Volume 22 — Arizona Reports

<p>1. Insurance — Notice of Change to Hazardous Occupation of Particular Class Sufficient. — Where the by-laws of a fraternal insurer classified as hazardous the occupations of railroad firemen and switchmen, and required notice when a member should quit a nonhazardous occupation and take up a hazardous occupation, notice by a member that he bad become a railroad fireman is sufficient, and will cover his change of occupation to a railroad switchman; additional notice of change from one hazardous occupation to another being no more necessary than notice of change from one nonhazardous occupation to another.</p> <p>2. Insurance — Notice of Change of Occupation Held Given to Proper Official; Praternal Insurer cannot Deny Liability Because Additional Premiums were not Exacted Where Regular Premiums were Received and Retained. — -Where the bylaws of a fraternal insurer required notice to be given to the clerk of the local camp or organization in case of change from a nonhazardous to a hazardous occupation, and the insurer also made the clerk its collecting officer, the insurer cannot escape liability on a certificate, where the member in good faith gave the clerk notice of change to a hazardous occupation, but the clerk failed to exact the additional premium, and dues at the former rate were received and retained without question by insurer merely because by-laws provided they could not be waived by subordinate bodies, and Civil Code of 1913, paragraph 3490, recognizes the right of the insurer to so provide; the notice in this ease being to the insurer itself.</p> <p>1. On the question of provision for forfeiture or reduction of benefits in event of injury while engaged in more hazardous occupation, as applied to occasional or temporary acts, see note in L. R. A. 1915D, 312.</p> <p>3. Insurance — Burden of Proving Forfeiture on Insurer. — In an action on a fraternal insurance certificate, where the insurer claimed a forfeiture because the member had changed from a nonhazardous to a hazardous occupation without notice, etc., and the question of notice was put in issue, the jury were properly instructed that the insurer had the burden of proving that notice was not given, for where an insurer asserts a forfeiture, the burden of establishing the same is on it.</p> <p>4. Estoppel — Where Facts are Admitted, Question is for Court.— Where facts on which estoppel was claimed were admitted, the question is one of law, and it is immaterial as to the burden of proof.</p>

<p>1. Brokers — Contract Held not Within Statute Requiring Brokerage Contracts to be in Writing. — Contract, whereby principal stockholder of mining corporation agreed to compensate other party to contract for his services in inducing engineer of prospective , buyer of mine to make an inspection of the mine, held not within Civil Code of 1913, paragraph 3272, subdivision 7, as amended by Session Laws of 1919, chapter 135, requiring land brokerage contract to be in writing; such - contract being an employment contract, and not one to sell the mine.</p> <p>2. Contracts — Construed to be Effective Rather Than Ineffective. — A contract will be construed to be effective rather than ineffective, if it can be consistently done.</p> <p>3. Appeal and Error — Variance not Available in Absence of Objection to Evidence. — Variance is not available on appeal in absence of objection to evidence on such ground.</p> <p>1. On power of legislature to prohibit offering another’s real estate for sale without authority, see note in 12 L. R. A. (N. S.) 707.</p> <p>On power of legislature to require that contracts for commissions for finding a purchaser for real estate shall be in writing, see notes in Ann. Cas. 19130, 727; 33 L. R. A. (N. S.) 973.</p> <p>On necessity that authority of agent to purchase or sell real property be in writing to enable him to recover compensation for his services, see notes, in 44 L. R. A. 601 and 9 L. R, A. (N, S.) 933.</p>

<p>APPEAL from a judgment of the Superior Conrt of the County of Yavapai. John J. Sweeney, Judge.</p>

<p>1. Constitutional Law — Assessment of Benefits According to Value of Property, not Taking Without Due Process. — Civil Code of 1913, title 55, chapter 5, providing for assessment of benefits for a drainage district according to the value of the property, is not in violation of Constitution of the United States, Amendment 14, section 1, of Constitution of Arizona, article 2, section 4, as working a taking of property without due process of law, merely because a land owner receiving little benefit might be required to pay much more than a land owner receiving great benefit, since the mode of assessment is for the legislature.</p> <p>2. Evidence — Court will Take Judicial Notice That Lands in a Particular Valley were Alkali and Water-logged. — The Supreme Court will take judicial notice that lands in a particular valley had beeome alkali and water-logged, and so should be drained.</p> <p>3. Drains — Assessment on Lands not Benefited is Void. — The theory whieh underlies assessment for a drainage improvement is that the property is benefited, and should bear a proportion of the cost corresponding to the benefit, but an assessment on property not benefited is void.</p> <p>1. On necessity of special benefits to sustain assessment for public improvement, see note in 14 L. R. A. 755.</p> <p>Validity of rule of assessment for drainage improvement, note, 2 A. L. R. 625,</p> <p>4. Drains — Legislature may Create Taxing District, and Delegate Authority to Local Boards. — The legislature may create taxing districts for the purpose of local improvements such as drainage, and may delegate that authority to hoards or commissions.</p> <p>5. Drains — Question of Benefit is One of Fact, but Assessment cannot be Imposed Arbitrarily. — Body to which the question of benefits is delegated may not act arbitrarily, and impose a tax with disregard to the benefit to be derived.</p> <p>6. Appeal and Error — Finding Supported by Evidence not Disturbed. — A finding of the trial judge is entitled to high consideration, and, unless without any reasonable evidence to support it, will not be disturbed on appeal</p> <p>7. Drains — Evidence Held to Show That Lands not Possibly Benefited were Included in Drainage District. — On objection-to a petition to confirm the issuance of bonds by a drainage district, evidence held to show that the objector’s lands, whi'eh were included, although across a river from the main portion of the district, could not be benefited, and hence as to them the assessment was invalid.</p> <p>8. Evidence — Judicial Notice Taken of Character of River. — The court will take judicial notice of the size and volume of a river. 9. Drains — Assessment Against Lands in No Wise Benefited can-</p> <p>not be Upheld on Theory of General Benefit. — An assessment for a drainage district against lands which lay across a river from the main body of lands and could receive no benefit cannot be upheld on the theory of general benefits to the territory.</p> <p>10. Drains — Eailure to Appeal from Order Held not to Estop Owners from Objecting to Assessment. — Though the owners of lands whieh could not be benefited by a drainage system did not appeal within the ten-day period- provided by Civil Code of 1913, paragraphs 5429, 5430, from the order of the board of supervisors, such failure does not, upon principles of estoppel, prevent the land owners from objecting to any assessment and raising that question on petition to confirm proceedings for the sale of bonds; for, as the inclusion and assessment were void, being an unlawful deprivation of property, it could not be validated by the land owner’s inaction.</p>

<p>1. Drainage Districts — Proceeding in Delation to Establishment op Drainage District, Statutory and Eight op Deview Limited to Manner Prescribed. — Under chapter 5, title 55, Civil Code of 1913, entitled Drainage Districts, the board of supervisors has jurisdiction to pass upon the question as to whether or not the lands of property owners whose lands are included in the proposed drainage district would be benefited thereby, and its determination of the same is final, unless within .ten days after the entry of same upon its minutes an appeal is taken therefrom to the superior court, this proceeding being a purely statutory one and the right to review the determination of the board of supervisors being limited to the manner or mode set out in the statutes.</p> <p>2. Drainage Districts — Bonds—Proceedings to Determine Validity op Same.- — Under paragraphs 5484 to 5488, inclusive, Revised Statutes of Arizona of 1913-, relating to drainage districts, it is made the duty of the board of directors of the drainage district within thirty days after the issue of any bonds to bring action to confirm the validity of the bonds and if no such proceeding is instituted by the board of directors, any district assessment payer may within ninety days bring an action in the superior court to determine the validity of any sueh bonds, it being further provided that “at the hearing of such proceedings, the court shall hear and determine the sufficiency of all proceedings.” Held, that the meaning to be attached to sueh confirmatory proceedings is that the court should review the regularity, legality and correctness of what was done before the boardof supervisors, or if an appeal was taken, what was done before the court, including the regularity of the proceedings in voting and issuing bonds, and the court might review all orders, rulings and determinations of every kind, the evidence of which had been preserved before the board of supervisors or in the trial on appeal, but that the court would not try the issues involved de novo and that the question of benefits to lands included in the drainage district could not be litigated in the proceeding to contest the validity of the bonds, the dissatisfied land owner being relegated to making objections before the board of supervisors, upon hearing of petitions to organize the district j or to an appeal therefrom to the superior court as provided by statute.</p>

<p>ORIGINAL PROCEEDING. Petition for Writ of Certiorari.</p>

F. H. Lyman, Judge. STATEMENT OE EACTS. An action to recover damages resulting from an alleged breach of covenant in a lease of farm lands, and for an injunction restraining the lessees from further .breaching the covenant of the lease. The court, ex parte, issued an order to show cause, if any defendants had, why an interlocutory injunction prayed for in the complaint be not granted, and pending a hearing on such rule a restraining order was made.

A. G. McAlister, Judge. STATEMENT OF FACTS. Action brought by Theodore E. Gauthier, as administrator of the estate of Albert Heffern, deceased, on a note for $10,000 given by the Heffern Co-operative Consolidated Gold Miniiig & Milling Company, a corporation, to the deceased, Albert Heffern, in his lifetime, and to foreclose a mortgage executed to secure the payment of said note.

