Volume 52 — Utah Reports

<p>1. Taxation — County Taxes — Form of Levy — General and Road Purposes. In view of Comp. Laws 1917, sections 511x22, 511x24, 511x27, as amended by Laws 1911, c. 119, authorizing expenditure of money for construction, maintenance, and repair of county roads, a separate levy for county roads, although not authorized by Comp. Laws 1907, section 2593, as amended by Laws 1915, e. Ill, is not invalid, where the total amount levied for general county purposes, plus the .road tax, did not exceed 3.5 mills, the maximum allowed for general purposes in such statute, since there is no form for mailing such tax levy established by law. (Page 3.)</p> <p>2. Statutes — Taxation—Construction. Laws relating to taxation should be strictly construed against the taxing power. (Page 5.)</p>

S. N. Hayes, Judge. Archie J. Lewis was convicted before a justice of the peace of selling intoxicating liquor and from conviction on a trial de novo before a jury, he appeals.

, Second District; Hon. N. J. Harris, Judge. Action by Herman B. Denkers against the Southern Pacific Company and -others. Judgment for plaintiff. Defendant appeals. STATEMENT OF FACTS. Plaintiff brought this action to recover damages for personal injuries which he alleges he sustained because of the negligence of the defendants. The cause was tried to a jury, who returned a verdict in favor of plaintiff.

J. D. Gall, Judge. Action by John A. Beck, Jr., against J. A. Lee. Judgment dismissing the action, both on the complaint and on defendant’s affirmative defenses. Defendant appeals.

<p>1. Evidence — -To Vary Written Contract. Testimony tending to vary terms of written contract for exchange of realty, the execution of which was admitted by both plaintiff and defendant, was erron-ously admitted. (Page 39.)</p> <p>2. Appeal and Error — Questions Decided Adversely by Verdict— Review. Questions raised on defendant’s appeal, which were determined adversely to him by verdict, are not when sustained by substantial evidence, properly before the appellate court for determination. (Page 39.)</p> <p>3. Vendor and Purchaser — Exchange op Property — Measure op Damages — Instructions. In an action for damages for breach of contract for exchange of realty, an instruction that, ‘ ‘ if you find the issues in favor of the plaintiff, then you ¿re to assess his damages in such amount as will fully compensate for any losses sustained by reason of the failure of the defendant to perform the terms of said contract,” correctly stated the law and was not subject to the objection that it did not leave it to the jury to determine whether plaintiff had sustained damages. (Page 40.)</p> <p>4. Vendor and Purchaser — Exchange oe Property — Measure op Damages' — -Instructions. In action for damages for breach of contract to exchange realty, an instruction which in effect told the jury that they might, in estimating damages, consider value "between” the dates of execution and for performance of the contract, was faulty for failure to confine question of damages to said dates. (Page 41.)</p> <p>5. Trial — Exception to Instruction Good in Paet. Where the first paragraph correctly stated the law, an exception taken to the whole instruction was insufficient and will be disregarded on appeal.1 (Page 41.)</p> <p>6. Appeal and Error — Province of Jury. In an action for damages for breach of contract to exchange property, although there was a sharp conflict in the testimony as to values of the property, it was wholly within the province of the jury to determine the ultimate fact, so long as their verdict found support in the testimony. (Page 41.)</p>

<p>1. Railroads — Duty to Pence — Cattle Guards and Wing Pences— Statutes. Under Comp. Laws 1907, section 456x, as amended by Laws 1913, c. 74, requiring a railroad to fence its right of way on both sides of the track, and to provide gates for private crossings, so constructed that they may be easily operated, a railroad is not under duty either to put in cattle guards or to construct wing fences at private farm crossings. (Page 51.)</p> <p>2. Railroads — Fencing—Repairs—Implied Agreement. Where a railroad voluntarily constructed wing fences at a private crossing on a farm intersected by its right of way, doing so purely for the owner Is convenience, and not pursuant to a statutory duty, it did not also impliedly agree to maintain such fences and keep them in good repair for all time. (Page 52.)</p> <p>3. Deeds' — Covenants—Antecedent Contract. Where a written antecedent option agreement to convey real property is merged into a deed, the grantor ordinarily must rely on the covenants contained in tlié deed, and cannot predicate a right of action upon the antecedent agreement.1 (Page 55.)</p> <p>4. COVENANTS — Running with Land. An agreement or covenant on the part of a railroad to maintain and keep in repair wing fences at a private crossing on a farm is limited to the landowner, because it does not run with the land. (Page 55.)</p> <p>5. Covenants — Running with Land. A parol agreement in no event runs with the land. (Page 55.)</p> <p>6. Railroads — Killing Stock — Fencing—'Horses of Others. Where a railroad made no covenant or agreement to maintain and keep in repair wiiíg' fenées at a private crossing on a farm of which the owners of horses pastured on su‘eh farm could avail themselves, the law imposing no such duty on the railroad, no recovery against it could be had by the owner of the farm for the horses of others killed at the crossing with his own; the owners of such horses having assigned their alleged causes of action to him. (Page 55.)</p> <p>7. Negligence — Contributory Negligence — Questions por Jury. The question of contributory negligence of plaintiff, like that of defendant’s original negligence, ordinarily is a question of fact for the jury, and can be disposed of as a question of law only in rare instances, as when the evidence is undisputed, and not conflicting. (Page 57.)</p> <p>8. Railroads — Killing Stock — Fencing—Contributory Negligence. The mere fact that a railroad company fails to comply with its statutory duty to fence its right of way where its track passes through the land of others, or in ease it has complied with such duty, fails to maintain its fences or keep them in repair, does not render it contributory negligence on the part of the owner of the land to turn his live stock into his fields adjacent to the railroad merely because he knows that it has failed in its duty in constructing or in keeping the fences in repair, a doctrine which applies to gates at private crossings, where the statute requires the railroad to construct them for the use of the owners. (Page 57.)</p> <p>9. Railroads — Killing Stock — Contributory Negligence. Where the owner of a farm, and the owners of horses pastured on it, were familiar with the defective condition of a wing fence at a private railroad crossing for several months before their horses were killed on the right of way, and were also informed by the railroad’s section foreman that it was not his business to repair the fence, such owner of the farm and owners of horses were guilty of negligence contributing to the death of the horses on the right of way. (Page 61.)</p> <p>10. Railroads — Killing Stock- — Proximate Cause. Where a railroad’s wing fence at a private crossing was in defective condition, but, if the owner of the land had kept the gates in the fence closed, all of his horses would have been safe, and could not have been killed, and, if some human agency opened the gate, and left it open, it was the act of such third person or agency that made it possible for the horses to get from the pasture onto the railroad’s right of way, the negligence of the railroad in failing to keep the wing fence in repair was not the proximate cause of the death of the horses.2 (Page 61.)</p>

<p>1. Abórtton — Intent—Evidence. In a prosecution for abortion, the defense being that the operation was necessary to save life, testimony of another than prosecutrix that about the same time a like operation was performed upon her by defendants for a criminal . purpose was admissable to prove intent. (Page 66.)</p> <p>2. Abortion — Prosecutrix as “Accomplice.” Prosecutrix is not an accomplice of defendant charged with abortion, though the criminal operation was performed at her request or with her consent. (Page 67.)</p> <p>3. Criminal Law — Instruction—Testimony oe Accomplice. In a prosecution for abortion, where the alleged father of prosecutrix was present at the operations, and testified respecting them, defendants were entitled to an instruction defining an accomplice, and telling the jury that if the witness was such within the statute they should not convict unless his testimony was corroborated as required and the refusal of such charge was prejudicial error. (Page 68.)</p> <p>4. Criminal Law — Codependants—Declarations and Statements or Admissions. Where defendants charged with abortion conspired together or acted in concert in committing the criminal act, the acts, declarations, and conduct of one in furtherance of the object in view were admissible as against the other, but, if the acts charged had been committed and had ended, the statements or admissions of one defendant were not admissible as against the other, unless made in his presence.1 (Page 69.)</p> <p>5. Criminal Law — Instruction—Duty to Bequest and Except. If council desire to have the court charge upon a particular phase of the case, or on a collateral issue or subject, they must offer a proper request, and, if it is refused, save an exception, otherwise the question may not be reviewed. (Page 69.)</p> <p>6. Criminal Law — Instruction—Failure to Bequest — Promise op Court. In a prosecution for abortion, where, when the state offered to prove the statements of one defendant, council for defendants objected, and requested the court to inform the jury that the admissions and statements of such defendant could not be considered as against the other, and the court overruled the objection and stated the jury would be instructed fully at the conclusion of the case, and counsel excepted to the ruling and did not prepare and offer any request on the subject, the court’s omission later to charge the jury as promised, thus permitting them to consider the statements of the one defendant as against the other, as well as against herself, was prejudicial error. (Page 69.)</p> <p>7. Criminal Law — Instruction—Limiting Evidence. Where evidence is admissible only for a certain purpose or as against'a particular defendant, it is the better practice for the court, when the evidence is received, to instruct the jury of the purpose for which it is received, and.tell them not to consider it for any other.2 (Page 72.)</p> <p>8. Criminal Law — Instructions—Argumentativeness. Argumentative requests to charge, every legal proposition being supported by argument, were faulty and properly refused. (Page 73.)</p>

<p>1. DrvORCB — Custody oe Children — Statutes. Comp. Laws 1907, section. 1212, as amended by Laws 1909, e. 109, section 4, providing that if a divorce is granted, and any child has attained the age of ten years, such child, if of sound mind, may choose the parent with whom he shall live, is not conclusive as to the question of custody and control, and, if for the best interest of the child, the court may nevertheless determine the child’s custody otherwise. (Page 77.)</p> <p>2. Divorce- — Custody oe Child — Moral Pitness — Evidence. In divorce proceedings, where the custody of an eleven year old child was awarded the husband, although the child preferred the mother, and the husband stipulated that she was a fit person to have its custody, evidence held not to justify a finding that the mother was morally unfit. (Page 78.)</p>

G. W. Morse, Judge. Robert Hay was convicted of the crime of carnally knowing a female over the age of thirteen and under the age of eighteen He appeals.

