On the second page of the policy is the following specific provision in reference to death from accident: "If injury as described on the first page hereof shall within ninety days from date of injury result in death of assured or in the loss of one or two limbs, or one or both eyes, the association will pay one of the benefits stated in columns 7, 6, 5, or 4, in the schedule on page one hereof." The terms and conditions of the contract are stated in much detail but we find no others which it is necessary to quote to give an understanding of the policy. There is nowhere a specific reference to death resulting from sickness except in the indorsement quoted. the collision he was using it in the course of defendant's employment. Appeal from District Court, Hennepin County; Joseph W. Molyneaux, Judge. Action by Cutler D. Robinson, as father, etc., against the Pence Automobile Company. From an order dismissing the case, plaintiff appeals. Order affirmed. Larrabee & Olson, of Minneapolis, for appellant. Briggs, Thygeson & Everall, of St. Paul, for respondent. HALLAM, J. This action is brought to recover damages for injuries to a child caused by collision with an automobile. At the close of plaintiff's testimony, the court dismissed the case. Plaintiff appeals. The child was struck by a large automobile driven by a colored chauffeur on Riverside avenue near Twenty-Third street in Minneapolis on July 24, 1916. The driver of the automobile did not stop, and neither his identity nor the ownership of the car was then known. Plaintiff claims that he later ascertained, and that the evidence on the trial showed: (1) That the automobile was driven by Charles Butler; (2) that it was defendant's automobile; and (3) that Butler was using it as defendant's agent and in the course of defendant's business. The burden was upon the plaintiff to prove all these propositions. It is the contention of the association that a death benefit is payable only when the death of the insured is caused by accident. The argument to that effect is pressed with considerable force, but, applying the appropriate rule of construction, we are convinced that it cannot be sustained. The language of the policy is that chosen by the defendant. It is just that it be bound by the construction which would naturally and reasonably be put upon it by one to whom it was offered. When in response to the application of the insured, asking for accident and health indemnity and a death benefit of $100, it tendered the policy in suit, it invited the understanding that a benefit of $100 followed death from sickness. Usually those in the walks of life where policies like this are most useful, and indeed almost any one buying insur-undertook to identify Butler as the man who ance, would so interpret it. Only a critical consideration, and that is not required in aid of the insurer, would bring a serious doubt. If not so interpreted some of the language used is ambiguous or actually misleading, as for instance the reference to a death benefit in the table of benefits and the statement relative to a death benefit in the indorsement. If the company did not wish such construction put upon its language it could have avoided it by the use of a few plain words and not having done so it should pay the death benefit. The court correctly construed the policy. Judgment affirmed. 1. Two witnesses who saw the accident drove the automobile. Butler denied that he was the man. The evidence of identification of Butler was far from satisfactory, but we think the question of identity was one of fact for the jury. 2. The evidence of identification of the automobile is that defendant owned a large car of the same general description as the one that caused the injury and that it was Butler's business to drive this car. If Butler drove the car that struck the child, the evidence is probably such that a jury might find that the car driven by him was defendant's car. 3. Whether there was any evidence to sustain a finding that Butler was operating the automobile as defendant's agent and in the course of defendant's business is a more ROBINSON V. PENCE AUTOMOBILE CO. difficult question. Butler was in defend (No. 20901.) ant's employ. He worked on a salary and (Supreme Court of Minnesota. June 7, 1918.) .commission. His customary use of defend (Syllabus by the Court.) - ant's car was to take it out for hire for defendant. The evidence is clear that he did Sometimes he was sent with the car on “errands" for defendant, and sometimes he used the car on business of his own. If he was driving the car on business of his own, defendant was concededly not liable for his If Butler was driving this car, there MASTER AND SERVANT 330(3)-INJURY TO not have it out for this purpose at this time. THIRD PERSON · SCOPE OF EMPLOYMENT EVIDENCE. Action for damages caused by collision with an automobile. There is some evidence that the automobile that caused the injury belonged to defendant and that it was driven by a man who drove it at times for defendant and at times on his own account. The evidence is not sufficient to sustain a finding that at the time of was no direct proof as to his mission. Plain acts. Action by William Madsen and others against Emil Latzke. Findings