The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1912-02-19

pellant. vs.. James Barton, Jr., de-
tcndant and respondent.
Judgment was rendered in the dis
trict court against appellant in AN
equitable action and for $500 costs.
The costs became a lien upon a GER
tain lot belonging to him. After ne
gotiating a sale of the lot he discov-
cred this lien and paid such costs to
prevent the sale failing. Held that
the costs were only an incident to the
Judgment, tho main Judgment still re-
manning in force, and the payment of
the costs, under the circumstances,
does not defeat appellants right to
maintain an appeal to this court.
(SNllabus of the bourt.)
Motion to dismiss appeal from judg-
ment of the district court, Mclean
county.
Motion denied.
Opinion by Spalding, C. J..
f. Galel1ouse. plaintiff and d
dent. VS.. Minneapolis, St. Paul & Sault
Ste Marie Railway company. Il cor
poration, defendant and appellant.
j. An endorsement stamped by
means of a rubber stamp on the back
oil a summons and complaint, of the
words: In shcriff's Office, Dec. =,
1908 John j. Lee. Sheriff, Ward Coun-
tN. will. under section 25O3 of the
codes of 1905. which makes it tho duty
OF the Sheriff to endorse upon all ma
tlces and processes received by him
for service. the year. month, day, hour
ana minute of reception" and under
section 1917 of the code. which pro-
v1des that "the presumption that Of
f1rlai duty has bcen regularly perform
ed is satisfactory if uncontradictcd"
will be deemed satisfactory evidence
OF the facts therein contained, and
that the summons and complaint We're
dellNered to the sheriff for service up
on the day stated, in the absence of
satisfactory proof to the contrary.
?. A person is not IL passenger and
entitled to consideration and protec-
ton as such who. after waiting all day
IN a station for a train and discover
ing that he will be unable to reach his
o~estlnatlon in lime for the accomplish
incht or the purpose of his journey,
caves the station and goes to Il hotel
Tor supper, n then returns to such
station for the purpose OF sending a
announcing the fact thai he
VIII be unable to make the journey
tempt to do SO.
- AitStS ldSl lIldL Ill GIlDlONe is
authorized to preserve order upon the
premises of his employer, does not
make an assault committed hy him
upon a patron of his employer an act
done within tho scope of his author
itN, for which his employer will be liza
Die when h evidence shows that the
assault was not made for the purpose
OF preserving order or eiccting such
person from the premises in pursuance
of such authority.
q. When there is a conflict in the
but the testimony of the
plaintiffs witnesses. if believed, would
justify the jury in finding that a COM
mon carrier of Geographic messages
has neglected to promptly deliver a
death message to the plaintiff, so that
plaintiff has beer unable to- take a
train by which he could have reached
the home of the deceased in time for
the funeral. and the plaintiff after
waiting all day in the station for a lat
er train and then finding that he
would be unable to reach his d~estina-
ton in time. went to the telegraph
office to send a message announcing
the fact. and. on being informed that
the wires were own and such message
could not be sent, complained because
of the failure of the company to deliv-
er the message promptly in the morn
ing n on ccou of such protest,
was assaulted by the telegraph opera
tor, the common carrier of Geographic
messages may be held responsible for
such assault and liable in damages
therefor.
5. II. however. after going to the
depot for the purpose of sending the
message and after being informed that
such message could not be sent on &C.
count of the fact hat the wires were
down. the jury nae found that plaintiff
had not merely complained of the fail
ure to deliver the message in the morn
ing but had called the employe a liar,
or used other epprobrious language
which melted the employe to make the
assault. 80 that the assault was the
result of the irritation o%ccasioned by
the use of such language and not Of
the mere fact of the making of the
complaint. the employer would not be
liable in damages therefor. Zone may
not by his acts spoil an instrument and
then sue h manager because the per-
former does not make good music"
s6. A person who goes to a telegraph
Office to send a message or to make a
complaint as to the failure to deliver
the same. Is not a trespasser or lcen-
see, but a customer or patron and is
entitled to treatment and protection
as such.
Z. Where the evidence is in con-
fict and the record shows that the
trial court instructed the jury, but
omits entirely to include such in
structions. 1t will be presumed on APP
peal that such instructions were cor
rect. and properly presented the law
and the issues to the jury.
(Syllabus by the court)
Appeal from the district court of
Ward county. Burke, j.
Action against defendant company
for an assault committed by it's en-
ploye upon plaintiff. Verdict and
Judgment for plaintiff.
Defendant appeals.
Affirmed.
Opinion by Bruce. J. Mr.. Justice
Burke. being disqualified, did not par
ticipate.