surveyor himself is the proper party to sue for the cost of making
such map. Daniels v. Hilgard,
3. Sufficiency of map.-In such case the defendant will
heard to question the map as insufficient where it has been officially
accepted as correct. Id.
4. The court would be justified in discarding assignments of error
based on testimony given with a map before the witness, to which he
refers, when such map is not produced to the reviewing court. Upton
v. Larkin,
15, 404
1. Separate estate of married woman-Notice to husband.-In
transactions relating to her separate estate a married woman is bound
by notice to her husband only so far as he acts as her agent. Chew v.
Henrietta Co.,
4, 68
2. Estoppel against feme covert.-The wife will be assumed to
have consented when her knowledge is shown. Harkness v. Burton,
9, 318
3. Husband signing wife's name without authority. Boyd v.
Merriell,
9, 664
4. Parties omitted in suit against association.-The name of a
woman signed to articles of association without authority may prop-
erly be omitted in a suit against the members of the association for
services. Id.
5. Conveyance to married woman without consideration.-Effect
of making conveyance to and taking note from wife of a party,
whose name is used without her having real ownership. Bonesteel v.
Bonesteel,
6. Contract between husband and wife.-A contract, in which a
husband agrees to perform services for his wife and two other persons,
and a judgment obtained thereon, are both void at common law as
between husband and wife; and if such a contract is authorized by
statute, the strict letter of the statute must be followed. Isaacs v.
McAndrew,
7. Suit concerning wife's separate estate.—In proceedings for an
account of the proceeds of the wife's separate estate, the husband can
not sue alone, without joining his wife in the bill. Thompson v.
Noble,
11, 137
1. Master and servant liable as co-defendants. Wright v. Comp-
ton,
2, 189
2. Municipal liability-Employer and contractor treated as mas-
ter and servant. City of Tiffin v. McCormick,
2, 194
3. Set of instructions.-Certain instructions defining the rights and
liabilities of master and servant approved (see statement of case for
the instructions). Sowden v. Idaho Co.,
Consideration of new risks arising after original employment.
5. Mining company experimenting with giant powder.-The plaint-
iff was not informed of the proper mode of using it, although the
corporation had printed directions. The plaintiff being injured by an
explosion, held, that the corporation was liable. Smith v. Oxford
Co.,
6. Delivery to servant of assayer, is delivery to the assayer, and
trover lies after demand in such case.
Mead v. Hamond,
7. No action lies against a steward, manager or agent, for dam-
age done by the negligence of those employed by him in the service of
his principal. Stone v. Cartwright,
Master liable where he becomes a workman. Ashworth v. Stan-
9. Negligence of owner acting as manager—Injury from falling
scale. Mellors v. Shaw,
9, 678
10. Accident from scale-Negligence of underlooker. Hall v.
Johnson,
11. Injury to servant through negligence of master-Spliced rope.—
The condition of the rope could not be seen by ordinary observation.
Held, that the use of the rope in its unsafe condition, was gross negli-
gence in the employer, and that he must answer in damages for the
consequences. Perry v. Ricketts,
12. Idem-Notice of defect by employe, when not required.—It was
not incumbent on the employe, under the circumstances, to notify
his employer of the defect, which the former had but slight opportu-
nity of knowing, and notice of which had already been given to the
latter. Id.
13. Contract for services-Time of payment.-A written contract
for five years' services as superintendent of mines, at the rate of $1,000
per year, to be paid as part of the business expenses of the enterprise,
in which no time of payment is fixed, is an entire contract, and per-
formance of the work for the whole period is a condition precedent to
the right to sue for the hire. Isaacs v. McAndrew,
9,690
14. Contract for superintendent's expenses construed.—An agree-
ment that the traveling and living expenses of the superintendent of a
mine shall be a charge upon the business and property of the enter-
prise, creates no right on the part of the superintendent to proceed
against his employers before an attempt is made to exhaust the remedy
against the property itself. Id.
15. Interest on money expended by superintendent will only be
allowed when it is averred and proved that there has been unreason-
able and vexatious delay. Id.
