Omaha daily bee., 1909-03-12
SUPREME COURT sYLLAsI

Highland MOBILES Appeal from b'Ve' ~
l. N he petition in an action upon a
policy Of insurance or a benefit certificate
strument upon which the action Is pred
Gated and the ~recitals OF the copied por-
ton show that the whole contract Is not
auire the piaintitf to set forth the whole
contract IL proper and should be sustained.
But whore It is shown that the mlsslns
portion is in the possession OF the defend
and then the rule less particularly IL re-
uuired where the facts are within the
knowledge Of the adverse party" SpPliss
motion Is without prejudice,
2 In a trial to the court without the
dence had been taken and the case sub
mitted the plaintiff was given leave over
objection Of defendant TO file an
amended reply. pleading an additional
ito conform to the proof" no request was
made for further time or to. be permitted
matter OF allowing the amendment was
within the dlcretion OF the district court and
that no abuse OF this discretion has been
shown. .,
g. The burden Of proof is upon the de
PENDANT to establish a plea OF forfeiture In
an action upon an insurance policy or p
benefit certificate and In this case the evil
dence is examined and held to sustain the
Judgment OF the district court.
1850: Hoover against Deffenbsugh APP
peal from Lancaster. Affirmed. Barnes, j.
I. The plaintiffs, proprietors OF q hotel
in the city Of Lincoln, In the year 1898.
installed their own water system TO supply
their hotel, which had heretofore been
connected with the water mains OF the
city by 9 service pipe three-fourths OF an
inch in diameter, on which the water com
missioner had placed a meter to register
the amount OF water used. The city water
was thereupon turned off at the curb, but
was turned on from. time to time, with the
knowledge and consent OF the water com
missioner to enable the plaintiffs to repair
their pump, and In 1901 was not again
s- 49, 80 - 10
until some time in September, 1904. when
in making some alterations TO the hotel
the meter was disconnected without plain
tiff's knowledge and so remained until
August is, 1905, On the discovery OF that
fact the city demanded from the plain
lifts the payment OF what H. called a fiat
rate, based on the number OF taps or fRu-
Gets in the building from september, 1895.
TO August 10, 1905, amounting to the sum
of S.2O3.76 and threatened In default OF
immediate payment of that amount TO turn
! off the city water from their hotel, Held,
that such demand was unreasonable aud
unjust and that the city was not entitled
2. Plaintiffs brought suit TO restrain the
city from turning off the water and Of
fered to pay for the amount OF water ac-
tuallv used and consumed during the time
the meter was so detached. Held that al
though the amount OF water actually used
during that time was not susceptible of
exact measurement, yet II could be approx
imately obtained by a comparison OF the
amount of water used after the meter was
replaced. and the evidence OF disinterested
witnesses as to its previous use, and that
the amount so found by the district court
was reasonable and Just; and upon pay
ment thereof to the defendants the plain
tiffs were entitled TO an order restraining
them from cutting off the city water from
their hotel.
1882, Kendall against Uland. Appeal
from Lancaster. Reversed and refnanded.
Root, j.
/, in an action upon a suporsedeas bond
given in Justice court to stay a writ OF
! rnGfif1ITAnn In InrRlhla RnNVN and. HaIninaN
proceedings, plaintiff Is not entitled to re
cover according 10 the terms Of = lease Tor
the same premises between said parties for
the year preceding the unlawful detention,
but only a reasonable rent for said period.
,. Proof of the tenants reasons for re
fusing to Yield possession of said premises
cations with reference thereto, will, upon
defendants motion be stricken from the
petition. .f 81"
3. In such an action a lease between the
parties for the year next preceding the
unlawful detention IL relevant evidence ON
behalf of the plaintiff, although II pro
prove the value OF the crops received by
him Hereunder, but allegations in the petl-
ton concerning such facts may be stricken
therefrom as an attempt TO plead evidence:
1883. Eastwood against Klamtn. Appeal
from Lancaster. Affirmed. Fawcett, J.
l. In an action by q. wife and minor chill.
dren against three retail LIQUOR dealers for
loss of support occasloned by the sale Of
intoxicating liquors 10 the husband and
I ldtnbI VI DldllNlIIb VIII 10 all HdOlIudl
drunkard. where the Jury return its verdict
in favor OF the plaintiff as against two Of
such defendants and in favor OF the third.
that fact alone is not sufficient to estab-
fish the fact that the jury was governed
by Partially or prejudice, and affords no
ground for setting aside the verdict Of the
jury If the evidence is sufficient to sus-
tain the verdict as TO the two defendants
against whom the jury find.
:. And where in such an action the. court
admits testimony to the effect that when
the husband and father was sober he was
kind. but when intoxicated he was unkind
and quarrelsome, and that during the time
the husband was tncapacitated from earn
ing a living the wife was compelled to per-
form mental labor and to accept aid from
the county. Held, not error.
3. And In such a case where the evidence
shows that the husband while In a state
of intoxication produced by liquors fur
nished him by defendants, fell and, broke
a leg, 1t is not error to permit the plaintiff
to testify that by reason of such injury the
husband us not able ia. work like he did
before he received such injury" 49,
15543. Keeling against Pommer. Appeal
from Lancaster. Affirmed. Letton, J.
IA jury brought in a sealed verdict
defective in form. On the direction OF the
court they again retired to the jury room
and returned a verdict in the same amount
but in proper form, held that. the failure
to receive the first verdict and the receiN-
ing of the second was not erroneous.
2. In an action brought by a wife to re-
cover damages under the statute govern
ing the sale OF intoxicating liquors, where
the husband died as a result OF the traffic.
loss OF means of support Is not the only
damage for which a recovery may be had
but the wife may recover the cost of the
necessary medical attendance paid during
the burial of her husband, when such Items
OF damage are alleged and proved.
1854. Gibson against Gutru. Appeal.
Madison. Reversed and remanded. Cal
kins, C.. Commissioners Division.
I. Where a note made payable to the
order of a corporation Is really owned by
a third party ana such corporation becomes
insolvent. it's effects passing TO a receiver.
such receiver may endorse such note to the
real owner and thereby vest in him the
legal title thereto.
2. Where a defendant gave TO the holder
of a promissOry note secured by mortgage
a renewal note the sole consideration OF
which was the original note and mortgage,
such holder OF said original note is not en-
titled to maintain an action on the renewal
note after a decree and sale has been had
In a suit upon the original mortgage and
while decree and sale remain in force and
unsatisfied.
3. Where the defense TO an action upon
a promissoTy note transferred for value be
fore maturity and In the due course of bus.
mess Is that the endorsee had notice of 2
defect In the consideration, the court should
not instruct the jury for the defendant.
unless the unoontFadicted evidence shows
that the plaintiff had such notice. or es.
! 2,kItgIna fo,N. Fra,, vukE,L A..