<p>1. CareieRS — Personal Injuries to Passengers — Negligence — Question por Jury. In an action for injuries sustained by plaintiff while attempting to board defendant’s passenger train, the question of defendant’s negligence hela, under the evidence, for the jury. (Page 87.)</p> <p>2. Carriers — “Res Ipsa Loquitur” — “Raises”—Instruction. An instruction, in effect, that the sudden starting of the car “raises” (that is, compels the inference of negligence), was erroneous, and should have been “warrant” or “authorize,” an inference of negligence, since the principle of res ipsa loquitur does not relieve the plaintiff of the burden of proof, or raise any presumption in plaintiff’s favor, but simply entitles the jury, in view of all the circumstances and conditions as shown by plaintiff’s evidence, to infer negligence, and to say whether, upon all the evidence, the plaintiff has sistained his allegation. (Page 88.)</p> <p>3. Carriers — “Res Ipsa Loquitur.” The doctrine of res ipsa loqui-tur, as applied to the sudden starting of a passenger coach, warrants or authorizes an inference or assumption that the sudden starting was due to the negligence of those controlling the train, but does not compel such inference or presumption. (Page 90.)</p> <p>4. Carriers — Doctrine of “Res Ipsa Loquitur” — Applicability. Where the train which was alleged to have been suddenly started with a jerk, which it was claimed caused the injury, was under the exclusive management and control of defendant, and there was no evidence or explanation on defendant’s part as to the sudden starting, the doctrine of res ipsa loquitur was applicable, since, if something unusual or extraordinary occurred in the operation and management of the train which resulted in an injury to a passenger, the occurrence warranted, but did not compel, an inference that it was due to the negligence of defendant, unless it was made to appear that the occurrence was due to some other cause than the one assumed or inferred, and for which defendant was not responsible. (Page 91.)</p> <p>5. Appeal and Eeror — Erroneous Instructions — Reversible Error. In action for injuries due to the sudden starting of a train, where defendant was unable to explain the sudden starting, instructing that the sudden starting “raises” an inference of' negligence was reversible, error. (Page 91.)</p>

<p>1. Divorce — Appeal—Failure to Certify Evidence — Findings—Review. On appeal from judgment refusing to modify decree for alimony, the court on appeal is unable to determine whether findings are or are not supported by evidence, no evidence having been certified. (Page 94.)</p> <p>2. Divorce — Court Findings — Conformation to Evidence — Presumption. No evidence having been certified, presumption is that findings conform to evidence. (Page 94.)-</p> <p>3. Divorce — Review—Evidence not Certified. Affidavit filed in support of motion to amend decree for alimony, being merely evidence, cannot be considered on appeal, where not certified by district court in the form of a bill of exceptions. (Page 94.)</p> <p>4. Divorce — Rulings of Trial Court Presumption. In the absence of evidence to the contrary, the court on appeal from a judgment refusing to modify decree for alimony, and compel defendant to pay certain claims, is bound to presume that the reasons given by the trial court for refusal to require defendant to pay amount of plaintiff’s claim are well founded. (Page 95.)</p>

<p>Husband and Wife — Separate Maintenance — Actions—Evidence. In a wife’s action for separate maintenance under Comp. Laws 1907, sections 1216, 1218, authorizing a married woman living apart from her husband without her fault to apply for separate maintenance, and giving the court power to change the allowance thereof, evidence held sufficient to- sustain the decree for plaintiff.</p> <p>GIDEON, J., dissenting.</p>

<p>Appeal and Ekrok — Appeal—Time—Suspension. Under Comp. Laws 1907, section 3301, providing that an appeal may only he taken within six months from entry of judgment and section 3329, prohibiting the extension of time within which an appeal may be taken, the serving and filing of a motion for new trial pursuant to extension granted by trial court more than six months after the entry of the judgment is of no effect so far as suspending the time within which judgment becomes final for purpose of appeal.1</p>

Geo. G. Armstrong, Judge. Petition by Salt Lake County for an order directing E. B. Wicks as executor of the will of Peter Thourot, deceased, to pay certain taxes assessed against the estate. Petition dismissed. The county appeals.

<p>Appeal from District Court of Cache County, First District; Mon. J. D. Call, Judge.</p> <p>Action by Y. S. Amussen against P. 0. Hansen and another.</p> <p>Judgment, after trial without jury, for plaintiff.</p> <p>Defendants appeal.</p>

<p>1. Commerce — Injury to Servants — Federal Employer’s Liability. To recover under the Federal Employers’ Liability Act (Act Cong. April 22, 1908, e. 119, 35 Stat. 65 [U. S. Comp. St. 1916, Sections 8657-8665]), both employer and employee must at the time of injury be engaged in interstate commerce. (Page 120.)</p> <p>2. Courts — Following Decision op Federal Courts. A decision of a federal court as to whether an employee is engaged in interstate commerce, especially if more recent should be followed in prefer-enee to decision of a state court, since the question involved is one upon 'which the federal courts have the ultimate right to speak. (Page 122.)</p> <p>3. COMMERCE — "Interstate Commerce.” Plaintiff employed in roundhouse and machine shop, injured while engaged in repairing a passenger engine which before the injury had been used exclusively in interstate commerce, was being repaired so as to be again used for the same purpose, and was so used after repair, was engaged in interstate commerce. (Page 122.)</p> <p>4. Master and Servant — Injury While Engaged in Interstate Commerce — Evidence. In action based on Federal Employers’ Liability Act, evidence held to sustain jury finding that plaintiff injured while repairing defendant’s passenger engine, was engaged in interstate commerce. (Page 122.)</p> <p>5. Appeal and Error — Jury Findings — Conclusiveness. Plaintiff having made a prima facie case, and defendant having produced no evidence, the finding of the jury is conclusive on appeal. (Page 123.)</p> <p>6. Master and Servant — "Contributory Negligence” Distinguished prom "Assumption of Risk.” It does not necessarily follow from a jury finding that a servant was negligent that he also assumed the risk, since "contributory negligence” does not necessarily arise from intelligent choice as does "assumption of risk.” (Page 125.)</p> <p>7. Master and Servant — Contributory Negligence — Assumption op Risk — Question por Jury. In action for injury sustained by plaintiff while engaged in repairing defendant’s passenger engine, question of contributory negligence and assumption of risk held, under the evidence for the jury. (Page 127.)</p> <p>8. Evidence — Declarations op Third Person. Declarations of plaintiff’s mother, relating to treatment of his eye after injury, not made in plaintiff’s presence, were inadmissible. (Page 127.)</p> <p>9. Damages — Evidence—Admissibility. In action for injuries sustained by plaintiff servant, where defendant railroad set up negligence of plaintiff in refusing to follow direction of his physician, evidence respecting acts of plaintiff’s mother in treating plaintiff’s eye were properly excluded. (Page 127.)</p> <p>10. Witnesses — Impeachment. A witness cannot be impeached as to immaterial statements. (Page 127.)</p> <p>11. Trial — Instruction Not Supported by Evidence. Although statement in charge authorizing consideration of question whether injury had affected plaintiff’s earnings in the past was not supported by pleadings or proof, where jury was instructed that they, must be guided by the evidence alone defendant was not prejudiced. (Page 128.)</p> <p>12. Parent and Child — Eight op Parent to Earnings op Child. If plaintiff, a minor, was supporting himself from his own earnings, and his parents were not claiming such earnings, he was entitled, in an action for injuries, to recover for their loss, since by Comp. Laws 1907, sections 1514, 3243, the earnings of a minor do not absolutely belong to his parents. (Page 128.)</p>

J. D. Call, Judge. Certiorari by the State of Utah, on the relation of R. H. Jones, against the West Publishing Company and Denmark Jensen, Justice of the Peace, to review proceedings in the justice court. Judgment dismissing plaintiff’s application and directing the justice to proceed with the case. Plaintiff appeals.

