Wrongful Termination Cases

Appeal from the Circuit Court of Baldwin County, Harry J. Wilters, Jr., J. Page 429

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order transferring action to the Municipal Court of San Francisco. Preston Devine, Judge. Affirmed. Action for damages for wrongful discharge of railroad employee, and for declaration of rights under a collective bargaining agreement. Judgment for defendants affirmed.

APPEAL from a judgment of the Superior Court of Los Angeles County. A.K. Wylie, Judge. [fn*] Affirmed. Action for damages for wrongful termination of a contract of employment. Judgment for plaintiffs affirmed. [fn*] Assigned by Chairman of Judicial Council.

<p>Appeal, No. 129, Jan. T., 1919, by defendant, from judgment of C. P. No. 4, Philadelphia Co., March T., 1918, No. 3917, making absolute rule for judgment for want of a sufficient affidavit of defense in the case of Samuel W. Prussian, trading as Guaranty Motors Company v. Hudford Philadelphia Sales Company, a Corporation.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Audenried, P. J.</p> <p>The affidavit of defense set up a number of counterclaims. The court was of opinion that they were not properly pleaded and directed judgment for plaintiff for $7,870.60, being the amount' sued for less the sum of $1,-721.38. Defendant appealed.</p> <p>Error assigned was the order of the court, making absolute the rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Action in the district court for St. Louis county by the father of plaintiff minor to recover $2,500 for personal injury. The ease was tried before Hughes, J., and a jury which returned a negative answer to the question whether the driver’s relation to the defendant was that of- an independent contractor, and an affirmative answer to the question whether at the time of the injury defendant had the right to, and did in fact, control the driver as to the time, place or manner of performing his work, and a general verdict in favor of plaintiff for $750. From an order denying its motion for judgment notwithstanding the verdict or for a new trial, if plaintiff consented to a reduction of the verdict to $500, defendant appealed.</p>

<p>From Multnomah.: William N. G-atens, Judge.</p> <p>Department 1. Statement by Mr. Justice McBride.</p> <p>This is an action brought by F. A. Cassity against Ben H. Wilson, Ada S. Wilson and F. B. Stratton, alleging that defendants entered into a conspiracy to mislead and defraud him concerning certain patents and patent rights controlled by them, which they represented had been transferred to the Twin Manufacturing Company, a corporation. The complaint asserts that defendants falsely represented that if the plaintiff would so invest large profits would be made; that, to induce him to take a commission contract, the services of one J. H. Jefferson were secured to act as a partner with plaintiff, the defendants falsely pretending that said Jefferson would put a like sum into the business; that plaintiff, relying upon the representations thus made, did advance $750 and gave his note for $500, and Jefferson, at the instance of defendants and for the purpose of defrauding plaintiff, gave a check on the United States National Bank for $750 and his note for $500, which check was alleged to be worthless and known to be so by defendants at the time it was given. Plaintiff further avers that defendant Wilson, in pursuance of the conspiracy, agreed to go into partnership with him, and that he went north to Vancouver, B. C., and Seattle, at the behest of Wilson, to secure a location; that said Wilson did not carry out his agreement, and plaintiff was compelled to return to Portland with loss of much money and.time. To this defendants Ada S. Wilson and F. D. Stratton file a general denial; and defendant Ben H. Wilson, in a further and separate answer, alleges that the Twin Manufacturing Company is a corporation, that the contract was made with the corporation, that the money was paid to the corporation, and the officers of the corporation signed and put the seal of the corporation thereon. The case was triecl before the court without a jury, and, from findings and judgment in

