Volume 55 — Utah Reports

<p>Appeal from District Court, Third District, Salt Lake County; B. B. Porter, Judge.</p> <p>Suit by George F. Farmer against John W. Christensen7 and another. From judgment for petitioner, defendants appeal. ' '</p>

B. Porter, Judge. Action by John B. Davis against J. W. Mellen and George H. Sims and others, copartners doing business under firm name and style of Salt Lake Transfer Company. Judgment for plaintiff after dismissal of action against the partnership, and Mellen appeals.

M. Stephens, Judge. ' In the matter of the estate of Maren C. Hansen, deceased. Petition by Martha H. Reese, decedent’s daughter, against Henry Hansen, her father, the administrator, to compel an accounting, and for his removal and the appointment of a successor. From a judgment for petitioner, the administrator appeals.

G. Evans, Judge. Action by Murray City against the Industrial Commission of Utah, to set aside its award under the Workmen’s Compensation Act. From a judgment or order for plaintiff vacating and setting aside the award, the Commission appeals.

W. Agee, Judge. Search and forfeiture proceedings by the state of Utah against Hj’rum Jenson, certain intoxicating liquors, vessels, and other property unlawfully used, one Hudson automobile, C. H. Reilly, and P. B. Ryan. From the judgment forfeiting the property, defendants ^Reilly and Ryan appeal.

W. Agee, Judge. Search and forfeiture proceedings by the state of Utah against A. F. Davis, seven hundred and forty-four pints of whisky, two cases of gin, one Paige automobile, and certain other property unlawfully used, Mrs. F. B. Ferrand, and Charles McSwine. From judgment of forfeiture, defendants Ferrand and McSwine appeal.

Louis Brown, Judge. Action by Godfrey J. Badertscher against the Independent Ice Company, a corporation, and Wasatch Coal Company, a corporation. From a judgment against the last-named defendant, the case having been dismissed as to the first, the latter defendant appeals.'

Application by tbe Board of Education of Davis County School District, a municipal corporation, for writ of mandate to require D. F. Smith and others, as County Commissioners of Davis County and Seth C. Jones and others, as officers of said county, to levy taxes in accordance with a certified estimate of the school board.

Application by the Board of Education of Granite School District for a writ of mandate to compel the defendants Charles F. Stillman and others, as the Board of County Commissioners of Salt Lake County, and J. E. Clark and others, as county officers to levy a tax assessment of approximately seven and two-tenths mills on a dollar of the assessed valuation of such district.

<p>Appeal from District Court, Fifth District, Juab County; Geo. Christenson, Judge.</p> <p>Action by Stephen H. Lynch, as receiver, against A. P. Jacobsen. From a judgment for defendant, plaintiff appeals»</p>

<p>1. Trial — Testimony Assumed True on Nonsuit. Testimony for plaintiff must be assumed to be true on motion for nonsuit. (Page 156.)</p> <p>2. Trial — Impeachment by Showing Contradictory Statements. A statement signed by a witness and containing statements of fact inconsistent with his testimony is competent only for purpose of impeachment, and therefore raises a question of credibility of the witness for jury and not the court to decide. (Page 156.)</p> <p>3. Trial — Nonsuit Improper in Pace oe Sustaining Testimony. Court properly overruled motion for nonsuit where plaintiff’s evidence tended to prove his cause of action. (Page 156.)</p> <p>4. Trial — Plaintiff Entitled to Inferences on Motion for Non-suit. On motion for nonsuit, court may give to the plaintiff the benefit of every fair and reasonable inference that might properly be drawn from the evidence by the jury. (Page 156.)</p> <p>6.Trial — Instructions Singling Out Pacts Improper. In action for injuries to employé, instruction held properly refused, in that by singling out certain facts which the evidence tended to prove it invaded province of jury. (Page 158.)</p> <p>6. Master and Servant — Misleading Instruction on Res Ipsa Loquitur. In an employé’s action for injuries, a requested instruction that no negligence is to be presumed because of the happening of the accident held properly refused as misleading, in that jury might have misunderstood the term “accident” to refer to the accident with all attendant circumstances described by the witnesses. (Page 158.)</p> <p>7. Trial — -Necessity of Request for Instructions. If it was the contention of employer, being sued for injuries to employé from broken rung in ladder, that question of whether broken rung rendered ladder unsafe, was for jury, such idea should have been embodied in a proper request. (Page 159.)</p> <p>8. 'Master and Servant — Admissibility of Evidence in Action for Injuries. In action for .injuries to an employé from a loose rung in a ladder, evidence of the hoisting of heavy timbers which sometimes swung against ladder and loosened rungs was admissible to show the cause of the defect and necessity of frequent inspection by employer. (Page 160.)</p> <p>9. New Trial — Verdict Palpably Against Weight of Evidence. Trial judge should set aside verdict for insufficiency of evidence whenever in his judgment the verdict is clearly and palpably against the weight of the evidence, but generally ought , _ il not, in view oí Comp. Laws 1907, section 3478 (Comp. Laws 1917, section 7208), disturb verdict if in his opinion there is substantial evidence to support it, since to do so would be to invade province of jury.1 (Page 160.)</p> <p>10. Appeal and Error---Review of Questions oe Pact. By constitutional provision, appeals do not lie on questions of fact in law cases.2 (Page 162.)</p> <p>11. Appeal and Error — Review of Discretion in Ruling on Motion for New Trial. The granting or denial of a motion for new trial founded on the insufficiency of the evidence to justify the ‘ verdict, where the evidence is conflicting,- rests in the sound legal discretion of the trial judge, and his decision will not be disturbed on appeal unless there is a clear abuse of discretion.3 (Page 162.)</p> <p>12. Appeal and Error — Review of Ruling on Motion for New Trial. Appellate court will examine evidence to ascertain whether there is a substantial conflict or whether there is substantial evidence to support verdict, and if there is a substantial conflict will hold that lower court did not abuse its discretion in refusing new trial, but if evidence is incredible or inherently improbable or inconsistent with natural laws as to impel conclusion that verdict is result of mistake, prejudice, or passion, court will hold lower court in error notwithstanding some conflict in the evidence.4 (Page 164.)</p> <p>13. Master and Servant — Notice of Defect in Ladder as Jury Question. In action for injuries to employé from a loose rung in a ladder, where defense was that employé had slipped off a secure rung, and that employer had no notice of the defect, held,, under the evidence, that the case was for .the jury. (Page 169.)</p> <p>14. New Trim — Insueticienct of Evidence. In action for injuries to employé from loose rung in ladder where defense was that employé had slipped off a secure rung and that employer had no notice of defective rung, court did not abuse its discretion in overruling motion for new trial because of insufficiency of evidence, where evidence was conflicting and subject to different inferences and presented a case of the credibility of witnesses. (Page 170.)</p>

M. Stephens; Judge. Action by James W. Hoggan against the Price Eiver Irrigation Company, a corporation, and others. Judgment for plaintiff, and the named defendant and certain other defendants appeal.