in favor of the defendant, and from an order denying their motion for a new trial plaintiffs appeal. Affirmed. tiff's contention is that the proof shows that Appeal from District Court, Scott County; whenever he took the car out for defendant C. M. Tifft, Judge. for hire or on his own account, an office record was kept of the transaction, but when he took it out on "errands" for defendant, no record was kept, and that there was no office record of any use of the car by Butler that would cover the time of this accident. Plaintiff argues from this, by a process of elimination, that Butler must have been out on an "errand" for defendant. A careful examination and consideration of the record in this case leads us to believe that a verdict for plaintiff, predicated on this theory, could not be sustained. The evidence is that these "errands" for defendant were "around the business district" and "up to our other plant." There is nothing to sustain an inference that Butler was ever sent on "errands" into the locality where this injury occurred, which was neither "around the business district" nor in the direction of the "other plant." F. C. & H. A. Irwin, of Belle Plaine, for appellants. T. J. O'Brien, of Belle Plaine, and Geo. F. Sullivan, of Jordan, for respondent. QUINN, J. Action to enforce a lien against the real estate described in the complaint for a balance of $160 claimed to be due and owing from the defendant to the plaintiffs on the purchase price of a hot air heating plant and plumbing system, installed in defendant's dwelling during the fall of 1916. The cause was tried to the court, findings were made in favor of the defendant, and from an order denying their motion for a new trial plaintiffs appealed. [1] The installation was under a written contract which, so far as it relates to the furnace, provides: floor in the coldest weather. If furnace does not handle house in a satisfactory manner we will remove same without any expense to the property owner and leave floors in first-class shape. Furnace to be installed for $155.00 and to be paid for by November 1, 1916, the trial to hold good for one year." This is sufficient to dispose of the case, but the evidence is at least vague in other particulars. If Butler was using the car, the only evidence that he was using it in the "We, the undersigned, agree to install in the business of defendant is this negative tes- residence of Emil Latzke a No. 24 single_register Estate furnace and to heat same to 70 detimony that there was no record on defend-grees on the first floor and 50 degrees on second ant's books that he was using it on business of his own. Defendant's secretary did answer "Yes," when asked if defendant's records would show whether Butler was given the use of the car for his own purposes on that day. There is no evidence as to what sort of record was made of such a use of the car. When asked to describe the record kept, the same witness described minutely the system of keeping a record of the use of the car when it was let for hire, and testified that the record showed a rental use of the car by Butler on the day in question, but several hours later than the hour of the accident. He was then asked if there was any other entry on that day, and he answered "No." It is not at all clear that in any of this testimony he had in mind any record except the record of rental use of the car. Taking all the testimony together, we think it is insufficient to sustain a finding that Butler was at the time of this injury using this car on any errand of the defendant. Order affirmed. MADSEN et al. v. LATZKE. (No. 20877.) (Supreme Court of Minnesota. June 7, 1918.) (Syllabus by the Court.) 1. MECHANICS' LIENS 281(1) MENT-FINDINGS EVIDENCE. ENFORCE Defendant pleaded a warranty and breach thereof; that the furnace was unsatisfactory; and that he so notified the plaintiffs and requested them to remove the same shortly after it was installed. No question was raised upon the trial but that the capacity of the furnace was sufficient to heat the building. The particular objection urged thereto was that it did not properly distribute the heat so as to properly warm the different rooms. There was testimony upon the trial sufficient to justify the findings of the court. The trial court found that the furnace was not adequate to heat the building in a proper manner; that it did not comply with the terms of the contract and was not satisfactory to the defendant; that the defendant declined to accept the same and requested the plaintiff to remove it, and ordered judgment in favor of the defendant. [2] Upon the trial defendant called William Juni as a witness who had been in the hard ware, heating and plumbing business for a number of years, but had never tested or seen the furnace in operation. This witness was permitted to testify under objection and Evidence considered, and held to be suffi- give his opinion as to whether the furnace cient to sustain the findings of the trial court. would properly heat the building and as to 2. EVIDENCE 4981⁄2-DISCRETION-ADMIS- what the temperature of the different rooms SION OF OPINION EVIDENCE. Reception of opinion evidence was within would be with a given temperature in the the discretion of the