1266

proach of an extra train at some distance.-256 (Or.) Complaint held to state facts to Pyles v. Atchison, T. & S. F. Ry. Co., 155 P. 788.

which Employers' Liability Act was applicable, A rule of a railroad company relative to trains tion was brought under that act.-Dickerson v. and it was not necessary to allege that the acin its yards held not to exempt employés in Eastern & Western Lumber Co., 155 P. 175. charge of a switch engine from taking any pre-265(14) (N.M.) The burden of establishing caution to avoid collision with an approaching contributory negligence rests on the defendant train that may, in view of the circumstances, master.-Melkusch v. Victor American Fuel Co., be required in the use of reasonable care.-Id. 155 P. 727.

(E) Fellow Servants.

179 (Or.) Employers' Liability Act eliminates defense of carelessness of fellow servants. -Wheeler v. Nehalem Timber & Logging Co., 155 P. 1188.

269 (Okl.) In view of Comp. Laws 1909, §§ 4359, 4374, in an action for the death of an employé from a mine explosion, evidence of gas found in the mine at various times before the accident was admissible to show that the mine generated gas.-Kali Inla Coal Co. v. Ghinelli, 155 P. 606.

276(1) (Kan.) Evidence in a railroad employé's action under the federal Employers' Liability Act held to sustain special findings and general verdict for plaintiff.-Cole v. Atchison, T. & S. F. Ry. Co., 155 P. 949.

action for damages for death of her minor son, held to justify a finding of employer's culpable negligence.-Bloxham v. Tehama County Telephone Co., 155 P. 654.

(F) Risks Assumed by Servant. 204(2) (N.M.) A coal miner does not assume the risk of injury from the master's failure to supply and deliver timbers on request, as required by Code 1915, § 3507, subd. 11.-Melkusch v. Victor American Fuel Co., 155 P. 727.278(2) (Cal.App.) Evidence, in plaintiff's 204(1) (Or.) Employers' Liability Act eliminates defense of assumption of risk.-Wheeler v. Nehalem Timber & Logging Co., 155 P. 1188. 213 (Wash.) That a switchman suing under278 (18) (Kan.) Evidence in an action unfederal Employers' Liability Act rode with his der the federal Employers' Liability Act for feet in the stirrup of a flat car bending over death of a brakeman, held sufficient to sustain and holding to a cleat on the floor does not show assumption of risk of defective appliances, unusual jerking of the train.-Saar v. Atchison, a finding that his fall was due to a violent and but raises a question of contributory negligence. T. & S. F. Ry. Co., 155 P. 954. -Bolch v. Chicago, M. & St. P. Ry. Co., 155 P. 422.

278 (Or.) Evidence held sufficient to warrant jury finding that boards connecting runways upon which oiler was required to go were an invitation to him to use them.-Dickerson v. Eastern & Western Lumber Co., 155 P. 175.

219(5) (Idaho) A servant is chargeable only with the duty of noticing such conditions as to the appliances furnished him as are patent, obvious, and known to him.-Tucker v. Palmberg,281 (12) (Cal.App.) In an action for death

155 P. 981.

221 (Wash.) Questions where defense of assumption of risk is tendered are: Was defect open, obvious, and patent; was promise of repair inducement to continue work; and did servant act with ordinary prudence?-Mattson v. Griffin Transfer Co., 155 P. 392.

Where teamster suffered injuries from defect in spring of seat, which was as well understood by him as by foreman, and promise of foreman to repair was not the inducement to continue work, master is not liable.-Id.

