not error to charge the jury that he cannot recover if the defendant
made presents to her, and gave her other attentions, with the con-
sent of the husband, the defendant having no evil intent, and not
having had carnal knowledge of her, although she conceived a fond-
ness for him, as a consequence of such acts. (Adams v. Main, 266.)
6. INSTRUCTIONS.-IN AN ACTION FOR THE ALIENATION
OF A WIFE'S AFFECTIONS, it is not error to charge the jury that
no inference is to be drawn for or against either party from the fact
that the wife has not testified. She is, under the statute, incom-
petent as a witness in such an action. (Adams v. Main, 266.)
7. HUSBAND AND WIFE - LOSS OF SERVICES. - The fact
that a wife lives with her mother, and that her husband is not
able to support her in her injured condition, does not prevent him
from recovering for the loss of her services, caused by an injury to
her through the negligence of a third person. (Bowdle v. Detroit
etc. R. R. Co., 366.)
8. HUSBAND AND WIFE-DAMAGES FOR LOSS OF SER-
VICES.-A husband suing to recover for an injury sustained by his
wife through negligence, and alleging that since the accident he has
been deprived, and during the life of the wife will be deprived, of
her fellowship, society, aid, comfort, and assistance in his domestic
affairs, can recover only the value of such services as the wife
would have been likely to render in the discharge of her domestic
duties. (Bowdle v. Detroit etc. R. R. Co., 366.)
See Homesteads, 3-6; Marriage and Divorce.
INDEBTEDNESS.
See Municipal Corporations, 4.
1. OBSCENE PICTURES. - A negative from which an obscene
picture may be made is a picture, and sitting for such negative is
procuring it. (People v. Ketchum, 383.)
2. OBSCENE PICTURES-INTENT.-Evidence that the person
informed against sat for a negative from which an obscene photo-
graph was produced, without more, is not sufficient to justify a con-
viction, under a statute making it an offense to procure any obscene
picture for the purpose of sale, exhibition, loan, or circulation.
(People v. Ketchum, 883.)
See Bills of Lading; Checks, 1; Negotiable Instruments, 6–8.
See Master and Servant, 3, 8, 9
INFORMERS.
See Penalties, 3, 4.
1. TRADE NAMES.-ANY SIMILARITY OF NAME likely to de-
ceive or mislead an ordinary unsuspecting customer, and divert and
secure his trade from the person who established a tradename,
is a fraud which may be restrained by injunction. (Weinstock v.
Marks, 57.)
2. TRADE NAME-INFRINGEMENT—INJUNCTION.-If one
tradesman resorts to the use of any artifice or contrivance for the
purpose of representing his goods or his business as the goods or
business of a rival tradesman, thereby deceiving the public by caus-
ing them to trade with him when they intended to trade, and would
have otherwise traded, with his rival, he commits a fraud which may
be restrained by injunction. (Weinstock v. Marks, 57.)
3. TRADE NAMES AND BUILDINGS - INFRINGEMENT.-
When one has built up a particular business under a certain name
in a house of a certain style of architecture, another engaged in a
similar business, who adopts a similar name, and erects a building
of precisely similar architecture, for the fraudulent purpose of
drawing away the customers of the other by such deception, he may
be restrained by mandatory injunction, and compelled to distin-
guish his place of business in some mode or form sufficient to indi-
cate to the public that it is a different place of business from the
other. (Weinstock v. Marks, 57.)
4. INJUNCTIVE RELIEF MAY BE GRANTED TO PREVENT
A LANDED PROPRIETOR FROM CAUSING filthy and contami
nated water to percolate from his soil into the adjacent lands, to the
injury of his neighbor. (Barrett v. Mt. Greenwood Cemetery
Assn., 168.)
5. WATERS AND WATERCOURSES, FURTHER POLLUTION.
The fact that a watercourse is already polluted and contaminated
by various causes does not entitle other persons to add thereto, nor
preclude persons through whose lands the watercourse flows from
obtaining relief by injunction against its further pollution. (Bar-
rett v. Mt. Greenwood Cemetery Assn., 168.)
6. MORTGAGES
DEFICIENCY JUDG
MENT - INJUNCTION. — If a mortgagor conveys the mortgaged
premises to a third person, who agrees to pay the mortgage debt
but fails to do so, an agreement between the original mortgagor
and the mortgagee, that the latter is not to take any deficiency
judgment against the former upon foreclosure, is without considera-
tion, and the mortgagor who makes default in the foreclosure suft
upon the faith of such agreement, but without having any legal
defense, or suffering injury thereby, cannot enjoin the enforcement
of a deficiency judgment rendered against him in violation of such
agreement. (Helm v. Butin, 54.)
1. INNKEEPERS-LIABILITY.-An innkeeper is prima facie lia-
ble for any loss or injury to the goods of his guest, not caused by an
act of providence, the public enemy, or the fault of the guest; and
the burden of proof is on the innkeeper to exculpate himself by evi-
dence that the loss did not happen through any neglect or fault on his
part or that of his servants. (Bowell v. De Wald, 240.)
