bonds were not the property of respondents, but of the corporation; that, because the corporation has never been legally dissolved, the action of the directors in allotting them was null under the provisions of section 2732, Rev. Codes, which is as follows: "The directors of corporations must not make dividends, except from the surplus profits arising from the business thereof; nor must they divide, withdraw, or pay to the stockholders, or any of them, any part of the capital stock; nor must they reduce or increase the capital stock, except as in this title specially provided. For a violation of the provisions of this section, the directors, under whose administration the same may have occurred (except those who may have caused their dissent therefrom to be entered at large in the minutes of the directors at the time, or, when not present, when the same did occur) are, in their individual and private capacity, jointly and severally liable to the corporation, and to the creditors thereof, in the event of dissolution, to the full amount of the capital stock so divided, withdrawn, paid out or reduced. There may, however, be a division and distribution of the capital stock of any corporation which remains after the payment of all its debts, upon its dissolution or the expiration of its term of existence." This statute was enacted for the benefit of creditors of, and those who engage in business with, corporations on the assumption that their capital is unimpaired, and of stockholders, who have a right to insist that the corporation continue in business, but not for the protection or advantage of directors who have violated its express terms. In this case objection to the allotment or distribution of the bonds has not been made by a creditor, all the stockholders have agreed to it, and, it is alleged in the answer, the canal company has had no interest in, or control over, the bonds since the allotment thereof to the stockholders and delivery to Mickleson for their use and benefit. In re Wilson's Estate (Or.) 167 Pac. 580. As against the directors, the allotment of the bonds was valid, and, being allotted to respondents, became their property, and they, not the corporation, should sue to recover for their loss. These appellants were directors from the time the bonds were received and placed with Mickleson until they were stolen. There is conflict in the evidence as to whether or not the bonds were placed with Mickleson with respondents' consent; but the jury found in their favor in this respect, and its finding will not be disturbed. In view of the allegations of the complaint and the denials and affirmative allegations of the answer, the court is concluded upon the question of own ership of the bonds claimed by respondents after the allotment thereof. The corporation very properly retained possession of the bonds of respondents, in order to protect itself from a contingent liability which might arise in case the owners of the stock should at some time demand their rights to water based on the ownership thereof. It was the duty of the corporation to use reasonable care and diligence to keep safely the bonds of respondents until the exchange could be made. Clearly the corporation is liable for negligence resulting in the loss of the bonds. The appellants are charged in the complaint, with the corporation, as joint tort-feasors. So far as respondents are concerned, appellants may be regarded as agents of the corporation, and, if their negligent acts contributed to the lossof the bonds, they are jointly and severally liable with the corporation. 2 C. J. 903. The evidence shows that the directors placed these bonds in the hands of Mickleson, the secretary, and from the time they were so delivered until they were stolen they were in his possession, although the corporation had a treasurer, who had given a bond for the faithful performance of his duty, and Mickleson had given none. During all this time the members of the board never satisfied themselves, except by taking Mickleson's word, that the bonds were safe. This evidence was sufficient to sustain the finding of the jury that the bonds were stolen and lost through appellants' negligence. 7 R. C. L. 478; Fletcher v. Eagle, 74 Ark. 585, 86 S. W. 810, 109 Am. St. Rep. 100; Marshall v. Farmers', etc., Savings Bank, 85 Va. 676, 8 S. E. 586, 2 L. R. A. 534, 17 Am. St. Rep. 84; note to Bosworth v. Allen, 55 L. R. A. at page 766. The judgment is affirmed, and costs are awarded to respondents. Where the employé of a telephone company, in order to make certain repairs, ascended a telephone pole and sustained injuries as a result of the breaking of the pole beneath the surface of the ground on account of its decayed condition, which condition was not obvious or known to him, it being shown that it was not employment to make an independent inspection the duty of the employé under his contract of of the pole for the purpose of discovering hidden defects, the failure of the telephone company to use due care to maintain such pole in a reasonably safe condition for the purpose of such employment constitutes actionable negligence. 