<p>1. Officers — Action Against Officers of Several Counties may ' be Brought at Pjace Where Either Holds Office. — Under Civil Code of 1913, paragraph 394, subdivision 16, as to venue of action against public officers, aetion against officers of several counties on a joint or several liability may be in the county where either holds office.</p> <p>2. Venue — Application for Change Deprives Court of Jurisdiction Only by Showing Action in Wrong County. — Under Civil Code of 1913, paragraph 396, application for change of venue deprives the court of jurisdiction, other than to order change, only on showing action was brought in wrong county.</p> <p>3. Venue — Action for Trespass to Person by Sheriff may be in Either of Several Counties. — Civil Code of 1913, paragraph 394, subdivision 10, authorizing suit for damages for trespass to be brought in county of trespass or where either defendant resides or may be found, applies to a trespass against the person by sheriffs.</p> <p>4. Arrest — May be Without Warrant, by Peace Officer With Reasonable Cause to Believe Person Guilty of Felony. — Under Penal Code of 1913, section 854, a peace officer may without a warrant arrest a person whom he has reasonable cause to believe guilty of a felony.</p> <p>5. False Imprisonment — Complaint Held to Show Deputy in Making Arrest Acted in Such Capacity. — Complaint against a sheriff for unlawful arrest and false imprisonment by his deputy sufficiently shows that the deputy acted in his capacity as such in arresting plaintiff; it alleging that he told her that he had been ordered by the sheriff of another county to arrest her and stated' to her that she had stolen a large sum of money, and that he showed her his deputy’s badge and told her that was his authority.</p> <p>6. False Imprisonment — Sheriff is Liable for Deputy’s Arrest of Wrong Person — “Official Act.” — An “official act,” within Civil Code of 1913, paragraph 2538, making a sheriff responsible for the official acts of his deputy, is any aet done by the officer in his official capacity under color and by virtue of his office, and so includes his aet when ordered to arrest one person, in arresting, by mistake, another without reasonable ground to believe him to be the guilty person.</p> <p>7. False Imprisonment — Complaint Held to Show, Against General Demurrer, That Arrest by Deputy was for Felony.— The complaint on a sheriff’s bond based on an arrest by his deputy of plaintiff without a warrant sufficiently states, as against a general demurrer, that the offense was a felony, by allegation that he arrested her on a charge of having stolen “a large sujn of money.”</p> <p>8. Action — Rule Against Joinder not Violated, by Action Against Principal and Surety on Official Bond. — Under Civil Code of 1913, paragraphs 197-199, as to liability under duties covered by, and action on, an official bond, an action thereon against principal and surety is not in violation of paragraph 427, prohibiting joining of actions ex contractu with actions ex delicto.</p> <p>9. False Imprisonment — Evidence of Deputy’s Act Being Official Sufficient for Jury. — Evidence held sufficient, as against motion for instructed verdict, to take to the jury the question of the act of a deputy sheriff in making an unlawful arrest being official, and so one for which the sheriff was liable, rather than individual.</p> <p>4. On liability of officer for making arrest without a warrant, see note in 51 L. R. A. 206.</p> <p>6. On liability for arresting wrong person, see notes in 44 Am. Dec. 291; 8 Ann. Cas. 34.</p> <p>On liability of sheriff for deputy’s tort in making arrest, see notes in Am. Dec. 145; 12 L. R. A. (N. S.) 1019; L. R. A. 1915E, 172; 1 A. L. R. 241; 12 A. L. R. 981.</p> <p>10. Sheriffs and Constables — Sheriff Liable for Official Act of Deputy Though not Knowing It was Contemplated. — Under Civil Code of 1913, paragraph 2538, declaring a sheriff responsible for official acts of his deputy, so long as the deputy’s act is under color and by virtue of his office, the sheriff’s lack of knowledge that such act was about to be performed is immaterial.</p> <p>11. False Imprisonment — Knowledge of Sheriff of Deputy’s Action Inferred. — There being no rules or regulations of a sheriff’s office attempting to limit a deputy’s authority to make arrests without warrant, but it being the custom or habit of deputies to act without warrant on a telephone message from another sheriff to make an arrest, the law would, if necessary to hold the sheriff responsible for such an act of his deputy, infer knowledge of the sheriff that this would be done.</p> <p>12. Trial — Limited Purpose of Testimony Sufficiently Explained by Court’s Statement. — From the statement .of the court, on refusing to strike plaintiff’s testimony that her husband was with Uncle Sam’s service in France, that the service in which he was engaged was immaterial in determining whether anything was due plaintiff, the jury must have understood the limited purpose of the testimony to be the explaining of the absence from the trial of plaintiff’s husband, which she had a right to do, it being in evidence that she was "married, so that defendant was not prejudiced thereby.</p>

of the Superior Court of the County of Pima. Samuel L. Pattee, Judge. Order appealed from vacated and set aside for want of jurisdiction to enter it. STATEMENT OF FACTS. This case was carried on in the lower court as a probate proceeding, and arose ont of a dispute over the ownership and division of certain moneys realized out of the Minnie mining claim, situate in Pima connty, Arizona.

Alfred C. Lockwood, Judge. STATEMENT OF FACTS. The plaintiff, Francisco Hagihara, brought this action against the defendant, McArthur Brothers Mercantile Company, a corporation, to recover damages for the alleged conversion of an automobile. From a judgment, in favor of the plaintiff, in the sum of eight hundred and fifty dollars, and sixteen dollars and twenty cents costs, the defendant prosecutes this appeal.

<p>1. Fraud — Partnership—Remedies of Defrauded Party on Dissolution. — When two or more members of which a firm is composed settle their partnership affairs and dissolve the partnership, if one of the partners is defrauded in the settlement, he may either rescind the settlement or bring an action on the case for deceit.</p> <p>2. Partnership — Compromise and Settlement — One Rescinding Settlement must Act Promptly and Restore What He has Received. — If a partner is defrauded in a settlement on dissolution and elects to rescind he must do so promptly upon discovery of the fraud and restore whatever he has received under the settlement, and when this is done the parties are restored to their former rights and made subject to their former liabilities, and the defrauded party may bring an equitable action for dissolution and an accounting.</p> <p>3. Fraud — Measure of Damages to Partner -Defrauded in Settle- ’ ment on Dissolution Stated. — Where partner defrauded in settlement on dissolution sought damages for deceit, the measure of damages was the difference between the actual value of the property he received for his share and its value as represented by the other partner or partners, and the latter must make good their representations of fact as though they had given a warranty to that effeet.</p> <p>4. Trial — Court Should Instruct upon Measure of Damages.— Generally speaking, the court should instruct the jury as to the proper measure of damages, and the elements to he considered in fixing them, as the jury cannot he left to find any damages to which they think the injured party may he entitled.</p> <p>1. On the question of fraud and deceit as affecting compromise and settlement of claim, see notes in 25 L. R. A. (N. S.) 308; 16 Ann. Cas. 935.</p> <p>On effect of fraud by partner in relation to partnership real estate, see note in 28 L. R. A. 104.</p>

<p>1. Damages — Verdict for One Dollar Held Error in View of Damages Sustained. — Iu action under Employers’ Liability Law by employee who sustained a dislocation of the knee, suffered considerable pain, was incapacitated from working for about seventy days during the greater part of whieh time he was under treatment of physicians, a verdict of one dollar held error, since such verdict constitutes a finding that the employee was entitled to recover damages, and since the employee, being entitled to damages, was entitled to be fully compensated for his injuries.</p> <p>2. Appeal and Error — On Appeal Because of Insufficient Belief, Plaintiff’s Evidence Should be Viewed in His Pavor. — On plaintiff’s appeal from judgment in his favor giving him insufficient relief, the evidence will be viewed in the light most favorable to plaintiff.</p> <p>3. Damages — Injured Employee can Becover for Time Lost and for Pain, Inconvenience, and Suffering. — Employee suing for injuries under Employers’ Liability Law is entitled to recover for time lost by him as a result of the accident, and for the injury, pain, inconvenience, and suffering.</p> <p>4. Appeal and Error — Appellate Court Should Beverse Verdicts Bendered Through Prejudice, etc. — The appellate court should be careful not to usurp the functions of a jury, and should not be prompt in overruling the exercise of the discretionary power vested in the trial court in passing on motions for a new trial; but it is the duty" of such court to protect the parties from improper verdicts, rendered through misconception, prejudice, or passion.</p> <p>On constitutionality, application, and effect of Federal Employers’ Liability Act, see notes in 47 L. R. A. (N. S.) 38; 48 L. R. A. (N. S.) 987; L. R. A. 1915C, 47.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge.</p>

F. H. Lyman, Judge. STATEMENT OP PACTS. Lezin Augustus Amirault died intestate on the ninth day of December, 1918. On the twenty-third day of December, 1918, letters of administration on the estate of said deceased were duly issued to the appellant.

<p>APPEAL from a judgment of the Superior Court of the County of Pinal. O. J. Baughn, Judge.</p>

<p>APPEALofrom a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge.</p>

<p>•1. Constitutional Law — Statute Should not be Declared Unconstitutional Unless Exigencies of Case Demand It. — A court should not, unless compelled by the exigencies of the case with which it is dealing, declare a legislative act invalid, for only a clear violation of the constitutional provisions will justify sueh aetion, regardless of the seeming unwisdom, unreasonableness, or injustice of the enactment against which the attack is directed.</p> <p>2. Pleading — Defendant Entitled to Plead to Merits on Overruling of Demurrer Submitting Only Law Questions. — If it was the understanding that only law questions were to be considered on demurrer to tbe complaint, the court on overruling demurrer should have permitted defendant to file an amended answer pleading to the merits, as a matter of right.</p> <p>3. Pleading — Defendants Should be Permitted to Plead to Merits on Overruling of Demurrer, Where Plaintiff is not Injured.— Under Civil Code of 1913, paragraph 422, the court, on overruling demurrer, should in the exercise of discretion have permitted defendants to file an amended answer, pleading to the merits, where plaintiff could not have been injured thereby, in view of temporary restraining order protecting their interests, and where proposed amendment raised the main issue involved in the case.</p> <p>4. Pleading — That Answer Contained Only Demurrers and a Motion to Dismiss Did not Prove Defendants’ Intention not to Answer to Merits. — In view of Civil Code of 1913, paragraph 422, the mere fact that defendants’ answer contained only demurrers and a motion to dismiss did not justify the conclusión that it was their intention not to answer to the merits in case the law questions raised should be decided against them, notwithstanding paragraph 467.</p> <p>5. Injunction — Equity has Jurisdiction of Injunction Proceeding. An injunction proceeding is one of equitable jurisdiction.</p> <p>6. Pleading — Answer on Merits Properly Deferred Until Overruling of Demurrer. — In view of Civil Oocle of 1913, paragraphs 1470; 1479, it was proper for defendant, in a suit for an injunction, to demur to the complaint, and not answer on the merits until after the demurrer has been overruled.</p>

J. E. Jones, Judge. STATEMENT OE FACTS. Herr sued Kennedy on account for hay sold and delivered, alleging: “That during the month of December, 1918, at the request of the defendant, plaintiff sold and delivered to the dgfendant (in that county) 45,155 pounds, making 22 58/100 tons of baled hay, of the reasonable value and agreed price of $677.32. That the defendant promised and agreed to pay the said price and value therefor.

