: When Negligence Will Be Imputed. The negligence of the driver of a conveyance will be imputed to one riding with the driver (a) when both parties are engaged in a common enterprise, and (b) where the driver is engaged in an enterprise for the use and benefit of the other party or in the employ or under the control and direction of such other party, whether such other party exercises his power of control or not.</p> <p>7 VERDICT: Death of Child — $3,300. Verdict of $3,300 for death of ' an eight-year-old child of ordinary ability sustained.</p>

<p>MASTER AND SERVANT: Exoneration of Servant Ipso Facto Exoneration of Master — Inconsistent Verdicts. If the employee who actually does a thing is free from liability therefor, his employer must also be free from liability. Stated in another way: If the master is responsible for the act in question solely under the doctrine of respondeat superior, then an exoneration of the servant, who actually did the act ipso facto exonerates the master.</p> <p>PRINCIPLE APPLIED: Plaintiff was one of several shippers who left their stock train, boarded a passenger train, and insisted on riding thereon under the transportation furnished them as caretakers. As they refused to leave the train or secure tickets, the conductor called two employees of the company who, as special policemen, were employed in guarding the property of the company, and the stockmen were compelled to leave the train. Plain-' tifE's action was against the company and both of said employees. He claimed (a) that the two employees had assaulted and severely injured him without cause, and (b) that the company had failed in its duty to protect him as a passenger. The jury returned a verdict in favor of both of the employees and against the company. Held, this verdict, followed by judgment thereon, likewise exonerated the company from all responsibility.</p>

— Hon. John F1. Talbott, Judge. This was a contest of a claim founded on a mortuary-note filed by plaintiff against the estate of John W. Murphy, deceased. The defenses set up by the administrator were that there was no consideration for the note and that it was secured through undue influence.

<p>1 PRINCIPAL AND AGENT: Evidence of Relationship — Sufficiency. Evidence reviewed and held sufficient to show, in an action for damages for misrepresentations in the salo of land, that the party making the misrepresentations was the agent of the one owning and selling the land.</p> <p>2 FRAUD: Fraudulent Representations — Action for Damages— Scienter — Necessity to Show — How Shown. A demand, either in law or equity, for damages by reason of alleged fraudulent representations must be supported by evidence establishing (a) that the representations were false to the actual knowledge of the one asserting them to be true or (b) that the representations were false and, with the intent to deceive, were recklessly asserted to be true without knowledge whether they were true or false, or (e) that the representations were false and were made under any other condition which would be the equivalent of scienter. Evidence reviewed in an action for damages for false representations in a sale of lands and held to establish the seienter.</p> <p>3 FRAUD: Damages, Measure of — False Representations as to Non-existing Land. One who, in falsely representing the existence of land, pointed out what he claimed to be such land and estimated its value cannot object that the court, in assessing damages, adopted his estimate of the value, especially where there was other evidence that such estimate would have been correct had the land existed.</p> <p>4 VENDOR AND PURCHASER: Vendee’s Action for Possession— Costs and Attorney Fees — Vendor’s Liability. A vendor of land is not liable for court costs and attorney fees expended by the vendee in an unsuccessful action to remove from the premises one who claimed to be the tenant of vendor, the vendor having no notice of such action or opportunity to participate therein.</p>

