J
ITIE OMAHA DAILY BEE: SATURDAY, FEBRUARY 10, 1908.
r.
With grateful acknowledgment to its 8,596,705 Policy-holders for their confidence, the Metropolitan Life Insurance Company presents the following summary of its condition and affairs for the year
ended December 31, 1905, showing it to have been THE BEST YEAR IN THE COMPANY'S HISTORY
RESOURCES
ASSETS, S151.663.477.29
OBLIGATIONS
V
1
I
United States, City and R.R. Bonds and Stocks . $79,629,477.18
Bonds and Mortgages . . . . . . . . . . 38,062,610.75
Real Estate
Cash
Demand Loans on Collateral .......
Loans to Policy-Holders
Premiums deferred and in course of collection (Net)
Accrued Interest, Rents, etc
17,495,905.30
4,183,912.16
3,747,285.50
3,703,554.50
3,826,755.63
1,013,976.27
$151,663,477.29
'T"li In ii
HOMB OFFICE BUILDING
tVfgeet Office Building In the World. MadUon Ave, Fourth Avi, 13d and I4th 8ts.. New York Cltjt,
Reinsurance Fund and Special Reserves
Dividends Apportioned, payable 1906, on Non
participating Industrial Policies
Same on Participating Policies, Intermediate Branch
Same on Participating Policies, Ordinary Dept. , .
(Norm. Nearly all the Ordinary policies of th Co. are non-participating policies
Issued t low rate of premium)
Contingent Dividend Fund, Intermediate Branch
All other Liabilities
Capital and Surplus
$132,705,296.00
681,942.00
621,081.00
26,726.79
299,768.48
1,147,084.06
16,181,578.96
$151,663,477.29
ii
TT o m
safiiail Jll at a. .
:1
KM.
(INOORPORATED BY THE STATE OF NEW YORK)
JOHN R. HEGEMAN, President
The Company OF the People, BY the People, FOR the People
A REASONABLE INDICATION OF THE DESERVED
POPULARITY
of its plans and of faith in its management may be fairly claimed in
the number of Metropolitan policies in force. It is not only greater
than that of any otb;r company in America, but greater than that of
all the other regular companies combined, less one. It exceeds, in
fact, the COMBINED POPULATION of 24 of the States and
Territories out of the 52 forming the American Union, viz : Maine,
New Hampshire, Vermont, Rhode Island, Connecticut, Delaware,
District of Columbia, Florida, Oregon, Colorado, Arizona, Alaska,
Idaho, Montana, Nevada, Wyoming, Utah, North Dakota, New
Mexico, Indian Territory, Oklahoma, South Dakota, Washington,
Hawaii, and as to CITIES, it exceeds the combined population of
Greater New York, Chicago, Philadelphia, Boston, St. Louis,
Cleveland, Cincinnati and Milwaukee.
SIGNIFICANT FACTS
The Company's policy claims paid in 1905 averaged in number
one for each minute and a quarter of each business day of 8 hours,
and in amount $105.83 a minute the year through.
The value and timeliness of these payments may be gleaned from
the fact that of the claims paid during the year, 4,320 were under
policies less than 3 months old, 8,391 were on policies which had
run under 6 months and 15,148 were within the first year of insurance.
THE DAILY AVERAGE OF THE COMPANY'S BUSINESS
DURING 1905 WAS :
395 per day in Number of Claims Paid.
6,972 per day in Number of Policies Issued.
$1,502,484.00 per day in New Insurance written.
$123,788.29 per day in Payments to Policy-holders and
Addition to Reserve.
$77,275.94 per day in Increase of Assets.
Paid Policy-holders in 1905 for Death Claims,
Endowments, Paid-up Policies, Dividends, etc.,
with amount set aside on their behalf as increased
reserve
$37,755,428.59
Paid Policy-holders since the organization of
the Company, plus the amount invested and now
on hand for their security
$318,264,084.12
COMPARISONS, ETC
Income in 1905 $61,531,588.49
Gain over 1904 . . . V , 5,545,831.58
Surplus in 1905 . . V . 16,181,578.96
Gain over 1904 .- . . 1,346,358.97
Increase in Assets during 1905 ... 33,569,162.05
Gain in Insurance in force ..... 126,085,438.00
The total number of Policies in force Deo. 31, 1905, was 8,596,705
The total iml of outstanding insurance Dec. 31, 1905 $1,596,509,769.00
Number of persons in the service of the Company, over 19,000
THE TWO DEPARTMENTS
In the Ordinary Department policies are issued for from $1,000 to
$1,000,000 on individual lives, premiums payable annually, semi-,
annually, or quarterly. In its Industrial Department (which is family
insurance) policies are issued on all the insurable members of the
household with premiums payable weekly.
