Volume 175 — Iowa Reports

<p>1 EVIDENCE: Memoranda — Conditions of Admissibility. Memoranda made by a disinterested witness in the performance of his duty and known by him to have been correct when made, and containing statements of fact material to the issue on trial, are substantive evidence on said issue, along with the witness’s oral testimony in relation thereto. So held in a personal injury action, wherein memoranda made by a medical examiner on plaintiff’s-application for insurance were received as bearing on plaintiff’s state of health prior to the accident in question.</p> <p>2 EVIDENCE: Best and Secondary Evidence — Signed and Unsigned Memoranda. The rule that only the best evidence of which a cause is susceptible is admissible is not violated by the reception in evidence of an unsigned memorandum, made by a disinterested witness in performance of Ms duty, and containing statements material to an issue on trial, even though it appears that there exists, or at one time did exist, in another state, a duplicate of said memorandum, signed by the party against whom the unsigned memorandum is offered.</p> <p>3 EVIDENCE: Best and Secondary Evidence — Evidence Beyond Jurisdiction of Court. Secondary evidence is admissible of the contents of a writing when the original (assuming, arguendo, it to be such) is beyond the jurisdiction of the party offering it and not within his control.</p> <p>4 EVIDENCE: Relevancy, Materiality and Competency — Logical Connection. Evidence, to be relevant, must have some logical connection with or relation to a fact in issue, so as to assist in getting at the truth of it.</p> <p>PRINCIPLE APPLIED: Plaintiff claimed that her injuries were due solely to a certain accident. Defendant countered with testimony that, prior to said accident, plaintiff, on an application for insurance, stated that she had had rheumatism, etc., and that the examiner had written such statement in the application which plaintiff signed, after which he sent the same to the company in a distant state, and also wrote said statement in a duplicate application which was unsigned. The signed statement was not produced; the unsigned one was presented and received in evidence. Plaintiff testified that she never made any such statement. Held, whether the unsigned statement was a correct copy of the signed statement was not relevant to the issue whether plaintiff had ever made such statement.</p> <p>5 TRIAL: Conduct of Court — Observation as to Witness’s Knowledge. The appellate court will not hypercritically analyze every remark of the trial court in passing on the admission or rejection of evidence, and assume that the jury must have understood that the court was reflecting on the witness’s former testimony on the point in question. So held where the court, in rejecting offered testimony, expressed his inability to understand how the witness could have knowledge on a certain point.</p> <p>6 APPEAL AND ERROR: Harmless Error — Properly Excluding Evidence on Poor Objection. If excluded evidence is subject' to a good objection, it is immaterial that the court excluded it on a poor objection.</p> <p>7 EVIDENCE: Relevancy, Materiality and Competency — Personal Injury — Expert Testimony. Testimony as to the ailment from which a plaintiff was suffering at a time prior to the accident for which recovery is sought may be competently given by a physician who examined her at such prior time, and such testimony may be relevant and material on the issue whether her present condition is due solely to the accident in question.</p> <p>8 EVIDENCE: Relevancy, Competency and Materiality — Attendant Incidents. When a fact is relevant, competent and material, then the further incidents which lead up to, explain and' are a part of such fact are admissible.</p> <p>PRINCIPLE APPLIED: Plaintiff claimed that her physical condition was due solely to a certain accident. Defendant countered with a showing that plaintiff was sick long prior to the said accident, in that plaintiff (a) consulted an agent of a lodge of which she was a member as to the lodge’s paying sick benefits, and (b) later sent word to the lodge that she was unable to pay the lodge dues owing to sickness; and that the lodge paid the said dues. Held, proper.</p> <p>9 APPEAL AND ERROR: Review — Estoppel. One may not predicate error on the reception of evidence offered by himself.</p> <p>WITNESSES: Impeachment — Contradiction—Competency of EviA contract between plaintiff and an attorney, wherein the attorney agreed to prosecute an action for damages for a certain injury, is competent to impeach the testimony of plaintiff "that she had never made any claim for damages for said injury.”</p> <p>ll EVIDENCE: Relevancy, Competency and Materiality — Personal lujury — Dormer Sickness and Injury. Under the claim that a present physical condition is due solely to a certain accident, any evidence which challenges such claim‘is relevant, competent and material — for instance, evidence of former sickness or injury or attempts to recover therefor.</p> <p>12 APPEAL AND ERROR: Assignment of Error — Omnibus Assignments. Whether the court erred in limiting the reception of certain evidence to a certain purpose is not raised by an assignment ‘ ‘ that the court erred in its rulings excluding plaintiff’s evidence upon defendant’s objections.”</p> <p>13 DAMAGES: Personal Injuries — Expenditures. There can be no recovery in an action for personal injuries, for expense incurred for physicians, nurse or other expenditures, in the absence of Evidence showing the reasonable necessity therefor and the reasonable value thereof.</p> <p>14 APPEAL AND ERROR: Reversal — Trifling Deficiency in Verdict. Causes will not be reversed for a trifling deficiency in the amount which might have been allowed — $5 in present ease.</p> <p>15 HUSBAND AND WIFE: Wife’s Separate Business — Loss of Time, Etc. — Definiteness Required. A married woman seeking to recover for loss of time, services, or inability to perform labor or earn money, on the claim that she is engaged in a business of her own, must segregate and make reasonably certain the items of loss for which she may recover from the items for which she may not recover.