Volume 65 — Colorado Reports

<p> Error to Fremont District Court, Charles A. Wilkin, Judge. </p>

<p>1. Pleading and Evidence — Recovery Allowed, only upon the allegations of the complaint.</p> <p>2. Negligence — Not Presumed, from the mere occurrence of an accident. Conjecture is not to take the place of evidence. The evidence examined and held insufficient to warrant the judgment in favor of the plaintiff in the Court below.</p>

<p>1. Venue — Action for Tort. Action for fraud in procuring an exchange of lands. The lands parted with by defendants, and as to which false representations were alleged, were situated in Arapahoe County. All parties were residing in Denver at the time of the transaction, and at the institution of the plaintiffs’ suit. Motion to change the venue to Arapahoe, denied.</p> <p>Judgment affirmed.</p> <p>2. Fraud — Relief Against. A promissory note and a deed of trust upon land, securing it, were obtained by fraud. In an action against one who obtained the note after maturity, a judgment cancelling both the note and the deed of trust was affirmed. There being, under the circumstances of the case, no other relief possible, that the action was in tort, for damages, was held no bar to this equitable form of relief.</p>

<p>1. Criminal Law — Error—Examination of the Evidence. Where there is evidence to support a conviction the court of review will not consider its weight.</p> <p>2..- Cross-Examination of Accused as to a Former Conviction. The accused testifying in his own behalf, may, on cross-examination be asked in the language of the statutes, if he has been convicted of a “crime.”’</p> <p>Accused failing to give a direct answer may be further cross-examined, in the discretion of the court.</p> <p>The jury should be charged that the fact of his conviction goes only to his credibility.</p>

<p>1. Judgment — Conclusive Effect. A judgment is final and conclusive as to a question properly involved in the action, and which might have been raised and determined therein. Plaintiff and defendant were shareholders in a corporation which was declared a bankrupt, and the property of which was sold in the bankruptcy proceedings. In January 1909 they entered into an agreement with others, creditors of the bankrupt, providing that the stock of a mining corporation which had acquired the properties of the bankrupt, at the sale thereof above mentioned, should be divided among the parties to the agreement, in proportion to their claims against the bankrupt corporation, but upon condition that each of the parties agreeing should pay into a bank named a specified proportion of the cash capital of the new corporation. Plaintiff never made the payment required by this agreement.</p> <p>Defendant acquired title to certain mining properties formerly held by the bankrupt corporation, under a sale thereof pursuant to the powers contained in a trust deed executed by the new corporation. The latter corporation was afterwards, in its turn, declared a bankrupt and the trustee in bankruptcy, presented in the court in bankruptcy a petition for an adjudication of the status of the property. To this petition the plaintiff filed an answer claiming to be a stockholder in the last bankrupt corporation, under the agreement of January 1909, and alleging that the deed of trust under which defendant was claiming, was void. The court in bankruptcy declared the deed of trust valid, the sale thereunder regular, that the agreement of January 1909 was never executed, .and that plaintiff never became a stockholder thereunder, in the last corporation. Plaintiff thereupon brought this action, asserting that the agreement of January 1909 constituted the parties thereto partners, and that defendant’s purchase at the sale under the deed of trust was for the common benefit of all the parties to that agreement. Held that this contention might have been submitted to the court in bankruptcy, and therefore, the judgment of that court concluded the matter.</p>

<p>1. Industrial Commission — Action to Vacate Award or Finding. Under sec. 77 of the Workman’s Compensation Act (Laws 1915 c. 179) no action lies to vacate or amend a finding or award of the commission unless the party complaining has first applied to it for a rehearing.</p> <p>Refusal of the commission to hear oral argument, after an order made, is not sufficient to support an action to vacate such order.</p> <p>2. Estoppel — To Deny Jurisdiction. The defendant to an action cannot be estopped, to deny the existence of a fact, which under the statute, is a'prerequisite to jurisdiction.</p>

<p> Error to Denver District Court, Hon. George W. Allen, Judge. </p>

<p>Life Insurance — Hazardous Occupations. That the insured engages in an occupation more hazardous than that in which he is insured, d®es not entitle the insurer to an abatement of the award, in an action upon the policy, where it appears that the deceased accepted the more hazardous occupation temporarily, had already quitted it without any intention of returning to it, and his death occurred from causes having no relation to the' more hazardous calling.</p>

<p>1. Appeal and Error — Findings Below — Effect. Where the evidence heard below is a mere transcript of the testimony given at a former trial, the court of review is not concluded by the findings of the trial court.</p> <p>2. Fraud — False Representations Recklessly Made, even though without knowledge of their falsity, entitles one who acts in reliance thereon, to his injury, to relief.</p> <p>S. -Pleading. One seeking the cancellation of a promissory note, the execution of which was obtained by fraud, need not always aver in express terms that he would not have executed the document but for the false representations.</p> <p>The complaint averring that plaintiff “relied upon the representations of defendant, and thereupon at request of defendants executed the note,” with other allegations to like effect was held sufficient.</p> <p>If it is manifest that the false representations were material to the transaction this need not be expressly averred.</p> <p>4. - Tender of Thing Received by Plaintiff, need not be expressly averred. Where, such tender being made at the trial it is refused by defendant upon grounds manifesting that it would have been refused, even if made previous to the institution of the action, the omission to make or aver a tender, in the beginning, was held unimportant.</p> <p>5. -Plaintiff’s Failure to Investigate, excused, in view of the circumstance of the transaction shown in the record.</p>