2. MASTER AND SERVANT~124(1) — SAFE PLACE FOR WORK INSPECTION GENCE. NEGLI It is the primary duty of a telephone company to properly inspect and to exercise due care to maintain its poles in a reasonably safe condition for the use of its employés, and it is legally liable for injuries resulting from the neglect of such duty. 3. MASTER AND SERVANT 124(5), 235(3) NEGLIGENCE-CONTRIBUTORY NEGLIGENCE. An employé of a telephone company, the scope of whose employment is confined to seeing that the lines are kept in working order, is required to use only ordinary and reasonable care and caution before ascending one of the company's poles, and if, by the negligence of the company, such defects existed as were latent and could not be discovered without an inspection, the failure of the company to make such inspection, and thereby provide a reasonably safe place to work, was such neglect and want of due care in protecting its employés as renders it liable to them in damages for injuries occasioned therefrom. 4. MASTER AND SERVANT 3(2)—RELATION. The relation of an employé to his employer is determined by the contract of employment and the actual scope of employment, irrespective of what designation may be given such employment. 5. APPEAL AND ERROR 1033(6)-RIGHT TO / ALLEGE ERROR-INSTRUCTIONS. Where instructions requested are modified by the court so as to be more favorable to the party requesting them than before such modification, the one requesting such instructions cannot be heard to complain. ·6. APPEAL AND ERROR 930(2) — INSTRUCTIONS CONSTRUCTION AS A WHOLE. All the instructions given in a case must be read and considered together, and, when taken as a whole, they correctly state the law and may be reasonably and fairly harmonized, it will be assumed that the jury gave due consideration to the instructions as a whole, and was not misled by any single instruction or isolated portion thereof. 7. DAMAGES 216(1)-MISLEADING OR AMBIGUOUS INSTRUCTION. In this case the court gave the following instruction: "I instruct you that, if you find for the plaintiff the rule as to damages to be allowed is this: 'Where an injury has been received by the servant on account of the negligence of the master, damages should be computed and ascertained and awarded on the basis, as nearly as possible, of compensating the servant for the pain, suffering and loss he has sustained and will sustain in the future on account of the injury; and he should be placed, as nearly as it is possible to estimate, in as good a position as he was before the injury was inflicted.'" Held, that this instruction fairly states the law and the italicized part does not render it either ambiguous or misleading. 8. INSTRUCTIONS-ERROR. BUDGE, C. J. The appellant owns and operates a telephone system extending through Eastern Washington and Northern Idaho. The respondent was in its employ at Harrison, Idaho, and while so employed and in the course of making certain necessary repairs under its direction, and while upon one of its telephone poles, sustained serious and permanent injury as a result of the breaking of the pole beneath the ground, precipitating respondent upon the sidewalk. This action was brought to recover damages by reason of the injury sustained, and was tried by the court with a jury, resulting in a verdict in favor of the respondent for the sum of $10,000. From the judgment entered thereon and from an order overruling a motion for a new trial, this appeal is taken. Respondent in his complaint, inter alia, alleges that on the 25th day of November, 1915, he received an order from the appellant's chief operator at Harrison, to locate certain trouble on its pole line, made an examination, and found the wires attached near the top of one of its poles were crossed. It was not his business or duty or within the scope of his employment to inspect the poles for the purpose of determining whether they were in a safe or dangerous condition. From an ocular examination made by him before ascending the pole, there were no outward, apparent, or visible defects. Before ascending the pole, however, respondent seized hold of it, or in other words gave it what is known among linemen and trouble men as the "once over." Thereupon he ascended the pole for a distance of about 35 feet, and proceeded to disentangle the wires, and while thus engaged the pole broke about eight inches below the surface of the ground where it had rotted until it was practically gone. Respondent further alleges that the injuries were occasioned by reason of the negligence, carelessness, and wrongful acts of appellant in not having the pole removed and a new, safe, and sound pole erected in its stead. Appellant had actual . Held, that the court committed no error in knowledge of the unsound and unsafe coninstructions given or refused. 