<p>1. Mines and Minerals — Complaint in Action to Prevent Trespass Held not Demurrable. — An action to enjoin alleged .trespassers from extracting orb from lode mining claims was not an adverse suit, and the complaint was not vulnerable to demurrer on the ground that it failed to detail the acts of location.</p> <p>2. Mines and Minerals — Location Filed After Time Fixed by Statute not Invalid. — Failure to file location notices for record within the time fixed by Civil Code, paragraph 4039, does not Tender the locations invalid, except as to adverse rights acquired: before the filing.</p> <p>3. Appeal and Error — Finding That Jurors Did not Separate Binding on Appeal. — A finding by the trial court that jurors did not separate when they were taken to view certain premises, based on conflicting evidence,. is binding on appeal.</p> <p>4. Pleading — Not Necessary to Prove Thing Admitted. — It is not necessary for plaintiff to prove a thing or fact admitted in the answer.</p> <p>5. Mines and Minerals — Relocation by Relative After Failure to Do Assessment Work Valid, — A relocation of a mining claim by a stepson of the original locator who had failed to do annual assessment work was ' valid, and it could not be assumed, from the mere fact that the stepson subsequently, and after he had perfected the location, transferred the title to the original locator for a nominal consideration, that original locator procured the relocation to avoid doing the annual assessment work.</p> <p>6. Mines and Minerals — Question of Qualification of Locator not to be Raised in Actions Between Private Individuals. — The question of qualification of the locator of a mining claim, so far as the validity thereof is affected by his alienage, is one which cannot be raised or determined in actions between private individuals wherein the United States is not made a party.</p>

<p>1. Indictment and Information — Information for Statutory Bape Held not Demurrable for Including More Than One Offense. An information alleging that defendants willfully made an assault on. prosecutrix and administered intoxicating liquors which rendered her incapable of resistance and by threats of bodily barm accomplished with her an act of sexual intercourse, the said prosecutrix being under eighteen years of age, held not demurrable under Penal Code of 1913, section 938, though three of the six different instances of sexual intercourse made rape by section. 231 of the Code, are covered by the information, and the information will be construed as charging statutory rape accomplished by the means alleged, since information may charge in a single count the commission of the offense in any or by conjunctive allegations, in all of the enumerated and not inconsistent ways.</p> <p>2. Bape — Testimony as to Complaint Made by Prosecutrix Held Proper. — In prosecution for statutory rape, testimony of witness that prosecutrix made complaint to him, and that the names of three of the assaulting parties were told him by prosecutrix and he guessed the name of the fourth from description given, held not objectionable where court sustained objection to term “as; saulting parties” and struck out reference to fourth party whoso name was not given.</p> <p>3. .Bape — Witnesses—Specific Acts of Unchastity of Prosecutrix not Admissible. — In prosecution for statutory rape, evidence of specific acts of similar unchaste conduct of prosecutrix with men other than accused, or that she formerly lived in a house of prostitution, is inadmissible to show consent or as bearing on credibility of her testimony.</p> <p>4. Criminal Law — General Offer of Testimony Held not Sustainable on Appeal, on Specific Ground. — In prosecution for statutory rape, exclusion of general offer of testimony that prosecutrix lived in a house of prostitution as inadmissible to prove consent or impeach her credibility cannot be urged as error on ground first made on appeal that testimony was admissible to rebut unlawful conspiracy alleged.</p> <p>5. Criminal Law — General Offer of Testimony Insufficient if Inadmissible on Any Ground. — Where an offer is made to prove several things grouped together and the court refuses to hear the proof, the ruling will be sustained if the proof of any one of the things was inadmissible.</p> <p>6. Criminal Law — Whether Improper Argument Influenced Verdict must be Left to Discretion of Trial Court. — Ordinarily question whether argument of prosecuting officer is so inflammatory and violent as to have influenced the verdict must be left to sound discretion of court on motion for a new trial.</p> <p>7. Criminal Law — Improper Argument to be Eeversible Error must be Prejudicial.. — Courts of last resort will interfere by granting a new trial only in a case where the prosecutor has clearly departed from the evidence and line of legitimate» argument to the evident prejudice of the defendant.</p> <p>8. Criminal Law — Conviction Sustained by Evidence Conclusive.— Where, in a prosecution for statutory rape, the testimony of prose-' eutrix that accused had intercourse with her was not contradicted and it was clearly shown she was under age of consent, appellate court cannot interfere with conviction.</p> <p>9. Criminal Law — No Reversal for Severity of Sentence. — On appeal from conviction of statutory rape, the court is not authorized to reverse for severity of sentence.</p>

John J. Sweeney, Judge. STATEMENT OP PACTS. Appellee, administrator, as plaintiff below, brought suit against appellant, defendant below, charging the latter with acts of negligence that resulted in the death of Harry A. Dickson, his intestate, to the damage of the estate.

<p>1. False Imprisonment — Unfairness or Injustice of Conviction is Immaterial. — In. an action for false imprisonment in connection with plaintiff’s arrest for vagrancy, it is immaterial how unfair or unjust plaintiff’s conviction was, or whether it was supported by evidence if there was a conviction; his remedy, if dissatisfied, being by appeal.</p> <p>2. False Imprisonment — Conviction Issue to be Submitted to Jury. In an action for false imprisonment in connection with plaintiff’s arrest for vagrancy, where there was a dispute as to whether any formal complaint was made and whether there was in fact a trial and conviction, such issue of fact should have been submitted to the jury.</p> <p>1. Plea of guilty as affecting action for illegal arrest, false imprisonment, or malicious prosecution, is diseussed in a note in 20 L. R. A. (N. S.) 295.</p> <p>3. False Imprisonment — Complaint. Essential to Conviction for Vagrancy. — If no formal complaint was actually made against plaintiff on his arrest for vagrancy, the magistrate’s court acquired no jurisdiction to try - or convict him.</p> <p>Í. False Imprisonment — Instruction on Issue of Conviction Held Improperly Refused. — In an action for false imprisonment in connection with plaintiff’s arrest for vagrancy, where plaintiff claimed that he was released without any complaint being made, while defendant and the magistrate testified that a complaint was made, and plaintiff was tried and convicted, but sentence was suspended, an instruction requested by defendant that, if such was the case, plaintiff could not recover, should have been given, and its refusal was error, where the court gave no instruction bearing on the effect of the conviction.</p> <p>5. Evidence — Plaintiff, Suing for False Imprisonment, Could ■Show That There was No Complaint, Trial, or Conviction, Notwithstanding Record. — In an action for false imprisonment in connection with plaintiff’s arrest for vagrancy, though the record of the police magistrate showed a complaint, trial, and conviction, plaintiff could prove that there was no complaint, trial, or conviction, such evidence not contradicting or impeaching the record, but showing that the facts upon which it purported to be founded were nonexistent.</p> <p>i</p>

<p>1. Death — No Eight op Action at Common Law. — Under the common law there was no right of action for damages for wrongful death.</p> <p>2. Death — Statute Creates New Action.- — Civil Code of 1913, paragraphs 3372-3376, do not provide for the survival of the right of action for injuries suffered by deceased, but create a new action for the wrongful death.</p> <p>3. Wills — Testamentary Disposition cannot be Made op Damages Arising prom Death. — The right of action for damages for death provided for under Civil Code of 1913, paragraphs 3372-3376, has no existence until after death, and the person wrongfully killed cannot dispose of the same by will, under Civil Code of 1913, paragraph 1205.</p> <p>4. Wills — Testatok Did not Intend to Dispose of Damages foe His Wrongful Death. — A will, “I give and bequeath to my niece, E., all my real estate, and personal estate of whatsoever kind I may die seized to have and hold the same absolutely as her own forever which personal estate includes all stocks or certificates of interests in, any and all corporations, and all Thrift Stamps which I may have,” held not intended to give to E. damages that might accrue to the estate of testator by reason of his wrongful death,</p>

John J. Sweeney, Judge. Judgment reversed as to appellant Kansas City Structural Steel Company and action dismissed. As to appellant Verde Tunnel & Smelter Railway Company, judgment ordered for appellee, conditioned on remittitur; otherwise judgment reversed and new trial ordered. STATEMENT OE EACTS.

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. E. C. Stanford, Judge.</p>

<p>APPEAL from a judgment of tke Superior Court of tke County of Maricopa. R. C. Stanford, Judge.</p>

<p>Appeal and Error — Dismissed When Eecord is not Authenticated. Where the record on the second appeal of a case contained a number of papers not certified by the clerk nor approved by the trial judge, and so-called transcript of record is not certified or approved, and, even if such omissions could be overlooked, did not show whether the ease was retried upon the same pleadings as in the first trial, or whether different issues were formed and tried, the appeal must be dismissed.</p>

<p>District and Prosecuting Attorneys — Assistant County Attorney not Entitled to Compensation Where not Fixed by Supervisors Prior to Services Rendered. — One appointed assistant in the office of county attorney under Session Laws of 1919, chapter ’162, Senate Bill No. 45, is not entitled to any compensation where the supervisors did not fix his salary before the services were rendered, however meritorious or beneficial to the county such services may be, notwithstanding Civil Code of 1913, paragraph 2391, clause 11, and paragraph 2418, clause 15.</p>

<p>1. Larceny — Evidence Held to Make Question por Jury and Support Conviction. — On a trial for larceny of United States bonds, evidence held to make a question for the jury and support a conviction.</p> <p>2. Larceny — Possession op Property Recently Stolen Authorizes Inference op Participation in Theft. — The possession of property recently stolen is a fact from which the jury may infer that the possessor was concerned in the theft.</p> <p>3. Witnesses — Character Witnesses may be Cross-examined as to Knowledge of Accusations Against Party. — A witness testifying to a party’s good reputation may be properly asked on cross-examination whether he has ever heard that such party has been accused of doing acts wholly inconsistent with the character attributed to him by the witness.</p> <p>2. On the question as to whether possession of recently stolen property is evidence of burglary or larceny, see notes in 12 L. R. A. (N. S.) 199; 10 Ann. Cas. 1089; 19 Ann. Cas. 1281.</p> <p>4. Criminal Law — County Attorney Assumed to Act in Good Faith in Cross-examination of Character Witnesses. — Where on cross-examination of witnesses testifying to defendant’s good reputation the county attorney asked whether they had heard that he was discharged by different parties for dishonesty and irregularities, and all of such witnesses denied any knowledge of such faet, it must be assumed on appeal that the county attorney acted in good faith, believing that the answers would indicate a knowledge of the existence of the rumors.</p> <p>5. Criminal Law — Objectionable Cross-examination of Character Witnesses Held not to Require Reversal. — The objectionable form of questions on cross-examination of witnesses testifying to defendant’s good reputation concerning his discharge by different parties for dishonesty or irregularities held not to justify a reversal, especially in view of the fact that the answers were favorable to defendant.</p>

<p>1. Homicide — Court Should Define Every Degree of Which Accused can be Convicted. — In a prosecution for homicide, the court should define for the jury every degree of homicide of which the accused can be convicted under the evidence.</p> <p>2. Homicide — Evidence Held to Warrant Instruction on Manslaughter.- — In a prosecution for manslaughter, where the evidence for the state showed murder and that for the defense showed self-defense, but the jury, if it believed part of the testimony for the state and part of that for the defense, could find that the deceased and defendant engaged, while drunk, in a fight during which defendant killed deceased, an instruction on manslaughter was proper.</p> <p>3. Criminal Law — Instruction on Plight must Submit Explanation if Any. — In a prosecution for homicide, an instruction that the jury can consider the flight of accused as a circumstance should also submit the effect of an explanation of the flight, if any is given in the evidence.</p> <p>3. On flight as creating presumption of guilt, see note in 39 L. E. A. (N. S.) 58.</p> <p>4. Criminal Law — Omission of Explanation Accused was Scared from Instruction on Flight Held not Prejudicial. — In a prosecution for homicide, where the only explanation defendant gave for his flight was that he was scared, with no showing of any reason to be scared except fear of the consequences of his act, his explanation would tend to add to the weight of the evidence of the flight, and not to lessen it, so that the omission of reference to such explanation from the instruction given on the effect of flight was not prejudicial to him.</p> <p>5. Criminal Law — Instruction on Flight Held Comment on Weight of Evidence. — In an instruction on flight, the statement that it tended in some degree to prove consciousness of guilt and is entitled to more or less weight went further than was proper, since the instruction should state merely that flight was a circumstance to be considered with other evidence in determining guilt, and given such weight as the jury considered it entitled to.</p> <p>6. Criminal Law — Error in Instruction on Flight Held not to Require Reversal. — In an instruction on flight, erroneous statements that it tends in some degree to show consciousness of guilt and is entitled to more or less weight, in view of the latitude thereby allowed to the jury, is too slight an error to require a reversal of a conviction.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. P. H. Lyman, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge.</p>