</p> <p>16 DAMAGES: Profits — Recovery—Keeping Boarding House. In an action for personal injuries resulting in an alleged loss of time,, services, and inability to perform labor or earn money, the possible profits of keeping a boarding house are not an element of recovery.</p> <p>17 PLEADING: Prayer — Designatio Unius Exclusio Alterius. A prayer for relief, resting on distinctly enumerated elements of loss, excludes all other elements of loss. Therefore, where plaintiff pleaded that she sustained injuries (a) to certain muscles, (b) to her spinal column, all resulting in great physical and mental pain, and prayed for a recovery of $12,000, held, said pleading covered no claim for "loss of time or services or inability to perform labor or earn money," or expenditures of any kind.</p> <p>18 CARRIERS: Carriage of Passengers — Negligence—Instructions. An instruction that the law imposes upon a carrier of passengers an obligation to exercise the highest degree of care to avoid injuries to passengers that is reasonably practicable under the circumstances existing at the time and consistent with the proper and practical management of its affairs, but that the carrier is not an insurer of absolute safety, is not subject to the vice of making the mere eonvemenee of the carrier a vital consideration.</p> <p>19 CARRIERS: Carriage of Passengers — Negligence—Stopping and Starting of Cars — Instructions. The claim of negligence in starting a ear cannot be sustained, if the evidence shows that it was started in a prudent and careful manner, and after the passenger had had reasonable time to enter the car while it stood still.</p> <p>20 NEGLIGENCE: Instructions — Erroneous Instructions — Harmless Error. A misdirection as to what will constitute negligence on the part of defendant is entirely harmless when the jury returns a verdict for plaintiff, and thereby necessarily finds that defendant was negligent.</p> <p>21 TRIAL: Instructions — Erroneous But Harmless Instruction — Psychological Effect on Verdict. Where the jury returned a verdict for plaintiff, in spite of the fact that, by an erroneous instruction, the court gave defendant an unjustifiable chance to escape, error may not be predicated, on appeal, because of the inadequacy of the verdict, on the subtle argument that such erroneous instruction had a bad psychological effect on the amount of the verdict.</p> <p>22 DAMAGES: Pain and Suffering — Future Pain — Permanency of Injuries — Instructions. An instruction allowing a recovery for future pain only in case the injuries from which the pain comes are permanent, is erroneous.</p> <p>23 APPEAL AND ERROR: Parties Entitled to Allege Error — Error on Non-Issue. A plaintiff may not complain of an instruction which erroneously limits his right to recover on an issue not made by the pleading and not mutually tried out by the parties. So held where the court erroneously instructed as to the recovery for future pain, no such issue appearing in the record.</p> <p>24 PLEADING: Issue, Proof and Variance — Issue Without Written Plea — Waiver. One nfay not be said to have mutually agreed with his adversary to try out an issue not .raised in the written pleadings, by failing to object to evidence which, though bearing on and tending to prove such non-paper issue, was also admissible on other issues which the written pleadings did raise.</p> <p>PRINCIPLE APPLIED: Plaintiff, in an action for personal injury, did not, in the written pleadings, raise any issue as to pain and suffering in the future; i. e., later than the time of trial. She did plead that she was permanently injured; that she was injured in certain muscles, in her spinal column, and “has suffered almost constant physical pain and severe mental anguish since she was injured.” Evidence was received, uñthout objection by defendant, tending to show what injuries she had sustained and what her suffering had been up to the time of trial. This necessarily bore also on her non-paper claim that she would suffer subsequently to trial. But held that, inasmuch as such evidence was clearly admissible on the written issues, failure to object could not work a waiver of the right to demand written ■ plea of “future pain.”</p> <p>25 PLEADING: Issue, Proof and Variance — Personal Injury — Future Pain — Sufficiency of Pleading. Pain and suffering subsequent to time of trial must be specifically pleaded, if such pain and suffering do not naturally follow proof of that which is pleaded; and the lapse of a long time between the filing of petition and date of trial may have material bearing on the question. Pleadings reviewed, and held not to count on such pain and suffering later than the time of trial.</p> <p>PRINCIPLE APPLIED: Petition was filed April 25, 1912, in which plaintiff pleaded that she was painfully and permanently injured on December 7, 1911; that she was injured in the muscles and ligaments of her leg; that her spinal column was injured, with results, at times, resembling paralysis; and that "she has suffered almost constant physical pain and severe mental anguish since she was injured.” The trial was had on March 1, 1913. The issue of permanent injury and pain and suffering down to time of trial was submitted. The verdict was for $200, from which plaintiff appealed because inadequate. Held, the claim that suffering would continue for more than practically a year could not be naturally deduced from what was pleaded, and therefore the pleading raised no issue as to suffering subsequent to trial. (The court says: "The point is close; but affirmance, rather than reversal, has the benefit of reasonable doubt.”)</p> <p>,26 PLEADING: Construction — Puture Pain — Conditions Surrounding Trial and Verdict. On the question whether a pleading counts on future pain and suffering, i. e., later than time of trial, the appellate court will give material consideration to the conditions surrounding the trial, including the time elapsing from the date of injury to date of trial, and the smallness of the verdict which the lower court held to be justified by the evidence.</p>