9. PERSONAL INJURY-EXCESSIVE DAMAGES. dition of its pole line, which had never been Held, that under all the facts and circum-inspected by the company, although it knew stances shown by the record in this case, a ver- the same had been built from 12 to 15 years. dict of $10,000 for the plaintiff was not exces- Appellant was negligent and careless in sive, and does not appear to have been the re-ordering respondent to ascend the pole or sult of passion or prejudice or misconception of to make repairs thereon in its then condithe law on the part of the jury. tion; that respondent had no knowledge of Appeal from District Court, Kootenai the unsafe condition of the particular pole County; R. N. Dunn, Judge. Action by Jack Ramon against the Interstate Utilities Company. Judgment for plaintiff, and defendant appeals. Affirmed. Danson, Williams & Danson, of Spokane, Wash., R. H. Elder, of Coeur d'Alene, and George D. Lantz. of Spokane, Wash., for appellant. J. F. Ailshie, of Cœur d'Alene, for respondent. in question. Appellant in its answer denied all of the material allegations of the complaint, and set up assumption of risk and contributory negligence. Briefly stated, the material facts are, in substance, as follows: The employment of the respondent by appellant is not denied; the scope of his employment is controverted. There is no controversy over the fact that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes not apply as to work which the employé is employed to make safe. So in this case if you find it was Mr. Ramon's duty under his contract to make the pole safe, he cannot complain because the pole may have been unsafe." Western Union Telegraph Co. v. Tracy, 114 Fed. 282, 52 C. C. A. 168; La Duke v. Hudson River Telephone Co., 136 App. Div. 136, 120 N. Y. Supp. 171; Dupree v. Alexander, 29 Tex. Civ. App. 31, 68 S. W. 739. the respondent sustained serious and perma- | safe place to work or safe instrumentalities does nent injuries while in the employ of appellant and while acting under its direction in correcting the trouble on its telephone line as alleged in his complaint. It is undisputed that the particular pole in question, on which he was employed and which broke and fell with him, had rotted practically through beneath the surface of the ground some eight or ten inches; that the pole was in an unsafe condition, which was not known to respondent; that the pole line had never been inspected by appellant for the purpose of ascertaining its condition; that the defect could not have been discovered in the absence of an inspection. Upon this issue the jury found that the duty of inspection rested upon appellant and not upon respondent. It follows that since the duty of inspection was a primary duty devolving upon the appellant, it thereby became responsible for negligence in its performance. Western Union v. Tracy, supra. It is unnecessary to discuss each assign- The company, in the absence of a contract ment of error separately. The first five as- of employment with respondent whereby the signments go largely to the sufficiency of duty to inspect the telephone pole for hidden the evidence. Assignments 6 to 20, inclu- defects before climbing it devolved upon him, sive, predicate error upon the giving of cer- assumed the duty of using due care to the tain instructions, and the refusal to give oth-end that the pole upon which respondent was ers requested by appellant. The twenty- directed to work be reasonably sound and first assignment that "the court erred in overruling the appellant's motion for a new trial" is in legal effect merely a summary of the various alleged errors. safe. The plaintiff company neglected its duty in this respect, and provided a pole that beneath the surface of the ground was old and rotten, which condition was unknown to respondent. Under the great weight of authority it was clearly the primary duty of the company to use due care to furnish the respondent with a reasonably safe place to The main question in issue toward which both parties directed their evidence is: Was it the duty of respondent under his contract of employment to make an independent inspection of the pole in question for the pur-work-a pole that is allowed to become rotpose of discovering hidden defects and to correct them, or was it the primary duty of the appellant company under its contract of employment with respondent to furnish him with a reasonably safe place to work and to maintain the same in a reasonably safe condition, and in order to do so was it the duty of appellant company to properly inspect its pole line, including the particular pole in question, for hidden defects, and did its failure so to do constitute actionable negligence? [1-3] This important issue was squarely submitted, and we think correctly so, to the jury, in the following instructions: "I instruct you that it was the duty of the defendant company to provide and maintain a reasonably safe place for its employé, the plaintiff, to work, and that this duty is one that could not be shifted or delegated to another. The duty of inspecting its poles to learn if they were in a decayed or rotten condition below the surface of the ground