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that all territory of an incorporated city or other words, the extension had then been
town, whether included within the original | fully accomplished and was a part of the
corporation or afterward attached thereto in existing conditions, and to hold that the
accordance with law, shall be or become a part statute had the effect to constitute all of the
of the independent district or districts of said territory within the city limits, as extended,
city or town. See chapter 118, p. 111, Acts a single school district, is to give it present
19th Gen. Assem. Acting presumably upon and prospective, and not retroactive, opera-
the theory that this statute had the effect tion. Had the court attempted to make the
to incorporate into the independent district enlargement of the said district operative
of Burlington that part of the original in- from the date of the extension of the said
dependent district of Fairview included with- boundaries, then the objection raised by the
in the extended city limits, the county audi- appellants would be pertinent; but such is
tor, during all of the time from the year 1882 not the effect of the judgment of the court,
until the commencement of this action in the nor is such the apparent effect of the stat-
year 1906, did not enter or list the tax levied ute. The taxes for which plaintiff asks an
for the Fairview district against any of the accounting are all such as have been levied
property within the tract thus carved out, and collected since the enactment of the
but did each year enter and list against such statute.
property taxes ordered for the Burlington 2. The constitutional question raised in the
district. All of this the petition alleges has appellant's argument is without substantial
been done without authority of law, and

foundation. School districts, like other muwithout the knowledge or consent of the nicipal corporations, are creatures of the plaintiff, and an accounting for such moneys

statute. Their organization, powers, rights, is demanded. Other facts are pleaded to and privileges, indeed, their very existence, strengthen the equities of the plaintiff's case; are all creatures of the legislative will. The but, as we think the statute above referred power that made them can unmake, and the to is conclusive upon the rights of the parties, power that gave can withhold or take away. we shall not take the time or space required

This power may at times be unwisely exerto state them. Counsel for appellant ground cised, and a statute generally wise may optheir contention that the statute did not have erate oppressively in individual instances; the effect to dismember the Fairview district,

but these matters are for legislative considor to transfer any part of its territory to the

eration alone. Accepting the allegations of Burlington district, upon three propositions:

the petition as true, the plaintiff district has First, that the statute is not retroactive; sec. been injuriously affected by the operation of ond, that, if retroactive, it is unconstitutional this statute; but a recasting of its territory as affecting vested rights; and, third, the

into a more convenient form is not imposextension has never been claimed by the

sible, and we cannot assume that an applicaBurlington district as a part of its terri

tion to the defendant district for proper tory, but said district has permitted it to re

school facilities for the inhabitants of the main in the control of the plaintiff.

severed territory, or to the county superin1. With the general rule stated by plain

tendent of schools for such relief as he may tiff that all statutes should be construed as

be able to furnish, will not meet with satishaving prospective operation only, and not factory response. But, however this may be, given retroactive effect except where the leg

the remedy for the wrong, if any, is not withislative intent therefore is expressly stated

in the province of the court to administer. or necessarily implied, we are not inclined

The demurrer to the petition was properly to disagree; but the case before us is quite

sustained, and the judgment entered by the clearly not one calling for its application.

trial court is therefore affirmed. To have the effect claimed for it by the defendants, it is not necessary to give the statute retroactive operation. The title to the

AGA V. HARBACH. act in question is as follows: "A bill for an act to include all of the territory of an

(Supreme Court of Iowa. Sept. 22, 1908.) incorporated city or town within the inde

1. MASTER AND SERVANT-CREATION OF RE

LATION. pendent school district or districts now ex

Where plaintiff, with the knowledge and isting or hereafter to be formed." The body consent of defendant's superintendent in genof the act, as we have already seen, declares,

eral charge of his factory, was employed by an among other things, that all the territory of

engineer as his substitute during a temporary

absence, defendant was charged with knowleilge an incorporated city or town, whether includ.

of such employment and with the same duty ed within the original incorporation or aft- toward plaintiff as to other employés, includerward attached, shall be a part of the in

ing the duty to furnish him a safe place to

work, and to warn him of any dangers incident dependent district or districts of said city

to the employment not obvious or known to or town. It needs but a moment's reflection him. to see that to apply this statute to the case 2. SAME-ACTION FOR INJURY TO SERVANTbefore us is not to give it retroactive effect. QUESTIONS FOR JURY. At the date of its enactment the city bound