<p>1 Municipal Corporations — Officers—Increase in Salary — Resignation and Reappointment. In the absence of prohibitive statute, a city marshal, having resigned on the day preceding the effective date of a raise in salary, was eligible to reappointment on the next day, especially in view of Laws 1911, e. 125, and Laws 1917, c. 44, amending Comp. Laws 1907, section 225, prohibiting increase of salary during term of city officer, so as to limit such section to elective officers. (Page 137.)</p> <p>2. Municipal Corporations — City Marshal — Form: of Bond. Bond of city marshal conditioned on his performing well, truly, and justly all the duties of his office was not defective for failure to' be conditioned, in words of Laws 1911, c. 125, section 216, on ‘ ‘ payment of all moneys according to law and ordinances.” (Page 138.)</p> <p>3. Municipal Corporations — City Marshal — Approval of Bond. Where city marshal filed a bond, the mayor and council’s failure to disapprove or reject the bond, or raise any question as to its sufficiency, and their permitting him to perform the duties of office, were sufficient evidence of acceptance and approval of the bond. (Page 139.)</p> <p>4. Municipal Corporations — City Marshal — De Facto Officer. Mere fact that city marshal’s bond had expired did not forfeit his right to the office where he was permitted to continue to act, and was therefore a de facto officer at least, and entitled to compensation, especially since the city authorities could at any time on notice have required a bond.1 (Page 139.)</p> <p>5. Municipal Corporations — City Marshal — Removal. Assuming a city marshal was rightfully holding the office, the attempt by the mayor to remove him without the concurrence of the council was wholly ineffectual, in view of Comp. Laws 1907, section 215, as amended by Laws 1911, c. 125, requiring the concurrence of the council. (Page 140.)</p> <p>6. Municipal Corporations — Appointive Officers — Tenure of Office. In view of Comp. Laws 1907, section 215, as amended by Laws 1911, c. 125, appointive officers in cities of the third class hold their respective offices until their successors are appointed and qualified. (Page 140.)</p> <p>7. Municipal Corporations — Appointive Officers — Tenure of Office. Even in the absence of statute, municipal officers hold over until their successors are elected and qualified, and until such time are entitled to the compensation attached to the office.2 (Page 141.)</p>

<p>1. Master and Servant — Construction or Contract. A contract whereby first party issued to second party five shares of stock of a collection association upon payment of $2,500, and upon second party entering the employ of the collection association held a contract the main purpose of which was the employment of second party, the transfer of stock being an inducement to him to remain an employee of the association for a period of ten years. (Page 161.)</p> <p>2. Master and Servant — Contract—Eight to Terminate. Where a contract of employment did not specify duration of employment, either party could terminate the relationship at any time, although at time of employment stock in the employer company was sold to employee to induce him to remain.with the company for a period of ten years. (Page 162.)</p> <p>3. Corporations — Stock Transfers — Equitable Belief. Where employee, employed under a contract of employment that either party could terminate at any time, buys stoek in employer company upon limited understanding that employment is to continue for ten years, equity will not permit the company, where employment con-turned for only four years, to retain benefits of the stock transfer. . (Page 162.)</p> <p>4. Equity — He Who Seeks Equity Must do Equity. An employee who buys stock in employer company, upon implied understanding that he is to remain employee for ten years, cannot, because of the termination of employment after only four years, recover, in an action in equity, the purchase price of the stock, unless he does equity, and returns to the company what company had paid him as interest on such stock. (Page 163.)</p> <p>CORPMAN, J., dissenting.</p>

A. E. Pratt, Judge. In the matter of the estate of P. C. Osgood, deceased. Prom an order determining the amount of inheritance tax, the executor appeals.

<p>1. Pleading — Beeerence to Exhibits. A complaint in an action for breach of contract alleging that defendant "has neglected, failed, and refused to deliver to these plaintiffs certain water rights, as agreed in the said contract,’’ is not uncertain as to the water rights referred to, where copy of contract sufficiently describing the water rights is attached to, and made a part of, complaint. (Page 204.)</p> <p>2. "Waters and Water Courses — Breach of Contract to Convey Water Bights — Evidence—Presumption. In an action for breach of contract to convey water rights appurtenant to certain described land, evidence of the delivery of a deed conveying such land is sufficient evidence of compliance with the contract, where deed is not introduced in evidence, and there is no evidence as to any provisions therein regarding the water rights. (Page 205.)</p> <p>3. Water and Water Courses — Breach of Contract — Misrepresentation. Where purchasers entered into a contract to purchase land with water rights appurtenant thereto, upon vendor’s misrepresentation that one-third of the water flowing from certain springs was appurtenant to such land, purchasers cannot, in an action merely for. breach of contract, recover damages for fraudulent representations. (Page 205.)</p>

F. Goodwin, Judge. Action by Ben Rosenblum against Barnard Gomoll and others in the city court of Salt Labe City, and from a judgment for plaintiff an appeal was taken to the district court. Judgment for defendant. Plaintiff appeals.

<p>1. Constitutional Law — Power to Fix Bates — Local Authorities —Street Bailroads. Since Const, art. 12, section 8, providing no law shall grant the right to operate a street railway within any city without its consent, does not, in express terms, delegate the power to fix rates, a franchise ordinance, made pursuant thereto, fixing passenger rates, and accepted by a street railway company, although it constitutes a binding contract between the parties, is subject to the rate-making power of the state.1 (Page 216.)</p> <p>2. Carriers — Power to Fix Bates — Street Bailways — Contracts— Franchise. Laws 1917, e. 47, art. 3, section 5, subd. “a,” providing, "Nothing in this act contained shall be construed * * * to prevent the carrying out of contracts for free or reduced rate passenger transportation or other public utility service heretofore made, founded upon adequate consideration and lawful when made,” was not intended to apply to commutation rates fixed in a franchise ordinance. (Page 223.)</p> <p>3. CARRIERS-PASSENGER RATES-COMMUTATION TICKETS — ESTOPPEL. That a street railway franchise called for commutation tickets, and in reliance thereon many persons built homes in the suburbs of the city along the street railway, does not estop the company from raising the rates by permission of the Public Utilities Commission, granted under laws 1917, c. 47, art. 4, sections 1, 3. (Page 224.)</p> <p>4. Public Service Commissions — Findings. While the Public Utilities Commission should be careful to make proper findings respecting material ultimate facts upon which an order is based, where the findings and opinion, considered together, are such that more specific findings would benefit no one, they are sufficient. (Page 226.)</p> <p>6. Public Service Commissions — Review. Under Laws 1917, e. 47, art. 5, section 15, providing for review of proceeding before the Public Utilities Commission, all the Supreme Court can review is whether there is any evidence to sustain the findings of the Commission, whether it has exercised its authority according to law, and whether any constitutional rights of the complaining party have been invaded or disregarded. (Page 226.)</p> <p>6. Constitutional Law — Courts to be Open. The constitutional provisions (article 1, section 11) that the courts shall be open and that "every person for an injury done to him * * * shall have remedy by due course of law,” apply to judicial questions; and, unless a railroad rate as fixed by the Public Utilities Commission is either clearly oppressive or confiscatory, no judicial question is presented. (Page 226.)</p>

H. M. Stephens, Judge. Action by G. C. De Garmo against W. 0. Kay and another. Judgment for defendants after trial without jury, and order denying new trial. Plaintiff appeals.

<p>1. Forcible Entry and Detainer — Evidence—Sufficiency. In. an action for the possession and damages for the unlawful detention of farm lands, evidence held to show that plaintiff’s possession was a mere scrambling one, wholly insufficient under Comp. Laws 1907, sections 3573, 3574, defining forcible entry and forcible detainer, and section 3582, as to proof required of plaintiff.1 (Page 244.)</p> <p>2. Forcible Entry and Detainer — Judgment. In action for possession and damages for unlawful detention of certain farm lands, the court erred in rendering decree in defendant’s favor quieting title; the question of title not ordinarily being involved or to be determined in such action. (Page 245.)</p>

<p>1. Exceptions, Bill op Preparation. While, under Comp. Laws 1907, section 3286, district court, in settling and allowing bill of exceptions, may determine what it should contain, a party need not incorporate all of the evidence, if not necessary to a full understanding of the questions raised, nor need the evidence be in form of questions and answers. (Page 247.)</p> <p>2. Exceptions, Bill op — Preservation op Exceptions. Though plaintiffs were erroneously denied bill of exceptions, when the judge refused to allow it unless all the evidence, some of which was immaterial, was included, they could have no remedy, in the absence of compliance with Comp. Laws 1907, section 3289, permitting application to the Supreme Court to prove a proposed bill of exceptions. (Page 248.)</p> <p>3. Appeal and Errort — Review. Erroneous ruling on matter to be incorporated in bill of exceptions cannot affect the judgment unless it is vulnerable on other grounds. (Page 248.)</p> <p>4. Appeal and Error — Presumptions. In the absence of bill of exceptions containing the evidence, the assignment of error that the court’s findings are not supported by the evidence cannot be reviewed, since in such case the presumption is that the court’s findings are in strict conformity with the evidence. (Page 249.)</p> <p>5. Corporations — Winding up Business — Confessing Judgment. In view of Laws 1909, c. 106, section 5, providing that, in case of forfeiture of corporate charter, its property and assets are to be held in trust, and Laws 1913, c. 10, authorizing, in such eases, continuance of business for purpose of winding up the affairs, directors did not act illegally or beyond powers, after forfeiture, in confessing a judgment on an indebtedness, which the corporation could not pay. (Page 249.)</p>

Original proceedings in mandamus by Lars Christensen against George Christensen, as Judge of the District Court of Emery County, and others. ■Writ to issue if district court does not proceed with case after being served with copy of the opinion.

