Volume 172 — Iowa Reports

— Hon. Lawrence DeGraff, Judge. The plaintiff, having been arrested upon a requisition issued by the governor of the state of Kansas, addressed to the governor of the state of Iowa, and having been surrendered to the agent of the former state for removal from this jurisdiction, sued out a writ of habeas corpus to effect his release.

<p>Appeal from Pottawattamie District Court. — Hon. Thomas Arthur, Judge.</p> <p>Action at law to recover damages for tbe alleged conversion of personal property and money belonging to the plaintiff. There was a directed verdict for defendant and plaintiff appeals.</p>

<p>Appeal from Hamilton District Court. — Hon. R. M. Wright, Judge.</p> <p>Action to quiet title to 160 acres of land in Hamilton County, Iowa. There was a decree for plaintiff, and defendant appeals.</p>

— Hon. Thomas Arthur, Judge. Action at law upon a promissory note made to the order of the Wixel Manufacturing Company, of which plaintiff claims to be an innocent holder. The defendant admits the making of the note, but alleges that it was obtained by fraud and without consideration, and denies that plaintiff ever purchased or became the owner of the note, but received and holds the same with notice of the fraud in its inception.

— Hon. F. M. Powers, Judge. The plaintiffs commenced an. action in certiorari in the district court to review the proceedings of the boards of supervisors of Sac, Buena Vista and Calhoun counties in the matter of a joint drainage district in refusing to consider a claim for damages made by appellants and in failing to appoint appraisers to appraise the same. A return was made to the writ, and the appellees filed a motion to annul the writ.

<p>EVIDENCE: Theory — When Established — Other Reasonable Hy1 pothesis. A theory cannot be said to be established when the record is just as consistent with the nonexistence of the truth of the theory as with its existence. So held in a controversy as to the manner in which deceased met his death.</p> <p>DEAD BODIES: Intentional Indignity to Body — Essentials of Action. 2 An intentional wrong or indignity is an all-essential element of an action for damages for the mutilation of a body after death. (See. 49.45, Code, 1897.) Held, such element not appearing, action would not lie-.</p>

<p>Appeal from, Harrison District Court. — Hon. A. B. Thornell, Judge.</p> <p>Action to quiet title and for a writ of possession. There was a decree for the plaintiff and the defendant appeals.</p>

— Hon. Thomas Arthur, Judge. Suit in equity to quiet plaintiff’s title to a tract of land in Harrison county; to ascertain and fix the boundaries of adjoining tracts owned by plaintiff and defendant; and to recover damages for defendant’s trespass upon lands claimed by plaintiff. The trial court gave plaintiff a decree as prayed, and rendered judgment against the defendant for $10 damages and costs, and defendant appeals.

— Hon. Thomas Arthur, Judge. Action by a real estate agent to recover a commission for the sale of land. The defendants are husband and wife. The action is predicated upon a written contract executed by the husband alone. It is averred that the contract was executed by the husband as agent for the wife and that she ratified the same.

<p>PLEADING: Substituted Petition Repleading Original Petition 1 Only — Effect—Motion to Strike. An amended and substituted petition under which no fact is admissible beyond what would have been admissible under the original petition is subject to a motion to strike.</p> <p>PLEADING: Striking Pleading from Piles — Subsequent Ruling— 2 Effect. A pleading properly stricken from the files is not sub-, jeet to further ruling on demurrer, even in connection with the motion to strike.</p> <p>PRINCIPLE APPLIED: Plaintiff’s petition was held insufficient on demurrer. He filed an amended and substituted petition. Defendant demurred on the ground, among others, that the pleading was simply a repetition of the former pleading. The court treated this last ground as a motion to strike, and struck such substituted petition from the files, but to the order so striking added: "In any event, the demurrer of the defendants to the substituted petition ought to be and the same is sustained,” Bold, the said added ruling was wholly without effect.</p> <p>APPEAL AND ERROR: Order Striking Repeated Pleading — Appeal 3 —Question Presented. An appeal from an order striking from the files a pleading which is simply a repetition of an original pleading already held insufficient on demurrer does not raise the question of the correctness of the ruling on said demurrer.</p> <p>Evans, J., dissents.</p>

— Hon. Thomas Arthur, Judge. . Action at law to recover damages for the death of one Dell Hardy, due to the defective condition of a county highway in the defendant county. The defendants are the county and the individual members of its board of supervisors. The defendants demurred to the petition and, their demurrers having been sustained, plaintiff elected to stand upon her petition, and judgment was rendered against her for costs. She appeals.

— :Hon. H. K, Evans, Judge. The defendant was indicted and convicted upon a charge of larceny. His motion for new triaL having been overruled, he brings the case to this court upon appeal.