<p>1. Appeal and Echo» — Assignment of Error on Direction of Verdict. The assignment of error relied on by plaintiff appellant all challenging the action of the court In directing verdict, the question raised on appeal is whether defendant as a matter of law can be held under the facts and circumstances to answer for the damages sustained by plaintiff. (Page 190.)</p> <p>2. Counties — Right op County Commissioners to Obstruct Highways. The county officials have a lawful right to temporarily obstruct highways under their jurisdiction for purpose of making improvements and repairs, and this right, when properly exercised, is paramount to the right of the public to free and unobstructed travel. (Page 193.) '</p> <p>3. Highways — Liability op Traction Company por Injuries Due to Obstruction. A traction company, which pursuant to an order of county officials removed from its track on a county road dirt and rock and dumped the same on the road at a place designated by the county officials, to be used for repair of an intersecting avenue, held not liable for injuries to a traveler due to obstruction caused by the materials, which had then been received and taken charge of by the county, in view of Comp. Laws 1907, section 511, subd. 24, as amended by Laws 1911, chapter 119, section 511x24, and Laws 1909, chapter 118, as to jurisdiction of county commissioners over county roads. (Page 194.)</p> <p>4. Highways — Liability fob Obstruction Caused by Lawful Act. While work performed on a public highway in an unlawful , manner or for no lawful purpose cannot be justified although performed under direction of authorized officers, a lawful act performed in a lawful way cannot create a nuisance, and does not give rise to an action in tort. (Page 195.) '</p> <p>GIDEON and WEBER, JJ., dissenting.</p>

<p>Appeal from District Court, Third District, Salt Lake County; J. Louis Brown, Judge.</p> <p>Action hy J. E. Roe against Thea Schweitzer. From judgment for plaintiff, defendant appeals.</p>

W. Agee, Judge. ' Proceedings for compensation under tbe Employers’ Lia^ bility Act by Emma Chandler opposed by A. M. Miller and the- JEtna Life Insurance Company. , Claimant’s application was denied, and she commenced proceedings in the district court against the Industrial Commission, Miller, and the Insurance Company. Judgment dismissing action, and claimant appeals.

<p>Application to Supreme Court by J. Wilmer Booth for a writ of prohibition against Midvale City and another.</p>

<p>Appeal from District Court of Millard County, Fifth District; D. E. Morris, Judge.</p> <p>Junior Overson was convicted of burglary, and appeals.</p>

<p>1. Replevin — Elements or Action in Claim and Delivery. The essential elements of an action in claim and delivery are the same as in the common-law action of replevin. (Page 238.) ■</p> <p>2. Replevin — Pleading of Right of Possession. Complaint' in action of claim and delivery should state facts from which it may he inferred with reasonable certainty that plaintiff is entitled to possession of property at time of commencement of action; an allegation of ownership being insufficient, inasmuch as owner may not be entitled to possession.1 (Page 240.)</p> <p>3. Replevin — Right of Owner to Bring Action. Owner has no right to bring action in claim and delivery, unless he is entitled to immediate possession of the property. (Page 240.)</p> <p>4. Pleading — -Allegations of Complaint. Complaint, in order to state cause of action, must state facts which, if true, will entitle plaintiff to legal or equitable relief. (Page 240.)</p> <p>5. Replevin — Sufficiency of Allegations as to Possession. Complaint, in action in claim and delivery, heM defective in failing to allege plaintiff’s right to possession of the property at the time of bringing the-action. (Page 243.)</p> <p>6. Pleading — Complaint Must Allege Ultimate Fact. .In pleading a cause of action, ultimate fact must be stated. (Page 244.)</p> <p>7. Pleading — Waiver of Defect. In action in claim and delivery where complaint was defective in failing to plead plaintiff’s right to possession, defendant by tendering requested instructions relating to the right of possession, and by permitting court without objection or exception to. give other instructions relating to possession, waived such defect2 (Page 244.)</p> <p>8. Pleading — Answer Sufficient to Raise Issue of Possession. In action in claim and delivery where complaint was defective in failing to plead plaintiff’s right of possession, answer heM not to waive defect. (Page 244.)</p> <p>9. Appeal and Error — Presumption as to Judgment. Every reasonable intendment must be indulged in favor of the judgment. (Page 245.)</p>

<p>Appeal from District Court, First District, Box Elder County; J. D. Call, Judge.</p> <p>Action by Charles C. Hess against Hyrum Udy and W. A. Adams.</p> <p>From judgment for plaintiff against defendant Udy, the latter appeals.</p>

.Appeal from tbe District Cóurt of Weber County, Second District; A. E. Pratt, Judge. In tbe matter of the estate of Richard Slater, deceased. From an order or judgment appointing Howell Slater administrator of tbe estate of said deceased, James Slater appeals.

<p>Original action by Barto Retenna, guardian of Domineck Barda, to review compensation proceedings before the Industrial Commission of the State.</p>

<p>1. Prohibition — Hearing oe Premature Appear. Prohibition is the proper remedy to prevent the district court from hearing an appeal from a city court taken prematurely1 (Page 270.)</p> <p>2. Appeal and Error — Dismissal oe Premature Appeal. An appeal taken prematurely is of no' avail, and should he dismissed on application.2 (Page 270.)</p> <p>1 Courts — Premature Appeal erom City to District Court. Under Comp. Laws Utah, 1917, section 7514, where no judgment was actually entered in the city court until January 9th, notice and undertaking on appeal filed by defendant the preceding December 9th were premature and ineffectual for purposes of an appeal to the district court, despite a stipulation of the parties that the clerk might enter judgment dated nunc pro tunc as of November 26th.3 (Page 271.)</p>

G. Evans, Judge. Consolidated actions by Helen D. Ernst against William Allen and others and by William Allen and others against Mrs. Helen Langford. From decree for plaintiffs and defendants Allen and others. Ernst and Langford appeal.

<p>'Appeal from District Court of Utah County, Fourth District ; A. B. Morgan, Judge.</p> <p>Action by E. W. Clark and others against L. W. Lund. From judgment of dismissal, plaintiffs, appeal.</p>

B. Morgan, Judge. Suit by Hyrum H. Pool against Fred Motter and another. From a judgment for plaintiff, awarding him costs only, and dismissing the'complaint and cross-complaint, the plaintiff appeals.