<p>1. Highways — Pedestrians—Death—Cause op Death — Evidence. Evidence held sufficient to sustain a finding that plaintiff’s child was killed by an automobile, and that defendant’s automobile killed it. (Page 267.)</p> <p>2. Trial — Weight of Evidence — -Question por Jury. The truth of testimony is for the jury. (Page 267.)</p> <p>3. Highways — Sufficiency op Evidence. In action for death of child killed while riding his tricycle on a broad open highway in the daytime, evidence held sufficient to sustain a finding that an automobile driver was negligent, although no one saw the accident,1 (Page 268.)</p> <p>4. Highways — Persons on Boad — Duty to See Persons on Road. The law imposes the duty on an automobile driver to see persons on the road in front of him where his view is unobstructed.1 (Page 268.)</p> <p>5. Highways — Collisions—Contributory Negligence — Evidence. Evidence held to show that child on tricycle on a road killed by an overtaking motor truck was not guilty of contributory negligence. (Page 270.)</p> <p>6. Death — ‘Presumptions as to Due Care by Deceased — Burden op Proof. A child killed on the road on a tricycle by an overtaking motor truck, in the absence of evidence to the contrary, will be presumed to have been exercising due care, the burden being on defendant to rebut the presumption.2 (Page 270.)</p> <p>7. Evidence — Conclusions op Witness. Testimony that defendant had admitted driving his automobile on the B road "about the time we figured the accident happened’’ was a conclusion, and should have been stricken. (Page 270.)</p> <p>8. Appeal and Error — Harmless Error — Evidence. Where there was no controversy as to the time defendant drove his motor truck along a road, a conclusion of a witness that he admitted driving it there "about the time of the accident,’’ was harmless.3 (Page 270.)</p> <p>9. Evidence — Conclusions op Witness. Testimony of a witness that he went to the scene of an accident and saw deceased lying there and saw the track of the automobile “that had run over him” was a conclusion, and should have been stricken. (Page 270.)</p> <p>10. Appeal and Error — Harmless Error — Evidence. Although testimony of a witness was a conclusion, it was harmless, where every fact with which the witness was acquainted was then and there known to the jury, and the jury knew it was a conclusion, under Comp. Laws 1907, section 3285, providing that no exception shall be regarded unless the decision excepted to is material and prejudicial to the substantial rights of the party excepting.1 (Page 270.)</p> <p>11. Death — Child—Contributory Neglisence op Parent. A parent was not guilty of contributory negligence in allowing a bright six year old child to go a short distance down a road with a tricycle, where she watched him until he started to return. (Page 271.)</p> <p>12. Appeal and Error — Harmless Error — Instructions. Where there was no contributory negligence, there was no prejudicial error, if error, in instructing that under the pleadings the jury could not take the question of contributory negligence into consideration. (Page 271.)</p>

<p>1. Garnishment — Writ of Attachment. Under Comp. Laws 1907, section 3090, as amended by Laws 1913, c. 94, providing that, on the commencement of any personal action on contract, plaintiff may obtain a writ of garnishment by making and filing an affidavit that he has good reason to believe and does believe that any person has property or money belonging to the defendant or is indebted to the defendant, and that he is justly apprehensive of the loss of the same unless garnishment issue, it is unnecessary to issue also a writ of attachment and the garnishment writ may be issued, without setting forth any of the grounds enumerated in section 3064. (Page 275.)</p> <p>2. Garnishment — Time for Piling Affidavit and Issuing Writ— "Upon” — "On.” Comp. Laws 1907, section 3090, as amended by Laws 1913, c. 94, providing that, "upon” the commencement of any personal action writ of garnishment may be issued upon proper affidavit, the procedure prescribed in such section may be taken only at the time of the commencement of the action since the word "upon” means substantially the same as "on,” and means in the connection used "at the time of.” (Page 277.)</p>

W. H. Brcrnel, Judge. Suit between Harlow Grow and the executor of the will of Rachel Bovier, deceased, to construe the will. From the decree both parties appeal.

<p>1. Master and Servant — Injury to Servant — Negligence—Fellow Servants. Where plaintiff, a section hand, is helping to lift one end of an old rail, and the men lifting the other end, without warning to plaintiff, dropped their end of the rail, thereby injuring plaintiff, plaintiff is precluded by the fellow-servant doctrine from recovering against railroad employer. (Page 290.)</p> <p>2. Commerce — “Interstate Commerce” — Railroads. A carrier generally engaged in interstate commerce is not necessarily so engaged at all times or in respect to every instrumentality employed in its business, and whether an employee of such carrier is engaged in interstate commerce at the time of his injury depends upon whether the work he is doing at the time of the injury is interstate commerce, or so closely connected therewith as to become a part thereof. (Page 291.)</p> <p>3. Commerce — "Interstate Commerce” — Railroad Work. A railroad employee who helps to' remove old discarded rails from the right of way after other employees have detached such rails from the track is not engaged in interstate commerce, within federal Employers’ Liability Act (Act April 22, 1908, e. 149, 35 Stat. 65 [TI. S. Comp. St. 1916, sections 8657-8665.]). (Page 291.)</p> <p>4. Commerce — "Interstate Commerce” — Railroad Repair Work. A railroad employee repairing a track used by trains engaged in interstate commerce is engaged in interstate commerce under Act April 22, 1908, e. 149, 35 Stat. 65 (U. S. Comp. St. 1916, sections 8657-8665) making carriers engaged in interstate commerce liable for injuries to their employees engaged in such commerce where due to negligence of the carrier. (Page 292.)</p> <p>5. Commerce — "Interstate Commerce”- — Character of Use of Appliances. Under the federal Employers Liability Act, a carrier is liable only in ease both carrier and employee are engaged in interstate commerce as to the instrumentality employed at the time of the injury. (Page 297.)</p> <p>6. Master and Servant — Injury to Employee — Negligence—Failure to Supply Sufficient Men. Whether or not a railway company negligently failed to furnish a sufficient number of men to lift discarded rails being removed from the track to a scrap pile where the men lifting one end were unable, because of its weight, to handle the rail and for that reason dropped their end and injured one of the men at the other end, is a question available at common-law and proper to be considered and disposed of in this action. (Page 299.)</p> <p>7. Evidence — Opinion Evidence — Matters of Common Knowledge. Evidence that eight men is an insufficient number to carry a rail weighing 880 pounds, that twelve men were needed for so doing, and that rail could be more easily carried with tongs than by hand, is expert evidence on a matter of common knowledge, and hence improper. (Page 299.)</p> <p>8. ‘ Master and Servant — Injury to Employee — Negligence—Sufficiency of Evidence. In an action against a railroad for injury to employee injured while lifting a rail when men at opposite end thereof dropped their end of the rail, evidence held insufficient to show that the railroad had failed to provide a sufficient number of men to carry such rail. (Page 299.)</p> <p>On Application for Behearing.</p> <p>9. Commerce — "Interstate Commerce” — Bemoval op Bails prom Track. A railroad employee assisting in removing discarded rails to scrap pile after other employees had detached rails from the track is not engaged in interstate commerce within the federal Employers’ Liability Act, although the men who detached rails worked under same foreman and helped in removing rails to scrap pile. (Page 301.)</p>

H. N. Hayes, Judge. W. H. Carter was convicted of having carnal knowledge of a female under the age of eighteen years and over the age of thirteen. Defendant appeals.

<p>1. Evidence — Parol Evidence — Deed. Although a warranty deed made in the form prescribed in Comp. Laws 1907, section 1981, conveys whatever appurtenances pertain to the land, where such a deed is silent as to what are the appurtenances conveyed by it, parol testimony is admissible to prove an appurtenant right of way.1 (Page 313.)</p> <p>2. Easements — Evidence of Right op Wav — Sufficiency. Where right of way claimed by grantee as appurtenant to the land was not specifically described in the deed nor marked on the ground, the fact that at the time of sale wagon tracks were visible on the claimed right of way, there being no showing by whom made and for what purpose, is not alone sufficient to show a permanent right of way as appurtenant to the adjacent land so as to establish grantee’s right thereto as an appurtenance passing by the deed, since easements do not pass as appurtenant to land unless apparent, obvious, visible, and continuous.2 (Page 314.)</p> <p>3. Easements — Eight of Way — Conveyance—Appurtenances— Deed. Where grantors conveyed land to D. with a right of way over an adjoining strip of land owned by them and later conveyed land on the other side of the strip to W., the deed to W., although, not specifically mentioning any right of way over the strip, conveyed, as an appurtenant easement, so much of the land embraced in the strip as was reasonably necessary as a means of ingress and egress to and from the land so conveyed.1 (Page 316.)</p> <p>4. Easements — Eight of Way — Extent of Burden of Servient Estate. Where plaintiffs had an appurtenant right of way over a strip of land and the defendant owners built a garage thereon, leaving fifteen feet open for travel, defendants would not be compelled to remove the garage as an obstruction of the right of way, since, the space remaining being sufficient for egress and ingress, to allow more would impose an unjust burden on the servient estate. (Page 316.)</p>