Plaintiff, while temporarily employed as en

gineer in defendant's factory, was required to aries had already been extended and made to

transfer an electric light bulb from one socket include a part of the Fairview district. In to another, as occasion arose for using the

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light in one or the other place, and in so doing, by defendant from judgment on a verdict on one occasion he received an electric shock

against him may be conveniently disposed which resulted in his serious and permanent injury. There was evidence that the insulation

of by considering the case with reference to of the wires connected with such lights was the following questions: Was plaintiff an defective, and that the wires were liable to be- employé of the defendant in such sense that come charged with a dangerous current, and that

defendant owed him the duty of furnishing such facts were known to defendant's superintendent, but that the danger was not obvious to a safe place to work, and warning him of an employé not acquainted with the defects. dangers not obvious? Was defendant's neg. Held, that such evidence warranted the sub

ligence in the discharge of these duties the mission to the jury of the question of defendant's negligence in failing to provide plaintiff proximate cause of plaintiff's injuries? And with a reasonably safe place to work, or to warn did plaintiff assume the risks of defects in him of the danger involved in charging the light the electric appliances, if any, by reason of bulb.

which he received his injuries ? (Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, $8 1000_1060.]

1. As to the employment of plaintiff by 3. SAME-DEFECTIVE APPLIANCES — DUTY OF

defendant, the evidence is substantially the MASTER TO KEEP IN REPAIR.

same as on the former trial, and little need Although the lighting apparatus may have be added to what was said in the opinion been installed by a competent contractor, the on the former appeal. As pointed out in that duty rested on defendant to keep it in repair, and he was negligent if he allowed it to become

opinion, plaintiff was secured by one Boehler, defective and dangerous.

the engineer in charge of the machinery in (Ed. Note.-For cases in point, see Cent. Dig. the engine room of one of defendant's buildvol. 34, Master and Servant, g 210.)

ings, to act as his substitute in view of a 4. SAME—LIABILITY OF MASTER-NEGLIGENCE proposed temporary absence, and this emCONTRIBUTING TO INJURY.

ployment was under the authority and with Where the negligence of a master was such that without it injury would not probably have

the knowledge of defendant's superintendent resulted to an employé, he is liable for such in- having supervision of the general operations jury, although another cause contributed thereto. of the factory. The defendant was therefore

(Ed. Note.-For cases in point, see Cent. Dig. charged with knowledge that plaintiff was vol. 34, Master and Servant, $8 795–800.)

entering into his, employment to perform du5. SAME-ACTION-INSTRUCTIONS.

ties in the engine room, and defendant owed Instructions on the question of assumption of risk in an action by an employé against the

to him the same duty as he owed to any emmaster to recover for a personal injury consider- ployé engaged for that purpose. Wilson v. ed and approved.

Sioux Consol. Mining Co., 16 Utah, 392, 52 (Ed. Note. For cases in point, see Cent. Dig. Pac. 626; White v. San Antonio Waterworks vol. 34, Master and Servant, 88 1168-1179.]

Co., 9 Tex. Civ. App. 465, 29 S. W. 252. This 6. APPEAL AND ERBOR-AMENDED ABSTRACT

duty involved furnishing to plaintiff a safe MOTION TO STRIKE FROM FILES. Where an appellee's amended abstract was

place to work and warning him of any dan. filed two months before the time for submis- gers incident to the employment not obvious sion of the case, a motion to strike it from the

to the employé. That plaintiff was not chargfiles, not made until after the appellee had prepared his argument, based in part thereon, and

ed with knowledge of dangers which were after the record has been certified, comes too

in fact known to Boehler, for whom he was late.

substituted, and that duty to warn did not Appeal from District Court, Polk County;

rest upon Boehler, but upon the defendant

acting through his superintendent, was pracA. H. McVey, Judge.

tically settled by what was said in the forAction to recover damages for personal injuries to the plaintiff, by whom the original

mer opinion. Aga v. Harbach, 127 Iowa, 144, action was brought, and for whom on his