<p>1, 3, 5 CONSTITUTIONAL LAW: General Operation of Laws — Regulation of Occupations — Classifications—Transient Merchant Act. The constitutional principle that “all laws shall he general and of uniform operation throughout the state’’ (Sec. 6, Art. 1, and See. 30, Art. 3, Const.) does not command that a statute designed to regulate or tax an occupation shall apply to every person engaged in the same general occupation. Such statute may provide any natural and reasonable classification by which some engaged in the occupation are amenable to the statute, while others are exempt. But the Constitution will not tolerate a manifestly unnatural, arbitrary or unreasonable classification.</p> <p>PRINCIPLE APPLIED: The Transient Merchant Act (Secs. 700-c to 700-m, ine., Sup. Code, 1913) exacted a bond and license fee from such merchants and, in default thereof, provided for criminal prosecutions. The act was made applicable only:</p> <p>(a) To those who transacted such business within any city or town,</p> <p>(b) To those who transacted such business in an occupied or leased building, and</p> <p>(c) To those who had not previously conducted a mercantile business in the county.</p> <p>Held, all three classifications were clearly arbitrary and unreasonable, being founded on no real difference between the occupation taxed and the occupations exempted.</p> <p>2 CONSTITUTIONAL LAW: General Operation of Laws — Arbitrary Classification — Delegation of Power. The legislature, being without power to adopt an unnatural, arbitrary and unreasonable classification in a statute designed to tax an occupation, is necessarily without the power to so shape the statute that a taxing official may do that which the legislature cannot do.</p> <p>PRINCIPLE APPLIED: (In addition to No. 1.) The act was specifically made applicable to “agents”; yet in its exemption clause, “selling agents in the usual course of business” were specifically exempted from the operation of the act. The statute furnished no standard or guide to determine the distinetion between the agent exempted and the agent not exempted, but such arbitrary determination rested solely with the taxing official. Held, such power cannot be constitutionally conferred on any officer or individual.</p> <p>1,3, 5 CONSTITUTIONAL LAW: General Operation of Laws — Regulation of Occupations — Classifications—Transient Merchant Act.</p> <p>á CONSTITUTIONAL LAW: General Operation of Laws^ — Classifications — Municipal Boundary Lines as Basis. A classification, in a general state-wide taxation statute, not enacted for the benefit of cities and towns, cannot be constitutionally sustained when, thereunder, a certain occupation when carried on within the boundary lines of a city or town is made subject to the statute, but is exempt from the statirte if carried on outside such boundary lines.</p> <p>1, 3, 5 CONSTITUTIONAL LAW: General Operation of Laws — Regulation of Occupations — Classifications—Transient Merchant Act.</p> <p>6 CONSTITUTIONAL LAW: “Due Process” — Essentials—Notice— Hearing. “Due process of law”, within the meaning of See. 9, Art. 1, Constitution, never means less than some prescribed course of legal proceedings in which the person adversely affected shall have an opportunity to be heard and to resist. Held, the Transient Merchant Act was violative of this clause of the Constitution.</p> <p>PRINCIPLE APPLIED: A legislative act purported to tax or regulate the business of transient merchants. “Complaint” of a violation of the act could be made to the county auditor. If the dealer claimed he was a permanent merchant, the auditor was required to compel the dealer to do two things, to wit: (1) Give a bond conditioned to pay all claims growing out of the business and to pay the fee of a transient merchant if he did not continue the business one year, and (2) appoint the auditor his agent on whom service of notice of suits might be made. Who might make this “complaint” and how was not provided. No hearing or notice whatever was provided. Held, statute was void.</p> <p>.7 CONSTITUTIONAL LAW: Police Power — Exercising. Power for Ulterior Purpose — Crushing Competition. An ostensible exercise of the police power, for the evident purpose of destroying a useful business and thereby relieving others from troublesome competition, will be promptly condemned by the courts as unconstitutional. Transient Merchant Act condemned.</p> <p>8 CONSTITUTIONAL LAW: Taxation — “Power to Destroy” — Occupation Tax — Eight to Acquire Property. The undoubted power to tax harmless occupations does not embrace the power to destroy, • either directly or indirectly. The inherent and constitutional right “to acquire, possess and protect property” (See. 1, Art. 1, Const.) must be respected. B'eld, Transient Merchant Act (Sec. 700-i et seq., Sup. Code, 1913) was unconstitutional.</p>

— Hon. M. E. Hutchison, Judge. Action in equity to quiet and establish title to an undivided one sixth of 164 acres of land, and a lot in the town of Jefferson, plaintiff’s title to the lot being subject to a life lease in Theresa Jane Townsend. Plaintiff, who is the appellee, based his claim of title upon a certain conveyance executed by the first three named defendants, who are the children and devisees under the will of Reece Townsend, deceased.

— Hon. Robert M. Wright, Judge. This action in equity was brought by plaintiffs to quiet title to land in Webster county, Iowa, after rescission by them of a contract with defendant for the exchange of said land for land in Texas. By cross-petition, defendant asked that the contract be reformed and that he have specific performance. Plaintiffs’ petition was dismissed by the trial court and the relief asked by defendant was granted. Plaintiffs appeal.

— Hon. N. J. Lee, Judge. Action fox* damages for alleged negligence resulting in the death of Tex*esa Carrigan. The action is brought by the mother of the decedent as administratrix. There was a verdict for the plaintiff. The defendant appeals.

<p>1 DRAINS: Railway Right of Way — Benefits—Evidence. Evidence reviewed and held to show substantial benefits to a railway right of way by reason of the construction of a public drain.</p> <p>2 DRAINS: Railway Right of Way — Assessment of Benefits — Elements Considered. In the assessment of a railway right of way for the cost of a public drain, it was held proper to consider the following elements of benefit,, viz., (a) The greater ease and lessened expense of maintaining the right of way, (b) the greater permanence and security of embankments, (e) the increased life of all wooden materials, (d) the opportunity to substitute drainage pipe in lieu of trestles, and (e) the increased value of the acreage of the right of way, without reference to the fact that it was used for railway purposes.</p> <p>3 DRAINS: Assessments — Equality of Burden — Railway Right of Way. Special assessments should be so levied that approximate equality of burden is attained. Therefore, in assessing the cost of a drainage improvement, it was improper to so assess a railway right of way as to entirely absorb the benefits, while adjoining farm lands were so assessed as to absorb only one half or less of the benefits. In such case, held proper for the lower court to scale down an assessment of $1,500 on a railway right of way to $800.</p>

— Hon. David Mould, Judge. Action at law to recover au amount of overcharges which the plaintiff alleges was exacted by the defendant for transportation of freight. The trial court sustained a demurrer to the petition, and from that ruling and from the judgment entered against him for costs, the plaintiff appeals.