Omaha daily bee., 1909-05-02
Supreme Court Syllabi

NbhAA VI NNNAAN Nhlu ~ UANANNN hAAAA III
maintaining Il, but, as the evidence was
conflicting and left the court in doubt as
to whether said distractions damaged w,
he would, under the circumstances of the
case, be r~elegated TO his action at law for
damages.
i5,I7S. state ex rel. Luben against Chi
cago & Northwestern Railroad company.
Appeal from Holt county. Affirmed.
Root, j.
L Chapter 90. laws Of Nebraska. 1907.
will not in every instance, afford a shipper
am adequate remedy against a railway
company that ~unlawfully neglects and re-
fuses to furnish cars for the transportation
Of his goods and chattels.
z In an action In mandamus to compel
a railway company 10 furnish cars for a
shipper, the proof established that the re-
lator desired to ship his hay in car load
lots; that he had repeatedly requested the
carrier to furnish him cars for said pur-
pose and that It had failed to do so. No
reasonable excuse was shown for such con.
duct. Held. That a peremtory writ Of
mandamus in favor OF the shipper and
against said corporation was proper.
lb,419. Mccullough against Dunn. Appel
from Cass county. Affirmed. Epperson, c,
commissioner department.
/. In an action to recover on a warranty
that a horse sold by defendant to plaintiff
was sound, plaintiff alleged that the horse
was suffering from a disease or defect of
the back. the evidence indicating that the
trouble was azoturia, a disease of the
stomach, liver and kidneys. Held, Not
such a variance as will require a reversal
of a Judgment in favor Of the plaintiff, It
not appearing tina defendant was preju-
diced by plaintiffs failure to allege
azoturia as the horses disease.
2. The testimony of a witness, otherwise,
admissible, who observed certain symp-
toms showing that a certain horse was dis
eased although he was unable to identify
II as the horse in controversy, is admis-
sible in evidence and will be permitted
to stand In the record II the horse he OBJ
served Is Identified as the one in con-
troversy by other witnesses.
l5417. Hart against Knights OF the Mac
cabees OF the World. Appeal from Dodge.
separately.
l. Statement in the proof of loss, as to
the cause of death of an insured, may be
eontradicted on the trial of an action on
the policy of Insurance., unless the usual
elements of equitable estoppel are present.
2. A fraternal insurance company cannot
have the benefit OF its bylaws and amend
ments thereto, in defending a death claim,
unless certified copies of such bylaws and
amendments have been filed with the audi
tor of public accounts.
1868. ktmmerly against McMichael. APP
peal, Grant. Affirmed. Rose, J..
l. In a suit by a divorced woman to quiet
her title TO the former homestead the court
may find that the property was not her
separate estate and at the same time sub
ject 1t to her lien for alimony by cancellng
a void deed which had been executed in
violation of her homestead rights, where
the ~pleadings and proof warrant such re-
lief.
2. After decree a petition in equity not
ATTACKED Dy mOtlOn or demurrer Will be
literally construed by the supreme court
for the purpose of upholding the proceed
ings of the trial court.
8. In a suit in equity the relief to which
plaintiff is entitled under his petition and
proofs may be granted pursuant to his gem
eral prayer, where defendants understand
the issue and resist his allegations by evil
dence.
4. Allowance of alimony in lieu of a wife's
Interest in her husbands property is not
an adjudication which prevents her from
recovering a decree canceling a void deed
formerly executed in violation of her home
stead rights and interfering with her lien
for alimony.
o. A decree in equity should not be re-
versed for a mere technical error which
does not prejudice any party to the suit,
q. A mortgage on a homestead worth less
than 1900 when executed by the husband,
but neither signed nor acknowledged by
the wife, Is void.
1856. willard against Key. Appeal from
Platte. Affirmed. Epperson, c. Commits
l. If an agent in the prosecution of his
principals pushes misrepresCnts a ma
terial fact, and the person to whom such
representation is made, in ignorance of the
truth, relies, and acts on such statement to
his damage, the agent and principal are
jointly liable in tort therefor.
1857. County of ColfaX against County
OF Butler. Appeal from Butler. Affirmed.
Dena, j. Reese, c.. j., not sitting.
l. The county of Colfax served notice
upon the county of Butler in substance re-
q%uesting it to join in and to pay one-half
of the cost Of the repair of q wagon bridge
over the Platte river, which request being
ignored by Butler county, ColfaX county
proceeded under a contract to build praCtic-
ally a ne~ bridge, costing about Sc, 900;
held, Butler county not liable to Coifax
county for any part of the cost Of building
such bridge.
q. A notice served upon a party sought
to be charged thereby should fairly state
the intention of its author and the scope
of the enterprise contemplated by him.
1868. George against Dill. Appeal from
Custer. Affirmed. Duffie, c. Commits
sioners' division.
l. In an action pending in the Twelfth
judicial district the parties stipulated to
try the case before the judge of the Thir-
teenth judicial district, and to take the
evidence before said judge at Grand Is
land, in the Eleventh judicial district dur
ing the vacation of the court in which the
action was pending. Whether a judgment
based on the evidence so taken, rendered
by the judge hearing It at a regular term
Of the court of the Twelfth judicial dis
trict, is erroneous and subject to reversal
on appeal quere.
2. After acquiring Jurisdiction of the par
ties and the subject matter of the action,
Irregularities on the part Of the court in
entering judgment in the case can be
taken advantage of only by appeal; such
judgment not being absolutely void and
subject to collateral attack.
1854. Olson against Nebraska Telephone
company, appeal, Douglas. Reversed and
remanded. Rees. c. j.; Barnes, j.. dissent
ing from reversal as to Nebraska Telephone
company.
/. A contract by which a master seeks
to impose upon his servant duties and
obligations which the law impose upon the
master and to relieve the master from
liability for negligence on his part is
against the public policy and void
2. Where the question Of negligence is
presented by the %pleadings and there Is
no conflict in the evidence and but one
reasonable inference can be drawn from
the facts, the question is for the court,
See Brady against Chicago, st. Paul, Min
neapolls and Omaha Railroad company, So,
Neb. 233.
3. Where the ordinance of a city require
an electric light company to maintain Its
electric light wires in a taut condition to
avoid swinging contacts and to keep such
wires properly insulated, and, where II Is
necessary for such electric light wires "a
cross the line of a telegraph or telephone
line, to string its said wires at a distance
of not less than five feet from the wires
of said telegraph and telephone line, a
failure on the part of said electric light
company to comply with all or any OF
such requirements is negligence which viii
render 1t liable to any person who. without
fault on his part, is injured by reason
thereof.
1. And in such a case. where the de-
lenses of assumption of risk and contribu-
! tory negligence are relied upon, ii is error
to withdraw the case from the jury, un-
less such defenses are established by evil
not be warranted in reaching a different
conclusion.
1873. Reed against Chicago, Burlington &
Quincy hallway company. Appeal from