<p>1. Trial — Verdict not Directed Unless There is Total Lack of Evidence, or It Overwhelmingly Preponderates One Way.— As the jury is the judge of the weight of the evidence, a verdict can be directed only where there is a total lack of evidence, or where the evidence so greatly preponderates one way that there can be no question as to what the verdict shonld be.</p> <p>2. Injunction — In Action on Injunction Bond, Evidence of Damage Held Sufficient for the Jury. — In an action on injunction and supersedeas bonds by means of which plaintiff was restrained from disposing of corporate stock adjudged to belong to him, evidence held sufficient to carry to the jury the question of damage by reason of depreciation in the value of the stock during the proceedings, etc.</p> <p>3. Evidence — Value of Corpor'ate Stock may be Established by Proof of Assets and Liabilities. — While, in the absence of any other evidence of value, the par value is presumed to be the value in case of corporate stock which had no market value, it was proper to establish its actual value by proof of the assets and liabilities of the corporation.</p> <p>4. Injunction — Recovery on Bond in Suit to Restrain Transfer of Stock not Defeated, Because of Attachment of Stock.— Where, by means of an injunction and supersedeas plaintiff was restrained from disposing of corporate stock, recovery on the injunction and supersedeas bonds will not be defeated because during that period an attachment against the stock was in existence, for the attachment being for only a small amount, it might have been dissolved by payment, or the stoek might have been sold subject thereto, or plaintiff might have filed bond and freed the stoek from liability.</p> <p>5. Interest — Interest can be Recovered on Injunction Bond Only from Date of Complaint. — Interest on an injunction bond can only be recovered from the date that the complaint therefor is filed,</p>

<p>1. Criminal Law — Beview had on the Becord, Although No Brief Filed nor Errors Assigned. — Although a case was submitted for decision on the record, and no counsel appeared for defendant, and no brief was filed, nor errors assigned, the Supreme Court must, under Penal Code of 1913, section 1171, review all decisions, opinions, orders, charges, rulings, actions, and proceedings appearing of record, and grant a new trial to defendant, if any fundamental error appears.</p> <p>2. Homicide — 'Evidence Held Sufficient to Identify the Deceased. — In a prosecution for murder, evidence held to mate absolute and certain the identity of the deceased. u</p> <p>3. Homicide — Evidence Held to Sustain Verdict of First Degree Murder. — In a prosecution for murder, circumstantial evidence held to warrant the jury’s verdict of murder in the first degree.</p>

<p>1, Municipal Corporations — City Liable for Improperly Constructed Drain Diverting Water from Natural Stream. — A city was liable for damage to property caused by water from defectively constructed drain, constructed by city to divert water of a natural stream; the city in such case being guilty of. a positive act of wrongdoing, and the defense that it was acting in the performance of a public duty being therefore not available.</p> <p>1. Liability of municipality for defective sewers or sewerage system, notes, 29 Am. St. Rep. 737; 14 Ann. Cas. 174.</p> <p>Liability of municipality for overflow due to diverting stream into new channel, note, 12 A. L. R. 187.</p> <p>2. Waters and Watercourses — Bavine • or Wash With Well-defined Channel is “Natural Stream” or “Watercourse.” — A ravine or wash is a “natural stream” or “watercourse” within the law, where the rains or snows falling on the adjacent hills ran down the ravine or wash in a well-defined channel at irregular intervals.</p> <p>3. Pleading — Complaint Alleging Inadequacy of Drain “or” Permitting Bubbish, etc., to Accumulate in Drain, Held not Demurrable by Béason of Alternative Allegations. — Owner’s complaint against city for damage to goods from water resulting from inadequacy of drain “or” permitting rubbish, etc., to accumulate in the drain, held, not demurrable as being in the alternative; it being apparent that the word “or” was not used in the alternative sense.</p> <p>4. Appeal and Error — No Beversal fob Error in Pleading not Affecting Substantial Bights. — In view of Civil Code of 1913, paragraph 423, judgment will not be reversed because of the use of the word “or” .in the complaint, where it is apparent therefrom that the allegations were not intended to be in the alternative; such error, if any, not affecting the substantial rights of the parties.</p>

<p>1. Limitation of Actions — Where Defendant Testified That the Account Stated was Correct and He Would Pay It, He Waived the Statute He had Pleaded.' — Where the defendant pleaded the statute of limitations, Civil Code of 1913, paragraph 711, to an account stated, and on trial, while testifying, admitted that the account was presented to him about the time it was due, that it was correct, and that he had said that he would pay it, he explicitly waived such defense by his testimony, in which he also stated that he did not plead the statute to such stated account.</p> <p>2. Limitation of Actions — Whether Plea was Withdrawn and Abandoned by Defendant’s Testimony was a Court Question.— Whether a plea of limitation was withdrawn and abandoned by defendant in his testimony was a question of law for the court.</p> <p>3. Appeal and Error — Instruction Placing too Great a Burden on Plaintiff-Appellee Held not Available to Defendant as Error. — In an action involving an account stated, where defendant pleaded statute of limitations and abandoned it by his testimony, and the court instructed that, if the jury believed the parties had agreed that such account stated should become due and payable only at such time as appellant should make deal concerning his property, the statute of limitations would not apply, and account could be recovered, provided it found the deal had been consummated, implying that, if it did not believe such to be the agreement, the statute would apply, placed an extra burden on the plaintiff-appellee, but is not available to defendant-appellant as error.</p> <p>4. Limitation of Actions — Right to Sue on Contract to Pay for Services on Sale of Property Accrues on Sale. — Where, under agreement of the parties, no part of plaintiff’s salary became due and payable until sale of defendant’s property, the statute of limitations did not begin to run until the property was sold.</p> <p>5. Limitation of Actions — No Suspension of Statute as to Items of Account for Salary, When Month’s Salary Due at Close of Each Month. — The rule that, when the statute of limitations has once attached to any item of an account, it will continue to run, and will not be suspended by any subsequent disability, applies where under tbe contract of employment each month’s salary becomes due and payable at the close of the month.</p> <p>1. Limitation of action as applied to account stated, note, 14 A. L. R. 240.</p> <p>6. Master and Servant — Evidence Held to Sustain Recovery oe Salary. — In action to recover salary under an agreement that it should be paid upon defendant’s sale of certain property, evidence held sufficient to support the jury’s finding that the defendant had disposed of such property, realizing therefrom more than sufficient to settle plaintiff’s claim.</p>

<p>APPEAL from a judgment of the Superior. Court of the County of Maricopa. F. H. Lyman, Judge.</p>

<p>1. Chattel Mortgages — Mortgage Held to Set Out Place oe Payment. — Chattel mortgage, giving tbe residence of the mortgagor and mortgagee as particular county, and describing the mortgaged property as cotton to be grown on land in such county, acknowledged and verified before a notary publie of such county and placed of record with the county recorder of such county, held valid under Civil Code of 1913, paragraph 4124, requiring mortgage to specify place of payment of mortgage debt; it being apparent from the mortgage that the debt was payable in such county.</p> <p>2. Chattel Mortgages — Statute Requiring Mortgage to Set Out Certain Pacts Construed. — Civil Code of 1913, paragraph 4124, making a chattel mortgage invalid except as between the parties “unless the residence of the mortgagor and mortgagee, the sum to be secured, the rate of interest to be paid, when and where payable, shall be set out in the mortgage,” does not require such facts to be expressly stated; it being sufficient if the facts can be ascertained from, the language of the mortgage as a whole.</p> <p>3. Records — Instrument may Reeer to Other Papers oe Record.— Por the purpose of notice, a recorded instrument may refer to other papers of record and in such case will be treated and considered as having set out the contents of such other papers.</p> <p>4. Evidence — Parties to Recorded Instrument Presumed to have Been oe Legal Age and Sound Mind. — It will be presumed that the parties to recorded instrument were of legal age and of sound mind.</p> <p>5. Chattel Mortgages — Presumed Payable at Payee’s Residence or v Place oe Business in Absence oe Contrary Statement. — When the residence of the mortgagor and mortgagee and the payer and payee of the notes secured is in the same county, it will be presumed, in the absence of a statement in the mortgage or notes as to the place of payment, that the notes are payable at the residence, office, or place of business of the payee.</p> <p>6. Chattel Mortgages — Construed as Valid, if Statute Substantially Complied With. — Chattel mortgages will be sustained where there has been an honest and substantial compliance with the statute.</p>

<p>(ON PETITION FOR REHEARING.)</p> <p>1. Criminal Law — Court cannot Consider Newly Discovered Evidence not Contained in Record on Appeal. — The Supreme Court cannot consider newly discovered evidence not contained in the record on appeal, and grant a new trial thereon, as it is an appellate court, and not a trial court.</p> <p>2. Criminal Law — No Error Because Testimony Tended to Show Other Oppense, Where No Attempt to Prove It. — Where the . state, on a trial for murder, made no attempt to prove the commission by defendant, of any other defense, a statement volunteered by a deputy sheriff testifying for the state, that he turned defendant loose on a certain date, and testimony about defendant wearing overseas stripes and cap, and admitting that he had never been overseas, was not reversible error.</p> <p>3. Criminal Law — Dependant Could not Complain op Testimony Brought Out by His Counsel on Cross-examination.- — Where, on a trial for murder, ‘a deputy sheriff, testifying for the state, volunteered the statement that he turned defendant loose, and on cross-examination it appeared that this remark referred to defendant’s temporary custody on account of a dispute growing out of a garage bill, defendant, whose counsel brought out such matter on cross-examination, could not complain.</p> <p>4. Criminal Law — Remark op Prosecutor That Dependant’s Counsel was Admitting Matters, Because He Could not Keep Them Out, Held not Prejudicial. — Where admissions by defendant’s counsel that witnesses for the prosecution would testify in a certain way was so persistent as to make it apparent that he was endeavoring to have the ease tried on defendant’s admissions, without permitting the witnesses to relate the facts, a remark of the prosecuting attorney, in response to one by counsel for the defendant, that counsel was trying to admit the testimony before it was put in, knowing that he could not keep it out, and that he objected to any further admissions of the kind on the part of defendant, could not have injuriously affeeted defendant’s case.</p>

John J. Sweeney, Judge. STATEMENT OF FACTS. Plaintiff sned defendant for a balance of four hundred and ten dollars on purchase price of thirty-five Devon heifers and twelve cows, and sixteen dollars and sixteen cents, expenses of delivery.

