Volume 96 — Nebraska Reports

<p>Appeal from tbe district court for Pawnee county: John B. Raper, Judge.</p>

<p>1. Trial: Jury: Voir Dire Examination. Where a defendant, in a personal injury action, is indemnified by an employers’ casualty insurance company, it is proper for plaintiff’s counsel to show such fact when impaneling the jury, and to inquire of each juror upon his voir dire if he is a stockholder or agent, or in any manner interested in such company.</p> <p>2. Evidence: Action for Personal Injuries: Admissions. In an action for personal injuries, plaintiff, to prove an admission of liability, may show a demand made on defendant for payment for his injuries, and that defendant, through its general manager or duly authorized agent, made such admission.</p> <p>3. -: • — ——•: -. And in such a case, if such general manager or duly authorized agent puts a refusal of defendant to pay solely on the ground that it is insured and for that reason it cannot pay, plaintiff is entitled to have the conversation admitted and the evidence submitted to the jury, under suitable instructions, for them to determine what the true import of the conversation was.</p> <p>4. Trial: Witnesses: Examination. It appears that after plaintiff was injured a physician, unknown to, and without authority from, him, was called to treat his injuries, and without any subsequent employment by plaintiff continued to treat him for a considerable period of time. Upon the trial plaintiff’s counsel called such physician to the witness-stand, and attempted to show by him who employed him. Beld, not misconduct on the part of counsel.</p> <p>5. -: Argument op Counsel. Ordinarily, in a civil action, statements made by plaintiff’s counsel in his closing argument will not justify a reversal of the judgment, where it appears that exception was taken to the statement at the time it was made, the exception sustained, and the jury duly admonished by the court.</p> <p>b. Appeal: Harmless Error. The fact that plaintiff, in a personal injury suit, is permitted, over objections, to show that he has a family consisting of a wife and four children will not be held to be prejudicial error, where it does not appear that the admission of such testimony could have influenced the jury in arriving at the amount of their verdict.</p> <p>7. Instructions Approved. The action of the court in refusing certain instructions requested by defendant, and in giving the instructions given by the court on its own motion, examined and approved.</p> <p>S. Appeal: Conflicting Evidence. The verdiet of a jury, rendered upon conflicting evidence and sustained by the trial court, will not, ordinarily, be disturbed on appeal.</p>

<p>Appeal from the district court for Holt county: William H. Westover, Judge.</p>

<p>Fraud: Damages. In order to sustain an action for fraud and deceit, plaintiff must plead and prove actual damage. Deeeit and injury must concur.</p>

<p>Appeal: Conflicting Evidence. A verdict rendered on substantially eon•flieting evidence and approved by the trial court will not be disturbed on appeal, unless manifestly wrong.</p>

<p>Appeal: Soppiciency op Evidence. The evidence considered in the light of the circumstances shown, and held sufficient to sustain the judgment.</p>

<p>1. Intoxicating Liquors: Action for Death: Sufficiency of Evidence. Evidence examined and set out in the opinion, held sufficient to sustain the verdict and judgment.</p> <p>2. Witnesses: Competency: Identification. Where a witness, in testifying to the actions of a certain individual who was a stranger to him, states that he made inquiry in a crowd, where such individual was well known, as to his identity, and in answer to the inquiry was told his name, and such witness also correctly describes the size of the individual and the manner in which he was dressed at the time about which the witness is testifying, as shown by the undisputed testimony of other witnesses in the case, it is not error for the trial court to permit the testimony of such witness to go to the jury.</p> <p>3. Trial: Conduct and Argument of Counsel. The conduct of counsel for plaintiff and the statements made by him, in his argument to the jury, set out in the opinion, held not so clearly outside of the scope of legitimate argument as to constitute error on the part of the trial court in not preventing it.</p> <p>4. Bill of Exceptions: Affidavits. Affidavits used in support of a motion for a new trial on the ground of newly discovered evidence must, in order to be considered on appeal, be preserved in the bill of exceptions.</p> <p>5. Damages. The verdict of the jury examined in the light of the evidence, and held not excessive.</p>

<p>Appeal from the district .court for Brown county: William H. Westover, Judge.</p>

<p>Appeal from tbe district court for Lancaster county: P. James Cosgrave, Judge.</p>

<p>1. Parol Evidence: Action on Note: Consideration. Where, in an action by a bank against the indorsers, the defense of no consideration is set up, parol testimony may be received to show the want of consideration and that the note was given for the mere convenience • of the dank.</p> <p>2. Appeal: Conflicting Evidence. The verdict of a jury based upon conflicting evidence will not be interfered with by this court if there is-sufficient competent evidence to support the same. Franklin State Bank v. Chaney, 94 Neb. 1.</p>

<p>Appeal from the district court for Douglas county; Lee S. Estelle, Judge.</p>

<p>Appeal: Conflicting Evidence. The verdict of a jury will not he interfered with where it is. rendered upon conflicting evidence and there is sufficient competent evidence to support the same.</p>

<p>Opinion on motion for rehearing of case reported in 94 Neb. 317.</p>

<p>1. Homestead: Tenancy. A homestead may be claimed in lands held in joint tenancy or tenancy in common.</p> <p>2. -:: Equitable Title. The ownership of an occupying claimant need not be of an estate in fee simple, but the owner of an equitable title, occupying under a contract of purchase, may claim the homestead exemption under the statute.</p> <p>3. -: Abandonment: Burden of Proof. "It appearing from the evidence that the premises had been occupied by the debtor as a homestead, the burden is upon the execution creditor to show both removal therefrom and intentional abandonment." Union Stock Yards Nat. Bank v. Smout, 62 Neb. 227.</p>

<p>Appeal from the district court for Douglas county: Willis G. Sears, Judge.</p>

<p>1. Statute of Frauds: Memorandum. The written memorandum required by section 2631, Rev. St. 1913 (statute of frauds) may be made out by connecting two or more papers, such as written correspondence between the parties.</p> <p>2. --■: -: Signing. It is not essential that 'each paper be signed by the party s'ought to be charged, provided those not signed are referred to with reasonable certainty in those which are signed. But the relation to each other of the documents relied on to satisfy the requirement of the statute must appear on their face, and cannot be established by parol evidence. Fowler Elevator Co. v. Cottrell, 38 Neb. 512.</p> <p>3. --■: -. An unsigned order for a bill of goods was given . to a traveling salesman, a copy of the order was handed to the merchant, and the original sent to the wholesaler. The merchant afterwards wrote a letter to the wholesaler requesting him to cancel , certain items contained, in the order as described therein. This request was acceded to, and after some other letters had been written in relation to the order the merchant,- by letter, insisted on a cancelation of the whole ' order. Held, That there was a sufficient acknowledgment in writing of the making of the order to take it out of the statute of frauds, and the jury should have been instructed to that effect.</p>

<p>Appeal from the district court for Douglas county: Howard Kennedy, Judge.</p>

<p>Appeal from the district court for Merrick county: George H. Thomas, Judge.</p>

<p>1. Master and Servant: Duty of Master. A master is not an insurer of the safety of his servant, but is only required to' use ordinary care in furnishing the servant with reasonably safe, suitable tools and implements, and a reasonably safe place in which to perform his work.</p> <p>2. -: Assumption of Risks. An experienced carpenter engaged in the work of erecting a one-story building assumes the ordinary risks of his employment, and is required to use such means in climbing upon and descending from such building as his own judgment and convenience may suggest.</p>

<p>Appeal from the district court for Douglas county: Charles Leslie, Judge.</p>

<p>Appeal from the district court for Otoe county: Harvey- D. Travis, Judge.</p>

<p>1. Intoxicating Liquors: License: Discretion op Board. The determination of the locality in which a saloon may be conducted is one which is committed to the good judgment of the licensing body, and not to the discretion of the courts. The courts may investigate whether the law has been complied with as to the facts upon which the right to grant a license depends, but, unless perhaps in extraordinary eases, this is as far as they may go.</p> <p>2. -: License: Review. The facts in evidence held to justify the district court in refusing to set aside a saloon license.</p>