<p>1. Master and Servant — Evidence Showing Injury to Third Person by Servant’s Negligence in His Employment. In an action by a plate glass insurer to recover from a garage keeper damages to the front of a hotel caused by backing an auto bus from the garage into it, evidence held to sustain finding that defendant, “by his servants and employés acting within the scope of employment, committed the injuries complained of. (Page 296.)</p> <p>2. Master and Servant — Ownership oe Automobile Does Not Establish Liability. The mere fact of ownership of an automobile will not establish liability of the owner for injuries resulting from negligent operation by one to whom the^ owner has lent the car, something more than ownership- being required to establish agency or the relation of master and servant between the owner and a borrower or negligent operator.1 (Page 297.)</p> <p>3. Appeal and Error — Harmless Error in Exclusion of Documentary Evidence Otherwise Developed. In a plate glass insurer’s action against a garage keeper for damages through the negligence of the keeper’s employe in backing an auto bus into a hotel front, exclusion from evidence of a hook of accounts between defendant garage keeper and a third person, who drove the bus on a percentage basis, held harmless to defendant, who testified at great length and without contradiction as to his business and settlements with the bus operator. (Page 297.)</p>

<p>1. Appeal and Error — Exclusion or Evidence Harmless Errob. Where every legitimate purpose for which a former question to which objection was sustained could have been asked was fully covered by the answer of the same witness to a subsequent question, any error in sustaining objection to the first question was harmless. (Page 301.)</p> <p>2. Highways — Passengers in Automobile not Liable eor Collision. Passengers in an automobile with the owner thereof are not liable for injuries to a motorcycle rider collided with, unless they were engaged in a joint enterprise with the owner of the car, or on their own part were negligent. (Page 301.)</p> <p>3. New Trial — -Verdict May Be Set Aside by Court on Own Motion. Under Comp. Laws Utah 1917, section 6983, in an action against several defendants, where the court considered the evidence against some of the defendants insufficient to sustain verdict against them, it should have set the verdict aside of its own motion. (Page 302.)</p> <p>4. Appeal and Error — Court Does Not Err in Failing to Set Aside Verdict 'on Own Motion. Where certain defendants, neither of themselves nor by their counsel, requested or moved the trial court to set aside the verdict as against them as unsupported by evidence, the assignment that the court erred in failing to act on its own motion cannot be sustained except perhaps in a very extreme case. (Page 303.)</p> <p>5. Appeal and Error — Motion eor New Trial Equivalent on Appeal to Request for Directed Verdict. Motion of several defendants for new trial on. account of insufficiency of tide evidence to justify verdict against them was equivalent to request for a directed verdict, and should have the same effect on appeal, though the motion was submitted without argument, and disposed of without specification of the particulars in which the evidence was claimed to be sufficient. (Page 303.)</p> <p>6. Appeal and Error — -Insufficiency of Evidence Waived by Failure to Move for Verdict and New Trial. If after failing to move for directed verdict defendants had also failed to move for a new trial for insufficiency of evidence to sustain verdict against them, the question of the insufficiency of the evidence would not have been waived on appeal.1 (Page 304.)</p>

H. Bramel, Judge. Habeas corpus by Louise Jensen against E. S. Hinckley, Superintendent of the Utah State Industrial School. From judgment quashing the writ and remanding petitioner's son to custody, petitioner appeals.

Tobin, Judge. Dennis F. Terrell was convicted of an assault with a deadly weapon with intent to do bodily harm, and he appeals.

<p>1. Evidence — 'Witnesses Competent to- Testify Regarding Value of Automobile. Witnesses with, experience in repairing and dealing in secondhand automobiles, and some of whom had previously negotiated with plaintiff with a view to buying his machine, held competent to testify regarding the value of plaintiff’s automobile. (Page 333.)</p> <p>2. Raileoads- — Failure to Look Not Cause of Crossing Accident. Where plaintiff’s automobile, stalled on the tracks by reason of a defective crossing, was struck by an engine driven without lookout, his failure to- look and listen before going on the track cannot be held to have been the cause of the injury. (Page 334.)</p> <p>3. Railroads — -Duty to Look and Listen Reciprocal. Person operating a railroad engine and an automobile driver attempting ' to use a railroad crossing have a reciprocal duty to look and listen.1 (Page 334.)</p>

<p>1. Appeal and Error — Evidence Considered Favorably to Plaintiff on Review of Judgment on Directed Verdict. On plaintiff’s appeal from judgment for defendant on directed verdict, the Supreme Court will consider and apply the evidence in the light most favorable to plaintiffs cause of action. • (Page 338.)</p> <p>2. Master and Servant — Contributory Negligence of Inexperienced Job Press Feeder for Jury. “Whether inexperienced fourteen year old job press feeder operating a “rocker tail” job press was contributorily negligent in placing his hands between the upper edge of the rocker tail and the crank shaft, for purpose of rescuing a slip which had been printed and which he bad been instructed not to spoil or lose, held for tbe jury under the evidence. (Page 342.)</p> <p>3. Master and Servant — Appreciation of Danger by Minor Em-ployé Jury Question. Where it is not clear from all the facts and circumstances, including the age and experience of minor employé, whether he ought to have known, and appreciated the danger of the work he was doing, the question of whether he did appreciate the danger is one of fact for the jury and not of law for the court. (Page 342.) ■ '</p> <p>4. Evidence — Judicial Notice. It- is a matter of common knowledge that it is lack of judgment, rather than want of knowledge, which minimizes both fear and caution in the young -and inexperienced mind. (Page 342.)</p> <p>5. Master and Servant — Negligence of Minor Employé Precludes Recovery for Injuries. The law does not permit a minor servant to escape the consequence of his own negligence, where it is clear that he did know and appreciate, or must have known and appreciated, the danger. (Page 343.)</p> <p>6. Master and Servant — Negligence in Failing to Warn Youthful Inexperienced Employé Jory Question. In action for injuries to inexperienced fourteen year old job press feeder, where there was evidence that both acting foreman,' who employed him, and the general foreman, observed that he was not - an experienced or skilled press feeder, whether it was negligence not to instruct or warn him as to the danger of the work held for jury.1 (Page 344.)</p> <p>7. Master and Servant — Employer Must Warn Minor Operating Machinery. Owners of machinery, who employ minors to operate the machinery, must see to it that the minors are properly instructed and cautioned with respect to all the dangers that are necessarily incident to the operation of such machinery. (Page 344.)</p>

<p>Appeal from Seventh District Court, Sanpete County; George Christensen, Judge.</p> <p>Action by John Armstrong against James Larsen.</p> <p>Judgment for defendant, and plaintiff appeals.</p>

District Court, Third District, Salt Lake County,- Wm. PL. Bramel, Judge. Action by Mertie T. Malstrom against J. C. Lund, brought in the City Court of Salt Lake City. From a judgment for plaintiff, defendant appealed to the district court, where judgment was also rendered for plaintiff, and defendant appeals.

