79 Pac. 263, chief engineer of ice plant and oiler and wiper; Weeks v. Scharer, 129 Fed. 335, 64 C. C. A. 11, where shift boss in mine could suspend but could not discharge his subordinates, notice to him of incompetency of fellow-servant was not notice to master. Approved in Texas etc. Ry. Co. v. Bourman, 212 U. S. 541, 53 L. Ed. 644, 29 Sup. Ct. 319, holding engineer and section foreman are fellowservants; Wood v. Potlatch Lumber Co., 213 Fed. 593, 594, 130 С. С. А. 171, holding employees assisting in making repairs were fellow-servants; Regan v. Parker-Washington Co., 205 Fed. 701, L. R. A. 1915F, 810, 123 С. С. А. 648, holding drillers and muckers working in mine were fellow-servants; Kentucky Block Cannel Coal Co. v. Nance, 165 Fed. 47, 91 С. С. A. 82, holding one engaged in removing pipe from mine is not fellow-servant of miner; Katahdin Pulp etc. Co. v. Peltomaa, 156 Fed. 343, 84 C. C. A. 238, discussing admission of evidence as to whether employees were fellow-servants; National Steel Co. v. Lowe, 127 Fed. 316, 62 C. C. A. 229, holding, under the facts of this case, plaintiff and the person causing the injury were not fellow-servants; Pennsylvania Co. v. Fishack, 123 Fed. 471, 59 C. C. A. 269, holding yardmaster in charge of switch-yards is fellow-servant with other employees engaged in switching; Chicago House Wrecking Co. v. Birney, 117 Fed. 76, 77, 54 С. С. А. 458, holding, under the facts of this case, question whether plaintiff and B. were fellow-servants was for jury; Weeks v. Scharer, 111 Fed. 335, 49 C. C. A. 372, holding shift boss in charge of gang of men whose duty it is to direct their work is fellow-servant of men in his shift; McDonald v. Buckley, 109 Fed. 292, 48 C. C. A. 372, holding general foreman directing operation of pile-driver and giving signal for fall of hammer is fellow-servant with other members of gang; Lafayette Bridge Co. v. Olsen, 108 Fed. 337, 54 L. R. A. 33, 47 C. C. A. 367, holding bridge company is responsible for death of employee which occurred through breaking of timber selected by foreman and defect in which could have been seen by inspection; Stevens v. Chamberlain, 100 Fed. 381, 382, 40 C. C. A. 421, holding machinist in mill whose duty it was to make general repairs was fellow-employee of assistant machinist whom he called in to help him in repairing machine; Fenwick v. Illinois Cent. R. R. Co., 100 Fed. 248, 40 С. С. A. 369, holding foreman of switch crew is fellow-servant of one of the crew under him; Briegal v. Southern Pac. Co., 98 Fed. 962, 39 C. C. A. 359, holding fireman on engine who oiled turntable by direction of engineer, whose duty it was to do the same, is fellow-employee of said engineer; Thomas v. Cincinnati etc. Ry. Co., 97 Fed. 249, holding yardmaster, who is responsible for condition of yards, is fellow-servant of foreman of switching gang employed under him; Tomlinson v. Chicago etc. R. R. Co., 97 Fed. 254, 38 C. C. A. 148, holding bridge builder employed by railroad company and furnished with cars to transport him and assistants and tools is fellow-servant with employees in charge of such train; Reed v. Stockmeyer, 74 Fed. 192, 20 C. C. A. 381, question of employers' liability turns rather on character of act than on inter-relation of employees; Collins v. John W. Danforth Co., 36 App. D. C. 599, refusing to hold master for negligence of fellow-servant; Mejia v. Whitehouse, 19 Hawaii, 159, 1 N. C. C. A. 177, and Indianapolis Traction etc. Co. v. Kinney, 171 Ind. 622, 23 L. R. A. (N. S.) 711, 85 N. E. 958, both holding boss of gang is fellow-servant of laborers; Southern Indiana R. R. Co. v. Martin, 160 Ind. 286, 66 Ν. Ε. 888, 889, holding complaint which alleged that plaintiff was injured while removing kinks from cable as ordered by foreman shows that foreman was fellow-servant; Grattis v. Kansas City etc. G. Ry. Co., 153 Mo. 402, 77 Am. St. Rep. 735, 55 S. W. 114, holding conductor, engineer and fireman of same railroad are fellow-servants; Zellars v. Missouri Water etc. Co., 92 Mo. App. 126, holding where in engine-room there were two shifts of workmen each consisting of an engineer and fireman, and first shift as it went off of duty notified the engineer that shaft was out of repair, but the engineer neglected to instruct his fireman, the fireman could not recover for damages sustained by the shaft; Gregory v. Chicago etc. Ry. Co., 42 Mont. 557, 113 Pac. 1125, holding head carpenter was not fellow-servant of those under him; Goodwell v. Montana Cent. Ry. Co., 18 Mont. 300, 45 Pac. 213, holding foreman of gang is fellow-servant