The Metropolitan gained in insurance in force on which premiums are still being paid MORE THAN ANY
OTHER COMPANY IN THE WORLD.
The Metropolitan wrote more business in the Industrial Department in 1905 than ever before in any one year.
' The Metropolitan wrote more business in the Ordinary Department in 1905 than ever before in any one year.
The Metropolitan wrote more business in 1905 than any other Company in the world. And this for the 12th
consecutive year.
The Metropolitan has more premium paying business in force in the United States than any other company.
The Metropolitan has in force one-third of all the legal reserve policies in force in the United States. Its
Industrial policies in force equal in number all the Industrial policies of all the other companies in the United States.
THE RATIO OF EXPENSE TO PREMIUM INCOME IN 1905 WAS THE LOWEST IN THE
COMPANY'S HISTORY.
This Company issues no TONTINE or other forms of deferred dividend policies, in which the amount to be paid
to the insured must largely be a matter of ESTIMATE at the inception of the contract, and of DISAPPOINTMENT at
its maturity.
Its policies are plain business contracts which tell their whole story on their face; leave nothing to the imagina
tion; borrow nothing from hope; require definite conditions; and make definite promises in dollars and cents.
Is not the 'fact that, notwithstanding the agitation in life insurance, the Metropolitan wrote more insurance in its
Ordinary Department in 1905 than it ever wrote in any preceding year, proof that GUARANTEED BENEFITS for
a fixed premium are what people want ?
In its Industrial Department policies no obligation to pay dividends is either expressed or implied, the pre
miums being at stock rates, without the " loading " designed for dividends ; nevertheless the Company for years past,
as a pure act of grace, has returned a part of its surplus, annually, to the holders of its policies. The total amount
so paid, including the amount set aside for 1906, is
OVER FIVE AND A HALF MILLIONS OF DOLLARS IN CASH
S. J. MURPHY, Supt., 414 N. V. Life Bld., 17th and Farnam Sts., Omaha.
ADS IN PUBLIC SCHOOLS
V.flrmined 1'ffort to Beitort ths "Three
E'i" in New York Oity.
"saasaaaaB
f AULTS POINTED OUT BY CRITICS
Mayor McClellan's Ideas of School
tadles Contracted with the
ysteia at Preaaat la
liae.
new commissioner of education for
eater New York Is to be. appofnted
rly In January. With his Incoming the
ard of - Education In expected to put
a effect Mayor McClollan's Ideas about
bile school studies and radically change
? methods of the present school superln-
ldent. ' The proposed change means a
luctlon of fads and more of the "three
tayor McClellan's Ideas were expressed
an address before the National Kduca-
in I association last summer, from which
exerpt is taken:
do not believe that any one can be
rated who has not at least a smatter-
jf tho three R's. It may possibly serve
. mysteriously useful purpose to teach
ar-old boys who cannot read the
lest English to sew buttons on shirts
drill girls of the suino age to whom
rule of three Is unknown in the theory
(but not In the practice) of music and cook
ing. Hut the Ignorant outsider who Is
excluded from the Parnassus of 'educa- i
tfonal circles' may lie permitted to wonder
at the wherefore of It all. It is anything !
but flattering that the products of our
great schools seldom succeed at either
West Point or Annapolis."
With a board answering to
some present members hope
pllsh much toward modifying
rail the Maxwell fad system.
Prrseat Methods.
. One of the members was asked:
"Has nothing been done after the aglta
V 1
that idea,
to accom
what they
Dollar Packago
. FREE'
v Man Medicine Free
You can now obtain a large dollar also
fre package of Man Medicine fTee on re
quest. .
Man Medicine cure man weakness.
