Omaha daily bee., 1902-09-19
RAILROAD LAWYERS WISE
Voluntary Relief Department Certificate
Barn Widsw from Recovery.
OTHER DECISIONS or SUPREME COURT
Commissioner Pound Holds That n
Nebraska Horse should Know Bct-
ger Than to Scare at a

nron. a star correspondent.l

LINCOLN, Sept. 1S.-(Special.)-The
legal a%stuteness OF the attorneys who de-
vised the certificate issued to every member
Of the Burlington Voluntary Relief depart
ment was INDICATED today In a decision
handed down by the supreme court,
In which it's double action character was
sustained. The suit was one brought by
the widow Of Granville oyster, an engineer
killed in a wreck near oxford /. 1894. She
sued as his Administrative for IS 900 dam
ages some years ago and secured a judgment
for the full amount. This was paid after
long litigation.
Oyster had been a member Of the re-
lief department and his certificate therein
ran to his wife as beneficiary. In the suit
against the company itself Mrs. oyster
had not made herself a party, but prose-
cuted the action for the benefit of their
minor children alone. After the money
was paid her as administratrix she brought
an action to recover for herself from the
relief department Of the railroad company.
This suit was very warmly defended by
the railroad company, whose attorneys in
sisted that II was only a clever dodge to
collect twice from II for the killing OF the
same man. To this 1t was answered that
the other judgment was for the benefit Of
the children alone, while this was for
the widow alone.
Every employee of the Burlington III
these departments where danger to life and
limb is. for all practical purposes, required
to join the relief department and contribute
a part OF his wages to a common fund out
Of which all death claims and disability
allowances are paid. II there Is a deficit
the company makes II good It is no part
of a mans contract that he Join this de-
rartment. but all Of them do as a mat
ter of job-insurance. A provision OF the
certificate is that II one accepts the benefits
hereunder he cannot maintain a suit
against the company for damages or II he
sues the company he ~forfelts the right
to receive anything upon the certificate.
The supreme court has previously held
that these provisions are valid and en-
f~orcible. but this case presented som new
features. The court, however, brushes
aside the points raised by Mrs. Oysters
attorneys and decides in favor Of the relief
department. II says that Mrs. Oyster can
not take advantage Of the fact that she
omitted to name herself as one Of the
plaintiffs in the damage suit against the
company. The law makes the widow and
next of kin sharers in the proceeds or
avails Of that action, and the fact that
she omitted to name herself as a party
plaintiff individually is not a bar to her
participants In the Judgment secured. and
that II she has not received any Of 1t she
has a good cause OF action against herself
as ADMINISTRATIVE for not doing so. 1t
holds that she must take the relief certih-
cate with all OF the conditions imposed by
It or not at all.
1t is also held that where the full penalty
recoverable under the law has been i'm
posed upon a railroad company for unlaw-
fully killing an employee holding a relief
certificate no action can be maintained
upon that certificate also.
other Decisions of Court.
In the case Of II. H., Meek against viii
liam c. LANCE. an appeal from Clay county
the court held that an executory contract
for the sale Of a farm homestead, to which
the wife had not been a party, was invalid
and the non performance of 1t will not fur
nish a basis upon which to recover damages
for loss Of a bargain.
J. b. Brooks, district clerk of PawneC
county. is the loser by 1929 in the cast
brought against him by Belle Robertson
Mrs. Robertson held a second mortgage OF
some property In Pawnee county. The frs
mortgage foreclosed. Mrs. Robertson wal
made a party, but did not appear in tn,
suit. There was a balance Of 1929 left aftel
satisfying the first mortgage and costs. Thil
money was paid over by the clerk to tn,
mortgagor. Mrs. Robertson later appeared
and claimed It, but the mortgagor was be
yond the reach OF an execution. The su
preme court says that Mrs. Robertson hat
Q clear right to the money, that the fac
she did not appear foreclosed her Of an,
right in the real estate. butrnot in the sur
plus. and action to secure this could b.
maintained against the clerk.
Horse should Know Better.
According to the decision OF the suprem
court In the damage suit brought by Nose
Roberts Of johnson county against the Bur
lington, a horse has no business to ge
scared at a railway handcar. He was in
jured in a runaway at Graf some years age
his team becoming frightened at the sud
den appearance of a handcar from benin
an elevator. Roberts secured a judgmeu
in the lower court. but the supreme cour
reverses this as erroneous and holds tn
company blameless. Commissioner PounC
in his opinion. said:
The ordinary operation OF a handcar
one CT the Incidents Of a railroad, an
ances as to the many others with whic
modern highways abound. I'm this era G
bicycles SHtomo6Ies' trolley ears. tractio
take the nerves OF the horse as the measug
OF rights In a highway. Unless there
something SO unusual and out of the ord
nary about an appliance OF this sort ths
In the proper and reasonable use Of thol
Oughfares H. has no place on roads fr,
quented by teams no liability arises frol
It's ordinary operation, even though horse
are frightened.
MusfeIt Draws = ardon
Governor Savage exercised executi'
elemency today for the benefit OF Fremol
r. Musfelt and Kitty d. Musfelt. n,
CLAUS. Both had been sentenced to s
months in the Rock county Jail at Basse
for sustaining eriminal relations, but pri,
to their Incarceration they were Marie
The conviction was In Judge Harrington
court. A delegation OF Rock county cit
Eens waited on the governor this afte