II. TRANSFER OR INCUMBRANCE.
110 (Mich.) A will, executed by husband and wife of their homestead held by the en- tireties, made to carry out oral contract with son, was not such an instrument as complied with Const. art. 14, § 2, relating to aliena- tion of homestead, being revocable at will.- Fleming v. Fleming, 168 N. W. 457.
118(2) (Mich.) Contract verbally made by husband and wife to a son that, if son should work the farm during lives of parents, he should have an undivided half interest therein, was absolutely void under Const. art. 14, § 2. -Fleming v. Fleming, 168 N. W. 457.
128 (Mich.) Although a son has earned a half interest in parents' homestead under an oral contract, in view of Const. art. 14, § 2, he is not entitled to specific performance, but he will be given a lien as to value of premises above exemption of $4,500, for value of serv- ices rendered.-Fleming v. Fleming, 168 N. W.
invalidate it until 15 years after his death.- Hawkinson v, Oleson, 168 N. W. 13.
See Criminal Law, 364, 369, 400, 413, 427, 511, 706, 785, 814, 822, 829, 1038, 1169, 11702; Jury, 107; Witnesses, 337, 388.
23 (2) (N.D.) No premeditation or malice aforethought is necessary to constitute murder in the second degree as defined by Comp. Laws 1913, §§ 9462, 9469.-State v. Mueller, 168 N. W. 66.
V. EXCUSABLE OR JUSTIFIABLE HOMICIDE.
109 (S.D.) Under the common law and the statutes of South Dakota a person who is be- ing assaulted may make such resistance as is sufficient to repel the assault; Pen. Code, § 268, making homicide justifiable when commit- ted in self-defense.-State v. Jaukkuri, 168 N. W. 1047.
defended on the ground that deceased was then 112(6) (S.D.) In a prosecution for murder approaching defendant with a rock in his hand, it was immaterial who was the aggressor in their former encounter, or what the result of that encounter was.-State v. Jaukkuri, 168 N. W. 1047.
118(2) (S.D.) Though defendant, if he had run when he saw deceased start toward him with a rock, might have escaped serious injury, he was not required to do so, when he had had no warning and was justified in believing that a friend sent ahead would prevent any assault. -State v. Jaukkuri, 168 N. W. 1047.
121 (S.D.) The fact that defendant in a prior encounter had struck deceased over the head with the butt of a pistol would not jus- tify deceased in taking the law into his own hands and in renewing the encounter with de- W. 1047. fendant upon sight.-State v. Jaukkuri, 168 N.
Where son farmed parents' homestead under agreement that he should have one-half inter- est in land, adjudged void by reason of Const. art. 14, § 2, farm machinery to be paid for out of profits of farm, on settlement son is entitled151(3) (S.D.) That defendant just before to one-half interest in necessary farm ma- chinery bought.-Id.
III. RIGHTS OF SURVIVING HUS- BAND, WIFE, CHILDREN, OR HEIRS.
(A) Presumptions and Burden of Proof.
shooting exercised sufficient presence of mind to warn his friend, then directly in line with deceased, of the possible danger gave rise to no inference that the danger to defendant was not apparent.-State v. Jaukkuri, 168 N. W. 1047.
(E) Weight and Sufficiency.
233 (Minn.) In a trial for murder, evidence, aside from accomplices' testimony, held strong and persuasive that defendant had a motive.- State v. Dunn, 168 N. W. 2.
136 (Minn.) Upon death of surviving wife before probate of husband's will disposing of homestead without providing for wife, the tes- tator's children might insist that the homestead should descend as provided by the statute unaf- fected by the will.-Hawkinson v. Oleson, 168 N.234(5) (Minn.) In a trial for murder, evi- W. 13.
141(1) (Iowa) A widow entitled to a home- stead is entitled to it for use and occupancy, and not merely to the proceeds derived from a sale thereof.-Dalton v. Dalton, 168 N. W. 884.
141(1) (Mich.) A widow is not entitled to a homestead in property that did not belong to deceased husband.--Watson v. Wagner, 168 N. W. 428.
