he was not entitled thereto. He appeals from loss plaintiff sustained in the amputation the order denying a new trial. of his foot was not covered by the policy, The policy, made a part of the findings, pro- because it took place more than 90 days after vides that defendant "does insure, subject to all the provisions and conditions herein contained or indorsed hereon, the person (herein called the insured) named and described in the aforementioned schedule ** * against disability or death resulting directly, independently and exclusively of any and all other causes from bodily injury effected solely through external, violent and accidental means. Part 1. If any one of the following losses shall result solely from such injury within ninety days from the date of the accident, the company will pay in lieu of other indemnity, for loss of either foot by severance at or above the ankle," $1,875. The court found that: On or about May 22, 1915, plaintiff "received a bodily injury effected through external, violent, and accidental means by which one of his toes on his left foot was cut and injured; that said wound did not heal, and on or about August 17, 1915, said toe and foot became and was infected because of said cut and injury; that said infection progressed and continued until the 25th day of September, 1915; that by reason thereof plaintiff was obliged to submit to an amputation of said left foot above the ankle; that said amputation and loss of said foot was due solely and entirely to the said aforesaid injury received by plaintiff to said toe on the left foot." It was further found that plaintiff failed to give written notice of the accident and injury as required by the policy, and that on or about November 8, 1915, defendant denied all liability. The bodily injury effected through external, violent, and accidental means which plaintiff met, and upon which the right of recovery must be predicated, occurred on the 22d or 25th day of May, 1915, when the chisel of a chiropodist who was treating an ingrowing toenail slipped and made a small cut or slit in the toe. The infection which happened to set in later is not a risk covered by the policy, nor is the amputation, unless the same can be traced to and based upon the accident in May. From the provision already quoted it is plain that the loss of the foot must have occurred within 90 days after the accidental injury of May 25, 1915, in order to give rise to indemnity under the policy. The language is so definite and clear in this respect that there is no room for construction. The finding is also clear that the accident was the slipping of the chisel in May, and not the infection in August. The loss of the foot, or the amputation thereof, took place September 25, 1915, more than 120 days after the accident. The loss is therefore not covered by this policy. 1 Corp. Jur. 469, § 179; Palmer v. Commercial Ass'n, 53 Hun, 601, 6 N. Y. Supp. 870, affirmed in 127 N. Y. 678, 28 N. E. 256; Hagadorn v. Masonic Accident Ass'n, 59 App. Div. 321, 69 N. Y. Supp. 831; Brown v. United States Casualty Co. (C. C.) 95 Fed. 935; and Perry v. Investment Co., 99 Mass. 162. the accident, we need not consider the questions raised concerning notice to defendant of the accident and loss or the waiver thereof, for, in any event, the order for judgment must remain as it now is. The order is affirmed. 2. APPEAL AND ERROR 1061(2)-DENIAL OF MOTION TO DISMISS-CURE OF Error. Error in denying a motion to dismiss when a plaintiff rests is cured if the evidence warrants a submission to the jury when both parties rest. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4209.] 3. WITNESSES 387, 394-CROSS-EXAMINATION-REDIRECT EXAMINATION-SCOPE. Prior written or verbal statements of a witness inconsistent with his testimony on the stand may be brought out in cross-examination; but it is not permissible on redirect to rebut such inconsistent statements by others of a contrary tenor made by the witness on other occasions. [Ed. Note. For other cases, see Witnesses, Cent. Dig. 88 1228-1232, 1258, 1259.] 4. EVIDENCE 244(7), 471(28)-TRIAL ~75 -ADMISSIBILITY-CONCLUSION-OBJECTIONS TO. Other assignments of error on rulings at the trial are without merit. Cent. Dig. §§ 923, 2173; Trial, Cent. Dig. §§ [Ed. Note.-For other cases, see Evidence, 171-182, 252.] 5. NEW TRIAL OF PARTY. 28-GROUNDS-MISCONDUCT It cannot be held that the court erred when denying a new trial for alleged misconduct of the prevailing party. [Ed. Note. For other cases, see New Trial, Cent. Dig. § 42.] Appeal from District Court, St. Louis County; Wm. A. Cant, Judge. Action by the George Gorton Machine Company against Peter Grignon, Jr., trading in business as the Marine Iron & Shipbuilding Works. Judgment for plaintiff, motion in the alternative for judgment or a new trial denied, and defendant appeals. Order affirmed. Leo A. Ball, of Duluth, for appellant. Courtney & Courtney, of Duluth, for respondent. HOLT, J. Action to recover the unpaid purchase price on certain machines alleged to have been sold and delivered to defendant by plaintiff. Verdict for plaintiff. Defendant Having reached the conclusion that the appeals from the order denying his motion For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes in the alternative for judgment or a