<p>1. Appeal and Eeeoe — Verdict upon Sufficient Evidence will not be ' Disturbed. Action against a physician for neglect resulting in the death of the patient. Verdict for plaintiff. There being testimony to the effect that defendant had not exercised the care necessary, proper, and customary under the circumstances, the court refused to disturb a judgment for plaintiff.</p> <p>2. Teial — Questions for Jury. In an action against a physician for negligence resulting in the death of the patient, the question whether the negligence was the proximate cause of the fatal result is for the jury.</p> <p>Testimony examined and held sufficient to sustain the verdict. In considering this question the difficulty of procuring positive testimony as to the cause of death, that the code of ethics of the profession is frequently a bar to the securing of such testimony, is to be borne in mind.</p> <p>3. Damages — Parents’ Action for Child’s Death — Experience of Jurors. An instruction directing the jury to consider, in determining the allowance to the parent, the age, health, mental and physical condition, and the disposition and ability of the child to be of aid to the parent during its minority, as well as the probable expense of rearing and educating the child, and declaring that the jury were at liberty to refer to their personal observation, knowledge, and experience, in like cases, approved. The difficulties attending the inquiry set forth and enlarged upon.</p> <p>4. -Funeral Expenses of the Child, are a proper element of damage, under the facts of this case.</p> <p>5. Insteuctxons — Not Applicable to the Issue. Action by parent for the death of a child, attributed solely to the neglects of the physician to give proper attention to his patient. An instruction that the possession of skill by the physician raises no presumption of its exercise, held not prejudicial, the question to which the instruction is directed not being involved.</p>

<p>1. Water Rights — Conditional Decree — Delay in Performing Condition. By a general adjudication decree certain appropriators were awarded priority to a certain volume of water, absolutely, and to an additional volume, upon condition that with reasonable diligence they should bring under irrigation the residue of the land, the irrigation of which was proposed. After the expiration of ten years, their successors in title, having compiled with this condition, applied for an order making absolute the conditional features of the decree. They were opposed by the defendant, a later appropriator, who contended that by reason of the long delay of plaintiffs, and their predecessors in title, they should, in any enlargement of the decree be subordinated to him. But defendant had never made any use of the water until the petitioners or their grantors had begun to bring the additional lands under cultivation. Held that, as to the defendant, there had been no abandonment of the right granted by the original decree.</p> <p>2. —■—■ Application of Water Awarded Conditionally — Reasonable Diligence. What constitutes diligence varies with ’circumstances and the lands not under irrigation at the date of the original decree, and being practically deserted, while in the hands of trustees and assignees, during the years of delay, the court applied the doctrine of Weldon Company v. Farmers’ Company and Conley v. Dyer 43 Colo. 22, and refused to disturb the finding of the court below in favor of petitioners.</p>

<p> Error to the Mesa District Court, Hon. Thomas J. Black, Judge. </p>

<p>1. Municipal Corporations — Electric Light Works — Election to Authorize. At an election held under c. 153 of the Acts of 1899 (Rev. Stat. sec. 6525, cl. 67) only tax payers of the city are entitled to vote. A taxpayer of the county residing within the city, but paying no tax on property within the city, is not entitled to vote.</p> <p>2. Election — Irregularities not Affecting Result Disregarded. At a municipal election certain citizens of the town were refused the ballot, but if all had voted in the negative, and their votes had been accepted and counted, the proposition still would have carried. Held their exclusion was no ground to set aside the result.</p>

<p>1. Appeal and Error — Questions Considered. Matters alleged of which there is no evidence are not considered.</p> <p>2. Mortgage — Parol to Establish. An absolute conveyance of land may be shown by parol to be intended to be a mere security.; but the evidence must be clear, certain, unequivocal, and convincing.</p>

<p>Judgment — Lien of, stands upon the same footing as that of a purchaser in good faith; and upon the question of good faith the the judgment creditor and the purchaser are subject to the same tests.</p> <p>2. Notice — Recorded Conveyance of Lands, is notice only as to the land therein described. As between an innocent purchaser for value, and one who has accepted a mortgage containing a false description, the former is preferred.</p> <p>3. Bona Fide Purchaser — Protected in Equity. Equity will not reform an instrument to the injury of a bona fide purchaser.</p>

<p>Appeal and Error — Findings in Conflicting Evidence, will not be disturbed</p>

<p> Error to Denver District Court, Hon. Geo. W. Allen, Judge. </p>

<p>1. Husband and Wife — Living Apart — Family Expenses. Where the wife lives apart from the husband, with the children, the liability of the husband for raiment furnished to the children without his authority, depends upon common law principles; the statute regarding family expenses (Rev. Stat. sec. 3021) has no application.</p> <p>2. Directed Verdict — Motion for — Effect. Where neither party requests the submission of any fact to the jury, each moving for a directed verdict, the decision of the trial court has the effect of a general verdict upon all the matters in issue. Upon error brought, the weight of the evidence is not considered. If there is any substantial evidence to support it, and no error in the admission or the rejection of testimony is discovered, the judgment is affirmed.</p>

<p>Railway Company — Duty to Fence Track — Yard Limits. The yard limits of a railway station must be regarded as at least coextensive with the sidetracks and switches existing and customarily used for the transaction of business at such station.</p> <p>Injury to an animal within such yard limits, no negligence of the railway employes being shown, affords no action.</p>

<p>Administrator’s Sale — Effect. An administrator’s deed or bill of sale conveys only the title of his decedent. The,maxim caveat emptor applies. In the absence of any special agreement as to the title, the purchaser must examine for himself.</p> <p>One having a better title is at liberty to assert it in the courts, and in so doing is guilty of no contempt of the court which ordered the sale.</p>

<p>1. Limitations — Bill to Declare a Trust in a Decreed Appropriation of Water, is not affected by the provisions of secs. 3313, 3318 of The Revised Statutes.</p> <p>2. Water Right — Equity in. An appropriator who has conveyed an interest in his water right to another, induces his grantee to rely upon his promise to protect him in adjudication proceedings, and secure a decree establishing his right. Equity will declare a trust in the water right, to the extent of the interest so conveyed, as against a purchaser from such original appropriator, taking with notice.</p> <p>3. Statute op Frauds — Part Performance. In such case the oral agreement is validated by the part performance.</p>