trial court. dining room. The rulings upon this testi mony are covered by appellants' assignment | came to Edgerton in their automobile, Mr. No. 6. The majority of the court are of the Ihlen driving. They drove south on Main opinion that the reception of the opinion street towards Maple street. They failed evidence objected to was largely in the dis- to see the rope in time, and drove against cretion of the trial court, and that there was it. The windshield and top of the automono prejudicial error in the reception of the bile were damaged, and some injuries inflictsame. We have examined the other assigned on both occupants. Each sued the village, ments as to the admissibility of evidence and alleging an unlawful and negligent obstruc find no reversible error. Affirmed. tion of the street as the cause of the damage sustained. The cases were tried together and a small verdict returned for each plaintiff. The village appeals from the or IHLEN V. VILLAGE OF EDGERTON (two der denying its motion, in the alternative, cases). (Nos. 20865, 20866.) for judgment notwithstanding the verdict or (Supreme Court of Minnesota. June 7, 1918.) a new trial. (Syllabus by the Court.) 1. MUNICIPAL CORPORATIONS 821(8)-IN- GENCE. 821 (20)-INJURY IN STREET CONTRIBUTORY NEGLIWhether plaintiffs in driving their automobile against this rope were negligent was under the evidence for the jury, and not the court. Appeal from District Court, Pipestone County; E. C. Dean, Judge. Actions by O. C. Ihlen and Nicholine Ihlen against the Village of Edgerton. Causes tried together and verdict returned for each plaintiff, and from an order denying its motion in the alternative for judgment notwithstanding the verdict or a new trial, defendant appeals. Order affirmed. C. T. Howard, of Pipestone, for appellant. Morris Evans, of Pipestone, for respondents. [1] No complaint is made of any rulings at However, it is earnestly contended that not the trial or of the instructions to the jury. only was no actionable negligence proven against the village, but its exercise of due care in the premises is conclusively demonstrated; and, further, that the contributory negligence of each plaintiff appears as a matter of law. It will serve no useful purpose to attempt to state the substance of the testimony. We merely suggest that the jury, in determining whether the rope barricade was negligently placed and maintained, had a right to consider that aged people, whose vision is dimmed and power of quick observation impaired, drive on village streets as well as the young, keen-eyed, and alert. The jury might conclude that the unusual display of bunting around the stand and flags in close proximity would so attract the travelers on the street that they ing in between and considerably in front would likely not notice the small rope comof the large, gaily decorated stand. It might HOLT, J. The village of Edgerton had a automobile drivers would come into town, also occur to the jury that inexperienced celebration on August 27, 1915. At the intersection of Main street, running north and and that such persons are so bent upon obsouth, and Maple street, running east and serving the contour of the ground, along the west, a temporary band stand was erected. narrow path in which they intend to guide It was some 4 or 5 feet high, and about 24 the wheels of the vehicle, that they would feet wide, east and west, and extended to not be apt to observe a rope stretched some within 10 or 15 feet of the north cross-walk 4 feet above the ground, unless it was speof Maple street. The streets are about 100 cially made conspicuous. The jury also had feet wide, including sidewalks. This left a right to consider that another automobile a passage in the vehicle traveled part of driver had run into this very rope that Main street of, at least, 25 feet on each morning soon after it was strung. The rope side of the band stand. But to prevent trav- was not new, and perhaps on that account el there, while any feature of the celebra- less noticeable. There was also evidence intion was taking place upon or about the dicating that because of the sag of the rope stand, ropes were stretched across the the flags and streamers, if in fact fastened streets. One of these ropes passed from a as testified to by some of defendant's wittelephone pole at the east sidewalk of Main nesses, had moved to the center of the street, street to a telephone pole at the west side-giving the appearance to a driver coming from walk at about the place of the north cross- the north that these decorations were part walk of Maple street. The rope was stretched of the band stand, leaving the rope bare at about the height of 5 feet. To it was tied where Mr. Ihlen drove under. To find the a flag on either side of the band stand, and village streets roped off is perhaps a rather also some streamers. About 2:30 in the aft- novel experience for farmer folk, and the juernoon the plaintiff, Mr. Ihlen, a man 72 ry might well find that, when it is attempted, years old, with his wife, 10 years younger, due care required that more effective notice of the barricade be provided than was done The testator left surviving him a widow and in this case. The question whether, in this four children. At