The Bismarck Tribune Newspaper, July 7, 1923, Page 2

a PAGE TWO THE BISMARCK TRIBUNE i} | | | SUPREME C COURT f o FROM WARD COUNTY Ella R, Coughlin, as Adminis- tratrix, | Plaintiff and Respondent. vs. Aetna Life Insurance Com- pany, Defendant and Appellant. | SYLLABUS: “ZT. Following ber Company v. Donahue, 43 N. 287, 175 N. W. 205, and prior de sions, it is held that under Section | 7966, C. J. 1913, an action is termin- nated when the time for an appeal from the judgment expired; and | the trial court has no — authority thereafter to entertain a motion fo judgment —notwit dict or for a new trial, over the ob- jection of the adverse party, unless the final character has been pended by proceedings commenced | within the time allowed by law for appeal from the judgment 2 The final character of judgment is not suspended under) the provisions of Chapter 133, Laws { 1921, | motion for a direct: | ed verdict is made upon the trial of the cause. Appeal from the District Court of Ward @ounty, Burr, ¢. Defendant} appeals from an order denying. its motion for judgment not ing the verdict or for s new AFFIRMED. : Opinion of the Court by ianson, J. Bovey-Shute Lum nding the v sus-| the] Christ- wrence, Murphy Nilles, of D., for Appellant Murphy & Nash, for Respondent. of Minot, From Ward County Wanie S. Fahler, as duluth of the Estate of Leo S. ceased, Plaintiff and Renionde nt City of Minot, a municipal corpor- ation, Defendant and Appellant. SYLLABUS qd) tion 2 of the pledsaan) Compensation Act (Chapter : sion Laws of 1919), which aetine “employment” as including empl ich defines “em- ning every person din a hazardous employment under any appointment or contract of hire, is construed and HELD to embrace policemen employed by a of the same act, ides that employers who with the provisions ment of premiums shall not be entitled to the benefits of the act during the period of non-com- ut shall be liable to their suffered by reason of injuries sustained in the course of employment,” ete. and that they shall not avail themselves of the defenses of the fellow servant rule, assumption of risk and contri- butory negligence, is construed in the light of cognate provisions and of the policy manifested by the entire act, and it is HELD that a non-com- plying employer is liable to an in- jured employee within the act, or to his personal representattves in case of death, where the damages were suffered by reason of injuries sustained in the course of employ- ment, regardless of questions of fault, (3) Where a city had not com- plied with the Workmen's Compensa- tion Act and a policeman employed by it was killed in the course of his employment, the city is liable in damages to the personal representa- tives of the deceased on account of the death so occurring. Appeal from the District Court of Ward County, Hon. Geo, H. Moeil- ring, Ju AFFIRM Opinion of the Court by Birdzell, J which pro} fail to co requiring John J. Coyle, City Attorney, and McGee & Goss, Minot, North Dakota| | Attorneys for Appellant F. B. Lambert and E. R. Sinkler, Minot, North Dakota, Attorneys for Respondent. From Ramsey County Ole Torgerson, Plaintiff and Ap- pellant. vs. Minneapolis, St. Paul and Sault Ste. Marie Railway Company, a Corporation. « Defendant and Respondent. SYLLABUS; 1. The demurrer admits the truth of all well pleaded facts, but not necessarily the inferences or con- clusions drawn therefrom, tho alleg- ed in the complaint; facts presumed or-reasonably or netessarily inferred from those alleged are also admitted Legal. conclusions or inferences of fact, which are not presumed) or which. may not be reasonably or necessarily inferred from the facts alleged, are not admitted by the demurrer. 2. Where plaintiff, a section hand, was directed to unload grain doors piled in three piles in a box car, and where, after removing the cen- tral ‘pile, one of the others toppled over, injuring plaintiff, it is held, for reasons stated in the opinion, that such facts, appearing upon the face of the complaint, do not con- stitute actionable negligence on the part of the defendant, based upon, (a) failure to furnish a reasonably safe place in which to work, or (b) to instruct and warn servant as to 4he method of work, or ‘of the danger that a pile might fall when * the‘one in the middle was removed. 