— Hon. Henry Silwold, Judge. Sec. 2579 of the Code defines one practicing medicine, surgery or obstetrics, and being a physician, to be a person “who shall publicly profess to be a physician, surgeon or obstetrician, and assume the duties, or who shall make a practice of prescribing or of prescribing and furnishing medicine for the sick, or who shall publicly profess to cure or heal.” Sec. 2580, Code, is, among other things, that it shall be a misdemeanor for any person to…

— Hon. Lorin N. Hays, Judge. The defendant was convicted of the crime of assault with intent to commit larceny from the person. He appeals.

<p>Appeal from Pottawattamie District Court. — Hon. E. B. Woodruff, Judge.</p> <p>This action was originally commenced by the Traders Grain Company against the defendants to recover damages for the conversion of certain corn which had been consigned to it. Having assigned their cause of action to H.. F. Finks, he was substituted as plaintiff. The defendants denied the conversion and alleged that they took the grain under an attachment in a suit by the Cavers Elevator Company against one W. H. Hurley, who, they allege, was the owner of the grain. At the conclusion of the testimony, the trial court directed a verdict against the defendants for the value of the corn, and defendants appeal.</p>

— Hon. A. J. House, Judge. Action to recover liquidated damages for failure to deliver certain pneumatic piano players in accordance with the terms of a certain contract between the parties. The opinion discloses the facts upon which the suit is predicated. Judgment below for the plaintiff. Defendant appeals.

— Hon. Milo P. Smith, Judge. ■ Suit in partition in which the right of plaintiff to inherit was put in issue. On hearing, she was found to have been the natural child of deceased, Earl Granger, and to have been generally and notoriously recognized as his daughter, and therefore entitled to inherit as an heir. The defendants appeal.

<p>MASTER AND SERVANT: “Knowledge” as Element of Negligence — Usual Manner of Work — Poison. Knowledge, actual or constructive, is an essential ingredient of negligence. 'Therefore, when the master carries on his business in the usual and ordinary-manner, without knowledge that such manner is or may be dangerous to the servant, he is not liable for resulting injury to the servant. So held where the servant was injured by poisonous substances deposited on the articles on which he worked.</p> <p>PRINCIPLE APPLIED: In the construction of the “core” of a cream separator, it was. necessary to punch openings in the tin parts in order to insert a tin “spacer”. This process necessitated (a) the liberal use of oil and (b) the immersion of the parts in a solution of water and muriatic acid, after which the parts were given a bath in running water in order to clean off the oil and acid. Adhering oil and acid, however, formed a poisonous amalgam on the parts, which injured the servant whose duty it was to handle them and insert the “spacers” in the openings. The servant worked eight months at this work, during the last three of which he noticed his injuries. He made no complaint until he stopped work. No other workman in the same work was injured. There was no evidence (a) that the solution was not a proper one, or (b) that the oil was impure, or (e) that the process was not the usual or ordinary way of doing such work, or (d) that the master Icnew, or by ordinary diligence ought to have lenown, of the presence of the amalgam or that the parts were in any wise dangerous to the servant. Held, the servant had not established the master’s liability.</p>

<p>Appeal from Hamilton District Court. — Hon. C. G. Lee, J udge.</p> <p>Action at law upon a promissory note. Judgment for defendant. Plaintiff appeals.</p>

— Hon. D. M. Anderson, Judge. Action to recover the value of a cow killed upon defendant’s right of way, due, as is alleged, to defendant’s failure to keep a gate in a fence upon said right of way closed.. Defendant denied all negligence and, upon the issues joined, the case was tried to the court without a jury, resulting in a judgment dismissing the petition, and plaintiff appeals.

— Hon. John F. Oliver, Judge. Action to set aside a judgment rendered by the district court of Woodbury county against the plaintiff as garnishee in a suit brought by defendant, Brown, against one U. P. Matthews. The trial court sustained a demurrer to the petition and plaintiff appeals.