Mill Medicine gives you once more the
gubiu, the Joyful satisfaction, the pulse and
the throb of physical pleasure, the kra
nmto of man sensation, the luxury of life,
body power and body comfort free. Man
Medicine doe it.
Man Medicine cures man weakness, nerv
ous debility, early decay, discouraged man
hood, functional failure, vital weakness,
brain fag. backache, prostatitis, kidney
trouble and nervousnens.
You can care yourself at .home by Man
Medicine, and tue full slse dollar package
will be delivered to you free, plait; wrai.
per, sealed, with full directions Low to use
ft. The full else dollar pack see free, no
)ymcnt of any klnd,,ao reoipis. no prom
ises, no papers to i.u. It Is fin.
; All' we want to kr,w'ls that you sre not
sending for It out of id's curiosity, but that
you want to bo well and become your
trong, natural self onoe more. Man IBedi
cine will do what you want it to do; make
you a real man. man-like, mao-powerf.il.
, Tour name and address will bring It; all
you have to do la to send and get It. We
tend It free to every discouraged one of
(he roan sex.' Interstate Remedy Co.. Ut
tuck Uldg , Detroit, Mich, i
I
) '
tlon last spring to lop off the fads and
whimsies?"
"Very little except to promise. Mr.
Maxwell's last bulletin of studies shows
that sewing begins In the third year and
Is not postponed until the fourth, as critics
of the system advocated. History was
advised for the fourth year, but Mr. Max
well puts It off until the sixth year when
the child Is virtually within a year of
ending its compulsory school period. Yet,
metallurgy Is prescribed in grades when
pupils are 8 years old. When they are
C 7 and 8 years of age they are required
to take extraordinary subjects, such as,
say, the circulation of blood in a tadpole's
tall.
"Topography of New York, which you
might say means learning where the fire
hydrants are situated. Is taken in the
fourth year. This will be valuable when
the boys grow up to be firemen. If they
don't forget after ten years' time. Tots of
6 are set at free-hand drawing. Boys are
still taught raffia. Do you know what
raffia Is? Put the question to grownup
New Yorkers, will you, "by way of examina
tion on what they know about the details
of how their elementary schools are con
ducted. Well, raffia for boys I may de
scribe as the braiding of straw for the
bonnets of their listers' dolls. It's a great
thing. Mr. Maxwell, soaring in the high
reason of his poetic fancied, thus under
takes the training of the eye and hand,
and preparing the future citizen for his
part in life.
Vital Knowledge.
"English? I No no change has been -made
In tho study of Knglish. No; no change
In the study of mathematics either. 'These
are mill, as I look at It, subordinated in
tlmo given, as when Grout reported that
out of 12,000 minutes only 6,975, or less than
one-half, are allotted to English, penman
ship, geography, history and arithmetic.
"Swarms of children enter our schools
without any real .knowledge of the lan
guage. Home cultivation for the majority
Is lacking the home language la often
some other language than English. With
the elementary schooling what it is. what
wonder If native bred teachers speak with
a strange accent?
"If we had a little less music and more
English, a little less of the chemistry of
cooking and more English, a little less
mechanical-drawing and more English, and
a little less raffia and more English, then
the child of foreign parents who goes
through the schools and graduates from a
college to become a teacher would bo bet
ter fitted to keep the well of English un
dented. "There is a frightful waste of money on
supervision. Damrosch, as musical direc
tor, has not been replaced this year; other
wise the system Is as it was. with some
i& directors and teachers for manual
training, hop work, cooking, sewing, music
and physical culture, -maintained at a coat
of nearly WSO.00O yearly. With the excep
tion of cooking every regular teacher Is
capable of teaching these branches. Phys
ical culture teachers are an Imposition.
They are mere boys and girls without any
academic or pedagoglo training. They be
gin on 11.200 a year, whereas the regular
class teacher who has spent four or five
years In a training college and must then
pass MaxwU's peculiar examination must
begin. on J0 (women) or tHW (men). Ths
majority of these specials are unable to
give a lesson without the aid of a book.
Sometimes they come along and merely
give Instructions to the competent class
teacher."