102 N. W. 833, 109 Am. St. Rep. 377.

2. There can be no serious controversy as death his administratrix has been substituted; such injuries being alleged to have

to the negligence of defendant in failing to been occasioned by the negligence of the de

provide a safe place to work. In perform

ing his duties about the machinery in bis fendant, in whose employ he was at the

charge, plaintiff was required to use an time of receiving such injuries. There was

electric light at each of two places in the a verdict for plaintiff, and, from the judg.

room in which he was employed. At each ment rendered thereon, defendant appeals.

of these places was a socket connected by Affirmed.

wires with the incandescent lighting system Ryan, Ryan & Ryan, for appellant. Kel- of the building. But only one bulb was proleher & O'Connor and Carr, Hewitt, Parker vided, and it was necessary for plaintiff, as & Wright, for appellee.

it had been the custom of his predecessor,

Boehler, to detach this bulb from one socket, MCCLAIN, J. The facts as to the employ- and attach it to the other from time to time ment of the plaintiff by the defendant are as he required light at these different places. quite fully stated in the opinion of this court The brass portion of this bulb was not inon a former appeal in which a judgment on sulated, and the insulation was also worn off a directed verdict for defendant was revers- from the wires so that, when plaintiff took ed. See 127 Iowa, 144, 102 N. W. 833, 109 hold of the bulb to detach it from one socket Am. St. Rep. 377. The numerous questions to remove it to another, he was likely to re presented for determination on this appeal ceive a slight electric shock from the lighting current. So long as the current was that giving warning as to dangers not obvious, usual for supplying light by means of in- involved the exercise of care on the part of candescent bulbs, there was no serious danger defendant for plaintiff's safety, not only with of injury, but the evidence tends to show reference to defects in the appliances of that, when on one occasion plaintiff attempt- which defendant bad actual knowledge, but ed to remove the bulb from the socket to also with reference to such defects as he which it was attached, a strong charge of should have known in the exercise of reaelectricity passed through his body, which sonable care for his employé's safety. The so burned his flesh that he was most severely duty is affirmative. Rice v. King Phillip and permanently injured. As the evidence Mills, 144 Mass. 229, 11 N. E. 101, 59 Am. tends to show want of insulation on the Rep. 80; Denver, etc., R. Co. v. Smock, 23 brass part of the bulb and the wires, and, Colo. 456, 48 Pac. 681. It is not materiai indeed, tends to show that the whole wiring as bearing on the present inquiry that the of tbe room in which plaintiff was employed electric lighting appliances were installed by was defective and out of repair, and not pro- a competent contractor. They may have been vided with rosettes or small fuses, there sufficient when installed, but the duty to can be no question of the sufficiency of the keep them in repair rested on defendant, and evidence of defendant's negligence to take the he was negligent if they were allowed to becase to the jury if defendant was charged come out of repair and inefficient. Hoboken with knowledge that the defective condition Land, etc., Co. v. United Elec. Co., 71 N. J. Law, of these appliances was likely to cause in- 430, 58 Atl. 1082; National Fire Ins. Co. v. jury. It may be conceded that, so long as Denver, etc., Elec. Co., 16 Colo. App. 86, 63 Pac. the lighting wires were charged with the 949. In Martinek v. Swift, 122 Iowa, 611, usual voltage of not to exceed 110 volts, there 98 N. W. 477, it appeared, not only that the was no danger of serious injury resulting connections were installed by the lighting from defects in insulation; but defendant

company, but also that defendant was withwas charged with knowledge that such elec- out fault in reference thereto. The cases tric lighting wires drawing electricity from cited for appellant relating to the duty to a supply wire carrying an extremely dan- take reasonable care for the safety of an emgerous current of 1,000 volts, as in this case, ployé after danger to him by reason of his may through defects in the transformer, or own negligence has become apparent have no in other ways become charged with a much application to the present case.

