Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-03-16
Supreme Court

North Dakota, October Term, 1911.
! William g. schafer, Plaintiff AMI
Respondent, VS.. Pontus Olson ant
! Clinton ID. Lord, Defendants, ant
Pontus Olson, Appellant. u. =
l.. Plaintiff, resident Of Illinois
entered into q contract through cor
respondence, agreeing to sell to dc
PENDANT Olson lands In this state, nc
place having been agreed upon fol
the closing OF the deal. Defendants
agent, In "a letter accepting plaintin,s
offer, among other things said, I'VE
enclose d warranty deed which you
can execute and have your Elkhar'
bank send to the Peoples State Bank
Of: Lakota and we will take same up,
Plaintiff acted on such suggestion
and not only sent to the Lakota bank
the dee dbut also a sight droft fol
$4,000 in "a letter containing speclne
instructions to deliver same on pay
ment Of such draft and to remit py
New York or Chicago exchange. Il
HELD, that the bank was PLAIN
tiff's agent for the collection OF sucn
draft and the consumation OF the deal
by the delivery Of :.as deed: .,,. :.
! q, One b. acting on defeEdant's
behalf, gave to the bank cnecK
drawn on BIS account therein, IN pay
ment of such draft. Such check was
accepted BY the bank and the deco
delivered. bur no remittance to the
| nlaintiff was made BIS account at
the time showed balance OF ABOUT
$4,000. Eight days Thereafter the
bank ceased doing business.
HELD, there being no PROOF mat
the bank was insolvent when the
! check was Civ enand accepted, tnat
the giving and receiving OF suen
check constituted a payment OF the
draft. :s@z v
(Syllabus by the court.) .
Appeal from the district court OF
Nelson county, Templeton, j.
from a Judgment in favor OF plain
tiff defendant appeals.
Reversed.
H. A. Libby (scott Rex OF coun-
.sel) for appellant. .
Erich & Kelly, for respondent
Opinion BY Fisk, J.
In the Supreme Court. State of
North Dakota, October Term, 1911.
Joseph f.. Fawcett, Plaintiff ana
Respondent, VS.. Bayard E. Ryder
Defendant and Appellant.
In an action for negligently plac'
ing plaintiff, patient of the defend
ant physician, upon or subject 10
contact with a hot water bottle
causing injury to plaintiff by burn
ing, and while plaintiff was uncon-
scious after an operation upon MIN
Tor appendicitis, it is HELD:
. /. The question Of negligence was
for the jury to determine under all
the evidence.
2. The negligent acts of the nurs'
es. defendants employees in private
hospital run for profit in connection
with the practice of medicine ana
surgery, by a physician and surgean
as owner and proprietor thereof
renders the physician hospital owner
liable az a master for acts of servant
nurses resulting in an injury to pa
tient who has for hire entrusted him.
self to defendant for professional
treatment and hospital nursing. g.
3. Evidence is sufficient to sustain
the iury's finding that plaintiff was
injured by coming III contact with
hot water bag through the negligence
Of defendant. -.
4. Sec. 1921, r.. G. 1905, providing
that written requested instructions
shall be endorsed by the court as 81.
ven or refused, and then SO given or
refused without modification except
bv consent of counsel, does not re.
quire the court to, give long series
Of requested instructions in the or
der as requested; nor does the stat
ute prevent the court from instruct
ing upon the theory OF the oppon'
ent's case in connection with each
separate requested instruction, as to
the subject matter Of each request!
that both sides of the case may be
covered without REPETITION, when all
matter embraced in requests is Gov.
cred by instructions formulated by
the court or when the requested In.
structions are given in terms as re-
quested. I
5. Certain requested instructions
were properly refused. |
s. Certain assignments on In.
not considered, because
not based on any exceptions taken
and filed to the oral charge Civ IN and
within the statutory twenty day Ter.
lod therefor. E5
z. Motion for directed verdict for
defendant made at the close Of the
case was properly denied, as sub
stantial conflict existed in the evil
dence carrying the issues to the
Jury for determination.
Syllabus by the court. !
From a judgment for plaintiff en-.
tered in the district court Of Dickey
Allen, J., defendant appeals.
Affirmed.
. Opinion by Goss, ].
Ball, Watson, Young & Lawrence,
and E. T. Conmy, attorneys for ap-
pellant. .5 II
w. 8. Lauder and Jas. NJ. Austin,
attorneys for respondent.