145 (Iowa) In partition, the request of in- testate's widow that her distributive share, in- cluding the homestead, be set off to her, did not authorize appraisal of and attempted sale or waive her right to homestead.-Dalton v. Dalton, 168 N. W. 884.
dence, aside from accomplices' testimony, held strong and persuasive that defendant not only had a motive, but had formed a fixed purpose to procure some one to kill his wife, and that the actual murderer was procured by his agent to carry out that purpose.-State v. Dunn, 168 N. W. 2.
244 (1) (S.D.) In a murder trial, evidence held not to show that, under the circumstances of an immediately threatened assault by de- ceased, defendant could have retreated in safe- ty.-State v. Jaukkuri, 168 N. W. 1047.
253(2) (Minn.) In a trial for murder, the ev- idence showing defendant to be the archconspira- tor, though circumstantial, held sufficient to sus- tain a conviction of murder in the first degree.- State v. Dunn, 168 N. W. 2.
145 (Minn.) Sons of testator to whom he devised no interest in a homestead held not es-254 (Iowa) Evidence held to support con- topped from claiming that the disposition there-viction of murder in the second degree.-State of was invalid, because they took no steps to v. Dillman, 168 N. W. 204.
X. APPEAL AND ERROR.
334 (N.D.) Where evidence of guilt of a
homicide is overwhelming, and the homicide is See Master and Servant, 217, 286. practically admitted, and the real defense is in- sanity, mere technical or immaterial errors in relation to the homicide will be disregarded. See Bastards. State v. Mueller, 168 N. W. 66.
See Charities, 45.
HUSBAND AND WIFE.
See Drains, 45, 57; Municipal Corpora- tions, 266-434.
See Damages, 26; Divorce; Dower; Ex- ecutors and Administrators, 181; Fraud- ulent Conveyances, 43, 104, 300; Gifts, 16 (Neb.) In prosecution for incest, de- 29; Homestead, 31, 141; Indictment and Information, 137; Intoxicating Liq- uors, 309; Judgment, 693, 891; Mar- riage; Master and Servant, 387, 398; Pleading, 246; Trial, 251; Vendor and Purchaser, 343; Wills, 689; Wit- nesses, 76.
I. MUTUAL RIGHTS, DUTIES, AND LIABILITIES.
6(1) (Mich.) It is a presumption of law that things brought into the house by the hus- band and by his purchase are his property.- Le Blanc v. Sayers, 168 N. W. 445.
fendant, on request, was entitled to instruction that evidence of unchastity should be consid- ered as bearing on whether prosecuting wit- ness contracted gonorrhea from him.-Guyle v. State, 168 N. W. 567.
See Attachment, 343; Guaranty.
14 (Mich.) A judgment against township in action for personal injury when alleged defec- tive bridge railings gave way was conclusive as to existence of defects causing injury, as to injury to plaintiff therein, and that he was free from contributory negligence and as to amount of damages awarded.-Hart Tp. v. Noret, 168
2334 (N.D.) In an action for merchandise furnished defendant's family during his absence, N. W. 1023. held, that there was sufficient evidence of agen-15(9) (Mich.) In action by township for in- cy to charge defendant with goods supplied.demnity following a judgment against it in ac- Evenson v. Nelson, 168 N. W. 36.
III. CONVEYANCES, CONTRACTS. AND
OTHER TRANSACTIONS BETWEEN
HUSBAND AND WIFE.
492(1) (Mich.) A husband who purchases a piano has a right to give it to his wife; and, if he does so at the time of the purchase, the
piano is hers, and its taking under a judgment against the husband was wrongful.-Le Blanc v. Sayers, 168 N. W. 445.
491/2(8) (Mich.) The wife, claiming title to a piano purchased by the husband, has the bur- den of showing by a preponderance of the ev- idence that the husband gave the piano to her to be her own separate property.-Le Blanc v. Sayers, 168 N. W. 445.
V. WIFE'S SEPARATE ESTATE. (A) What Constitutes.
tion for personal injury based on defective bridge railings, defendant's admission that he was responsible for the railings, in addition to matters concluded by judgment against town- ship, left no question of fact for jury.-Hart Tp. v. Noret, 168 N. W. 1023.
INDICTMENT AND INFORMATION. See Adultery, 5; Criminal Law, 628, 678; False Pretenses, 26, 27; Intoxicat- ing Liquors, 211; Rape, 35; War, Com4.