A teacher who recently resigned to go
into law declares that in the afth, sixth and
seventh years of the present schooling "you
may pick out at random any five pupils and
find that they cannot subtract 0 from 63, 6
from 74 or 8 from 97." A chairman of a
local school board asserts that business
men have come to her with letters from
applicants for work, boys and girls past tho
14-year school age, which were shockingly
111 spelled and miserably written. "Young
sters are coming out from the present com
pulsory schooling utterly unqualified to do
the things expected of boys and girla start
ing In offices and stores." he added:
A man dwelling In Eaat Twenty-fourth
street complains to one who has Interested
himself In reform that while there are 63,0 0
children kept out of the first grade schools
the time of the rest Is taken up with raffia
and other fancies so that when at 14 they
have to go out to earn a living they do not
even know English. Writes another: "Mr.
Maxwell has had no experience as a teacher
but Is only a theorist In educational work.
Many have dared to hint that his greatest
solicitation Is not for the mental benefit of
the children under his care."
One commissioner puts It thus: "The
school life of the averago child Is not
more than seven years. These seven years
should be devoted to giving the child a
foundation that will be of service during
life the life they will have to lead. We
have full data showing that poor men's
children go out Into the world at 14 miser
ably equipped. Reading, writing, arithme
tic, spelling, some grammar and some geog
raphy, with a knowledge- of the 'salient
points of history every child Is entitled to
these. This education is now denied to
children too poor to go to private schools.
The curriculum should be so arranged thai
these essentials are taught to the exclusion
of every nonessential." As the time of tho
ch!M lengthen thin inmmlN(nii.p diidvbc f
In direct ratio to the ability of Its parents
to give higher opportunities the course may
I be expanded. The system that Is overloaded
with fads and fancies, he declares. Is "turn
ing out a host of mental cripples only ha'.f
armed to meet the world." New York Sun.
SUPREME COURT SYLLABI
What He Ised It For.
Wine-tasting was In ills business, and be
was reputed to be one of the best who fol
lowed that somewhat peculiar means of
making a livelihood, so when the bet had
been made and the money posted, bis
"backers" were sure of winning. Inciden
tally, they did.
The subject, blindfolded, waa to taste,
one after another, the contents of twenty
five wine glaases, and If he would win the
takes name correctly the liquor In each.
Frora one to twenty-four he went down the
line, never hesitating, and always right.
At the last one be stopped. It was rilled
with water only.
He sipped It, turning it over and over
with bis tongue, asked for a second mouth
ful, considered It with a most perplexed
expression and then had an Inspiration.
"Of course," he exclaimed, "It's the stuff
I clean my teeth with." Harper's Weekly.
Not la His Case.
"You don't really want to marry me,
Jack," she said, pretending to be deeply
Interested in a microscopic flaw In the tex
ture of his coat collar. "You've been read
ing that a wife Is a luxury, and you
think "
"That doesn't fit my case, Nellie!" In
terrupted the young man. ''You're not a
luxury. You're an absolute necessity. I
simply can't live without you."
It waa dead easy for Jack after that.
Chicago Tribune.
DIAMOND-Kdteouo. 1SJ and Harney.
The following opinions were filed January
8, 1SK:
UU. Sullivan against Wharton. Appeal,
Douglas. Reversed and remanded with di
rections. Holoomb, C. J.
B., a short time before his death, which
he knew must soon occur, devised and
bequeathed to his wife (they both being
advanced in years and childless certain of
his real estate and nil his personalty to
have and to hold abKolutely and uncondi
tionally In her own rlsht forever. Tho re
mainder of bis realty, being the major por
tion of his estate, was devised to W.,
trustee, upon the following trusts: 1) To
puy out of same the expenses of maintain
ing the trust. tl To deposit to the credit
of his wife for her own use the net In
come therefrom. (3) On request of the
wife, In writing, to sell any part thereof
anil deliver to her for her own use abso
lutely the proceeds or otherwise Invest the
same In tlie name of the trustee for the
purposes therein specilled as she may
direct. (41 Upon the decease of the wife
to divide whatever of his said estate as
shall then be remaining between the
brothers and ulsters of the testator (naming
them) share and share alike, and the issue
of deceased brothers and Misters, if any.
Before the will was executed- the wife
was called into the room and it was read
over to her. the testator asking If it suited
her, and she answered In the affirmative.