<p>1. Vendor and Purchaser — Execution—Vendor’s Interest. Although, when there was still a balance due on purchase price, vendor executed a warranty deed in trust to D. for protection of purchaser and to secure a note given to D., vendor had such interest in lands sold as was subject to execution under Comp. Laws 1907, section 3240, making any interest of judgment debtor in realty subject to execution; interest of purchaser being subject to forfeiture for failure to pay according to contract. (Page 320.)</p> <p>2. Execution — Failure to Record. In view of Comp. Laws 1907, section 1975, where vendor, after having executed trust deed for sole purpose of protecting his purchaser and D., who had lent him money made an assignment of his interest in contract of purchase with consent of purchaser and D. and thereafter vendor’s judgment creditor levied upon such interest, and after sale'and sheriff’s deed made a conveyance to a bank, which recorded its deed prior to recording of said assignment, bank, as against assignee, would have prior right, trust deed not giving constructive notice, although recorded, and neither bank nor judgment creditor having actual knowledge of assignment. (Page 321.)</p>

<p>1. Pleading — Answek as Disclaimer. In action on note and to foreclose stock given as security, answer of defendants, one of original makers, and the administrator of the other, denying that the deceased maker left any property in M. county, held not a disclaimer of interest in the stock calling for dismissal of defendants’ appeal on ground they had no interest in litigation, since all other issues had been disposed of. (Page 326.)</p> <p>2. Pleading — Amendments—Discretion m Court. Allowance of amendments to complaint was clearly within discretion of trial court. (Page 327.)</p> <p>3. Witnesses — Action Against — Testimony as to Transaction with Deceased — Statute. Under Comp. Laws 1907, section 3413, in action on note, and to foreclose stock pledged against original maker and administrator of another maker, deceased, plaintiff’s testimony as to whether stock was delivered to him by deceased as a pledge, a fact equally within his knowledge and that of deceased, held inadmissible.1 (Page 330.)</p> <p>4. ExecutoRS and Administrators — Possession op Stock. In action on note, and to foreclose stock pledged, against original maker and administrator of another maker, deceased, plaintiff’s possession of certificate of stock was not sufficient to sustain finding decedent pledged stock. (Page 331.)</p>

<p>Appeal from District Court of Salt Lake County, Third District; Hon. H. M. Stephens, Judge.</p> <p>Action, by Harry S. Joseph against the National Bant of Republic.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

<p>1. Master and Servant — Injuries to Servant — Instructions. In a miner’s action for personal injuries, an instruction that, if certain facts were found to exist, such facts as a matter of law would constitute negligence and establish defendants’ liability, held, not erroneous under the evidence.1 (Page 341.)</p> <p>2. Damages — Personal Injuries — Future Pain and Suffering. In a miner’s action for personal injuries, an instruction allowing the jury to award damages for pain and suffering that plaintiff "will probably hereafter endure" was not erroneous, as allowing conjectural damages.2 (Page 344.)</p>

<p>1. Appeal and Error — Necessary Parties — Several or Joint Award. Although under Comp. Laws 1907, section 1288x10, all parties who have diverted water from a stream may he made parties to an action concerning water rights, the same is not required, and where, in a judgment, several and not joint awards of water rights were made, and no joint interests were alleged or found, any party may appeal independently. (Page 352.)</p> <p>2. Waters and Water Courses — Appropriation and Prescription-Priorities. Prior appropriation for beneficial use is, and has always been, the basis of acquisition of water rights under Comp. Laws 1907, section 1288x20, and previous irrigation statutes.1 (Page 354.)</p> <p>3. Waters and Water Courses — Reservoirs—Title to Water as Personalty. Notwithstanding it has been held that under certain circumstances title is acquired to the corpus of confined water as personalty, the doctrine of ownership by storage cannot be relied on to invade vested rights.2 (Page 355.)</p> <p>4. Waters and Water Courses — Appropriation—Extent—Measure. The rights of a prior appropriator are measured and limited by the extent of his appropriation to beneficial use, and if he diverts more water than he is entitled to for seasonal use, he must return such surplus to the stream for the use of subsequent appropriators.3 (Page 353.)</p> <p>5. Appeal and Error — Review—Change oe Theory. Where a case was tried to quiet title to the use of waters upon the theory of acquisition by appropriation for beneficial use by direct irrigation, it cannot be contended on appeal that it was for the right to store for use from time to time as crops require. (Page 353.)</p> <p>6. Judgment — Legal Effect — Limited Iiy Pleadings. The legal effect of a court decree must be limited to the issues raised by the pleadings. (Page 357.)</p> <p>7. Waters and Water Courses — Reservoirs—Wrongful Impounding — Sales. A prior appropriator of water cannot store in its reservoir water legally belonging to subsequent appropriators against their will, and insist upon payment from them for such stored waters, under a decree for payment by them for prior appropriator’s excess water. (Page 358.)</p> <p>8. Eminent Domain — Waters and Water Courses — Appropriation— Eorm of Remedy. A prior appropriator cannot, in an action to quiet title to the use of water for irrigation, be compelled to submit its reservoir to the common storage of its and subsequent appropriator’s water, that being a matter of eminent domain to be exercised under provision therefor in Comp. Laws 1907, section 3590, and section 3588, as amended by Laws 1909, c. 47.4 (Page 359.)</p> <p>9. Waters and Water Courses — Stored Waters — Common Use of Reservoir — Agreement — Retention of Jurisdiction — Appointment — Commissioner to Measure Water. In an action to quiet title to right to use of water, if an agreement can be reached by plaintiff and defendant, as to sharing the expense of storing waters, the court may, under our practice, retain jurisdiction, appoint a commissioner to supervise the release of waters, and apportion expense as per stipulation made, the commissioner to be appointed annually.5 (Page 360.)</p>

<p>1. Triai^-Instkuctions — Invading Province oe Jury. In an action for damages sustained in a railroad crossing accident, instruction held to leave to the jury the question whether the railroad company was negligent in failing to put up cross-arms at a highway crossing, and not objectionable as declaring that such failure constituted negligence per se.1 (Page 370.)</p> <p>2. Negligence — Imputed Negligence — Driver or Vehicle — Injury to Invitee or G-uest. The negligence of the driver of a vehicle is not imputable to the passenger, or to the invitee or guest of the driver.2 (Page 371.)</p> <p>3. Railroads — Crossing Accident — Contributory Negligence — Guest oe Driver of Vehicle. The invitee or guest of the driver of a vehicle is not charged with the same strict legal duty of keeping a lookout as the driver, and where the driver was experienced and competent, and the plaintiff was a guest and an inexperienced minor, and the circumstances would not cause all reasonable men to conclude that plaintiff was negligent, plaintiff was not guilty of contributory negligence as a matter of law.3 (Page 371.)</p> <p>4. Trial — Refusal of Instructions — Matters Covered by Other Instructions. It was not error to refuse requested -instructions where every proposition which could be submitted to the jury was sufficiently covered by instructions given. (Page 372.)</p>