3. Where it appears, on the face 4 bf the complaint, that the risk or @anger, if any, arised by teason of the actual prosecution of the work, because of change in conditions, and the manner in which the work is Irom time to time prosecuted, the le that the master must furnish the servant a reasonably safe place #0 Work has no application. The duty to warn exists only Jedge of risks or dangers, or should, im the exercise of ordinary care for tvantis safety, have such know- ie 8 not within the knowledge of rvants of discernible by the latter, in the exercise of ordinary re. There is no liability for fail- Bre to anticipate danger to a ser- ant or to warn him thereof, unless THE SERVICE OF A FAILURE By J. H. PUELICHER President American When Gov. ernor Walton of Oklahoma sign- ed recently the repeal of the bank deposit guaranty law in that state, he performed an economic serv- {ce to the whole country. might even say that Oklahoma In passing that law, enduring its evil consequences for fifteen years and then frankly cast- ing it aside as a failure, has per- formed an economic service to the nation. There could be no more convincing argument against the passage of similar laws in other states than Oklahoma’s disastrous experiment. The Oklahoma guaranty law was the first of its kind. It was enact- ed in response to the panic of 1907. But experience has only proved again that there is no sub- stitute for sound banking. Relying on the fancied security of the guar- inty law, people entrusted their J. H. Puelicher First Vice-President, Amer! Every banker and business man in the country is in- terested in the farm from an- other viewpoint than merely a place to ralse farm products and livestock. Above all the farm is one of she places where we can best bring up our boys and girls. Thousands of men and boys each year are flocking to the city. Clerks in the city are barely eking out an exist- ence and they cannot expect to receive much more in the way of compensation. But back on the farms are men working for a reasonable return, and in addition they have their houses, the wonderful sunshine above in the daytime, the wonder- ful fresh air and all the things that the soil produces. The boy who is raised on the firm will have an entirely different aspect of life and approach the various prob- lems with which he has to deal in later years in a different way from the boy who {fs raised in the city. In this period of unrest we are Walter W. Head worn or instrument a servant of ord- inary intelligence and experience, with s faculties of observation un- impaired, as to the operation of na- tural laws. 6. The allegation did not “know or appreciate the danger to himself in the sudde: shifting of the doors” is not ne sarily sufficient to make a case for the jury. If a person of ordinary prudence, of the age and experience of the plaintiff, in the same or a similar situation, would have known and appreciated the danger the s nt will be deemed, ter of law, to have assumed the 7. When.ahe complaint, upon its face, fails to show actionable neg- ligence on the part of the defendant, and affirmatively shows that the risk was an ordinary one, #hd was therefore assumed by the plaintiff, a demurrer thereto should be s ained. Appeal from an order of the Dis- trict Court of Ramsey County, Hon, Buttz, Judge. ‘Opinion of the Court of Jogn: J. Bronson, Ch. J., specially’ curring. that plaintiff s= ‘They are not prize-winning chil- fren, 1 perhaps, judged by American standa: ut their mothers are oroud of t! en and proud of the fact shat they are being photographed by an American Red ross worker in 3eres, Seres is in Macedonia and the children are ony a few of ee e tefugees who are housed in Jimsy batracks there and fed by the Americat: Red Cross. It is doubtful if there would be y youngsters visible were it not at America had come to the rescue and sent to Greece xf American milk. makesthe little 5 eg and res the cl ay master’s knowledge of the d opportunity to have knowledge thereof, pevine in mind the taster’s and uty to make inquiry, is ~ superior vA that of.the servant. & It is the duty of the master to een int, not bape eae a During the ter and early sprin; merica: :Red Cross feeding in a eat quantities burning of Sm; liste milk that {the Greek arm! valet tant fall boys’ legs look so |them were abe Pie little girls |sclves frm tl their, AP je Ja ee alore, but all nd the islands that onthe babies’ lives pane mothers have by twos | pi ‘thousands and by in- {30 and ican [tae to Bankers Association banking to many who were un fit for the trust. Bank failures have been so many that the fund, supposed to guarantee deposits, | created by assessments on banks, | was long ago depleted. i It is estimated that with total abilities created under the law in the form of warrants and sums ow. ing to depositors amounting to | $12,000,000, there are in the hands of the Banking Board uncertain | assets of nominally $15,000,000, | ranging in value from zero to only {| i thirty or forty cents on the dollar, | resulting in a deficit of many mi- | Non dollars. Sound, well-managed | banks have been heavily taxed by assessments to the fund, and the maximum amount that could be assessed on solvent banks {s in- sufficient to cover the deficit. It has been well said that guar- anty laws make for looseness in banking methods, and saddle on the competent and honest the sins of the incompetent and dishonest. Let us have only laws that ratse the standard of banking. Let us have no laws that debase it, THE BEST THE FARMS ae By WALTER W. HEAD ‘Ican Bankers Association cerainly vitally interested in rear ing both on the farms and in the cities boys and girls with the Proper outlook for the futare, im bued with the belief that the ao tivity in which they are engage@ is, after all, something that will Provide them both with the neces: sary things of life and with happ!- ness. For in happiness there is contentment, and in contentment in America there is safety for our institutions. Every single banket should feel thet the problems his farmer cus- tomers have to contend with are not only the farmer's probleme, but his problems as well. He should |. feel not only that the farmer must be prosperous so that he can de- posit more in his bank, giving the banker more to loan and thereby increasing his profits, but that also there is something which cannot be measured in dollars and cénts. It is the thought of rendering such service to their customers—regard- less of whether they are farmers, or men working in the shops, or big business men of the cities— that will bring not only Prosperity but contentment as well. Tho banker should take as his motto: “Who serves best profits most.” CE er ES Se RS Se ee AFFIRMED. L. R. Nostdal, Rugby, North Da- kota, Attorney for Appellant. Knauf & Knauf, Jamestown, North Dakota, on brief for Appellant. Flynn, Traynor & Traynor, Devils Lake, North Dakota, and J. E. Palm- er, Minneapolis, Minnesota, Attor- neys for Respondent. , FROM WARD COUNTY First National Bank of Glasgow, Montana, a foreign corporation taintiff-Respondent. vs. W. J. Carroll, SYLLABUS. In an action upon a promiss note where the defense was a ed that no consideration given and that the note was executed to secure bondsmen~upon an under- taking which had been discharged through litigation, it is held, for reasons stated in the opinion, that no dtfense to the note has been es- tablishe In District Court, Ward County, Lowe, J. Defendant has appealed from the judgment entered upon an order directing judgment notwith- Defendant-Appellant. American Red Cross Restores Roses to Cheeks of Children - Who Were Once Doomed to Di no less than 500, natalia ard Batam Torte, mos pg tg Coe gh without this feedinj ure By it "Bie £5 h eal 4 ol mi ‘ the fi F sack solid food 1 the fami the | bread an (S.\04 tice and corn but for the babies uicnly ‘wa! tm that was the most hi Amirali {site fetal all. e ref told, came to ede To ie rie { ates of thes since mai ie Ives It a Sri oe a) Ng AIC assed, i G program on Jui wil en ear will can America the gratitude 4 the ‘entire Greck pation | Wm. | found no valid lien to exist by rea- standing ui verdict. AFFIRMED Opinion of the Court by Bronson, Ch. J. J. E. Burke, Minot, N. D. Attorney for Defendant-Appellant. F. B. Lambert, Minot, N. D. Attorney for Plaintiff-Re&pondent. DECISIONS OF SUPREME COURT FROM HETTINGER COUNTY Regent Grain Company, Plaintiff and Appellant. ws. I. Sadler, et al, Defendants and Respondents. SYLLABUS: In an action to foreclose — mech- anic’s lien where the trial court son of alterations made in the date of making an Owner's Consent to a lien, it is held, for reasons stated in the