<p>1. Appeal and Error. — Findings Supported by Sufficient Testimony. will not be disturbed.</p> <p>2. Parties — Bringing in New Parties. Bill to establish title to an interest in water, for the irrigation of lands. Judgment for defendant upon a finding that plaintiff had disposed of his interest. Plaintiff applying for a new trial, also asked leave to bring in as new parties defendant, the stockholders, defendant corporations, which he alleged he had not been able to ascertain, until they were disclosed by the secretary of the company. But the answer alleged that the stockholders of defendant were entitled to use and enjoy the waters claimed by plaintiff, and plaintiff did not then ask to be furnished the list of these stockholders, nor even ask that they be made parties, when later, during the hearing, their names wore disclosed. Held that plaintiff having' elected to try the action without bringing in the stockholders, was not entitled to complain of their absence, even if they were proper or necessary parties— as to which no opinion was expressed.</p>

<p>Contributory Negligence — For Jury. Action by servant against master for an injury attributed to negligence. Defense contributory negligence. The evidence being such that different minds might honestly draw different conclusions, held the question was for the, jury and that defendant’s motion for a directed verdict was properly denied.</p>

<p>1. Appeal and Error — Record—Indefinite and Unintelligible Testimony, Censured. Action for negligence in the installation and conduct of electric fixtures. Witnesses were permitted to refer to a diagram drawn upon a blackboard, and to testify that “from here to there,” etc., without any identification of the points referred to. The court complained of the unnecessary labor cast upon it by this crude and shiftless manner of conducting matters in the court below.</p> <p>2. Presumptions. The plaintiff having been non-suited, the court of review, on error brought, assumes the truth of the evidence produced on his behalf.</p> <p>3. Evidence — Presumptions. A corporation operating appliances for the conduct and employment of electricity is presumed to have special knowledge and skill, which it is its duty to exercise for the protection of its patrons.</p> <p>4. Electricity — Duty of Those Conducting and Using. A telephone company is bound to know that its wires may become charged with a dangerous current, induced by lightning, and it is under a duty to use reasonable care to guard against possible fire, resulting from such excessive current.</p> <p>If after the installation of its instruments in a patrons’ premises, a change in the condition of such premises occurs, and such change is known to the company, or might be known by the exercise of reasonable diligence, it is under duty to use reasonable care to effect any improvement in its appliances, necessary to the safety of the premises from any danger occasioned by the change.</p> <p>5. Act op God — Negligence. A telephone company which fails to exercise reasonable care to protect its patrons from injury by an excessive current upon its wires, induced by lightning, will' not be heard to excuse its neglect as resulting from the act of God.</p> <p>6. Trial — Questions for the Jury. Action against a telephone company for the destruction of a patron’s property, attributed to negligence in the installation of its system in the patron’s premises. Whether defendant was guilty of negligence in not adopting the most approved method of construction and maintenance, and whether such negligence was an efficient cause of the injury, are questions for the jury.</p> <p>So whether the company knew, or by reasonable diligence would have known, of a change in conditions in the premises, and had reasonable time to effect any improvements or addition, made necessary by rea*son of such change.</p>

<p>1. Irrigation District — Warrants Issued for a Lawful Claim not Verified. Warrants of an irrigation district were issued for expenses incurred in the organization of the district, and confirmation proceedings, Held not invalidated by the circumstance that these claims were not verified.</p> <p>In view of the broad provisions of sec. 3450 of the Revised Statutes, sec. 3463 is not to be held mandatory.</p> <p>2. -Promise of Third Party to Redeem. Nor are such warrants invalidated by the circumstance that they are issued because of, and upon the faith of the promise of a third person to redeem them.</p> <p>3. —— Directors — Disabilities.. The directors may not employ one of their number as secretary, or superintendent, of the district. Warrants issued to a director for his salary in such position are void.</p> <p>4. -Bonds — Recitals of, are not to be disputed.</p> <p>5. -Bona Fide Holder. Warrants of an irrigation district issued in payment of an obligation for which the district was liable are valid in the hands of one who receives them in the usual course of business, without notice of any defect in the title.</p>

<p>1. Criminal Law — Instructions—Assuming Matter in Issue. Indictment for larceny of live stock. There was evidence that the accused .had taken the animals in question into his possession and branded them. Being charged with their larceny he had afterwards before initiation of the prosecution, surrendered them to the one alleged to be'the owner. An Instruction which told the jury that if they believed beyond a reasonable doubt that defendant had taken the animals, with intent to steal, etc., they should find him guilty though he “afterwards returned them to the owner.” Held an assumption of ownership in another, and fatal error.</p> <p>2. - Reasonable Doubt. The accused is entitled to an instruction that if the jury entertain a reasonable doubt as to whether on assuming possession of the chattels alleged to be stolen, and asserting title thereto, he acted in good faith, they should acquit.</p>

<p>1. Chattel Mortgage — Of Merchant’s Stock, with provision that until default the merchant shall retain possession, “and use and enjoy the same,” is void as to creditors and subsequent purchasers . — and even as to the fixtures where these are included.</p> <p>2. -Second Mortgage Subject to First. Such mortgage is valid between the parties, and valid as against a second mortgage of the same tenor, “subject to” the first. The second mortgagee in such case is not to be regarded as a creditor or purchaser for value.</p>

<p> Error to Yuma District Court, Hon. H. P. Burke, Judge. </p>

<p> Error to Denver District Court, Hon. William D. Wright, Judge. </p>

<p> Error to Routt County Court, Hon. Charles E. Herrick, Judge. </p>

<p> Error to Denver District Court, Hon. John A. Perry, Judge. </p>

<p>1. Conveyance op Lands — Destruction of, — By the grantor, at request of the grantee, reinvests the grantor with title where this is the intent of the parties.</p> <p>2. Appeal and Error — Finding Supported by the Evidence, will not be disturbed, though the evidence is in some respects unsatisfactory, and a contrary finding might have been supported.</p>