<p>1. Appeal: Rulings Reviewable. In an action at law a ruling not challenged in the district court by the motion for a new trial is not reviewable in the supreme court.*</p> <p>2. Trial: Request eor Directed Verdict: Procedure. Where both parties, at the close of the evidence, request a peremptory instruction, the trial court may pronounce the judgment demanded by the pleadings and the evidence, without submitting issues of fact to the jury.</p> <p>3. Appeal: Affirmance. ■ Where no specific error has been pointed out by appellant and no plain error appears in the record presented to the reviewing court, the judgment of thfe trial court may be affirmed.</p>

<p>Tax Sale: Suit to Redeem: Payment oe Taxes. Where, in a suit in equity to redeem land from a tax sale, the petition fails to allege payment of taxes for the year preceding the commencement of the suit, but subsequently an amended petition is filed which alleges the payment of such taxes, the laehes of plaintiff in paying the same will not defeat his action.</p>

<p>Appeal from the district court for Dodge county: 'Conrad Hollenbeck, Judge.</p>

<p>Appeal from the district court for Douglas county: William A. Redick, Judge.</p>

<p>Appeal from the district court for Lancaster county: P. James Cosgrave, Judge.</p>

<p>Appeal from the district court for Richardson county: John B. Raper, Judge.</p>

<p>Appeal from the district court for Nance county: George H. Thomas, Judge.</p>

<p>1. Appeal in Equity. It is the duty of this court upon appeal in an equity case to examine the evidence and to reach its own conclusion thereon; yet, where the evidence is entirely oral and the trial court may be -fairly presumed to have a general local knowledge of the parties, the witnesses and the subjects of the controversy, the finding of the trial court is entitled to consideration.</p> <p>2. Evidence examined, and held to sustain the findings and judgment of the trial court.</p>

<p>1. Appeal: Sotficienct of Pleadings. "Where a ease is brought to the supreme court on appeal, without a bill of exceptions or special findings, the only question which can be considered upon the appeal is the sufficiency of the pleadings to sustain the judgment.</p> <p>2. Pleadings examined, and found sufficient to sustain the judgment of the district court.</p>

<p>1. Partnership. The plaintiff in this ease sought to establish the existence of a partnership between himself and the defendant. The defendant denied that that relation existed, and alleged that plaintiff was employed by him on a salary of $100 a month, and that it was agreed that if the business in which he was engaged should prove profitable he would give the plaintiff a share of the profits to be fixed by the defendant. Held, That the plaintiff failed to establish the existence of a partnership by a preponderance of the evidence.</p> <p>2. Contract of Employment. The district court found that under their-agreement plaintiff was entitled to receive 25 per cent, of the net profits of the business originating in the city of Omaha, and rendered a judgment for the plaintiff for $664.12 accordingly. Held, That the judgment was sustained by the evidence and should be affirmed.</p>

<p>Appeal from the district court for Douglas county: George A. Day, Judge.</p>

<p>Appeal from the district court for Polk county: George F. Corcoran, Judge.</p>

<p>1. Carriers: Injuries to Cattle in Transit: Evidence. In an action against a common carrier to recover damages to a shipment of live stock over the defendant’s line of railroad, it having been shown by-plaintiff that the injuries to the animals could not have been occasioned by reason of their own inherent vice, but must have been sustained by delay and want of proper care in transportation, it is not error to refuse to direct a verdict for the defendant.</p> <p>2. -: : Liability. Where a shipper' of live stock does not agree to furnish a caretaker, and some of the animals die or are injured for want of proper care and protection while in transit, the carrier is liable and must bear the loss.</p> <p>3. -:-: Defenses : Burden of Proof. Where the carrier defends on the ground that the stoek when received for transportation was weak and thin in flesh and unfit for shipment, and that the injuries sustained in transit were caused by reason of that fact, it is not error to instruct the jury that the burden is on the defendant to show that fact by a preponderance oí the evidence.</p> <p>4. -: —-——: Review: Admission of Evidence. Where the plaintiff has been permitted to prove the unsuitable condition of the car in which the stock was shipped without objection, the introduction of such proof furnishes no grounds for a reversal of the judgment,, although some of the evidence related to a matter not specifically set forth in the pleadings.</p> <p>5. -: -: Damages: Evidence. Evidence examined, and found that the verdict was not excessive, and was sustained by the-evidence.</p>

<p>Appeal from the State Railway 'Commission.</p>

<p>1. Subrogation. A court of equity will apply the doctrine of subrogation where to refrain from so doing would permit a person who has received the benefit of money paid under a- mistake of fact, which discharged a lien upon real estate, to retain such benefit under such circumstances that equity and good conscience dictate its repayment or the preservation of the lien.</p> <p>2. Vendor and Purchaser: Bona Fide Purchaser. One who purchases land with knowledge of the fact that a suit is pending to establish a tax lien thereon, which was begun in due season against the grantor, takes subject to the pending action.</p>

<p>Appeal from the State Railway Commission.</p>

<p>1. Insurance: Automobile Accident Indemnity: Notice of Accident. A provision in an automobile accident indemnity policy that the assured on the occurrence of an accident shall give immediate written notice thereof, with the fullest information obtainable at the time, to the assurer is a reasonable requirement, but the term "immediately” is to be reasonably construed in connection with the attendant circumstances.</p> <p>2. -: -: -. Such a provision in a policy executed "to indemnify the assured against loss from the liability imposed by law upon the assured for damages, on account of bodily injuries (including death at any time resulting therefrom) accidentally suffered,” etc., does not require notice of all accidents, but is construed to mean that notice is only required of such accidents as result in bodily injuries.</p> <p>3. -: -:--. In a ease where no bodily injury is apparent at the time of the accidental oecurrance, and there is no reasonable ground for believing that a claim for damages against the owner of the automobile may arise therefrom, he is not required to give the assurer notice until the subsequent facts as to injury would suggest to a person of ordinary and reasonable prudence that a liability to the injured person might arise. In such case the duty of the assured is performed if he gives notice within a reasonable time after the injury presents - an aspect suggestive of a possible claim for damages.</p>

<p>1. Process: Summons: Service: “At” Usual Place of Residence. Service of summons on defendant "by leaving a copy ‘ ‘ at Ms usual place of residence,” held valid, witMn the meaning of that term as used in section 69 of the code, on a record showing that the sheriff went into defendant’s yard; that he handed a'copy of the summons to. defendant’s wife, who was at the time not more than 20 feet from the house in which he resided; ’that he' asked her to give the copy to defendant; that she said she would do so; and that she went into the house with it.</p> <p>2. Appeal: Conflicting Evidence. A verdict on substantially conflicting proof will not be set aside, where it is supported by sufficient competent evidence.</p> <p>3. Damages. A recovery of $3,990 for assault and battery, and of $1,300 for malicious prosecution, held not excessive.</p> <p>4. Appeal: Bill of Exceptions: Affidavits. Affidavits purporting to show misconduct of counsel, to be available on appeal, must be included in the bill of exceptions.</p>

<p>Appeal from the district court for Morrill county: Ralph W. Hobart, Judge.</p>

<p>1. Husband and Wife: Joint Note: Intent as to Wife’s Property: Question for Jury. Whether a promissory note, executed jointly by husband and wife, was executed by the wife with reference to her separate property, trade, or business, or upon the faith and credit thereof, and with intent on her . part to thereby bind her separate property, is, ordinarily, a question of faet for the jury.</p> <p>2. -: -: Consideration. And in such a case, where there is competent evidence to show that all of the property of the family belongs to or is in the name of the wife, the husband owning no property whatever, and a creditor who holds a valid claim against the husband, upon which there is a large accumulation of interest, offers to remit such accumulated interest on the condition that the husband and wife join in a note for the principal, and the wife, without fráud or coercion, joins with her husband in accepting such compromise and in signing a note therefor, stating at the time that the land was in her name and she would sign the note, the giving of sneh note will be held to be a new and independent contract, entered into by the husband and wife jointly, as principals, and upon sufficient consideration.</p>

<p>Appeal from the district court for Butler county: George F. Corcoran, Judge.</p>

<p>Appeal from the district court for Lancaster county: Lincoln Frost, Judge.</p>

<p>Appeal from the district court for Douglas county: Alexander C. Troup, Judge.</p>

<p>Appeal from the State Railway Commission.</p>

<p>1. Quieting Title. In an action to quiet title, the rule is that the "plaintiff must succeed only on the strength of his own title, and not on the weakness of his adversary.” 32 Cyc. 1329.</p> <p>2. -. "In an action having for its object the declaration of a trust in land in favor of the plaintiff and the quieting of title in him, it is incumbent upon the plaintiff to affirmatively establish an equitable title in himself, and, if he fail to do so, the nature of defendant’s title, or the existence of any title in defendant, is immaterial. ’ ’ Blodgett v. McMwrtry, 39 Neb. 210.</p> <p>3. -. Where the plaintiff, one W. S., fails to establish Ms title to the premises in question as against a deed made to the defendant, M. P. G., by the receiver of the S. L. & T. Co., and she (said defendant) is shown to have taken possession under the said deed, and to be in the full and exclusive enjoyment thereof, the plaintiff is not entitled to recover. The evidence examined, and found to sustain the judgment of the district court.</p>

<p>1. Marriage: Contract. The contract requisite to the creation of the marriage relation need not be expressed in any special manner, or by any prescribed form of words, but may be sufficiently evidenced by any clear and unambiguous language or conduct.</p> <p>2. -: Common Law Marriage. Evidence examined, its substance stated in the opinion, and held sufficient to sustain a finding that, when the marriage ceremony was performed between plaintiff and defendant, the defendant was the common law wife of one James S. Boyer, and therefore was incapable of entering into the marriage relation with the plaintiff.</p>

<p>1. Deeds: Construction. The iustrumeut set forth in the opinion held to be more than a quitclaim deed and to convey by apt words all the right, title and interest of the grantor in certain real estate devised to him by the will of his father.</p> <p>2. Judgment Lien. After this deed was made, a transcript of a judgment against the grantor was filed in the office of the clerk of the district court for the purpose of securing a lien upon his real estate. Subsequently he became the owner, by survivorship under the will, of a further interest in the real estate. Sold, That his title and interest derived by virtue of the will, together with his right of survivorship, had passed to his grantee, and that the filing of the transcript and the issuance of an execution did not create a lien thereon.</p>

Original application for a writ of man-damns to compel respondents to deliver to the insurance commission the records of the insurance department. Original information in quo warranto to oust respondents from the insurance commission.

Action for Personal Injuries: Tbial: Directing Verdict: Evidence. The record examined, its substance set out in the opinion, and held not to* ■ disclose any prejudicial error. Appeal from the district court for Douglas county: William A. Redick, Judge.

<p>Appeal from the district court for Buffalo county i Bruno O. Hostetler, Judge.</p>

<p>1. Officers: Power to Ratify Acts. It is a general rule that public officers may ratify such acts as they could in the first instance have authorized.</p> <p>2. County Clerk: Compensation: Power of County Board. Under the provisions of section 42, ch. 28, Comp. St. 1907, the county boards, in counties having over 18,000 and less than 25,000 inhabitants, are prohibited from authorizing or allowing the county clerk of any such county to receive and retain in the aggregate, as salaries or compensation for himself and his deputies, clerks and assistants, any sum in excess of the amount of the fees actually collected.</p>

<p>1. Principal and Agent: Acts of Agents: Liability of Principal. Where a master, at the time his employee receives a severe bodily injury, calls his own regular physician and surgeon over the' telephone and instructs him "to come and take care of the injured man," and at the time of giving such direction well knows that the injuries of his employee are of such a character as to render it necessary to immediately remove him to a hospital, and the doctor at oneeresponds and takes the man to a hospital, and for the purpose of inducing the hospital authorities to receive him states to them that the principal for whom he is acting will be responsible for the payment of the hospital bill of the injured man, the master is bound by such acts and declarations on the part of his agent.</p> <p>2. Contracts: Termination. And where subsequently, and while the patient was yet incapable of being removed or discharged from the hospital without great danger to his life or health, the master gave notice that thereafter he would not be responsible for care and treatment "from now on,” held, that the master had no right to thus terminate his liability; that, under the circumstances, it was an implied condition of the contract that the master could only terminate his liability to the hospital by removing the patient, or when he could be dismissed by the hospital without serious danger to his life or health, or by showing that the injured man had means out of which the hospital could and should have collected its pay.</p>

<p>Appeal from the district court for Cuming county: Guy T. Graves, Judge.</p>

<p>Specific Performance: Discretion of Court. A court of equity is entitled to exercise a sound judicial discretion in disposing of a case involving the specific performance of a contract.</p>

<p>1. Life Estates: Payment oe Taxes. "As between the life tenant and the owner of the fee, it is the duty of the former to pay all taxes charged against the land during the continuance of his estate." Spieeh v. Tierney, 56 Neb. 514. Disher v. Disher, 45 Neb. 100.</p> <p>2. -: -: Liability oe Purchaser. The purchaser of the life estate assumes by such purchase the burden of paying the taxes which the law imposed upon his grantor, and may not escape such, burden by the claim that he was. not liable for the taxes until he made the purchase.</p> <p>3. Wills: Construction: Rights oe Surviving Remaindermen. Where the will of the testatrix authorized the executor to sell certain lands in Alabama, and to invest the proceeds of the sale elsewhere, and accordingly such real estate was sold and the proceeds invested in a lot in the city of Lincoln, held, that the conditions of the will touching the right of survivorship between remaindermen will be applied and carried out as to the property purchased.</p> <p>4. Deeds: Estate of Purchaser: Life Estate. Where the purchaser of a life estate in real property received a quitclaim deed thereto which neglected to recite that. the • interest conveyed was the life estate of the grantor, the purchaser may not lawfully claim a greater interest in the property than the grantor had to sell.</p> <p>■5. Vendor and Purchaser: Nottoe: Recitals in Deed. All- persons claiming an interest in or a lien upon real estate are bound to take notice of the recitation in a duly recorded deed in the chain of title of their grantor. Mathews v. Jones, 47 Neb. 616; Albers v. Koeeluh, 68 Neb. 522.</p> <p>-6. Tax Sale: Redemption. The scavenger act should receive a liberal construction in favor of the owner where he seeks to redeem from the sale made, and he should be allowed to redeem where full and actual compliance with the statute has not been observed. ■ Ambler v. Patterson, 80 Neb. 570, 575.</p> <p>.7. -: -: Notice. Notice of the time when the redemption of land from tax sale will expire must be given by the tax purchaser or his assignees before the expiration of the time to redeem. Ambler v. Patterson, 80 Neb. 570.</p>

<p>Appeal from the district court for Douglas county: George A. Day, Judge.</p>

<p>Appeal from the district court for Antelope county: Anson A. Welch, Judge.</p>

<p>Appeal from the district court for Lancaster county: P. James Cosgrave, Judge.</p>

<p>1. Master and Servant: Action fob Death: Negligence of Master: Burden of Proof. In an action against an employer to recover damages for the death of an employee alleged to have been caused by the negligence of such employer, the burden is on plaintiff to show some act of negligence as the proximate cause of decedent’s death by a preponderance of the evidence.</p> <p>2. -: -: Assumption of Risks. In such a case the deeedent will be held to have assumed the ordinary risks incident to the business in which he was employed.</p> <p>3. -: -: Evidence: Directing Verdict. When in such a case the plaintiff fails to show, by some competent evidence, negligence on ■ the part of the employer, it is the duty of the trial court to direct the jury to return a verdict for the defendant.</p>

<p>Appeal from the district court for York countv; Edward E. Good, Judge.</p>

<p>Appeal from tbe district court for Douglas county: Abraham L. Sutton, Judge.</p>

<p>1. Insurance: Change of Beneficiary. One whose life is insured by a mutual benefit society has the right, before his death, to change the beneficiary named in his certificate without the consent of sueh beneficiary; provided, the beneficiary as changed is within the class of persons who, by the laws of the order, may be made a beneficiary.</p> <p>2. -: -. Objection to such change can only be made by the association, and when the change is ratified by the society, and the money is paid without objection to a trustee named in sueh change, the former beneficiary has no just cause for complaint.</p> <p>3. Trusts: Distribution. It is the duty of the trustee who has accepted the trust, and collected the money due on the' certificate, to distribute it according to the terms of the-trust.</p>

<p>1. Appearance. Where a defendant makes a special appearance to object to the jurisdiction of the court over the person, and in the same motion challenges the jurisdiction of the court over the subject matter, which latter conclusion is not well founded, this constitutes a voluntary appearance in the action.</p> <p>2. Insurance: Action on Policy: Venue. An action upon an insurance policy is transitory and may be brought against a foreign insurance corporation in any county in the state in which there may be property of, or debts owing to, defendant, or. where the defendant may be -found or summoned, or in any county where the cause -of action or some part thereof arose, or in a county where any contract or portion of a contract entered into by such insurance company has been violated or is to be performed. Rev. St. 1913, secs. 7616, 7619.</p> <p>3. -: -: Exclusion of Evidence. In an action upon a contract of insurance to be evidenced by a policy to be thereafter issued, the policy (which was afterwards issued, but not delivered to the assured) if offered by defendant, may be admissible in evidence, and in this case it is held that it was error to exclude it.</p> <p>4. -: — : Oral Contract: Authority of Agent. Ordinarily it is within the power of an insurance agent to make an oral contract of insurance, or to agree that the insurance shall be in force after the application is signed, and the premium paid, and before a policy is actually written, unless the assured is, or should be held to be, apprised in some manner, either in the application or otherwise, that the insurance will not be in force until the application is approved at the home office and the policy issued and 'delivered.</p> <p>5. -: Burden of Proof: Sufficiency of Evidence. The burden of proof -in an action on an accident insurance policy is upon the beneficiary to show that the deceased was killed by an accident. Evidence examined, and held to sustain the verdict in this respect.</p> <p>6. -: Contract for Issuance of Policy: Eorm and Amount: Presumptions. Generally the parties to a contract of insurance by whieh a policy is to be issued later will be presumed to intend a policy customarily used for such risk, and the amount of the insurance contracted for will be taken to be that whieh may be procured at the rates specified in the application and policy, or otherwise published by the insurer.</p>

<p>1. Street Railways: Negligence: Question for Jury. As a general principle, a street car company is not liable for accidents as a result of horses becoming frightened by the usual operation of its business, provided that its employees are not guilty of any negligence. If through the operation of the street ear after the frightened condition of the animal has become known, or should have become known, to the motorman if he is in the exercise of ordinary care, damage results, the proper test is whether those in charge of the car acted in the manner that persons of 'ordinary prudence would have acted in like circumstances. It is not the injury that creates the liability, but the fact that the street ear company through its agents or servants has been guilty of some negligent act or omission to act, but for which the injury would not have occurred, ánd, where the evidence is conflicting, the question of negligence is for the jury.</p> <p>2. Evidence: Opinion of Witness. It is not erroneous to exclude opinion evidence as to ultimate facts which are for the jury to determine.</p> <p>3. Street Railways: Negligence: Question for Jury. The question whether the defendant was negligent in failing to provide a motor car, which was being used to haul a work car, with a fender, held to be a matter for the jury to determine.</p> <p>4. Appeal: Admission of Evidence. A judgment will not be reversed because of an error in the admission of testimony, unless it is reasonably apparent that such testimony is prejudicial to the substantial rights of defendant. ^</p> <p>5. Street Railways: Safety Appliances. In operating a motor ear and heavy trailer on the public streets of a city, a street car company is bound to use the same degree of care with respect to equipment with safety appliances as is usual in the operation of passenger ears.</p> <p>■6. Instructions examined, and held not erroneous.</p>

<p>Adverse Possession. “If one by mistake inelose the land of another and claim it as his own to certain fixed monuments or boundaries, his actual and uninterrupted possession for the statutory period will work a disseizin, and his title will be perfect.” Tex v. Pflwg, 24 Neb. 666.</p>

<p>'Parol Evidence: Contract: Consideration: Payment. The true facta as to the consideration set forth in a contract for the sale of real estate," where the sum. expressed forms no part of a promise to pay, hut is only the recital of a fact, may he proved hy parol, and so also as to an acknowledgment of the receipt of such consideration.</p>

<p>Vendor and Purchaser: Contract: Suit to Rescind: Burden oe Prooe. After the execution of a deed to a tract of land and part payment of the purchase money in pursuance of a contract of sale, an alleged defeet in the title was discovered. The grantor and grantee then agreed that a suit should be brought at the grantor’s expense to quiet the title against such alleged defect. The parties then estimated the time that would be necessary to procure a decree and to complete an abstract of title, and entered into another contract providing that, upon failure to furnish a good and sufficient abstract by October 29, 1910, the grantor would return all money paid and cancel all notes given by the grantee. The grantee took possession under his deed. Decree was rendered on October 29. The grantee on that day demanded the return of the money and notes, and soon afterwards brought this action to rescind and to recover the purchase price. Held, That, under the facts stated, time was not of the essence of' .the contract, and that the burden was upon plaintiff to show that the abstract did not set forth a marketable title.</p>

<p>Appeal from the district court for Cherry county: William H. Westover, Judge.</p>

<p>Appeal from the district court for Furnas county: Harry S.' Dungan, Judge.</p>

<p>Appeal from the district court for Furnas county: Harry S. Dungan, Judge.</p>

<p>1. Evidence: Judicial Notice. The courts of this state will take judicial notice of the fact that the “Black Hills” are in South Dakota, and of the further fact that the western terminus of the main line of the Chicago & Northwestern Railway Company, running from Omaha northwest through the city of Long Pine, Nebraska, is in the Black Hills, in the state of South Dakota.</p> <p>2. Master and Servant: Injury to Servant: Interstate Commerce. And where the evidence shows that the western division of said railway company is known as the Black Hills division, the term “through trains,” when applied by railroad men to trains in such division, will be construed to mean trains running through the division from one terminal point to the other.</p> <p>3. -: --: -. Evidence examined and set out in the opinion held sufficient to show that at the time he was injured plaintiff was engaged in interstate business, and that his action was properly brought under the Federal Employers’ Liability Act of April 22,, 1908. 35 U. S. St. at Large, pt. 1, ch. 149, p. 65.</p> <p>4. -: -: — : Negligence: Submission to Jury. Evidence examined and set out in the opinion held sufficient to justify the submission of the question of defendant’s negligence to the jury.</p> <p>5. -: -: Assumption of Risk: Submission to Jury. Record examined, and held not to contain any evidence to require the • submission of the question of assumption of risk to the jury.</p> <p>6. Trial: Intructions: Contributory Negligence. The instructions upon the question of contributory- negligence examined, and held not to contain any error of which defendant can complain.</p> <p>7. Damages: Instructions. In an action for personal injuries, where the evidence establishes without contradiction that plaintiff’s injuries are permanent, a clause in the charge to the jury, on the question of the measure of damages, that the jury, if they find for the plaintiff, may allow him for “such prospective suffering and loss of health, if any, .as the jury may believe from all the evidence before them in this case he will sustain by reason of such injuries,” is not error, nor in conflict with the rule of this court that in such cases it is the duty of the court to instruct the jury that only such damages as are reasonably certain to result therefrom can be compensated by their verdict.</p> <p>8. -. Plaintiff was a locomotive engineer, 54 years of age. Por three years prior to his accident he had been earning $157 a month. Within less than two months after the. time of his injury he would have received a raise of salary to $175 a month. His injury resulted in the loss of an eye. Prior thereto he had been a man of robust health. Held, That a verdict of the jury for $11,500, which is sustained by the trial court, cannot be held to be so excessive as to call for a reversal of the judgment, or to warrant a reduction by this court.</p>