The neglarger voltage than that which it was in- ligence of which plaintiff complains is the tended to carry, and reasonable care for the original negligence of the defendant in the safety of employés made it the duty of de- discharge of his primary duty, and not negfendant to protect the employés by proper ligence in discharging a duty subsequently insulation against such hazard. The duty arising after danger to the employé by reato adopt every practicable precaution against son of his own negligent acts has become the dangers incident to the use of electricity apparent. is too well settled by decisions of the court There was evidence for defendant that, to require an extended citation of authorities; soon after the accident, the transformer was but see, as particularly in point, Moran v. found to have been recently burned out; and Corliss Steam-Engine Co., 21 R. I. 386, 43 counsel for appellant insist that, under the At). 874, 45 L. R. A. 267; Voyer v. Dispatch instructions, the jury should have found Printing Co., 62 Minn. 393, 64 N. W. 1138; plaintiff's injury to have been due to this Economy Light & Power Co. v. Hiller, 203 cause, and not to the defective wiring, and Ill. 518, 68 N. E. 72; Delahunt v. United should have returned a verdict for defendTelephone & Telegraph Co., 215 Pa. 241, 64 ant, or that such a verdict should have been Atl. 515, 114 Am. St. Rep. 958. It is shown directed by the court. The instruction of the by the evidence that defendant's superintend-court on this question was that, if the injury ent had knowledge that the electric light- was due to defects in the wiring of the building appliances in the room where plaintiff ing, the defendant would be liable, even was employed were defective, and that per- though the negligence of some other person sons frequently received shocks while trans- might have contributed with that of defendferring the electric light bulb from one socket ant to bring about or produce the injury. It to the other, and it was therefore the duty appears that the transformer was in charge of defendant at least to warn plaintiff of of the electric light company furnishing the possible danger involved in the operation. electricity for the lighting of defendant's The danger was one not obvious to an em- building; but it does not follow that the deployé unacquainted with the defects. Under fective condition or insufficiency of the transthese circumstances the duty to warn was former was the proximate cause of the inmanifest. Vohs v. Shortbill, 130 Iowa, 538, jury in such sense as to exclude liability of 107 N. W. 417; Long v. Johnson County Tele- defendant for his negligence. As already phone Co., 134 Iowa, 336, 111 N. W. 984; indicated, it was the duty of defendant inNewbury v. Getchel & Martin Lumber & Mfg. troducing a dangerous agency into his buildCo., 100 Iowa, 441, 69 N. W. 743, 62 Am. ing to take every precaution practicable St. Rep. 582. It is also plain that the duty against injury resulting therefrom to his em. to provide a safe place to work, and that of ployés, and his negligence in furnishing ap. pliances not properly insulated was the prox- have been bound to switch off the current imate cause of plaintiff's injury, even though before removing the bulb from this socket. if the transformer had worked properly and A motion to strike appellee's amendment remained in good condition these defective to the abstract because not filed in time is appliances would not seriously have endan- overruled. The amended abstract was filed gered plaintiff's safety. Where the negli. | two months before the time for submission, gence of defendant is such that without it and no motion to strike was interposed until injury would not probably have resulted, he after appellee had prepared in part his aris liable, although other causes contributed gument based upon such amended abstract. to the injury. Grand Trunk Ry. Co. v. Cum

There was also a certification of the record mings, 106 U. S. 700, 1 Sup. Ct. 493, 27 L. before any objection to the amended abstract Ed. 266; Wagner v. Portland, 40 Or. 389,

was interposed. We think the motion was 60 Pac. 985, 67 Pac. 300; Fox v. Manchester,

made too late, and that, in any event, no 183 N. Y. 141, 75 N. E. 1116, 2 L. R. A. (N. prejudice has resulted to appellant. S.) 474; Fishburn v. Burlington & N. W. R. The judgment is affirmed. Co., 127 Iowa, 483, 103 N. W. 481.

The complaint that the court did not define “proximate cause” is without force. The

FARMERS' SAVINGS BANK OF ARISPE V. term is in such general use that any intelli

ARISPE MERCANTILE CO. et al. gent person must have understood what was

(Supreme Court of Iowa. Sept. 22, 1908.) meant. If, under the circumstances, further definition was deemed important, some in

1. BILLS AND NOTES-ACTIONS-ORIGINAL AND

RENEWAL NOTES. struction on the subject should have been Where plaintiff sued on a note, and after asked.