of laborers; Pasco v. Minneapolis Steel etc. Co., 105 Minn. 133, 18 L. R. A. (N. S.) 153, 117 N. W. 479, and Haley, Chisholm & Movus v. Trice's Admx., 118 Va. 606, 88 S. E. 316, both holding engineer of dinky engine was fellowservant of man operating steam-shovel; Wiskie v. Montello & Co., 111 Wis. 450, 87 N. W. 464, holding foreman who conducts blasting in quarry is fellow-servant of other employees assisting him; dissenting opinion in Missouri etc. Ry. Co. v. Elliott, 102 Fed. 111, 42 С. С. А. 188, majority holding railroad dispatcher giving orders for movement of trains is not fellow-servant with employee operating such trains. Distinguished in Peirce v. Van Dusen, 78 Fed. 705, 24 С. С. А. 280, in suit against receiver, under Ohio statute, partially abrogating fellowservant rule; Terre Haute etc. R. R. Co. v. Rittenhouse, 28 Ind. App. 640, 62 Ν. Ε. 298, holding, under Employers' Liability Act, § 1, subd. 2, in an action for injuries to employee, instruction designating plaintiff's superior as "employee" is not erroneous; Southern Ry. Co. v. Cheaves, 84 Miss. 585, 36 South. 696, rule changed by Constitution; Merrill v. Oregon etc. R. Co., 29 Utah, 278, 110 Am. St. Rep. 695, 81 Pac. 88, master must use ordinary care to promulgate and enforce reasonable rules for safety of servants, not merely ordinary care in selecting servants to enforce rules; dissenting opinion in Northern Pac. Ry. Co. v. Dixon, 194 U. S. 349, 350, 48 L. Ed. 1011, 1012, 24 Sup. Ct. 683, majority holding telegraph operator and fireman of railway train fellow servants.. Servants in common employment, apart from statutes, in absence of vice-principalship. Note, 50 L. R. A. 431. Vice-principalship by reason of superior rank of negligent servant. Railroad is not liable to switchman injured because of failure of other employee to attend to brakes. Approved in Langhorne v. Simington, 188 Ala. 346, 66 South. 87, holding laborer working in dangerous place assumes risk; Haskell etc. Car Co. v. Prezezdziankowski, 170 Ind. 10, 127 Am. St. Rep. 352, 14 L. R. A. (N. S.) 972, 83 N. E. 630, holding master not liable for act of fellow-servant in placing truck on track; American Tel. etc. Co. v. Bower, 20 Ind. App. 38, 49 N. E. 184, contract of service implies assumption of risk of superior servant's negligence. Liability of master for foreman's failure to designate enough hands to perform work. Note, 40 L. R. A. (N. S.) 919. Miscellaneous. Cited in Swift v. Short, 92 Fed. 570, 34 С. С. А. 545, employee injured by defective repairs may recover. 160 U. S. 268-276, 40 L. Ed. 422, 16 Sup. Ct. 294, MOORE v. UNITED STATES. Indictment charging employer, under act of 1875, must allege receipt of money as official. Approved in Bromberger v. United States, 128 Fed. 351, 63 С. С. А. 76, holding an indictment under U. S. Comp. Stats. 1901, p. 3691, charging two counts, one charging defendant with embezzling a letter containing articles of value, and the other charging stealing same articles, are not repugnant; In re Grin, 112 Fed. 800, holding where defendant appropriated to his own use money of his employer and fled to California, the indictment under Penal Code Cal., §§ 503, 508, was sufficient; McBride v. United States, 101 Fed. 822, 42 C. C. A. 38, holding in indictment for embezzlement, founded on section 1 of Act March 3, 1875, description of money as consisting of so many dollars and cents is sufficient; In re Richter, 100 Fed. 297, holding charge "that defendant did commit embezzlement" is insufficient in indictment; Gleason v. State, 6 Ala. App. 53, 60 South. 519, holding allegation that money had come into accused's hands as clerk was sufficient; State v. Winstandley, 154 Ind. 445, 57 N. E. 110, holding indictment for embezzlement under Burns' Rev. Stats. 1894, § 2031, Ind., which stated that defendants were president and secretary of insolvent bank and received deposits knowing condition of bank, was insufficient; State v. Nicholls, 50 La. Ann. 702, 23 South. 981, indictment must show relation of accused to property alleged to be embezzled. Construction of phrase "by virtue of employment or office" in embezzlement statute. Note, 15 Ann. Cas. 443, 444. Embezzlement by one without authority to receive money or property in first instance. Note, 14 L. R. A. (Ν. S.) 535. In absence of statute, general averment of amount in dollars and cents is sufficient. Approved in Fields v. United States, 27 App. D. C. 438, 439, holding indictment need not charge how money was unlawfully converted. Averment of general sum is sufficient in charging public officer. Approved in Sigsbee v. State, 43 Fla. 533, 30 South. 