The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-04-27
IS SOMEWHAT SIMFLEFIED By THE
ORDERING OF NEW
TRIAL.
SEVERAL IMPORTANT
CASES
Are Embraced in the Other Dozen
Decided by the States Highest
Tribunal.

insurance case of c. A. Smith Lumber
company, ct al, appellants, VS.. the
Central Manufacturers Insurance COM
pany, of Van Vert, Ohio, on the
ground that the court below instructed
the jury incorrectly, as to the effect of
certain evidence.
The case has excited good deal or
interest in the business circles of both
cities It appears that prior to Dec.
10. 1895. the Smith Lumber company
had carried $4,000 insurance in a line
Of companies represented by the Shove
agency, Of which the Central Manu-
facturers was one. Dec. or that
year, the lumber company called in a
representative of the Shove agency
and asked for 81, 500 more insurance
on the plant. stating that some addl-
tions had been made to the buildings.
The agent not only refused to write
the additional insurance, but served
notice that the line Of policies already
on the plant would be Cancelled Dec. IL,
five days later.
At noon on Dec. 10, the lumber COM
pany closed a verbal contract with
the BeIknap agency for $16,500 insur-
ance on the plant. That same night
the plant of the lumber company
burned All the companies in the Bel
KNAPP agency paid their proportionate
claims, but on the basis that the ST.
600 carried in the Shove agency was
still in force as concurrent insurance
On the afternoon of December 10
there had been some conversation be
tween the representatives Of the Shove
agency and the agent Of the lumber
company regarding the policies, and
the insurance companies in this suit
claim that it was agreed that the po-
licies in the Shove agency should be
Cancelled then and there, as the desir-
ed $16,5 500 of insurance had been secur-
| ed from the other agency.
| Peter Hanson, respondent, VS.. Gaar, Scott q
! Co., appellants.
l. Upon the second trial Of an action
/ brought to recover damages for an alleged
breach of an agreement fully set out in a
former opinion of this court, 63 MINI. "a.
the court charged the jury that if plaintiff
was entitled to recover, the measure Oh dam
4 ages was the difference between the value
OF the separator as it was when the agree
ment was entered into and what 1t would
have been had defendant complied with the
terms and conditions of such agreement.
! Held that as an abstract proposition TINS
part of the charge was correct, and That the
| court did not err, in the absence OF any re
/ quest that il be explained or enlarged upon,
! and in the absence of any suggestion by
/ counsel as to any other rule applicable TO
! the facts. Held also that the correctness OF
the charge upon this point cannot be ques-
toned under an assignment that the court
erred when instTuctng the jury that the
measure of damages was what the machine
would have been worth if it had been as
warranted"
g. Certain other unimportant assignments
of error considered and disposed of.
Collins, ].
James c. Tarbox appellant, VS.. Frank Cruzer
ct al. respondents
Held, that the court below erred in sub
hitting to the jury as a question OF rae
the construction to be placed on a certain
written contract. collins, j.
NJ. ]. Azure. respondent, VS.. Board of County
Commissioners of Becker County, defend
ants, respondents, George d. Hamilton, ap
Rule laid down in Du Toit VS.. Fergestad, s.
Mimi. 462, to the sufhciency OF a return
on appeal applied and the order appealed
from affirmed. Collins, }.
John H. Lee respondent, VS.. Chicago, st
Paul. Minneapolis Omaha hallway Com
pany, appellant.
In an action to recover for personal in
jures received by plaintiff and for damage
done to his property in a eolIls d n De De
PENDANTS locomotives, it is he'd that IN
evidence as to the defendants negligenc
was insufficient to support the verdict Il
plaintiffs favor. Order reversed.
Collins, J.
Ed S. Bean. assignee of F. X. Peyer, insol
vent respondent, VS.. Alfred Scheffer ct al
/. In an action brought by an assignee i
! insolvency under the laws OF TINS state TO sc
: aside a sheriff's certificate of sale Of rea
property on execution and the lien OF tn
5 Judgment under which this execution wa
issued on the ground that the judgment, oh
tanned by default for want OF answer, was a
unlawful preference under the statute, tn
court found that when the creditors com
} menced the original action the debtor kne
he was insolvent that the creditors kne
him to be insolvent, and that the debtor we
: knew that the action was commenced again.
{ him for the purpose of enabling the cred
: ! itors to obtain an unlawful preference, an
S that for such purpose he willfuIly perm
! ted the judgment to be obtained and d0cF
/. eted against him. Held. that there was Il
+ evidence to base the finding mat the debtt
S well knew that the action was commence
to obtain an unlawful preference or that
V wilfully suffered the judgment TO be obtaine
b for such purpose.
from Vanish Pioneer Fuel Co., 60 MINI
. 32l.
: that because a technically insolvent merchal
. or trader suffers al action to be commence
= against him upon a claim. against which
q has no defense, by cre6i ors who know h
Judgment to be entered and dOcketed aga. n
him for want of answer, which judgment o
comes a lien upon real property, that Il
debtor intended TO premit the Judgment cret
itors to obtain an unlawful preference. JUDI
ment reversed. Collins, j..
II Ida NJ. La Plant, respondent, VS.. The Fir
i mans Insurance Company of Baltimore, a.
l. pellant.
n By denying, in an answer, any liability #
loss under an insurance policy, the insur
does not waive its right to plead in abat
n ment that under the terms and conditions
the policy as to payment the action has bet
a prematurely brought. Order reversed.
u Collins. J.
George Williams respondent vs. Great Mort
ern Railway Company, appellant.
n Whenever bodily suffering is material
be proved, expressions or complaints, ma
n at the time, which are the natural and i
! Stinctive Manifestations of pain and suferil
are competent evidence as part of the T
gestae, and may be testified to and describ
. by any person in whose presence they we
uttered. Distinction noted between such col
- ! plants and the mere narration OF past sym
IA toms or simple descriptive statements viii
furnish no evidence of the existence of ST
fering except the assertion Of the party.
Former decisions of this court on the que
8. ton when the statements and representatio
a of a sick person to his medical attendant
= the purposes of treatment to the natul
symptoms and effects Of his injury mala
admissible original evidence in /
s, own favor, considered and construed as
or going further than to decide that they &
ne admissible when they relate to existing pa
h or other symptoms from which the patio
az IS suffering at the time. He'd, that, ev
be If this rule should be adhered to- it ShoI
tn not be extended as to apply to descriptio
Of past symptoms or to statements based
past experience.
statement by party to his physician Il
he has lost his sexual powers is not adm
t6 | Sible as original evidence in his own faV