<p>1. Appeal and Error — Dismissal on Plaintiff’s Motion Held Involuntary and Appealable. — Where plaintiff on day set for trial moved the dismissal of his complaint, and defendant, acquiescing in the dismissal, moved that it be made with prejudice to another action, to which plaintiff objected, and judgment was entered with prejudice to another action, dismissal was not voluntary, and plaintiff could appeal.</p> <p>2. Dismissal and Nonsuit — Eight of Plaintiff to Dismiss Absolute. — Under Civil Code, of 1913, paragraph 463, a plaintiff in an action on an open account had the absolute right to have the case dismissed without prejudice where defendant had filed no counterclaim or cross-bill and asked for no affirmative relief.</p>

E. Elmo Bollinger, Judge. STATEMENT OF FACTS. The appellant was tried and convicted of a misdemeanor before the justice of the peace for King-man precinct, in Mohave county, and was sentenced to pay a fine of fifty dollars, and in default of payment to imprisonment in the county jail for a term of twenty-five days. He was committed to the custody of the sheriff of the county to be detained until the fine was paid or such term of imprisonment was served.

<p>1. Executors and Administrators — Estate not Liable for Wrongful Acts of Administrator. — An estate is in no way responsible for wrongful acts of its administrator or executor, and cannot be held liable for a tort committed by him, nor for damages for breach of a contract entered into by him; neither are exeeutors liable as such for contracts made by them concerning the estate, bnt trover will lie against the representative personally for a conversion by him, though the property came to him with the estate of his decedent; although action may be brought against an administrator in his representative capacity for an intestate’s conversion of property in his lifetime under Civil Code of 1913, paragraph 969.</p> <p>2. 'Stipulations — Stipulation to Hold Property for Event of Decision upon Order Breached by Sale of the Property Before Decision. — 'Where the probate court ordered certain sheep listed as part of the assets of an intestate’s estate to be turned over by his administrator to a claimant, and they were turned over by tbe administrator under agreement with the claimant to hold them pending appeal from the order and to return them to the administrator in case the Supreme Court should hold their delivery to her was erroneous, and claimant sold the sheep without waiting for the Supreme Court's decision, using the purchase price as her own, and later the Supreme Court decided that the order was void because made and entered without jurisdiction, she was guilty of the conversion of the property sold as of the date of 'the sale, it being immaterial that the merits of controversy as to the aetual ownership of the sheep were not determined, as, under the stipulation, the only question to be determined was whether the original delivery was erroneous, that is, not pursuant to a valid order.</p> <p>3. Trover and Conversion — Sale a “Conversion.” — The sale of property belonging to another constitutes a “conversion” thereof.</p> <p>4. Executors and Administrators — In Action for Administrator’s Conversion, Recovery cannot be had upon Proof of Intestate’s Conversion, — In action against administrator for bis individual conversion of certain sheep, where it appeared that these sheep were not a part of the assets taken over by him as administrator, but had been sold by intestate nearly two years before her death, judgment for plaintiff could not be upheld under the provisions of Civil Code of 1913, paragraph 969, as being for a conversion by defendant’s intestate, for if plaintiff desired during the trial to shift the cause of action from the administrator’s wrong to the intestate’s, permission should have been requested at the close of the evidence to amend the complaint to conform to the proof.</p> <p>5. Limitation of Actions — Under Stipulation, Cause of Action for Converting Goods Arose at Date of Sale, and not at Decision of Appeal — Limitations not Suspended by Owner’s Ignorance of Sale. — Whore claimant of sheep took possession of them under stipulation that if the order of the probate court awarding them to her should be reversed, they should be returned, but, disregarding the stipulation, sold them before the appeal from the order was determined adversely to her, the cause of action for her conversion by such sale arose, as respects the running of limitations under Civil Code, paragraphs 710, 725, at the time of the sale, and not at the date of the Supreme Court’s decision reversing the order; and the fact that the owner of the sheep did not know of their sale did not suspend the running of the statute until discovery of the sale, there being no fraud or attempt to conceal the sale.</p>

<p>1. Bills and Notes — Presentment por Payment to Maker not Prerequisite to Bringing op Suit. — It is not a prerequisite to the bringing of a suit upon an indebtedness represented by a promissory note, nor to any other formal demand for payment whereby the holder of the note seeks to recover from the maker thereof, that the note be produced and presented for payment, presentment for payment being usually necessary to hold an indorser when the note is dishonored, but never necessary to hold the maker.</p> <p>2. Tender — Maker Could Prevent Suit by Making Tender. —■ The maker of a note could prevent suit being brought upon it by making valid tender of the indebtedness.</p> <p>3. Tender — Maker's Opper to Make Tender Did not Prevent Payee Bank prom Bringing Suit. — Where the maker of a note stated , that he would make a tender of payment if the payee bank would produce the note, there was no good tender of payment preventing the payee bank from bringing suit.</p> <p>4. Tender — Waiver op Tender by Payee cannot be Availed, op by Maker Who Did not have Money. — Waiver of tender by the payee bank cannot be availed of by the maker of a note where at the time he had not the ability to produce the money to pay.</p> <p>1. On necessity of actual presentment of commercial paper to effect its dishonor, see note in 13 L. R. A. (N. S.) 303.</p> <p>On effect of statement by indorser to holder that party primarily liable cannot pay, as waiver of presentment to latter, see note in 27 L. R. A. (N. S.) 516.</p>

<p>1. Bills and Notes — Resort to Construction of Agreement to Pat Attorney’s Fees Proper Only When Language Ambiguous. — The province of the court is to interpret au agreement by tbe maker of a note to pay attorney’s fees according to its plain terms, and Tesort may be had to construction only when the language employed is ambiguous.</p> <p>2. Bills and Notes — Maker’s Agreement to Pay Attorney’s Fees Did not Require as Condition That Suit be Brought.' — A note providing that if it should not be paid punctually, aud au attorney was employed, tbe maker and indorsers agreed to pay a reasonable sum as attorney’s fees, further providing that the attorney’s fees were to be fixed by the court, did not require that suit be brought as a prerequisite to the maker’s liability for an attorney’s fee.</p> <p>2. On validity of stipulation in bill or note for payment of attorneys’ fees, see notes in 55 Am. St. Rep. 438; Ann. Cas. 1917D, 365, 375, 378; L. R. A. 1915B, 928.</p>

<p>1. Corporations — “Local Agent” Within Statutes Relating to Service of Process is One Who Represents Corporation in Promotion of Its Business. — A “local agent” within Civil Code of 1913, paragraph 442, authorizing service of process on the “local agent” of a corporation, and Revised Statutes of Texas of 1895, article 1223, providing for service upon the “local agent” of a foreign corporation, is a person representing the corporation in the promotion of the business for which it was incorporated.</p> <p>2. Insurance — Subagent Held a “Local Agent” Within Statutes Providing for Service upon Local Agents. — A subagent appointed by a general agent of an insurance company to solicit insurance held a “local agent” within Civil Gode of 1913, paragraph 442, providing for service upon “local agent” of a .corporation, and Revised Statutes of 1895, article 1223, providing for service of citation upon “local agent” of a foreign corporation.</p> <p>3. Judges' — Superior Court Judge Authorized to Call in Another Judge Without Being Disqualified. — Under Constitution, article 6, section 7, providing that a judge of a superior court may si# in other county at the request of the judge of the superior court thereof, it was not necessary that the regular judge of a county should have been disqualified or incapable of serving for calling in an outside judge, notwithstanding Civil Code of 1913, paragraph 503, authorizing one judge to call in another when, for any reason, he is disqualified from trying the case, since the statute could not be a limitation upon the power given the judge by the Constitution.</p> <p>4. Appeal and Error — Judge of Superior Court of Other County Presumed to have Been Regularly Assigned. — On appeal from a judgment by a superior court judge of a county other than that of the place of the trial, it will be presumed in favor of the regular procedure of the court in the absence of objections to such judge shown by the record and, in absence of a showing to the contrary, that the case had been regularly assigned to such judge by the regular judge of the superior court of such county.</p> <p>1. Wiho is “agent” within statute providing for service of process on foreign corporation, notes, 19 Ann. Cas. 200; Ann. Cas. 1914D, 985.</p> <p>5. Judgment — Setting Aside of Default Discretionary With Trial Court. — The matter of letting aside a default is always discretionary with the trial court.</p> <p>6. Judgment — Refusal to Set Aside Default Held not Abuse of Discretion. — Where the complaint and summons were served on the agent of the defendant corporation on June 13th, and default was taken against the corporation on July 26th, and where the answer in the case was not mailed until July 26th, as the result of defendant’s counsel being absent from his office during the month of July, prior to the twenty-fifth day thereof, refusal to set aside the default held not an abuse of discretion.</p>

Andrew S. Gibbons, Judge. STATEMENT OE PACTS. The Pabst Brewing Company sued the Arizona Mercantile Company, alleging it to be a partnership consisting of Sawyer, Olney, and Wolpe. The Mercantile Company and Wolpe defaulted.

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. Andrew S. Gibbons, Judge.</p>

W. A. 0’Connor, Judge. STATEMENT OF FACTS. An unusually full statement of facts is essential to an understanding of this case. They are substantially as follows: On August 6,1919, Henry Cohen sent by mail, from his place of residence, Culiacan, Mexico, to the First National Bant of Nogales, situated at Nogales, Arizona, a check on said bank for $3,567.50, payable to his order and drawn by Octavo Gaxiola.

<p>1. Bills and Notes — Any Defense Against Payee Available in Action by Bona Pide Purchaser of Non-negotiable Instrument.— Any defense the maker of a non-negotiable instrument may have to an action brought by the payee will avail in an action by the assignee of the payee, or any subsequent holder, and it makes no difference that the plaintiff is a bona fide purchaser for value before maturity.</p> <p>2. Bills and Notes — When Payment of Note is “Contingent” Event. — If payment of a note is something that is certain to happen, as opposed to something that may or may not occur, it is not a contingency within the meaning of Civil Code, of 1913, paragraph 4149, subdivision 4, providing that an instrument payable upon a contingency is not negotiable.</p> <p>3. Bills and Notes — Promissory Note Becoming Due at Option of Holder on Default in Payment of Interest Negotiable. — A promissory note otherwise negotiable is not rendered non-negotiable because of uncertainty as to time of payment by a stipulation that tbe principal and interest may become due and collectable at the option of the holder upon default in the payment of interest, under Civil Code of 1913, paragraph 4146, and paragraph 4149, subsection 3.</p> <p>3. On what is a negotiable note, see note in Ann Cas. 1912D, 4. Negotiability as affected by provision in relation to interest or discount, note, 2 A. L. B. 139.</p> <p>4. Courts — Opinions op Foreign Courts Construing Negotiable Instruments Law to be Followed. — The construction placed upon the uniform negotiable instruments law by courts of the states which have adopted it should be followed unless clearly erroneous.</p>

Alfred C. Lockwood, Judge. STATEMENT OP PACTS. The defendant has appealed from a judgment of the superior court of Cochise county, whereby he was convicted of the offense of burglary in the first degree, and pursuant to which he was sentenced to the state prison at Florence for an indeterminate period of not less than five nor more than fifteen years.