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is an action by D. R. B. Winniford and R. H. Mays, doing business under tbe firm name and style of Winniford & Mays, against A. L. MacLeod and tbe Lewis-Wiley Hydraulic Company, a corporation, and owner of what is known as Westover Terrace, in Portland, Oregon.</p> <p>Tbe complaint recites an ordinance of tbe City of Portland forbidding tbe explosion of gunpowder or other like material in tbe city limits without first having received a permit from tbe city engineer. It says also that prior to tbe explosion complained of MacLeod bad obtained from tbe proper officer a permit to use powder for blasting in an amount not to exceed five pounds upon tbe tract mentioned. At tbe time of tbe grievance complained of tbe plaintiffs were engaged in tbe erection of a dwelling-house for another near the scene of the blasting operations they describe, .but had not yet completed their contract. The complaint contains these allegations:</p> <p>303</p> <p>“That for more than a year prior to October 29, 1911, the defendant A. L. MacLeod had been carrying on blasting operations in a careless, negligent, malicious and wanton manner for the defendant Lewis-Wiley Hydraulic Company upon the land owned by the defendant company, and the defendant company well knew and appreciated that the defendant A. L. MacLeod was carrying on these blasting operations in a careless, negligent, malicious and wanton manner, and in such a manner as to endanger the property in the surrounding neighborhood; that on October 29, 1911, at about the hour of 3:30 P. M., the defendants, A. L. MacLeod and Lewis-Wiley Hydraulic Company, negligently, carelessly, maliciously and wantonly, through their servants, set off and exploded at one time 50 pounds of powder at a point about 150 feet west of the said house hereinabove described; that the said explosion threw a great number of rocks at terrific speed against and into the s

<p>From Josephine: Frank M. Calkins, Judge.</p> <p>Department 1. Statement hy Mr. Chief Justice McBride.</p> <p>This is an action in ejectment by Ada Erb Bunch against George B. Thomblison, Artie Thomblison and Mary Ellen Leonard, to recover possession of a certain 40-acre tract of land, situated in Josephine County. The plaintiff obtained a verdict and judgment, and defendants appeal.</p> <p>The facts appearing on the record are as follows: On April 2, 1892, J. D. Glidden and Ellenor, his wife, being the owners of the west half of the southeast quarter and the southwest quarter of the northeast quarter of section 28, township 39 south, range 7 west, Willamette meridian, mortgaged the same to William Dailey to secure the payment of the sum of $383.85, with interest at 10 per cent, per annum. On September 4, 1895, Dailey brought suit to foreclose the mortgage. The complaint correctly described the land mortgaged, but in the decree which was subsequently rendered the land was erroneously described as the west half of the southeast quarter and the southeast quarter of the northeast quarter of said section 28, including 40 acres not owned by the mortgagors and omitting the southwest quarter of the northeast quarter which was described in the mortgage; the error being probably caused by the clerk writing the word “southeast” instead of the word “southwest.” Execution and order of sale was issued containing the same erroneous description, and the land was sold and bid in by Dailey for the full amount of his decree and costs. The sheriff issued a deed to Dailey containing the said erroneous description and reciting a confirmation of the sale, but no order of confirmation appears on the record. Dailey died, and the property passed by inheritance to his son Edward Dailey, and subsequently passed by a series of ■ conveyances to plaintiff, all of which contained the same erroneous description found in the original decree: On September 28, 1896, the Grliddens conveyed the south

<p>Appeal, No. 187, Oct. T., 1912, by defendants, from judgment of O. P. Somerset Co., Sept. T., 1907, No. 116, on verdict for plaintiffs in case of Henry B. McCormick and Vance C. McCormick, Trustees of tbe Estate of Henry McCormick, Deceased, v. John A. Berkey and John R. Boose.</p> <p>Issue framed under tbe Act of June 10, 1893, P. L. 415, to determine title to minerals underlying tract of land in Quemakoning Township. Before Holt, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The jury found a verdict in favor of the plaintiffs for the real estate in dispute, upon which judgment was entered.</p> <p>On a rule for a new trial and for judgment n. o. v., Holt, P. J., filed the following opinion:</p> <p>In this case an issue was framed between the plaintiffs and the defendants, to determine the right and title of the respective parties in and to a tract of mineral land in the Township of Quemahoning, in said county, bounded by lands of Jacob Lohr, and others, containing 192 acres and 118 perches strict measure.</p> <p>On the 14th day of May, 1887, the Johnstown Lumber Company became the owners in fee simple of a certain tract or piece of land in said township, containing 245 acres and 134 perches; and the Johnstown Lumber Company, on the 25th day of April, 1889, being so seized of said tract of land, executed and delivered unto one John Holsopple a deed for 192 acres and 134 perches of the said tract of land, reserving the right of the grantors to all the minerals underlying the same, with the usual mining privileges. The Johnstown Lumber Company, by another deed, dated October 28, 1891, conveyed unto the Cambria Land Company, by metes and bounds, the whole of the said tract of land containing 245 acres and 134 perches, excepting and reserving,, however, out of the operation of the grant, the 192 acres and 134 perches of the surface of said tract heretofore conveyed by the Johnstown Lumber Company to John Holsopple.</p> <p