<p> Error to La Plata District Court, Hon. W. N. Searcy, Judge. </p>

<p> Error to Delta District Court, Hon. Thomas J. Blade, Judge. </p>

<p>1. Pleadings — Conclusions of Law, pleaded in the complaint are not to be taken as established facts, even though there be no answer.</p> <p>The complaint averred that a contract which was set out in haec verba, was to be performed in Mesa County. There was nothing to this effect in the contract, and the proposition was denied by a motion to change the venue, supported by affidavit. Denial of the motion held error.</p> <p>2. Venue — Place of Performance of Contract. Defendant, a corporation, whose principal place of business and principal office was in Denver, entered into a contract with plaintiff, who resided in Mesa County, to the effect that it would sell and deliver to plaintiff, at Denver, certain motor cars, and granted to plaintiff the exclusive right to sell these cars in specified counties of the western slope. Plaintiff agreed to deposit a sum specified with the defendant, as a guarantee, to be refunded at the expiration of the contract, if plaintiff had faithfully discharged his obligations thereunder. Save as above set forth there was no express provision as to where anything was to be done by defendant, under the contract. Action in Mesa County to recover the deposit. Held that the contract was to be performed in Denver, and defendant was entitled to change of venue to that county.</p>

<p>1. Parties — Indispensable Parties. The trespasser who has wrongfully extracted ores from the properties of another, and delivered the same to a Refining Company, is not an indispensable party to an action by the owner against the Refining Company for the value of the ores; and his threats, from another jurisdiction, to hold the Refining Company responsible, and that the Refining Company may be harrassed by such litigation, in another jurisdiction is immaterial.</p> <p>Taber v. Bank of Leadville 35 Colo. 1, and Rumsey v. New York Life Company 50 Colo. 71, distinguished.</p> <p>2. Trespass — Liability for, is joint and several.</p>

<p> Error to Denver District Court, Hon. George W. Allen, Judge. </p>

<p> Error to Denver District Court. </p> <p> Hon. John I. Mullins, Judge. </p>

<p> Error to Montrose District Court, Hon. Thomas J. Black, Judge. </p>

<p> Error to Logan District Court. </p> <p> Hon. H. P. Burke, Judge. </p>

<p> Error to Las Animas District Court, Hon. A. Watson McHendrie, Judge. </p>

<p> Error to Montrose District Court, Hon. Thomas J. Black, Judge. </p>

<p> Error to Logan District Court, Hon. Haslett P. Burke, Judge. </p>

<p> Error to Montrose District Court, Hon. Thomas J. Blade, Judge. </p>

<p> Error to Montrose District Court, Black, Judge. </p> <p>Opinion by White J.</p>

<p>Opinion by White, J.</p> <p> Error to Montrose District Court, Black, Judge. </p>

<p> Error to Denver District Court, Hon. John A. Perry, Judge. </p>

<p>Water Rights — Appropriation—Negligence in Completion of the Work. The appropriates for several years failed to carry on its works for the diversion of the water and its application to beneficial uses. Its appropriation was dated from the resumption of activity.</p> <p>Garrigues, J. Dissented upon the ground that the delays were excused by the magnitude and difficulties of the work, the death of one of the active parties, and the financial stringency attending the panic of 1893.</p>

<p>1. Tax Commission — Increase. in Valuation — Diserimination. An increase in the valuation of certain properties made by the county assessor does not require an increase in other properties of the same taxpayer, made by the commission itself. To omit it is not a discrimination.</p> <p>So of a failure to make increase in the valuations made by the assessor in other counties.</p> <p>'2. Taxation — Due Process of Law. Where the statute authorizes a taxing board or other agency, meeting at specified times and places, to increase or decrease by such rate per cent., or amount, the aggregate valuation of properties made by the local authorities for the purpose of taxation, as will place such property on the assessment roll- at its full cash value, and requires such taxing board to complete its labors within specified dates, notice is afforded to all persons who may be affected by the action of such board; and a property owner who remains inactive until the work of the board is completed, and the tax laid, will not be heard to afterwards apply for a rebate.</p> <p>3. - Illegal Tax, may be recovered from the county, under Rev. Stat. Secs. 5750.</p> <p>Sec. 5 of c. 134, Laws 1913 does not take away the taxpayer’s right of action. - Its effect is to take from the county commissioners the power to refund the tax, without the approval of the tax commission, or the judgment of some court of competent jurisdiction that the tax is illegal.</p> <p>4. National Bank — Failing to file a list of its shareholders with the county treasurer, as required by Rev. Stat. sec. 5754, is liable for the tax assessed upon its stock.</p>

<p>1. Evidence — Expert Testimony. Action by one injured while driving a coal car in defendant’s mine, the injury being' attributed to the defective condition of the mine. Held that the opinions of one qualified to speak of the matter, as to whether the entry in which plaintiff was employed was a reasonably safe place, was properly received.</p> <p>The true test as to the admissibility of expert testimony is not whether the matter in question is common or uncommon, nor whether many persons or few, have some knowledge of it, but whether the witness called as an expert has any peculiar knowledge or experience which renders his opinion of aid to the court or jury in determining the question at issue. The case of Smuggler Union Company v. Broderick, 25 Colo. 16, is not authority for the exclusion of expert testimony in the proper case.</p> <p>2. Trial — Fair Trial. Defendant cannot be hoard to complain that plaintiff was permitted to examine witnesses as to a matter into which he himself was permitted to go at length.</p>

<p> Error to Denver District Court, Hon. John H. Denison, Judge. </p>

<p>1. Appeal and Error — Errors not Argued, will not be considered.</p> <p>2. -Decree upon Conflicting Evidence, will not be reviewed.</p> <p>3. Water Rights — -Appropriation—Reasonable Diligence. Reasonable diligence in the work of appropriation depends upon the facts of the particular case, the nature and condition of the region, the magnitude and difficulties of the work, the labor supply, and the length of the season in which work is practical. (Scott, J.)</p>

<p> Error to Weld District Court, Hon. Robert G. Strong, Judge. </p>

<p>1. Master and Servant — Duty of Master as to Appliances. It is the duty of an employer to exercise reasonable effort to keep in suitable condition for use the machinery and appliances used by his employees.</p> <p>2. --Railway Company, owes to its employees reasonable care to keep its rolling- stock in reasonably safe condition. Inspection and tests must be made at proper intervals, and the company is bound to know the condition of its cars, so far as such inspection suffices.</p> <p>That the couplings, defect in which was alleged to have occasioned the injury, “looked all right” when the ears were taken into the train, and that no defect therein was manifest before the accident was held not to establish conclusively that the defect did not exist before the accident.</p> <p>3. - Duty of Servant. A railway brakeman is not bound to go under the cars of a train upon which he is employed, in order to ascertain the condition of the couplings. A rule of the employer that the couplings “must be examined before the coupling is made,” requires no such diligence on the part of the brakeman.</p> <p>4. Verdict — Excessive Damages. A verdict of $12,075.00 held not to evidence passion or prejudice on the part of the jury.</p>