<p>1. Fraud — Whether Statement is Opinion is for Jury. — As a general proposition, the expression of an opinion which is understood to be only an opinion does not render one liable for fraud; but, where it is impossible to determine as a matter of law whether a statement is a representation of a fact .which the defendant intended should be understood as true of his own knowledge or an expression of opinion, the question is one for the jury.</p> <p>2. Appeal and Error — Findings on Conflicting Evidence Conclusive. — Findings of a jury based on conflicting evidence are conclusive upon the Supreme Court on appeal.</p> <p>3. Appeal and Error — Scope of Review of Findings That Statements Constituted Fraudulent Representations of Fact. — The Supreme Court on appeal from a judgment involving finding that certain statements were fraudulent representations of fact, and not mere opinions, can only determine as to whether the statements were such that one might reasonably infer from them, taking into consideration all the circumstances surrounding their utterance, that it was intended by the one who used them that they should carry to the persons to whom they were spoken the weight of spoken facts, and not be regarded merely as the expression of opinion.</p> <p>4. Release — Statement of No Cause of Action may Constitute Fraud Vitiating Release. — If employer of plaintiff’s son represented to plaintiff, in order to prevail on him to execute a release of damages arising from the son’s death, that plaintiff had no cause of action against defendant, and that the accident was the boy’s fault, without believing such representations to be true, and plaintiff believed such representations and so believing executed the release, such representations constituted fraud and vitiated the release, if the representations were false.</p> <p>5. Release — Statement That Father of Wrongfully Killed Son Would have to Pay Funeral Admissible on Question'of Fraud in Obtaining Release. — In an action to recover damages for the death of a son, it was proper for the jury to consider a statement of defendant’s representatives, “If you do not sign that paper you will have to pay the funeral,” referring to a release, on the question of fraud in obtaining the release, which provided for payment of funeral expenses by defendant.</p> <p>6. Release — Evidence Held to Show Fraud in Obtaining Release prom Parents op Deceased Servant. — In an action under the Employers’ Liability Law to recover damages for death of a son, evidence held sufficient to sustain the finding of the jury that a release was obtained from plaintiff by fraud. .</p> <p>7. Death — Loss to Parents. — In an action under the Employers’ Liability Law to recover damages for the death of a son, parents are entitled to have the jury consider in fixing damages what the parents would probably receive from the son after reaching his majority, as well as previous to that time, and this is to be determined by consideration of the boy’s treatment of his parents, his health, his habits, his industry, and his ability and inclination to help his parents.</p> <p>8. Trial — Erroneous Instruction on Law op Case must be Followed by Jury.- — An instruction, although erroneous, is the law of the case until reversed, and should -be followed by the jury, even though in doing so a verdict which accords with its ideas of right cannot be returned.</p> <p>9. Trial — Reversible Error Where Jury Does not Follow Instruction Though Erroneous. — Where a jury in assessing damages does not follow the court’s instruction as to the measure of damages, and awards damages which would be excessive under the instruction as given, a judgment based thereon must be reversed, since the jury cannot constitute itself a judge of the law as well as the facts.</p> <p>10. Death —Three Thousand Dollars Held not Excessive por Death op Nineteen Year Old Son. — A verdict of $3,000, in addition to $800 expended by defendant under a release fraudulently obtained, was not excessive for the death of a son nineteen years of age, strong and well and industrious, who regularly gave his mother his earnings, amounting to $3 per day, for the support of the family, under the Employers’ Liability Law.</p> <p>6. On right in an action at law to attack release for fraud, see notes in 13 Ann. Cas. 756, 20 L. R. A. (N. S.) 915.</p> <p>10. On excessivq or inadequate damages for personal injuries resulting in death, see notes in 18 Ann. Cas. 1209; Ann. Cas. 1915C, 449; L. R. A. 19150, 820.</p>

<p>1. Dismissal and Nonsuit — Appellant Waived Error in Reinstatement of Case by Appearing, Demurring and Entering on Trial. — Under Civil Code of 1913, paragraph 600, empowering the court to relieve against a judgment, order or proceeding within six months, where a eause was dismissed because plaintiff was not present when it was called, and the court reinstated it six months and eleven days thereafter, defendant, by not objecting, but appearing and demurring and agreeing to setting for trial, and by entering on trial, waived the error. .</p> <p>2. Witnesses — Where Hospital Record Did not Refresh Witness Physician’s Memory, Testimony Therefrom was Properly Excluded. — In an action for personal injuries where a physician did not remember the case or what operation was performed upon the plaintiff, and the hospital record did not refresh his memory and the record card was not properly authenticated and he did not write it or identify the writer or handwriting and he had not looked it over the time it was made to see if it was correct, it was proper to sustain an objection to the witness’ testimony.</p> <p>3. Damages — Six Thousand Dollars for Permanent Injury to Bight Hand and Arm and Severing of Tendons Held not Excessive. — Where plaintiff was right-handed, and the injury consisted of the severing of the nerves and tendons extending from the fingers along his right arm, and at the time of the trial the tendons had not knitted together, the fingers had dropped and had limited motion, the arm and hand were greatly weakened, and the injury permanent, and he lost seven or eight months’ time before he could work again and suffered considerable pain, a verdict for $6,000 damages was not excessive.</p> <p>4. Damages — Defense That Servant’s Damages Would have Been Much Less but ijor Venereal Disease not Available. — In a servant’s action for personal injuries, an objection that plaintiff was afflicted with a venereal disease which prevented or retarded the healing processes, and but for such disease the injury would not have been so serious and his damage much lessened, is not available.</p> <p>3. On exeessiveness of verdicts for personal injuries other than death, see comprehensive notes in 16 Ann. Cas. 8; Ann. Cas. 1913A, 1361; Ann. Cas. 1915D, 488; Ann. Cas. 19160, 916; L. B. A. 1915E, 30.</p>

<p>1. Habeas CorptU — Concurrent Power of Superior Court Does not Authorize Issuance to Review Judgment of Supreme Court.— The concurrent power of the superior court to issue writs of habeas corpus does not authorize it to issue such writ to review a judgment of the Supreme Court, and proceedings in the superior court for that purpose are void for want of jurisdiction.</p> <p>2. Judgment — Supreme Court Judgment Imports Absolute Verity.— A judgment of the Supreme Court imports absolute verity, and must be regarded as free from all error, and it is conclusive upon the superior courts and judges thereof.</p> <p>3. Criminal Law — Affirmance of Judgment Settles All Questions That Might have Been Raised by Assignments of Error. — The affirmance of a judgment of conviction finally settles not only all questions raised by assignments of error, but also all questions that might have been so raised.</p> <p>4. Criminal Law — Delay in Trial Held to have Been Waived.— The delay in commencing a trial for more than sixty days after the information was filed was waived where accused raised no' question as to the delay at any time before or during the trial and took no steps toward asserting his rights to an earlier trial.</p> <p>5. Habeas Corpus — Order Denying Habeas Corpus Entered Without Jurisdiction Does not Support Appeal. — Where the superior court was without jurisdiction to grant a writ of habeas corpus because it was sought to review a decision of the Supreme Court, an order denying the writ was coram non judice and does not support an attempted appeal therefrom.</p> <p>6. Habeas Corpus — Petition must Show on Its Face That Petitioner is Entitled to Discharge. — Though the writ of habeas corpus is one of incalculable value, it should not be abused and should never be issued unless the petition therefor shows upon its face that the petitioner is entitled to be discharged.</p>

<p>1. Wills — Deed and Will Distinguished. — Deeds once executed are irrevocable unless such power is reserved in the instrument, while wills are always revocable so long as the testator lives and retains testamentary capacity, and deeds take effect by delivery and are operative and binding during the life of the grantor, while wills have no effect until the testator’s death.</p> <p>2. Deeds — Wills—Intention Governs in ■ Construing Deeds and Wills. — It is the fundamental rule in the construction of both wills and deeds to give effect to the intention of the party executing the instrument, and this is to be arrived at by the language as found by the entire writing.</p> <p>3. Deeds — Wills — Meaning Should be Given to Evert Word. — Every clause, and even every word, in a deed or will, should, when possible, have assigned to it some meaning.</p> <p>4. Evidence — Wills—Collateral Evidence Admissible Only When the Terms of the Writing are not Clear. — It is only when 'the terms of a deed or will are not clear that collateral evidence ■may be received to ascertain its intent; otherwise the intention must be gathered from the instrument itself.</p> <p>5. Wills — Deed Intended as Testamentary Disposition Invalid._ Where a testatrix in making testamentary disposition adopted the form of a deed for the purpose of evading the statute of wills, the instrument will be void because not executed as a will; but, if the grantor intended a present disposition of property, the instrument is valid.</p> <p>5. For authorities discussing the question as to when deed is deemed to be testamentary in character, see notes in 7 Ann. Cas. 790; 11 A. L. R. 23; 1 L. R. A. (N. S.) 315.</p> <p>6. Wills — In Determining Whether Instrument is Deed or Will, Its Form Should have Weight. — In determining whether an instrument was a deed or will, its form as a deed should have weight.</p> <p>7. Wills — Instrument Held Deed and not Testamentary Disposition. — An instrument whereby the grantor made a present disposition of her property in trust held a deed and not a will, though the trustee was required to maintain the grantor and to pay her debts and the expenses of her last illness, etc.</p> <p>8. Deeds- — Wills—No Livery op Seizin Required — Failure to Take Possession Does not Appect Validity. — There is no livery of seizin in Arizona, and the fact that the grantee failed to take possession does not change the instrument from a deed into a will.</p> <p>9. Trusts — Deed to Trustee Supported by Consideration. — Where a deed to a trustee provided for the maintenance of the grantor during life, etc., sueh consideration is adequate where the instrument was attacked only by the administratrix.</p> <p>10. Trusts — Conpidence Placed in Trustee Suppicient Consideration. — Where the grantor conveyed property in trust, providing that the grantee should maintain grantor during her life and at her death pay her debts and make gifts to specified persons, the confidence placed in the grantee, who was trustee, and his undertaking to execute the trust, was a sufficient consideration.</p> <p>11. Deeds — No Special Form Necessary por Delivery. — No particular form or ceremony is necessary to constitute delivery of a deed; the simplest form being by mere manual transfer of the instrument by the grantor to the grantee, with the intention of relinquishing control over it and to pass title to the property.</p> <p>12. Deeds — Evidence Held Suppicient to Establish Delivery.— Evidence held sufficient to establish delivery of a deed.</p> <p>13. Acknowledgment — Notary Held a De Facto Oppicer so That Acknowledgment was Valid. — Though a notary at the time he took an acknowledgment, which was after reappointment, had not filed with the clerk of the court the oath and bond required by Civil Code of 1913, paragraph 136, he must be deemed a de facto officer and the acknowledgment valid.</p> <p>14. Deeds — Mere Mental Weakness will not Invalidate Deed, but Grantor must be Incapable op Understanding the Instrument. — Mere mental weakness in the grantor does not invalidate a deed, and to have that effect the mental power must be so far deteriorated or destroyed that the grantor is incapable of understanding in a reasonable degree and knowing the consequences of the instrument he executes.</p> <p>15. Deeds — Sickness and Old Age Do not Amount to Incapacity.— Sickness and old age do not, in and of themselves, amount to incapacity to execute a deed.</p> <p>16. Deeds — Peculiarities op Grantor Do not Render Deed Invalid.- — Mere peculiarities or eccentricities of, the grantor do not, of themselves, make a deed invalid.</p> <p>17. Deeds — Evidence Insuppicient to Establish Grantor’s In- ' capacity. — In an action where a deed was attacked by the grantor’s administratrix, evidence held insufficient to establish the grantor’s incapacity.</p> <p>18. Deeds — Grantor’s Condition at Time op Execution is Decisive op Capacity. — The time of the execution of a deed is the material point of time to be considered on' an inquiry as to the grantor’s capacity to make it.</p> <p>19. Deeds — To Invalidate, . Undue Inpluence must have Deprived Grantor op Free Agency. — Undue influence which will justify the setting aside of an executed deed must have been of such a nature as to deprive the grantor of his free agency arid render the act more the offspring of the will of another than of the grantor’s own will, but it is not sufficient that the execution of the deed was procured by honest argument or persuasion untainted with fraud.</p> <p>20. Deeds — Evidence Insuppicient to Show That a Deed was the Result op Undue Inpluence. — Evidence held insufficient to show that a deed was the result of undue influence.</p> <p>21. Deeds — Relationship Between Brother and Sister not Fiduciary. — Where an aged woman executed a deed to her brother as trustee, the relations between the two cannot be deemed fiduciary, only the ordinary relations between brother and sister appearing; for a fiduciary relation ordinarily grows out of the relation of administrator and heir, guardian and ward, attorney and client, principal and agent.</p>