new tion in this litigation is sufficiently analogous trial. [1] Plaintiff, a corporation, manufactures and sells machines used in making shells. Defendant, in business in Duluth, desired such machines, and sent a representative to plaintiff's factory at Racine, Wis., to investigate the merits of plaintiff's make, and purchase, if satisfactory. He arrived at Racine on a Sunday, and on the same day made an arrangement to procure 20 machines, which were afterwards made ready, shipped to and received by defendant at Duluth, Minn. The agreed price was $12,000, whereof $6,500 was paid. The balance is represented in the verdict. The defense was that plaintiff had sold the machines to one E. C. Bacon, who in turn sold them to defendant, and that he had fully paid for them. to that of a party in interest so as to make applicable the rule stated in Marvin v. Dutcher, 26 Minn. 391, 4 N. W. 685, and Ikenberry v. New York Life Ins. Co., 127 Minn. 215, 149 N. W. 292, namely: "An admission by a party against his interest at one time cannot be rebutted by proof of a statement made in his own favor at another time." The witness had full opportunity then and there on the witness stand to explain the statements made in the criminal complaint, but obviously it is not expedient on redirect to go into statements made at other times for such explanation. [4] Defendant had called out the conversations between Bacon and Mr. Gorton, plaintiff's president, and cannot well be heard to ed defendant in the transaction; if he did, Gorton could certainly testify to what Bacon said and did therein. Manifestly there was no error in sustaining the objection to this question asked the witness Geistman: "Did` you give plaintiff any order for these machines?" It called for a conclusion which was for the jury. object to the whole thereof. Moreover, durNothing will be gained by giving a synopsis ing the course of the trial testimony was adof the evidence bearing upon the issue wheth-duced tending to prove that Bacon representer the sale by plaintiff was to defendant direct or to Bacon. The record is such that the jury could have found either way without the verdict being subject to even criticism from an appellate court. No complaint is made of the manner in which the learned trial court submitted the issue to the jury. The verdict must therefore stand, unless prejudicial error was made in rulings upon the admission or exclusion of testimony or in refusing a new trial for misconduct of the prevailing party. [2] We have already said that the evidence made the sale from plaintiff to defendant a jury question. This being so, the error, if any, in denying defendant's motion to dismiss when plaintiff rested was cured. Dunnell's Minn. Dig. § 9760; Busack v. Johnson, 129 Minu. 364, 152 N. W. 757. [3] Error is assigned upon the reception in evidence of a criminal complaint sworn to by one Geistman, the representative of defendant who ordered the machines or had the original transaction with plaintiff. The trial developed that Bacon had received $4,500 from defendant on account of these machines which had not been turned over to plaintiff. Geistman was called as a witness by defendant, and gave testimony tending to show the sale by plaintiff to have been to Bacon instead of to defendant. On cross-examination this criminal complaint, charging Bacon with having embezzled the $4,500 mentioned of defendant's money, was received in evidence. No doubt, this was proper cross-examination. It was a prior statement of the witness inconsistent with his statements on the stand; for, if defendant purchased the machines from Bacon, this money paid on the machines belonged to Bacon, and defendant had nothing to say concerning its disposition. Neither was there error in refusing on redirect to permit Geistman to testify to what evidence he gave in the preliminary examination had a month later, after Bacon's arrest under the complaint. Geistman's posi [5] Error is also assigned upon the court's refusal to grant a new trial for misconduct of the prevailing party. It was claimed that during the trial Mr. Gorton approached one juror in "an affable manner and made an effort to talk to" him, but the juror walked away, and that he was observed talking to another juror in the corridor of the court house. Both the juror and Mr. Gorton admit that some words passed between them, but wholly foreign to any issue in the case. In the judgment of the trial court the incident was considered not of sufficient importance to raise a suspicion that prejudice resulted from this failure of the juror and Mr. Gorton to observe the usual proprieties of a trial. We have no reason to question the soundness of the trial court's judgment in this respect. tinguished, that such contract had been partly performed by defendant, and that he was ready, willing and able to completely perform his part thereof. [Ed. Note. For other cases, see Compromise and Settlement, Cent. Dig. § 95.] Appeal from District Court, Martin County; James H. Quinn, Judge. Action in replevin by De Forrest Ward against Albert R. Allen. Judgment for defendant, motion for judgment non obstante or for a new trial denied, and plaintiff appeals. Remanded, with directions to grant a new trial. John E. Palmer, of Fairmont, for appellant. Putnam & Carlson, of Blue Earth, for respondent. HOLT, J. Action in replevin. Defendant had a verdict, and plaintiff moved in the alternative for judgment non obstante or a new trial. The motion was denied and this appeal resulted. The parties were partners in the practice of law for five years. Upon the dissolution of the partnership the defendant gave to plaintiff his promissory note for $750, agreed to pay the firm indebtedness, with one exception, and took over the firm assets, including a law library and office furniture. About a year thereafter, or in September, 1908, to adjust the amount then due on the $750 note and upon the firm indebtedness, which plaintiff had in the meantime taken up, defendant gave plaintiff his three promissory notes in the sum of $1,500 each, secured by chattel mortgage upon the law library and office furniture. Default was made in the payment of these several notes, and on September 1, 1911, the parties agreed that upon the four notes mentioned there was then due $6,000. To evidence this indebtedness defendant gave plaintiff two promissory notes, one for $1,500, due December 1, 1912, and one for $4,500, due five years from that date, both bearing 6 per cent. interest. So far there is no material dispute between the parties. It appears that two chattel mortgages upon the property mentioned were executed at the time these two notes were made. The one securing the $1,500 note defendant admits; but the one purporting to secure the $4,500 note, being the one upon which plaintiff predicates his cause of action, defendant denies. The complaint alleged the ownership and right to the immediate possession of the goods described in the mortgage, their wrongful detention by defendant after demand, and the value. The answer was a general denial, except the value of the property was admitted in the amount of $1,500. The court instructed the jury that defendant was entitled to a verdict if they found there had been no delivery of the mortgage, and also the same verdict should be returned if the facts were as claimed by defendant in respect to the compromise hereinafter referred to. [1] The main contention of appellant is that the verdict is not justified by the evidence under either of the two defenses submitted to the jury. The particular assignments of error challenging these defenses relate to the charge. It is claimed the court erred in submitting the question of delivery of this $4,500 chattel mortgage to the jury. A perusal of the testimony leaves us with the conviction that the verdict cannot be sustained if based upon nondelivery. Defendant in his testimony admitted his signature to the mortgage, declared his implicit confidence in the integ rity of the notary who took his acknowledgof the instrument. It is true he stated that, ment, and of the witnesses to his execution although the signature is his, he never consciously signed or acknowledged the execution of the mortgage, and further made the bald statement that it was not delivered; but we think that should be held on a par with the statement in respect to the signing and acknowledgment. The fact remains he did sign and acknowledge the instrument, and it is now in the hands of the grantee. If the signing and acknowledgment were unconsciously done, so must have been the delivery. The unconscious part must refer to the present recollection. After the lapse of five years the details of a transaction fade readily from the memory, especially of a busy lawyer who almost daily has to do with the execution and delivery of instruments. Defendant was a lawyer of many years' standing. He labored under no mental disability. Apparently ample time was taken in adjusting the business both parties had in mind. It is inconceivable that defendant would unconsciously execute two chattel mortgages if he intended to execute but one. If he executed the one for delivery, the other must have been executed for the same purpose. Plaintiff testified to a delivery, and the legal presumptions as well as the surrounding circumstances are so strongly corroborative thereof that we conclude no issue was raised for the jury upon this defense. Jenson v. Chicago, Milwaukee & St. Paul Ry. Co., 37 Minn, 383, 34 N. W. 743; Tucker v. Helgren, 102 Minn. 382, 113 N. W. 912; Murray v. Foskett, 114 Minn. 44, 130 N. W. 14. This error will necessitate a new trial; for it cannot now be ascertained upon which submitted defense the verdict rests. It cannot be held that plaintiff has waived the right to challenge the defense now discussed by requesting an instruction as to the quantum of proof necessary to overcome the presumption of delivery. [2] But plaintiff claims that he was entitled to a directed verdict, and that the defense of equitable estoppel, so called, submitted by the court was not made out. We think the evidence made a case for the jury upon this branch of the defense. The situation on May 7, 1915, was this: Plaintiff had placed the $1,500 note in judgment, ex faction, so far as defendant was concerned, in that the promise of defendant to perform the compromise or new contract, that is, to pay the money and turn over the Virgens note and mortgage, had been accepted as a satisfaction of the accord. In section 98, 1 Corp. Juris, 567, it is said: ecution had been returned unsatisfied, and