<p> Error to Otero District Court, Hon. Charles S. Essex, Judge. </p>

<p> Error to Denver District Court, Hon. Charles C. Butler, Judge. </p>

<p>1. Appeal and Error — What may be Assigned for Error. An injured workman was allowed by the Industrial Commission $8.00 weekly. He afterwards petitioned for an allowance in gross. The Commission denied this application, apparently under the belief that the allowance was not authorized by the statute, but declaring further that it was not “for the interest of the parties.” On petition of the workman to the District Court the same view of the statute was entertained, and solely upon this ground the petition was denied. Held that the ruling of the court in the construction of the statute "was subject to review, notwithstanding the finding of fact as to the interest of parties, by the Commission.</p> <p>2. Statutes — Construction. The Workmen’s Compensation Act (Laws 1915 c. 179) is to be liberally construed.</p> <p>3. Industrial Commission — Authority. Under sec. 57 of the Workmen’s Compensation Act (Laws 1915 c. 179) the Commission have authority to award compensation in a lump sum to a workman who is totally and permanently disabled.</p>

<p> Error to El Paso District Court, How. John E. Little, Judge. </p>

<p> Error to El Paso District Court, Hon. W. S. Morris, Judge. </p>

<p>Accident Insurance — Policy Construed. An accident policy provided that the insurer would pay the insured “the respective indemnities set forth for loss resulting from accident in the principal sum of $100.00, with accident indemnity at $45.00 per month.”</p> <p>By clause A, it was provided that the insurer will pay “. . . for loss of either foot, one-half the principal sum.;” and by clause B, that the insurer should pay “for the total loss of -time $45.00 per month, for not exceeding 104 weeks.” Held that the insured having lost a foot was entitled to recover only one-half the principal sum, as prescribed in clause A. A judgment allowing an award for time lost, under clause B, was reversed.</p>

<p> Error to Pueblo District Court, Hon. C. S. Essex, Judge. </p>

<p> Error to Denver District Court, Hon. John A. Perry, Judge. </p>

<p> Error to Weld County Court, Hon. Herbert M. Baker, Judge. </p>

<p> Error to Denver District Court, Hon. William D. Wright, Judge. </p>

<p>Conteact — Construed. Contract for the excavation of a tunnel, the mine owner reserving no more control of the work than necessary to enable him to secure due performance of the contract, creates the relation of independent contractor, and not that of master and servant.</p> <p>Mere suggestions of the mine owner as to matters of detail, adopted and followed by the contractor, as a concession, and not as a matter of obligation, do not change the result. Nor does the occasional employment by the mine owner of miners working under his control, in order to hasten the work.</p>

<p> Error to Denver District Court, Hon. John A. Perry, Judge. </p>

<p> Error to Mesa District Court, Hon. Thomas J. Black, Judge. </p>

<p> Error to Larimer District Court, Hon. Robert G. Strong, Judge. </p>

<p>1. Estoppel — By Contract. The Cooper Company leased to the Shubert Company premises upon which the latter proposed to erect a theater. The lease provided that the lessor, to secure the payments stipulated to be made by the lessee, should have a lien paramount to all others upon the interest of the lessee. The Shubert Company issued a series of bonds secured upon the property by assignment of the lease to a trustee, and agreed with the bond holders that the leasehold and building should not be incumbered except upon the written consent of the owners of two-thirds of the bonds outstanding. After bonds to a very large amount had been sold, the lessor, lessee, and trustee, entered into a supplemental agreement to the effect that “the bonds issued by the lessee upon any building upon said premises shall be first lien upon said lease and buildings.” Later, the building being still incomplete, the Shubert Company without funds, and largely indebted, and it being impossible to find a further market for the bonds, the trustee, and more than the required proportion of the bond holders consented to the execution by the Shubert Company of a mortgage to secure $120,000, to relieve it of its indebtedness. The mortgage being executed, and this sum being advanced by plaintiff the Shubert Company resumed building, but later defaulted in the ground rent, and in interest upon the loan, whereupon the Cooper Company brought its bill to foreclose the mortgage. Certain bond holders then filed a petition in intervention claiming a lien by virtue of their bonds, prior and superior to the mortgage, contending in argument that the Shubert Company at the date of the execution of the 'mortgage had no right, title or interest in the premises, nor any valid power to execute a mortgage thereon, and that the mortgage was void. Held that the mortgage having been executed with the consent of every one having an interest in the premises, was as effectual and binding upon every bond holder as if he or she had personally subscribed the consent to its execution.</p>

<p>1. Pleading — Departure. Action upon Contract. The complaint set up the legal effect of so much of the contract as the plaintiff relied upon. The answer set up other provisions of the contract, alleging noncompliance therewith by plaintiff. The reply assuming to respond to the new matters so asserted in the answer was not a departure.</p> <p>2. Contract — Non-Performance. One cannot complain of the non-performance or defective performance of a contract occasioned by his own act or default.</p>

<p> Error to Larimer District Court, Hon. Neil F. Graham, Judge. </p>

<p> Error to Larimer District Court, Hon. Neil F. Graham, Judge. </p>

<p>1. Deed — Consideration. The Reverend Thomas A. Uzzell was for twenty-eight years the pastor of the People’s Tabernacle Church in Denver. For the most of this time he received a salary varying from $50.00 to $150.00 per month — for the greater part of the time much less than $150.00. During a portion of the time, holding a public office, he received no salary. The money for the payment of his salary, for the other expenses of the society, and for the purchase of certain real estate were obtained by his efforts from those not associated with the church, but who contributed through confidence in the pastor, and an appreciation of his work. Beginning with nothing, the organization, through his efforts, were possessed of a church building worth $50,000, three other lots adjacent thereto, not used for religious purposes, $1700 in the treasury, and owed no debts of consequence.</p> <p>During his last illness, at a meeting of the society duly called, it was voted by a large majority to convey to the pastor the three lots adjacent to those on which the church was situated. The president of the board having conveyed to him but two of the lots so designated, after the death of Uzzell, at a meeting duly called, the society voted, again by a large majority, to convey all the three lots adjacent to the church, to his heirs.</p> <p>The conveyance was supported, as upon sufficient consideration.</p> <p>2. Religious Society — Call of Meetings. Sec. 865 of the Revised Statutes has no application to religious organizations. Their own rules and regulations control in the call of their meetings.</p>

<p>1; Insurance — Construction of Policy. All ambiguities are resolved in favor of the assured.</p> <p>2. - Accident Policy Construed. Insurance of the owner of a building against loss, by injury to any person in the car of an elevator, but excepting “any person engaged ... in extraordinary repairs”, but permitting ordinary repairs, “provided no elevator shall be run while it is undergoing such repairs.” An employe of plaintiff was injured while riding upon the top of the car, engaged in cleaning the paint. Held not a repairing in the ordinary sense of the word, and that the insurer was liable.</p> <p>Exceptions couched in words of doubtful meaning are not favored.</p>

<p>1. Criminal Law — Embezzlement, is common law larceny extended by statute to eases where the stolen goods come into the hands of the accused without a trespass.</p> <p>2. - Embezzlement of Writing — Information. Where the thing embezzled is a writing it must be described with reasonable certainty, or a sufficient reason must appear for the omission of particularity. “One Bank Check of the value of” etc., “the property of” etc., held fatally insufficient.</p>

<p> Error to Denver District Court, Hon. Geo. W. Allen, Judg.e. </p>

<p> Error to Denver District Court, Hon. H. S. Class, Judge. </p>

<p>Municipal Coepoeations — Railroad Grade in Street — Liability for Injury to Private Property. A city is not liable for an injury ' to private property occasioned by a railway grade authorized by the city in a public street, even though attributable to the omission by the company to provide means of drainage as stipulated for in the ordinance authorizing such grade.</p>

<p> Error to Clear Creek County Court, Hon. Royal R. Gresham, Judge. </p>

<p> Error to Jefferson District Court, Hon. H. S. Class, Judge. </p>

<p> Error to Fremont District Court, Hon. James L. Cooper, Judge. </p>

<p> Error to Park District Court, Hon. James L. Cooper, Judge. </p>

<p>Error to the Morgan District Court, Hon. H. P. Burke, Judge..</p>

<p> Error to Weld District Court, Hon. Neil F. Graham, Judge. </p>

<p> Error to Gunnison District Court, Hon. Thomas J. Black, Judge. </p>

<p> Error to Las Animas District CoWt, Ron. A. Watson McHendrie, Judge. </p>

<p> Error to Denver District Court, Hon. John A. Perry, Judge. </p>

<p>1. Fraudulent Conveyance — Relief of Creditor. A creditor may assail a conveyance made in fraud of creditors, without first recovering judgment upon his demand.</p> <p>2. - Evidence — Burden of Proof. In a transaction between relatives or those connected in marriage, the parties thereto have the burden of establishing its innocence “and integrity. The evidence examined and held to establish that the conveyance assailed was without consideration and with fraudulent intent.</p>

<p> Error to Denver District, Ciovirt, Hon. Clifts. Of wepdfr, Judge. </p>

<p> Error to Denver District Court, Hon. John H. Denison, Judge. </p>

<p>1. Appeal and Error — Verdict on Conflicting Evidence, sufficient to sustain the conclusions of the jury, will not bo disturbed.</p> <p>2. Fraudulent Conveyance — Intent to Delay Creditor. One who disposes of his property merely to delay his creditors, or a particular creditor, exposes himself to an attachment, even though he intends to faithfully discharge all of his obligations. (Rev. Code sec. 98.)</p>

<p>Error to Las Animas District Cowrt, Hon. A. C. McChesney, Judge.</p>

<p> Error to Denver District Court, Hon. Chas. C. Butler, Judge. </p>

<p> Error to Denver County Court, Hon. W. C. Hood, Jr., Judge. </p>

<p> Error to Yuma, District Cowt, Hon. H. P. Burke, Judge. </p>

<p> Error to Fremont District Court, Hon. James L. Cooper, Judge. </p>

<p> Error to Yuma District Court, Hon. H. P. Burke, Judge. </p>

<p> Error to Teller District Court, Hon. J. E. L&ttle, Judge. </p>

<p> Error to Denver District Court, Hon. Julicm H. Moore, Judge. </p>

<p>1. Salary of Public Officer — Unlawful Increase. The Constitution provides that the salary of the Lieutenant Governor shall not be increased during his official term. The officer keeping no books, records, or office, and having no duties to perform except to preside at the meetings of the Senate, held that an appropriation made by the Legislature to this officer, “for official or semi-official purposes”, was void.</p> <p>2. -Mileage to Public Officer. No official of the state except members of the Legislature, and no county officials, except the county commissioners, are entitled to an allowance for traveling expenses.</p> <p>3. Appropriations — Must be pursuant to law. The compensation of a public officer must be prescribed by statute before it can be included in the general appropriation bill. So the expenses of a public officer must be the subject of an express statutory allowance, before an appropriation can be made therefor.</p> <p>4. Illegal Appropriation — Injunction. A taxpayer may sue to restrain the payment of money under an appropriation made by the General Assembly in violation of the Constitution; and the District Court may award the injunction.</p> <p>' 5. Custom — Unlawful allowance to a public officer, is not justified or excused by a custom to make such allowance to his predecessors.</p>

<p>1. Words — Month, is always taken to refer to the current year unless the contrary appears from the connection.</p> <p>The rule applies even in the trial of one accused of crime.</p> <p>2. Criminal Law — Evidence of Other Crimes, committed about the time of the offense charged, and of similar character, is admissible upon the question,of intent.</p> <p>The evidence examined and held sufficient to warrant the reference thereto, in the charge, as “evidence of other crimes”.</p> <p>3. - Sentence, construed in connection with remarks of th'e presiding Judge as not involving the punishment of the accused for an offense not charged.</p>

