dence, the judgment will not be reversed because the court has erred
in the instructions given to the jury.
Woods v. Board, etc., 289
8. Action for Personal Injuries.—Instruction as to Peril of Life.—Propriety of.
-An instruction in an action for damages for personal injuries al-
leged to have been sustained by the plaintiff, is not erroneous which
states, among other things, that the jury should "take into account
the peril, if any there was, to plaintiff's life," and which concludes
with the statement that only such damages shall be assessed "as will
reasonably and justly compensate the plaintiff for his injuries." It
was proper for the jury to consider the hazard and jeopardy in which
the plaintiff was placed; in other words, the peril to his life, and
allow such damages as resulted therefrom in determining the dam-
ages which he sustained, and his suffering in body and mind by rea-
son of the injury.
Terre Haute, etc., R. R. Co. v. Brunker, 542
INSURANCE.
1. Loss by Fire.--Policy Construed.-Pro Rata Liability.--The plaintiff held a
policy in the defendant company for $1,500. The policy was on twenty-
one items of property which were classified in the policy, and opposite
each item a valuation was affixed, making, in the aggregate, $90,000.
The policy provided that the company only insured one-sixtieth
part of each of said sums, and that its liability was limited to such
a proportion of the loss as the amount insured thereby bore to the
entire amount of insurance. At the time of the fire the aggregate
insurance on the property was $60,000, and the loss $51,000.
Heid, that under the terms of the policy the defendant company was lia-
ble for one-fortieth, and not sixtieth, of the loss.
Indiana Ins. Co. v. Hoffman, 250
2. Application.-Warranties.-Statements made by the insured in his ap-
plication for insurance are not deemed warranties unless they are
incorporated in the policy, or, in some appropriate method, referred
to in that instrument.
Citizens' Ins. Co. v. Hoffman, 370
3. Same.--Conditions of Policy.-Where the insured represents in his letter
of application for insurance that a certain amount of insurance will
be maintained, but the application is not incorporated in the policy
or made a part thereof by reference, no inference arises that the policy
was issued upon the condition mentioned in such letter of applica-
Ib.
INTENTION.
See WILL, 4.
INTERPLEADER.
Bill.-Sufficiency of.-A bill of interpleader filed under section 273, R. S.
1881, which does not aver that the alleged claimant ever demanded
payment of the note sued on, or claimed that it had any right to col-
lect the note, nor aver that the defendant paid, or offered to pay, the
amount due into court or surrender the mortgaged property, is de-
murrable.
Mansfield v. Shipp, 55
INTERROGATORIES TO JURY.
See INSTRUCTIONS TO JURY, 6.
Antagonistic Interrogatories.--If two interrogatories, and the answers thereto,
are antagonistic, and in opposition to each other, they neutralize
and destroy each other, and must be disregarded. Dickey v. Shirk, 278
INTERSTATE COMMERCE.
JOINT TENANCY.
See WILL, 2.
JUDGMENT.
See APPEAL, 1, 3; BASTARDY, 3; CHATTEL MORTGAGE, 1; INJUNCTION,
2; SPECIAL FINDING.
Justice of the Peace.-Irregularities.-Relief-Injunction.-Appeal.- Injunc-
tion will not lie to restrain the collection of a judgment rendered by
a justice of the peace because of irregularities occurring at the trial.
The remedy is by appeal.
Parsons v. Pierson, 479
JUDICIAL KNOWLEDGE.
See NATURAL GAS, 1.
JURISDICTION.
See DRAINAGE, 13; RAILROAD, 2.
1. Relationship to Counsel.-Setting Aside Verdict.-A verdict will not be
set aside because a juror was permitted to serve who was the husband
of a niece of the wife of one of the defendant's attorneys.
Miller v. Louisville, etc., R. W. Co., 97
2. Competency of-Defective Eyesight.-A juror whose eyesight is so de-
fective that he can not see the expression of the faces of the wit-
nesses, nor observe their deportment or demeanor, is not competent,
especially where various articles illustrative of the testimony are
placed before the jury.
Rhodes v. State, 189
3. Same.--The defendant was not negligent where his counsel fully ex-
amined the juror as to his qualification, and there was nothing in his
answers to indicate that his eyesight was defective.
JUSTICE OF THE PEACE.
See JUDGMENT.
LARCENY.
See CRIMINAL LAW, 2.
LEGISLATURE.
See CONSTITUTIONAL LAW, 6, 7.
LICENSE.j
See EASEMENT, 1.
See DECEDENTS' ESTATES, 1, 6; TAXES, 2, 14.
1. Labor Performed in Working Mine.--Expenses Incurred by Assignee.-
Preference. The costs and expenses, including wages of a laborer that
he employed, incurred by the assignee of a mining property, are made
by statute a preferred claim and lien upon the property assigned,
prior to all other claims, even to those for labor incurred prior to
the assignment of the property. Elliott's Supp., section 1598.
Shull v. Fontanet, etc., Ass'n, 331
2. Same.-Assignment of Proverty.-Foreclosure of Claim.-Innocent Pur-
chaser.-Laborer's Claim.-A mining company made an assignment
of all its property to F., authorizing him in the deed of assign-
ment to operate and develop the mine, pledging him the property
as security for any money he advanced of his own in developing the
mine, and directing him to pay certain debts. Prior to the assign-
ment a mortgage was given D. on the property assigned, and recorded.
C. held a duly recorded mechanic's lien, and S. a valid claim for
mining labor rendered the assignee. F. took possession of the prop-
erty, advanced $5,000, and a year afterwards foreclosed his lien ex-
cept as against D., C. and S., and at the sale under the decree the Coal
Bluff Mining Company purchased it. The plaintiff worked for F. in
the mine, but the purchaser had no knowledge of his claim for wages.
Held, that the plaintiff was entitled to foreclose his lien for wages against
the property in the hands of the purchaser, standing on the same basis
with the claims of F.; and the fact of F. abandoning the trust and
foreclosing his claims did not affect the plaintiff's lien or rights. Ib.
LIFE-ESTATE.
1. Premium Overdue and Unpaid.-Validity of Provision Against Liability.
-A provision in a policy of insurance that the insurer shall not
be liable for a loss occurring while a note given for premium is
overdue and unpaid, is valid, and exonerates the insurer from lia-
bility while such delinquency continues.
Michigan M. L. Ins. Co. v. Custer, 25
2. Same.-Waiver of Forfeiture Incurred by Non-Payment of Premium.-A
provision in a policy of insurance providing for the forfeiture of the
policy for non-payment of the premium is for the benefit of the in-
surer, and may be waived by it.
lb.
3. Same.-Premium Note Overdue.--Extension of Time of Payment.-- Loss
During Extension. --A clause in a policy of life insurance provided
that if any premium should be settled by note, such settlement
should not be deemed a payment, but only an extension of the time
for the payment of that premium; and if the note, or any renewal
of it, should not be fully paid when due, then, for any loss occurring
while such note remained due and unpaid, the insurer should not be
liable, but the whole amount of the premium included in such note
should be considered as earned, and the insurer might collect it. The
insured failed to pay a premium when due, and gave his note there-
for, due in seven months, and before this note was due, the time of
payment was 'extended by mutual agreement five months, during
which five months he died.
Held, that there was a sufficient consideration to support the agreement to
extend the time of payment the extra five months, that it was not a
mere indulgence to the maker; and that the insurer was liable for the
loss occurring under such policy.
Ib.
4. Same.-Proof of Extension of Note.-Tile Season.-Where it is alleged
that the note was extended until the season for the sale of tile for a
designated year had expired, evidence of the period constituting
the tile season is admissible to show such extension.
Purchaser without Notice.-New Trial as of Right.-Reversal of Judgment.—
Where a plaintiff in ejectment recovers a judgment for possession
against the owner in fee, who is in possession of the land, and with-
in the year allowed by statute the defendant obtains a new trial as of
right, upon which he recovers, one who purchases without notice a
mortgage executed by the plaintiff after the first judgment and before
the new trial is taken, is not an innocent purchaser within section
1066, R. S. 1881.
Griswold v. Ward, 389
1. Pleading.-Waiver of Tort.-In an action against a physician for mal-
practice, the plaintiff may elect to sue on contract, and thus waive
the tort.
Lane v. Boicourt, 420
2. Same.-Pleading.--Actions Ex Contractu or Ex Delicto.--A complaint in
an action against a physician for malpractice alleged that the plain-
tiff employed the physician to give professional attention to his wife,
in childbirth, for which compensation was to be paid, and that the phy-
sician contracted with the plaintiff to render the required services;
that, as a breach of said contract, the physician failed to give the
plaintiff's wife proper attention, causing her great injury.
Held, that the complaint was in contract, and not in tort.
MANDAMUS.
See CONSTITUTIONAL LAW, 2.
1. Ministerial Officer.--Specific Fund.-Distribution of.-A ministerial offi-
cer, who has a specific fund in his hands, may be compelled by man-
damus to make lawful distribution of the fund. This remedy is
proper, for the reason that the officer is liable, if liable at all, for
the violation of a duty imposed upon him by law.