<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>Case 77 — Action bt Albert Jahn’s Admr. against William H. McKnight & Co. for Causing the Death of Plaintiff’s Intestate.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.</p> <p>Judgment foe Defendants and Plaintiff Appeals.</p> <p>POINTS.</p> <p>1. The team owner was not an independent contractor.</p> <p>2. Whatever may have been the relation between the appellee and the team owner, the relation between appellee and the team driver was such as to render appellee liable for the team driver’s negligence,</p> <p>3. In any event, the lower court erred in giving a peremptory instruction to find for appellee.</p> <p>AUTHORITIES.</p> <p>Am. & Eng. Ency. of Law, 2d ed., vol. 16, pp. 187, 190, 191; Jenson v. Barbour, 15 Mont., 582; Montgomery Gas Light Co. v. Montgomery & E. Ry. Co., 86 Ala., 372; Campbell v. Lunsford, 83 Ala., 512; Linehan v. Rollins, 137 Mass., 123; Thompson on Negligence, vol. 1, p. 579; Alyell v. Tyrer, El. Bl., 906; Blake v. Thirst, 2d H. & C., 20; Texas, &c. R. R. Co. v. June-man, 71 Fed. Rep., 939; Tiffin v. McCormick, 34 Ohio St., 638; Waters v. Pioneer Fuel Co., 52 Minn., 474; Phila W. & B. Ry. Co. v. Hahn, 12 Atl., 479; Thompson on Negligence, vol. 1, sec. 579, p. 537; Kimball, v. Cushman, 103 Mass., 194; Adams Express Co. v. S'chofield, 23 Ky. Law Rep., 1120; Southern Express Co. v. Brown, 67 Miss., 260; Vary v. Ry. Co., 42 la., 246; Wichtrecht v. Fasnacht, 17 La. Ann., 166; L. & N. R. R. Co. v. Tow, &e., 23 Ky. Law Rep., 408; Rait v. New Eng. Fur. &c., 66 Minn., 76; Barg Bousfield, 65 Minn., 355; Sullivan v. Dunham, 35 N. Y. App. Div., 342; Hart v. Ryan, 6 .N. Y. Supp., 921; Brophy v. Bartlett, 108 N. Y., 632.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Appellees are merchants, having no delivery wagons; they contracted with Granville' Hooper to furnish them a horse, wagon and driver to carry and deliver as much as could be done with one team, for a stipulated price per week. By the contract Granville Hooper selected the horse

<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 St. Louis City Circuit Court. — Hon. Franlclin Ferris, Judge.</p> <p>(1) The statute gives no right to a money judgment. Burt v Mears, 41 Mo. App. 231; Buggy Co. v. Ilord, 65 Mo. App. 38; Barnes v. Rawlings, 74 Mo. App. 531. (2) The statute is in derogation of the common law, and should be strictly construed. Yankee v. Thompson, 51 Mo. 234; Stone v. Kelley, 59 Mo. App. 214; Jackson v. Railroad, 87 Mo. 422.</p> <p>(1) Statutes in derogation of the common law are not, as a universal rule, strictly construed. But, on the contrary, when consistent with justice, they should receive such construction as will effectuate the purpose for which they were created by the legislature. Rozelle v. Harmon, 103 Mo. 339; Connor v. Railroad, 59 Mo. 285; State v. Landis, 54 Mo. App. 315. (2) Where the law gives one a right, without prescribing an adequate remedy for its enforcement, he is at liberty to adopt any adequate remedy provided by law for the enforcement of similar rights. State v. Severance, 55 Mo. 378; Householder v. Kansas City, 83 Mo. 488; Cummings v. Winn, 89 Mo. 51. (3) Sections 5180 and 5181, Revised Statutes 1889, were in force at the time plaintiff and defendant contracted with each other for the purchase of the piano, and hence said sections entered into and became a part of said contract as fully as if they had been written into said contract. Therefore, a violation of the sections is a breach of the contract, and the injured party may recover for any damage sustained thereby. State ex rel. v. Laclede Gaslight Co., 102 Mo. 485; Ohoteau v. Railway, 122 Mo. 389; State ex rel. v. Board, 108 Mo. 242.</p>