<p>MASTER AND SERVANT: Safe Place to Work — Nondelegable Duty 1 —Negligence of Vice-principal as Negligence of Principal. Negligence, either of omission or commission, of a vice-principal, while acting as such, by which the place of .work of the servant is rendered unsafe, is the negligence of the principal.</p> <p>PRINCIPLE APPLIED: Defendant was laying water mains in a ditch 6 feet deep and 2 feet wide, in soil composed of crushed rock on top, then a mixture of black sand and a little clay, with quicksand beneath. It was in issue whether one B was defendant's foreman with power to emplqy, pay and discharge employees and power to direct such emplóyees when and where to work and what to do. B had not planked or braced the walls of the ditch to prevent caving. B directed plaintiff to go into the ditch and prepare the bottom thereof for the mains. Plaintiff obeyed. B and another employee then went across the street, picked up a 250-pound main, carried it to the edge of the ditch where plaintiff was working and, plaintiff alleged, permitted it to there fall upon the ground. The ditch thereupon caved in and plaintiff was injured. Held, (a) if B did have the authority alleged, and (b) if the main was dropped imprudently and was the proximate cause of the cave-in, or (c) if it was negligent to fail to plank or brace the walls, and such failure was the proximate cause of the cave-in, and (d) plaintiff was not guilty of contributory negligence, then defendant was liable.</p> <p>MASTER AND SERVANT: Safe Place to Work — Nondelegable Duty 2 —Liability.of Master for Vice-principal. Where the master substitutes another in his place to perform his nondelegable duty to furnish and maintain a reasonably safe working place for the ■servant, he is responsible for the negligent acts of commission or omission of such substituted person. ,</p> <p>PRINCIPLE APPLIED: (See No. 1.)</p> <p>MASTER AND SERVANT: Assumption of Risk — Knowledge and 3 Appreciation of Danger. Knowledge of the danger, or duty to anticipate the danger, and appreciation of such danger, lie at the foundation of the doctrine of "assumption of risk''. In the absence of showing of these fundamental elements, such question should not be submitted to the jury.</p> <p>PRINCIPLE APPLIED (additional to No. 1): The final work of preparing the bottom of the ditch for the mains was new to plaintiff, and he so informed B, who assured him it was safe. Plaintiff did not know it was necessary or proper or possible to brace the walls of the ditch or that, if such was done, it would render his place of work more secure. There was evidence that such bracing was possible and necessary, because walls of the character in question were liable to cave in, in the absence of such bracing. Held, the record was wholly insufficient to justify the submission to the jury of the question of the assumption of the risk by plaintiff.</p> <p>MASTER AND SERVANT: Failure to Furnish Safe Working Place i —Intoxication of Foreman — Evidence. The habits of the master’s foreman to become intoxicated, in so far as known to the master when he employed the foreman, may be considered on the issue whether the master had, through such foreman, furnished a safe working-place.</p>

— Hon. Francis M. Hunter, Judge. The defendant was indicted for murder in the first degree and was convicted of manslaughter. He appeals.

— Hon. O. D. Wheeler, Judge. Action for damages for breach of contract to furnish cattle to be kept for share of increase on a ranch leased by-plaintiff from defendant, and for damages resulting from a failure of the landlord to furnish water supply. From a verdict and judgment for plaintiff, the defendant, appeals.

<p>Appeal .from Wayne District Court. — Hon. H. K. Evans, Judge.</p> <p>Action to enjoin the defendants from cutting a certain pipe connecting plaintiffs’ mine with a pond upon defendants’ land, through which water was furnished to the plaintiffs for the operation of the mine. The opinion states the facts. Decree for the plaintiffs. Defendants appeal.</p>

<p>Appeal from Lucas District Court. — Hon. D. M. Anderson, Judge.</p> <p>Action to reform a contract for the sale of land and for judgment for damages due to shortage in acreage. Decree was entered as prayed. The defendants appeal.</p>

— Hon. J. W. Anderson, Judge. Suit in equity to enjoin defendants from interfering with or preventing plaintiff from building a fence, or fences, upon certain lands claimed to belong to him and from tearing down the fences erected by him upon the E % of the NE]4 of Section 9, Township 88, Range 46 West of the 5th P. M. The defendants answered, and, upon the issues tendered; the trial court dismissed the petition, and plaintiff appeals.

— TTon. John F. Oliver, Judge. Action, for damages consequent on alleged negligence causing the death of Wm. O. Richardson resulted in a verdict and judgment for plaintiff. The defendant appeals.

— Hon. D. M. Anderson, Judge. Jack White was indicted for maintaining a liquor nuisance in a certain building in the city of Ottumwa and pleaded guilty. Thereupon, a fine of $300 was assessed against him, carrying costs, including attorney fees, and a writ of abatement issued, directing the sheriff, among other things, to effectually close the building one year. White appeals.

<p>Appeal from Dallas District Court. — Hon. J. H. Applegate, Judge.</p> <p>Action brought on behalf of Floyd Sweitzer, a minor, for a writ of mandamus to compel the defendants, as directors of the Independent School District of Van Meter in Dallas county, to issue and deliver to the plaintiff, Floyd Sweitzer, a diploma, of graduation certifyingfhis graduation from said high school. The answer was a general denial, with certain special admissions. There ivas a decree granting the order as prayed. The defendants appeal.</p>

— Hon. Francis M. Hunter, Judge. Action against the administrator of a deceased person to recover for services rendered. Judgment in the court below for the claimant. Administrator appeals.