He then made certain- oral requests and
directions with reference to Ills estate, the
eubstancu helng that he had placed her
(ills wife in comfortable circumstances oo
that she would not want for anything;
that he wanted her to live as they were
living, and at the end of every year to
divide the surplus among his people; that
her people were In good circumstances, but
his people were poor and that he wanted
her to make a will so that at her death
his estate would go to his brothers and
sisters: that If she wanted to give to
charitable purposes, say live or ten thou
sand dollars, that wouldl be all right, but
that he wanted the bulk' of his estate, his
entire estate, to go to his brothers and
sisters. To all this she expressed her as
sent and entire willingness to carry out
the testator's wishes. The wife, shortly
after the execution of the will, expressing
fear that It would be contested, the hus
band by Instruments of conveyance and
assignment, absolute and unconditional
In terms, transferred to her substantial) v
all the property going to tier directly by
the terms of the will. After the death of
the testator the wifn refused to comply
with t lie parol requests and directions made
at the time of tho execution of the will and
absented to by her, and disavowed their
binding and obligatory character on her,
aborting that shu had an uncontrolled dis
cretion as to whether any of the properly
or the Income therefrom passing by the will
should go to tho collateral heirs of the
testator. Held. (1) conceding that the wife
became the general owner of the property
embraced In the expret-s trust because of
the power given to alienate and acquire
legal title thereto, and to the proceeds
thereof in her own right, that a construc
tive trust arose in favor of the collateral
heirs as to all such property, and that the
wife should be charged as a trustee ex
mallflclo; (2 that her Interest In such prop
erly, the proceeds thereof and the net in
come therefrom, was limited to the amount
reasonably necessary and required to sup
port and maintain her in the rqmforts and
style of living to which they had been ac
customed, and to giv not to exceed $10.0u0
for charitable purposes, the equitable title
to and Interest in the remainder passing to
tho collateral heirs named In the will, and
to be distributed between them according to
Its terms and the parol requests and direc
tions of the testator; (3) that the property
to which the constructive trust attaches Is
sufficiently definite and certain as to ren
der the trust capable of execution and en
forcement and that our former holding to
the contrary should be modified accordingly.
13CU1. Kupke against Polk. Appeal and er
ror from f'us. On rehearing iormer Judg
ment vacated, judgment of. the lower couit
reversed and cause rcmunded. Sedgwick, J.
. When the trial court In an action in eq
uity makes pec ml findings of fact and no
general finding and the evidence Is not pre
served, the sole question for this court on
appeal is whether the judgment Is supported
by the pleading and (he special findings.
If In such case there Is no finding upon a
material Issue, that Issue must upon appeal
be determined against the party on whom
the burden of establishing such issue rested.
1S699". Smith against Curtice. Error from
Gosper. On rehearing former Judgment of
this court adhered to. Oldham, C. Division
No. 1.
1. Action of the trial court In giving and
refusing Instructions examtntd and held
not prejudicial.
2. Action of the trial court In admitting
evidence examined and held not preju
dicial. 13710. State against Cannot. Original. De
murrer to answer sustained; Judgment for
plaintiff. Per currlam.
State of Nebraska against Stephen W.
Tanner, Neb., 102 N. W. 135, approved and
followed. ;
1371L Stnte against Luedke. Original. De
murrer to answer sustained; judgment for
plaintiff. Per Curiam.
Slate of Nebraska against Stephen W.
Tangier, Neb., 102 N. W., 235, approved and
followed.
13742. in re. application of Jorgennen. Er
ror from Douglas. Affirmed. Holcqmb,
C. J.
1. The Board of Fire and Tollce Commis
sioners of a city of the metropolitan class
may, for good reason, in the exercise of a
sound discretion, refuse to grant a license
to sell malt, spirituous and vinous liquors,
even though no protest or objection by oth
ers be interposed ajralnst the granting of
the license applied for.
2. An applicant had compiled with all the
requirements of the statute and ordinances
relating to the subject and no pro'.est or
remonstrance had been made ag;iinst the
granting of his application, but the R'.ard
of Fire and Police Commissioners refused
to grant-it for reasons exprepsd In a reso'u
tlon spread upon the record us follows:
"Resolved. That the application of A.