opinion, that the findings of the trial court are supported by the evidence and that plaintiff is not entitled to a personal judgment inst the contesting defendant for the amount of:the debt involved. In District Court, Hettinger Coun- ty, Lembke, J. Action to foreclose a mechanics lien. Plaintiff has ap- ed from the judgment and an order denying a motion for a new trial. + AFFIRMED: Opinion of the Court by Bronson, Ch Jacobson & Murray, Mott, N. D. Attorneys for Plaintiff and Appell- ant. P. B. Garberg, Hettinger, N. D. W. F. Bruell, Redfield, S. D. Attorneys for Defendant. FROM BOTTINEAU COUNTY Bottineau County Bank, a corpor- ation, Plaintiff and Respondent. vs. Grant Stafford and Bella Stafford Defendants and Appellants. SYLLABUS: (1) A demand note taken by the creditor from the principal debtor is not a contract for an extension of time such as will discharge the ob- ligation of a surety for the same indebtedness. (2) In the absence of a notice under Section 6683, Compiled Laws of 1913, the creditor is not required to prdceed originally against the principal debtor, and where he holds a real estate mortgage secur- ing indebtedness and where he ob- tains judgment against the principal debtor, he is not required to ¢xhaust remedies on the mortgage or the judgment before proceeding agai the surety at the peril of being held to have exonerated the surety under. Section 6681, Compiled Laws of 1913.1 Appeal from the District Court of Bottineau County, Hon. W. J. Knee- shaw, Judge. AFFIRMED: Opinion of the court by Birdzell, J. J. J. Weeks, Bottineau, North Da. kota, Attorney for Appellants. W .H. Adams, Bottineau, North Da- kota, Attorney for Respondent. 4 From Adams County Mrs, Frank L, Gotchy, Plaintiff and Respondent, vs. North Dakota Workmen's Compensation Bureau, Defendant and Appellant, Syllabus: (1) Upon an appeal from a de- cision of the Workmen's Compensa- tion Bureau the cause ig a proceed- g not triable under the so-termed “Newman Act.” (2) Where a claim was filed by a claimant after 60 days from the time of the injury and death of an em- ployee but within one year after his death, and, where the Bureau re- ceived such claim and dismisseq the same upon the ground that thé de- ceased was injured in the course of an employment, it is held, for reasons stated in the opinion, that objections made concerning the time of filing are without marit. (3) Where no direct proof has been adduceg concerning the means by which an employee was injured in the course of an employment, and where his declarations made after the time of an alleged injury, estab- lished that his head received a blow through coming’ in contact with an iron pulley while he'was engaged in consteucting a unit in an elevator, it is held, for reasons stated in the opinion, that the qeclarations were properly admissable as part of the Tes gestae. , 4) Where an employee, a car- Penter, had previously appeared to be active and healthy and, while en- gaged in an employment, his head received a blow, more or less severe, from an iron pulley proximate, and where, thereafter, the deceased be- came ill., suffered an operation upon his cranium and thereafter died, and where, pursuant to a postmortem ex- amination and medical diagnosis made before and after his death, it ty Both Require Real Work. tight of the claimant thus establisk- ed upon appeal. (d) That, after judgment, thy Bu- reau may increase or decrease the award, ormay award a lump sum, all pursuant to and consistent with the judgment rendered and the contin- uing obligations and duties imp upon the Bureau, In district court, Adams county, Lembke, J. Proceeding proceeding, upon appeal from decision of Com- pensation Bureau to determine the right and the award of a claimant, The Bureau judgment in claimant's favor. Judgment modified and proceedings remanded. Opinion of the court by~Bronson, t | ChJ. C. A, Marr, LJ. che, Phillip Elliott, and Scott Cameron, attorneys for . Workmen’s Compensation Bu- E. Remmen, State’s Attorney ie INTER-STATE FAIR Fargo ND: July 9714 has appealed from a, s 3ournal American Bankers Association NOT SO EASY It ten’t Printing and Distributing Diplomas That Creates Knowledge Neither Wit! Printing and Distributing Paper Money Create Wealth. rol for Adams county, Hettinger, N. D., attorney fordefendant Compensation