<p>INTOXICATING LIQUOBS: Nuisance — Delivery of Liquors — Injunc1 tion — Scope of Statute. A violation of the law governing the traffic in intoxicating liquors does not necessarily render the violator subject to an injunction. Such remedy is only authorized (Sees. 2384, 2405, Code, 1897) when the prohibited acts (a) consist of the unlawful manufacturing or selling or Keeping for sale óf intoxicating liquors and (b) are done in connection with the use of some building or place. Therefore, an expressman who, on his own account, receives liquors from the seller and delivers the same to the purchaser may not be enjoined, such liquors being for the personal use and consumption of the purchaser only.</p> <p>INTOXICATING LIQUOBS: Violations — Nuisance — Injunctions 2 Only When Authorized by Statute. Violations of the law governing the traffic in intoxicating liquors do not put in motion the •injunetional powers of a court of equity unless expressly so provided by statute. Therefore, if it be conceded that an expressman delivered liquors in violation of Sec. 2419, Code, 1897, no injunction may issue because no statute so provides.</p> <p>IhfTOXICATING LIQUOBS: “Bootlegger” — Expressman—Injunc3 tion. An expressman receiving, on his own account, intoxicating liquors from the seller and delivering the same to the purchaser, with no interest or purpose in the transaction other than his charges for hire, is not a “bootlegger-” within Section 2461-a, Sup. Code, 1913,' because having no ‘' intent to sell or dispose of the liquors by gift or otherwise” and therefore is not subject to injunetional restraint under Section 2461-b, Sup. Code, 1913.</p>

<p>INDICTMENT AND INFORMATION: Amendment — Form — Sub-1 stance — Ownership of Property — False Pretenses. An indictment may be amended, on motion of the county attorney, so as to supply an allegation of ownership of the property described in the indictment. So held under charge of obtaining property by false pretenses. (Par. 7, See. 5289, Sup. Code, 1913.)</p> <p>CRIMINAL LAW: Trial-Notice of Additional Witnesses — Upon 2 Whom and Where Served. Notice that the state will call witnesses other than those whose names are on the indictment may be served on the defendant outside of the county where the indictment is pending. (See. 5373, Sup. Code, 1913.)</p> <p>FALSE PRETENSES: Allegation and Proof — Misdescription of Prop-3 erty — Variance. Charging that the accused obtained by false pretenses a note given by ' ‘ D. B. Stoner ’ ’, followed by proof that the note obtained was given by “D. B. Stoner and Stella Stoner”, presents a fatal variance.</p> <p>FALSE PRETENSES: Essential Principles — Obtaining Mere 4 “Credit”. To sustain an indictment for “false pretenses”, it is all-essential that it be shown that title to property, or the possession of property, was obtained by the false pretenses. The crime is not committed if the sole fruit of the rascality is to obtain that intangible thing known in bookkeeping as a “credit”.</p> <p>PRINCIPLE APPLIED: One Kiefer, a banker, was accused of obtaining a $700 note and $700 in money by false pretenses. One Stoner had executed to Kiefer two $700 notes. Kiefer had negotiated both of the notes. When maturity day arrived, Stoner had on deposit with Kiefer, and had had for some time, more than enough to pay one of the notes; and, supposing that Kiefer still held the notes, Stoner went to the bank, and it was arranged with defendant that he (Stoner) would pay one note out of his deposit account and would give .a new note in renewal of the other note. Stoner gave Kiefer no chock. Kiefer simply entered on the bank books a credit of $700. In other words, he charged Stoner’s deposit account with $700. Kiefer never took the money from the bank. Held, the act of the defendant in obtaining this “credit” entry did not constitute the obtaining of property by false pretenses, even if he did represent that he still held the notes. (Mark that the obtaining of the note failed to sustain a conviction because of a fatal variance and the obtaining of the “credit-” entry failed because such entry was not “property”.)</p>

<p>Appeal from. Keokuk District Court. — K. E. Willcqckson, Judge.</p> <p>Action for damages resulted in a directed verdict and judgment thereon. The plaintiff appeals.</p>

— Hon. George Jepson, Judge. Action to recover damages to the estate of Dorothy B. Lawrence, consequent upon her death, from alleged negligence, resulted in a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. N. J. Lee, Judge. Action for separate maintenance. The ground is cruel and inhuman treatment. There was a decree dismissing the petition and the plaintiff appeals.

— IIon. R. M. Wright, Judge. This is a prosecution by indictment for violation of the Medical Practice Act (Code Secs. 2579, 2580). The defendants were indicted jointly. There was a demurrer to the indictment on such ground. The demurrer was overruled, and judgment of conviction entered. The defendants have appealed.