(G) Contributory Negligence of Servant. 228(3) (N.M.) Code 1915, § 3508, subd. 6, held not to prohibit a miner from remaining or working in a room where a portion of the roof requires timbers and supports, provided the particular place where he is working is safe.Melkusch v. Victor American Fuel Co., 155

727.

of plaintiff's minor son through the negligence of his employer, held that the evidence would have justified a finding that decedent's contribdeath.-Bloxham v. Tehama County Telephone utory negligence did not proximately cause his Co., 155 P. 654.

for death of an employé held to conclusively 281 (Kan.) Plaintiff's evidence in an action dangers incident thereto were apparent to him, show that the character of his work and the and that in attempting to perform such work as he did he was contributorily negligent.— Udey v. City of Winfield, 155 P. 43.

question whether an injured employé is pro284 (Okl.) Under conflicting evidence, the tected by the federal Employers' Liability Act R. I. & P. R. Co. v. Felder, 155 P. 529. or by local law may be for the jury.-Chicago, P.284(1) (Or.) Whether an injury in logging camp from falling of stub was within the Emtions for the jury.-Wheeler v. Nehalem Timployers' Liability Act was under proper instrucber & Logging Co., 155 P. 1188.

228(1) (Or.) Employers' Liability Act eliminates defenses of contributory negligence.— Wheeler v. Nehalem Timber & Logging Co., 155 P. 1188.

246(1) (N.M.) A servant who is suddenly exposed to great and imminent danger need not act with that degree of prudence otherwise requird.-Melkusch v. Victor American Fuel Co.,

155 P. 727.

(H) Actions.

284(3) (Or.) In action for injuries to servant in logging camp, evidence held to present question for jury whether kindling of fire at ployer's business.-Wheeler v. Nehalem Timber base of stub for warmth tended to promote em& Logging Co., 155 P. 1188.

286(4) (Idaho) Evidence held to authorize submitting to the jury whether the defendant employers were negligent in failing to furnish reasonably safe appliances.-Tucker v. Palmberg, 155 P. 981.

2504 [New, vol. 15 Key-No. Series] (Okl.) Whether an employe's action is protected by the federal Employers' Liability Act or by local law depends both on the peti-286(37) (Kan.) Whether a rule of a railtion and evidence as to the character of the employment, and whether the employé's work was interstate commerce in which the carrier was engaged.-Chicago, R. I. & P. R. Co. v. Felder, 155 P. 529.

road company relative to trains in its yards constituted sufficient means for protecting the crew of an incoming train from collision held to be a jury question.-Pyles v. Atchison, T. & S. F. Ry. Co., 155 P. 788.

25034. Owing to the great increase of mat-286 (Okl.) Evidence in an employé's action ter heretofore classified to this section, we have for injuries from negligent failure of defendant made a new subdivision, consisting of number sections 346-420, at the end of this topic, ize submitting the cause to the jury on plainto comply with the Factory Act held to authorwhere the matter in this and future index di- tiff's theory. Planters' Cotton & Ginning Co. v. gests will be found. Penny, 155 P. 516.

286 (1) (Okl.) Whether a master has been negligent is ordinarily for the jury.-Interstate Compress Co. v. Arthur, 155 P. 861.

were within the issues raised by the pleadings. -Cole v. Atchison, T. & S. F. Ry. Co., 155 P. 949.

THIRD PERSONS.

Where the standard of the master's duty is not fixed, but variable with the circumstances IV. LIABILITIES FOR INJURIES TO and incapable of being determined as a matter of law, the question whether such duty has been complied with must, if authorized by the evidence, be submitted to the jury.-Id.

The question of the master's negligence becomes one of law only, where the facts are such

that all reasonable men must draw the same conclusions, and then only when no recovery can be had on any view of the facts which the evidence tends to establish.-Id.

288(1) (Idaho) Under Employers' Liability Act, held, that whether the plaintiff employé assumed risk or was negligent was for the jury under the evidence.-Tucker v. Palmberg, 155

P. 981.

288(5) (N.M.) Under the evidence in a coal mine employé's action for injuries, held, that whether plaintiff was working in a dangerous or unsafe place, knowing same to be such, was for the jury.-Melkusch v. Victor American Fuel Co., 155 P. 727.

288 (Wash.) In a personal injury action by a switchman brought under the federal Employers' Liability Act, the question of his assumption of risk held, under the evidence, for the jury. Bolch v. Chicago, M. & St. P. Ry. Co., 155 P. 422.

(A) Acts or Omissions of Servant.

302(4) (N.M.) Where a herder in defendant's employ stole and drove into defendant's herd the sheep of another, held, that the larceny was not in the "course of employment," and that a judgment against defendant could not be sustained, in the absence of evidence showing ratification or acceptance of benefits.-Bruton v. Sakariason, 155 P. 725.

(B) Work of Independent Contractor.

315 (Okl.) A lessee under an oil and gas lease held liable to the lessor for damage done to the property by negligence of an independent contractor in drilling a well.-Minnetonka Oil Co. v. Haviland, 155 P. 217.

(C) Actions.

330 (Utah) Where it was sought to hold a father liable for the negligence of his son, who was driving in the father's absence the latter's motorcar, evidence held insufficient to show that the son was the father's agent or servant at the time.-McFarlane v. Winters, 155 P. 437. VI. WORKMEN'S COMPENSATION

ACTS.

289(1) (Idaho) Under Employers' Liability Act, whether plaintiff was negligent held for (A) Nature and Grounds of Master's Liajury under the evidence.-Tucker v. Palmberg, 155 P. 981.

289 (Okl.) In an employé's action for injuries held, that under Const. art. 23, § 6, contributory negligence was for the jury.-Chicago, R. I. & P. R. Co. v. Felder, 155 P. 529.

bility.

348 (Mont.) Liability and compensation statutes cannot be grouped together, since they are the antipodes of labor legislation, having their foundation in essentially different social and economic ideas.-Lewis and Clark County v. Industrial Acc. Board of Montana, 155 P. 268. Em-351 (Or.) Where servant takes advantage of the Workmen's Compensation Act, he cannot recover of the master, unless he brings himself within exceptions.-Jenkins v. Carman Mfg. Co., 155 P. 703.

289 (Wash.) In a personal injury action by a switchman brought under the federal ployers' Liability Act, the question of his contributory negligence held, under the evidence, for the jury-Bolch v. Chicago, M. & St. P. Ry. Co., 155 P. 422,

291 (Or.) In employé's action for injuries, court held not required to charge that Employers' Liability Act was applicable.-Dickerson v. Eastern & Western Lumber Co., 155 P. 175.

354 (Wash.) Though injuries of an employé were aggravated by negligence of a physician engaged by the master and paid out of a fund deducted from employés' wages, held that, having received an award under Industrial Insurance Law, the employé, in view of sections 5h, 6, and 12c, could maintain no action against employer and physician for malpractice.-Ross v. Erickson Const. Co., 155 P. 153.

The Industrial Insurance Law does not af

293 (Or.) In employé's action for injuries charge held proper and to meet all the conditions of the case respecting a defective scaffolding which the employer claimed was not furnished by it for the employé's use.-Dickerson v. Eastern & Western Lumber Co., 155 P. 175. fect an employe's right of action for independent 296 (Okl.) An instruction that the defend-injuries, after an injury for which he is enant employer must fail on its defense of con- titled to compensation under the act, although tributory negligence unless the jury were reasonably satisfied from "the evidence" that plain- the award will include all matters arising out of the original injury.-Id. tiff was negligent held not objectionable as tantamount to saying that defendant must "by its own evidence" show that plaintiff was contributorily negligent.-Planters' Cotton & Ginning Co. v. Penny, 155 P. 516.

364 (Kan.) Clerical employés in the city clerk's office are not city employés engaged in conducting a light and water plant, within the Workmen's Compensation Act, § 6.-Udey v. City of Winfield, 155 P. 43.

(B) Compensation.

297(2) (Kan.) A general verdict in an action under the federal Employers' Liability Act for wrongful death will be set aside, where the 387 (Or.) Under Laws 1913, p. 204, § 22, jury declare in one finding that the accident authorizing recovery in addition to payments would have happened though decedent had not from accident fund if injury to workman rebeen negligent, and in another that his negli-sults from deliberate intention of employer, "degence contributed to it, and it does not appear liberate intention" implies a determination to that any deduction was made on that account.Pyles v. Atchison, T. & S. F. Ry. Co., 155 P. injure employé, not merely negligence, however gross.-Jenkins v. Carman Mfg. Co., 155 P. 703.

788.

