The news & observer., 1905-12-13


the hazard of defendants operations,
such contention cannot be made one
Of law when no issue was rendered as
| to such alleged fact nor presented
| bv -Draver for instruction on the is
sue as the reasonab!enesS of the order.
| Presented as an issue of fact by argu-
ment and evidence, the defendant is
bound by the response of the jury
to the issues presented.
i g While in such case, these is some
danger that the switch may be mis-
placed it is only such as IS necessari
| lv incident to the defendants business
and to be guarded against by it's dill
| gence ard, in no aspect is sufficient to
Justify q reversal of the order of the
| Court founded upon the responses of
| une iuIv to the issues presented.
state, appellant. vs Luther HOllOman,
from HertfOrd. Reversed.
| Chapter 259 Laws of 1905, pre-
| scribing a method of working the
| public roads in HertfOrd county had
among many others, a provision that
| any person or corporation using the
roads of any township of said county
for the hauling of logs or other heavy
material in heavy wagons should be
subject to a license tax of $15 and TO
a crime and penalty for using the
roads for such purposes without pro-
curing the license prescribed; pro-
vided that a majority of the Board
of Supervisors should vote to adopt
such section. On a special verdict it
was found that the defendant had so
used the roads without license, that
the supervisors had voted to adopt
said section and that defendant had
verbal notice of the action of the su-
pervisOrs.
Held: /. That, since written notice
is not required in the act verbal no.
tice to the defendant as to the action
of the supervisors in adopting the Ii
cense tax is sufficient.
2 That the control of roads of a
county by majority of it's citizens or
officers is within the power of the
Legislature to prescribe and the Ii
cense tax is simply Il mode of rcgulat-
ing the use of the public roads ana
requiring that those desirOus of using
them for extraordinary purposes Likely
to prove injurious shall pay for the
privilege.
g. The statute prescribing that the
license taxes shall be placed to the
credit of the Board of Supervisors and
as all funds in the hands of such
boards are to be used 'sOlely for road
purposes" the provisions are equiva-
lent to and declaratory Of the intent OF
the statute that such license taxes
shall be used to make good the extra
cost of road maintenance entalled by
extraordinary traffic.
ThaddeuS W. StanaI ct al, appellants,
vs.. j. W Rabon ct al, from Bruins
wick. Error.
Special proceeding to determine
boundaries under the processioning
act, chapter %, Laws of 1903. The de-
PENDANTS. j. w. RADON and wife and
E. NJ. RADON, denied the ownership of
the plaintiffs and that there was any
dispute between plaintiffs and defend
ants as to boundary lines On appeal
from q judgment of the clerk to whom
the cause had been, remanded. defend
ants moved. that the action as TO them
be dismissed for that there was a
distinct issue of title raised in the
pleadings which could only be de-
termined in an action OF ejectment
and the motion was allowed on the
ground assigned. p j, .:' ,,..-s"
Held: II. upon mere denial OF own
ership or occupation Il defendant in
such proceeding be entitled to have
the action dismissed. the entire pur-
pose OF the act is defeated, In event
Of the raising of issues by material
denials of allegations in the com
plant, the proper procedure is TO
transfer the issues thus raised to the
Superior court, for trial as in other
special proceedings. Smith vs. johnson,
L &, -. !
Nelson c. Jones Us. Pennsylvania Cas-
ualty Company. appellant, from Nc
DowelI. Affirmed. 5P o-
Plaintiff sued for the recovery on a
health policy of insurance of $5v
week for 26 weeks total disability
resulting from poisoning, result
ing in the amputation of his arm. De-
fendant contendednthat. while blood
poisoning was among the diseases pro-
vided for in the policy. there were re-
strictions therein by way of provisos
which would prevent a recovery for
the injury suffered by plaintiff.
Held: L. In continuing a policy of
insurance, doubts are uniformly re-
solved in favor of the assured; and,
while clauses in a contract apparent
" repugnant must be rcconciled if
possible, yet a proViso utterly rcpug-
nant and irrecOncilable with the body
Of a contract will be rejected as, like
wise, a subsequent clause irreconcll-
able with a former clause and repug-
nant to the general purpose and in
tent Of the contract.
g Where in q policy of health
insurance blood-poisoning is stipu-
lated among the d seases for which
recovery may be had and it is then
provided that the policy shall not ap
ply: 1st, to any illness or disease
whatever except those named; End,
nor to any disease which is compli- i
Gated with or results from any dis
ease not therein named; 3rd, nor to
any disease or illness resulting from 1
injury, etc; 4th,' nor in effect to amy
disease which develops o. results
from those diseases named, etc.
Held: That since blood-poisoning is
not considered one of the primary or
idiopathic diseases, but toxic con-
dition of the blood resulting either
from a surface wound or internal
lesion or from the breaking down OF
tissue as an incident of an existing or
preceding disease, the provisions op-
crate to remove every possible condI-
tion in which the disease might occur
thus attempting to defeat the definite
contract contained in u former clause
of the policy.
Dixon VS.. Railroad. from Buncombe,
Per Curiam. Affirmed. .,-.-.~.~