II. FINDING AND FILING OF INDICT- MENT OR PRESENTMENT.
10 (Minn.) In a prosecution for adultery, the grand jury, in view of Gen. St. 1913, § 9117, may not receive the evidence of the innocent spouse, without the consent of the defendant, and base a true bill in part upon such testimony.
122 (Mich.) Where the husband has not-State v. Marshall, 168 N. W. 174. given his wife the right to her own earnings, the mere fact that she paid part of purchase price of piano levied on under judgment against the husband did not give her title to the piano. -Le Blanc v. Sayers, 168 N. W. 445.
VII. MOTION TO QUASH OR DISMISS, AND DEMURRER.
209 (3) (Mich.) Where wife, having sustain- ed personal injuries, paid expenses of treat- ment on request and promise of her husband
137(4) (Minn.) An indictment for adultery will not be set aside on motion on the ground merely that incompetent evidence was received by the grand jury.-State v. Marshall, 168 N. W. 174.
137(4) (Minn.) A motion to quash an in- dictment against husband, because his wife had
him before the grand jury, was properly de- by deterring the public from patronizing it, if nied. State v. Ruther, 168 N. W. 587.
to compel the owner not to work himself, is un- lawful, and may be enjoined.--Roraback v. Mo- tion Picture Machine Operators' Union of Min- neapolis, 168 N. W. 766.
IX. ISSUES, PROOF, AND VARIANCE. 176 (S.D.) Upon error in information as to true time when act charged was committed, 101(2) (Mich.) A master against whom a the state is not barred from proving such act strike has been declared, and whose plant has on another date, unless that shows the prose- been picketed peacefully without threats and cution barred by the statute of limitations.- intimidation, is nevertheless entitled to an in- junction.-Clarage v. Luphringer, 168 N. W. State v. Yeager, 168 N. W. 749.
See Executors and Administrators, 315; Habeas Corpus, 113; Master and Serv- 366, 400; Physicians and Surgeons, 18.
IV. PRELIMINARY AND INTERLOCU- TORY INJUNCTIONS. (A) Grounds and Proceedings to Procure.
132 (Iowa) Whether an ex parte restrain- ing order to hold matters in suit in statu quo should be considered a temporary injunction de- pends upon the circumstances of each case, and fargely in the discretion of the judge, and a restraining order, when considered a temporary injunction, may be modified, vacated, or con- tinued.-State v. Raph, 168 N. W. 259.
47 (Wis.) Where minor heir who, together with guardian, executed unobjectionable trust agreement, making disposition of intestate's es tate and deed made pursuant thereto, was fully informed of legal effect of agreement and deed and comprehended their significance, legal ef- free from doubt, the trial court did not abuse ficacy of instruments was subject only to mi-137(4) (Minn.) Where the facts were not its discretion in refusing to issue a temporary nor's right to disaffirm at majority.-In re injunction. Roraback v. Motion Picture Ma- Kane's Estate, 168 N. W. 402. 57(1) (Wis.) Where minor heir after machine Operators' Union of Minneapolis, 168 N. W. 766. jority, and after full information of contents of trust agreement making disposition of estate between parties interested, of trustee's doings, and property embraced in trust, ratified agree- ment, ratification was binding. In re Kane's 228 (Minn.) A district court has no juris- Estate, 168 N. W. 402.
62(3) (Mich.) Where one defendant owned easterly 50 feet of lot 50, and other owned westerly 50 feet and easterly 40 feet of lot 51, remaining 20 feet of lot 51 being owned by plaintiff, with lot 52, plaintiff could not re- strain erection by defendants of their dwellings, one on lot 50, the other on lot 51, on ground they violated restriction, that there should be nothing but single dwelling on each lot, no nearer than 10 feet to west line.-Gnau v. Fitz- patrick, 168 N. W. 1007.
(G) Personal Rights and Duties. 99 (Minn.) "Bannering" a moving picture house as unfair to organized labor, and there-
VII. VIOLATION AND PUNISHMENT.
diction to punish the Governor of the state for contempt for disregarding its order restraining closing of a licensed saloon, where Governor was in good faith discharging a constitutional duty to enforce an order of the Public Safety Commission created by Laws 1917, c. 261 (Gen. St. Supp. 1917, §§ 117-10 to 117-19).-State District Court, Second Judicial Dist., 168
The district court has no power to punish the adjutant general of the state for contempt in closing a licensed saloon by order of Governor of state in disregard of court's restraining or- der; he being a proper agency in Governor's hands to aid him in enforcing a duly enacted law.-Id. INSANE PERSONS.