<p>1. Depositions — Introduction in Evidence — Part of Deposition. While neither party may be permitted to read part only of its deposition in chief pertaining to a single subject and waive or reserve the remainder pertaining to the same subject merely because the evidence is unsatisfactory, the subject of its admission is largely in the court’s discretion, and each party may generally submit such portion of a disposition as he desires. (Page 377.)</p> <p>2. Trial — Reserving Part of Depositions for Rebuttal. In an action for wrongful death of a street ear employee in a collision, a statement, in a deposition made by the crew of the colliding train, that deceased was four minutes ahead of time, was properly permitted to be reserved for rebuttal by plaintiff. (Page 379.)</p> <p>3. Witnesses — Repetition of Questions. It is not error to exclude a question which the witness has previously answered. (Page 379.)</p> <p>4. Appeal and Error — Review—Harmless Error. In an action for wrongful death of a street car employee, in a collision, admission of testimony as to the speed of the colliding train and its failure to give the usual signals, if error,- was not prejudicial, where case must be decided independent of speed of train or failure to signal. (Page 379.)</p> <p>5. Appeal and Error — Review—Harmless Error. In an action for wrongful death of a street ear employee in a collision with a work train on a single track after leaving a station, it was harmless error to instruct that the doctrine of res ipsa loquitur applied, where under the evidence defendant was guilty of negligence as a matter of law. (Page 381.)</p> <p>6. Master and Servant — Injuries to Servant — Operation op Trains. In an action for wrongful death of a street car employee running a passenger ear in a collision on a single track with a work train immediately after leaving a station, evidence that deceased left the station on schedule time and had a right of way over the work train, which attempted to reach the station before deceased’s car left, and failed to stop upon discovering the approach of deceased’s car, the crew of the work train knowing that deceased did not see it, showed defendant guilty of negligence. (Page 381.)</p> <p>7. Master and Servant — Injuries to Servant — Questions op Pact— Contributory Negligence. In an action for wrongful death of a street car employee whose car was struck by a work train, whether deceased was guilty of contributory negligence was under the evidence a question for the jury. (Page 384.)</p> <p>8. Trial — Instructions—Applicability to Evidence. In an action for wrongful death of a street ear employee in a collision with a work train, an instruction that it had been the custom of deceased to act as both motorman and conductor and to leave a certain station at a certain time held not erroneous as being based on facts not conclusively established. (Page 386.)</p> <p>9. Master and Servant — Injuries to Servant — Instructions. In an action for the wrongful death of a street car employee in a collision, an instruction referring to the fact that deceased was acting both as conductor and motorman was not erroneous as conveying the idea that too much was required of him. (Page 387.)</p> <p>10.Appeal and Error — Harmless Error — Instructions—Emphasis on Evidence. Under Comp. Laws 1907, section 3285, prohibiting reversal’for errors not affecting substantial rights, where an instruction singles out specified parts of the evidence, the adverse party cannot complain thereof when the instruction not only singled out matters detrimental to him, but also matters detrimental to his opponent.1 (Page 387.)</p> <p>11. Tbial — Instructions—Undue Prominence. In an action for wrongful death of a street ear employee in a collision between Ms car and a work train, an instruction, reciting that deceased had the right of way over the line on which his ear was being operated, was not erroneous as unduly emphasizing a feature of the case, where the evidence on that point was conclusive. (Page 390.)</p> <p>12. Trial — Instructions—Assumption as to Pacts. In an action for wrongful death of a street car employee in a collision between his ear and a work train, an instruction as to ordinary care held not erroneous as assuming facts not shown to exist or not in issue. (Page 390.)</p> <p>13. Trial — Instructions — Argumentativeness. In an action for wrongful death of a street ear employee in a collision between his ear and a work train, an instruction as to ordinary care held erroneous as being argumentative. (Page 390.)</p> <p>14. Trial — Instructions—Cure oe Error. In^ an action for wrongful death of a street ear employee in a collision between his ear and a work train, an instruction as to ordinary care, although argumentative in form, held not prejudicial, where other instructions given correctly stated the law. (Page 390.)</p> <p>15. Death — Measure oe Damages. In an action for wrongful death of a street car employee, an instruction allowing damages to compensate his widow and deceased’s father and mother for the pecuniary loss which they have sustained, considering the age, health, expectation of life, employment, habits, and experience of deceased, was not erroneous.2 (Page 393.)</p>

<p>1. Master and Servant — Workmen’s Compensation Acts — Powers of Commission. Under the Industrial Commission Act, the Industrial Commission exercises only administrative and ministerial functions, and has no judicial power, and its jurisdiction is special and limited. (Page 402.)</p> <p>2. Master and Servant — Workmen’s Compensation Act — Powers of Commission — Appeals. Under Laws 1917, c. 100, section 87, giving the Industrial Commission full power to determine all questions within its jurisdiction pertaining to the payment of compensation, and making its decision final, the decision of the commission is final and free from judicial review only when within its jurisdiction and when the claimant and employer come within the act, the injury was in the course of the employment and in ease of death, claimant is a dependent within the act. (Page 402.)</p> <p>3. Master and Servant — Workmen’s Compensation Act — Powers of Commission — Appeals. Under section 87 of such act, the commission does not have exclusive power to determine what matters come within its jurisdiction, but the question is a judicial one for the courts. (Page 404.)</p> <p>4. Master and Servant — Workmen’s Compensation Act — Powers of Commission — Appeals—'' ‘ Party. ” Under Laws 1917, c. 100, section 87, defining the jurisdiction of the Industrial Commission, and giving either party the right to appeal from its orders, employer who contributes to insurance fund as a self-insurer, by contributing directly, or by insuring with an insurance company, has the right of appeal from the award of the commission which is alleged to have been made without jurisdiction, since it must be assumed that “party” means one in interest and not the commission, and that the Legislature intended that the commission should not use the funds illegally. (Page 405.)</p> <p>5. Constitutional Law — Master and Servant — Eight to Eemedies— Workmen’s Compensation Act. Under Const, art. 1, section 11, giving a right of action in the courts for any injury, a master, under the Industrial Commission Law, has the right of appeal to the courts from the order of the Industrial Commission, as to the question of ultimate liability. (Page 408.)</p> <p>6. Master and Servant — Workmen’s Compensation Act — Powers of Commission — Appeals. Under the Industrial Commission Law, as to appeals from orders of Industrial Commission, employer who contributes to the State Workmen’s Insurance Fund, either directly by self-insurance, or by insuring in. a proper company, has such an interest in the proceeding as to entitle him to an appeal from the award, to contest ultimate liability. (Page 408.)</p> <p>7. Master and Servant — Workmen’s Compensation Act — Powers oe Commission — Certiorari. Where employer’s petition for cer-tiorari to review award of Industrial Commission alleges that the commission found without any evidence that claimant was entitled to compensation, and that the order is based upon that finding, the finding and order were necessarily in excess of the power of the commission, and subject to review by certiorari under Const, art. 1, section 11, and Laws 1917, e. 100, section 87. (Page 413.)</p> <p>8. Master and Servant — Workmen’s Compensation Acts — Appeals — Waiver. Employer’s appeal from order of Industrial Commission must be timely commenced, as required by Laws 1917, c. 100, section 87, and, if not so commenced, the right to appeal from the award is waived. (Page 413.)</p> <p>9. Master and Servant — Workmen’s Compensation Acts — Notice. Since the employer is interested in the proceeding for compensation, notice should always be given him of the filing of a claim for compensation. (Page 413.)</p> <p>10. Costs — Mooted Questions. In a proceeding in prohibition involving mooted questions as to the construction of the Industrial Commission Act, which is brought by the Industrial Commission, no costs should be awarded. (Page 413.)</p>

A. B. Morgan, Judge. Action by L. 0. Lawrence against the Denver & Rio Grande Railroad Company. Judgment for plaintiff. Defendant appeals. STATEMENT OF FACTS This is an action to recover for personal injuries alleged to have been sustained and suffered by plaintiff through the alleged negligence of the defendant.

<p>1. Municipal Corporations — Collisions—Dangerous Horses. In an action for death of a motorcyclist, who collided with a wagon, evidence held insufficient to show that defendant’s horse had vicious habits, although it was spirited and shied. (Page 432.)</p> <p>2. Municipal Corporations — Collisions—Contributory Negligence. In an action for the death of a motorcyclist, who collided with a wagon on a city street, whether deceased was negligent held for jury. (Page 432.)</p> <p>3. Municipal Corporations — Collisions—Law op the Road. Although Comp. Laws 1907, sections 1143, 1144, and Laws 1915, e. 80, section 16, do not forbid one traveling upon any part of the road, yet the strongest hind of a presumption of negligence shall be held to prevail against a party whose wagon collided with a motorcycle while on the left side of a city street. (Page 433.)</p> <p>4. Municipal Corporations — Collisions—Negligence—Question por Jury. In an action for death of motorcyclist, who collided with a wagon on a city street, whether defendant was negligent held for jury. (Page 434.)</p> <p>5. Trial — Reception op Evidence. Ia an action for death of motorcyclist, who collided with defendant’s wagon, sustaining of plaintiff’s objection to a question, "state whether or not, as you saw him, he was usually riding fast or slow,” was not error, where defendant did not explain what facts he expected to prove by the witness; purpose of the question being to show deceased’s habit of rapid and fast riding. (Page 435.)</p> <p>6. AniMals — Habits—Knowledge op Owner — Presumption. Owner of domestic animal for several years is presumed to know its habits. (Page 436.)</p> <p>7. Trial — Instructions—Assumption as to Pacts. In action for death of motorcyclist, who collided with a wagon, instruction that owner of a horse, used in his business, would be presumed to know habit of horse with reference to shying, and, standing alone, was misleading, as carrying the inference that shying was a vicious and dangerous habit. (Page 436.)</p> <p>8. Animals — Dangerous Habtis — Horses. Horses are not to be regarded as vicious or dangerous, simply because they have a propensity to shy, and owners are not liable for injuries caused by them, unless they are driven in a place where have no right to be, or the injuries are caused by negligently handling them. (Page 436.)</p> <p>9. Appeal and Error — Harmless Error — Instructions. In an action for death of motorcyclist, who collided with wagon, judgment for plaintiff will not be reversed by reason of an instruction which might mislead the jury to believe that shying was a vicious habit, where the controlling facts in the case were that defendant’s horse took fright and shied while being driven on the wrong side of the road. (Page 437.)</p> <p>10. Trial — Misconduct op Counsel. Where trial judge reprimanded counsel for making improper remarks, the making of the remarks will not be given as much weight as if no reprimand had been given. (Page 437.)</p> <p>11. Appeal and Error — Matters Reviewable — Exceptions. Where no exception was taken to remarks made before the jury by opposing counsel, the matter will not be reviewed on appeal. (Page 437.)</p>