<p>Appeal from Woodbury District Court. — Hon. George Jepson, Judge.</p> <p>Action for damages cousequeut upon injury suffered in one of defendant’s streets resulted in a judgment against defendant, from which it appeals.</p>

— Hon. W. H. Fahey, Judge. An action in equity, brought by fifty-one resident taxpayers of the Independent School District of Knoxville City against the board of school directors, to enjoin the issuance, negotiation or sale of school bonds apparently authorized by a vote of the electors of the district, for the erection and equipment of a new high school building at an expenditure of $75,000. The trial court denied the prayer of the petition and plaintiffs appeal.

— Hon. W. H. Fahey, Judge. Action to recover compensation for drilling a well. There was a verdict and judgment for plaintiff and defendant appeals.

<p>Appeal from Jasper District Court. — Hon. John F. Talbot, Judge.</p> <p>Suit in equity to enjoin the defendant city from openirig the alleys in a certain block in said city. Plaintiff alleged) that she was the owner of said purported alleys and prayed that the title thereto be quieted in her. There was a decree for the plaintiff as prayed. The defendant appeals.</p>

— Hon W. H. McHenry, Judge. Action of mandamus to compel the defendant board of directors to call an election for the organization of a new district. Petition was dismissed and plaintiffs appeal.

— Hon. A. N. Hobson, Judge. Action by the state treasurer against the administrator of .the estate of Hanora Daly to recover a collateral inheritanee tax in excess of 5% upon the shares of certain alien beneficiaries. It is averred that such alien beneficiaries consist of a brother of the deceased and certain nephews and nieces. Plaintiff obtained a judgment as prayed in the district court. The defendant has appealed.

— Hon. R. M. Wright and Hon. C. E. Albrook, Judges. Suit to enjoin a surviving widow from disposing of certain property alleged to liave been jointly devised by her and her husband during his lifetime. Decree was entered as prayed, and she and the son, whom, she would benefit, appeal.

— Hon. W. H. Fahey, Judge. Suit in equity to quiet title to certain depot grounds, which are alleged to be partly occupied by defendant’s elevator building.

— Hon. Lorin N. Hays, Judge. Action for actual and exemplary damages for malicious injury. There was a verdict and judgment for the plaintiff for actual damages only. The defendant appeals.

'Appeal from O’Brien District Court. — Hon. W. D. Boise, Judge. In the district court, this was an appeal from a pavement assessment made against the property of plaintiff by the city council of the city of Sheldon. Several parcels of property were involved. The' assessment was reduced in the district court as to one parcel of property and the form of the assessment was modified as to others. Both parties have appealed.

— Hon. Lorin N. Hays, Judge. Action at law to recover an agent’s commission for the sale of real estate. There was a trial to a jury and a ver dipt for the defendants. The plaintiff appeals.

<p>Appeal from Keokuk District Court. — IIon. John F. Talbott, Judge.</p> <p>From an order overruling his general demurrer to plaintiff’s petition in equity, the defendant appeals.</p>

Certiorari' to Scott District Court. — Hon. M. F. Donega'n, Judge. This is an original certiorari proceeding brought in this court to test the validity of a certain order of the district court of Scott County.

— Hon. William Theophilus, Judge. Action at law for the appointment of a guardian of the property of the defendant upon the ground that he (defendant) is a person of unsound mind. A temporary guardian of his person and property was appointed and thereafter, upon trial to the court without a jury, this guardianship' was made permanent, and the defendant appeals.

— 'ITon. George Jepson, Judge. A demurrer to plaintiff’s petition was sustained, and, plaintiff having elected to stand on the ruling, the petition was dismissed. Plaintiff appeals.

— Hon. W. D. Boies, Judge. This is an action for damages for personal injuries sustained by plaintiff, a telephone lineman in defendant’s employ. It is charged that the snap on plaintiff’s safety belt became unfastened from its ring and permitted him to fall about twenty feet from a telephone pole. There was a jury trial and a verdict for defendant. Plaintiff appeals.

<p>Appeal from Appanoose District Court. — Hon. D. M. Anderson, Judge.</p> <p>The opinion states the ease. —</p>

District Court. — Hon. L. J. Horan, Judge. This action was brought by citizens and taxpayers of Muscatine county, Iowa, to enjoin the payment out of the county treasury ■ of the deputy sheriffs appointed by the sheriff, for their services as such deputy sheriffs during the strike of the Button Workers’ Union in the city of Muscatine. Prior to the time these deputy sheriffs were appointed, they were nonresidents of Iowa.

— Hon. W. I). Boies, Judge. The defendant was charged with the crime of assault with intent to commit great bodily injury upon one Grace Johns. The' ease was tried to a jury which returned a verdict o£ guilty of assault and battery. Sentence was pronounced that defendant be confined in jail for thirty days and pay the costs of prosecution, amounting to about $70.' The defendant appeals.