Jorgensen lor a license ut No. 124 North
Tenth street. Omaha, be and the same
herehv Is denied and refused, for the rei
son that there ere now four or five saloons
in operation within a block of the said
place, and that the public Interests require
that no new or additional saloons be al
lowed at said place. Applications for fa
loon licenses at s'ali place have twice been
refused to different parties in the last two
years for the same reason."
I'pon appeal to the district court the de
cision of the board was approved and af
firmed. Held upon the record as presented
that no error was committed by the ruling
complained of. . ,
li'L3. Ruimielson n gainst Mickey. Appeal
from Polk. Motion for rehearing overruled.
Cause remanded with directions to dismiss.
Barnes, J. . .
Where a tract of land lias lieen conveyed
bv a deed absolute In form io satisfy and
pay the mortgage liens existing thveon. a
subsequent parol promise to reeonvey It to
the grantor, without anv consideration to
supoi t It. will not sustain an action to de
clare the deed a mortgage anfl redeem from
the Hens which have been cancelled and
treated as paid.
13hS8. Colgrove ajralnst Pickett. Error
from Gage. Roveraed and remanded. Duf
fle, C. Division No. 2,
A party has a right to have his theory or
the case submitted to the Jury when there
Is competent evidence to support it.
13973. State ex rel. McMonles ngalnst '
Monies. Krror from Burt. Affirmed. Duf
fle. C. Division No. 2.
1. The charier of villages confers on the
trustees of the village power to regulate
billiard and pool balls, but not to suppress
them. Authority to regulate does not give
power to suppress.
2. An ordinance of the village of Lyons
required the proprietors of pool and billiard
1 alii to pay an annual occunatlon tax w hich
wa to be paid on the second Tuesday of
Mav, or as soon thereafter as they became
liable to the lax by engaging in the busi
ness. The relator, on the flrMt Tuesday In
May, tendered to the village treasurer the
tax. required on five tables which the treas
urer refused to accept, and thereupon re
lator Immediately brought this action to
compel htm to take and receipt for the
money. Held, that the tax not being due or
payable until the second Tuesday In May
the action was prematurely commenced and
the writ properly denied.
131ie. Courthouse Rock Irrigation Com
pany against Willard. Anneal from Chey
enne. Affirmed. I.etton, C. Dlvisjoii No. 1.
1. Where tie evldem-e shows that an sp
propHator of water does not beneficially
use the amount which it has diverted into
Its canal by reason of wastage and seepage
caused by detective maintenance, and there
Is enough water In the stream. If econom
ically used, to supply both the complainant
and certain riparUn owners taking water
for Irrigation purposes above the point of
diversion, the appro. i later Is not entitled
to an injunction to prevent the use of the
water b' su-h owners.
14u0b. Turner t gainst O rimes Error from
Lancaster. Reversed and remanded. I.et
ton, C Division No. 1.
1. Where a plaintiff sets up a conversion
of a team of horses by a bailee, and
pleads the execution of a bill of sale by
him to the bailee for such team upon the
agreement of the bailee to pay a fixed and
definite amount therefor, he cannot after
wards. If unsuccessful In this action. In
another action claim that the title to the
horses never passed from him, and that
they were killed by the negligence of the
bailee. He had the right to elect as to
whether he would treat the title to the
property as having passed and sue In
uMsumpsIt upon the promise, or he had
the right, upon the theory that the title
never passed, to sue for the wrong; he did
not have the right to do both.
2. The doctrine of election of remedies
applies when a party who actually has at
bund two Inconsistent remedies, with full
knowledge of such fact, proceeds to enforce
one of these remedies. Pekin Plow Co.
' against Wilson, fi Neb., 120.
' 14020. Roe ngalnst Howard county. Ap-
Feal from Howard. Affirmed. Duffle, C.
H vision No. 2.
1. In appeals In equity cases this court
will examine the evidence and arrive at an
opinion of the facts established uninfluenced
by the conclusion arrived at by the trial
court except insofar as a. presumption In
support of such conclusions is derived from
he opportunity which the trial Judge has
of seeing and hearing the witnesses and
of judging their candor, their knowledge
of the facts, their intelligence and bias or
partiality, if any Is exhibited.