the time the will was exinstance, the instrumentality employed, to ecuted and at his death the testator owned temporarily close a part of the street to ve- a 40-acre tract occupied by himself and his hicle travel, was so improperly or negli-wife as a homestead, and 80 acres in addigently placed and maintained that it failed tion. In his will he devised to his son to give adequate notice of its existence, seems to us to be peculiarly one for the jury. [2] What has been said applies also to the claim that plaintiffs were guilty of contributory negligence; but we may add that the evidence justified the conclusion that Mr. Ihlen drove slowly at the time, and kept his attention directed to the path he was traveling. Because others, who knew that the street was barricaded, could detect the rope at quite a distance, it does not follow that the Ihlens who did not suspect that situation were necessarily negligent in failing to see the rope. We are not able to say that their negligence is conclusively made to appear. The evidence both as to negligence and contributory negligence was such that the jury could have found either way. We see no sufficient reason for disturbing the verdict. Order affirmed. HAWKINSON et al. v. OLESON et al. (No. 20848.) Charles O. Hokanson the 80-acre tract and to his daughter Anna C. Oleson the homestead. The will made no provisions for the other children, and no provision for the testator's wife. It was not presented for probate until 1915, after her death. The widow occupied the homestead while she lived and had the use of the other tract. The will was admitted to probate in August, 1915, and a final decree entered assigning the real estate according to the will. The two sons of the testator who were not mentioned in the will, E. A. Hawkinson and Peter M. Hawkinson, contestants in the probate court, appealed from this decree to the district court. The trial in that court resulted in a decision for the contestants in so far as the homestead is concerned. The appeal to this court is by the other son, Charles O. Hokanson, and the daughter, Anna C. Oleson, from an order denying a new trial. The trial court held that the attempted disposition of the homestead was absolutely void, because the testator's spouse never consented thereto, and that the remainder, after the life estate of the widow, went to all four (Supreme Court of Minnesota. June 7, 1918.) children in equal shares; that is, that the tes (Syllabus by the Court.) 1. HOMESTEAD 136 WILLS 782(8, 13) - PROVISION FOR SURVIVING WIFE-INVALIDITY-ELECTION-CONTEST. Under Rev. Laws 1905, § 3647, a testamentary disposition of the homestead in a will which makes no provision for the surviving spouse is void unless and until such surviving spouse consents thereto in writing. No provision being made for the surviving spouse, she was not put to her election under section 3649, and never lost the right to claim that the disposition was void. Upon her death before the probate of the will, the children of the testator have the right to insist that the homestead should descend as provided by the statute, unaffected by the will. 2. HOMESTEAD 145-DEVISE-ESTOPpel. The contestants, sons of the testator, to whom he devised no interest in the homestead, are not estopped from claiming that the disposition thereof was invalid. tator died intestate as to the homestead. The only question on this appeal is whether this conclusion is correct or whether, as claimed by appellants, the homestead, the life estate of the widow having terminated, should go according to the will. [1] The solution depends upon the proper construction of R. L. 1905, § 3647 (G. S. 1913, 8 7237). This section, as far as applicable to the facts here, is as follows: "The homestead of such decedent shall descend, free from any testamentary or other disposition thereof to which the surviving spouse, if there be one, shall not have consented in writing, * as follows: * * 2. If there be both a spouse and children, or issue of deceased children, surviving, then to such spouse for the term of his or her natural life, and remainder to such children and the issue of deceased children by right of representation." As no provision whatever was made in the Appeal from District Court, Chisago County; J. C. Nethaway and J. N. Searles, Judges. will for the surviving spouse, it was not a Will contest by E. A. Hawkinson and othcase where she was obliged to renounce the ers against Anna C. Oleson and others. Judg- will within six months or be deemed to have ment for contestants and from an order deny-elected to take thereunder. R. L. 1905, § ing a new trial, contestees appeal. Order af firmed. C. G. Dosland, of Moorhead, for appellants. F. H. Castner, of Minneapolis, for respondents. 