— Hon. W. S. Ayres, Judge. Dependant was indicted for the crime of breaking and entering a dwelling house, while armed with a deadly weapon, with intent to commit larceny. On trial, he was convicted of the offense charged and he appealed to this court.

<p>CRIMINAL LAW: Trial — Instructions—Objections—Necessity for. 1 Failure to save exception to instructions precludes consideration of errors assigned on appeal. (See. 3705-a, Sup. Code, 1913.)</p> <p>BURGLARY: Evidence — Recent Possession of Stolen Property. It 2 is impossible to say just how recent the possession of stolen property must be, in order to justify a conviction of burglary. The nature of the property, the exclusiveness of the possession, and all the concomitant circumstances must be considered.</p> <p>PRINCIPLE APPLIED: Several pieces of cloth and several pairs of trousers were stolen near March 1st by means of a burglary. Three months later, defendant took some of the cloth to a tailor to be made into garments. A month following, he took another portion of the cloth to another tailor for a like purpose. Over four months after the burglary, his premises were searched and part of the property discovered. There was evidence tending to show guilty concealment of the property in a trunk. His defense, which was corroborated, was that he had purchased part of the property in April of an unknown peddler and that other portions had been left on his premises by- a former employee. Held, the possession and attendant circumstances justified conviction.</p>

— Hon. W. S. AyRes, Judge. Action on a surety bond resulted in a directed verdict against the principal, W. A. Shepard, and in favor of the surety, Chas. Bond, and judgment was entered accordingly. The plaintiff appeals.

<p>HOMICIDE: Manslaughter — Provocation—Adultery of Spouse. The 1 law denies recognition to adultery as affording provocation sufficient to reduce a homicide to manslaughter, unless the act of adultery was committed in the presence and sight (or the equivalent thereof) of the spouse committing the homicide; and, if in the presence and sight of such spouse, if sufficient cooling time has intervened, a subsequent killing because of sufch adultery will be murder. Deliberate homicide upon a principle of revenge is always murder.</p> <p>PRINCIPLE APPLIED: A husband and wife separated, she going to the house where deceased lived*. Two acts of adultery occurred between the wife and deceased, one a- month, and the last one a week, prior to the killing of deceased. The wife was also guilty of other adulterous acts with other men, at which acts the deceased connived. The last of these acts - was .two weeks prior to the killing. The accused was informed of the acts and conduct of the wife and deceased. A week after the said last act with deceased, the accused went, to the house where deceased lived, to get his wife and children. He was resisted, and killed deceased. Held, for both reasons given in the syllabus, that he could not claim justification on account of the adultery.</p> <p>HOMICIDE: Evidence — Weight and Sufficiency — Self-Defense. Evi2 dence reviewed, and held to present a question for the jury on the question of self-defense.</p> <p>HOMICIDE: Self-Defense — Instructions—Sufficiency. The rights of 3 the accused were fully protected by instructions, in substance, (a) that one in defense of his person may use such means as he deems reasonably necessary in view of all the conditions that confront him; (b) that it is not necessary that the danger to himself be either actual or imminent, if it appears to him acting as a reasonably courageous man, actual and imminent; (e) that if he acts in good faith, upon the appearance, and does no more in defending his person than a reasonably courageous man would do under like conditions, the law will excuse his acts; (d) that in exercising self-defense under such circumstances, he is not required to make nice calculations as to how much force he may use; (e) that the burden of proof was on the state to negative beyond a reasonable doubt' that the killing was done in self-defense.</p> <p>CRIMINAL LAW: Evidence — Insanity—Opinion—Nonexpert—De4 tail of Facts. A nonexpert is wholly incompetent to express an opinion that a person is insane until he has first detailed what he has observed about the person that suggested insanity or was inconsistent with sanity.</p> <p>PRINCIPLE APPLIED: The nearest approach to a detail, by any witness, of abnormal conditions was this: “When he and his wife separated and she was living with the Ashleys, have you noted any difference in the change of his mind? A. Well, I would talk to him and he would just go away. He would turn around, and he just looked odd. He would say something to me and his stepfather, say something to him or any of us, and he would just look at us so foolish, and then would turn right around and would sit down and would cry. We would ask him the time, or anything, and he would just cry. Cried all the time. Just acted queer. He would go to bed, fix his bed. He would lay on the floor, fix jt just like a dog’s nest, and cry all the time. Jqst worry and cry and act so funny.” Held, wholly insufficient to raise an issue of insanity.</p>

— Hon. C. A. Dudéey, Judge. Action at law to recover damages of the city of Des Moines for changing the grade of a street in front of plaintiff’s property. Verdict and judgment for the plaintiff, and defendant city appeals.