— R. M. Wright, Judge. In the district court, this was an appeal by the plaintiff from certain special assessments made against his property by the city council of Iowa Falls. The issué was made in the form of objections by plaintiff, filed with the city council, as provided by statute. These objections were overruled by the city council, and the proposed assessments were levied.

— D. F. Coyle, Judge. Action for specific performance of an alleged contract for the sale of land resulted in decree as prayed. The defendant appeals. — Reversed.

<p>1 LIBEL AND SLANDEB: Libel Per Se — Bidicule. It is not libelous per se to publish, of one and his wife that they are living on cherries but otherwise starving because of having failed in the chicken business; that he had just mortgaged his chicken farm; that he had not said why he didn’t eat chicken; that the wife said she wanted to forget chickens, etc.</p> <p>2 LIBEL AND SLANDEB: Libels Per Se — Presumptions—Falsity— Malice — Damages. Libels per se — those prohibited by statute — ■ carry, in addition to a presumption of falsity and malice, a presumption of damages; therefore, damages in such a case need not be proved; otherwise, if the libel is not such per se.</p> <p>3 LIBEL AND SLANDEB: Actions — Personal Defamation — Libels of Property or Business — Pleading. An action for personal defamation by reason of an alleged libel does not charge any defamation, slander or libel of plaintiff’s business by an allegation that plaintiff was engaged in the restaurant business and that the defamation of his person tended to injure him in his business.</p> <p>4 DAMAGES: Speculative Damages — Proximate Cause — Libel and Slander. Evidence as to certain boarders’ having left plaintiff’s restaurant by reason of tbe alleged libel in question held purely speculative.</p>

<p>APPEAL AND EEEOE: Eight of Eeview — Involuntary Performance of Judgment — Effect—Forcible Entry and Detention. An involuntary performance of a judgment does not waive the right to review on appeal. So held where defendant in forcible entry and detention involuntarily vacated the premises in order to avoid a forcible removal by the constable who was present with an order of removal. (See Sec. 4220, Code, 1897.)</p>

— William Theophilus, Judge. Action for damages resulted in a directed verdict for defendant. From judgment thereon, the plaintiff appeals.—

— W. H. McHenry, Judge. Alex Jenkins acquired Lot 14 in Block 3 in Bollinson’s Garden Addition to Ft. Des Moines, — since taken into the city of Des Moines, May 12, 1909, — subject to a mortgage of $400. On August 7, 1909, Jenkins, his wife joining, executed a mortgage to the Iowa State Bank, as collateral security for the payment of the purchase price of lots bought on contract. This mortgage was first filed for record August 25, 1913.

— O. D. Wheeler, Judge. Action to recover for personal injury. Directed verdict for the defendant in the court below. Plaintiff appeals.—

— M. E. Hutchison, Judge. Action for damages for breach of promise of marriage, and for services rendered decedent during his lifetime. Both parties appeal.

— M. E. Hutchison, Judge. Action against defendant for the contract price or reasonable value of sinking a well for the defendant town. The defense was that the well was constructed under a written contract; that plaintiff did not comply with the terms of this contract or complete a well in substantial compliance with his agreement.

— W. S. Ayres, Judge. Action at law upon contracts of reinsurance made by defendant company with the United States Life Endowment Company and the Life Insurance Company of Pennsylvania, whereby it is claimed defendant company reinsured one William C. Garretson on two original policies in the sum of $4,000 each, issued by the Old Wayne Mutual Life Association, of Indiana, to the said Garretson, in which plaintiff herein was made the beneficiary.

— F. M. Powers, Judge. Suit in equity to enforce specific performance of a contract for the sale of real estate, the plaintiff being the vendor. The defendant answered with a general denial; averred that the contract was never delivered except conditionally; and averred that it was obtained by the plaintiff by false and fraudulent representations. There was a decree dismissing the petition, and the plaintiff has appealed.

— F. M. Powers, Judge. Action in equity to enjoin defendant from interfering with plaintiff in the enjoyment of an alleged easement for the maintenance of a ditch over and across a tract of land owned by the defendant. Upon trial to the court, plaintiff’s petition was dismissed, and defendant was granted affirmative relief by injunction restraining plaintiff from interfering with the natural flow of water. The plaintiff appeals.

— R. M. Wright, Judge. Defendants were, jointly indicted for the crime of keeping a liquor nuisance,/ Verdict of guilty, and from the judgment imposed, they appeal.