3649, has therefore no application. As the widow did not consent in writing to the disposition of the homestead, it is clear that she never lost her right to insist that the homestead should descend as provided in subdivision 2, § 3647, to her for life and remainder BUNN, J. In January, 1902, Andrew Ho- to "such children." The claim of appellants kanson, a resident of Chisago county, died is that the limitation of the statute on the leaving a will executed in November, 1901. power of disposition of the homestead was 14 (Minn. to us that the case is not different from what renounce the provisions of the will. It seems it would have been had the will made provision for the widow and had she renounced its provisions within the statutory time. There can be no question that in such a case all the children would share in the remainder after the termination in the life estate. N. W. 127, is decisive on this, and it seems Schacht v. Schacht, 86 Minn. 91, 90 very clear from the language of the statute. The Schacht Case is like the case at bar in the respect that the will gave the remainder of the homestead to one of several children of the testator, and it was held that, the widow having renounced the provisions of the will, the homestead descended to her and all of the children, unaffected by the will. There is a note on the rights of children in the homestead of a parent in 56 L. R. A. 33. intended solely for the benefit and protec-[under section 3649, and was not obliged to tion of the surviving spouse, and that, as she died without asserting her right, the children have no right to invoke the statute to defeat the disposition made by the will. This contention is based upon the concurring opinion of Mr. Justice Mitchell in Jones v. Jones, 75 Minn. 53, 77 N. W. 551. Of course, it cannot be claimed that this opinion is authority on the question. It is entitled to weight as being the view of a great jurist, but to nothing more. Jones v. Jones, supra, like Radl v. Radl, 72 Minn. 81, 75 N. W. 111, was a case where the will made provisions for the surviving spouse in lieu of her statutory rights, and it was held, following Radl v. Radl, supra, that the failure to renounce within six months was an election to accept the provisions of the will, those relating to the homestead as well as the others. The argument of Justice Mitchell is worthy of careful consideration, as is the argument of counsel for appellants in the case at bar. words "if there be one" in section 3647. He Counsel makes a point based upon the It is true that the right to consent to the dis- argues that these words do not refer to conposition of the homestead is given to the sur-ditions existing at the death of the testator, viving spouse alone. The children "are given but at any time thereafter until the final no voice in the matter"; their interest being distribution of the estate; that is, the sur'wholly dependent upon the will of the surviving spouse in this case having died "before viving spouse." But it is not true in this the will was presented for probate," there case that they would lose this interest by the was no longer a surviving spouse and the mere failure of the surviving spouse to make disposition was not invalid. This is plainly an election under section 3649. The argument not sound. is not quite so strong in a case where the written consent of the surviving spouse is required to defeat the interests of the children. On the whole we do not feel prepared to adopt the view advanced by Justice Mitchell in the Jones Case. The language of section 3647 is too clear: "The homestead shall descend free from any testamentary or other disposition thereof to which the surviving spouse shall not have consented in writing." "to such spouse for the term of her natural life, and remainder to such children." estopped from questioning the validity of the [2] It is contended that the contestants are will. invalidate it for some 15 years after their This is because they took no steps to father's death. There are two good answers to this: First the evidence does not show that second, they were powerless to do anything contestants knew the contents of the will; while their mother lived. Jones v. Jones, supra. The finding that the contestants were intentionally omitted from the will by the testator is not attacked, as contestants did not appeal. Appellants attack many of the findings of the trial court, and its refusal to make amended findings as requested, but the material facts were all found, and there was no error as to the findings. The question is whether the conclusions of law are sustained by the facts found. We hold that they are. Order affirmed. The children certainly do have an interest, though it is not within their power to protect it. It seems a less forced construction of the statute to hold that a testamentary disposition of the homestead is void unless and until the surviving spouse consents to it in writing. The argument that such a disposition of the homestead is not void, because it may be consented to by the surviving spouse after the death of the testator, and thereafter have validity, is not persuasive. The trouble is that the statute is not fairly susceptible of the construction counsel would place upon it. It says, in effect, that a testator dies intestate as to his homestead, if the surviving spouse does not consent to his dis- (Supreme Court of Minnesota. June 14, 1918.) position of it, that is that it goes to such spouse for life, and at her death to the testator's children. The surviving spouse in the case at bar, as stated before, was not put to her election STATE ex rel. WILLIAMS et al. v. PRO- (Syllabus by the Court.) bate court that a deed made by a decedent was |