tents and purposes an accord and satisan order in supplementary proceedings had issued requiring defendant to make a disclosure concerning his property at 11 o'clock that day. The parties had previously met to adjust the matters between them, and had progressed so far that a meeting on this date had been arranged for in defendant's office at Fairmont. Early in the forenoon plaintiff arrived, and also Mr. Putnam who was to as sist defendant. The judgment mentioned, with costs, amounted to nearly $1,800. The $4,500 was unpaid, but not due. The se curity was insufficient, and the maker of the note of doubtful financial responsibility. Defendant testified that it was then and "It is too well settled to admit of doubt that, if the promise or agreement itself, and not the performance thereof, is accepted in satisfaction based on a sufficient consideration, the demand is of the demand, and the agreement to accept is extinguished and cannot be the foundation of an action." And many cases are cited illustrating the rule. there agreed that he should pay plaintiff Finn, 185 N. Y. 508, 78 N. E. 175, 12 L. R. A. Among these we find Bandman v. in full for all claims held against him $4,250. (N. S.) 1134, which might be said to present Of this sum $1,250 should be paid in cash, facts of sufficient similarity to those here and the balance should be paid by plaintiff disclosed so that the same legal theory there receiving a promissory note of one Virgens applied ought to govern here. for $3,000 secured by an assignment of a Chicora Fértilizer Company v. Dunan, 91 Md. See, also, one-third interest in a second mortgage of 144, 46 Atl. 347, 50 L. R. A. 401. The jury $10,000 upon Virgens' farm. An additional might well find that plaintiff accepted the sum should also then be paid plaintiff equiva-promise of defendant to pay the $1,250 and lent to 3 per cent. per annum upon the Vir-assign the Virgens note and mortgage with gens note from that date to its maturity. the additional 3 per cent. as a full satisThis agreement having been concluded, Mr. faction of the compromise. If such were the Putnam, for defendant, went with plaintiff fact, none of the old claims embraced in to the bank, procured $1,750, which was turned over to plaintiff, who was to retain $1,250, was to satisfy the judgment and chattel mortgages, and return to defendant's office, where he was to receive the Virgens the compromise can be enforced. The cirof experience points to the conclusion that cumstance that both parties were lawyers their promises and agreements in the new contract were intended to satisfy and supersede the old claims as compromised. The $1,750 was, no doubt, turned over and received upon the new contract, and neither could have harbored the thought that it was to apply upon the prior claims. We think demakes a question of fact to be decided by fendant's evidence on this branch of the case the jury under proper instruction. note and mortgage and return to defendant any balance of the $1,750 that might come to him upon a proper computation of the additional interest plaintiff was to have on, the Virgens note. Plaintiff went to satisfy the note and mortgage, and returned to defendant's office when the Virgens note, with proper assignment of the mortgage securing it, as agreed, was tendered, but in the meanNothing need be said on the exclusion of time the parties seem to have been unable to Exhibit H. If the exhibit be deemed mafigure the additional interest plaintiff was to have upon the Virgens note so as to arrive terial, we see no reason why a somewhat better foundation for its introduction may at the same result. Thereupon plaintiff refused to accept the Virgens note and mort- not be readily furnished at a future trial. gage, and left without offering to return the The assignments of error directed against money he had received. Plaintiff's version the charge of the court require no discussion, of the alleged settlement is unnecessary to except to say that we fail to see how a dehere state. It differs materially from defend-fense of equitable estoppel can be worked ant's, but the jury could have found defendant's true. According to that a new contract was entered into based upon an adequate consideration. An apparently uncollectible judgment of $1,800 and a note of $4,500 equally doubtful except as both were secured by chattel mortgages on property worth no more than $1,500, in defendant's opinion, the note not due until a year and four months there after, were compromised and settled for $4,250 in cash and note adequately secured as already stated. From these facts the jury might conclude that there had been to all in out. Since defendant professes to be anxious and willing to carry out the new contract, it is not amiss to suggest that he place his offer so to do in such shape at the trial of the case that plaintiff may be assured of what is still coming to him without further litigation. The cause is remanded, with direction to grant a new trial. QUINN, J., took no part in the decision of this case. CLAPPER v. DICKINSON. (No. 20455 [235].) (Supreme Court of Minnesota. July 11, 1917.) (Syllabus by the Court.) 