<p>1. Corporations — Stockholder Does not Represent Corporation. — ■ A stockholder, as such, does not represent the corporation, and only under exceptional circumstances may he act in its behalf.</p> <p>2. Corporations — If Stockholder Expends Money on Behalf of Corporation, His Right of Recovery Depends on the Existence of Some Contractual Relation. — If a stockholder do anything or expend money on behalf of the corporation, his right of recovery depends on the existence of some contractual relation with respect to the act or expenditure, and without some agreement on the subject, express or implied, he stands in the same position as a stranger.</p> <p>3. Corporations — Where Stockholder Assumes to Act as Agent, Corporation is Liable on Ratification of His Unauthorized Act. — A stockholder, like anyone else, may assume to act on behalf of or as agent of the corporation, and if the corporation subsequently, either expressly or by conduct, ratifies his unauthorized act, liability follows to the same extent as though authority had originally existed.</p> <p>4. Corporations — Acceptance of Benefit of Unauthorized Act Amounts to a Ratification. — Accepting the benefit of an unauthorized act of one purporting to act as agent without authority, when with knowledge of the material facts, amounts to a ratification.</p> <p>5. Corporations — Where Stockholder Compelled Restoration of Shares and Corporation Accepted, It is Liable for Expenses.— Where a stockholder, acting without authority of the corporate officers, expended money in prosecuting a proceeding before the Corporation Commission to compel the return to the company of 50,000 shares of its capital stock appropriated by the president and secretary, and the company accepted return of such shares, it is liable, ou principle of ratification, for the expenditures thus incurred by the stockholder.</p> <p>6. Corporations — Defendant Corporation Merely Denying Liability, oannot' Question Reasonableness of Shareholder’s Expenditures Sued for. — In an action by a shareholder to recover expenses incurred in compelling restoration to the corporation of shares of stock appropriated by its president and secretary, the corporation, where it merely denied liability, but did not question the amount, held precluded from questioning the reasonableness of the sums expended.</p> <p>7. Mines and Minerals — Shareholder of Company Opposing Application for Patent to Adjacent Land not Entitled to Becover Expenditures. — Where a shareholder in a corporation without authority prepared an adverse claim against an application for a patent to adjacent mineral lands, he is not entitled to recover expenditures; it appearing the corporation did not request any such service, and that it made a settlement with the adjoining owner by which the area in conflict was secured.</p> <p>8. Corporations — Shareholder Suing to Becover for Expenses in Prosecuting Action for Corporation not Entitled to Attorney’s Fees. — A shareholder, suing a corporation to recover expenses incurred in proceeding to compel restoration of shares to the corporation, etc., is not entitled to attorney’s fees in his action against the corporation; the action being purely adversary.</p>

<p>1. Animals — Instruction Submitting Liability for Cattle Lost Before Delivery to Agister Held Erroneous. — Jn an action to recover the value of cattle which plaintiff delivered to defendant to be kept by defendant and sold for plaintiff’s account, where the evidence showed that defendant received the cattle from another corporation without account or check, and it was undisputed that some of the cattle not accounted for had died or become lost before they were delivered to defendant, an instruction submitting to the jury the question whether those cattle died or were lost because of the negligence of the defendant was erroneous.</p> <p>2. New Trial — Denial on Bemittitur Held Erroneous Where Items Allowed by Jury Could not be Identified. — In an action for the value of cattle delivered to defendant to be eared for and sold on plaintiff’s account, where the eourt had submitted the issue of defendant’s liability for cattle which had died or become lost before delivery to defendant, and also the question whether defendant was negligent in. permitting the Mexican military authorities to take some of the cattle from his possession, a ruling of the trial eourt denying a new trial after plaintiff remitted the excess of the amount allowed by the jury over the amount properly allowable for the cattle taken by the military authorities, assumed that the jury found the defendant liable for those cattle, and not that it allowed plaintiff for the cattle which died before they were delivered to defendant, and was erroneous.</p>

<p>1. Divorce — Marriage in Foreign State to Evade Restrictions of State of Domicile Held not Invalid. — Where parties domiciled in Arizona went to New Mexico for the purpose of evading the restrictions provided by Civil Code 'of 1913, paragraph 3864, as amended by Laws of 1917, chapter 54, forbidding remarriage for one year after divorce, and were there married, sueh marriage was not thereby rendered invalid in Arizona, the statute not in terms or by necessary implication declaring sueh marriage void.</p> <p>2. Marriage — Marriage Valid According to Lex Loci Valid Everywhere at Common Law. — Marriage is primarily a contract and under the common-law rule is valid everywhere if entered into according to the lex loci.</p> <p>3. Marriage — Legislature may Determine What Marriages Shall be Void, Notwithstanding They are Valid in State Where Celebrated. — It is within the power of the legislature to enact what marriages shall be void within the state, notwithstanding they are valid in the state where celebrated, whether contracted between parties who were in good faith domiciled within the state where the ceremony was performed or between parties who left the state for the purpose of avoiding its statutes.</p> <p>1. Extraterritorial effect of divorce deeree or statute prohibiting remarriage after divorce, notes, 15 Ann. Cas. 758; Ann. Cas. 1918E, 1074.</p> <p>The question of law governing validity of marriage is covered in notes in 57 L. E. A. 155; 11 L. E. A. (N. S.) 1082; 17 L. E. A. (N. S.) 800; 26 L. E. A. (N. S.) 179; and 28 L. E. A. (N. S.) 753.</p>

<p>1. Railroads — Company must Run Train at Reasonable Speed and Give Crossing Signals.' — Where a railroad knew of the existence of a highway crossing, it was bound to apprehend that travelers on the highway might be there about to cross or in the act of crossing as the train approached, and it was under duty to run its trains at a reasonable rate of speed, giving reasonable signals of its approach thereto.</p> <p>2. Railroads — Company Could not Rely on Noise op Train. — Where at a railroad crossing the wind was blowing briskly away from an automobile and against an approaching train, and the air was filled with dust, tending to obscure the vision, the railroad could not rely wholly on the noise of its train as an adequate warning to the automobile, nor could the engineer reasonably assume that the driver of the automobile would see the train in time to avoid collision.</p> <p>3. Evidence — Negative Testimony That Bell not Rung or Whistle Sounded at Crossing Admissible. — In an action against a railroad for death of an automobile driver in a crossing collision, negative testimony of the witnesses for plaintiff administrator that the bell was not rung and the whistle not sounded as the train approached the crossing was admissible.</p> <p>4. Trial — Verdict not Directed on Conflicting Evidence. — A verdict will not be directed in a case where the evidence is conflicting, or where, on all the'facts and circumstances proven, there is room for fair and reasonable men to differ in their conclusions.</p> <p>5. Railroads — Proximate Cause op Crossing Accident Jury Question. — In an action against a railroad for death of an automobile driver in a crossing collision, it was for the jury to say whether the negligence of the railroad found by them was the proximate cause of the accident.</p> <p>6. Railroads — Negligence in Operating Train at Crossing Jury Question. — In an action against a railroad for death of an automobile driver in a crossing collision, whether defendant railroad was negligent in operating its train held for the jury under the evidence.</p> <p>7. Railroads — Automobile Driver’s Contributory Negligence Question of Pact Under Constitution. — Constitution, article 18, section 5, makes the defense of contributory negligence a question of fact in all cases, as an action against' a railroad for death of an automobile driver in a crossing collision, despite defendant railroad’s claim that plaintiff’s intestate did not stop, look, and listen, but drove upon the track when the train was approaching in full view and was killed.</p> <p>8. Railroads — Contributory Negligence of Automobile Driver Killed Matter of Defense. — In an action against a railroad for death of an automobile driver in a crossing collision, contributory negligence being a matter of defense, plaintiff administrator was not required to prove its absence as a part of his ease by showing that his decedent stopped to look or listen before attempting to cross the track; the law presuming decedent was in the exercise of due care until the contrary is made to appear.</p> <p>O. Railroads — No Distance for Stopping, Looking, and Listening Prescribed. — The law does not prescribe any particular distance from a railroad track at which a traveler shall stop, look, and listen.</p> <p>10. Railroads — Instruction on Crossing Signals Justified. — In an action against a railroad for the death of an automobile driver in a crossing collision where there was evidence tending to show that the highway had long been used by the publie, and that the crossing was long known and recognized by the railroad company as a public railroad crossing, an instruction was justified that it is negligence for a railroad company before crossing any traveled publie highway to omit to give warning signals.</p> <p>11. Railroads — Statutory Duty to Give Crossing Signals Extends to Company. — The duty imposed by Penal Code of 1913, section 397, that every person in charge of a locomotive engine who before crossing any traveled publie way omits to give warning signals is guilty of a misdemeanor extends to the company as well' as to the engineer.</p> <p>12. Railroads — Automobile Driver Railing to Stop, Look, and Listen not Negligent as Matter of Law. — Even though the automobile driver killed in a crossing collision with defendant Tailroad’s locomotive did not stop, look, and listen before going on the crossing, the omission did not in itself make him guilty of contributory negligence as a matter of law; the test being whether under all the circumstances he exercised ordinary care for his own safety.</p> <p>12. On care required of driver of automobile as to stopping, looking, and listening before crossing railroad track, see notes in Ann. Cas. 1913B, 682; Ann. Cas. 1915B, 678; 21 L. R. A. (N. S.) 794; 29 X>. R. A. (N. S.) 924; 46 L. R. A. (N. S.) 702.</p> <p>On failure to stop, look, and listen before crossing railroad track, as negligence, see note in 1 A. L. R. 203.</p> <p>13. Railroads — Instruction on Headlight Proper. — In an action against a railroad for death of an automobile driver in a collision at a crossing, under the circumstances, an instruction based on defendant railroad’s alleged failure to have the headlight of its engine burning at the time of the accident held proper.</p> <p>14. Railroads — Instruction on Duty op Traveler to Stop Held Proper. — An instruction that one approaching a railroad track cannot solely rely upon the fact that a whistle would be sounded or a bell rung, or that lights would be displayed, but must so approach the track that, even though signals were not given, he could stop in time to avoid danger, held all that defendant railroad was entitled to on the subject.</p> <p>15. Trial — Instruction as to Relative Weight op Negative and Positive Testimony Held Properly Repused. — In an action against a. railroad for death of an automobile driver in collision at a crossing, where there was some testimony from witnesses who were paying attention to the matter that the whistle on the locomotive was not sounded and the bell not rung, instruction requested by defendant railroad on the comparative weight and value of the positive and negative testimony as to the ringing of the bell and sounding of the whistle on the locomotive was properly refused.</p> <p>16. Railroads — Automobile Driver not Under Absolute Duty to Stop, Look, and Listen. — It cannot be affirmed as a matter of law that there is an absolute duty on the driver of an automobile to stop, look, and listen in all cases before he attempts to cross a railroad track.</p> <p>17. Railroads — Instruction on'Right to Cross Track Erroneous.— In an action for death of an automobile driver in a crossing collision, an instruction that, if deeedent was trying to cross ahead of the train, his administrator could not recover, is erroneous, and imposes on the driver the whole duty of avoiding the collision.</p>