2. INNKEEPERS-LIABILITY - PLEADING.-An innkeeper is
prima facie liable for the loss of the goods of his guest, and, in an ae
tion by the latter to recover for such loss, the complaint need not
allege negligence on the part of the innkeeper, nor that the guest was
without fault. (Bowell v. De Wald, 240.)
3. INNKEEPERS-LIABILITY-NEGLIGENCE OF GUEST.-
The failure of a guest to inform an innkeeper, or his servant, that
his baggage contains valuables, for the loss of which he seeks to re-
cover, is not negligence on his part. (Bowell v. De Wald, 240.)
AN INSANE PERSON IS LIABLE for his torts, but, not being
capable of forming a malicious intention, is not answerable in vin-
dicatory damages. (Holdom v. Ancient Order of United Workmen,
183.)
See Insurance, 17; Witnesses.
1. ALTHOUGH INSTRUCTIONS GIVEN FOR PLAINTIFF
IGNORE facts tending to establish the defense, the defendant can-
not complain, if the theory of the defense is fully explained in in-
structions given at his request. (Meadows v. Pacific etc. Ins. Co.,
427.)
2. JURY TRIAL-INSTRUCTIONS - CONSTRUCTION.—It is
not necessary that each instruction should contain the whole law of
the case, or any branch of the case with recognized exceptions. If
an instruction contains a complete statement of a proposition of
law applicable to the facts in a given case, it is good as part of a
series containing the entire law of the case. All of the instruc-
tions must be considered together, and construed with reference
to each other. (Taylor v. Wootan, 200.)
3. INSTRUCTIONS ON THE NEGLIGENCE OF A MASTER,
wholly ignoring the contributory negligence of the servant, are not
erroneous, if such contributory negligence is fully and clearly ex-
pounded in other instructions. (Taylor v. Wootan, 200.)
4. THERE IS NO ERROR IN REFUSING INSTRUCTIONS upon
matters which it is the duty of the court to determine for itself as mat-
ters of law, and which it does so determine. (Diers v. Mallon,
598.)
5. INSTRUCTIONS-APPEAL.-No ground is presented for re-
view on appeal, because of the refusal to give instructions requested,
If it appears that they were not asked until after the commencement
of the argument. (Adams v. Main, 266.)
1. INSURANCE.-CONDITIONS in a policy of insurance should be
strictly construed against the insurer, and liberally in favor of the as-
sured. (Georgia etc. Ins. Co. v. Bartlett, 832.)
2. INSURANCE-WAIVER.-The delivery of a policy of insur-
ance, with knowledge of other insurance on the same property,
waives the condition in the policy making it void if the assured has
other insurance. (Anderson v. Manchester etc. Assur. Co., 400.)
3. IN CONSIDERING THE CONDITIONS AND PROHIBITIONS
IN A POLICY OF INSURANCE, the parties must be presumed to
have intended, the one to insure, and the other to obtain insurance on,
the subject matter of insurance as it necessarily was at the time, and
must continue to be during the life of the policy. (Fraim v. Na-
tional etc. Ins. Co., 753.)
4. INSURANCE-PAROL EVIDENCE OF THE MEANING OF
A WORD.-If insurance is effected on a building and its contents, parol
evidence is admissible, not only to show what these contents were, but
further that it was understood between the parties that such contents
should continue to be covered by the insurance, though they had been
removed to another building, and the building in which they were when
an insurance was effected was not injured by the fire. Hence, under s
policy insuring a smokehouse and its contents, it is not error to admit
evidence that the insurer was shown the house, and was told that in-
surance on the meats to be smoked therein was desired, and that such
meats, when smoked, would be stored, and that, with full knowledge of
the facts, the insurer selected the word "contents" as a proper and suf
ficiently descriptive word to cover the smoked meats, whether in the
smokehouse undergoing process of smoking, or in the storeroom after
its completion. (Graybill v. Penn etc. Ass'n, 747.)
5. AN INSURER IS ENTITLED TO BE SUBROGATED to the
rights of a mortgagee on paying a policy of insurance in his favor,
where such policy, as against the mortgagor, has become void be-
cause of a breach of some of the conditions thereof. (Gibb ▼.
Philadelphia etc. Ins. Co., 405.)
6. INSURANCE.--THERE IS NO PRESUMPTION that state-
ments and representations, made to the general or local agents of
an insurer, have been communicated to the home office of the com-
pany, or were known to the president or secretary thereof, when the
policy issued. (Ward v. Metropolitan etc. Ins. Co., 80.)
7. INSURANCE-CHANGE IN TITLE AND POSSESSION.—The
appointment of a receiver is not such a change in the title or possession
of property as avoids a policy of insurance containing a condition that
it shall become void if any change takes place in the title or possession
of the property, whether by sale or judicial decree, without notice to the
insurer and its consent indorsed thereon. (Georgia etc. Ins. Co. v.
Bartlett, 832.)
