The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1906-07-27


cause they rested on mere guesswork or con-
lecture.
The connection OF an indemnity Insurance.
company with the defense of personal injury
action may or may not be q collateral issue.
The interest or connection of jurors and of
witnesses In an insurance company interested in
the result of lawsuit Is proper matter for
inquiry By plaintiff, and, within reasonable linn
Its, plaintiff will be protected in the exercise
OF his right to make such inquiries and strictly
within the right. admissions by the defendant
may be received, altho indirectly involving such
a company.
In this plaintiff. to lay the foundation
for such Interrogation of jurors, served notice
to produce a described insurance policy and
when it was not produced, examined a supposed
representative of the insurance company In the
presence OF the Jury as to the connection of the
insurance company with the defense. The only
issue presented by the motion before the court
and in this court by assignments of error was
the good faith Of counsel in making these In
quiries. 1t is held that the record showed the
exercise Of good faith.
Order affirmed -Jaggard, ].
Peter McNaughton, respondent, VS.. 7. ". VAIL,
appellant.
Syllabus: Ffrst-Query: Does an appeal IL
from the municipal court of Duluth to this
court?
second-on the sale of personal property 4
warranty OF its quality is not a separate and
the contract of sale.
Third-Where. in the absence OF fraud or mis-
take. the written contract for the sale of per-
sonal property is complete in itself, but silent
upon the subject Of warranty, oral evidence IN
not admissible to show such warranty.
Fourth-The written bill Of sale in this case
Is a complete legal obligation, and must be pre.
sumed to contain all the terms of the SALE and
oral evidence Of warranty as to the quality
and condition Of the personal property sold was
not competent and the trial court erred In
receiving It.
Judgment reversed and new trial granted.
.r- a.. Start C. ].
Olaf Olson vik, respondent, w. Red CIin Lup-
Der company, appellant.
Syllabus: Held in this, personal injury
action. that the undisputed evidence shows that
the defendant was not negligent In falling to
furnish the plaintiff a safe place In which to
work or In failing to warn him as to any dangers
incident to the place or work, and further that
II shows that the sole proximate cause of his
injury was the negligence Of his fellow servant.
Order reversed and Judgment ordered.
| Start, @. ].
| State of Minnesota, respondent. vs.. George r.
Cowing. appellant.
Syllabus A new trial is granted defend.
ant convicted Of rape for three reasons:
First-Ihe record does not sufficiently show
| specific acts OF resistance upon the part of the
prosecutrix within the requirements of law.
| In prosecution for rape, resistance by the
female Is Of necessity an issue only as It il
/
which Is always required. To show such un.
Willingness her resistance must be proportion.
ate to the occasion under the circumstances and
at the time Of the act complained of. In ordi-
| nary cases there must be resistance to her
utmost. or at least to the extent Of her abfl.
| fp. In peculiar cases a less degree may bs
sufficient. In exceptional cases rape may be
made ont without any proof Of resistance.
Second-The testimony Of the prosecutrix
somewhat inconsistent in itself, and in a num-
Der OF respects impeached by her own former
testimony upon preliminary examination, was
eorroborated IN measure, but largely by the
| testimony OF her sister, who, together with her,
destroyed the natural and best corroborating
evidence.
| Third-The Inference to be drawn from the
unsatisfactory testimony Of the two physicians
who examined the proeecutrix was negatively
in favor Of the state in some respects. But
that testimony whole justified differences
| adverse to the state, because, inter ALA, the
physicians were not called until five and seven
days respectively after the time Of the alleged
intercourse and found no evidence Of bruises OF
marks on her person tsaeeable to the violence Of
the struggle.
Order reversed and new trial granted.
Ernest 3. Kobe, appellant vs.. Mary Boyle and
| Sandy Mcdonald, respondents.
SyllabusI The cause of action set forth In thu
complaint was based upon allegations of a con
spiracy between two defendants to defraud plain
tin in an exchange Of land owned by one Of th,
defendants. The evidence wholly failed to show
any concert In project or in action, but it did
tend 10 show relationship Of principal and agen
between the defendants. The court dismissed
the action as to the principal and the jury found
for the other defendant. It Is held that ther,
was no prejudicial error In the order of tn.
trial court IN dismissins the action as to tn,
principal at the close Of plaintiffs case.
| The trial court was within its discretion 1,
view OF the issues raised by the plesdings, il
permitting the defendants upon cross-examina
tion Of plaintiff to show his various experiences
in real-estate transactions.
The courts charge as to the measure Of dam
ages was inaccurate and incomplete, but plain
till having failed TO call its attention to tn
point objected to cannot complain upon appea
Of the unfntentional misstatements and verba
errors. Steinbauer VI. Stone, IS Mimi, 27I
followed and approved.
Order affirmed. -aggard. J.
Porter ]. Nen, receiver Of the Motor Lin
Improvement company, respondent, VS.. Leo 8
Lamm, as executor Of the estate of Stephe
Lamm deceased, appellant.
Syllabus: The receiver Of an insolvent cor
! poration filed claim in the probate cour
against the estate Of deceased stockholde
Tor the amount of an assessment levied by tn
order OF the court appointing him. 1t is held:
First-That inasmuch as the issue as to wheth
er the corporation was Of the class whose stoc
was Subject to an assessment was not afhrma
. tivey asserted ny the answer nor raised durin
! the trial; and inasmuch as objection wa
made to the court making the order and assess
ment, the objection was made by the execute
to the claim on the ground that the receive
failed in fact to introduce any evidence to prov
the assessable character Of the stock was Will
2 out merit.
second-That the proceeding in probate cour
9 was an action to enforce the order and asses
ment on stockholders within the meaning q
section 8, chapter 272, laws Of 1899.
Third-The evidence sustains the finding q
fact that the deceased was q stakeholder q
claimed by the receiver.
|. Order affirmed -Jaggard, ].
: Elizabeth Gibbons. administrator Of the e
tate Of John Gibbons, deceased, appellant VI
Q Northern Pacific Railroad company, respont
b ent s..-
d Syllabus: Evidence in this. a personal injur
. action, considered and held that 1t conclusivel
plaintiffs intestate.
Order affirmed. Start @. ].
In re application Of the National Bono & s.
e curity company to register title, responder
vs.. Florence L. Anderson ct al, defendant.
l. State of Minnesota, appellant.
t Syllabus: Any person owning land, whe the
his title be Of record in the office Of the regist,
Of deeds or not, may maintain proceedings unds
q the Torrens act for land transfers to regist,
It his title.
b Judgment and order affirmed. Brown, J.
q Henry O. Farmer, appellant, ". Stillwat,
l. Water company, respondent.
J. Syllabus: Evidence considered and held NJ
it SO clearly and palpably in favor Of verdi
le Tor plaintiff as to Justify reversing ord
q granting a new trial, based on playground th,
4 the evidence is insufficient. Thin the rule
r. Hicks vs.. Stone, IS MINI. 4S4 IGN. 1881.
II Order affirmed. Brown, J.
y william F. Pieper, plaintiff and appellant, v