<p>1. Landlord and Tenant — Lessor’s Notice to Lessee Held not to Prove Re-entry More Than Five Days After Default in Payment of Rent. — In lessee’s action for premature termination of lease, lessors’ letter to lessee stating that “I have terminated this lease for failure to pay rentals due,” sent more than five days after the lessee’s default in payment of rent, held insufficient, taken in connection with lessor’s answer alleging that they had “elected to terminate said lease without the necessity under the laws of Arizona of making any demand for said rentals or giving notice of their intention to terminate said lease,” to prove that lessors re-entered premises within five days after default in payment of rent in violation of Civil Code of 1913, paragraph 1552, authorizing landlord to re-enter and take possession where a tenant shall be in arrears in the payment of rent for five days after due date, since re-entry is not the same thing as notice, but is a fact independent thereof, and can take place without notice or before or after notice, and since it was apparent from the notice so sent that the re-entry had taken place prior thereto.</p> <p>2. Appeal and Error — Approved Verdict Supported by Evidence Controls on Appeal. — Where there is evidence to support jury’s finding, and the question has been presented to the presiding judge in the form of a motion for new trial and denied, the verdict controls on appeal.</p>

<p>1. New Trial — Appidavit op Juror Incompetent to Impeach Verdict. — The affidavit of a juror in a civil action cannot be received as evidence of the alleged misconduct of jury to impeach the verdict.</p> <p>2. New Trial — Pact That Juror Did not Sign Verdict Does not Permit Him to Impeach It. — The fact that a juror did not sign the verdict rendered by the jury of which he was a member does not make Mm any less a member of the jury or entitle him to impeach the verdict by an affidavit of misconduct.</p> <p>3. Trial — It is Erroneous to Instruct on Contributory Negligence not Pleaded by Defendant. — In an action by an injured employee to recover under the state Employers’ Liability Law, it is error to give an instruction on contributory negligence of the employee where that issue was not raised by defendant.</p> <p>4. Appeal and Error — Party Requesting Instruction on Issue cannot Complain That Court Instructed on That Issue. — Where defendant requested the court to give an instruction on issue of contributory negligence, he cannot on appeal complain that the court gave an instruction on that issue which was correct.</p> <p>5. Appeal and Error — Pact That Both Parties Requested Charge on Unpleaded Issue Does not Entitle Either to Assign It as Error. — Where the defendant, though he had not pleaded contributory negligence, requested a charge on that issue, the fact that plaintiff also requested a charge on the same issue does not entitle defendant to complain on appeal that the court gave a charge on contributory negligence.</p> <p>6. Pleading — Answer Held not to Admit Pacts Showing Accident Arose Out op Employment.- — In an action under the Employers’ Liability Law, an answer admitting the employment, its hazardous character, and the suffering of the injury while engaged in such employment, and that plaintiff was injured by reason of his right hand being caught in a machine, did not admit facts showing that the injury arose in the course of the employment, since the expression “being caught” could include the occurrence of the accident as a result of plaintiff’s own negligence or willful act as well as a result of his employment.</p> <p>7. Trial — Erroneous Refusal to Direct Verdict at Close of Plaintiff’s Testimony is Waived by Defendant’s Evidence. — The trial court’s error iu refusing a directed verdict for defendant at the close of plaintiff’s testimony because the plaintiff had not proved his injury arose in the course of his employment was waived by defendant thereafter proceeding with' the trial and offering evidence.</p> <p>8. Trial — On Motion to Direct Verdict at Close, Evidence of Both Parties Considered. — Where motion to direct verdict is renewed at close of all the evidence, it is the duty of court to consider evidence of both parties.</p> <p>9. Master and Servant — Servant must Negative Contributory Negligence. — Under Civil Code of 1913, paragraph 3154, authorizing recovery for injury to an employee in all easeá in which it was not caused by the negligence of the employee, a servant seeking to enforce the liability of his employer thereby created must allege and prove that the injury was not caused by his negligence.</p> <p>9. On necessity as to alleging freedom from contributory negligence, see notes in 15 Ann. Cas. 433; Ann. Cas. 1913B, 845; 33 L. R,. A. (N. S.) 1152, 1201.</p> <p>10. Evidence — Plaintiff must Prove Negative Essential to His Cause of Action. — Where the existence of a negative is essential to plaintiff’s cause of action, the burden is on him to prove such negative unless the facts rest within the knowledge of the opposite party.</p> <p>11. Master and Servant — Alleging Due Care Does not Affect Burden of Proof. — An injured servant cannot avoid the burden placed on him of proving that the accident was not caused by his own negligence by alleging, instead of the negative statement that he was not negligent, the affirmative statement that he was exercising due care.</p> <p>12. Evidence — Burden of Proof on Same Issue Never Shifts. — The burden of proof on the same issue never shifts, but always remains on the party having the affirmative of that issue to maintain.</p> <p>13. Trial — Court must Instruct on Measure of Damages, Though not Requested to Do so. — In an action for injuries to a servant, where the pleadings raised the issue of the damages sustained by plaintiff, it was error for the trial court to fail to instruct on the measure of damages, though neither party made any requests for such instruction, in view of Civil Code of 1913, paragraphs 514, 515, requiring the court to declare the law arising on the points.</p> <p>14. Trial — Statute Permitting Requests for Instructions Impliedly Requires Instructions on Issues Without Request.— Civil Code of 1913, paragraph 516, providing that either party may request such instructions as he desires, thereby permitting, but not requiring, the parties to make such requests, sustains the construction of the two preceding sections as requiring the court to instruct on all issues, even though not requested.</p> <p>15. Appeal and Error — Request is Essential to Reversal for Failure to Give Fuller Instruction After Correct Instruction.— Where the court has given a correct instruction on an issue, a party cannot complain that the jury should have been instructed on that issue with greater particularity unless he_ requested a fuller instruction.</p>

<p>1. Master and Servant — Employers’ Statutory Liability not Limited to Injuries prom Inherent Danger — “Hazardous”—“Condition.” — Under Constitution, article 18, section 7, providing for the enactment of the Employers’ Liability Law contained in Civil Code of 1913, paragraphs 3154^-3158, and its provisions making the employer liable for the death or injury of employee caused by any accident due to conditions of a hazardous occupation, the employer is liable when the injury is caused by an aceident due to conditions of tbo employment, which conditions need not be inherent in the occupation, but may arise from the manner in which the business is carried on, the word “hazardous” being defined as “exposed to; exposing to; or involving danger; risk or loss or calamity; perilous; risky”; and the word “condition” being defined as “mode or state of being; state or situation with regard to external circumstances; essential quality; property; attribute.”</p> <p>1. On constitutionality, application and effect of the federal Employers’ Liability Act, see notes in 17 Ann. Cas. 331; 4:7 L, R. A. (N, Í3.) 38; 48 L, R. A. (N. S.) 987; L. R. A, 1915C, 48.</p> <p>2. Constitutional Law — Statute Providing for Employers’ Liability Law not Self-executing. — Constitution, article 18, section 7, providing for the enactment by the legislature of an Employers’ Liability Law, held not self-executing.</p> <p>3. Master and Servant — Employers’ Liability Defined by Constitution. — The legislature, in the enactment of the Employers’ Liability Law pursuant to Constitution, article 18, section 7y providing for an Employers’ Liability Law, and defining wbat should constitute the employers’ liability thereunder, had no power to add to or take away from 'the rights so defined.</p> <p>4. Constitutional Law — Limitation’ on Legislative Power may be Express or Implied. — A limitation on the legislative power may be by direct prohibition or by implication, and when it is by implication, its restraints on tie legislature are no less binding than when expressly prohibited.</p> <p>5. Master and Servant — Injury by Hammer Plying Off Handle Actionable Under Statute. — A miner, injured while breaking rocks with a hammer, as the result of the hammer head flying oft handle, held entitled to damages under Employers’ Liability Law, making employer liable where his injury is caused by an accident due to a condition or conditions of the occupation, since the condition of the occupation involves not only the place in which the employee works, but the tools with which he works.</p> <p>6. Damages — Instruction Authorizing Damages for Medical Expenses Without Evidence to Warrant Instruction, Held Ground for Reversal. — In action for injuries to employee under the Employers’ Liability Law, the granting of an instruction, authorizing the jury to include in its verdiet past and future expenses foT medical and surgical aid, medicines, and nursing, without evidence sufficient to warrant such instruction, held reversible error.</p> <p>7. ■ Damages — Future Expenses for Medical and Surgical Treatment Recoverable. — In action for injuries to employee under Employers’ Liability Law, future expenses for medieal and surgical treatment may be recovered wlien established by legal evidence.</p> <p>6. On allowance for physician’s service in action for personal injuries without evidence of the value thereof, see notes in Ann,. Cas. 1913D, 150; 19 L. E. A. (N. S.) 920.</p>

<p>Master and Servant — Compensation Law Held Unconstitutional in Requiring Election Bepore Injury. — Workmen’s Compensation Law of 1921, section 60, requiring the employee to elect to accept compensation under the law before bis injury, violates Constitution, article 18, section 8, making it' optional with the employee to settle for sueh compensation or retain the right to sue, • and, in view of section 90 of the act, section 60 being uncon- . stitutional, the entire act is invalid.</p> <p>Right to, and effect of, election with respect to acceptance of provisions of Workmen’s Compensation Act, notes, Ann. Cas. 1915C, 308; Ann. Cas. 1918A, 700; Ann. Cas. 1918B, 715.</p> <p>Constitutionality of Workmen’s Compensation Act giving choice of remedies exclusively either .to employer or employee, note, 6 A, L. R, 1562.</p>