interposition of the defense that there was no 3. Conceding that the defendant by his an

indebtedness thereon, and that it was never de

livered to plaintiff, but was placed in its cusswer raised an issue as to assumption of risk, tody for safe-keeping, and was never indorsed we find no error with reference to the sub- by the payee, the petition was amended by mission of that question to the jury. In one

adding a count setting up a note in renewal of

which the first note was alleged to have been instruction the court told the jury that, to

given, and alleging it had never been paid, and enable the plaintiff to recover, certain facts asking judgment thereon if plaintiff be found not must be established, and that, if the jury

entitled to recover on the first note-it was er

ror for the only instruction given with referfailed to find a preponderance of the evi

ence to the matters pleaded in the second count dence in favor of the plaintiff on each of such

to give po authority to find for plaintiff on such propositions, the verdict must be for the de- count, but, at most, to authorize the jury to fendant; but in another instruction the jury

look to the original note only as bearing on the

consideration of the note sued on in the first was specifically told that if plaintiff knew count, and requiring a verdict for defendants the place was unsafe, or could have known of if there was no consideration for the latter its unsafety by the exercise of reasonable

note, or if it was not indorsed by the payee, as

right of recovery on the original note would not caution and prudence, and without informing

be necessarily defeated by proof of forgery of the defendant of the fact, continued to work the indorsement on the other note. in the place notwithstanding such knowledge, 2. SAME. then he assumed whatever risk there was by

The giving of a renewal note has 20 ef

fect, in the absence of an agreement therefor. reason of the condition of the place, and

to discharge either the makers or indorsers of could not recover. There was no inconsist- the original note, if, for any reason not chargeency between these two instructions. One

able to the wrong or fraud of the holder, the

renewal proves invalid. related to plaintiff's affirmative duty to es

3. PLEADING-ELECTION-ACTION ON ORIGINAL tablish defendant's liability to plaintiff, the

AND RENEWAL NOTES. other to an affirmative defense, which, if One may sue in one count on a renewal established, would relieve the defendant of note, and in another count, in the alternative, liability. Martin v. Des Moines Edison Light

on the original note; the two claims not being

inconsistent, and no election being required Co., 131 Iowa, 724, 106 N. W. 359. The ques- where but one recovery is sought. tion of assumption of risk was submitted un- [Ed. Note.-For cases in point, see Cent. Dig. der adequate instructions, and there was suf- vol. 39, Pleading, $ 1199.) ficient evidence to justify the finding that 4. BILLS AND NOTES--ACTION-DENIAL OF Inplaintiff did not know, and as a reasonably

DEBTEDNESS.

A mere denial of indebtedness on a note prudent man was not bound to know, of the

does not put the consideration in issue. danger involved in the defective appliances with which he was required to work. There

Appeal from District Court, Union Counwas evidence that he was aware that a

ty; H. K. Evans, Judge. switch which had been originally introduced

Action at law upon a promissory note. for the purpose of cutting off the current from

Judgment for defendants, and plaintiff apthe socket where the injury occurred was no

peals. Reversed. longer in use; but, had there been proper in- B. Brown and J. H. Macomber, for appelsulation, this would have been immaterial. lant. Sullivan & Fry, for appellees. If he acted under the justifiable belief that the insulation was sufficient and the appli- WEAVER, J. This action was begun upances otherwise safe he would not necessarily on a promissory note purporting to have been made by the Arispe Mercantile Company by that there was no valuable consideration for Burr Forbes, president, and Frank Forbes, said note in question, Exhibit A. But, if secretary, payable to the order of Burr you find the fact to be that the defendant Forbes & Son, and indorsed by that firm to Burr Forbes & Son received $1,000 for the the plaintiff bank. To this claim the de- sale of the first note of date May 25, 1904, fendants Forbes & Son, who are sued as in- and that this note in question, Exhibit A, dorsers, answer, denying any indebtedness is a renewal thereof, and you find that the thereon, and alleging that the note was never defendants Burr Forbes & Son indorsed Exdelivered to the bank, but placed in its cus- hibit A as heretofore defined, then your tody for safe-keeping, and was never indors- verdict should be for the plaintiff, and ed by the payee therein named. The mer- against Burr Forbes & Son. Should you find cantile company also pleaded substantially under the evidence that there was no valthe same matter in defense. After this de.

