Volume 18 — Utah Reports

Hon. A. Q-. Norrell, Judge. Action by James Welsh against defendants to recover damages for the wrongful use and interference with the water of the South Fork of Weber river, and for a perpetual injunction restraining the defendants from obstructing, diverting or befouling waters of that stream above plaintiff’s mill. A verdict of “no cause of action” was returned and judgment for costs entered thereon.

C. H. Hart, Judge. Defendant was convicted of the crime of rape and appeals. The opinion states the facts. The proof made in this case does not meet the' law. As beai’ing upon the question we submit the following cases: Curby v. Territory, 42 Pac. Rep. 953; Rhea v. State, 175 W. Rep. 931; Whittaker v. State, 50 Wis. 518; People v. Dohring, 59 N. Y. 374; Tittle v. State, 38 5. W. Rep. 202.

A. N. Cherry, Judge. Action at law by D. D. Mallory against E. A. Kessler and E. D. Hoge to recover $2,274.67 as a deficiency after sale under a trust deed. From a judgment for plaintiff, defendants appeal. The opinion státes the facts. The language of 3460 Compiled Laws of Utah is imperative and unmistakable. But one action is permitted for the recovery of any debt secured by mortgage, and such action must be in accordance with the provisions of chapter 1.

Hon. E. V. Higgins, Judge. Action by William GL C. Morrison against Miner Winn praying a decree determining plaintiff’s right to the waters of Dry Creek and an injunction restraining defendant from using said waters. Prom a judgment for defendant, plaintiff appeals. The opinion states the facts. Before estoppel can be invoked in favor of Moore’s (respondent’s grantor’s) title, five things must be found to exist in his favor, viz: 1.

A. N. Cherry, Judge. Action in ejectment for a strip of land. Prom a judgment of non-suit, plaintiff appeals.

Hon. H. H. Rolapp, Judge. Action by the Farrand & Votey Organ Company vs. tbe Board of Church Extension of the M. E. church, in replevin for an organ- or its value and for damages for its use. Judgment for plaintiff for possession of the organ or $3,000, its value if not delivered, and for $410 damages. Defendant appeals. The opinion states the facts. The court erred in denying a nonsuit. Anclreivs v. Ins.

Ogden Hiles, Judge. Action by plaintiff against defendant Jennings, to foreclose a mortgage. Defendants answered and counterclaimed on an overpayment made by mistake of defendant Isaac Jennings and his assignors. From a judgment in favor of plaintiff defendants appeal. That defendants’ counterclaim is proper. See Pomeroy Remedies and Remedial Rights, section 792 and note 1.

<p>Assignment of Insurance Policies — Preference — Fraud — Proof Necessary to Establish — Demand Note — Release of Endorsers.</p> <p>Assignment of Insurance Policies — Preference — Fraud — Proof Necessary to Establish.</p> <p>When a corporation assigns certain policies of insurance to its banker in satisfaction of various items of indebtedness, and in preference to other creditors, in the absence of statutory restrictions and insolvent laws, unless there is express proof of fraud, participated in by the assignee, the assignment will be upheld.</p> <p>Demand Note — Release of Endorsers.</p> <p>When a demand note of a corporation, endorsed by its president, is presented and payment demanded of the principal and no protest is made, nor any notice of dishonor served on the endorser, and there is nothing to show that such notice was ever waived, the endorser is released.</p>

A. N. Cherry, Judge. Action by plaintiff, to obtain a writ of mandate to compel the payment of certain county warrants. Prom a judgment for plaintiff, defendant appeals. The respondent is not entitled to any interest on the warrants in question, as they were never registered after tbeir validation. P. V. Coal Co. v. County Commissioners, 15 Utah 106-107; Deny v. Ames,.26 Cal. 372.

1. Is the board of county commissioners authorized to fix a minimum sum below which no bid will be received ? Or does the statute itself fix such sum’? The object of taxation is to raise sufficient revenue and only sufficient to provide means for the proper administration of governmental duties and this object is borne in mind in the construction of the revenue laws.

E. V. Higgins, Judge. Action by plaintiff against defendants in which other attorneys were substituted for appellants. From the order of the court substituting attorneys- appellants appeal. The statute, Secs. 117 and 118, requires notice to the attorney to enable him to present his claims if he has any, but the attorneys in this State have a lien on the cause for their fee.