<p>1. Trial — View by Jury — Discretion. The court did not under Comp. Laws 1907, section 3152, abuse its discretion in refusing to permit the jury to view place of accident, where any one could, by attentively reading the evidence and examining the photographs in evidence, understand the situation as well as though he made a personal view. (Page 488.)</p> <p>2. Railroads — Franchise Ordinance — Power to Impose Condition— Speed op Trains. A franchise ordinance limiting the speed of defendant’s ears on its interurban road to 12 miles an hour within the town is valid and within the power of the town, though Const, art. 12, section 8, does not apply to interurban railroads. (Page 488.)</p> <p>3. Railroads — Crossing Accident — Violation op Speed Ordinance. The violation by defendant, owner of interurban line running through a town, of a franchise ordinance limiting speed to twelve miles an hour, constitutes negligence, and a private person may charge defendant with negligence in case of violation where he is injured at a crossing, the same as where speed is limited by any other ordinance.1 (Page 489.)</p> <p>4. Railroads — Giving Signals on Approaching Highway — Statute. Comp. Laws 1907, section 447, as to giving signals on approaching highways and street crossings, applies to railroads, whether operated by steam or electric power, in view of Laws 1907, c. 93, section 4 (now Comp. Laws 1907, 'section 434x), amending section 447, by providing, among other things, that rajlroads may be operated by steam, electric, or other power. (Page 490.)</p> <p>5. Evidence — Common Knowledge — Operation op Trains. It is a matter of common knowledge that a train of cars, especially passenger cars, is propelled as swiftly by means of motor cars as are trains that are propelled by steam locomotive engines, and that the danger to ordinary travelers at public or private crossings, in either case, is precisely the same. (Page 491.)</p> <p>6. Appeal and Error — Instructions—General Exceptions. A general exception to a whole paragraph of an instruction presents nothing for review unless the whole paragraph is vulnerable. (Page 493.)</p> <p>7. Trial — Instructions Covered by Charge — Refusal. Requested instructions sufficiently covered by court’s charge are properly refused. (Page 493.)</p> <p>8. Railroads — Crossing Accident — Contributory Negligence — Evidence. In action for injuries due to collision of plaintiff’s automobile with defendant’s interurban train at crossing, held plaintiff was guilty of contributory negligence as a matter of law so that court erred in refusing to instruct verdict for defendant. (Page 494.)</p> <p>9. Negligence — Contributory Negligence — Questions op Law and Pact. If there is any substantial doubt whether a plaintiff was guilty of contributory negligence, or whether such negligence was the proximate cause of the injury, the court cannot determine the right to recover as a matter of law. (Page 494.)</p> <p>10. Negligence — Contributory Negligence — Questions op Law and Pact. Where the facts are conceded, or there is no conflict in the evidence, and but one conclusion is permissible, the questions of contributory negligence and proximate cause are questions of law, and must be determined by the court. (Page 494.)</p> <p>11. Railroads — Crossing Accident — Contributory Negligence. If a traveler in attempting to cross a railroad track at a public crossing has not complied with the duty which the law imposes upon travelers, to look and listen, and under some circumstances stop, and his failure is the proximate cause of the injury, the law prevents recovery.2 (Page 495.)</p> <p>12. Negligence — Presumption as to Due Care. Where the accident is observed from various points, no presumption, arising from the instincts of self-preservation, can be indulged.3 (Page 495.)</p> <p>13. Negligence — Concurring Negligence — Proximate Cause. Where both parties are equally negligent, the only question is whose negligence was the proximate cause of the accident. (Page 501.)</p> <p>14. Railroads — Crossing Accident — Contributory Negligence — Evidence. In action for injuries due to collision of plaintiff’s automobile with defendant’s interurban train at crossing, held, under the evidence, that plaintiff’s negligence was the proximate cause of the accident. (Page 501.)</p> <p>On Application for Rehearing. »</p> <p>15. Railroads — Crossing Accident — Concurring Negligence. The law imposes the same duty on plaintiff, whose automobile collided with defendent’s interurban train at crossing, as upon defendant, and, since neither discharged the duty imposed by law, the law affords no relief. (Page 504.)</p> <p>16. Railroads — Crossing Accident — Last Clear Chance Doctrine. In action for injury due to collision of plaintiff’s automobile with defendant’s interurban train at a crossing, facts and circumstances held, not to entitle plaintiff to the benefit of the last clear chance doctrine. (Page 505.)</p>

<p>1. Appeal and Error — Review—Weight of Evidence. Where evidence was conflicting, and there was substantial evidence to sustain them, findings will not be disturbed by appellate court.1 (Page 508.)</p> <p>2. Work and Labor — Extra Materials — Contractor’s Right to Recover. A contractor may recover the reasonable value of extra materials and labor furnished regardless of the provisions of the contract, where such work required by the defendant city was wholly unnecessary and without the contract and not contemplated by the parties.2 (Page 508.)</p> <p>3. Contracts — Construction — "Extra Work” — "Additional Work.” The term "extra work” in a construction contract applies to work of a character not contemplated by the parties and not controlled by the contract, while "additional work” is such as may fairly be presumed to arise in the construction, and is within the contract, although not included. in the plans and specifications. (Page 516.)</p> <p>4. Interest — Computation—Demand. In an action to recover under a construction contract for material and labor furnished, interest is recoverable from the date the. claim was duly presented to the defendant city, whether the claim was unliquidated or not.3 (Page 517.)</p> <p>On Application for Rehearing.</p> <p>5. Appeal and Error — Retention of Jurisdiction oe Trial Court After Appeal Perfected. District court had jurisdiction to make an order extending the time for serving and filing the bill of exceptions, though order was made one month after perfecting appeal.4 (Page 518.)</p>

Application by E. William Reese for a writ of prohibition against the Judges of the District Court of Salt Lake County, prohibiting that court from proceeding further in an action therein pending, wherein W. E. Maddison and others are plaintiffs and the applicant and another are defendants.

<p>1. Waters and Water Courses — Irrigation Districts — Organization — Land Included. The organization of an irrigation district, under Irrigation Act, was not invalid because land purchased from the state of Utah on contract without payment of purchase price in full was included in such district, section 1 providing that purchasers of state lands within the proposed district shall be deemed to be owners of land within the district for purpose of becoming petitioners for the organization thereof. (Page 527.)</p> <p>2. Waters and Water Courses — Irrigation Districts — Organization. That unentered public land of the United States was included in irrigation district organized under Irrigation Act, where district court subsequently excluded such land from district, did not invalidate the organization of the district; the inclusion of such land being an irregularity which did not affect any substantial rights. (Page 528.)</p> <p>3. Water and Water Courses — -Irrigation Districts — Assessments of Benefits — Statutes. Irrigation Act, section 11, giving the board all powers necessary fully to carry out the purposes of the act, confers power to determine and assess benefits. (Page 529.)</p> <p>4. Waters and Water Courses — Irrigation Districts — Benefits— Presumption. Where it is found that all lands within the district can be irrigated and made productive by the application of water which will be obtained from the proceeds of irrigation bonds, it will be assumed that all lands lying within the district are similarly situated and will be benefited at least to the extent of the assessment.1 (Page 529.)</p> <p>5. Waters and Water Courses — Irrigation—Statutory Provisions. The Irrigation Act is not invalidated by its provision authorizing the levying of assessments to provide funds to meet anticipated defaults by landowners within the district. (Page 531.)</p>

Joshua Greenwood, Judge. Action by G. N. Harsh against F. H. Neil. Judgment for plaintiff. Defendant appeals. STATEMENT OP PACTS.

<p>1. Municipal Corporations — Building Regulations — School Buildings — Power of City. Comp. Laws 1907, section 206, subds. 55, 56, do not give to cities the power to regulate the construction of public school buildings, in view of sections 1892-1961, placing control of public schools of cities of first and second class in boards of education of such cities, section 1962 as to compulsory attendance, and Const, art. 10, as to control of public school system being vested in Legislature. (Page 542.)</p> <p>2. Municipal Corporations — Police Power — Construction of School Buildings — Regulation by City. The mere fact that no police powers are vested in boards of education is not decisive of the question whether the state has by Comp. Laws 1907, section 206, 'surrendered to cities police power over public school buildings. (Page 547.)</p> <p>3. Municipal Corporations — Construction of School Buildings— "Public Buildings” — “All Buildings.” School buildings are not included within designation “public buildings” or “all buildings” mentioned in Comp. Laws 1907, section 206, subds. 55, 56, as to power of city commission to require buildings to be constructed of fire-proof material, etc. (Page 547.)</p> <p>4. Municipal Corporations — Police Power in General. Police power conferred on cities should be construed and applied so as to meet the dangers incident to and arising out of the subject-matter covered. (Page 549.)</p> <p>5. Evidence — Judicial Notice — Matters of Common Knowledge. The Supreme Court is required to take judicial notice of all matters which are known to all the inhabitants of the cities of the state. (Page 549.)</p> <p>6. Evidence — Common Knowledge — Location of School Buildings. Every one knows that public school buildings of the state are not located in the business districts of cities or in the most densely populated portions. (Page 549.)</p> <p>7. Evidence — Common Knowledge — Location of School Buildings. It is known by all that public school buildings in cities of the state are constructed on sites which are usually more extensive than the ground plans, and that all school buildings are segregated or detached from all other private or public buildings. (Page 549.)</p> <p>8. Evidence — Common Knowledge — Location oe School Buildings.' ■ It is known to every one that the school population in the cities of the state is numerically greater in each succeeding year, and that such growth generally extends over entire resident portions, and while in many instances too large to he accommodated in existing school buildings is nevertheless too small from year to year to justify erection of school buildings such as would be necessary for permanent use. (Page 550.)</p> <p>9. Schools and School Districts — Control oe School Buildings— Intent oe Legislature. It must be assumed, in view of Laws 1915, c. 100, by which Comp. Laws 1907, Section 206, was completely rewritten and re-enacted, that Legislature did not intend to confer unnecessary powers on city authorities respecting control of public school buildings and did not intend to hamper school boards in control of such buildings. (Page 551.)</p> <p>10. Statutes — Construction—Pari Materia. It must be assumed that it was intended that all the laws which affect the public schools and school buildings of the state are to be considered as pari materia and so construed and applied. (Page 551.)</p> <p>11. Municipal Corporations — Fire Ordnance — Validity. Ordinance of Salt Lake City, Section 435, requiring the placing of fire alarms or telephones in all school buildings, is valid. (Page 553.)</p>

J. Louis Brown, Judge. Proceeding for the probate of the will of Peter Hansen, deceased, on petition of Ernest N. MacGregor, proponent, wherein Mrs. Catherine Hansen Brown and others filed protest. Judgment on verdict for contestants, and proponent appeals.

<p>1. Criminal Law — Errors Not Insisted Upon. Only such errors as are insisted upon in appellant’s brief will be considered by court on appeal. (Page 573.)</p> <p>2. Criminal Law — Failure to Afford Opportunity to Plead. That defendant was not afforded an opportunity to plead to information, and was tried without having entered a plea, could not under statute be raised by motion in arrest of judgment, but by motion for new trial. (Page 574.)</p> <p>3. Criminal Law — Reversible Error — What Constitutes. In view of Comp. Laws 1907, Sections 4975, 5080, as amended by Laws 1915, c. 113, as to disregarding errors not resulting in miscarriage of justice, the court on appeal may not reverse a judgment unless some substantial right of defendant has been invaded or ignored.1 (Page 577.)</p> <p>4. Criminal Law — Reversible Error — What Constitutes. Under Comp. Laws 1907, Section 701, as to court not transacting business on legal holiday, and sections 4975, 5080, as amended by Laws 1915, c. 113, as to disregarding errors not resulting in miscarriage of justice where defendant voluntarily went to trial, contested every step, and claimed and was granted every right during the progress of the trial, a judgment of conviction will not be reversed because his plea of not guilty was received and entered on a legal holiday. (Page 579.)</p> <p>5. Criminal Law — Opportunity to Plead — Waiver. Where defendant voluntarily went to trial, contested every step, and claimed and was granted every right known to law during the progress of the trial, he will be held to have waived the right to enter a formal plea, and his conduct will be held tantamount to the entry of a plea in view of Const, art. 1, Section 13.2 (Page 581.)</p> <p>6. Homicide — Misleading Instructions — Justification. The jury was not misled, and defendant was not prejudiced, because court's instruction on excusable and justifiable homicide set forth all of grounds of justification and excuse contained in statute, although ' some of the grounds might have been omitted. (Page 582.)</p> <p>7. Criminai Law — Misconduct op Jury — New Trial. Although it was possible to infer from affidavits in support of motion for new trial that one or two jurors conversed with some person.other than bailiff where affidavits filed by the state fully dissipated the possible inference, motion for new trial on the ground of misconduct of jury was properly denied. (Page 582.)</p> <p>8. Criminal Law — Review—Verdict Supported by Evidence. There being ample evidence in the record to sustain verdict of guilty, the court on appeal will not interfere with it on the ground that the evidence is insufficient. (Page 582.)</p> <p>9. Criminal Law — Review—Judgment. Where the record discloses that defendant was ably defended, that the court’s instructions covered every possible phase of the case, and that every substantial right of defendant was safeguarded, judgment of conviction will be affirmed. (Page 583.)</p>

<p>1. PROPERTY — INJURY DtJE TO OPERATION OP AUTOMOBILE-EVIDENCE OP Ownership. That person who made application for registration of automobile in complicanee with Laws 1915, e. 80, is found using automobile which bears number issued therefore, constitutes substantial evidence in suit for personal injuries due to operation of the automobile that the person who made application is the owner thereof. (Page 588.)</p> <p>2. Property — Automobile—Evidence op Ownership — Registration. Application for registration of automobile made in January, 1917, was, when considered in connection with application of 1916 substantial evidence of ownership of automobile in November, 1916. (Page 589.)</p> <p>3. Municipal Corporations- — Injury Due to Operation op Automobile — Evidence op Ownership. In action for injury sustained by plaintiff street sweeper when defendants’ alleged chauffeur bached automobile out of garage knocking plaintiff down, evidence respecting defendants’ ownership of the automobile held sufficient to take the case to the jury. (Page 589.)</p> <p>4. Master and Servant — Evidence op Relation — Sufficiency. In action for injury sustained by plaintiff street sweeper when defendants’ alleged chauffeur backed automobile out of garage knocking plaintiff down, whether the relation of master and servant existed between chauffeur and defendants held under the evidence for the jury. (Page 589.)</p> <p>5. Master and Servant — Acts Within Scope op Employment — Evidence. In action for injury sustained by plaintiff street sweeper when defendants’ alleged chauffeur backed automobile out of garage knocking plaintiff down, whether chauffeur was driving automobile in business of defendants, or either of them, held under evidence for jury. (Page 589.)</p> <p>6. Master and Servant — Operation op Automobile — Liability—Evidence. That chauffeur was driving automobile owned by defendants would not be sufficient, standing alone, to charge them with consequences of his negligent operation.1 (Page 590.)</p> <p>7. Municipal Corporations — Automobile Accident — Duty op Plaintiff — Instruction. In action for injuries to plaintiff street sweeper by automobile, an instruction held in effect to merely inform jury that plaintiff had right to assume that chauffeur would exercise ordinary care, so that it was not subject to objection that it did not correctly state the law respecting plaintiff’s duty. (Page 591.)</p> <p>8. Trial — Instruction—Invading Province op Jury. In action for injuries to street sweeper by automobile, instruction that, in determining whether chauffeur was defendants’ servant, his acts in driving defendants’ ear, etc., might be taken into consideration, held not subject to objection that it assumed facts which should have been left for determination of jury. (Page 592.)</p> <p>9. Trial — Instructions—Cuke of Error. In action for injury to street sweeper by automobile, instruction that, in determining whether chauffeur was defendants’ servant, chauffeur’s actions "in driving defendants’ ear” might be taken into consideration, held harmless, even if erroneous, in view of the whole charge. (Page 593.)</p>

Proceeding by James Holm, to procure writ prohibiting defendant A. E. Pratt, as Judge of the District Court of Weber County, from exercising jurisdiction respecting certain matters pertaining to the action of Emily D. Preenor against Prank J. Preenor pending in said court.

<p>1. Appeal and Error — Abandonment’ op Notice op Appeal. An appellant may abandon his notice of appeal first given and perfect his appeal by giving a second notice, if given within the time allowed by statute for taking an appeal.1 (Page 600.)</p> <p>2. Divorce — Decree—Sufficiency. Where a decree of divorce fails to provide that it shall not become absolute for six months, as required by Laws 1913, e. 49, pp. 76, 77, it is not void, as, by force of the statute, the provision is read into the decree and becomes a part of it.2 (Page 600.)</p> <p>3. Divorce — Custody op Child. Trial judge held not to have abused his discretion in refusing to modify provision of divorce decree granting custody of child to its mother, although mother had unlawfully contracted a marriage within six months of the rendition of the decree of divorce. (Page 601.)</p>

County, Fourth District; Hon. A. B. Morgan, Judge. Action by. Elias A. Gee, as administrator of the estate of George Baum, deceased, against Thomas J. Smith and others, in which defendants set up a counterclaim. Prom that, part of the decree allowing the set-off, plaintiff appeals.

Wm. H. Bramel, Judge. Action by the Copper King Mining Company, a corporation, against A. M. Hanson and others, to cancel stock certificates, in which Stanton Rolley and others became defendant interveners. From a judgment of nonsuit plaintiff appeals.

<p>1. Appeal and Error — Assignments of Error — Sufficiency. Assignments of error that the court erred in making its findings of fact held insufficient, because failing to indicate whether the errors were of law, or of insufficiency of the evidence to sustain the findings. (Page 616.)</p> <p>2. Appeal and Error — Assignments of Error — Sufficiency. Assignments of error that the court ferred in making its findings of fact held insufficient, in questioning the sufficiency of the evidence, because they failed to point out in what way the findings were unsupported by the evidence.1 (Page 616.)</p> <p>3. Corporations — Meetings of Stockholders — Notice—Estoppel. Secretary of corporation, who gave notices of stockholders’ meeting and participated in the meeting without objection, was estopped to question the regularity of the meeting or the legality of the election of his successor.2 (Page 617.)</p>

D. H. Morris, Judge. W. Percy Nelson was convicted of carnally knowing a female under 18 and over 13 years of age, and he appeals.