8. INSURANCE, CHANGE OF INTEREST.-The sale of real
property and the receipt of part of the purchase price, with an
agreement, on completion and payment of the balance, that the pur-
chaser should be entitled to possession until he made default in
such payment, is such a change as renders void a pre-existing policy
of insurance containing a stipulation that it shall become void if
any change, other than by the death of the assured, shall take place
in the interest, title, or possession of the property insured. (Gibb
v. Philadelphia etc. Ins. Co., 405.)
9. INSURANCE.-A CHANGE OR TRANSFER of the interest of
the insured which will avoid a policy, under a condition therein declar-
ing it shall become void if such a change takes place without the consent
of the insurer, must be of such a character as is calculated to make him
less watchful in caring for and preserving the property insured: but if
the real ownership remains the same, though there is a change in the
evidence of title, such change being merely nominal, and not of a nature
calculated to diminish the motives of the assured to guard it from loss.
the policy is not violated. (Georgia etc. Ins. Co. v. Bartlett, 832)
10. INSURANCE.-APPOINTMENT OF A TRUSTEE to take the
place of other trustees who held the property in trust when the insur-
ance was effected, is not a change in the title or possession, within the
meaning of a condition in a policy making it void if a change takes
place in the title or possession without the consent of the insurer.
(Georgia etc. Ins. Co. v. Bartlett, 832.)
11. INSURANCE.-A CONDITION IN A POLICY OF INSUR-
ANCE AGAINST THE USE OR KEEPING OF GASOLINE on the
insured premises, is not broken by the use of gasoline to an extent
necessary to carry on the business for which the insurer knew that the
property insured was used, and where both parties must have known
either that the business insured must be discontinued or gasoline used
therein. (Fraim v. National etc. Ins. Co., 753.)
12. TO JUSTIFY THE USE OF GASOLINE ON INSURED
PREMISES, on the ground that such use was necessary to continue the
business which the insurer knew to be the one carried on by the assured,
the necessity need not be absolute, nor need it be proved that the gaso-
line was of such vital importance to the business that it could not be
ignored. It is sufficient that the gasoline was in ordinary use by the
trade for the attainment of the results for which it was employed by the
assured. (Fraim v. National etc. Ins. Co., 753.)
13. INSURANCE - CONSTITUTIONAL LAW.-A statute direct-
ing the insurance commissioner of the state to prepare and adopt a
blank policy, together with such provisions and conditions as may
be added thereto, or indorsed thereon to form a part thereof, such
form to conform as near as the same can be made practicable to
the form known as the New York Standard Life Insurance Policy,
and requiring all insurance corporations, after the adoption of such
form, to use it in all policies for fire insurance, and all renewals there-
of, does not, of itself, adopt the form referred to as in use in New
York, but leaves the commissioner a discretion to add to, or omit
from, the provisions of such policy, and is, therefore, void, because
it delegates to the commissioner legislative power which can be
exercised only by the legislative department of the state. (Ander-
son v. Manchester etc. Assur. Co., 400.)
14. NOTICE TO AGENT AS NOTICE TO PRINCIPAL. - If
each statement in the application for a policy of life insurance is
warranted to be true, when, in fact, some of them are untrue, pro-
visions inserted in the policy, that it shall be void if any statement
in the application is untrue, that it shall not be varied by any notice
or representations, not brought to the actual knowledge of one of the
company's principal officers, and that there shall be no waiver not
authorized by the company, exclude the operation of the rule that
notice to the agent who negotiates a contract is notice to the princi-
pal. Hence, in a suit on the policy, where the company sets up a
breach of warranty, it is error to instruct the jury that, if the local
agent, when he forwarded the application to the home office with
his approval, knew that material statements therein were false, and
that if he, with such knowledge, collected and remitted the accru-
ing premiums after the policy was issued, his knowledge was the
knowledge of the company, and estopped it from setting up the
breach of warranty. (Ward v. Metropolitan etc. Ins. Co., 80.)
15. INSURANCE, LIFE-BREACH OF WARRANTY-WANT
OF NOTICE TO PRINCIPAL.-If each statement in the applica-
tion for a policy of life insurance is warranted to be true, when,
in fact, some of them are untrue, and the policy contains provisions
that it shall not be varied by any notice or representations not
brought to the actual knowledge of one of the company's principal
officers, and that there shall be no waiver not authorized by the com-
pany, and suit is brought upon the policy, the defendant's request
that the jury be instructed to return a verdict in its favor should
be granted, if a plain breach of warranty has been proved, and there
is no evidence that such breach was known to the president or secre-
tary of the company until after the death of the insured. (Ward
v. Metropolitan etc. Ins. Co., 80.)
16. INSURANCE. LIFE-PAROL EVIDENCE-BREACH OF
WARRANTY-PRESUMPTION.—If each statement in the applica-
tion for a policy of insurance is warranted to be true, when, in fact,
some of them are untrue, and the policy stipulates that it shall be
void if any statement in the application is untrue, that the policy
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