297 (2) (Kan.) Special findings in a railroad employe's action under the federal Employers' Liability Act held consistent with each other and with the general verdict.-Cole v. Atchison, T. & S. F. Ry. Co., 155 P. 949.

297 (3) (Kan.) In a railroad employe's action under the federal Employers' Liability Act, held that findings as to defendant's negligence

(C) Proceedings.

396 (Kan.) An attempt and failure by plaintiff to settle by agreement or arbitration is not a condition precedent to maintenance of an action under the Workmen's Compensation Act (Laws 1913, c. 216).-Halverhout v. Southwestern Milling Co., 155 P. 916.

In Laws 1911, c. 218, § 36, providing that

a workman's right to compensation may, "in default of agreement or arbitration," be determined and enforced by action, the words quoted mean practically the same as if the phrase "in the absence or omission of an agreement or arbitration" had been used.-Id.

398 (Kan.) Where it appeared that defendant employer knew of the injury and plaintiff's desire to be paid therefor, the claim required by Laws 1913, c. 216, § 6, to be made within three months after the accident was unnecessary. Halverhout v. Southwestern Milling Co., 155 P.

916.

299 (Kan.) Where, shortly after commencement of a mechanic's lien foreclosure suit, a mortgage was executed to a trustee for benefit of the lienholders, and at the foreclosure sale the land was purchased by one lienholder for about one-fourth the amount of the judgments, held, that the sum for which the land sold was the proper basis for redemption.-Lampe v. Star Lumber Co., 155 P. 918.

Where the fee owner requested the purchaser at a mechanic's lien foreclosure sale to take up a mortgage on the land, which was done and satisfaction entered, held that, in order to redeem, the fee owner's assignee must account for such mortgage.-Id.

MEMBERS.

401 (Or.) Under Laws 1913, p. 206, § 25, a workman who has applied to Industrial Commission for compensation cannot bring action under Employers' Liability Act without pleading and proving that commission has determined See Corporations, 174-259. that injury was caused by failure to maintain safety appliances.-Jenkins v. Carman Mfg. Co., 155 P. 703.

MEMORANDA.

412 (Kan.) A judgment awarding compen- See Frauds, Statute of, 115, 116. sation in a lump sum will not be disturbed except for an abuse of discretion.-Halverhout v. Southwestern Milling Co., 155 P. 916.

MATERIALITY.

See Criminal Law, 384–393.

MAXIMS.

See Equity, ~65, 66.

MEASURE OF DAMAGES.

See Damages, 108, 122.

MECHANICS' LIENS.

See Action, 45; Homestead, 97; Pleading, 248, 367.

II. RIGHT TO LIEN.

(C) Agreement or Consent of Owner. 73(1) (Cal.App.) Defendant's liability for lumber furnished his tenant on his agent's order held not defeated by fact that tenant was instructed to use old lumber.-Grenfell Lumber Co. v. Peck, 155 P. 1012.

IV. OPERATION AND EFFECT. (C) Priority.

MENTAL CAPACITY.

See Criminal Law, 48; Homicide, 237.

MENTAL SUFFERING.

See Damages, 52.

MINES AND MINERALS.

See Corporations, 76, 78; Guardian and
Ward, 44; Master and Servant,
204, 228, 315.

MISREPRESENTATION.

See Vendor and Purchaser, 33-37.

MISTAKE.

118

See Adverse Possession, 65; Contracts,
93; Election of Remedies, 11; Payment,
84; Statutes, 200.
MITIGATION.

See Damages, 62.

MODIFICATION.

See Appeal and Error, 1151; Bills and
Notes, 136, 137.

MONEY LENT.

198 (Kan.) Mill machinery sold under a
contract reserving title held not subject to a
mechanic's lien, where the contract was record- See Corporations, 461.
ed before the machinery was set up and fasten-
ed in place.-St. Marys Mach. Co. v. Iola Mill
& Elevator Co., 155 P. 1077.

VI. WAIVER, DISCHARGE, RELEASE,
AND SATISFACTION.

(B) Bond or Deposit to Prevent or Dis-
charge Lien.