See Cancellation of Instruments, 211; Homicide, 334; Purchaser, 44; Witnesses,
INSOLVENCY.
34; Deeds. Vendor and 160.
See Bankruptcy, Corporations, 566; Fraud- ulent Conveyances, 61.
See Appeal and Error, 1067; Criminal Law, 763-829, 1173; Master and Servant, 150, 154; Trial, 191-296, 312.
(A) Agency for Insurer.
75 (Iowa) Under Code, §§ 1749, 1750, de- fining an agent of a company dealing in insur- ance other than life, every person who in any manner, directly or indirectly, transacts busi- ness for such company is an agent of such company.-Johnson v. Farmers' Ins. Co., 16S N. W. 264.
For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER
of title increasing hazard.-State Central Sav. Bank v. St. Paul Fire & Marine Ins. Co., 168 N. W. 201.
393 (Iowa) Where fire insurer accepted premium from purchaser of property knowing he desired to continue policy, it cannot assert there was no proper assignment of policy from vendor to purchaser.-State Central Sav. Bank v. St. Paul Fire & Marine Ins. Co., 168 N. W. 201.
93 (Iowa) Where it was the practice of an insurance agent to secure data from applicant and to prepare and sign application, and in- surance company had acquiesced in such prac-449 (Neb.) While, tice and issued its policy on such application, the company was liable for damages for negli- gence of agent in not preparing and submitting an application after agreement so to do and acceptance of premium.-Johnson v. Farmers' Ins. Co., 168 N. W. 264.
In an action against insurance company for damages caused by negligence, of its agent in not forwarding application, evidence that agent promised applicant to deposit policy in his safe is admissible on question of contributory negligence.-Id.
XII. RISKS AND CAUSES OF LOSS. (E) Accident and Health Insurance. strictly speaking, ciated from any human agency, such interpre- means may be accidental only when disasso- tation is not recognized in the law of accidental insurance, but any event occurring without ex- pectation of person affected is accidental, though it would not have happened but for his volun- tary act.-Grosvenor v. Fidelity & Casualty Co. of New York, 168 N. W. 596.
454 (Minn.) Policy of insurance covering ac- cident and health indemnity, with indorsements and attached papers, held to provide for a death benefit upon death resulting from sickness, as well as from accident.-Phillips v. Duluth Casu- alty Ass'n, 168 N. W. 9.
In action against insurance company for neg- ligence of agent in failing to send application to company, applicant can recover as damages only amount of actual loss, and not amount of 455 (Iowa) Under a policy covering injury policy.—Id.
by external, violent, and accidental means, in- sured, who while pulling a tire from an auto- mobile slipped and fell when it suddenly loos- ened, sustained an accidental injury from an leider v. Iowa State Traveling Men's Ass'n, 168 accidental, external, and violent means.-Lick- N. W. 884.
V. THE CONTRACT IN GENERAL. (A) Nature, Requisites, and Validity. 130(5) (Iowa) Where applicant paid pre- mium under agreement of agent to prepare, sign, and forward application and deposit the 458 (Iowa) An accident certificate exempt- policy, when received, in his safe, the fact that ing insurer from liability for death caused by applicant did not sign application or inquire if "gases policy had been issued does not relieve company accidentally or otherwise or agent from notifying applicant upon rejec asphyxiation, regardless of whether death is inhaled" exempts insurer in case of tion.-Johnson v. Farmers' Ins. Co., 168 N. voluntary or involuntary; an "accidental death" al.-Jones v. Hawkeye Commercial Men's Ass'n, being of necessity involuntary and unintention- 168 N. W. 305.
141(1) (Iowa) Where it was uniform prac- tice of insurer to issue policies on applications prepared and signed by its agent, the name of the agent appearing underneath that of insured to show that insured's name had been signed by agent, the company thereby waived necessity of application by insured.-Johnson v. Farmers' Ins. Co., 168 N. W. 264.