<p>1. Jury — Statutory Action for Use of Subcontractor On® at Law. An action hy hoard of education under Comp. Laws 1917, section 3753, for use and benefit of a subcontractor against the principal contractor and his surety, is one at law triable hy jury. (Page 360.)</p> <p>2. Jury — Jury Trial — Waiver. Where an intervener in an action hy hoard of education under Comp-. Laws 1917, section 3753, for the use and benefit of a subcontractor against the principal contractor and his surety, did not demand a jury within time fixed hy section 6782 for trial of the issues between himself and the general contractor, held that, where those issues were distinct from the rest of the case, intervener’s legal right to a jury was waived.1 (Page 360.)</p> <p>3. Jury — Denial of Jury Trial After Failure to Demand Not Abuse of Discretion. Where intervener did not request a jury trial in accordance with Comp. Laws 1917, section 6782, so as to he entitled thereto as a matter of right, held that, though the trial court might have exercised its legal discretion by ordering a jury trial on intervener’s application thereafter made upon his showing a satisfactory excuse for failure to make timely application, the denial of intervener’s application for jury trial cannot he treated as an abuse of discretion, where there was no showing as to excuse for failure to make timely application2 (Page 363.)</p> <p>4. Damages — Presumption of Damages to General Contractor, by Subcontractor’s Use of Deeective .Material. Where a subcontractor engaged to paint a school building used defective materials which did not comply with the contract and which would not last so well as those specified, the general contractor may recover damages resulting from the subcontractor’s use of defective material; there being no presumption that the school authorities would not hold the general contractor to strict accountability and require compliance with the specifications of the contract. (Page 366.)</p> <p>5. Contracts — Acceptance Without Knowledge oe Defects Not Effective to Waive Defects. Where a subcontractor doing the painting on a school building, after being warned that defective materials would not be accepted, falsely assured the inspector for the school authorities that the materials used were substantially those specified / in contract, any acceptance of the work based on such false representations of the subcontrkctor is not binding so as to prevent the general contractor, who would be required to make the deficiency good, from recovering from the subcontractor damages resulting from his failure to comply with the specifications. (Page 366.)</p> <p>6. Contracts — Waiver of Defective Performance by Part Payment. Payment by contractor to subcontractor of a sum to apply on the subcontract, made before contractor knew that materials used by subcontractor were inferior and not in substantial compliance with the specifications and contract, was not a waiver of such defects. (Page 366.)</p> <p>7. Costs — Costs Divided Where Error in Judgment was One 'Only of Computation. Where the findings of fact of the district court were correct, and the only error in the judgment was one of computation, costs will on appeal be divided, though the cause was remanded, with direction to correct the error. (Page 367.)</p>

<p>Appeal from District Court, Third District, Salt Lake County; Wm. H. Bramel, Judge.</p> <p>Action by James A. Muir against Murray City.</p> <p>Judgment for plaintiff, and defendant appeals.</p>

G. Evans, Judge. Action by the Associated Investment Company, a corporation, against William Cayias and another, a copartnership doing business as the Portóla Pool Hall. Judgment for plaintiff, and defendants appeal.

<p>1. REFORMATION OF INSTRUMENTS-PROOF OF MUTUAL MISTAKE TO Authorize Reformation Must Be Convincing. Mutual mistakes can be corrected,- and courts will reform a contract so as to express wbat the parties actually agreed on and make it express the terms on which the minds of both parties met, but the proof must be clear, distinct, satisfactory, and convincing', and not merely a preponderance of the evidence1 (Page 386.)</p> <p>2. Evidence — Inference Against Party From Failure to Rebut Adverse ^Evidence. When a party has the means in his power of rebutting and explaining the evidence adduced against him, if it does not tend to the truth, omission to do so furnishes a strong inference against him. (Page 389.)</p> <p>3. Appeal and Error-Findings in Equity May Be Disregarded. In an equity case, when the findings of fact are clearly not justified by the evidence, in the opinion of the.Suprehie Court, it is the court’s duty to arrive at the conclusion it thinks compelled by the proof, regardless of the trial judge.2 (Page 392.)</p> <p>4. Reformation of Instruments — Mistake in Omission From Contract of Water Rights or Stock Shown by Evidence. Evidence held to show that written contract for the sale of land by defendants to plaintiffs omitted certain water rights or shares of stock in an irrigation company by mutual mistake of the parties known to and fraudulently relied upon by a defendant. (Page 392.)</p>

B. Morgan, Judge. Action by Otho S. Houston and another against,the Utah Lake Land, Water & Power Company and others, in which A. F. Starr and others intervene. Otho S. Houston dying after action was brought, his widow, Elizabeth Houston, as executrix of his last will and testament, intervened. Judgment for defendants, and plaintiffs and the inter-veners appeal.

<p>1. Public Lands — Requirement That Preference Right Application FOB PURCHASE OF SCHOOL LAND “MUST” Be MADE W'lTHIN Ninety Days of Filing of Plat Not Mandatory. Failure of occupant of school1 state lands claiming under' original settlers to1 make preference right application to purchase land within ninety days after plat has been filed, under Comp. Laws -1917, section 5588, providing that application “must” be made within such time, does not preclude state board of land commissioners from issuing certificate of sale where no other application has been made between date of filing of plat and making of occupant’s application; the word “must” not being mandatory in view of Rev. St. U. S. section 2266. (Page 406.)</p> <p>2. Judgment — Relief to Be Consistent with Rules of Practice Applicable to Particular Proceedings. Courts must proceed in an orderly manner, and the relief awarded in a given case must be such as is consistent with the rules of practice applicable to the proceedings in which the relief is sought. (Page 407.)</p> <p>3. Mandamus — Issuance of Certificate of Sale to Occupant of School Land Not an Imperative Duty. Under Comp. Laws 1917, section 7391,, writ of mandamus will not be granted to compel State Board of Land Comrhissioners to issue certificate of sale to occupant of school land claiming under original set-tier and applying therefor under section 5588, providing that such occupant “may he permitted to purchase such lands,” the issuance of the certificate not being an imperative duty.* (Page 408.)</p>