2. Where water, be it surface water, the
result of rain or snow, or the water of
sprlncs, flows in a well defined course, be
It ditch or swale or draw in its primitive
condition, and seeks its discharge in a
neighboring stream, its flow cannot be ar
rested or Interfered with by a land owner
to the Injury of the neighboring proprietors,
and what a private proprietor muy not do
neither can the public authorities.
3. The court will not presume that the
commissioners appointed to ussess damages
to the owners of land over which it runs,
considered It nece.siry. In the proper con
struction of the road, to divert the water
naturally seeking an outlet In a draw and
conduct It In an artificial ditch along the
highway for a mile or more and there
discharge it In Bueh manner that It dam
aged the land of the plaintiff or that plain
tiff was allowed damage for such dlsposi-
, tlon of the water.
4. An easement b.v prescription can be
acquired only by an adverse user for ten
years, and the commencement of the time
required for the prescription to ripen dates
from the time when (he party was dam
aged or hnd a cause of action arising from
the adverse user.
140(1. Ames against Ames. Error from
. Washington. Affirmed. Albei t, C. Divl
fcinn No. 2.
1. Where a petition filed In the district
i court states facts sufllclf nt to entlllo plain
tiff to both lesal and equitable relief, and
prays relief, a part of which only can lw
had at law, hut all of which can be had in
r-qulty. the pleader will be held to Iirvb
Intended thereby to invoke the chancery
and not the common law powers of the
court.
t. After filing a petition of that character
the plaintiff may eh-ct to proceed at law,
but to do so lie should manifest his elec
tion by some unequivocal act whlcii com
mits him to theory that he has abandoned
his claim to equitable relief.
5. A mere demand for a Jury to ti-y the
Issues of fact Is not such an act as weuld
warrant the court In assuming that the
plaintiff has abandoned his claim (o dilut
able relief, because where the relief sought
Is equitable, a court In Its discretion may
submit the Issues of tact to a )ury.
4. In a suit by one of the representa
tives of a deceased person to set rsldo a
conveyance made by the deceased on the
ground that he was mentally incompetent
to execute such conveyance an ufiawer
filed by the deceased In a suit pending In
his lifetime In which he averred thai at
the time of executing the contract then
In suit he was suffering from mental and
physical prostration, and non compos
mentis. Is inadmissible in evidence un the
question of the mrntal capacity of the
giantor.
&. On the trial of the cause e rioarxpert
Witness was asked to state wheth tr the
grantor was able to converse Intelligently
on any particular subject ior any ImikiIi
of time. Held, that the witness having
given the conversations and described trie
conduct of thei grantor, it waa for the
court to draw Inferences therefrom as to
bis Inability to converse Intelligently.
f. The fart that the attending physi
cian prescribed certain drugs fur pa
tient which are used In the treatment of
mental disorders is not competent evidence
tending to establish the insanity of the
patient. .
7. The opinion of an expert witness on
the question of insanity which assumrs
the point In dispute is value!ss.
14054. Standard Distilling nnd Distribut
ing Company, et al., against Harris. Er
ror, Douglas. Reversed and reniuiiqeu.
Albert, C. Division No. 2.
1. An instruction which sets out a slate
of facts and authorizes a verdict for one
of the parties upon a finding of sucn f:icts
Is erroneous unless it Includes every fact
necessary to sustain H verdict In favor of
such party, unless the omitted facts nre
Conclusively established.
2. Where such instruction Is complete
In Itself the error therein Is not cured
by the giving of other Instructions which
correctly state the law or the facts es
sential to a recovery by such party.
8. The mere fact that a cnain nron
which the plaintiff and other workmen
were pulling broke while being used fur
the purpose for which It was furnlihed,
and had broken and been repaired on
former occasions while being thus ured,
Is not of Itself sufficient to show conclu
sively thHt it was not reasonably adapted
to and safe for the purpose for which It.
was furnished.
4. Ordinarily It Is the duty of an em
ployer to see that the tools and p
pllances which be furnishes his mplovcs
i sre reasonably fit and safe for the use for
which they are furnished, but this d if s not
relieve the employe from the exercise of
I his own judgment In the use thereof, snri
i If he puts them to a use for which thiv
are not designed or furnished, or suhierts
! them to a strain beyond their capacity to
: bear and is injured in consequence, the
j employer, In the ubsence of special circum
stances, is not liable.
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Everywhere Obtainable
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