Omaha daily bee., 1909-05-02

l. - NAAN ITO NfEa 80
council power ito levy and collect a license
tax on hacks. drays or other vehicles used
for pay within the city. and to prescribe
the compensation for the use OF such
hacks, drays or other vehicles IS in
sufficient to authorize the city council 20
exact a license tax from persons the regu-
lation Of whose compensation Is not per-
mitted. '
2. The owner Of wagons kept by him for
the purpose Of renting them to various
firms under monthly contracts, each wagon
being kent for the exclusive use of the
firm contracting for IL, the same being
under the direction and control of the vari-
Gus firms having monthly contracts for
said wagons, and who does not hold himself
out as ready to serve any person who may
have goods or merchandise to transfer, is
not the owner Of vehicles used for pay,
nor is his compensation subject to control
by the city council within the meaning II
the charter provision above quoted.
1885. Pulver against State. Error from
Kesrney. Affirmed. Calkins, c,
1. The mayor Of a city has no power "a
suspend the operation of a city ordinance
which contains no provision In itself en-
towering him so to do.
2. Where a licensed saloonkeeper is prose-
cuted for the violation OF a city ordinance
forbidding hin to keep his place OF bust
Bess open after IL p. m, and such act is
shown to have been committed by an
agent in charge Of such business, 1t is un-
recessary to show any guilty intent on the
part of the owner, such prosecution being
In the nature of a civil action to recover
a penalty.
1892. Boesen against Omaha Street Rail-
way company. Appeal from Douglas. At
firmed. Letton, j.; Fawcett, j., and
Barnes, j., dissenting.
/. In this, an action for personal injuries
alleged to have been occasloned by the
detailment of a street car whereby the
plaintiff was thrown from the car and
thereby injured, the defendant pleads con-
tributory negligence, In that the plaintiff
was negligently standing upon the running
board Of the car at the time OF the acci-
dert, and his injuries resulted from such
negligence. Held, that It was not error to
refuse an instruction that II the jury be
lieved from the evidence that the plaintiff
was not thrown from the car, but that he
attempted to get off the car when II was
in motion and fell into the street their
verdict should be for the defendant, since
such an instruction is neither within the
issues made by the pleadings nor the evil
dence In the case.
2. instructions should be considered to-
gether. Separate clauses or parts Of a
sentence should not be separated from the
context in order to arrive at the true
meaning OF the language, nut all that is
said upon the particular subject Is to be
taken
8. A witness testified that the plaintiff
was thrown from the car but he testl-
fled later that he did not see the plaintiff
until he was lying on the ground. A mo-
ton to strike his answer as being merely
a conclusion Of the witness was overruled
and exception taken. Held, that while the
answer should have been stricken, the
error was snot prejudicial, since the jury
could not have been misled by the testi-
mony.
10, 4g7. Bonacum against Manning. Appeal
from Furnas. Fawcett, j. Reversed and
remanded.
/. The district court is without original
Jurisdiction to distribute the funds of an
estate of a deceased person.
1921. Howell against State. Error, Doug
las county. Reversed and remanded. Reese,
G. j.; Rose, j., not sitting.
/. To charge a criminal violation of the
first Gnnrf0r NJ npt y oh Q1a CnnarilnA
Statutes, 1907, ITO protect trade and com
merce against unlawful restraints and
monorolies,' commonly called the "Junkin
Act the indictment or Information must
allege that the acts complained of were in
restraint of trade within this state.
3. number of persons, dealers in coal
and other fuels, in the city of Omaha,
created and became members of a local
organization known as the Omaha Coal
exchange, and were subsequently indicted
under what is called the Antitrust laws'
OF this state. Upon the trial of one of the
indicted parties, the constitution of the ex-
change was introduced in evidence by the
state AMI which contained an article pro-
hibiting the members from soliciting trade
by the personal appeals of themselves or
their agents, but allowing the use of
printed postal cards and non-addressed
printed matter enclosed in envelopes, and
providing that the exchange should not
interfere with prices made between mem
bers, or as TO whether the same should be
at wholesale or retail prices. The court
instructed the jury that that article was
'tn Itself" a violation of the law of this
state, and II they found that 1t was In force
and carried out by the defendants, the ac-
cused was guilty OF the crime charged. The
instruction is neld erroneous; that It was
proper for the jury To take the article into
consideration in arriving at their verdict,
but that IT did not, of itself, foreclose fur
thor inquiry as to defendants guilt.
3, 1t was shown by the evidence that the
accused on trial had not, personally, be-
come a member of the Omaha Coal ex-
change, but that he was a member and
49, - . Roa - n fa nThNah
was, Itself, a member of the exchange;
that he was the president of the Omaha
Coal exchange and chairman of It's board
of directors which had the management OF
it's business. and that he acted in both
capacities, Held. That this constituted him
to all intents and purposes, a member OF
the exchange and liable criminally to the
same extent as though he had personally
signed the constitution and been admitted
to membership.
1886. Daley against Treadwell. Appeal
from Clay. Affirmed. Calkins, G. Epper-
son, c., not sitting, Commissioners de-
partment,
l. Where n witness to a will testified
that another witness and himself signed
the will st the request of the testator, such
testimony will not be disregarded on APP
peal, because in the form of a conclusion,
no objection on that ground having been
made at the time.
2 Where the evidence shows that the
witness to a will signed the Same at the
request of the testator. who thereupon d-
rected the craftsman thereof to place the
same in an envelope addressed to the
county Judge, In whose office II was after
wards found. such acts constitute a suffi-
cient publication of the will.
3. Evidence CANNED and found INSULT
cient to show a chang Of residence.
4. Where 1t appears that a ~testator had
been on various occasions temporarily con-
fined in a hospital for the insane, but in
the intervals was competent to transact
with Judgment and discretion his ordinary
business and had sufficient strength of
mind and memory to know and comprehend
and retain in his mind those who were or
naturally should have been the objects Of
his bounty. the nature and extent of his
estate, and the distribution he wished to
make of il, and that during such an inter-
val he executed in due form his last Will
md testament, making a reasonable distri-
button of his estate, a judgment probating
said win should. be sustained.
5. 1t Is not error for a district Judge to
refuse to hear rgumen where an ex-
animation OF the evidence discloses the
fact that the conclusion arrived at was
the proper one.
1554S. Wells against Cox. Appeal from
Boyd. Opinion. Reversed and remanded.
Cabins, c. commissioners department.
/. While the provisions of the occupying
claimants act which gives the successful
claimant the option to deed the land for It's
appraised value is not applicable where
such claimant cannot convey the fee, the
provision that the occupying claimant shall
not be evicted without payment TO him of
the value Of his lasting improvements Is