<p>1. Municipal Corporations — -Ail Vehicles Have Equal Rights on Stkeets. Comp. Laws 1917, sections 3978, 3985, are merely declaratory of the law of the road; and, in the absence of a regulating ordinance, all vehicles including automobiles and bicycles, have equal rights on the streets. (Page 417.)</p> <p>2. Municipal Corporations — Liability itoe Injury to Bicycle Rider on Wrong Side of Street. Though when street or highway is not used by others one may drive on any part thereof, yet, whah a traveler on bicycle passes from the right to the left of the center of the street he loses some of his rights, and may not be heard to complain of the conduct of those who are on the proper side of the street to the same extent as though-he also were on the proper side. (Page 417.)</p> <p>3. Municipal Corporations — Driver of Automobile May Assume That One Approaching on Bicycle from Opposite Direction will Continue on Proper Side of Street. Where one operating his vehicle on proper side of the street makes a survey of condition of the street ahead and observes no one coming on his side of the street, hut sees one coming toward him on the opposite side of the street, he may assume that such person will continue on the opposite side.1 (Page 418.)</p> <p>Munioipal Corporations — Cab® of Auto Driver Approaching Intersection-. A greater degree of care is required of driver of automobile in approaching intersections than between street crossings. (Page 418.)</p> <p>Municipal Corporations — Driver op Automobile Must Exercise “Ordinary and Reasonable Care.” The care and vigilance required of one operating an automobile on city streets must always measure up to the standard required by law, which is to exercise “ordinary and reasonable care,” which is that degree of care which the circumstances and surroundings require and which Is commensurate with the danger that may be encountered. (Page 418.)</p> <p>Municipal Corporations — Driver op Autotruck Not R?&-quired to Maintain Lookout for Vehicles on Opposite Side op Streets. Driver of defendant’s autotruck on proper side of street (Comp. Laws 1917, section 3978), and not on or near a crossing, could relax his vigilance, and was not bound to maintain a constant lookout for any one approaching on the opposite side of the street2 (Page 419.) ' s</p> <p>Municipal Corporations' — Acts op Negligence op Automobile Driver Not Pleaded Oannot Be Proven. In action for injuries due to plaintiff being thrown from his bicycle in front of defendant’s approaching autotruck, no act of negligence not charged could be legally proven. (Page 420.)</p> <p>Negligence — Presumption that Perilous Condition Which Ought to Have Been Discovered Was Discovered. Where one owing duty to maintain a lookout could in the exercise of ordinary care and vigilance have discovered the perilous situation of plaintiff in time to have averted injury, the law presumes that he saw what he ought to have seen, and actual discovery is not necessary.3 (Page 422.)</p> <p>Municipal Corporations — Presumption is Against Bicycle Rider on Wrong Side op Street. While plaintiff thrown from his bicycle to wrong side of street in front of approaching, autotruck was not a trespasser, yet the fact that he was on the wrong side of the street when he was injured created a presumption against him. (Page 422.)</p> <p>10. MUNICIPAL CORPORATIONS-DRIVER OP AUTOTRUCK NOT LIABLE Under Last Clear. Chance Doctrine. Since driver of auto-truck on proper side of street did not owe plaintiff approaching on a bicycle on opposite side of street the duty of constant lookout, the plaintiff to make out a case under the last clear chance doctrine, must show more than that autotruck could have been stopped or turned aside within a distance of ten to fifteen feet after plaintiff was thrown from his bicycle in front of the truck. (Page 422.)</p> <p>11. Municipal Corporations — Plaintiff Thrown prom Bicycle in Front op 'Approaching Autotruck Not Entitled to Recover. In action for injuries due to plaintiff being thrown from his bicycle in front of defendant’s approaching autotruck, there being a presumption of a clear roadway in favor of driver, plaintiff, to recover uniter the doctrine of discovered peril, must prove some positive act constituting negligence, and cannot recover on proof alone that, if driver had maintained a constant lookout, he could have discovered plaintiff’s peril in time to have avoided the accident. (Page 423.)</p> <p>12. Municipal Corporations — Plaintipp Injured by Autotruck Had Burden op Showing Negligence., In action for injuries due to plaintiff being thrown from his bicycle in front of defendant’s approaching autotruck, plaintiff had burden of showing negligence. (Page 423.)</p> <p>13. Constitutional Law — Legislature Not Courts to Regulate Use op Automobiles. If more stringent regulations arei required for use of motor vehicles on the streets, it is the duty of the Legislature, and not courts, to provide the remedy and to impose the required regulations. (Page 424.)</p>

<p>1. Yen-dob and Purchaser — Tender of Price Not Required Where Vendor Repudiates Contract. Under an option for tbe sale of lond providing that, if the optionee should offer to comply with the terms of payment, the optionor would convey and furnish an abstract, a tender of the price by the optionee was unnecessary where he offered to proceed with the agreement, and the optionor, instead of furnishing an abstract, repudiated the contract and said there was no contract.1 (Page 428.)</p> <p>2. Vendor and Purchaser — Nominal Consideration for. Option Sufficient. One dollar is an adequate consideration for an option to purchase land if the consideration for the purchase of the land is adequate. (Page 429.)</p> <p>3. Specific Performance- — Option Sufficiently Definite Regarding Time of Payment. An option to purchase land providing that one-fourth of the price should he paid in cash, one-fourth on or before a specified date,-and “balance ten years time at eight per cent, per annum,” was sufficiently definite as to the time of payment of principal and interest to justify specific performance. (Page 429.)</p> <p>4. Specific Performance — Option Not Fatally Uncertain. An option to purchase land providing for the transfer of title subject only to such liens and incumbrances as were to be assumed implied some form of security, and was not too indefinite to be specifically enforced in the absence of any showing that the security contemplated was inadequate. (Page 429.)</p>

<p>1. Appeal and Ekrok — In Equity Suit Supkeme Coukt Has Duty to.Review Evidence. In an equity proceeding, as for decree adjudging plaintiffs to be owners of a water filing, quieting title thereto as against defendants, and annulling an alleged sale or assignment thereof, it is the duty of the Supreme Court to review the evidence and determine whether the findings of the lower court are supported by the weight of the testimony. (Page 435.)</p> <p>2. Frauds, Statute of — Right of Ail Concerned to "Water, Filing Made by Single Party Under Oral Agreement. Where plaintiffs complied with their part of an oral agreement as to the construction of an irrigation canal, paid oyer their pro rata share of the cost of a water filing made by a defendant, and did their full duty in constructing the canal, took their water through it, and, by a water master elected annually, in which election defendant participated, distributed to him his share of the water, as well as the shares of the other owners, plaintiffs are entitled to a decree adjudging them to be owners of the water filing made in the state engineer’s office by defendant alone, and to decree quieting title thereto against defendant and his successors; the statute of frauds not being in vocable to defeat plaintiffs’ rights.1 (Page 436.)</p> <p>3. Waters and Water Courses — Evidence Supporting Judgment Determining Ownership oe Water Filing. In suit for decree adjudging plaintiffs to be the owners of a water filing made by an individual defendant, and quieting title thereto against him and his successor, the corporate- defendant, also annulling the individual defendant’s assignment of the filing to the corporate defendant, evidence held, to support finding that the corporate defendant had notice of plaintiffs’ interest in the water filing2 (Page 437.)</p> <p>4. Waters and Water Courses — Assignee oe Water Filing With Notice Took Subject to Adverse Eights. A reclamation company, which accepted assignment of a water filing with notice of an adverse interest therein, took subject to all the equities and rights of the adverse parties. (Page 437.)</p>

B. Morgan, Judge. . , Action by the National Realty Sales Company, a corpora-1 tion, against H. J. Ewing and others. From judgment and decree for defendants, plaintiff appeals.