Quitting before expiration of year.-The finding of a jury that
a party has performed services as superintendent of mines in Montana
for a year, under contract, will be set aside if the evidence shows that
he left the Territory before the year expired. Id.
17. Superintendent with full powers of hiring-Complaint insufi-
cient.-Held, that a demurrer to the complaint was properly sustained,
because the complaint contained no averment that defendants were
negligent in employing the superintendent. Collier v. Steinhart,
18. A servant takes upon himself the ordinary risks and perils of
the service in which he voluntarily engages. Kielley v. Belcher Co.,
10, 3; Strahlendorf v. Rosenthal, 10, 676; Kielley v. Belcher Co.,
10, 11
19. Ordinary risks defined.-The ordinary risks include all such as,
arising out of the nature of the work, happen, notwithstanding the
exercise of due care, and also those arising from the negligence of
those of his fellow-servants who are engaged in the same department
of the master's general business, and who are not his superiors in au-
thority. Kielley v. Belcher Co.,
20. Fellow-servants in distinct departments.-The rule which
exempts the master from liability for injuries caused by one fellow-
servant to another does not extend to the case of servants serving in
distinct departments of the master's general business. Id.
21. Negligence of fellow-servant.—If an employe in a mine is in-
jured by the negligence of his co-laborer in the same line of employ-
ment, there is no liability for the injury on the part of the employer.
Kielley v. Belcher Co., 10, 11; Ardesco Co. v. Gilson,
22. Who are fellow-servants in a mine. Kielley v. Belcher Co.,
10, 11; Lehigh Valley Co. v. Jones,
23. A foreman in charge of hands is not a féllow, but a superior
servant. Berea Stone Co. v. Kraft,
10, 16
24. When the foreman is for the moment discharging the duties of
a laborer, his master is answerable for negligence arising from his acts
as if he were a laborer. Id.
25. Negligence of fellow-servant-Liability of employer.-By the
Civil Code of California an employer is not bound to indemnify his
employe for losses in consequence of the negligence of another person
employed by the same employer in the same general business, unless
he has neglected to use ordinary care in the selection of the culpable
employe. McLean v. Blue Point Co.,
10, 22
26. Injury of inferior by superior.-The code referred to recognizes
no distinction growing out of the grades of employment of the respect-
ive employes; nor does it give any effect to the circumstances that the
fellow-servant, through whose negligence the injury came, was the
superior of the plaintiff in the general service in which they were in
common engaged. Id.
27. Miner held to the mine regulations after discharge while still in
the pit. Higham v. Wright,
10, 24
28. Overseer and workman.-The rule is the same, although the
one injured may be an inferior in grade and subject to the control and
direction of the superior whose act caused the injury, provided they
were both co-operating to effect the same common object. Lehigh
Valley Co. v. Jones,
10, 30
29. A "mining boss" and a "driver boss" are fellow-servants.
Lehigh Valley Co. v. Jones, 10, 30. The same as to mining boss and
miner. Delaware Co. v. Carroll,
30. Liability of company for negligence of contractor. Lake Su-
perior Co. v. Erickson,
10. 40
31. Idem-Legal privity may sometimes exist between one con-
MASTER AND SERVANT.
tracting party and the servants of the other; as where the servants are
exposed to risk from being obliged to work upon the former's prem-
ises under an arrangement which binds him to keep the premises
in safe condition. Id.
32. Injury to contractor's employe.-Where a mining company
contracts for the removal of ore, but assumes the duty of making
arrangements to protect the workmen, it is liable to the contractor's
employes for injury in consequence of neglect of that duty. Id.