<p>1. Taxation: Tax Sale: Rights oe Purchaser: Law Governing. The rights of a purchaser of land at tax sale, at the time of applying for a tax deed, and the rights of the owner of such land at said time, are to be measured by the provisions of the revenue law in existence at the time of the tax sale and the receipt by the purchaser of his tax sale certificate, and not by a different law enacted subsequent to the tax sale and prior to the application for a tax deed. Comp. St. 1903, eh. 77, art. I, see. 242.</p> <p>2. -: -: -: -. The record examined, and held, that the rights of the parties in this suit must • be determined under the revenue law of 1901 (Comp. St. 1901, ch. 77, art. I) in force at the time defendant purchased the land in controversy at tax sale and obtained his tax sale certificate.</p> <p>•3. -: Tax Deed: Validity. A tax deed issued in 1904, upon a tax sale certificate issued on a treasurer’s tax sale made in 1902, without a previous compliance by the purchaser with the requirements of section 124, art. I, ch. 77, Comp. St. 1901, is void and confers upon the grantee in such tax deed nothing moré than color of title.</p> <p>4. -: Tax Sale : Redemption. And in such case the owner of the land may proceed at any time within ten years to quiet his title as against such tax deed and to redeem his land from such tax sale.</p>

<p>Appeal from the district court for Douglas county: Alexander C. Troup, Judge.</p>

<p>Appeal from the district court for Douglas county: George A. Day, Judge.</p>

<p>1. Municipal Corporations: Obstructing Sidewalk: Negligence: Sufficiency op Evidence. The evidence, indicated in the opinion, is found sufficient to support the verdict and judgment.</p> <p>2. Trial: Refusal op Instructions. The refusal of the court to give certain requested instructions is justified by the instructions given on the court’s own motion, which substantially and correctly stated all material issues submitted to the jury, including the matters suggested by the requested instructions.</p>

<p>1. Judgment: Journal Entry: Power to Correct. The district court has jurisdiction at any time after decree is pronounced, and before it is complied with, upon motion and satisfactory evidence, to correct an error in the journal entry of the deeree.</p> <p>2. Appeal: Theory op Case. If the motion to correct the journal entry is ambiguous, and is treated by all parties and the court as a motion to review the evidence and modify the deeree, it will be so considered in this court.</p> <p>3. Appeal in Equity: Evidence. In an action in equity which this court must try de novo without reference to the findings and deeree of the trial court, 'if the evidence of two witnesses who testified orally before the trial court is conflicting or contradictory, and it appears from the record that the trial court might have believed one of them rather than the other, this court will consider that fact in weighing the evidence of such witnesses.</p> <p>4. Judgment: Motion to Correct Journal Entry: Suppiciency op Evidence. The evidence indicated in the opinion is hold, sufficient to support the order of the trial court refusing to modify or change the deeree.</p>

<p>Pleading: Amendment: Cause oe Action. In an action on contract for the manufacture and sale of an article, an amended petition, whieh contains the same allegations of the making of the contract and performance by plaintiff, pleads the same cause of action, although, it alleges a different breach of the contract by defendant.</p>

<p>Rehearing of case reported in 94 Neb. 567.</p>

<p>1. Compromise and Settlement: Action for Consideration. Defendant, who was the owner of a farm, was sued by plaintiff for labor performed thereon and for other considerations. An agreement was entered into, by the terms of which defendant agreed to turn over to plaintiff certain specified articles of personal property, rent his farm to plaintiff for a term of years at an agreed rental, and pay to plaintiff $2,000 in money when defendant sold said, land, in consideration for • which plaintiff was to dismiss his action against defendant. Defendant turned over to plaintiff the specified articles of personal property and put him in possession of the farm. Plaintiff dismissed his action against defendant. Soon thereafter defendant repudiated his agreement, refused to sell his farm, and evicted plaintiff therefrom, and also refused to pay the cash consideration of said agreement. Held, That such acts on the part of defendant rendered the cash consideration of the agreement at once due and payable.</p> <p>2. ¡-: Sufficiency of Evidence. The evidence examined, and held to sustain the verdict and judgment.</p>

<p>Opinion on motion for rehearing of case reported in 95 Neb. 729.</p>

<p>1. Injunction: Pleading and Proof: Sufficiency. The issues and evidence are examined, and found not sufficient to sustain the decree of the trial court.</p> <p>2. Highways: Dedication. A public road was established along and on a certain half-section line, A portion of the traveling public followed along and near the line designated in the establishment of the highway, but not directly upon the line, and, as the adjacent land was not inclosed nor cultivated, a portion of the travel left the half-mile section line and passed diagonally over the adjacent land. Some nine or ten years before the trial the then owner of the land constructed a fence along and near the then traveled road, but at a greater distance from the half-section line than one-half the width of a public road. There was no other evidence of an intention on the part of the owner of the land to dedicate to the public all the land between his fence and half-section line; the use of the roadway being only permissive. Held, not sufficient to prove a dedication.</p>

<p>1. Specific Performance: Exchange oe Pkopeeties. In an action for the specific performance of a contract for the exchange of real estate and personal property, where plaintiff had performed the contract on his part, and defendant had partly performed the same on his part, the fact that the part which he was to perform, but refused to do, consisted of the mutual invoice of a stock of goods, lumber and coal would not of itself deprive plaintiff of the right to a decree of specific performance.</p> <p>2. -. Where a substantial compliance with a contract for the exchange of real estate and personal property had been made by.both parties to the contract, it is within the jurisdiction and power of a court of equity to deeree the completion of such contract by a decree for specific performance.</p> <p>.3. -. The written memorandum of a contract contained no provision that the deeds to the land involved in the litigation should be subject to certain mortgages on each party’s land, and the parties thereafter met, and, in the presence of each other, dictated to a scrivener the deeds to be executed, and executed them accordingly, leaving them with a third party in escrow for delivery upon the completion of the invoice and delivery of the property to be invoiced, the same being in furtherance of the contract of exchange. The fact that the liens upon the land, excepted in the deeds, were not referred to in the written contract will not, in the absence of fraud or mistake, avail defendant as a defense to an action for specific performance.</p>

<p>Error to the district court for Madison county: Anson A. Welch, Judge.</p>

<p>1. Criminal Law: Preliminary Examination: Waiver. Where it' is shown by the transcript of the examining magistrate’s conrt, that a complaint was filed charging the accused with murder in the first degree, that upon his arrest he was taken before the magistrate for preliminary examination, that he was arraigned and entered a plea to the complaint of not guilty, and waived examination, whereupon he was held to appear before the district court, this is a sufficient compliance with the law requiring preliminary examinations in felony cases.</p> <p>2. -: Appeal: Sufficiency of Evidence. Where, in a jury trial, the evidence upon a material part of the ease is conflicting, and there is sufficient to sustain the verdict, the finding, of the jury thereon must be final; they being the sole judges of the weight of the testimony of the witnesses.</p> <p>3. Homicide: Sufficiency of Evidence. The evidence is examined, and stated in the opinion in part, and held to sustain a verdict of guilty of murder in the second degree.</p> <p>4. -: Trial : Instructions : Questions for Jury. Where the information charged defendant with the crime of murder in the first degree, the questions of premeditation and deliberation were for the jury to decide, but, 'where they found him guilty of' murder in the second degree, those- questions were eliminated, and were therefore unimportant.</p> <p>5. Criminal Law: Expert Evidence. If there is any element of science, or skill, in a matter being investigated before a. trial jury, it is not reversible error for the court to admit expert testimony thereon, even though the element of science was slight.</p> <p>6. -: Instructions. It is not reversible error, where instructions are asked by defendant, and given by the court, for them to show that they are given at the request of the defendant.</p> <p>7. Instructions to the jury given by the court are examined, and found not to be erroneous.</p> <p>8. Homicide: Sentence. The term of imprisonment imposed by the sentence of the court is not found to be excessive under all the circumstances of the case.</p>

<p>Divorce: Sufficiency of Evidence: Alimony. Evidence examined, and found sufficient to sustain the judgment of tlie district court granting plaintiff' a divorce. Eeld, further, that plaintiff: was entitled to a judgment of $8,500 permanent alimony in lieu of $6,000 awarded her-by the district court.</p>

<p>Appeal from tbe district court for Frontier county; Harry S. Dungan, Judge.</p>

<p>1. Waters: Drainage: 'Injunction. An injunction will not be granted at the suit of a landowner to restrain the construction of ditches and drains for the purpose of draining a small lake unless the evidence clearly shows that the water drained will flow upon the land of the plaintiff.</p> <p>2. -. Davis v. Londgreen, 8 Neb. 43, followed.</p>

<p>Mechanics’ Liens: Suppioiency op Evidence. In 1910, A, the owner of stone quarries in Indiana, furnished rough stone blocks to B, a dealer in cut stone at Galesburg, Illinois, who had contracted to supply cut stone to C, a building contractor who was erecting a building at Omaha. The rough stone shipped was piled in the yards of B at Galesburg, and the blocks were cut as required by the plans for different contracts.- Stone from other quarries was also in the pile. No reeord was kept by A of the respective buildings in which the stone was to be used, although he had been informed it was to be used in the Omaha building. The purchase price was charged to B in a general running áceount which had run for several years; freight paid and other payments made by B were credited upon this running account. Part of the blocks furnished by A were cut and planed and used at other points than Omaha. There was some stone of this description in stock in the yard both before and after the Omaha contract was filled. The stone cut for use in the Omaha building was taken from the stock in the yard, and there is no definite proof that it was all furnished by A. A statement of account and affidavit for a lien upon the Omaha building was filed by A, which included shipments of stone to Galesburg prior to the Omaha sale, and other stone, as to which there is no definite proof that it ever reached ‘the Omaha building. Reid, That the statement of lien filed was not sufficiently definite and certain as to the stone which entered into the Omaha building, and that the facts in evidence are insufficient in law to establish a lien upon the building.</p>

<p>Justice of the Peace: Appeal: Objections: Waiver. "When an appeal from a justice of the peace to the district court is taken in the time prescribed by law, and both parties appear in the appellate court and without objection file pleadings, and the cause is noticed for trial, it is then too late for the appfellee to object to the validity of the appeal.” Claflin v. American Nat. Banlc, 46 Neb. 884.</p>

<p>1. Exemptions: Nonresidents. In order to entitle a judgment debtor to the benefit of the $500 exemption of personal property provided for in section 521 of the code, it must appear that he is a resident of this state, the head of a family, and that he has no lands, town lots or houses subject to exemption as a homestead under the laws of this state. The $500 exemption- is in lieu of the homestead, and nonresidents of the state are not entitled to this exemption.</p> <p>2. Kriesel v. Eddy, 37 Neb. 63, distinguished.</p>

<p>Appeal from the district court for Lancaster county: Willard E. Steward, Judge.</p>

<p>1. Telephone Companies: Embankments in Streets: Liability. It is the duty of. a telephone company making excavations and embankments in public streets under a license from a city to conform to city ordinances requiring proper guards, signals and barricades for the protection of the public, and a failure so to do is evidence of negligence.</p> <p>2. Municipal Corporations: Embankments in Streets: Signals. Three red lights in a street, two a bloek apart and one between, do not, as a matter of law, warn a pedestrian in the night, when the ground is covered with snow, that there is a continuous embankment along the bloek.</p> <p>3. Telephone Companies: Embankments in Streets: Negligence: Question por Jury. In an action for alleged negligence resulting in the death of a pedestrian who fell from an embankment in a street and was run over by a street car, whether there was negligence on the part of defendant in permitting the embankment to remain longer than necessary and in failing to furnish proper guards, lights and barricades, held questions for the jury.</p> <p>4. Damages in the sum of $9,000 for causing the death of a healthy man 27 years old, who was earning over $100 a month, with a fair prospect of promotion, held not excessive.</p>

<p>Appeal from tbe district court for Dodge county: Conrad Hollenbeck, Judge.</p>

<p>Mortgages: Foreclosure: Decree: Dormancy. A decree of foreclosure of a mortgage in this state is not a judgment within the meaning of section 482 of the code of civil procedure, and does not become dormant by a failure to issue an order of sale within five years.</p>

<p>Appeal from the district court for Adams county: Harry S. Dungan, Judge.</p>

<p>Appeal from the district court for Cedar county: Guy T. Graves, Judge.</p>

<p>1. Elections: Registration: Duties op Registration Oppicials. Chapter 36, laws 1913, examined, its important points set out in the opinion, and held: That the registration officers in cities covered by the act, in registering voters under the provisions of section 12a, act ministerially; that they are concluded by the answers of an appli: ■cant for registration, and that the record to be made under subdivision 10 of this section is to be determined by two of the supervisors of registration from the answer of the applicant to subdivision 7, and the evidence submitted or presented by him in answer to subdivisions 8 and 9.</p> <p>2. -: --■: Acts op Election Commissioner. That the acts of the election commissioner under the last paragraph of section 10, ch. 36, laws 1913, and under section 13, are quasi-judicial in character.</p> <p>3. -: -: Challenge: Evidence. That when the commissioner enters or causes to be entered the word “challenge” opposite the name of a voter on the registration register, as provided in section 10, the proof necessary to be furnished by the voter, in order to have ■such challenge withdrawn, is the proof specified by section 10, viz., the filing of his affidavit setting forth facts showing the correctness of his registration, verified by two regularly registered voters of his election district, which proof is not required to be the production of his naturalization papers or a certified copy of the reeord of the court in which such voter was naturalized; but the affidavit must be treated as sufficient, if the facts stated therein are sufficient in substance, so that reasonable minds would draw the conclusion therefrom that the registration is correct.</p>

<p>Appeal from the district court for Holt county: James J. Harrington, Judge.</p>

<p>Appeal from the State Railway Commission.</p>

<p>Appeal from the district court for Douglas county: Abraham L. Sutton, Judge.</p>

<p>Appeal from the district court for Douglas county: Abraham L. Sutton, Judge.</p>

<p>Appeal from the district court for Washington county; Alexander C. Troup, Judge.</p>

<p>Appeal from the district court for Dodge county: Conrad Hollenbeck, Judge.</p>

<p>1. Judgment: Res Judicata: Irrigation Bonds. Where the complainant, one Thomas, filed his bill in the circuit court of the .United States, alleging that he was a citizen of the .state of Iowa, a taxpayer in Keith county, Nebraska, and that Keith county, its treasurer, the board of county commissioners thereof, and the board of directors of the Alfalfa Irrigation District, and said Alfalfa Irrigation District were proper parties defendant to the bill, and setting forth that W. O. Rogers, one of the defendants, had received certain of the bonds of the district in payment for work done in the construction of a ditch for said irrigation district, and that Elizabeth O. Rogers had also received certain of the bonds in payment for certain additional work which she had done on the said ditch, and it further appeared that one M. S. Collins, who was then an owner of certain lands mentioned in the bill as being within said district, sought to be protected from an assessment and levy of taxes to pay said bonds, and that said Collins and the other landowners in the district had assented to and acquiesced in the construction of the said ditch and the delivery of the bonds, and had accepted the benefit to their lands arising from the construction of said works, and on the trial it was held by the said United States circuit court that the said bonds were void in the hands of the said contractors to whom they had been delivered, and they were ordered to be canceled, and thereafter said cause was appealed to the United States circuit court of appeals for the Eighth judicial circuit, where the judgment of the said United States circuit court was reversed and the said bonds declared valid in the hands of such contractors, and thereafter the plaintiff in this case, one Orcutt, filed his petition in the district court for said Keith county, in which he alleges that he is a taxpayer in the said irrigation district, and that he owns the same lands described as the property of said Collins, and sets up substantially the same facts that were adjudicated in the United States circuit court and in the United States circuit court of appeals, and makes the said officers of said county and the said Alfalfa Irrigation District and its officers parties defendant, and introduces evidence tending to prove the same facts shown at the former trial, it will be held in this court on appeal that the case is res judicata, and that the new plaintiff may not, by reason of the fact that he is a new purchaser of the lands of said Collins in said district, become entitled to maintain his action and to relitigate the facts in said case.</p> <p>2. Waters: Irrigation Bonds: Validity. "Where an irrigation district, organized under the laws of a state and expressly authorized to issue bonds, sells the same to the highest bidder after advertisement, and to use the proceeds for the construction of irrigation works, issued bonds which it had voted at par directly to a contractor in payment for work which he had performed, its action was at most no more than an irregular exercise of its power, and, where neither the district nor any taxpayer questioned the validity of the bonds until eight years after their issuance and after the right of the contractor to maintain an action at law to recover for his work was barred by limitation, a subsequent purchaser of property in the district cannot then maintain a suit to have them declared void because of such irregularity.” Rogers v. Thomas, 193 Fed. 952.</p> <p>3. Equity: Laches. Courts of equity in eases of concurrent jurisdiction usually consider themselves bound by the statute of limitations which governs courts of law in like cases.</p> <p>4. Judgment: Conclusiveness: Municipal Corporations. A judgment against a municipal corporation is equally conclusive upon such corporation and its taxpayers. Owens v. City of South Omaha, 2 Neb. (Unof.) 466.</p>

<p>Appeal from the district court for Douglas county: Abraham L. Sutton, Judge.</p>

<p>Appeal from tbe district court for Douglas county: George A. Day, Judge.</p>

<p>Rehearing of case reported in 95 Neb. 699.</p>

<p>1. Judgment: Vacation. A judge of the district court has the right and power to set aside and vacate any judgments or orders made by him during the term at which the vacating order is made. Such vacating order may be made upon the court’s own motion, if satisfied that an error has been made.</p> <p>2. Fees: Clerk op District Court: Accounting. The defendant was the clerk of the district court of D. county. By virtue of his office as clerk of said court, he was a member and the clerk of the board of commissioners of insanity for said county. He refused to account for the fees and compensation received for his services on said board,, claiming that the fees were not the fees of the clerk of the district court. In a suit against him on his official, bond, it is held that under the statute, and the decision in the ease of Boettcher v. Lancaster County, 74 Neb. 148, it was his official duty to report and account for the receipt of such fees.</p> <p>3. -: -: -: Compromise. Where, after a suit against such clerk for an accounting and payment of said fees, a compromise-was had between him and the county board, by which a less amount was agreed upon and accepted than was due according to law, it is held that there was no question to be compromised, but it was the plain duty of such clerk to report and account for the fees received,, and therefore such compromise was void.</p>

<p>Appeal from the district court for Valley county: James N. Paul, Judge.</p>

<p>Appeal from the district court for Cheyenne county: Hanson M. Grimes, Judge.</p>

<p>Waters: Flood Waters: Action por Damages: Direction op Verdict. Action to recover damages alleged to have been sustained by the negligent construction of the defendant’s railroad yards and grades, which it was claimed held back the flood waters of Salt creek and threw them over the plaintiff’s premises and into his dwelling-house. It appearing from the evidence that when the flood reached. its maximum height the defendant’s tracks and grades were entirely submerged, and the water formed a lake in the Salt creek basin of such depth as to stand three feet deep in plaintiff’s dwelling, defendant’s motion to direct a verdict in its favor should have been sustained.</p>

<p>1. Injunction: Jurisdiction. A judge of the district court having both common law and equity jurisdiction has the power to allow a temporary order of injunction in a proper case pending in his court, notwithstanding the amendment of the statute as contained in section 7793, Rev. St. 1913.</p> <p>2. -: Adverse Possession: Railroads: Right op Way. A temporary injunction should not be allowed which takes the possession of real estate from one of the litigants and awards it to another; but the title of the Union Pacific Railroad Company in its right of way granted by the act of eongress is for the benefit of the public, and prior to June 24, 1912, could not be divested either by conveyance or adverse possession, and no one by occupancy thereof could obtain such title or possession as will be protected by the courts.</p> <p>3. Mandamus: Dissolution op Injunction. The judge of the district court having jurisdiction to allow a temporary order of injunction will not be compelled by mandamus to dissolve or set aside his order, unless it clearly appears that he has abused his discretion or exeéeded his jurisdiction.</p>

Original proceeding in mandamus to compel respondent to file an inventory of its property with the state railway ■commission.

<p>Appeal from tbe district court for Lincoln county: Hanson M. Grimes, Judge.</p>

<p>Appeal from tbe district court for Adams county: Harry S. Dungan, Judge.</p>

<p>1. Trial: Instructions: Surplusage. In a charge to a jury controverted issues or essential facts should not be involved, confused or incumbered by the recital of unnecessary pleadings, by the unnecessary narration of admitted or immaterial facts, or by superfluous reference to questions already settled by pleadings or by uncontradicted evidence.</p> <p>2. -: -: -. Instructions should simplify the questions to be determined by the jury, and should not include extraneous matter.</p> <p>3. Carriers: Injury to Passengers: Liability. If a 'street railway passenger attempts to alight when the car stops at an unusual place, knowledge of the conductor, or proof of facts charging him with knowledge, that the passenger is attempting to get off at such a place is essential to a recovery for personal injuries caused by the starting of the car while he is doing so.</p>

<p>Master and Servant: Action for Salary: Bad Paith. In an action by a traveling salesman for a month’s salary and expenses, plaintiff is not entitled to recover on uneontradicted evidence that he was properly discharged before the end of the month, and that during a part of the time he secretly acted in a dual capacity soliciting business for a rival of defendant; there being a failure on his part to prove performance of his duties in good faith for any definite part of the month.</p>

<p>Appeal from the district court for Douglas county: Willis G-. Sears, Judge.</p>

<p>Appeal from the district court for Lancaster county: Albert J. Cornish, Judge.</p>

<p>WiUs: Residuary Clause: Validity. Tlie following residuary clause of a will held void as too indefinite and uncertain for enforcement: ‘ ‘ All personal property, except money, not otherwise disposed of herein, is to be paid and distributed by my executor as follows: To such persons, respectively, as were my friends in my lifetime, and he may think suitable and appropriate, observing my wishes in regard thereto so far as he may know or have reason to believe what they wei'e. ’ ’</p>

<p>Appeal from the district court for Douglas county. George A. Day, Judge.</p>

<p>3. Contracts: Construction. “A practical construction placed upon an ambiguous contract by the parties will generally be adopted by the courts.' ’ Sale v. Sheehan, 52 Neb. 184.</p> <p>2. Appeal: Harmless Error. Error in assessing the amount of recovery cannot be urged- as a ground for reversal by the party benefited ■ thereby.</p> <p>3. -: Conelictins Evidence. A judgment based on conflicting evidence in an action at law will not be disturbed on appeal unless manifestly wrong. '</p>

<p>1. Statute of Frauds: Memorandum oe Sale: Sufficiency. The written memorandum of a contract for the sale of goods and chattels for the price of $50 or more, required by the code of civil procedure (section 2631, Rev. St. 1913), need not be signed by both parties. The requirement is sufficiently met if the memorandum is signed by the party to be charged thereby.</p> <p>.2. Contracts: Signing: Waiver. The rule that when a condition is attached to the making of a proposed contract that both contracting parties shall sign the same, and one party neglects or refuses to sign, the party signing is not bound thereby, does not apply where the party who has signed, after discovering the neglect of the other party to sign, ratifies the contract as made and signed, and declares his intention to proceed under it. He thereby waives the failure of the other party to sign.</p> <p>3. 'Sales: Breach of Contract: Sufficiency of Petition. The petition set out in the opinion examined, and held not vulnerable to a general demurrer.</p>

<p>Appeal from the district court for Boone county: George H. Thomas, Judge.</p>

<p>Appeal from the district court for Cass county: George F. Corcoran, Judge.</p>

<p>1. Municipal Corporations: Enactment op Ordinance: Street Improvements. Section 5110, Rev. St. 1913, requiring a petition of three-fifths of the resident property owners for paving or for constructing sidewalks, or a vote of three-fourths of all the members of the council or board of trustees, does not apply to temporary walks on ungraded and unimproved streets. Section 5112 provides for such walks, and that section contains no such requirement.</p> <p>2. -: -: -. A village ordinance requiring the construction of a temporary sidewalk on an ungraded and unimproved street is not an ordinance of a general or permanent nature, and section 5154, Rev. St. 1913, does not apply in such case.</p> <p>3. -: Street Improvements: Estimate op Cost. Section 5011, Rev. St. 1913, requiring an estimate of cost by the city engineer before sidewalks are constructed, applies only to cities of the second class. A village is not required to have a “city engineer.”</p>

<p>Statute of Frauds: Sales: Memorandum. If the duly authorized sale agent of the defendant signs a memorandum addressed to his principal directing the shipment of specified goods to the plaintiff at a specified place, and for a specified price, and procures the plaintiff to sign an acceptance of the same as a memorandum of sale, and , forwards the same to his principal as such memorandum, it will constitute a sufficient memorandum of sale under section 2631, Rev. St. 1913.</p>

<p>Error to the district court for Gosper county: Ernest B. Perry, Judge.</p>

<p>Error to the district court for Lancaster county: Willard E. Stewart, Judge.</p>

<p>1. Physicians and Surgeons: Practicing Without License: Information. To “operate on, profess to heal or prescribe for, or otherwise treat any physical or mental ailment of another, ’ ’ is practicing medicine by the express provision of section 2724, Rev. St. 1913.</p> <p>2. -: -. It is unlawful in this state to treat professionally and attempt to heal another by manipulation and adjustment of nerves, bones and tissues of the body, without first obtaining a certificate o-r license from the state board of health, as provided in articles II and VIII, eh. 27, Rev. St. 1913.</p> <p>3. -: -. Every such treatment constitutes a separate offense, although of the same individual and for the same physical or mental ailment, if such treatments are on different days and entirely independent of each other.</p> <p>4. Evidence. The evidence is found to be insufficient to support the conviction upon the second count in the information.</p>

<p>Appeal from the district court for Webster county: Ernest B. Perry, Judge.</p>

<p>Assault and Battery: Sueficiency oe Evidence. The evidence examined, and held insufficient to sustain the verdict.</p>

<p>Appeal from the district court for Douglas county: Alexander C. Troup, Judge.</p>

<p>Appeal from tbe district court for Douglas county: George A. Day, Judge.</p>

<p>1. Insurance: Forfeiture. Where the secretary of a fraternal benefit association voluntarily advanced the dues or assessment of the assured for the month of June, and the next July, without the knowledge or consent of the assured, undertook to reimburse himself out of the funds sent to him by the assured to pay his July dues or assessment, and thereupon canceled the beneficiary's certificate and suspended the membership of the assured, the orders of caneelation and suspension were void, and a subsequent order attempting to reinstate the member was unnecessary, as the membership continued without interruption, and in such ease there would be no requirement upon the part of the assured to make any statement concerning his condition of health with a view to securing his reinstatement as a member of the association.</p> <p>2. -: -. And where the secretary of the association thereafter received the dues or assessments from the assured for each of the months of July, August, September, October, November, and December, and remitted the money received to the head office, as required by the rules of the association, it will be considered that the association has failed to establish a forfeiture of the certificate because of any failure to pay the dues or assessments; the fact being shown that the money paid for the several months mentioned was retained, and that the assured died in the latter month, concerning which there was no complaint of nonpayment of dues.</p> <p>3. -: Action on Policy: Burden of Proof: Health of Applicant. Where the assured, shortly prior to making his application for membership in the association, was treated for catarrh in the head, and still prior to that time had been treated for lumbago or rheumatism in the back, but there was no evidence to show that the particular disease which caused his death had been contracted before the beneficiary certificate issued, it will not be considered that an inquiry can be made as to whether the disease of which the assured died was latent in his body. The fact that he had other complaints than the particular one which caused his death places the beneficiary under no obligation in case of suit to show that the assured was sound as to the particular complaint causing his death at the time that the certificate issued and he was admitted to membership.</p> <p>4. -: -: -: -. In an action upon a beneficiary certificate, it is not proper to plaee the burden of proof upon the beneficiary to show that at the time the certificate issued the assured was free from the particular infirmity which ultimately caused his. death.</p> <p>5. -: -: Instructions: Application. The following instructions given at the request of the plaintiff are held to fairly submit to the jury the good faith of the assured in answering the questions contained in his application! No. 6. “You are instructed that, if you believe any of the answers in the application for insurance are-incorrect or untrue in reference to a matter of opinion or judgment,, and if you believe that said answers were made, in good faith and without intention to deceive, then in that event the incorrectness or untruth of said answers shall not prevent the' plaintiff from recovering, if upon all the other facts he be entitled to recover.” No 7.. “You are instructed that, if you believe that the answer, upon any-fair interpretation of the meaning of the question in the benefit certificate application, as it might have been understood by the applicant, may be deemed a true answer, then, in that event, no forfeiture of the rights of the plaintiff shall be permitted, for that reason, if, upon all the other facts, plaintiff be entitled to recover.”</p> <p>6. -: Contract: Enforcement. Persons engaged in a life insurance business should be required to take the risk that properly belongs to the business, and the right of the beneficiary to recover should not be made to depend upon the skill, intelligence and accuracy of knowledge possessed by the assured touching his own physical condition. If the association has had an opportunity to examine the applicant by means of its physician, and voluntarily assumes the risk without deception upon the part of the assured, it should be hold' to the contract.</p> <p>7. Trial: Instructions. In this case complaint is made by the defendant of instruction No. 2, given at the request of the plaintiff. Instructions should be read and construed together, and, if as a whole, they state the law correetly, they will be held sufficient, although one- or more- of them, considered separately, may be subject to just criticism. Brown v. Chicago, B. 4" Q■ B. Co., 88 Neb. 604; Boesen v. Omaha-Street B. Co., 83 Neb. 378.</p> <p>8. Instructions examined in the body of the opinion, and held not to be prejudicial.</p>

<p>Appeal from the district court for Cass county: Harvey D. Travis, Judge.</p>

<p>Newspapers: Notices: Compensation. The evidence examined, and found! to sustain the verdict and judgment.</p>

<p>1. “Negligence is a failure to do what reasonable and prudent persons would ordinarily have done under the eirbumstanees and situation, or doing what reasonable and prudent persons under the existing circumstances would not have done.” Omaha Street R. Co. v. Craig, 39 Neb. 601.</p> <p>2. Master and Servant: Injury to Servant: Negligence: Question eor Jury. In an action for damages against a street railway company for an injury to a person because of the alleged negligence of the company, it is for the jury to say, under proper instructions from the court, whether the acts proved constitute negligence for which the company is liable.</p>

<p>Appeal from the district court for Douglas county: Alexander C. Troup, Judge,</p>