N. Cherry, Judge. Action by Julia B. McKibbon v. Nat. M. Brigham as United States marshal, to recover the value of certain personal property sold on execution. From a judgment for the defendant plaintiff appeals. A creditor at large of the mortgagor cannot attack the mortgage. He must first clothe himself with a judgment or execution or some legal process against the property.

E. Y. Higgins, Judge. Action by the Victor Gold & Silver Mining Company v. The National Bank of the Republic. Cause originally tried in 1895 and appealed, costs of appeal being paid by Brown & Henderson, attorneys for the then appellants. Judgment of reversal was entered with costs to the appellant.

Ogden Hiles, Judge. . Action by plaintiff against defendant for divorce. Defendant answered and cross-complained. From a judgment granting defendant a divorce on one ground in tÜie complaint and awarding her certain alimony. Defendant appeals. That the allowance of alimony is grossly disproportionate under the facts in this case, see: 2d Am. & Eng. Enc. of Law, 2d ed., 120-125; 2d Bishop on Marriage and Divorce, Secs. 1028-1037.

A. N. Cherry, Judge. Action by plaintiff against the principal and sureties on a bond given in civil arrest. From a judgment for plaintiff defendants appeal. That he (the justice before whom the case was tried) was not a justice of the peace de jure, see In re Cloherty, 27 Pac. 1064; State v. 9 Justices, 90 Tenn. 722; People v. Tool, 85 Cal. 333.

Ogden Hiles, Judge. Action by plaintiff in attachment against defendant. From a judgment for defendant, plaintiff appeals. We contend that the assignment in this case was in violation of the statute of Utah and therefore void. Rev. St., Secs. 84, 87, 24G6 and 2474.

Action by J. H. Griffin against Salt Lake City to reform a certain contract between plaintiff and defendant. From a judgment for the defendant, plaintiff appeals.

Ogden Hiles, Judge. Action by plaintiff to establish a trust in his favor in a certain interest held by defendant’s decedent at the time of the commencement of the action. From a judgment and decree in favor of plaintiff, defendant Woodman appeals.

W. M. McCarty, Judge. Action by plaintiff against defendant for the conversion of certain sheep upon which plaintiff claimed to hold a chattel mortgage. From a judgment of dismissal on the ground of insufficiency of description in tbe mortgage, plaintiffs appeal. The description in the mortgage was sufficient. Jones on Chattel Mortgages, Secs. 53, 54, 54a; Carbine. Kin-caid, 7 Pac. 147; Scrofford v. Gibbons, 34 Pac. 968; Davis v. Pitcher, 59 Am.

A. N. Cherry, Judge. Action by plaintiff against defendants in attachment, to recover upon ten separate and distinct causes of action, some due and some not due. Defendants demurred separately to each cause of action, on the ground that the same did not state facts sufficient to constitute a cause of action. The demurrer was sustained and plaintiff refused to amend. Judgment was entered for defendants. From this judgment plaintiff appealed.

Hon. H. H. Rolapp, Judge. Action by the City of Kaysville against defendant Ellison for carrying on a business as merchant without a license. Action was begun in justice’s court, where Ellison was convicted. Appeal was taken to the district court and upon a trial de novo defendant was acquitted. From which judgment of acquittal plaintiff appeals. We are aware that there are cases which hold that a city has no power to tax for general city purposes, agricultural lands.

Original application by Salt Lake County in certiorari to review the action of the State Board of Equilization, and the method followed by them in apportioning the assessments on rolling stock of certain railroad companies. The provisions of the Revised Statutes under which defendants acted in making the apportionment complained of, are Sections 2513, 2559, 2560 and 2561.

A. N. Cherry, Judge. Action by plaintiff in aid of a protest and adverse claim. From a judgment for the defendant plaintiff appeals. Plaintiff’s right to the conflict area depends upon either 'one of two propositions. First, the invalidity of defendant’s claim.

Ogden Hiles, Judge. The District Court entered judgment preferring d legacy to one Mary Anderson, over the annuity of appellant, sister of the deceased. As to the amount of money on hand and the other principal facts in the case there is no controversy. The question at issue involves the construction of the will. It is provided by the will that Mrs. Liddle, appellant, should receive $50 a month and Mrs. Anderson was to receive altogether $2-50.