818, where funds in hands of public officer are constantly changing, indictment for embezzlement need not allege kind of money; Territory v. Hale, 13 N. M. 188, 13 Ann. Cas. 551, 81 Pac. 584, applying principle. Sufficiency of indictment for embezzlement by public or corporate office with respect to description of property. Note, 21 Ann. Cas. 72, 73. Defective count demurred to is not covered by section 1025, Revised Statutes, or cured by verdict. Approved in United States v. Johnson, 26 App. D. C. 140, holding arrest of judgment should be granted where demurrer to indictment was overruled. Embezzlement differs from larceny in that in former original possession is lawful. Approved in Grin v. Shine, 187 U. S. 196, 47 L. Ed. 138, 23 Sup. Ct. 104, holding, under Cal. Code, embezzlement is fraudulent appropriation of property intrusted, and in larceny, felonious intent must exist at time of taking; United States v. Allen, 150 Fed. 153, holding indictment bad which did not allege that funds came into defendant's possession by virtue of his employment; Dimmick v. United States, 121 Fed. 641, 57 C. C. A. 664, holding in indictment for embezzlement for failure to deposit as required by U. S. Comp. Stats. 1901, p. 3705, it is not necessary to describe the money; McKnight v. United States, 97 Fed. 215, 38 C. C. A. 115, holding indictment for embezzlement which avers that defendant wrongfully used bank's money in his care for purpose of bribing city officials in his own interest sufficiently avers an appropriation; State v. Nicholls, 50 La. Ann. 701, 23 South. 981, word "embezzle," without qualification or explanation, sufficiently describes crime. Distinction between larceny and embezzlement. Note, 13 Ann. Cas. 882. 160 U. S. 276-288, 40 L. Ed. 426, 16 Sup. Ct. 278, ΚΕΑΝΕ V. BRYGGER. Title under university commissioners, selecting land under act of 1854, prevails against later entry. Approved in Davis v. Magoun, 109 Iowa, 326, 80 N. W. 429, one whose entry is erroneously canceled and then reinstated, is equitable owner from time of reinstatement. Miscellaneous. Cited in Altschul v. Rogers, 22 Idaho, 516, 126 Pac. 1050, holding entries could not be made on direct land for purposes of speculation. 160 U. S. 288-293, 40 L. Ed. 430, 16 Sup. Ct. 276, JERSEY CITY ETC. R. R. CO. v. MORGAN. Supreme Court will not review State decision as to effect of abrasion on silver coin, when no Federal right claimed. Approved in Coder v. Arts, 213 U. S. 238, 16 Ann. Cas. 1008, 53 L. Ed. 779, 29 Sup. Ct. 436, holding determination of validity of lien under Bankruptcy Act presents Federal question; Chapman v. Bowen, 207 U. S. 92, 52 L. Ed. 118, 28 Sup. Ct. 32, holding denial of claim in bankruptcy proceeding does not raise Federal question; De Lamar's Nevada Gold Min. Co. v. Nesbit, 177 U. S. 529, 44 L. Ed. 874, 20 Sup. Ct. 718, holding fact that defendant in suit to quiet title to mining claim claims title under mineral laws of United States is not sufficient to raise Federal question which will sustain writ of error to State court; Conde v. York, 168 U. S. 650, 42 L. Ed. 613, 18 Sup. Ct. 237, where controversy is only as to which claimant has superior equity in fund, statute being only collaterally involved, Supreme Court has no jurisdiction to review State court's judgment; dissenting opinion in St. Louis etc. Ry. Co. v. McWhirter, 229 U. S. 287, 57 L. Ed. 1190, 33 Sup. Ct. 858, majority holding conviction for violation of Hours of Service Act raises Federal question. : Meaning of "mutilate." Note, 1 Ann. Cas. 25. Tender of old, worn, or mutilated coin. Note, 33 L. R. A. 826. Character or condition of coin or currency tendered in payment of fare. Note, 35 L. R. A. (N. S.) 1031. 160 U. S. 293-303, 40 L. Ed. 432, 16 Sup. Ct. 304, KOHL v. LEHLBACK. Facts duly alleged are deemed true unless denied or controlled by evidence. Approved in Thomas v. Winne, 122 Fed. 397, 58 C. C. A. 613, holding upon petition for habeas corpus on ground that person enlisting in navy was under age, no issue of intoxication of recruit is presented. General averment of detention contrary to Constitution and laws is conclusion of law. Approved in Dodge v. Ellis, 195 U. S. 626, 49 L. Ed. 350, 25 Sup. Ct. 791, applying rule; Craemer v. Washington, 168 U. S. 129, 42 L. Ed. 409, 18 Sup. Ct. 3, copies of process or proceedings must be annexed to petition for habeas corpus, alleging detention under void process. When a prisoner may be released on habeas corpus after judgment and sentence. Note, 87 Am. St. Rep. 201. |