— Hon. Milo P. Smith, 'Judge. Action to recover on a certificate of insurance, based on the presumption that the assured was dead, arising from his absence from his home and friends for seven years. Judgment for the plaintiff in the court below. Defendant appeals.

— I-Ion. C. A. Dudley, Judge. Action at layr to recover compensation for services rendered by plaintiff for defendant as a traveling salesman. The case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.

— Hon. Charles A. Dudley, Judge. Action at law to recover damages to an automobile truck owned by plaintiff, due to a collision with one of defendant’s street ears. The defendant denied all negligence and pleaded contributory negligence on the part of the driver of the automobile. The case was tried to a jury, resulting in a verdict for the plaintiff in the-sum of $211, upon which judgment was rendered, and defendánt appeals.

<p>Appeal from Polk District Court — Hon. W. S. Ayres, Judge.</p> <p>Appeal by defendants from an order overruling a motion for new trial.</p>

<p>Appeal from Polk District Court. — Hon. W. H. McHenry, Judge.</p> <p>Ti-ie facts appear in .the opinion. The C. L. Percival Company appeals.</p>

-'-HÓN. Oscar Hale, Judge. .Suit in partition was consolidated with an action by the administrator to sell, and resulted in a decree as prayed. Lewis A. Billick, who claimed to own an undivided one half of the land, appeals.

— Hon. C. G. Lee, Judge. Action in equity to set aside a certain transaction had between the parties, whereby the plaintiff endorsed and surrendered to the defendants a certain certificate of deposit for $1,855. Plaintiff alleged that he surrendered such certificate to the defendants in reliance upon certain false representations then made to him.

— Hon. W. II. Fahey, , Judge. Action at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals.

— Hon. Hugh Brennan, * Judge. Appeal by the state from certain orders entered in the above entitled probate case, relating to the collateral inheritance tax. The orders appealed from will be indicated in the opinion.

— H.on. W. H. McHenry, Judge. Suit in partition resulted in a decree awarding Hannah Hanley 17/72 of the estate of the intestates. She appealed, as did the heirs.

— Hon. Hugh Brennan, Judge. Suit in equity to enjoin tbe maintenance of a nuisance. The defense was a general denial. There was a decree for the plaintiffs. The defendant appeals.

<p>DAMAGES: Speculative Damages — Element of Certainty — Proximate Cause — Negligence—Telegraphs and Telephones. Damages must be reasonably certain (a) in amount and (b) in respect to the cause from which they proceed, in order to be recoverable. Applied in case of delay by a telephone company in reporting an alarm of fire.</p> <p>PRINCIPLE APPLIED: Action to recover part of the damages to an automobile from lire, because of the negligent delay of defendant telephone company in reporting an alarm of fire to the fire department. In filling the tank, the rear one, holding 25 gallons of gasoline, was overflowed and as much, possibly, as a gallon of gasoline was spilled on the floor, and took fire. The front tank, holding 10 gallons, was also open and a partially filled open can of gasoline sat on the floor. The alarm was ’phoned to defendant at 11:05 P. M., at which time the fire was burning under the rear of the car, but the car w.as not yet afire, though admittedly damaged to some extent. Later, the alarm was again ’phoned to defendant, at which time there was some wood smoke. “It was difficult to tell just when the wood smoke appeared. ’ ’ The garage was 5 feet longer than the car and hardly twice as wide, and was part of an Old dry pine barn. Soft wood furniture crates filled with excelsior were piled along and close to the car. This caught fire after the second call was sent in. The defendant notified the fire department at 11:30 P. M.; the department w'as at the fire by 11:35 P. M. afid extinguished the fire within 5 minutes. The department was ready at all times for service, with equipment in good order, including telephone connections. Plaintiff claimed that the damage up to the point of time when the fire would have been put out, had defendant promptly reported the alarm, was $231, and that the defendant’s negligence was the proximate cause of all subsequent damages. Held, (a) the fire was the proximate cause of the damage, and (b) the computation of plaintiff’s damages was pure speculation.</p>

<p>Appeal from Appanoose District Court. — Hon. Francis M. Hunter, Judge.</p> <p>Dependant was convicted of rape, and appeals.</p>

— Hon. C. H. Kelley, Judge. This is a controversy between the widow and heirs at law and the administrator of the estate of C. C. Feil, deceased, and August Tetzloff and August Havener, attaching creditors of the real estate of the deceased, over the surplus funds arising upon -an execution sale under a foreclosure of a mortgage upon the attached real estate of the deceased after the payment of the mortgage indebtedness.