<p>1. Municipal Coepoeations — City Had Atjthobity to Create Residence Dtsteiot. Under Comp. Laws 1917, sections 570x69, 570x70, 570x87, a city had the right to exclude foundries from a particular section of the city, in good faith created a residence district, although there were other sections in the city, where the conditions were similar in character, which were unaffected by the ordinance establishing the district.1 (Page 452.)</p> <p>2. Municipal Coepoeations — Creating Residence! Disteict and Prohibiting Operation of Foundry No Violation of Organic .Law. An ordinance of a city, creating a residence district under Comp. Laws 1917, sections 570x69, 570x70, 570x87, and prohibiting the operation of foundries, etc., therein, does not violate any rights guaranteed by the organic law of the state. (Page 453.)</p> <p>3. Eminent Domain — Exclusion of Industrial Plants from Residence District, Not Taking o-f Property Without Compensation. Where the creation of a residence district would extend to the needs of the general public the power to regulate or prohibit by ordinance the invasion of such a district by industrial plants ought not to be questioned on the ground that the exclusion of an industrial plant would be the taking of property for public use without just compensation. (Page 454.)</p>

<p>1. Mandamus — Injured Employé May Personally Maintain Mandamus to Compel Payment of Compensation Under Workmen’s Compensation Aot. A school teacher who was awarded compensation for personal injuries hy the Industrial Commission may sue in mandamus in her own name to compel the school hoard to pay the compensation awarded; Comp. Laws 1917, section 3130, providing that such an action could he brought in the name of the state, providing only a cumulative remedy. (Page 463.)</p> <p>2. Mandamus — Party Beneetoiaily Interested May Maintain. Mandamus is a special proceeding which the party beneficially interested may always institute and maintain in his own name and behalf. (Page 463.)</p> <p>3. Schools and School Districts — Not Liable eor Personal Injuries. Actions for damages for personal injuries will not lie against school districts; such districts being corporations with limited powers which act merely on behalf of the state in discharging the duty of educating the children of school age in the public schools created by the general laws. (Page 463.)</p> <p>4. Master and Servant — Failure oe Compensation Act to Provide How Funds Shall Be Raised Does Not Relieve School Districts erom Paying Compensation eor Injury to Teacher. While the Workmen’s Compensation Act merely requires school districts to pay compensation, and does not provide how the fund to pay the compensation shall be raised, yet that, standing alone, would not; necessarily relieve a school district from the power or duty of paying compensation awarded, nor would the fact that the school funds partake of the nature of trust funds. (Page 465.)</p> <p>5. Master and Servant — Compensation Under Workmen’s Compensation Act Not Damages But Salary. Compensation awarded under the Workmen’s Compensation Act is not damages for injuries sustained, hut is compensation pure and simple, being merely another term for salary or wages. (Page 469.)</p> <p>6. Constitutional Law — Courts May Not Strike Down Laws Because Lacking in Detail. The courts may not strike down laws or refuse their enforcement because they may be imperfect or lacking in some detail; it being the duty of the court to enforce the law as it finds it, regardless of what the results in a particular case.may be. (Page 469.)</p> <p>7. Master and Servant — Compensation for Injuries to Teacher Under Workmen’s Compensation Act Payable Out of “Support and Maintenance” Fund. Under Workmen’s Compensation Act a school board is liable to an injured teacher for an amount awarded to her as compensation by the Industrial Commission, and such amount is payable out of the funds that are raised by taxation for the support and maintenance of the schools; the term “support and maintenance” under Comp. Laws 1917, section 4704, being ample in scope and meaning to cover compensation provided for in the act, where the school district has not contributed to the state insurance fund. (Page 469.)</p> <p>8. Statutes — Intent Must Be Given Effect. Unless there is some constitutional or other fundamental objection, it is the duty of the courts to place such a construction upon the different provisions of the statutes as will make the legislative intention effective, unless prevented from doing so by the ordinary rules and canons of interpretation and construction. (Page 469.)</p> <p>9. Schools and School Districts — Award of Compensation Need Not Be Verified or Audited. Compensation awarded a school teacher under the Workmen’t Compensation Act is a liquidated claim partaking of the nature of a judgment against the school district, and the board has no discretion respecting its allowance or payment, and hence it need not be verified or audited. (Page 472.)</p> <p>10. Mandamus — Right to Have Act Performed Must Be Clear.. Where public officers are sought to be coerced by a writ of mandate to do certain acts, the right of the plaintiff to have the acts performed must be clear, and the corresponding duty upon ■ the officer to do the required act must be correspondingly clear. (Page 472.)</p> <p>11. Mandamus — Will Not Lie to Compel Officer to Make Payment in Absence of Funds. While a public officer or board may by mandamus be coerced to pay a particular claim, in order to obtain a peremptory writ for payment, it must be alleged and, if denied, proved that such officer or board has funds with which to pay that particular claim.1 (Page 472.)</p> <p>12. Mandamus — School Board May Be Required to Pay Compensation to Injured Teacher in Absence of Special Appropriation. Mandamus will lie against a school board to compel payment of compensation awarded under the Workmen’s Compensation Act if the board has sufficient money in the support and maintenance school fund to pay the claim, although the board has not made a special appropriation for the payment of compensation. (Page 473.)</p>

<p>Appeal from District Court of Salt Lake County, Third District; H. M. Stephens, Judge.</p> <p>Action by Florence Harris against Ernest Speirs.</p> <p>Judgment for plaintiff, and defendant appeals.</p>

Proceedings for compensation by Theras Lappas, employe, opposed by the American Fuel Company of Utah, employer. Award for claimant, and the employer petitions for a writ of certiorari directed to the Industrial Commission of Utah.

Original proceedings by David Jones and others for writ of certiorari to the Industrial Commission, to review the proceedings of the commission in awarding compensation for the death of one Joseph Hyrum Rowley.

<p>Mandamus by Bengt A. Peterson to compel P. G. Evans, as District Judge of Salt Lake County, to take steps to bring a certain cause to trial.</p>

<p>1. Mandamus — Denial of Juey in Action to Set Aside Awaed no Defense Against Mandamus to Enforce Award Set Aside by Judge, But Reinstated on Appeal. In mandamus to enforce an award of the Industrial Commission against a city, the city cannot complain that in its action to set aside the award it was denied a jury trial, where the trial court granted the relief prayed for, hut it was reversed on appeal. (Page 526.)</p> <p>2. Evidence — Knowledge by Party to Prior Action of Effect of Judgment Presumed. In mandamus' to enforce an award of the Industrial Commission against a city, the city, which was'represented by" counsel at all stages of the proceedings, is conclusively presumed, to Know which of two cases in the district . court, respecting the award was appealed, and that the judgment on appeal was final and conclusive. (Page .526.)</p> <p>3. Mandamus — Order for Payment of Money by City Suspended Because of Inability to Pax Until Following Year. Where a city has no money with which to pay an award of the Industrial Commission, and its resources for the current year had been exhausted, a writ of mandamus will be held in suspense until the expiration of that year. (Page 526.)</p>

