Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1911-03-18

hour after the arrival OF a car OF horses
az such a point, held, not sufhcient eN-
s. When a shipper Of live stock is pro
vided by the railroad company with free
transportation for a Caretaker and the
caretaker actually accompanies the stock
during the entire time Of such shipment
the carrier has a right to rely upon the
caretaker to notify it's agents in charge
of Its train whenever he thinks the neces-
stiles Of the case require the unloading or
feeding and watering OF such live stock.
T. Before error can be predicated upon
the failure Of the court to present a par
ucular feature OF case to the jury, the
party complaining should, by an appropri-
ate instruction, request the court to charge
upon that feature" German National
bank OF Hastings against Leonard, ~ Neb.,
GO.
5. A judgment will not be reversed be-
cause the trial court refused TO give an
instruction asked, when the substance OF
such instruction is included in other in
struCtions given.
6. "A common carrier Of live stock can
not by contract with a shipper, relieve
itsolf either in whole or in part, from la
| bility for injury or loss resulting from its
own negligence" Chicago, Rock Island a
Pacific Railroad company against witty,
:. 1t Is the duty Of this court. in review
ing a case on appeal, to disregard any
error or defect in the proceedings in the
court below which does not affect the
substantial rights of the adverse party;
and, IN obedience to that duty, no judg-
ment viii be reversed by reason, alone
OF such error or defect.
1922. Stackhouse against Stackhouse
Appeal from Harlan. Affirmed. barnes, }.
Reese, c. j., and Sedgwick, j., dissenung
| l. In an action for a divorce on the ground
| of adultery IL Is not always necessary 10
show the overt act; the charge may be
sufficiently proved by the evidence of such
circumstances as will lead Just and
reasonable mans mind to the conclusion
Of guilt
! 2. Evidence examined the substance Of it
steted in the opinion, and found sufficient
| to sustain the judgment.
1924. Union Pacific against state. Error
from Buffalo. Affirmed. Rose, j. Reese,
/ G. j. not sitting.
Where city, under power expressly dele
/ gated by the legislature. passes an ordi-
| nance regulating the location Of stock
/ yards the regulation stands on the same
| footing as a statute and will not be de-
/ clared void as an arbitrary or unreasonable
interference with the rights of the owners
OF stock yards under the guise of police
regulations, unless that fact is shown by
satisfactory evidence.
1926. Launt against Village OF Oakdale
! Appeal from Antelope. Affirmed. Sedg-
wick, J. Barnes and Fawcett, j. j., dis
| senting. Reese, c. j. not sitting.
! l. In an action for services experimenting
/ an Improvement Of water works owned by
! Q village, such Improvement having been
completed and all other bills therefor paid
! by the village board, 1t will not be pre-
sumed that the Improvement was made
| without recommendation and approval of
the water commissioner, there being no
| evidence indictlng.
2. II one agrees to perform a certain
| service for village gratuitously he may
withdraw such promise at any time before
the same is performed, and notice of such
action is sufficient II duly given to one
member of, a committee of the village
board in charge Of the Improvement upon
which the services are performed, and II
! the committee then continues his employ
ment the village will be liable for the value
Of the services thereafter rendered
1893 Trenholm against Kloepper. Ap-
peal from Lancaster. Affirmed Root, j.
| /. II an officer of a corporation orally
promises a prospective purchaser of the cor
porate stock to repay the purchase price
at any time and the purchaser acts upon
| the promise, the agreement is an original
contract and is not within the statute OF
| frauds. The promiser does not thereby
misdotngs of another person, nor does he
agree to purchase goods, wares merchan-
! disc or things in action.
| 2. And in such a case the purchaser is
not estopped from maintaining her action
because intermediate the date of her pur-
chase and the day she requested the prom
| User to perform, she surrendered her certifi-
cate to the corporation and received in lieu
! thereof another certificate representing her
| original purchase, and a stock dividend
| 8. Where the law is not misstated by the
| trial court, but legal proposition germane
! to the principles of law announced is not
! included In the instructions, party will
not be heard to complain If he did not sub
NIT to the trial court an instruction con
| tanning the proposition omitted aforesaid.
! 4. heterogeneous for special findings
may be submitted to the jury or refused in
the discretion of the trial court and unless
there has been an abuse of discretion in
that regard the ruling will not be dis
turbed." Murphy against Gould, 40 Neb.
1888. In reapplication of Metz Brothers
Brewing company. Leidy against Metz
Brothers Brewing company. Appeal from
Douglas. Reversed and remanded with in
structions to cancel the license issued to
applicant. Reese, G. J. Barnes, Fawcett
and Sedgwicg, J. J.. dissenting.
| l. manufacturer Of beer who sells his
product to unlicensed consumers for their
sells a retail within ms ~
chapter 50, Law of Nebraska, 1907.
2. manufacturer Of beer who sells his
product at retail is guilty of selling beer
without license. and that fact being made
to appear, an excise board should not issue
a license to him in the year next succeed
ing the commission Of that Offense.
1853. Johnson against State. Error from
Lancaster Affirmed. Sedgwick, J.
/. An indictment under section Of the
criminal code should not charge in the
same count that the defendant used and
employed and advised to be used and en-
ployed instrumentsSto procure an abortion,
but such indictment is not demurable for
duplicity since the allegation that defend
ant advised such instruments to be used
and employed does not state an offense
without alleging that some person other
than the defendant committed the act; II
is immaterial that the defendant advised
the act which he committed himself and
such allegation should be rejected as sur
plusage.
@ If an information and an indictment
are both pending in the same court at the
!
the same offense the prosecutor should be
required to elect under which he Will pro-
coed, as required by section AIS of the
criminal code; but that section has nc
application when the defendant has waived
examination before the magistrate and has
: been held to appear in the district court
, and has been indicted by the grand jury
: for the offense charged before the magis
trate, and no information has been filed,
g In a trial for felony the prosecution
should examine in the first instance sucf
witnesses as have OF the res gestae, II such
witnesses prove hostile to the prosecution
/ the court has discretion to allow such eE-
! animation as will bring out the truth be
fore the jury. When, however, the REL
gestae is clearly proven, and the defendant
Is represented by competent counsel, thu
court has discretion to refuse 10 require
the prosecution to call witnesses supposed
to be interested in the defense.
, 4. The trial court is not required 10 in
stTuct the jury in the precise language re
\ | quested by the defendant, though such re
quest correctly states the law, II an in
o structiOn Is given substantially stating tn,
4 law requested il is sufficient.
4 8. Whether a sufficient foundation hal
been laid to admit evidence OF statements
T. | OF a deceased person is question OF Law
T. | for the court. II such evidence Is admitted
| Il Is Jury o determine rplfa bfif