226 (Cal.) A bond given by a builder, in consideration of premature payment of last installment of contract price, to hold owner harmless from liens, held immaterial relative to claim for extras.-Carpenter v. Markham, 155 P. 644.

VII. ENFORCEMENT.

281(3) (Cal.App.) In action to foreclose materialman's lien, evidence held to support findings that defendant's son was ostensibly his agent or held out as such, and instructed plaintiff to let defendant's tenant have lumber. Grenfell Lumber Co. v. Peck, 155 P. 1012.

281 (1) (Okl.) Evidence held to sustain a judgment for plaintiffs in an action to enforce a mechanic's lien.-Haizlip v. Whitfield, 155 863.

MONEY PAID.

See Payment, 84; Vendor and Purchaser, 334-341.

MONUMENTS.

See Boundaries, 5.

MORTGAGES.

See Appeal and Error, 281-305; Chattel
Mortgages; Railroads, 195.

I. REQUISITES AND VALIDITY.
(A) Nature and Essentials of Conveyances
as Security.

28 (Kan.) A landowner's agreement to give a deed as security for money loaned and paid on the promisor's debts held to constitute an equitable mortgage on the land agreed to be conveyed, from the time of the agreement.—Fitzgerald v. Fitzgerald, 155 P. 791. P.28 (Kan.) Where one who had mortgaged chattels and agreed to replace the mortgage with one executed by himself and wife used the property to secure a loan to complete payment of a farm, promising to give the lender a mortgage on the farm executed by himself and wife, but gave a mortgage not acknowledged and

290(2) (Cal.App.) Under Code Civ. Proc. § 1183, findings in action to foreclose materialman's lien as to agency of party ordering materials held to support judgment.-Grenfell Lumber Co. v. Peck, 155 P. 1012.

signed only by himself, though his wife enjoyed to look to the income of the property prior to the fruits of the exchange of security, held that, its sale.-Schultz v. Stiner, 155 P. 1073. as between the parties the land was subject to the lien.-English v. Sanborn, 155 P. 1079.

29 (Mont.) Under Rev. Codes, § 3214, relating to annexation of territory to an incorpay-porated city, etc., a city cannot extend its boundaries so as to include unplatted ground.Sharkey v. City of Butte, 155 P. 266.

attempted to be annexed to defendant city by | IV. PROCEEDINGS OF COUNCIL OR invalid proceedings omitting words "in virtue OTHER GOVERNING BODY. of this proceeding" held not erroneous, where (B) Ordinances and By-Laws in General. it could not be held to mean more than if such words had been used.-Id.

108 (Cal.App.) The words "general elec35 (Ariz.) An incorporated city by annextion," in the referendum provision of the Baking pursuant to Civ. Code 1901, pars. 509-517, election, held to refer to the last general municersfield city charter adopted at November, 1914, part of a road district, acquired the right to ex-ipal election.-Bakersfield & Kern Electric Ry. ercise over property and inhabitants in the an

nexed territory all political and governmental Co. v. Hay, 155 P. 132.

powers delegated to it by law.-Blount v. Mac-1 (Utah) A city ordinance, touching the Donald, 155 P. 736. sale of intoxicants and published, as required by statute, so as to change the part relating to stating the penalty by fine, was not wholly the penalty of imprisonment while properly void and permitted a judgment for a fine.Logan City v. Steadman, 155 P. 445.

35 (Mont.) Under Rev. Codes, § 3214, relating to annexation of territory to incorporated city, not to include unplatted ground, city's proceedings for annexation of entire tract, part of which was platted and part of which was not, held void in toto.-Sharkey v. City of Butte, 155 P. 266.

36(1) (Ariz.) A city, by annexation of a road district under statutory authority, acquired no rights and assumed no liabilities of the district not of a political or governmental nature.-Blount v. MacDonald, 155 P. 736.

36(3) (Ariz.) In the absence of express statutory provision, a city which annexed part of a road district did not acquire power to tax the annexed property to redeem bonds of the district and pay interest.-Blount v. MacDonald, 155 P. 736.