<p>1. False Pretenses — Evidence Insueetcient to Establish Ceime. In a prosecution for having obtained certain cattle hy fraudulent and false pretenses, checks given therefor having been dishonored, evidence held insufficient to establish a violation of Comp. Daws 1917, section 8344, not showing any intent to cheat or defraud, nor any actual fraud, nor a fraudulent representation or false pretense to perpetrate the fraud, nor that the alleged fraudulent representation or pretense induced the owner to part with the cattle. (Page 533.)</p> <p>2. False Pretenses — Promise to Pay Without Intention oe Performing Not a “False Pretense” — “Fraudulent Representation.” The representation by the buyer of cattle that he would pay therefor on their arrival, though made without intention to pay, was not a “fraudulent representation” or “false pretense’’ in the legal acceptance of the terms. (Page 533.)</p> <p>3. Fame Pretenses — Occurrences After Owner Parted With Possession Do Not Sustain Charge. What may have taken place between defendaht and the owner of cattle after such owner had parted with them, by reason of which happenings the owner sustained pecuniary loss, could not support charge against defendant of having obtained the cattle by false pre- • tenses. (Page 534.)</p> <p>4. False Pretenses — Conviction Unsustained by Uncorroborated Verbal Testimony of Complainant. Under Comp. Laws 1917, section 8991, in a prosecution for having obtained cattle of another by false pretenses, the uncorroborated verbal testimony of the complaining witness was insufficient to sustain conviction. (Page 534.)</p>

<p>Appeal from District Court, Third District, Salt Lake County; John F. Tobin, Judge.</p> <p>Action by Euth Wilcox against Margaret Jamison and another. ' 1</p> <p>Judgment for plaintiff, and defendants appeal.</p>

<p>1. Malicious Prosecution — Allegation That Defendant Did Not Use “Due Care” to Ascertain Facts Held Insufficient. In an action for malicious prosecution, an allegation that defendant did not use due care to ascertain whether or not a check was forged, or genuine, was not equivalent to an allegation that the prosecution was instituted without probable cause and was insufficient to state a cause of action.1 (Page 543.)</p> <p>2. Judgment — Must Be Based on Complaint Stating Cause of Action. In the absence of allegations essential and necessary to the statement of a cause of action, a judgment cannot be upheld. (Page 543.)</p>

<p>Appeal from District Court of Salt Lake County; W. E. Bramel, Judge.</p> <p>Action by Martha A. Adamson against Andrew Adamson, Jr., and another.</p> <p>From the judgment rendered, plaintiff appeals.</p>

<p>1. ’Witnesses — State May Not Impeach Own Witness By Siiow-ino Reputation; But May Show Inconsistent Statements. The state may not impeach its own witness by showing his general reputation for truth and veracity, but, where a witness makes conflicting statements, may call his attention to such statements, and in case he has misled or deceived the state to its prejudice, it may, under certain circumstances, produce the persons 'who heard him make the statements which conflict with his testimony, and show by them what the. witness said.1 (Page 559.)</p> <p>2. Witnesses — Error to Permit Prosecutor to Interrogate Own Witness for Purpose of Impeachment. The court erred in permitting prosecuting attorney to interrogate a witness for the state for the purpose of impeachment by showing inconsistent statements, where the witness made no contradictory statements, and had not misled the state as to what his testimony would be. (Page 559.)</p> <p>3. Witnesses. — State Cannot Assail Own Witness for Purpose of Impeachment. In a criminal prosecution, when a dealer testified as to time that accused bought certain articles from him, and defendant on cross-examination introduced a sales slip showing a sale of the articles on a date other than that contended by the state to be the date of the sale, the court erred in permitting the state to assail the dealer and interrogate him for the purpose of impeachment, or to reflect upon the motives of the witness and his veracity, merely because the dealer insisted that the date on the sales slip was the date upon which the transaction was had. (Page 561.)</p> <p>4. Criminal Law — Courts Take Judicial Notice of Natural Laws and Time of Sunset. Courts are bound to take judicial notice of natural laws, and hence that at Milford the sun set on the evening of December 13th at 5 o’clock, that darkness of night set in at 6 o’clock,, and that it was completely dark before 7 o’clock, and that the sun passes below the horizon more nearly perpendicularly in winter than in summer, and that twilight is correspondingly shorter in winter than it is in summer.2 (Page 562.)</p> <p>5. Criminal Law — Latitude in Cross-Examination Not Disturbed Except por Abuse of Discretion. While it is true that much latitude must be allowed to the trial courts in permitting cross-examination of witnesses, and that their rulings in that regard will not be disturbed, unless it is made to appear that the discretion with which the law invests them has been abused, yet when it is manifest that legitimate bounds of cross-examination by the state of its own witness has been transcended to the prejudice of the defendant, a judgment of conviction cannot stand. (Page 562.)</p> <p>6. Rape — Proof of Female’s Unchasity Not Competent Where Accused Denies Any Sexual Relations. In a rape case, where ■ defendant denied that he was with the prosecutrix on the night in which he was alleged to have committed the wrongful act, or that he ever had sexual intercourse with her, accused was not entitled to prove that the general reputation of the prose-cutrix for chastity was bad, at least when not introduced for the purpose of affecting the credibility of the prosecutrix. (Page 563.)</p> <p>7. Rape — General Reputation oe Prosecutrix eor Unchastity , Competent Where Sexual Act is Admitted. Where defendant in prosecution for rape by force admits the sexual act, or contends that the prosecutrix consented thereto, evidence that the general reputation of the prosecutrix for chastity was bad is admissible.3 (Page 563.)</p> <p>8. Rape — Proof of Unohastity of Prosecutrix Inadmissible in Statutory Prosecution. It is inadmissible in a prosecution for statutory rape, where sexual intercourse is had with a female under the age of consent, to prove that the general reputation of the prosecutrix for chastity is bad. (Page 564.)</p> <p>9. Rape — Proof of Specific Unchaste Acts on the Part of Prosecutrix Inadmissible. If it is desired to prove that a prose-cutrix in a rape case is a lewd woman, that may only be done by attacking her general reputation lor chastity and morality, and not by showing specific acts of wrongdoing. (Page 566.)</p> <p>10. Criminal Law — Other Acts of Intercourse Between Prosecu-trix and Accused Ordinarily Competent. That the prosecutrix in a rape case has had intercourse with the defendant at other times than the one in question may ordinarily be shown. (Page 566.)</p> <p>11. V/itnesses — Proof of Intercourse with Third Person Sometimes Competent to Show Motive of Prosecuting Witness. In a prosecution for rape, where it was the theory of defendant that prosecutrix had intercourse with a third person, and that, to shield herself in "view of supposed pregnancy, she wrongfully charged defendant with the offense, the accused had the right to prove by the prosecutrix on cross-examination that such was her purpose in lodging the complaint, and to establish that fact, could prove that she had had intercourse with such third person. (Page 566.)</p> <p>12. Witnesses — Improper to Permit Cross-Examination oe Accused in Rape Case Concerning Divorce erom Wiee. In a prosecution for rape, cross-examining defendant with respect to his obtaining a divorce from his first wife, and when he obtained it, thereby intimating that he had commenced keeping company with his present wife before he had obtained the divorce from his first wife, was entirely collateral to any issue in the case. (Page 566.)</p> <p>13. Witnesses — Collateral Facts Mat Sometimes Be Shown on Cross-Examination oe Defendant to a Limited Degree. While collateral facts may very often be shown on cross-examination to affect the credibility of an accused, and while such matters are largely within the sound discretion of the trial courts, there must be a limit to the introduction of collateral matter.4 (Page 566.)</p> <p>14. Witnesses — Cross-Examination oe Dependant By Repeating Testimony oe Prosecutrix Held Improper. Where accused on his examination in chief denied the rape, and denied that he was with the prosecutrix on the occasion testified to by her, it was error for the prosecuting attorney on cross-examination to repeat in his questions all that was testified to by prosecutrix by asking numerous questions in each one of which some fact or facts stated by her were included. (Page 567.)</p> <p>15. Witnesses — Improper eor Prosecuting Attorney to Cross-Examine Character Witness as to Own Character. In a prosecution for rape, where defendant produced a witness to testify that the general reputation of the prosecutrix for truth and veracity was bad, it was error for the court on cross-examination to permit the prosecuting attorney to ask the witness as to what his reputation' was in the community for truth and veracity; his own reputation being foreign to matter testified to in chief. (Page 568.)</p> <p>16. Witnesses — State May Impeach Character Witness. The state has the right to impeach a witness produced by defendant, in a prosecution for rape to testify as to the female’s reputation for truth and veracity, by showing that his general reputation for truth and veracity is bad, or can assail his credibility by the usual methods. (Page 568.)</p> <p>17. Cbimxnal Law — Remake by Coubt Tha.t Witness Interrogated Need Not Incriminate Himself Held Improper. In a criminal prosecution, where defendant produced a witness to testify that the general reputation of the prosecutrix for truth and veracity was had, and the prosecuting attorney on cross-examination asked, “What is your reputation for truth and veracity?” The court’s ruling, “I don’t think he is required to convict or incriminate himself,” was improper as necessarily destroying the whole effect of the witness’ impeaching testimony. (Page 568.)</p> <p>18. Criminal Law — Jury Should Be Instructed That Prosecutrix Has Interest in Result of Case. In a prosecution for rape, the court erred in instructing that it was the province of the jury to weigh the testimony of the female “as of any other witness testifying in the case,” since the court should point out that the prosecutrix necessarily has a greater interest in the result of such a case than a disinterested witness would have, and that the jury should consider and weigh her testimony with that fact in mind. (Page 570.)</p> <p>19. Criminal Law — Reversible Error for Prosecuting Attorney to Tell Jury That It Was Against Law to Impeach Defendant. In a criminal prosecution, it was prejudicial error for the prosecuting attorney in his closing argument to the jury to state that it was against the law to impeach the defendant for truth and veracity until he himself had first put his reputation in issue, the court’s only caution being that the jury should pay no attention to what counsel said, but should confine their deliberations to the evidence where the liberty of the defendant depended upon the statement of one witness as against the statements of others. (Page 571.)</p>