Ingerman v. State, ex rel., 225
2. Same.-Drainage.--Ditch Commissioner.-Cost of Improvement.-Must Pay
Out of Specific Fund.-Demand before Suit.-Parties to the Action.--Where
a ditch commissioner has collected the assessments levied for the con-
struction of a ditch, it is his duty, upon proper demand, to pay the
amount due for the construction of the ditch out of the specific fund.
In a mandamus proceeding to compel him to do so, he can not suc-
cessfully urge as a reason for withholding the fund that the land-
owners who paid 'the assessments which created the fund are not
parties to the action.
3. Same.-Petition for.-Necessity of Demand.-Public Officer.-Presumption
as to.-In such an action a demand is essential. The presumption is
that an officer will do his duty upon request, and to put him in the
wrong a demand is necessary. Where the duty is owing to a private
person, and not to the public, a demand must be alleged with pre-
cision in the petition for a writ of mandamus.
Ib.
See CONTRACT, 6; REAL ESTATE, 2; REAL ESTATE, ACTION TO RECOVER, 1.
Loan to.-Suretyship.-Where a married woman personally applies for a
loan, and the loan is made in good faith under the belief that the
money is for her own use, and she executes a mortgage upon her
separate property as security, her husband joining, such married wo-
man is liable as principal, and the fact that there is a secret under-
standing between the husband and the wife that the money is being
borrowed for the husband's use, and is handed to him by the wife
as soon as received, is immaterial.
Cummings v. Martin, 20
1. Railroad.-Damages.-Defective Machinery.-Employee's Means of Knowl-
edge. What Complaint Must Aver.-In an action for damages against
a railroad company for the death of a brakeman alleged to have been
caused by the unsafe and defective condition of a brake on one of the
defendant company's cars, it is not necessary to aver facts in the
complaint, showing affirmatively that the employee had no means
of ascertaining the defect. It is the duty of the master to provide
suitable and proper appliances; the employee has the right to rely on
the master having discharged his duty, and he is not required to
search for defects, nor is he required to aver facts in his complaint,
VOL. 128.-40
showing that he had no means of knowledge. It is sufficient to aver
that he had no knowledge of such defect.
Ohio, etc., R. W. Co. v. Pearcy, 197
2. Same. Defendant's Knowledge of Defective Machinery.—Averment of Com-
plaint as to Sufficiency of.—Demurrer.—Negligence.-Where the complaint
alleges that the brake was defective in certain particulars, and that
the defendant company negligently used such brake in its business
upon the day of the injury, and for many days prior thereto, a de-
murrer will not lie on the ground that the complaint does not allege
that the defendant company had any knowledge of the defect, by
means of which it is averred the deceased received the fatal in-
jury.
3. Same.-Safe Appliances.-Duty of Employer to Furnish and Maintain.—
Knowledge of Defects Chargeable to Employee.-The duty of the em-
ployer does not end with simply providing safe machinery and appli-
ances for the use of his employees, but the further duty is imposed
of continuously exercising reasonable diligence and care to ascertain
and know the condition of such machinery and appliances, and to
keep them in a safe and proper condition. The employee is charged
with the knowledge of such defects as he could have ascertained by
the exercise of reasonable care and diligence in this behalf.
MEASURE OF DAMAGES.
See EMINENT DOMAIN.
1. Notice.-Description.-A notice of intention to hold a mechanic's lien
described the property as the "east half of the northwest quarter of
section 36, township 15, range 13; also the west half of the southwest
quarter of section 25, township 15, range 13." The correct descrip-
tion was the "northeast quarter of section 26, in township 15, range
13, except fifty acres out of the northwest corner."
Held, that the description, aided by the reference to the house itself which
the notice contained, made the identification complete, notwithstand-
ing the mistake in the designation of the section, and that the notice
was sufficient as against judgment creditors claiming a superior lien.
McNamee v. Rauck, 59
2. Surety on Contractor's Bond can not Enforce Lien for Materials Furnished.-
A surety on a contractor's bond who undertakes that the contractor
shall pay for all materials used in the building can not enforce a lien
for materials furnished by him at the request of such contractor.
Me Henry v. Knickerbacker, 77
MEDICAL EXAMINATION.
See PRACTICE, 27.
MISCONDUCT OF JURY.
See NEW TRIAL, 7.
MISJOINDER OF CAUSES OF ACTION.
See EXEMPTION FROM EXECUTION, 2.
1. Mortgage to Secure Two Notes Payable to Different Persons.-Priority.-A
mortgage given to secure two notes identical in date, amount, and
time of maturity, but payable to different persons, is equivalent to
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