— M. E. Hutchison, Judge. Action at law to recover damages for breach of a contract to sell and convey certain lands. Defendant filed a general denial, and also pleaded a prior judgment as a bar to the proceeding. Plaintiff demurred to that part of the answer pleading the judgment and decree in defense to this action; but the demurrer was overruled, and plaintiff electing to stand thereon, judgment was entered dismissing his petition, and he appeals.

— B. F. Cummings, Judge. Action upon account for goods sold and delivered and for repairs to two certain automobiles. The defendant admitted during the trial all but five items of the account, and these he denied. Upon issues joined as to these items, the case was submitted to a jury, resulting in a verdict and judgment for plaintiff and defendant appeals.

, — C. W. Vermilion, Judge. Action at law to recover damages on account of tbe’death of plaintiff’s intestate, alleged to have been caused by the defendant’s negligence. Judgment for plaintiff and defendant appeals.

— D. M. Anderson, Judge. Action by the city of Ottumwa, on the guaranty bond of a contractor to repair defects in a pavement during seven years after being laid, resulted in a judgment as prayed. The defendant appeals.

- — John F. Talbott, Judge. Ti-ie defendant corporation, one that might be subject to the provisions of Chapter 147 of the Acts of the Thirty-fifth General Assembly, popularly known as the Workmen’s Compensation Act, has elected to reject the provisions of it. Plaintiff was in the employ of defendant as a miner, and injured by a fall of coal while in that employment.

<p>1 HUSBAND AND WIFE: Alienation of Affections — 'Verdict—Sufficiency of Evidence. Evidence reviewed, and held sufficient to support a verdict in some amount for the alienation of the affections of a husband for his wife.</p> <p>2 WITNESSES: Impeachment — Hostility. It is always relevant to in-</p> <p>quire of a witness whether he is not hostile to the party against whom he is testifying, and whether he had not made threats to testify against such party, and, with proper foundation therefor, the witness may be impeached.</p> <p>3 HUSBAND AND WIFE: Alienation of Affections of Husband — Excessive Verdict — $10,000. In computing the damages suffered by a wife because of the alienation of the affections of the husband for the wife, the all-important inquiry is: What has the wife lost in the way of affections? Were the relations between the wife and her husband, prior to the alienation by defendant, of the most amicable, harmonious and loving character, or had the wife, from other causes, already lost in large degree the affections of the husband? Tested by this rule, held, a verdict for $10,000 was, under the record, excessive.</p>

<p>Appeal from Buchanan, District Court. — H. B. Boies, Judge.</p> <p>The opinion sufficiently states the case.</p>

<p>1 CAEEIEES: Carriage of Passengers — “Passenger” Defined. Plaintiff, a railway mail clerk, in ease at bar, treated as a “passenger.”</p> <p>2 CAEEIEES: Carriage of Passengers — Negligence—Derailment—Ees Ipsa Loquitur — Presumption—Sufficiency of Explanation. Derailment of a train, in passenger cases, proclaims negligence, irrespective of other allegations of negligence in the petition. In effect, a derailment says to the carrier: “You have been negligent; explain! ’ ’ Whether the explanation is sufficient to quiet the accusing voice of the derailment by showing that the derailment was due to causes over which the carrier had no control and against which human foresight could not have guarded, is usually a jury question. To exculpate the carrier, the explanation of the derailment must go further than to show that the facts and circumstances thereof are as consistent with care as with negligence. The evidence of care must preponderate.</p> <p>3 EVIDENCE: Opinion Evidence — Opinions from Observation — Ordinary Witness — Law of Necessity — Marks of Crowbar. The opinion of an ordinary witness drawn from what he has observed is admissible when, from the nature of the subject under investigation, no better evidence can be obtained, or the facts cannot otherwise be fully presented to the jury.</p> <p>Deemer and Preston, JJ., dissent as to the application of the principle.</p> <p>PRINCIPLE APPLIED: Action for personal injury caused by ' the derailment of a train. The defendant carrier, claiming that the derailment was due to a cause over which it had no control and against which human foresight could not have guarded, sought to show that a certain named party, just before the arrival of the train, had pried the spikes from the ties with a crowbar and removed the rail. Witnesses were permitted to describe the ties and the marks and indentations thereon, but were not permitted to state to the jury “what caused the impressions upon the ties.” The court says: “They should have been permitted to say how the impressions, as they observed them, appeared to have been made there at that time.”</p> <p>4 TRIAL: Conduct of Counsel — Acting for Two Clients with Same Interests — Misconduct. An attorney is not guilty of conduct inconsistent with his duty by acting for one client in a criminal action and for another and different client in a civil action, both actions growing out of the same transaction, when the interests of the two clients are identical, even though the conduct and advice of the attorney results in depriving the defendant iff the civil action of the testimony of the defendant in the criminal action.</p> <p>PRINCIPLE APPLIED: A train was derailed, the engineer killed, and a passenger injured. One K was arrested, tried and convicted of having caused the death of the engineer by deliberately wrecking the train. One H was attorney for K in the criminal action. While this criminal action was still pending, the injured passenger brought action, with said H as his attorney, to recover for his injuries. It was to the interest of K to show that he was not guilty. It was to the interest of the passenger to show that the wreck was caused by some negligence of the carrier — in a word, his interest was the same as the interest of K. It was to the interest of the carrier to show that K was guilty, and thus show that the wreck was due to a cause against which human foresight could not reasonably have guarded. The carrier attempted to take the deposition of K and thereby show K’s guilt. K, on the advice or at the direction of H, refused to answer incriminating questions. Held, the attorney was not guilty of misconduct.</p> <p>5 EVIDENCE: Hearsay — Exception—Declaration Against Interest— Insanity of Declarant — Law of Necessity. Declarations of a person as to facts relevant to the matter under consideration are admissible in evidence, even between third persons, where it appears:</p> <p>1. That the declarant is dead or inscme.</p> <p>2. That the declaration was against his pecuniary or proprietary interests.</p> <p>3. That he had competent knowledge of the facts declared.</p> <p>4. That he had no probable motive to falsify the facts.</p> <p>Deemer and Preston, JJ., dissent as to the holding that a showing of insanity may be the equivalent of death.</p> <p>PRINCIPLE APPLIED: A train was wrecked; plaintiff was injured, and sought to recover damages. One K was arrested, and made oral and written statements, while sane, reciting how he had caused the wreck by removing a rail from the track just before the train arrived. Later, K was duly adjudged insane. After being confined for some time, the authorities released him, not as having recovered his sanity, but because safe to bo at largo. Still later, plaintiff’s action came on for trial, at which time K was either in Chicago or New Jersey. Defendant sought to show that K caused the wreck — an act against which human foresight could not have guarded. Held, the presumption must be indulged that IC was still insane, and the said oral and written statements were admissible.</p> <p>6 EVIDENCE; Presumptions — Continuance of Condition — Insanity. A condition once shown to exist is presumed to continue until the contrary is made to appear by him, who asserts such eontra/ry condition. So held in case of insanity.</p>

— C. E. Albrook, Judge. The plaintiff’s right of way having been assessed for its alleged proportion of the cost of ditches constructed in the drainage district named in the caption, it appealed therefrom to the district court where the assessment was confirmed, and plaintiff now prosecutes a further appeal to this court.

— E. G. Albert, Judge. Action upon an oral contract alleged to have been fully performed by the plaintiff, whereby the defendant agreed to pay the plaintiff ..sum of $4,348.23. The defense was a .general denial. There was a trial to a jury and a verdict for the plaintiff for the amount sued for, and a judgment entered thereon. The defendant has appealed.

<p>1 PLEADING-: Porm and Allegation — Allegation Governs Effect — Misnonier. A pleading will be given effect according to its allegations, not according to the particular name which the pleader sees fit to apply thereto. "Motion” for new trial properly treated as "petition” for new trial.</p> <p>2 NEW TRIAL: Proceeding to Procure — Petition After Reversal— Equity Cause. An appellee, who suffers a reversal in the Supreme Court in an equity case, may, upon entry of judgment against him in the lower court under procedendo, be granted a new trial under proper petition therefor. (See. 4092, Code, 1897.) A petition filed on the day when such latter judgment is entered is especially timely.</p> <p>3 NEW TRIAL: Discretion of Court — Action for Recovery of Real Property. The appellate court, always reluctant to set aside an order granting a new trial, is especially so when the action is for the recovery of real property. (Sec. 4205, Code, 1897.)</p>

— B. F. Cummings, Judge. Action to recover damages for injuries sustained by plaintiff on account of assault and battery alleged to have been committed by the defendant: Judgment for the plaintiff. Defendant appeals.

— O. D. Wheeler, Judge. This is an action at law brought by plaintiff against the defendant as sheriff of Pottawattamie County, Iowa, to replevin a certain carload of corn then in the custody of said sheriff under a writ of attachment issued by the district court of Pottawattamie County, Iowa, in a case then pending therein brought by the Cavers Elevator Company against one Ií. K. Cochran.

<p>Appeal from Marshall District Court. — B: F. Cummings, Judge.</p> <p>Action at law to recover damages from defendant railway company and C. A. Burtcbby, a brakeman, for an assault committed by said brakeman upon plaintiff while a passenger on one of the trains of the railway company. Many defenses were pleaded, which will be noticed in the body of the opinion. Upon trial to a jury, a verdict of $300 was returned for plaintiff, and defendants appeal.</p>

— D. M. Anderson, Judge. This is an action at law to recover the amount paid by plaintiff for two shares of the capital stock of a corporation, and a stockholder’s loss suffered by him, on account of the purchase’s being made for the defendant, at his instance and request, and upon his promise to pay the total cost to plaintiff with interest as plaintiff' alleges.

^-R. M. Wright, Judge. This is an appeal from the ruling of the trial court denying the motion to set aside a stipulation and judgment. The appeal is from such motion. Upon the hearing of the motion, it was overruled, and the defendants appeal.

— E. B. Woodruff, Judge. Action at law to recover damages on account of the death of Andrew P. Johnson. Verdict and judgment for plaintiff, and defendants appeal.

— P. 0. Ellison, Judge. The facts are fully stated in the opinion on the former appeal, reported in 166 Iowa 217. Upon remand, the promissory note and evidence tending to prove the genuineness of-the decedent’s signature were introduced; and thereupon, verdict, on motion of the administratrix, directed for defendant. From judgment entered thereon, claimant appeals.

— George H. Castle, Judge. Action at law to recover damages to plaintiff on account of the death of his minor son. There was a verdict and judgment for plaintiff, and defendants appeal.

Court. — Thomas Arthur, Judge. Action at law upon an accident insurance policy for $5,000 issued to William W. Keen, deceased, and payable to him or his wife, Libbie Keen, the plaintiff. There was a renewal of the policy, under the terms of which its value was to increase each year $250. At the time of the renewal, the indemnity for death was $6,750.

<p>1 NEGLIGENCE: Contributory Negligence — Automobile Accident— Evidence — Sufficiency. Evidence reviewed, in an action by plaintiff for personal injuries suffered in an automobile accident, and held to present such conflict as to preclude a directed verdict on the ground that plaintiff was guilty of contributory negligence.</p> <p>2 APPEAL AND ERROR: Harmless Error — Abstract Instructions. Giving an instruction, incorrect as an abstract proposition of law, but pertinent to the evidence in the case on trial, is not necessarily reversible error. So held in an automobile accident, where the court told the jury that it was the duty of the defendant to stop his car on signal to do so, without any qualifying statement as to the presence of danger.</p> <p>3 TRIAL: Reception of Evidence — Order of Proof — Discretion of Court. Testimony which is admissible, for any reason, on rebuttal is not rendered inadmissible because it might have been received on the main case.</p>

<p>1 APPEAL AND ERROR: Review — Equity Cause — Deference to Opinion of Trial Court. The rule that due deference is given to the opinion of the trial court applies to the trial of an equity cause heard de novo on appeal, especially when the trial court makes a personal examination of the matter in controversy.</p> <p>2 RAILROADS: Undercrossing — Reasonableness—Evidence. Grade crossings are the rule in this state. Evidence reviewed, and held to show that plaintiff’s demand for an undercrossing was unreasonable, and therefore should be denied.</p> <p>3 RAILROADS: Undercrossing — Excessive Cost — Materiality. A landowner is entitled to an “adequate” crossing, even though the cost be great, but the cost of an undercrossing is-a .circumstance proper to be taken into consideration with all the other circumstances of the case. So held where the cost of the undererossing approximately equaled the value of the farm.</p> <p>4 RAILROADS: Undercrossing — Pailure to Pumish — Damages, Record reviewed and held insufficient on which to base a claim for damages for alleged failure to furnish a crossing.</p> <p>5 COSTS: Apportionment — Mandamus. Record reviewed, in an action of mandamus to compel the construction of an underground crossing by a railway company, and held to be such that the cost should be apportioned. (See. 3854, Code, 1897.)</p>

<p>1 APPEAL AND ERROR.: Waiver of Error — Acquiescing in Decision— Demurring Over. Filing a demurrer, after the overruling of a motion to strike a substituted petition because a repetition of a former pleading already held bad on demurrer, works a waiver of any error in the ruling on the motion to strike, and presents a case where the substituted petition will be ruled on without reference to the original pleading.</p> <p>2 COURTS: Rules of Decision — Law of Case — Right of Court to Reverse its Ruling. So long as a cause is before the trial court and undisposed of, the court.may reverse its former ruling whenever convinced of its error. So held where the court first sustained a demurrer to the petition and later overruled a demurrer to a substituted petition, claimed to be a repetition of the first.</p> <p>3 QUIETING TITLE: Oral Agreement to Sell — Consideration Delivered. Title will be quieted against one who orally agrees to sell his interest in lands, followed by the delivery by the purchaser of the consideration, as per contract.</p> <p>4 EVIDENCE: “Parol Evidence’’ Rule — Non-Applicability to One Not Signing. The “parol evidence’’ rule is not applicable to one who does not sign the writing in question.</p>

— A. N. Hobson, Judge. Action in equity to set aside a sheriff’s sale of real estate and the sheriff’s deed executed pursuant thereto. There was a decree in the lower court for the plaintiff, and the defendant appeals.

— M. E. Hutchison, Judge. Action controverting the answers of a garnishee. Appeal from the action of the court in granting a new trial.

<p>1 MASTER AND SERVANT: Assumption of Risk — Dangerous Places —Knowledge of Servant — Dangerous Methods of Work. . (a) Deliberately choosing a dangerous rather than a safe method of performing work, with resulting injury to the servant, presents a case of both (1) assumption of risk and (2) contributory negligence. In such ease, the servant’s negligence becomes the proximate cause of the injury.</p> <p>(b) The servant assumes the risk of all dangers against which he may protect himself by the exercise of ordinary observation and care.</p> <p>(c) An employee assumes, as an incident of his service, any risk which arises from the permanent, visible and understood conditions of his master’s plant.</p> <p>(d) Recovery cannot be had when the servant voluntarily exposes himself to known and appreciated danger, or to a danger which he ought to know and appreciate by the exercise of ordinary care.</p> <p>(e) It is not negligence to expose a servant to any danger which is obvious to, and understood and appreciated by, the servant.</p> <p>PRINCIPLE APPLIED: A lumber shed, with driveway, had a south door 16 feet, and a north door 8% feet high. Plaintiff, a man of mature years, had worked for the defendant 8y<¡ days in hauling lumber, using-defendant’s team. With a full knowledge of the height of the doors, plaintiff, standing on top of a load of lumber, the top of which he knew was at least 5% feet from the ground, drove the team himself through the south door and along the driveway, and stopped the horses with their heads under the north doorway, intending to take on other articles and then drive out through the north door. He wound the lines around a stake on the wagon, and among other articles then loaded was a box of glass, which defendants’ foreman directed him to hold upright. Plaintiff was practically six feet tall. Plaintiff held or steadied the box of glass with his left hand, and, without adjusting his body so it would miss the top of the door, reached for and unwound the lines. The team started instantly in consequence thereof, and, the team not stopping in response to plaintiff’s cry of “Whoa,” plaintiff was hit by the upper part of the door and injured. The team was not in the habit of starting without a suggestion from the driver. The sole negligence assigned was in furnishing plaintiff an insufficient doorway through which to drive. Held, plaintiff could not recover because (a) he assumed the risk incident to his position on the load, — the risk that the horses might start, — and (b) he was guilty of contributory negligence — this negligence being the proximate cause of the injury.</p> <p>2 TBIAIj: Instructions — Applicability—Speculation on. Pacts Without Evidence. An instruction is manifestly erroneous which turns the jury loose in the zone of mere speculation and permits them to find the existence of facts, (a) without evidence and (b) in flat contradiction to the only rational inference which the testimony will bear.</p> <p>PRINCIPLE APPLIED: (Additional to No. 1.) . The only rational inference possible under the testimony was that the horses started solely from the voluntary act of the plaintiff in unwinding the lines, with consequent suggestion to the horses to start. But the court, inter alia, instructed:</p> <p>“If, after the load on the wagon, had been completed, and while the plaintiff was attempting to take the lines in his hands for the purpose of controlling the team, and before he had an opportunity so to do and determine how he would attempt to pass through said opening, and before he had opportunity to take necessary precaution for his own safety in so doing, the team suddenly and without word or sign from the plaintiff and without his voluntary action or conduct, passed rapidly forward and through such doorway and plaintiff was thereby struck and thrown from such load and injured, plaintiff would not be guilty of contributory negligence,” etc.</p>

— W. H. Fahey, Judge. The petition in the first ease was filed .October 12, 1914, and alleged, in substance, that the defendants, being the mayor and councilmen of the incorporated town of Earlham, on April 7, 1913, adopted a resolution declaring certain land necessary for cemetery purposes, and instructed the mayor and clerk to make written application to the sheriff of Madison County for the appointment of commissioners to inspect the same and assess the damages the owner…

— H. Bank, Jr., Judge. Action at law. Upon a reversal of the case in this court, procedendo issued, and thereafter in the district court, plaintiff filed a motion assailing defendants’ answer, and defendants filed a motion for a final judgment upon the procedendo. Plaintiff’s motion was overruled.

<p>1 APPEAL AND ERROR: Abstract of Record — Amendment—Requirements. Counsel owes the duty to the court, in the preparation of an amended abstract, to specifically point out the page and line of the original abstract which he is correcting. (Rule 32.)</p> <p>2 WILLS: Undue Influence — Fiduciary Relations — Evidence. Evidence reviewed, and held to present a jury question whether the will was the result of the undue influence of a devisee, who himself drew the will at a time when no one was present but himself and deceased, and who was then occupying a fiduciary relation towards the aged deceased.</p> <p>3 WILLS: Undue Influence — Fiduciary Relations — Burden of Proof. A showing that a devisee himself drew the purported will at a time when only he and the infirm and aged testatrix were present, coupled with a further showing that said devisee then occupied an intimate fiduciary relation towards testatrix, may be sufficient to raise a presumption that the purported will was the result of the undue influence of said devisee, with consequent burden on devisee to rebut the unfavorable presumption.</p> <p>4 WILLS: Undue Influence — Evidence—Connected Transactions. What amount of property a devisee, charged with undue influence on his infirm and aged mother, received out of his father’s estate, may be so connected with the making of the mother’s will and the contest thereon as to become decidedly material.</p> <p>5 WILLS: Undue Influence — Evidence. On the question whether the purported will of,an infirm and aged testatrix was induced by the undue influence of her son, evidence is admissible that the son and his wife interfered with the visits of partially disinherited heirs to their mother.</p> <p>6 WILLS: Undue Influence — Evidence. On the question of the value of the estate of a mother whose will was under contest, evidence of the value of the personal property of her deceased husband may become material, the mother having received a portion of the latter.</p> <p>7 WILLS: Undue Influence — Evidence. On the question of undue influence, it may be shown that he who is charged with having exercised such influence had been known to physically abuse testatrix.</p>

<p>Appeal from Winnebago District Court.- — M. F. Edwards, Judge.</p> <p>The defendant was convicted of having committed assault with intent to inflict great bodily injury, and appeals.—</p>

M. Wright, Judge. The defendant appeals from a conviction upon charge of keeping a house of ill fame. The material facts are stated in the opinion.

— C. A. Dudley, Judge. Action to oust defendant company from the streets and highways of the city of Des Moines, because the defendant is without a franchise to operate its local telephone system and exchange in the city, for that the company has not obtained the consent of the city and the electors thereof to use its streets, highways, avenues, alleys and public places, as required by the statutes on the subject. Defendant contends that such eonsént is not required.

<p>Appeal from Polk District Court. — Lawrence De Graee, Judge.</p> <p>Action on promissory note resulted in verdict and judgment thereon for defendant. The plaintiff appeals.</p>

<p>1 FRAUDULENT CONVEYANCES: Husband to Wife — Joint Accumulations. Evidence reviewed, and held to show (a) that the claim of the wife that she owned .the proceeds used in buying the land in question was unfounded, (b) that said proceeds were the result of the joint efforts of husband and wife, and, the land being deeded to them jointly, they each owned an undivided half thereof.</p> <p>2 ESTOPPEL: Wife’s Property in Husband’s Name — Credit Extended to Husband. A wife who permit's her husband to take conveyance of her property in his own name — who thereby permits and invites the world to look upon and treat him as the owner, and thereby enables him to secure a false credit — is estopped to assert her ownership against the one deceived.</p> <p>3 FRAUDULENT CONVEYANCES: Fraudulent Conveyance Which Does Not Defraud — Setting Aside — Husband and Wife. A conveyance of land, fraudulent in faot, will not be set aside at the instance of a creditor, when the land is already so heavily encumbered that no possible equity remained for the creditor intended to be defrauded.</p> <p>Deemer, J., dissents.</p> <p>PRINCIPLE APPLIED: A husband and wife both owned an undivided half of the land. The husband, with intent to defraud his creditor and with his wife’s connivance, deeded his half to her. The homestead right had never been set off. At the time of the fraudulent conveyance the land (106% acres) was already mortgaged for $5,480. The entire tract was worth $10,650. The 40 acres for homestead, with buildings, were worth $7,000. The 66% acres, without the homestead 40, were worth about $3,650.- Of course the wife already owned, in her own right, one half of the 66% acres. Meld, the fraudulent conveyance did not, in fact, injure or hinder the creditor, and the conveyance would not be set aside.</p>

— Chas. W. Mullan, Judge. ' Action at law to recover damages for fraud and deceit accomplisbed by means of a letter written by defendant to plaintiff, wbicb is alleged to have induced plaintiff to loan a large sum of money to the Central Iowa Granite Company. Verdict and judgment for plaintiff in the sum of $40,000. Defendant appeals.

— B. F. Cummings, Judge. Action at law for recovery of damages for breach of a written contract of warranty. Judgment for plaintiff, and defendant appeals.

<p>WILLS: Construction — “Equal Portion.” The intent of the testator prevails, in the construction of a will, over (a) any arbitrary or technical rules of construction, (b) the form of the will, and (c) the order in which the devises are given. The construction of the will in question held to evince an intention to divide the devisees into two distinct classes and to give each class an ‘ ‘ equal portion, ’ ’ even though one class embraced but one person.</p> <p>PRINCIPLE APPLIED: Testatrix, a widow, was survived by one daughter, who had a surviving son, and by two other grandchildren, who were children of a deceased son, William W., who died prior to the making of the will. The will provided: “I hereby grant unto my daughter (naming her) an equal portion of my property both real and personal. . . . The balance of all my property real and personal to be given share and share alike to her children and to the children of William W. Whittaker, deceased.” Held, the daughter constituted one class of devisees and took one half of the property, while the three grandchildren constituted another class, and each took one sixth of the property.'</p>

— Thomas Arthur, Judge. Action in equity to set aside a conveyance on the ground of fraud. The opinion states the case. Decree for the plaintiff in the court below. Defendants appeal.

— M. E. Hutchison, Judge. Action in equity to set aside a conveyance made by'the mother of the parties to the defendant. The trial court found the equities to be with the defendant, and dismissed the bill. Plaintiffs appeal.

— R. M. Wright, Judge. Action at law to recover damages on account of personal injury. Verdict and judgment for plaintiff, and defendant app eals.