(B) Construction and Operation.
146(3) (Iowa) Where the language of an accident insurance contract has been chosen by the insurer, it must be construed most favor- ably to support the claim of the insured.-Ellis v. Interstate Business Men's Acc. Ass'n, 168 N. W. 212.
146(3) (Iowa) An accident certificate will be construed in favor of insured.-Jones v. Hawkeye Commercial Men's Ass'n, 168 N. W. 305.
XV. ADJUSTMENT OF LOSS.
579 (N.D.) Where an insured agreed to an adjustment of the loss at $335 and, being un- able to read English, signed a paper fixing it at $250, such paper did not constitute a con- tract; the statute providing that there can be no contract where the consent of the parties is when obtained by fraud, undue influence, or not free and mutual, and consent not being free mistake.-Mathias v. State Farmers' Mut. Hail Ins. Co., 168 N. W. 664.
Where an insured had received a payment on a loss and sued for more on the ground that the written contract of adjustment under which payment was made was fraudulent and did not represent the actual contract of adjustment, he was not barred from suing by acceptance and retention of the payment.-Id.
XVIII. ACTIONS ON POLICIES.
645(3) (N.D.) In a suit on an insurance policy wherein certain payments were recited where defendant set up a contract of adjust- ment fixing recovery at a smaller amount, it was not error to permit plaintiff to introduce evidence of fraud in the execution of such con- tract although no fraud had been alleged; it not being necessary to controvert expressly the new matter contained in the answer, under Comp. Laws 1913, §§ 7467-7477, and § 7452.- Mathias v. State Farmers' Mut. Hail Ins. Co., 168 N. W. 664.
XI. ESTOPPEL, WAIVER, OR AGREE- MENTS AFFECTING RIGHT TO AVOID OR FORFEIT POLICY. 646(6) (Iowa) In an action under an insur- ance policy covering the death of a mare by 392(1) (Iowa) Fire insurer which accepted lightning, the burden was on plaintiff to show premium from last purchaser of premises with that the mare was killed by lightning.-Carpen- knowledge of transfers and that purchaser de- ter v. Security Fire Ins. Co., 168 N. W. 231. sired to continue insurance did continue pol-646(7) (Iowa) Death caused by escaping gas
Jones v. Hawkeye Commercial Men's Ass'n, 168 N. W. 305.
646(7) (Neb.) Where petition averring death from "accidental carbolic acid or toxic poison- ing" was denied by answer, averring "suicide by intentional drinking of a deadly poison, namely, by the drinking of carbolic acid," and reply admitted death from drinking carbolic acid, burden was on plaintiff to show that death was accidental and not suicidal.-Grosvenor v. Fidelity & Casualty Co. of New York, 168 N. W. 596.
651(2) (Iowa) Evidence that insurer's agent promised insured to take care of the policy and deposit it in his safe is competent testimony on the question of a delivery of the policy.- Johnson v. Farmers' Ins. Co., 168 N. W. 264. 665 (2) (Iowa) Evidence held insufficient to show that life policy applied for by deceased was ever issued.-Straight v. American Life Ins. Co., 168 N. W. 84.
665(5) (Iowa) An accident insurance policy, requiring accidental injury by firearms to be established by an eyewitness, though the lim- itation might be waived when insurer was sat- isfied that discharge was accidental, limits in- surer's exemption from liability to cases where accident is not established to insurer's satisfac tion.-Ellis v. Interstate Business Men's Acc. Ass'n, 168 N. W. 212.
An insurer cannot make himself the final judge of the merits of the claim by providing in the policy that any claim thereunder must be established by proof to his satisfaction.-Id.
Where insured was killed by a rifle hidden among rubbish, that the death was accidental held established under a policy requiring the accident to be proven to insurer's satisfaction.
Where an insurance policy requires an acci- dental injury to be proven by eyewitnesses, enough must be testified to by eyewitnesses to show the operating cause of the injury, or that there was an operating cause to which the ac- cident might fairly be attributed.-Id.
Where insured was killed by discharge of a rifle, his wife was an "eyewitness," within pol- icy requiring proof by eyewitness, when she saw him before his death, three minutes after the injury.-Id.
ultra vires, and as between the society and a member chargeable with knowledge of its want of power to make a contract based thereon, it is wholly void.-Haner v. Grand Lodge A. O. U. W. of Nebraska, 168 N. W. 189.
(B) The Contract in General.
719(1) (Iowa) Power to enact new by-laws, conferred on a society by its contract with a member, makes a change binding only as to benefits derived from mere membership, and not as to an independent contract with the associa- tion.-Richey v. Sovereign Camp of Woodmen of the World, 168 N. W. 276.
General consent by member that constitution and by-laws may be amended permits adoption of a by-law interfering with no vested right, relating merely to procedure, or providing a rea- sonable rule of evidence.-Id.
Though a member agreed to be bound by changes in by-laws, change whereby presumption of death from absence was declared insufficient evidence of death, and which provided no pay- ment should be due, however long the absence, unless premiums be paid for expectancy of mem- ber, was ineffective.-Id.
If society, after ineffective change in by-laws purporting to render presumption of death from absence insufficient evidence of death, had the right to receive assessments, beneficiary's pay- iginal by-laws.-Id. ments did not estop her to claim under the or-
If a society, after ineffective change in by- laws purporting to render insufficient evidence of death presumption arising from absence, was not entitled to assessments from a benefi- actions does not create estoppel to discontinue ciary, fact that she submitted to illegal ex- them.-Id.
Payment of assessments by beneficiary, after the society made ineffective change in by-laws death presumption from absence, was not au purporting to render insufficient evidence of acquiescence in the change.-Id.
A society which made ineffective change in by-laws purporting to render insufficient evi- dence of death presumption from absence could estop itself to urge making of assessment pay- ments by beneficiary as defense to her claim, if its agents induced payments after the parties knew assured had disappeared.-Id.
665 (7) (N.D.) In an action on an insur- ance policy wherein a written agreement to ac- cept a less sum was interposed, evidence held 719(3) (Iowa) Change in by-laws of a soci- ety operating to raise assessment must be rea- to show that plaintiff's signature to such agree-onable to bind a member, though he has given ment was obtained by fraud.-Mathias v. State general consent to constitution and by-laws be Farmers' Mut. Hail Ins. Co., 168 N. W. 664. ing amended.-Richey v. Sovereign Camp of Woodmen of the World, 168 N. W. 276.
668(10) (Iowa) In an action under a pol- icy covering the death of a mare by lightning, evidence that the mare was killed by lightning719(4) (Iowa) Benefit society's change in held to justify submission of the question to by-laws cannot authorize reduction of benefit consent that constitution and by-laws may be the jury-Carpenter v. Security Fire Ins. Co., agreed upon, though member has given general 168 N. W. 231. amended.-Richey v. Sovereign Camp of Wood- men of the World, 168 N. W. 276.
668(15) (N.D.) An insured who had un- knowingly signed an agreement to accept a less amount than that orally agreed upon held not under the evidence as a matter of law to have waived his right of action by accepting the pay- inent, the question of waiver being one for the jury. Mathias v. State Farmers' Mut. Hail Ins. Co., 168 N. W. 664.
XX. MUTUAL BENEFIT INSURANCE.
724(1) (Neb.) A fraternal beneficiary soci- ety is not estopped from pleading ultra vires as to contract which is beyond the powers con- ferred upon it by the statute (Rev. St. 1913, §§ 3295, 3296), under which it is organized.--Haner v. Grand Lodge A. O. U. W. of Nebraska, 168 N. W. 189.
726 (Mich.) The constitution of a mutual benefit association embodying the contract be- tween the association and a member, having (A) Corporations and Associations. 693 (Iowa) All by-laws of benefit society been prepared for or by the association, is must be reasonable and consistent with princi- construed most strongly against the associa- v. Cigar Makers' International ples of law as determined by courts when case tion.-Smith is properly before them.-Richey v. Sovereign Union of America, 168 N. W. 954. Camp of Woodmen of the World, 168 N. W.726 (Neb.) Ambiguous expression in con- tract should be construed most strongly against 276. 693 (Neb.) A by-law of fraternal beneficiary the insurer, because he writes the contract.- society contravening the statute (Rev. St. 1913 Kane v. Brotherhood of Railroad Trainmen, 168 §§ 3295, 3296), under which it is organized, is N. W. 598.
For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER
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