1. MASTER AND SERVANT 228(2)—INJURY TO SERVANT-FEDERAL SAFETY APPLIANCE ACT-LIABILITY OF INTERSTATE CARRIER. An interstate railway carrier is liable in damages to an employé injured in the discharge of his duties, regardless of the position he may have occupied at the time he was injured, where the carrier's failure to comply with the federal Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1916, 88 8605-8612]) is the proximate cause of such injury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 671.] 2. MASTER AND SERVANT 111(1)-PERSONAL INJURY-DEFECTIVE COUPLER. To recover for injury arising from a defective coupler, it is not material that the employé did not receive the injury in attempting to effect a coupling between cars. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 215, 255.] 3. Appeal and ERROR 1070(2)-HARMLESS ERROR-ISSUES. Where the special findings of the jury disclose the basis of the general verdict to be one for which, under the pleadings and evidence, defendant is liable, errors of the court in respect to other issues upon which defendant might or might not be liable are immaterial and no ground for a new trial. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4232, 4233.] 4. MASTER AND SERVANT 278(6)-ACTION FOR INJURY-VERDICT-EVIDENCE. The evidence supports the verdict, general and special, and the record presents no reversible error. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 962.] Appeal from District Court, Hennepin County; Joseph W. Molyneaux, Judge. Action by George H. Clapper against Jacob M. Dickinson, as receiver. Judgment for plaintiff, and from an order denying his alternative motion for judgment or a new trial, defendant appeals. Order affirmed. Stringer & Seymour, of St. Paul, for appellant. George C. Stiles and D. C. Edwards, both of Minneapolis, for respondent. BROWN, C. J. The Chicago, Rock Island & Pacific Railway Company, a corporation organized under the laws of the state of Illinois, operates a line of railroad in and through several adjoining states, and as such is engaged in interstate commerce, and subject to the federal Safety Appliance Act. Defendant, Dickinson, is operating the road as receiver. Plaintiff was in its employ as a switching foreman at Moline, Ill., and at the time in question was engaged with other employés in making up trains for the interstate service of the company. He received an injury while engaged in such work, by reason of the alleged defective condition of the coupler attachment of one of the cars being switched about the yard, and brought this action to recover therefor, charging such defect in the coupler and other items of alleged negligence as the basis of his right of action. He had a verdict, and defendant appealed from an order denying his alternative motion for judgment or a new trial. The facts which the evidence justified the jury in finding, stated without unnecessary detail, are substantially as follows: Plaintiff was superintending and assisting in making up interstate freight trains in the Moline yards. There are numerous yard tracks upon and over which the switching operations in making up such trains were carried on. In the course of the work a car loaded with pig iron, which will be designated as the pig iron car, was switched upon track No. 4, and there held in position by a wooden block in front of the wheels. The track is upon a grade, and that was the usual method of holding in place cars switched thereon. The next movement was the switching of another car, designated as the Missouri, Kansas & Texas car, upon the same track, with the view of coupling it onto the pig iron car; both cars to form a part of the train being made up. Each was equipped with the automatic coupler which operates, when in proper order, by being brought together with sufficient force to cause the parts thereof to perform their functions. The car was "kicked back" upon that track, but when it came in contact with the pig iron car a coupling was not effected, by reason, as plaintiff claims, of the defective coupler on that car. The force of the impact was sufficient, however, to move the pig iron car enough to permit the blocking to fall from the rail and release it from its position; the brakes thereon were not set. The Missouri, Kansas & Texas car started down the grade, and the switchman in charge of this operation attempted to stop it by placing in front of the wheels thereof the block that had been released from the pig iron car as just stated. This method proved ineffective, the block fell from the rail, and the switchman then climbed to the top of the car, the same being an ordinary box car, and finally brought it to a stop by means of the hand brake thereon. Plaintiff was present when these operations were in progress, and took part therein. He noticed the failure of the couplers to work, and also that the Missouri, Kansas & Texas car was running down the grade with the switchman at the brake attempting to stop it. He supposed from the fact that the switchman was "hanging onto the brake" that for some reason it could not be set, and he picked up a block, and when the car was finally stopped placed it in front of the wheels to hold the car in place. In the meantime, a fact unknown to plaintiff, the pig iron car, having been released by the impact when the two cars came together, was also running down For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |