Wrongful Termination Cases

<p>Appeal from Caldwell Circuit Court. — Hon. F. H. Trimble, Judge.</p> <p>(1) Until a will is probated it is not effective to pass title. Shaffer v. Howerton, 123 Mo. 637; Dublin v. Chadbourn, 16 Mass. 433; Bacon v. Railroad, 145 HI. App. 502. (2) Probate in common form is as final ,...and conclusive after the lapse of the statutory period for contest as probate in solemn form. Crippen v. Dexter, 79 Mass. 330; Wells v. Wells, 4 T. B. Monroe, 152; Duncan v. Duncan, 23 111. 324; Parker v. Parker, 65 Mass. (11 Cush.) 519. (3) Contest must be in courts where probated. Crippen v. Dexter, 79 Mass. 330; Tilt v. Kelsey, 207 U. S. 43; Coming’s Will, 159 Mich. 474; Rachnan v. Taylor, 204 Mass. 394; Bryan v. Nash, 110 Ya. 329. (4) Admission of will, to probate is a special proceeding and not governed^by the usual rules of pleading and practice. Wells v. Wells, 4 T. B. Monroe, 152; Clearchrings Twp. v. Blough, 88 N. E. 611. (5) Where the probate act is silent, resort may be had to the general code as to parties and practice in contest cases. Lilly v. Tobein, 103 Mo. 477; State es reí. v. Guiño tte, 157 Mo. 513. (6) Answers in a contest case, averring that defendants had no sufficient information to affirm or deny the allegations of the petition, are equivalent to a general denial. Pomeroy on Remedies, sec. 640; Bliss on Code Plead., sec. 326; Walsor v. Hawkins, 60 Mo. 560; Humphrey v. McCall, 70 Am. Dec. 626. (7) More was required in the Sloan contest to give the circuit court jurisdiction than merely filing a petition and getting service on defendants. Heady v. Crouse, 203 Mo. 100. (8) .The relief granted ought not to be broader than issues tendered by the pleadings. Powell v. Crow, 204 Mo. 481. Howard v. Brown, 197 Mo. 53. (9) The defendants to the contest suit were adversaries of Mrs. Sloan, but not of each other. Badeau v. Logan, 2 Paige, 209; Glasner v. Weusberg, 43 Mo. App. 244; Roselle v. Bank, 119 Mo. 84. (10) A decree is only conclusive on adversary parties. McMahon v

<p>Action in the district court for Ramsey county against William J. Hoy and Michael J. O’Neil to recover $37,500 for personal injuries ¡sustained by plaintiff while in the employ of defendant O’Neil, an independent contractor, in a building of which defendant Hoy was -the general contractor. After the death of plaintiff, the special administrator of his estate was substituted in his place.</p> <p>The complaint alleged that the injury to plaintiff was received without any negligence on his part, and solely through the negligence •of defendant O’Neil in directing plaintiff to work on the fifth floor •close to a hoisting apparatus and hoistway which were unguarded by any barrier or railing, such hoistway being an exceedingly unsafe ¡and dangerous place; that defendant Hoy failed to guard such apparatus and hoistway and operated the apparatus in a wantonly careless and wilfully negligent manner, and in failing to raise said -apparatus after plaintiff was wedged in said hoistway. Defendant Hoy, in his separate answer, admitted the injury but expressly denied his negligence, alleged that he had no knowledge of the duties of plaintiff and therefore denied that at the time and place of the ■accident he was engaged in the discharge of any duty whatever to •defendant O’Neil. Before the trial it was stipulated that the action should be dismissed as to defendant O’Neil, without prejudice to ■either party.</p> <p>The ease was tried before Brill, J., who directed a verdict in favor ■of defendant. From an order denying plaintiff’s motion for a new trial, he appealed.</p>

<p>Jan. T., 1909, by defendant, from order of C. P. No. 2, Phila. Co., Dec. T., 1906, No. 640, dismissing exceptions to report of referee in case of Albert E. Batchelder v. Standard Plunger Elevator Company.</p> <p>Assumpsit to recover damages for an alleged wrongful discharge of plaintiff by defendant, his employer.</p> <p>Exceptions to report of referee.</p> <p>The referee, Chester N. Farr, Esq., found as follows:</p> <p>FINDINGS OF FACT.</p> <p>1. That the plaintiff possessed the necessary mechanical skill and executive ability to carry out the work of employment in the office of outside foreman for which he had contracted to serve the defendant.</p> <p>2. That there is no evidence that his capacity for doing work deteriorated as time went on in the service of the defendant company.</p> <p>3. During the entire time that the plaintiff worked for the defendant he showed executive skill and efficiency of an order reasonably sufficient to comply with the conditions of the contract.</p> <p>4. There were no inefficient acts on the part of the plaintiff that resulted in any detriment or loss to the defendant company.</p> <p>5. The plaintiff employed a man named Tupper as a driller on the work on the Wanamaker building during the fall of 1904. At that time the defendant company had discharged Tupper, who had previously been working in the Pittsburg district. The plaintiff was aware of this discharge, and that the company had notified him not to re-employ Tupper; and in making this appointment the plaintiff violated the instructions given him by the company.</p> <p>6. The plaintiff, while on the Wanamaker building was directed by the assistant president of the company to keep a diary of the progress of' his work. This he did not do.</p> <p>7. The plaintiff was asked at the commencement of the work on the Wanamaker building to prepare a list of the tools which it would be necessary for him to have for the purpose of the elevator construction. This order he disobeyed, and h

<p>From: the circuit court of Pike county.</p> <p>Hon. Moyse H. Wilkinson, Judge.</p> <p>Johnson, the appellant, and three others, were indicted for the murder of Harriet Caston; there was a severance, and appellant was separately tried, convicted of the murder, and sentenced to suffer death, from which conviction and sentence he appealed to the supreme court.</p> <p>On the trial of the ease the state offered proof of alleged confessions made by appellant to certain private citizens, one of whom promised at the time to intercede with the judge in an effort to keep appellant from being hanged, and also told appellant that it would be better for him to confess, as it would go lighter with him if he told the truth. To all of which evidence the defendant, now appellant, objected, but the court below overruled the objection and permitted the evidence to be introduced, and defendant duly excepted. The refusal of the charge asked by appellant, quoted in the opinion of the court, was assigned for error in appellant’s motion for a new trial, as was the above rulings on the evidence, and both were again assigned for error in the supreme court.</p> <p>The appellant is entitled to a reversal because the court admitted evidence over his objection, which was error. The purported confessions should not have been admitted in evidence. The record will clearly disclose the total, flagrant ineompetency of the alleged confessions, to which proper and legal objections and exceptions were taken. Williams v. State, 72 Miss., 117 (s.c., 16 South. Rep., 296) ; Ford v. State, 75 Miss., 101 (s.c., 21 South. Rep., 524) ; Rraughn v. Slate, 76 Miss., 574 (s.c., 25 South. Rep., 153); Hamilionv. Slate, 77 Miss., 675 ; Whitley v. Slate, 78 Miss., 255 ; Blalaclc v. State, 79 Miss., 517 (s.c., 31 South. Rep., 105) ; Ammons v. State, 80 Miss., 592 (s.c., 32 South. Rep., 9) ; Wright v. Slate, 82 Miss., 421; Macmasters v. Slate, 82 Miss., 459; Stanley v. Stale, 82 Miss., 498 (s.c., 34 South. Rep., 360).

<p>Appeal from St. Louis City Circuit Court. — Eon. Dan’l G. Taylor, Judge.</p> <p>The verdict is totally insufficient on which to predicate a judgment. We submit that the verdict of the jury is wholly meaningless and does not carry with it any punishment whatever. After saying in the verdict that they, the jury, find the defendant guilty of embezzlement by bailee, their verdict adds these words, “and assess the punishment at forty dollars.” State v. Coon, 18 Minn. 518; Favor v. State, 54 Ga. 249; Day v. People, 78 111. 380; Peo. X. L. v. Whatson, 74 111. 20; Camer v. Green, 1 Cox cc 269; 2 Thompson, Trials, sec. 2640.</p> <p>The main point relied on by appellant is, that the verdict is insufficient to support a judgment for the reason that the word “fine” was omitted. Verdicts are not required to be in any particular form; it is sufficient if they convey, in unmistakable terms to the court just what the jury mean; and a verdict “for 82.67 with interest at six per cent, from February 1, 1889 — -total amount 90.85,” is good, the word “dollars” being meant and understood. The Provo Mfg. Co. v. Severance, 51 Mr. App. 260. It is only when the verdict is silent on some element of the crime, that it will not support a judgment. State v. DeWitt, 186 Mo. 69.</p>

<p>Error to Hamilton common pleas court.</p> <p>Part performance took the agreement out of the statute of frauds. Wilbur v. Paine, 1 Ohio 251, 254; Moore v. Beasley, 3 Ohio 294; Wag-goner v. Speck, 3, Ohio 293; Grant v. Ramsey, 7 Ohio St. 157; Blanding v. Sargent, 33 N. IT. 239 [66 Am. Dec. 720]; Martin v. Batchelder, 69 N. H. 360 [41 Atl. Rep. 83]; Frey, Spec. Perf. 286, Secs. 56z, 563; Pomeroy, Spec. Perf. Sec. 104; Armstrong v. Kattenhorn, 11 Ohio 265, 272; 8 Am. & Eng. Ene. Law (1 ed.) 637.</p> <p>Severance. Fox v. Althorp, 40 Ohio St. 322.</p>

<p>From: the circuit court of Chickasaw county.</p> <p>Horn EugeNe 0. Sykes, Judge.</p> <p>Appellant and her husband, Leroy Harper, were jointly indicted on the charge of murdering one A. B. Bichardson. A severance was had, and appellant was tried and convicted of manslaughter. Appellant and her husband were employed to work on the farm of deceased, and were absent from their work on the day before the difficulty occurred which resulted in the death of deceased. On the day the difficulty occurred deceased went to the house of appellant and her husband to find out why they had been absent from their work, and while there a difficulty arose between the parties, in which Leroy cut deceased with a knife, and appellant struck him a severe blow with a club, from 'which injuries he died. Appellant was convicted aud sentenced to the penitentiary. From this judgment she appealed to the supreme court. The opinion of the court contains a further statement of the facts.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Julius S. Grinnell, Judge, presiding.</p>

<p>Street railroads. Independent contractors. Negligence. Verdict. .Before Judge Van Epps. City court of Atlanta. March term, 1891.</p> <p>Reported in the decision.</p>

<p>ERROR TO THE COURT OE QUARTER SESSIONS OE NORTHAMPTON COUNTY.</p> <p>No. 85 July Term 1888, Sup. Ct.; court below, No. . . . .....Term 1888, Q. S.</p> <p>On April 11, 1888, the grand jury returned as a true bill an indictment charging Dr. Henry M. Cox, George B. Evans and three others with having procured an abortion upon the person of Jennie R. Osborne.</p> <p>On April 12, 1888, a severance having been ordered, Dr. H. M. Cox was called to the bar and pleaded not guilty, when issue was joined. The testimony of the commonwealth established that Jennie R. Osborne, a young unmarried woman, had died on February 16, 1888, at a hotel in Easton, from an abortion committed, as was claimed, on February 11th. The testimony implicating the defendant on trial was circumstantial only, and the chief witness for the commonwealth was George E. Evans, a co-defendant who came upon the stand to testify under a promise of immunity. This witness was a salesman for a New York house, but resided in Jersey City. He visited Easton in a business way about every two weeks. Among his customers in other places was a merchant in Connecticut, in whose behalf he had arranged with the defendant and the proprietor of the hotel at Easton, that the young woman should be brought to the hotel to have the operation performed. According to the witness’s testimony he had met the defendant at the hotel at Easton on January 16th, and arranged with him then to perform the operation and to procure a nurse; and he had met the defendant a second time at the hotel on January 30th, when the young woman was brought there. This witness did not further implicate the defendant, who, as a witness in his own behalf, denied his guilt and called a number of patients whom he had visited at different hours on January 16th, some of whom had paid their bills, producing also the railroad time tables, to show that it was impossible for him to have been at Easton on that day. The defendant called also a witness, the holder of

<p>After the decision of this court (30 Minn. 528) holding the complaint insufficient, the cause was remanded to the district court for Murray county, and plaintiff served an amended complaint, in substance as follows: The defendant is owner in fee of a described quarter-section of land. On January 20, 1881, the defendant was indebted to one Darms in a sum exceeding $1,866.70, and on that day, for part of the debt, executed and delivered to Darms his promissory note payable two years thereafter, with interest at 10 per cent. On November 30, 1881, plaintiff, defendant and Darms made an oral agreement to the following effect: Darms agreed to pay defendant $100 for entering into the agreement, and paid him $65 on account, and at plaintiff’s request and for his account, sold and transferred the above described note, without recourse, to J. G. Townsend, plaintiff’s son, and also released defendant from the residue of the debt and from all demands of Darms against him. In consideration of which, the defendant agreed that as soon as he should make final proof of his claim to the land, (which he had entered under the homestead laws of the United States,) and on surrender to him of his note, he would convey the land in fee-simple to the plaintiff. And in consideration of the premises the plaintiff paid Darms the face of the note and interest, and accepted the transfer without recourse, and agreed that on conveyance of the land he would deliver the note to the defendant.</p> <p>At the time of this contract, the defendant was, and was known ”by Darms and plaintiff to be insolvent, and plaintiff was induced to make the agreement, accept the transfer without recourse, and make the payment to Darms, relying on the defendant’s promise to pay the note by a conveyance of the land, and would not otherwise have taken the note or made the payment. The land is not worth more than $1,200; the defendant is still insolvent; the land, being a United ■States homestead, is not liable for paym

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 134.</p> <p>This was’ an action in assumpsit brought by John A. Finney and Ada M. Finney, his wife, for use of fhe said Ada M. Finney, against A. H. Rowand, Jr., to recover the sum of $1965, with interest from August 3d 1875.</p> <p>A. H. Rowand, Jr., the defendant below, by warrantee deed dated August 3d 1875, conveyed to Ada M. Finney certain property in the borough of Verona, county of Allegheny, for the consideration of $2700. He received $1200 cash and a purchase-money mortgage with bond and notes of John A. and Ada M. Finney for $1500, payable in two instalments of $750 each, in four and six months respectively. The four months’ note he endorsed to the Franklin Savings Bank, of Allegheny. The six months’ note was endorsed to the Diamond National Bank, of Pittsburgh. When the first note matured, it was protested for non-payment, and a few days thereafter Finney paid one-half of the amount, and a new note for the other one-half, with interest added, was made by Finney and wife to Rowand’s order, and by him was endorsed to the Franklin Savings bank as before. This second note was also protested for non-payment at maturity. The six months’ note held by the Diamond National Bank was not paid and was protested at maturity. No further payments were made on these notes, and a scire facias was issued on the mortgage to No. 488, April Term 1876, marked A. H. Rowand, for use of the Diamond National Bank and George R. Riddle, trustee of the Franklin Savings Bank, v. Ada M. Finney and John A. Finney, her husband. Finney and wife appeared and made defence to this action, and on the trial there was a verdict against them for $848.92. Judgment was entered on the verdict and the property was sold on a levari facias, following the judgment, to the Diamond National Bank. After these ‘proceedings and sale, the present action was brought, wherein Finney and Avife claimed that

<p>Error to the Court of Common Pleas of Susquehanna county: Of January Term 1879, No. 83.</p> <p>Trover by E. C. Decker, against Silas Hartley, to recover damages for the conversion of a quantity of bark, which had been cut on the land of plaintiff.</p> <p>The plaintiff was the owner of a farm and entered into a written agreement with B. E. Decker, by which it was agreed that said “ B. E. Decker is to peel all the hemlock timber, from eight inches up to the largest, and start all the bark on said farm, and is to have one-half the bai'k after it is started to pay him for his labor. The bark is to be divided when started, and to be started as soon as the middle of March 1874, in good order and shape — to be measured in rack, and on good roads to the tannery.”</p> <p>B. F. Decker being indebted to the defendant sold his interest in the bark to Hartley and assigned his interest in the contract to him. Hartley was to get out the bark, and after disposing of his half, was to allow B. E. Decker the amount received for it over the debt and expenses. Hartley afterwards obtained a confession of judgment from B. E. Decker, upon which. B. E. Decker’s interest in the bark was sold at constable’s sale, and bid in by Hartley. The latter it appeared had hauled out and started the bark in accordance with the terms of the contract before the middle of March 1874.</p> <p>At the trial before Jessup, P. J., the plaintiff claimed, that Hartley had acquired no interest in any of the bark, because some trees had been left standing which should have been peeled, and the bark was not gathered up cleanly, and, therefore, the contract had not been fully complied with; and further, that being a sale of an unascertained quantity of bark Hartley could claim no title to or interest in it until measured and divided.</p> <p>The evidence upon the question of full performance of the contract was conflicting. Defendant claimed, that, as soon as there was a severance of the timber by B. E. Decker so as

<p>This was a bill in equity [by Joshua S. Severance against the Continental Insurance Company] to reform a policy of insurance, and for general relief. The complainant having purchased, on February 25, 1865, of Pollard & Doane, a quantity of tobacco, but not wishing to use it immediately, made arrangements to store it with them, and took from them a warehouse receipt in the ordinary form, setting forth that it was stored at their warehouse, Nos. 189 and 191 South Water street, Chicago. Wishing to -obtain insurance upon this tobacco so stored, Severance took the receipt of Pollard & Doane to the insurance agency of Messrs B. W. Phillips & Co„ of Chicago, who at that time were agents for the Continental Insurance Company, the present defendant, having other companies represented by them, who issued their policy in due form upon the tobacco, B. W. Phillips & Co., as agents of the Continental Insurance Company, giving the plaintiff the following certificate: “This is to certify that the Continental Insurance Company has insured against loss by fire, under open policy 100, by indorsement thereon on this date, in the sum of $1,800, fifty caddies of tobacco and fifty boxes of plug tobacco, in 189 and 191 South Water street.” This policy was extended after the expiration of its first term for a further term of three months, and during the second term of insurance, the same description being given in both certificates, the buildings Nos. 183, 185 and 187 South Water street were destroyed by fire. It appears from the evidence that Pollard & Doane occupied the entire portion of 189 and 191, as a wholesale grocery store, and also a portion of 185 and 187 above the first floors, and that in point of fact, the tobacco in question was never in the buildings 189 and 191, but was. from the time of the sale thereof to Severance; up to the time of its destruction by fire, stored in the upper room of 1S7 South Water street. The insurance company refused to pay the loss, on the ground

<p>Appeal from Cherokee. Tried below before tlie Hon. Samuel L. Earle.</p> <p>The appellant and one Henry Mitchell were jointly indicted at the Fall term (1868) of the District Court of Cherokee County, for the murder of W. E. Hartless, the husband of the appellant. The death was charged to have been inflicted with a stick and a pocket-knife.</p> <p>At the same term the accused appeared,' pleaded not guilty and obtained a severance. The trial of the appellant ensued, and. she was convicted of murder in the second degree, and her punishment assessed by the jury at ten years’ confinement in the penitentiary, with hard labor. A new trial being refused, the defendant appealed.</p> <p>The first error assigned was the admission of “ testimony as to the habits, disposition and character of the defendant, as pointed out in her bill of exceptions.” It was in proof that the deceased and the appellant .had been married about fourteen years, and had lived amicably together until some two years previous to the homicide; at which time the deceased “put up a still, and commenced making whisky and brandy.” The witness for the State, being under his examination in chief, proceeded to state: “ Deceased then took to drinking, and the fussing began. I have frequently heard the accused hallooing and screaming as if in distress, since the still was put up; and it became such a common thing to hear her, that it was regarded as a nuisance to the neighborhood. We could tell whenever deceased had made a ‘ run ’ of the still, by the hallooing of the accused. I don’t know what made accused make this noise; don’t know which was to blame for it, she or deceased. Know that deceased was frequently drunk, and accused may have been too. I have seen accused drink whisky, but never saw her intoxicated.”</p> <p>By the defendant’s bill.of exceptions, it appears that this testimony went to the jury over her objection, and before she had put her character, habits or disposition in issue.</p> <p>The second

<p>Appeal from the Common Pleas of Lebanon county.</p> <p>This was a proceeding in equity, founded on a bill filed January 4th 1862, by David Steinmetz and Henry Landis, administrators of Jacob Becker, deceased, against Jonathan Bender, sheriff of Lebanon county, and Jacob Witmer and other creditors of Henry Thoma, and against the said Henry Thoma.</p> <p>The bill set forth that Henry Thoma is the owner in foe of a tract of land of about forty acres, situate in Union township, Lebanon county, with a steam grist and saw mill thereon erected . — that there are liens upon said property, as follows, viz.: a dower of about $500 in favour of the widow of Abraham Wenger, deceased, being the first -lien upon said property, and two judgments in favour of complainants, administrators as aforesaid, for $5000, which are the next liens, that said property, being all the real estate of Henry Thoma, is not worth and would not bring so much as the amount of said liens with their interest, that Jacob Witmer and other execution-creditors are the owners of judgments against said Henry Thoma, the liens of which are subsequent to the dower and judgments in favour of complainants as aforesaid, that said Henry Thoma has no personal estate, the same having been levied upon and sold, and is wholly insolvent. That said steam grist and saw mill contained a steam engine, boilers, and other machinery necessarily connected and used together, essential to the working of the mills, and so annexed, fixed, and embedded in the structure of said mills as to be part of the freehold; that said Henry Thoma, acting in concert and collusion with Jacob Witmer and the other execution-creditors, defendants, and by their advice and instigation, and with intent to appropriate the real estate, the proper fund of your petitioners, administrators as aforesaid, for the payment of their judgments to the payment of the judgments of the said Jacob Witmer and other execution-creditors, which otherwise would not he paid