Charles H. Hart, Judge. Action by plaintiffs against defendants for an injunction to prevent the sale of their homestead on execution. From a judgment decreeing perpetual injunction, defendants appealed. The homestead law in force when the debt is contracted governs as to the question of exemptions from such debt, and not the one in force when the collection is attempted to be enforced.

H. H. Rolapp, Judge. Appeal from a judgment entered in accordance with the mandate of the appellate court.

H. H. Rolapp, Judge. Action by plaintiff against defendant to recover damages for personal injuries received by plaintiff while riding as a passenger upon defendant’s cars. From a judgment for plaintiff defendant appeals. The court erred in overruling defendant’s demurrer to the complaint. The demurrer was special and was aimed at the uncertainty of the complaint in the description of the injuries alleged to have been received by the plaintiff.

Ogden Hiles, Judge. Action by the bank on behalf of itself and all other creditors of W. and beneficiaries of the trust fund against Forbes as assignee to compel him to perform his trust and render an account. From a judgment for plaintiff defendant appeals. The special demurrer should have been sustained. The amended complaint alleges that Powers and Hoge were merely sureties on the note.

A. N. Cherry, Judge. Action by George E. Woolley to collect from Maynes-Wells Co. a certain sum as rents, and to enforce a landlord’s lien on certain goods previously assigned to Kirk-man for the benefit of creditors. From a judgment for the plaintiff defendants appeal. The question as to whether or not a note was given and received as payment is a question for the jury, not for the Court. Johnson v. Wood. 6 Am. Dec., 279; Milledge y. Boston Iron Co., 51 Am.

A. N. Cherry, Judge. Appellants were purchasers at an execution sale of certain personal property. A motion to set aside the sale was served upon appellants, and after hearing, an order was entered by the District Court setting aside the sale. From that order appellants appeal. It may be suggested that no appeal lies from the order made in the lower court: First, because that order was discretionary with the lower court.

Submitted at same time and on same state of facts as case of Nelson v. Southern Pacific Company, decided at the present term. The opinion in that case is decisive of this. Appeal from the District Court, Weber county, Hon. H. PI. Rolapp, Judge. Action by plaintiff against defendant for damages for personal injuries received through the negligence of defendant. From a judgment for plaintiff, defendant appeals.

H. H. Rolapp, Judge. Action by plaintiff as administrator to recover damages in consequence of the death of Charles A. Nelson, caused as alleged by the negligence of defendant. From a judgment for the plaintiff defendant appeals.

E. V. Higgins, Judge. Application by C. W. Clark for a deed under Section 2817 C. L. Utah, 1888. Kirby and Wilson filed their adverse claim for a deed to the same lot. C. W. Clark was allowed to amend his petition showing that he was the agent of B. B. Clark, and on the hearing, a deed to the lot was ordered to B. B. Clark and the application of Kirby and Wilson dismissed. From that judgment Kirby and Wilson appeal.

A. N. Cherry, Judge. Action by plaintiff as beneficiary under an accident policy insuring plaintiff’s husband against personal bodily injury. From a judgment for plaintiff defendant appeals. The statute, Compiled Laws of 1888, Sec. 3204 provides for two classes of notices in a summons. In an action on a contract to recover money or damages, the notice should be that unless defendant appears, plaintiff will take judgment for the sum demanded in the complaint.

Ogden Hiles, Judge. Appeal by the Bear River Irrigation and Ogden Water Works Co. from the order of the court below, approving the report of the receiver and allowing various items thereof, and ordering them paid out of the funds in the receiver’s hands.

A. N. Cherry, Judge. Action by plaintiff against defendant to recover a deficiency on a promissory note secured by a trust deed, after a… Held: “Whoever desires any court to give judgment as to any legal right or liability dependent upon the existence or non-existence of facts which he asserts or denies to exist, must prove that those facts do or do not exist.” In 2 Ency. of Law, 665 (1st Edition), it is said: “The party having the burden is the party who, if no proof is…

Ogden Hiles, Judge. Action by plaintiff to set aside and annul a sale under an assessment on certain shares of stock of defendant company, and to annul and cancel the issuance and transfer of said stock to defendant Lammersdorf. From a decree in favor of defendants plaintiff appeals. The alleged assessment of May 27, 1893, is absolutely void and consequently the attempted forfeiture and sale of the stock is void.