uable consideration, or should you find that fense had been raised, the plaintiff amended the defendant did not indorse the note as its petition by adding a second count, alleg.

heretofore defined, then your verdict should ing that on May 25, 1904, and prior to the

be for the defendants Burr Forbes & Son." making of the note in suit, the Arispe Mer

It will be observed that this instruction cantile Company made to Burr Forbes & Son

gives the jury no authority to find for plainits promissory note for $1,000, due August

tiff on the second count of its petition, but, 25, 1904, which note was then indorsed to

at most, authorizes them to look to the origthe plaintiff. It is further alleged that this

inal note only as bearing upon the consideranote fell due, and, not being paid, the mer

tion of the note mentioned in the first count. cantile company made, and Burr Forbes &

In this we think there was error; for, as we Son indorsed to the plaintiff in renewal

have already said, we may assume the proof thereof, the note mentioned in the first

of the alleged forgery to have been complete, count; but said plaintiff further says that,

yet the right of recovery on the original note doubts having arisen as to the validity of

would not necessarily be impaired. The givsaid renewal note, it asks that, in case it

ing of a renewal note had no effect in the be found not entitled to recover thereon, it

absence of an agreement therefor to dismay have judgment against the defendants

charge either the makers or indorsers of the upon the original note, wbich it alleges has never been paid.

original obligation, if, for any reason not 1. It is not material that we consider the

chargeable to the wrong or fraud of the eridence bearing upon the genuineness of the

holder, the renewal proves to be invalid. indorsement upon the note described in the

Indeed, in accordance with a long line of first count of the petition; for, if its forgery

precedents, it is always allowable for the has been established, it does not necessarily plaintiff to declare in his petition in one defeat the plaintiff's recovery on the second

count upon a promissory note or other writcount. The only instruction given by the

ten obligation, and in another upon the orig. trial court with reference to the matters

inal indebtedness or consideration for which pleaded in the second count is in the fifth

the note was given. Kimball v. Bryan, 56 paragraph of its charge, and the following

Iowa, 632, 10 N. W. 218. The two claims are is the material part thereof: “You are in

not inconsistent, and, where but one recovery structed that if the plaintiff has shown and

is sought, no election is required. O'Connor proved by a preponderance of the evidence

v, Hurley, 147 Mass. 145, 16 N. E. 764; that the note in question, Exhibit A, was

Rhodes v. Pray, 36 Minn, 392, 32 N. W. 86; renewal of the note of date May 25, 1904,

Winstead v. Webb, 39 N. Y. 323, 100 Am. and that one of the defendants, Burr Forbes

Dec. 435. It should be noted, also, in the or Frank Forbes, delivered said note in ques

case before us that the answer to the claim tion, Exhibit A, to the plaintiff in renewal set up on the original note is a mere denial. of the note for $1,000 of date Mav 25. 1904, No want of consideration for said note is and you further find that at the time of the pleaded, and, while the plea refers to and delivery of the note in question, Exhibit A, incorporates by reference the answer to the to plaintiff by one of the defendants that the first count, there is nothing which by the indorsement now appearing on said note was most liberal construction can be held to conthen on the note, then you are instructed that stitute a plea to the consideration for the this in law would amount to an adoption of note. A mere denial of indebtedness upon a the signatures then appearing on said note, promissory note or written promise to pay and on this issue of the indorsement you does not put the consideration of the promshould find for the plaintiff and against ise in issue. Nelson v. White, 61 Ind. 139; Burr Forbes & Son. And, in connection here- Sharpless v. Giffen, 47 Neb. 146, 66 N. W. with, if you find that the defendants Burr 285; Insurance Co. v. Hayes (Tex. Civ. Forbes & Son indorsed Exhibit A, then you App.) 34 S. W. 654; University v. Livingston, are instructed that a valuable consideration 57 Iowa, 307, 10 N. W. 738, 42 Am. Rep. 42. would be presumed, and plaintiff should re- We call attention to the condition of the cover against the defendants Burr Forbes & issues principally to emphasize our concluSon, unless Burr Forbes & Son show and sion that the failure of the court to instruct prore by a preponderance of the evidence upon this branch of the law of the case was

117 N.W.-43

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