33. Mining bosses appointed under statute are still fellow-ser-
vants. Delaware Co. v. Carroll,
34. Risk of falling scales.—A miner who knows, or by the exer-
cise of ordinary care might have known, of the unsafe condition of a
coal roof, and continues to work in the dangerous place without pro-
test or complaint, and without being induced to believe that a change
would be made, assumes the risk and can not recover in case of injury
from falling scale. Money v. Lower Vein Co.,
35. Duty of master to inform servant of danger incident to occupa-
tion. McGowan v. La Plata Co.,
36. The master is answerable for the conversion of a customer's
property intrusted to his servant. Armory v. Delamirie,
37. Right of selection of agent necessary to fix liability for his
acts on the principal. Boswell v. Laird,
10, 617
38. Employer liable after acceptance of work.—After the acceptance
of the work of construction, by the person for whom it was built, he
becomes liable for subsequent injuries, having thus assumed the
responsibility of its sufficiency, and the liability of the contractor
Id.
39. Knowledge of habitual violation of rules. Senior v. Ward,
10, 646
40. Dangers known only to employer.-The employer must warn
the employe of, or be liable for injury thereby to the latter. Strahlen-
dorf v. Rosenthal,
10, 676
41. Indefinite hiring.-When one is employed as an agent, etc.,
for no definite time, it is a hiring at will of both parties, and he may
be discharged without notice. Kirk v. Hartman,
11, 450
42. Debt will lie on a contract for service for a fixed time and
compensation, when the servant is prematurely dismissed. Id.
43. Mitigation of damages.-In an action of debt upon a contract
of hiring by a servant discharged before his term, his being engaged
in other profitable business or refusing it if offered, may be shown by
the defendant (on whom is the burden) in mitigation of damages. Id.
44. Employes of corporation-When not fellow-servants.—It is
not law" that the defendant, being a corporation, and unable to act
otherwise than by means of servants, all persons employed by it in the
same general business must necessarily be fellow-servants, within the
rule exempting the master from liability for the negligence of one
servant to another." Knaresborough v. Belcher Co.,
12, 155
45. Construction favorable to employes.-A penal act concerning
the mode in which employes are to be paid, is to be construed as passed
in the interest of the employe and not so as to qualify powers pre-
viously enjoyed by him unless such powers are being used by way of
collusion to defeat the operation of the act. Shaffer v. Union Co.,
46, Safe place to work-Delegation of duty.—An employer owes to
his servant the duty of furnishing him a safe and proper place in
which to pursue his work, so far as he is able to do so by the exercise
of ordinary care and diligence; and this duty he can not delegate to
an agent or servant, so as to excuse himself as to responsibility to
one who has been injured by its non-performance. Trihay v. Brook-
lyn Co.,
15, 535
47. Notice to foreman.—It is no defense that the injury was occa-
sioned by the negligence of a foreman, who had the entire charge of
the mine, as notice to him was notice to the company. Id.
48. An act intended to prevent a class of contracts found to con-
stantly engender distrust and suspicion of unfair dealing between
master and miner can not be countervailed by special contracts made
in disregard of its terms. Bourne v. Netherseal Co.,
See NEGLIGENCE.
MEASURE OF DAMAGES.
A-IN GENERAL.
B-IN ACTIONS EX CONTRACTU.
C-IN ACTIONS EX DELICTO.
D-EXEMPLARY-EXCESSIVE.
E-INTEREST-NOMINAL.
F-LIQUIDATED.
G-DAMNUM ABSQUE INJURIA.
1. General test.-Damages ordinarily recoverable are those neces-
sarily following the breach which the defaulting party might be
presumed to know would result from his failure. Pittsburg Co. v.
Foster,
10, 116
2. Prospective damages can not be obtained unless it appear that
the party will be subjected to the specific loss for which he demands
compensation. De Costa v. Massachusetts Co.,
10, 93
3. Proximate cause of damage.-The rule of damages in cases of
fraud or breach of contract, is that they must be the natural or prox-
imate consequence of the act complained of, and those results are
proximate, which the wrongdoer, from his position, must have con-
templated as the probable consequence of his fraud or breach of con-
tract. Crater v. Binninger,
10, 124
4. Remote profits.-In applying the general rule that "the damage
to be recovered must always be the natural and proximate conse-
quence of the act complained of," those results are to be considered
proximate, which the wrongdoer, from his position, must have con-
templated as the probable consequence of his fraud or breach of con-
tract. Smith v. Bolles,
16, 159
5. Where the vendor avers his land cost a certain price and that
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