Ogden Hiles, Judge. Appeal dismissed conditionally. Action by plaintiff-against defendant to obtain a decree of divorce. From a judgment for defendant plaintiff ap-. peals and on the appeal filed no bond, but in lieu of the bond filed a poverty affidavit under Section 1017 R. S. 1898. Appeal dismissed unless appellant within thirty days filed a bond as required by Section 3305 R. S. 1898.

<p>Appeal from the District Court, Weber County, Hon. H. H. Eolapp, Judge.</p> <p>Action by plaintiff against defendant to recover damages for personal injuries. From a judgment for plaintiff, defendant appeals.</p> <p>Under an allegation of “other wrongs ” the plaintiff was not entitled to introduce evidence of injuries other than those sufficiently described in the complaint, to enable the defendant to know the particular matters he was required to meet. That is the very reason of the rule requiring the proof to correspond with the allegations. Batterson v. Chicago & Grand Trunk By. Co., 8 A. & E. Railroad cases, 125; Marquette H. & 0. By. Co. v. Marcott, 41 Mich., 433; Flint v. Pere Marquette By. Co., 38 Mich., 714; McAbsher v. Bichmond & D. B. Co., 12 S. E., 892; Mobile & O. B. B. Co. v. George, 10 S., 145; Linton v. Unexcelled Fire Works Co., 124 N. Y., 533.</p> <p>That the court erred in refusing to instruct the jury as requested by the defendant involves the question of champerty and whether or not the law against champerty exists in this state.</p> <p>Our contention is that the common law prevails in Utah and has existed here ever since the Territory of Utah was organized. That at common law champerty was a crime and punishable as such and all contracts tainted with it were void.</p> <p>That the common law prevails in Utah and did in the days of our territorial existence is shown by the decisions of the Supreme Court of the Territory as well as by the decisions of the Federal Supreme Court. People v. Green, 1 Utah, 13; National Bank v. Kinner, 1- Utah, 100; Thomas v. U. P. By. Co., 1 Utah, 232; Mormon Church v. United States, 136 U. S., 62; American Publishing Co. v. Fisher, 166 U. S., 464.</p> <p>By the common law champerty was a crime. It is so declared by Blackstone and earlier authorities and is defined by that author as follows:</p> <p>“Champerty is a species of maintenance and punished in the same manner, being a bargain with the plaintiff or defendant campum partiré to divide the land, or other matters sued for, between them, if they prevail at law; whereupon the champerter is to carry on the party’s suit at his own expense.” 4 Blackstone’s Comm., 135.</p> <p>Champertous contracts are void both by law and equity. Barrien v. McLane, 1 Hoffman Ch., 421; 4 Kent’s Comm., p. 4 — note (b) and cases cited; Backus v. Byron, 4 Mich., 535. '</p> <p>In Illinois champerty is recognized as a part of the common law, and contracts between attorney and client whereby the attorney is to institute and prosecute suits at his own expense for the recovery of property belonging to or claimed by the client, for which his own compensation is to be a part of the property recovered, however honestly entered into and carried out, is champertous and void. Thompson v. Reynolds, 73 Ills. 11; Holman v. Billings, 89 Ills., 183; North Chicago St. R. R. Co. v. Ackley, 171 Ills., 100.</p> <p>The same doctrine prevails in Indiana, Massachusetts, Ohio, Kentucky and Missouri. Lafferty v. Jelly, 22 Ind., 471; Loihrop v. Amherst Bank, 9 Met., 489; Weakly v. Hall, 13 Ohio, 167; Brown v. Beauchamp, 5 B. T. Monroe, 413; Duke v. Harper, 66 Mo., 51.</p> <p>It appears that the only contention which counsel makes with respect to the question of excessive damages, is that the weight of evidence does not show that plaintiff was damaged as much as that found by the jury.</p> <p>In the case of Nelson v. Southern Pacific, 15 Utah, 328, it is held that under Sec. 9, Art. 8 of the Constitution, this court on appeal has no power to review the facts in a case at law except so far as may be necessary to determine questions of law. See also Walley v. Deseret National Bank, 14 Utah, 313; Watson v. Mayberry, 15 Utah, 275. See also Harrington v. Eureka Hill Mining Company, 53 Pac. 737; Mangun v. Mining Company, 15 Utah, 537.</p> <p>In the absence of any statute to the contrary, or the adoption of the common law by the legislature, the following incontrovertible propositions are supported by all authorities: First, the contract is not champertous. Second, a champertous contract can never be questioned except as between the parties to the contract. Third, in all cases, champerty must be pleaded. Sec. 3683 (j. L. Utah, 1888, p. 378; Hoffman v. Vallejo, 45 Cal., 564; Barnes v. Scott, 117 U. S., 582; Euneauv. Bieger, 105 Mo., 682; Brimback v. Oldham, 1 Ida., 710; Vimontv. R. R. Co., 69 la., 304; ETboróugh v. Ayres, L. R., 10 Eq. Cas., 367; Whithey v. Kirtland, 27 N. J. Eq., 333; Davis v. Settle, 26 S. E., 557.</p> <p>In the case át bar there was no plea of champerty offered upon the part of the defendant. The rule is well settled that even in a proper case where such contracts are questioned between the parties who make them, a plea upon the part of the defendant is indispensable. Moore v. Ringo, 82 Mo., 468; Pike v. Martindale, 91 Mo., 268; Braumback v. Oldham, 1 Ida., 710; Allison v. Chicago, etc. R. Co., 42 Iowa, 275; Vimontv. Chicago, etc. R. Co., 69 Iowa, 304; McMullen v. Quest, 6 Tex., 275.</p>

H. H. Rolapp, Judge. Action by plaintiffs as widow, and children and heirs at law, by their guardian, against the Short Line Railway Co. for damages for the death of one Patrick Kennedy, husband and… Held: will not be reviewed on appeal. Nelson v. S. P. By. Co., 15 Utah, 325; Mangum v. Mining Co., 15 Utab, 537. See also authorities cited in Croco v. Oregon Short Line By. Co., 18 Utah, 311.

William McCarty, Judge. Action by Pleasant Grove City, a corporation, against Artemas Holman to recover a water tax levied by the city corporation. Action certified to the district court where judgment was rendered against defendant. Defendant appeals.

Wm. McCarty, Judge. Action by plaintiff against defendants for damages for improperly constructing and negligently maintaining certain irrigating ditches, and for an injunction restraining defendants from maintaining their ditches so as to injure property of plaintiff. From a judgment for defendants, plaintiff appeals.

A. Gr. Norrel, Judge. Action by Summit County against Sanford Gustaveson in assumpsit to collect the sum of $100, the amount claimed to be due from the defendant to the county for carrying on the business of grazing, herding and pasturing 2,000 sheep in the county without obtaining a license under an ordinance passed by the county commissioners. From a judgment for defendant the county appeals.

E. Y. Higgins, Judge. Action by plaintiff against defendant for damages for personal injuries alleged to have been caused through the negligence of the defendant company. From a judgment for plaintiff, defendant appeals. This case is one of the clearest illustrations either of an assumed risk or an entire absence of negligence that we have been able to find. The court erred in denying defendant’s motion for a non suit.

H. H. Rolapp, Judge. Action by plaintiff against defendant to recover 13960 damages in consequence of the failure of defendant to deliver certain cattle at Green River, Wyoming, as required by a contract made in the State of Idaho. From a judgment for plaintiff, defendant appeals.

A. N. Cherry, Judge. Action by the Union Refrigerator Transit Company against Stephen H. Lynch, Treasurer of Salt Lake County and Collector of Taxes, to recover a certain sum of money paid by plaintiff as a tax, under protest, plaintiff claiming that the tax was illegal.

Ogden Hiles, Judge. Action in equity to set aside a deed of assignment by George M. Scott & Co., a corporation, to Hugh Anderson as assignee, upon the ground of fraud. From a judgment for defendants plaintiff appeals. The assignment is fraudulent and void as to appellant and other unpreferred creditors because it was made with intent to binder, delay and defraud them, in that, by certain indebtedness guaranteed by George M. Scott & Co., personally, is preferred.

<p>ContRibutohy Negligence — Issue for Jury.</p> <p>1. Plaintiff, while in defendant’s employ, fell from a ladder connecting an upper tunnel with a lower one, in consequence of the removal the same morning, without his knowledge, of waste supporting one of the uprights; The plaintiff had been at work in the upper tunnel four days, and the waste had been removed by Saunders, another miner, working in the tunnel 12 feet below, under instructions of the superintend- ■ ent to remove waste therefrom. Plaintiff was at work 40 feet from the ladder, and, when he fell, was going for a sledge hammer which he-needed, and the only light at the ladder was his candle. Held, the court should have submitted the issue as to contributory-negligence to the jury, under instructions defining the phrase, in view of the circumstances in evidence.</p> <p>Fellow Servants — Rule Defined.</p> <p>2. Section 1343, Rev. St. Utah, declaring; “All persons who are engaged in the service of such employer, and who while so engaged, are in the same grade of service and are working together at the same time and place and to a common purpose, neither of such persons being intrusted by such employer with any superintendence or control over his fellow employés, are fellow servants with each other: .provided, that nothing herein contained shall be so construed as to make the employés of such employer fellow servants with other employés engaged in any other department of service of such employer. Employés who do not come within the - provisions of this section shall not be considered fellow servants,” — is a definition of the phrase “fellowservants” which the legislature had the power to make. The court may explain its provisions to the jury in.view of the evidence; but whether the plaintiff in this case and Saunders were working together at the time and the place of the negligence was an essential fact the jury should have been permitted to determine from the evidence before them.</p> <p>Bartch, J., dissenting.</p> <p>( Syllabus by the Court.)</p>

Hon. A. G. Norrell, Judge. ■ • Action by plaintiff in ejectment. Defendant cross-complained. From a judgment for defendant in accordance with the cross-complaint plaintiff appeals. The proof (under the cross-complaint) utterly fails to make out a contract which a court of equity could enforce. Graybill v. Braugh, (Ya.) 17 S. E. 558; McCarty v. Couch, 37' Minn. 124; Lawson’s Item. p. 4264. (The contract) was not complete.

Ogden Hiles, Judge. In the court below a final order was entered requiring W., not a party to the action, to do certain things. Objections were made to the jurisdiction of the court, but the objections were overruled and the order entered. From that order W. appeals. Order of the lower court vacated.

E. V. Higgins, Judge. Defendant was prosecuted for grand larceny and from a verdict and judgment of guilty, appeals to this court.

W. N. Dusenberry, Judge. Action for conversion of property. From a judgment upon a verdict of “no cause of action” plaintiff appeals. The court in giving plaintiff’s request marked “6th” in the manner he did, with his endorsement thereon in writing, to wit: “The foregoing requests are refused, W. N. Dusenberry, Judge,” the said endorsement being an instruction that the request was refused, and should not be considered by them, and certainly was calculated to mislead the jury.

A. N. Cherry, Judge. Action by plaintiff for damages on account of having been unlawfully evicted by defendants from a certain store building in Salt Lake City. From a verdict and judgment for plaintiff defendants appeal. The alleged parol lease of plaintiff being for more than one year is void under the statute of Utah and no suit founded upon such a lease, or estate for two years, or any particular time exceeding one month, can be maintained.

A. N. Cherry, Judge. Action by plaintiff against defendants to recover damages for unlawful and forcible ouster and for consequential damage. From a verdict and judgment in favor of plaintiff defendants appeal. Plaintiff contends that he was forcibly ejected from the premises. We submit in all candor that there is not a particle of evidence to sustain such a proposition. We •cite Brooks v. Warren, 5 Utah, 122, where this court has defined forcible entry; also 28 Cal. 202-33.

Hon. H. H. Rolapp, Judge. Defendant was prosecuted for selling liquor without a license. The prosecution was originally brought before a justice of the peace and upon conviction and judgment, appeal was taken to the district court where conviction was likewise had and defendant sentenced to fine and imprisonment, whereupon he appealed to this court. Appeal dismissed.

Hon. W. N. Dusenberry, Judge. Action by plaintiff to recover damages for personal injuries alleged to have been received by him through the negligence of defendant. From a verdict and judgment in favor of plaintiff, defendant appeals. The evidence is insufficient to support the verdict on the ground that the foreman omitted to inspect the ground for missed holes for the reason that the foreman owed the defendant no such duty.

A. N. Cherry, Judge. Action by Mary Fritz et al. against defendant Company for damages for the killing of plaintiffs’ decedent. From a judgment of non-suit plaintiffs appeal. It is the duty of those using a dangerous agency such as electricity, to use the utmost care to prevent injury to persons. Qircmdi v. El. Imp. Co., 107 Cal. 120. The servant has the right to assume that the master has properly exercised this duty.