Bureau, ¥, M. Jackson, Hettinger, Attorney for Plaintiff and dent. BAIRD NAMED COMMISSIONER O. Baird of Fargo this after- oath of office as food commissioner and chem- , succeeding C. P, Guthrie of Far- go. The appointment was made by the administration. N. D., Respon- R. noon filed his WHITE LINEN White linen frocks are very cool and very smart now when made sleeveless and bound with some col- or. Drawnwork is also a popular adornment. heNorthwests Finest Cattle at the FARGO FAIR REDUCED RA/LROAD RATES Undertakers SATURDAY, JULY 7, 1923, Efficiency Abe lubrication of your motor is too rtant a matter for guess work. ie tis a vital influence on the life of your car. Proper oif means more power, greater mileage, and fewer re- lame Don’t take chances when you buy oil. / Havoline is the oldest brand of motor oil on the market. It has maintained To Dealers We are the distribu- tors of Havoline Oil in your district. We shall be glad to tell you how to be- come a Havoline Dealer, years. It isan oil of absolutely uniform character—an oil that lubricates your motor as it should be lubricated. When you need oil, think of Havoline, Look for the Havoline sign. Say « Havoline’. You will find new joy in driving your car. Quanrud, Brink & Reibold HAVOLINE 80.5. pat. o7e, ils ‘and Greases GREEN RIVER “The ‘Snappy Lime Drink’ A thirst Quencher that you'll like Other cooling suggestions s Root Beer Aunt Nell’s Ready Punch Maker Good. In All Fruit Flavors. 3rownie’s. Ginger Ale For Home Use. With a Mild Twang. At all Fountains and Store: Ask Your Grocer. American Fountain Supply & Products Fixtures—Glassware—Supplies, Saint Paul, Minnesota. Order From Your Distributor 318 Robert Street BUSINESS DIRECTORY WEBB BROTHERS Licensed Embahmer in Charge DAY PHONE 246 NIGHT PHONES 246-887 PERRY UNDERTAKING PARLORS Licensed Embalmer in Charge Night Pome 109 er the same ideal of quality for twenty ° Embalmers \_ Funeral Directors al Wnt appears that the deceased was suf- fering from a glioma which, through the superinducing cause of an ggter- ‘nal blow, might cadse a hemorrhage so as to occasion his death, it is held, for reasons stated in the opinion, that the question of the proximate cause of the employees death was one of f¥et and that the findings of the ttial' court in that respect should not be disturbed, (6) Where the deceased, a car- penter, was ‘intermittently employed by an elevator company in doing its carpenter work and’ general repair work and prior to the time of his injury had been engaged for some 40 days in constructing a unit or leg, tor an elevator and doing some other general repair work, and where such carpenter was employed by the hour and his methods of ptosecuting the work were in some ré subject to the control: of the elevator com- pany, it is held, for teasons'stated in the opinion, that the decedent, at the time of his injury,’ was an em- ‘a| ployee of the elevator company en- gaged in the course of its business. (6) Upon an appeal from the de- Some «| cision of the Compensation Bureau, it is held, for reasons stated in the Bea evinin: (a) That the ‘court has the power a determine the right of the claim- ant and to fix the compensation with- Bold the limits ligsestlen im the Com- pensation att. 4 (b) That th court. has not tne ex: press power to-amard a lump sum. (c) That, after judgment, the Bu- reau may not deny or reverse the \ WOO WT Wat of their former volume. be cited. - ‘Dealers can tell a similar story. The number of makes carried of each item. have shrunken to a very few—the best known and most frequently called for. have changed their point of view; they no longer stock lightly with many brands, but substantially with a few. WTAGT AGT ACTING) NON NCT NTE TROTAETACTAG ING FATT AGTACTAGTNETAC How Business Depres- sion Tests Good-Will Many a manufacturer during the past two years has had an opportunity to measure as never before the real worth of his advertising investment. He has seen his trade - marked line ‘keep up in gales and his unadvertised goods shrink to a small fraction Innumerable instances could Dealers Quick turnover is their only salvation in a depression and their real source of profit in a prosperous period. Published by the ‘Bismarck Daily Tribune in co-operation with’ The American Association of A! vertising Agencies. NWA \Wat Worm NW Nu ay by Ay iy aca Wee