<p> Error to Denver District Court, Hon. Julian H. Moore, Judge. </p>

<p>Juvenile Court — Criminal Jurisdiction. The Juvenile Court has no jurisdiction of the crime of rape even committed upon the person of an infant child.</p> <p>(Laws of 1907 c. 149.)</p>

<p>1. Mandamus — When Allowed. The relator must show a clear, legal right in himself, and a plain legal duty resting upon the respondent.</p> <p>2. Lunatics — Expenditures by County for the support of Insane Persons are not provided for by Rev. Stat. sec. 4150.</p>

<p> Error to El Paso District Court, Hon. John W. Sheaf er-, Judge. </p>

<p>1. Evidence — Burden of Proof. In an action upon contract the plaintiff has the burden of proving that the contract was as he alleges; he is not required to negative the defendant’s allegation of an additional condition.</p> <p>2. Instructions — Harmless Error. An instruction not prejudicial to the plaintiff in error is harmless.</p>

<p> Error to El Paso District Court, Hon. J. W. Sheaf or, Judge. </p>

<p> Error to Denver County Court, Hon. Ira C. Rothgerber, Judge. </p>

<p>1. New Trial — Neivly Discovered Evidence — Diligence. One convicted of crime, and applying for a new trial on the ground of newly discovered evidence, is not to be deemed negligent in not seeking for the evidence newly discovered from a witness who testifies upon his trial, and who was manifestly intent to clear herself of the same accusation, where the effect of the new evidence is to charge the witness.</p> <p>2. Evidence — Party Discrediting His Own Witness. A witness called by the District Attorney in rebuttal to impeach or discredit the accused declines to do so. The District Attorney, though surprised by this refusal, is not to examine the witness as to the irrelevant matters tending to besmirch or discredit her.</p>

<p> Error to Larimer County Court, Hon. Fred W. Stover, Judge. </p>

<p>Water Rights — Change of Place of Storage. An irrigation company applying for leave to change the place of storage of certain waters which have been adjudged to it, has the burden of showing that no substantial invasion of the rights of others will result from the proposed change.</p> <p>Where the testimony is in conflict an order denying the application will be affirmed.</p>

<p>1. False Imprisonment — Evidence. One claiming to be a city detective called upon plaintiff, told her he was a detective, had si complaint against her, and was told to get her, that he could put her in jail, but would take her to where she might meet the man who made the complaint. He ignored her protests of innocence, and insisted that she go with him. Held an arrest and false imprisonment.</p> <p>2. -Ratification of Arrest. One who approves an unlawful arrest made by another is liable to an action for false imprisonment.</p>

<p>1. Intoxicating Liquors — Forfeiture of. There is no authority in law for the destruction of intoxicating liquors found in possession of, and claimed by, a citizen, by judgment of forfeiture, without trial.</p> <p>2. -Burden of Proof. The people, seeking condemnation and destruction of intoxicating liquors, have the burden of showing that the liquors were kept for an unlawful purpose. Only where the evidence warrants a finding of all the facts necessary to constitute a forfeiture, is the property right in the liquors forfeited.</p> <p>3. - Liquors Acquired before the Statute took Effect, and stored in a private house, having no connection with, or used as, a store, shop, hotel, boarding house, rooming house, or place of public resort, are not, in view of the exceptions contained in the statute, to be regarded as kept for an unlawful purpose, merely by reason of the excessive amount or quantity thereof.</p> <p>4. Pleadings — Motion for Judgment Upon. Proceeding to condemn and destroy intoxicating liquors. The defendant pleaded purchase before the taking effect of the prohibitory act (Laws 1915, c. 98), for their personal use, and that they stored the liquors in the private residence of one of them, no part of which was connected with or used as a store, shop, hotel, boarding house, rooming house, or place of public resort. Motion for judgment on the pleadings admits these allegations and the allowance of the motion was held error.</p> <p>The purpose of the action being to secure the condemnation and destruction of certain intoxicating liquors, two citizens claiming the liquors were named as defendants. Although the only judgment prayed was the destruction of the liquors, the case was tried as an action of replevin. The court says that if again tried as an action of replevin, without reforming the pleadings, the individual claimants of the liquors should be treated as plaintiffs; that if the evidence should warrant a finding of fact that the property in the liquors had been forfeited under the statute there could be no recovery by the individual claimants, because in the case supposed, they would have no title or right of possession, and they recover only upon the strength of their own title; that if the liquors were shown to be placed in the private residence of one of the defendants before the prohibitory statute went into eifect, and there remained, and that the house was within the exception mentioned in the statute, the quantity of liquor would be no evidence of violation of - the statute; and finally that although the package was not marked as containing intoxicating liquor, while being removed by one of the claimants from the place of deposit to his own private residence, this would not work a forfeiture.</p>

<p>Benefit Society — Change of By-Law — Retro-active Effect. A change in the by-laws of a benefit society is not to be construed as operating retroactively, uness specifically extended to prior contracts.</p>

<p> Error to Weld District Court, Hon. Neil F. Graham, Judge. </p>

<p> Error to Weld District Court, Hon. Robert G. Strong, Judge. </p>

<p>Instructions — Assuming Matter in Issue. An instruction assuming as a fact, vital matter which is in issue, is error.</p>

<p>1. Workmen’s Compensation Law — Claim Under. Merely addressing a letter to the Commission, stating the death of the writer’s husband, and that she will apply for compensation, is not a claim under the statute, and has not the effect to deprive the writer of her action against the culpable employer.</p> <p>2. - Pleading. An employer charged with the death of an employee, attributed to his negligence, must if he would assert • that the plaintiff presented a claim to the commission, and so lost her action, plead that the deceased employee or the employer himself, was, at the time of the accident, subject to the operation of the Workmen’s Compensation Act.</p> <p>3. Master and Servant — Duty'to Servant of Master Employing Electricity. One who sends to a place where the electric current is received and distributed a servant who has no special knowledge of electricity or electrical appliances, is bound to the highest degree of care, caution, and foresight consistent with the practical conduct of his operations, to avoid injury to such employee. The doctrine of the Denver Company v. Simpson, 21 Colo. 371, and the cases which follow it, is not to be so construed as to limit the duty in such cases to the public, at places away from the power station.</p> <p>The evidence examined and held to convict the employer of negligence.</p>

<p> Error to Las Animas District Court, Hon. A. Watson McHendrie, Judge. </p>

<p> Error to Denver District Court, Hon. H. S. Class, Judge. </p>

<p> Error to Denver District Court, Whitford, Judge. </p>

<p> Error to the Court of Appeals. </p>

<p> Error to Denver District Court, Hon. A. Watson McHendrie, Judge. </p>

<p> Error to Denver District Court, Hon. Charles C. Butler, Judge. </p>

<p>Sale op Chattels — Title Retained — Secret Lien — Effect. Sale of a silo, the written contract expressly stipulating that until full payment of the purchase price the title remains in the seller, that the annexation thereof to any lands of the buyer, shall not affect the right of the seller, and conferring upon the seller the right, in case of default, to retake the thing sold, is valid between the parties. The silo remains personal property.</p> <p>So even as to the prior, mortgagee of lands upon which the silo was afterwards erected and affixed, where it may be removed without material injury to the land. The mortgagee is not a third person within the meaning of Rev. Stat. Sec. 512.</p>

<p>1. Evidence — Examination of Parties — Scope. Defendant being called as a witness for plaintiff, the court, over the objection of plaintiff, permitted his cross-examination upon other matters than those to which he had been interrogated in chief. Held a mere question of the order of proof, and within the discretion of the court.</p> <p>2. Instructions — Definition, of words of well-known import not required.</p> <p>3. New Trial — Ver diet on Conflicting Evidence, will not be disturbed.</p>

<p>1. Default — Vacating-—Discretion. The courts of Nisi Prius have a wide discretion in relieving against defaults.</p> <p>2. Process — Service of Summons, against a municipal corporation, upon another than the officer appointed by law to receive it, will not support a default.</p> <p>3. Practice — Waiver. Error in vacating a judgment by default is waived by filing further pleadings, and proceeding to trial upon the merits.</p>

<p>1. Contract — Construed. One contemplating the purchase of real property makes a deposit with the agent offering it for sale “to be held” by such agent, during the proposed purchaser’s examination, and until he is “satisfied” that the premises are as represented. Held to imply that the deposit is to be returned if the purchaser is not satisfied of the truth of the representations made to him.</p> <p>2. Written Contract — Cotemporary parol contract with another. A written contract by the owner for the sale of real property has no effect upon a parol contract between his agent and, the proposed purchaser.</p> <p>The agent is bound by his contract to return a deposit made with him whenever the conditions entitling the purchaser to the return, under his contract, are shown.</p>

<p> Error to Yuma District Court, Hon. H. P. Burke, Judge. </p>

<p>Pleading — Fraud. A complaint alleging’ fraudulent representations as to the financial condition of a corporation, inducing the purchase of stock therein, sustained.</p>

<p>1. Accord and Satisfaction — Payment and Acceptance of a Less Sum than Claimed. A set-off of uncertain amount renders the debt unliquadated although the amount thereof is not in dispute. And this, even though the counter claim grows out of a transaction other than that giving rise to the indebtedness 'asserted by plaintiff.</p> <p>2. Evidence. The tender of a smaller sum than that claimed, with notice that it must be accepted in full satisfaction, or rejected, constitutes, if accepted, an accord and satisfaction. A voucher accompanied by a check bearing the indorsement “Payee’s indorsement will be considered an acknowledgment in full,” being accepted by the payee, and collected, held to affect notice that the amount of the check was tendered in full satisfaction.</p> <p>3. Pleading — Waiver of Defects. No demurrer being interposed to the answer, and the cause being tried as if the issue of accord and satisfaction was presented, all objections to the answer were regarded as waived.</p>

<p>1. Non-Suit — Motion for, admits every inference of fact that can be legitimately drawn from the plaintiff’s evidence.</p> <p>Plaintiff sueing to quiet title to a water right produced a writing subscribed by one Lock, the original proprietor of the ditch declaring that he had sold to parties named, the same from whom plaintiff produced title, “an undivided half interest in the ditch.”</p> <p>There was no evidence that Lock owned any other ditch which could have supplied water to the premises of those named in the writing as vendees, Held it was to be presumed that the writing referred to the single ditch so owned by Lock.</p> <p>2. Witness — Competency. A witness is not excluded under Sec. 7267 of the Revised Statutes, where he has no interest in the suit in which his testimony is offered, even though he is concerned in a different suit, involving the validity of a contract, upon which depends the suit in which he is offered.</p> <p>3. Possession op Water maws — Effect. After the purchaser of a water right has long been in possession under an- informal writing, the informality cannot be urged against his right.</p> <p>4. Water Right — Adjudication Decree, cannot determine the title to a ditch, or the right to enjoy the waters thereof, but only the relative priorities of the different ditches in respect of priorities as claimed.</p>

<p>1. Pleading — Laches. The defense is presented only by answer.</p> <p>2. Negligence — In Matters of Contract. The execution of a conveyance of lands is not, of itself, a bar to an action for its reformation.</p> <p>3. Equity — Reformation of Writings. The party complaining is not barred of relief by the circumstance that he executed the paper without reading it.</p> <p>4. Bona Fide Purchaser. To constitute one a bona fide purchaser he must have parted with value, without actual or constructive notice of the right of another.</p> <p>5. Notice — Possession of Lands, open and exclusive, is notice of the interest of the one in possession.</p> <p>6. Possession of a Ditch and its Waters. A doctrine applies to an easement, e. g., to a water right.</p> <p>The possession and use are deemed continuous, though the water is not applied during the winter season.</p> <p>That the water never was or could be applied to the land to which it was erroneously conveyed, might be sufficient to put subsequent purchasers of the land upon notice.</p>