In the matter of the estate of Anna S. Helin, deceased. Petition by Peter H. Hansen, as administrator, for an order to sell real estate. From an order denying the petition on protest of Ales F. Jones, the administrator appeals.

<p>1. Appeal and Error — Assignments Waived by Failure to Argue. An assignment not argued either orally or in brief is abandoned. (Page 580.)</p> <p>2. Trial — Motion for Directed Verdict Must Specify Insufficiency of Evidence. Where defendant’s motion for directed verdict was wholly general and did not specify wherein the evidence was insufficient, the overruling of the same could not place the trial court in error.1 (Page 580.)</p> <p>3. Trial — Rule as to Pointing Out Insufficiency of the Evidence Distinguished from Requirement on Motion for Directed Verdict. Court rule 26 (54 Utah, xv, 97 Pac. x), providing that, when the alleged error is on the ground of the insufficiency of the evidence to sustain or justify the verdict, the particulars shall be specified, is applicable to the Appellate Court, and has no application to the rule of practice requiring party moving for directed verdict to point out the insufficiency of the evidence. (Page 581.)</p> <p>4. Appeal and Error — Where Portion of Instruction Good, Exception to Whole Cannot Be Sustained. Where an exception was taken to an instruction as a whole, such exception cannot be sustained on appeal if any part of the instruction is good.2 (Page 582.)</p> <p>5. Caeriebs — Carrier Owes Same Dutt to 'Gratuitous Passenger as Others. A carrier owes the same duty to a gratuitous passenger riding on a pass as to others. (Page 582.)</p> <p>6. Appeal and Error-^Assignment Must Point Out Insufficiency or Evidence. Under court rule 26 (54 Utah, xv, 97 Pac. x), which contains the samé requirement as Comp. Laws 1917, section 6967, but allows appellants to make specification of the insufficiency of evidence in the assignment of error instead of the bill of exceptions, an assignment complaining that the court erred in refusing a requested instruction that the evidence was insufficient to support a verdict for defendant cannot be considered, wher§ the. insufficiency of the evidence was not pointed out.3 (Page 583.)</p> <p>7. Carriers — Persons at Station About .Train Time Intending to Take Passage are “Passengers.” Where plaintiff called at railroad company’s station about noon expecting a pass, and, being informed that the pass had not arrived, but would arrive by mail on the noon train, repaired to a nearby town and obtained the pass, returning to the station before the train was due, and, though the night was cold, and it was customary to keep open the waiting room on cold nights, and the agent knew that plaintiff would return and heard him outside, was refused admission, plaintiff must be deemed a “passenger” and entitled to recover '■ for injury from exposure; for the relation of passenger and carrier begins as soon as' one intending in good faith to become a passenger enters in a lawful manner upon the carrier’s premises for that purpose. (Page 587.)</p>

<p>Appeal from District Court, Salt Lake County, Third District; P. C. Evans, Judge.</p> <p>Action by Annie M. Fisher against the Bonneville Hotel Company.</p> <p>From a judgment for plaintiff, defendant appeals.</p>

<p>1. Divorce — Rioht to Divobce Absolute and Not Discbetionaby. The right to divorce when the parties are before the court, the pleadings are sufficient to support a decree, and the degree of proof necessary to convince the court that there are sufficient grounds is present, is absolute, and not discretionary with the court, in view of Comp. Laws 1917, section 2999. (Page 599.)</p> <p>2. Divobce — Decree Cannot Be Set Aside Wíthout Notice and OepoRtunity to Be Heard. Comp. Laws 1917, section 3002, providing that a decree of divorce shall become absolute six months after its entry, unless the court for sufficient cause, on its own motion or the application of any party, otherwise orders; does not authorize the court to set aside a decree of divorce granted the wife without notice to her and an opportunity to be heard.1 (Page 600.)</p> <p>3. Constitutional Law — Due Process Denied by Setting Aside Divorce Decree Without Notice. To set aside a divorce decree granted the wife without notice and an opportunity to be heard would deny due process of law as the interlocutory decree gave the wife personal and property rights, of which she could be deprived only by due process of law. (Page 600.)</p>

Application by Ida Strieker and others under Workmen’s Compensation Act for compensation for tbe death of Phillip Strieker against the Amalgamated Sugar Company, employer. The Industrial Commission denied the compensation, and applicants by original proceedings seek annulment of that decision.