<p>Appeal, No. 124, Oct. T., 1897, by Ada Morehouse, from decree of O. C. Washington Co., May T., 1897, No. 27, on appeal from register of wills.</p> <p>McCollum, Mitchell and Fell, JJ., dissent.</p> <p>Appeal from register of wills refusing letters of administration.</p> <p>McIlvaine, P. J., found the facts to be as follows :</p> <p>In the year 1885 Richard IT. Stull, a citizen and resident of Washington county, married Hannah Margaret Lewis. They had born to them one child, a son, Samuel A. Stull. On February 7,1894, Hannah Margaret Stull, nee Lewis, was divorced from Richard H. Stull by the court of common pleas of Washington county on the grounds that he, the said Richard H. Stull, had committed the crime of adultery with one Ada Widdup, the appellant in this case. On the 5th day of April, 1894, Richard H. Stull and the said Ada Widdup were married in Cumberland, Maryland. They left Washington county, Pennsylvania, and went to Cumberland, Maryland, for the sole purpose of being married and to evade, as they thought, offending against the act of assembly of Pennsylvania, approved March 13, 1815, which prohibited their being married. Immediately after the marriage ceremony was performed.in Cumberland they boarded a railroad train and returned to their home in this county and lived together as man and wife until the 11th of June, 1895, when Richard II. Stull died. He died testate, mating Ada Widdup the principal beneficiary of his will. Stiers .Lewis was appointed .guardian of Samuel A. Stull, the only child of Richard H. Stull and Hannah Margaret Stull, who, on behalf of his ward, contested the probate of this will. On December 16, 1896, after a trial in the court of common ¡pleas, the will was decided by this court null and void, and Ada Widdup (who is -now Mrs. Morehouse), as widow of the said Richard H. Stull, applied for letters of administration. Stiers Lewis, guai’dian of Samuel A. Stull, the only child of Richard PI. ¡Stxxll, objected to the granting of let

<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>APPEAL by dependant prom the court op oyer and TERMINER OP GREENE COUNTY.</p> <p>No. 194 October Term 1889, Sup. Ct.; court below, No. 2 June Term 1888, O. and T.</p> <p>On January 6, 1888, tbe grand jury returned as a true bill an indictment charging George Clark, Frank Clark, Sr.,' and Zach. Taylor, with the murder of Wm. McCausland on September 10, 1887.</p> <p>On April 3,1888, a severance was had and the trial of George Clark was ordered, resulting in a verdict of guilty, on April 14, 1888. The judgment oh the verdict was affirmed on writ of error to this court, on February 11,1889. See Commonwealth v. Clark, 123 Pa. 555, where the material facts relating to the murder sufficiently appear. On January 15, 18,89, the indictment of Zach. Taylor was called for trial, resulting in a verdict of guilty, and on May 1, 1889, judgment was passed, which on October 28, 1889, on appeal to this court was affirmed. See Commonwealth v. Taylor, 129 Pa. 534.</p> <p>On June 5,1888, after the trial and conviction of George Clark, an information was made by the widow of the murdered man charging “ that she had cause to suspect and did suspect that Benjamin Clark did kill and murder William McCausland, and did assist in the killing and murdering of said William Mc-Causland.” Upon this information the defendant, who was a son of Frank Clark, Sr., was arrested, committed, and on June 20,1888, an indictment charging him as a principal in the murder was found a true bill by the grand jury. Issue.</p> <p>The cause was called for trial on April 4, 1889, and a jury impaneled. After the admission in evidence of other facts tending circumstantially, as- it was claimed, to connect the defendant with the actual commission of the crime, George Calvert was called and sworn for the commonwealth:</p> <p>The commonwealth: We propose to prove by this witness that about three weeks after the murder he was out hunting in the woods called “ Cloud’s Woods,” and came across the defendant and a man name

<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