Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1919-08-14
SUPREME COURT
SYLLABI
Opinions filed July 1e, 1919, in the su-
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| oplHlOH ny ohoiiIeoSy, ~. -
In the absence Of malice. oppression !,
office. or willful misconduct, public Off
GERS cannot ordinarily be held liable TO
mistaken exercise of discretion. or erro
l in judgment. In the performance OF officia
| duties.
against County of Dawson. Appeal. Daw
son. Reversed and remanded. Morrissey
c. j., not sitting. Rose. j.. not particpat
ing Opinion by Cornish. J.
l. Plaintiffs petition asked damages
from the defendant county for the wrong
full removal OF certain specified bridges
10 in number. The answer contained g
general Denial and alleged that on account
gerous to public travel. and the plaintiff
! having consented thereto. lit became
| necessary for the defendant and its county
| commissioners to remove certain OF said
| bridges" Held: Error to instruct the
jury that the burden was upon plaintiff
| to show removal by the defendant.
| 2. The trial judges statement of the Is
| sues to the jury should state the issues
| the Jury on the pleadngs and the evidence
| adduced.
| 2o513. zantow v. Old Line Bankers
Accident ms Co. Appeal. Perkins At
not participating opinion by Sedgwick. j.:
Special provisions in policy of life
insurance will not be so construed as to
defeat or limit the benefits Of the policy
unless they are so clear and definite as
! to require such construction, and are not
Inconsistent with other provisions Of the
policy.
2o534 Harrington v, vogle. Appeal,
Lancaster. Affirmed. Opinion by Nor
| rissey C. j.:
| l. Proof that a notary public signed
| a certificate Of acknowledgment to a
| forged deed. and that no other persons
| Of the name Of the purported grantors
| could be located who might easona bly,
/ ba,ya ,oIo y1hHr ont in
| ton, or have led the notary to believe
| that they were the owners Of the land, is
sufficient to establish a prima facie case
| Of negligence or misconduct against the
| notary in failing to have satisfactory evil
dence Of the identity OF the persons max
| Ing the acknowledgment
2. Petition examined and held to state
| q cause Of action.
| tary public for making a false certificate
| Of acknowledgment to a deed. the official
signature on her bond filed with the
| county clerk may be received In evidence
| for the purpose OF comparison OF hand,
writing
4. Unless a contrary intention appears,
the regular execution and delivery Of
deed vests In the person to whom It is
delivered implied authority to complete
1t by inserting the name OF the intended
grantee where this has been left blank
5. Where deed appears to be regu-
larly executed. acknowledged and deliv-
cred, 1t is prima facie evidence. as to in.
nocent third parties, Of the authority of
the person holding the deed to insert her
name as grantee.
oo54s-In re Application Of Harry W
Davis. an tnsolvent Davis vs.: Brlttell
Appeal. Lancaster. Reversed and remand.
ed. Lection, j.. concurs in conclusion
Opinion by Dean. J.
l. legislative act does not impair
the obligation of a contract. entered into
before the act became operative, merely
because such act abrogates or holds in
allegiance an existing remedy for the coli
lection Of debts. provided, another equally
adequate remedy is substituted that does
2. Chapter 1854, Laws 1917. does not
impair the obligation of contracts entered
into before the act became opera tive.
Appeal Webster Affirmed Letton, j.,
not sitting. Opinion by Sedgwick, j.
1. city Of the second class having
more than 1000 and less than 5000 in
for extensive street paving without an
estimate required by Rev. st. 1913, sec.
50l1. If the city engineer is not conpe-
tent to make such estimate, and proper
employed by the city for that purpose.
owners of adjoining property cannot. after
such paving Is completed, enjoin an as
sessment Of benefits against their prop
erty on the ground that the estimate was
not made by the city engineer.
g. Such levy Of assessment cannot be
enjoined because street railway al
lowed to remove its rails from the street
to be paved instead of paving the space
formerly occupied thereby as required by
Rev. st. 1918, sec. 5110: nor, because the
contractor guaranteed the quality of the
work and agreed to make good any de-
feet that appeared within years; nor,
because no formal personal notice Of the
formation Of the paving district and sub
sequent actions Of the council. was given
them.
2Os13-In re application of Omaha & c.
B st. r. Co. for authority to increase
rates. Omaha & c. B. st. r. Co vs.. Ne
braska State Railway Commission Appeal
Nebraska State Railway Commission. Re-
verscd and remanded with instructions to
order a temporary increase Of rates. Nor
rissey,, {: j.. not sitting, Opinion by
Cornish j.
1. The fundamental inquiry in fix
Ing rates of a public service utility al
ways is: What rate Is necessary in order
to yield a reasonable average return on a
fair valuation of the property for rate
making purposes. such a return will not
discourage but will attract the invest
ment Of capital in the utility.
Q. Under the constitution and laws
of this state. the state railway commits
sion has wide discretion in these mat
tiers.
8 A situation, due to an IN. v,"rt,,I
altogether probable that the past and
present rate IS insufficient to yield rev.
return which the law requires. although
not constituting what would technically
be denominated an Emergency" may.
when shown. be sufficient for the allow
rate, limited to the time required for
making an investigation and finding of
the facts. If 1t should happen that the
temporary rate so fixed is too high, the
fixing the rate after investigation
4. In fixing the rates at any partcu-
lar time, former earnings and probable
prospective earnings should always be con-
to prevent extortion and allow a fair
average return.
s. The law contemplates that the find
ings and orders should be made In the
first instance by the commission. which
has powers Of its own that the courts
may not usurp. Its orders will not be
reversed unless clearly wrong.
s. The act, known as the railway COM
mission act. Laws 1907. CHI. 30. p. 81 (Rev.
st. 1913 beginning at section 500, gives
exclusive original jurisdiction Of cases like
carriers to the state railway commission.
and Is not changed by the provisions of the
Omaha charter.
2101O-United States Fidelity G. Guaranty
Judgment Of district court modified by
adding to it $3.50. and, as so modified. af-
firmed. Opinion by Morrissey. C. J.
l. When a woman employe who has
offers to permit an X-ray photograph Of
the kidney to be made but refuses to per-
NIT the injection of colorogol into the
kidney for the purpose Of rendering it
opaque she does not. necessarily, by such
refusal. forfeit her right to compensation
under the employers liability act
2. Where on an appeal under the en-
ployers' liability act it is held that an
attorney fee cannot be taxed as part Of
the costs that holding becomes the law
of the case and the question Is not open
for consideration on second appeal
g. In an appeal under the employers
liability act from an award Of the COM
pensation commissioner the district court
has authority to hear the cause as suit
in equity and to enter final Judgment
thers!n Section 1878. Rev. St 1918.
4. Where an appeal Is taken from an