Under Laws 1907, c. 66, § 9, touching payment of road district bonds, property situated in territory which was part of a road district at the time the district issued bonds, although the territory including it was subsequently annexed by a city, as authorized by Civ. Code 1901, pars. 509-517, was subject to a levy to pay the bonds or interest.-Id.

112(3), (Kan.) The title of an ordinance held not broad enough to include a provision regulating a sale of nonintoxicating beverages; so that such provision was void under Gen. St. 1909, § 1060.-City of Wichita v. Lewis, 155 P.

948.

122 (Or.) L. O. L. § 90, with regard to pleading ordinances of cities and towns, does not provide an exclusive rule of pleading.-Chan Sing v. City of Astoria, 155 P. 378.

V. OFFICERS, AGENTS, AND EM-
PLOYÉS.

(A) Municipal Officers in General.
124(5) (Cal.) Under St. 1911, p. 1675, art.
11, c. 5, § 7, and St. 1911, p. 1679, art. 11,
c. 1, § 5, a petition for recall of municipal of-
ficers need not bear the date of signature of
each signer, notwithstanding Pol. Code, § 1083a,
as amended by St. 1915, p. 286, relating to gen-
eral elections.-Scheafer v. Herman, 155 P.
1084.

57 (Idaho) Cities can exercise only such powers and rights as are clearly or by necessary159(1) (Cal.) Failure of the board of elecimplication conferred on them by statute, any tion commissioners to pass upon the sufficiency ambiguity being resolved in favor of the grant- of a recall petition within 10 days, as required ing power.-State v. Frederic, 155 P. 977. by the municipal charter, does not invalidate the petition, where such failure was the result of a violation of duty.-Scheafer v. Herman, 155 P. 1084.

II. GOVERNMENTAL POWERS AND
FUNCTIONS IN GENERAL.

VII. CONTRACTS IN GENERAL.

58 (Or.) A city's charter is the limit of its prerogative, and its authority to pass an ordinance must be expressed or necessarily im-230 (Kan.) The officers of a city of the secplied.-Chan Sing v. City of Astoria, 155 P.

378.

III. LEGISLATIVE CONTROL OF
NICIPAL ACTS, RIGHTS, AND
LIABILITIES.

ond class maintaining a $50,000 waterworks system may contract with an electric light company to pump water.-Arnhold v. Klug, 155 P. 805.

IX. PUBLIC IMPROVEMENTS. (B) Preliminary Proceedings and Ordinances or Resolutions.

293(1) (Cal.App.) The resolution of intention to do proposed crossing work is an essential prerequisite to jurisdiction of the municipality to inaugurate the work, and to authorize an assessment.-Richmond Const. Co. v. Growney, 155 P. 1008.

MU-293(2) (Cal.App.) The resolution of intention primarily to do work of public improvement need not in detail describe the work to be 64 (Ariz.) The powers of all municipal cor- done, but may incorporate such description by porations exist only by authority of the state, references to plans and specifications.-Richand, subject to constitutional limitations, the mond Const. Co. v. Growney, 155 P. 1008. Legislature may erect, change, divide, and abol-296(2) (Kan.) A contract between a city ish such corporations at pleasure.-Blount v. MacDonald, 155 P. 736.

79 (Cal.) General statutes inconsistent with the city's special charter do not control election and removal of a municipal officer, which is a municipal affair, under Const. art. 11, § 6, providing that general laws shall control the acts of the city, except in municipal affairs.Scheafer v. Herman, 155 P. 1084.

Where a special city charter contained complete scheme for recall of officers omitting to require petition to bear date of signature of each signer, the Legislature could not thereafter declare applicable to such city a statute making that requirement.-Id.

maintaining a waterworks system and an electric light company under which the latter was to pump water held not to provide for a work or improvement for which a previous estimate was required by Gen. St. 1909, § 1413.-Arnhold v. Klug, 155 P. 805.

A work or improvement for which a previous estimate is required by Gen. St. 1909, § 1413, ordinarily implies some physical change or construction effecting an amelioration in the condition of the property involved.-Id.

A previous estimate of cost of municipal work or improvement is required only when the city contracts with some other party to do or sup ply some such work or improvement, and not