<p>Appeal from Black Hawk District Court. — Hon. Charles W. Mullan, Judge.</p> <p>Action to recover damages for personal injuries received by plaintiff upon a turntable belonging to the defendant company. Plaintiff alleged that he was injured while engaged in interstate commerce, the turntable being used therein, and that the injury was due to thé fault of a fellow servant in prematurely starting the turntable. The answer was practically a general denial. The case was tried to a jury, resulting in a verdict for plaintiff in the sum of $3,000, which the' trial court reduced to the sum of $1,750/and for the latter amount rendered judgment. Defendant appeals.</p>

— Hon. J. L. Kamrar, Judge. Action in equity to enjoin the defendant from charging and receiving rentals from its patrons in excess of rates specified in its original charter, as granted by the plaintiff. A temporary injunction was issued ex parte, conditioned upon the filing of a bond for $2,000. The bond being filed, the writ issued. Thereafter, the defendant answered and filed a motion to dissolve, the temporary writ.

— Hon. W. H. Fahey, Judge. Action in equity upon certain paving contracts entered into between the plaintiff and the defendant city. There was decree in favor of plaintiff for $3,600, and defendant appeals. The material facts are stated in the opinion.

— Hon. K. E. Willcockson, Judge. Action at law to recover damages. Verdict for plaintiff, and defendant appeals. The material facts are stated in the opinion.

— Hon. Franklin C. Platt, Judge. Action to recover possession of real estate. The defendants set up an answer and cross-petition in equity, averring that they were the owners of the property in controversy and praying a decree quieting their title. The plaintiff answered the affirmative defense and cross-petition by setting up her alleged ownership of the property under a deed from the common grantor of the parties and praying decree that her title be quieted.

F. C. Platt, Judge. This is a proceeding for condemnation of plaintiff’s land for railway right of way purposes. The proceeding was instituted on behalf of the defendant railway company, before a sheriff’s jury. From the award of the sheriff’s jury, the land owner, plaintiff herein, appealed to the district court. Upon trial in the district court, she obtained an increased verdict. The amount thereof, however, is still deemed inadequate, and she has appealed.

— Hon. A. J. House, Judge. The plaintiff brought this action to recover the purchase price of, certain carloads of vinegar, -sold to the defendant. There was a verdict and judgment for plaintiff, and defendant appeals.

— Hon. C. G. Lee, Judge. Action at law for damages for the conversion of property on which the plaintiff held a chattel mortgage. The case was tried to the court without, a jury. There was a verdict for the plaintiff, and the defendants have appealed.

<p>Appeal from Dallas District Court. — Hon. W. H. Fahey, Judge.</p> <p>The opinion sufficiently states the case.</p>

— Hon. .Henry Silwold, Judge. John S. Beaty died testate, leaving surviving him his widow, Sarah A. Beaty, and several direct heirs. Sarah A. Beaty, the widow, did not marry again, and died intestate, on December 21,1910. Rebecca Sanford was the duly appointed administratrix of both estates. On November 29, 1913, the administratrix filed a single final report as applicable to both estates and asked for its approval and for her discharge from her trust in both cases.

■Appeal from Black Hawk District Court. — Hon. Charles W. Mullan, Judge. This is a will contest. Exceptions were duly filed and trial to a jury had. The ground of contest .was mental incapacity of dhe testator. There was a verdict sustaining the will, and judgment was duly entered thereon. The contestants appeal.

— Hon. Lorin N. Hays, Judge. Action at law to recover damages for a personal injury. Verdict and judgment for plaintiff, and defendant appeals.

— Hon. P. G. Norris, Judge. This is an equitable proceeding in aid of an execution and. to set aside an alleged fraudulent conveyance of real estate and to establish the plaintiff’s judgment as a lien superior to the conveyance. There was a decree below, dismissing the petition. The plaintiff has appealed.

— Hon. W. H. McHenry, Judge. Action for lumber furnished by plaintiff, and to establish a mechanics’ lien against Lot 35 in Block 35 of Stewart’s Addition tó Des Moines, resulted in judgment, as prayed, against the defendants, L. O. Cornell and R. W. Griffin, and .the denial of relief against Addie Belle Cornell and the premises. Plaintiff appeals.

— Hon. William. Hutchinson, Judge. Action at law to recover damages for personal injury. There was a verdict and judgment for plaintiff, and defendant appeals.

— Hon. Charles E. Albrook, Judge. Action to recover damages for breach of contract to sell land. There was a verdict for the plaintiff for a part of his claim. The defendant has appealed.

— Hon. Henry Silwold, Judge. Suit in equity to establish plaintiff’s right to certain alleys abutting upon her property and to quiet her title thereto. The defendant denied the right of the plaintiff to said alleys and averred his own right thereto and, by way of a cross bill, prayed that his title thereto be quieted. There was a decree for the plaintiff, establishing and quieting her title to said alleys. The defendant has appealed.