so as to make them unsafe or dangerous for a lineman, known as a troubleman, in repairing wire trouble, to ascend and work upon, was a primary duty of the company, which it owed to the servant and was bound to discharge in a reasonably diligent and careful manner. And in this case the plaintiff did not assume the risk of latent and invisible defects caused by the rotten and decayed condition of the pole underground, unless you find that the plaintiff under his employment by the defendant had agreed to do such inspection and thereby assumed such risk himself, or unless such latent and invisible defects would have been discovered by the plaintiff by the exercise of reasonable care, and unless the plaintiff failed to exercise such reasonable care.' "You are instructed that the law with refer ten beneath the ground is not a reasonably safe pole upon which to work. It was not only the duty of the company to use such care to furnish a reasonably safe place, but to inspect its pole line as often as necessary, and by reasonable inspection and care to maintain the poles in a reasonably safe condition. Combs v. Delaware & Atlantic Telegraph & Tel. Co., 218 Pa. 440-443, 67 Atl. 751, 752. The record in this case discloses, as did the record in the case of Arnold v. Northeastern Penn. Telephone Co., 253 Pa. 23, 97 Atl. 1038, that: "If a pole appears straight and sound by outward examination by a lineman, it is customary for him to climb it at once, without further inspection, and this would appear to be the natural course for a lineman to follow." And the Supreme Court of Pennsylvania in the latter case, referring to the situation just quoted held that: "To establish the doctrine that companies are not liable for any accident which might come to linemen, caused solely by the lack on their part of inspection of poles below the ground, when linemen are not instructed to inspect the poles and are not furnished the proper tools for such inspection, seems to us to be an unsafe doctrine, having little regard or care for the lives or safety of such linemen." A positive duty rested upon the company to properly inspect and use due care to render reasonably safe its poles, Cumberland Telephone & Telegraph Co. v. Bills, 128 Fed. 272, 62 C. C. A. 620, and this obligation it could not escape. respondent had knowledge of the unsafe con- [4] In the absence of the duty to inspect dition of its pole line system generally and resting upon the respondent, he had a right since employers have a right to decide how to assume that the pole was fit for the uses their work shall be performed and may em- to which the company applied it. Holden v. ploy men to work with dangerous implements Gary Telephone Co., 109 Minn. 59, 122 N. W. and in unsafe places without incurring lia- 1018. Although he was furnished with no bility for injuries sustained by workmen who tools for the purpose of making an inspecknow, or ought to know, the hazards of the tion, nevertheless the company, with full service which they had chosen to enter, in knowledge of the age and dangerous condithe instant case the falling of the pole in tion of its pole line, which it admits it had question was one of the hazards assumed never inspected, seeks to relieve itself of by the respondent under his contract of em- liability upon the theory that respondent ployment, and that he caunot base a claim was its general manager; that tools for inof negligence upon known dangers. There spection were available; that he possessed is abundant evidence in the record that the the same knowledge it possessed; his emrespondent had no knowledge of the danger- ployment was not limited, and he had never ous condition of the particular pole that fell been forbidden to inspect the poles; that, with him. The finding of the jury that ap- whatever the dangers incident to his empellant's contract of employment did not deployment were, he had assumed the same, volve upon respondent the duty of inspec- and therefore could not recover. This contion is conclusive upon that point, and since that duty is a primary duty of the company, it does not follow, although respondent may have known that the pole line of the appellant company, generally, was unsafe, that he assumed any other or greater risk than such as grew out of or was incident to the nature and scope of his employment. He was not required to use more than ordinary and reasonable care and caution before ascending the pole in question and if, by the negligence of the company, such defects ex-phone service, to keep the line open that isted as were latent and could not have been messages might be sent and received and discovered without an inspection, the fail- conversations carried on in order that there ure of the company to make the inspection was such negligence and want of due care as would render it liable in damages for injuries resulting therefrom. In the case at bar appellant, conceding that it had knowledge of the decayed condition of its pole line, and that the same was unsafe, nevertheless seeks to excuse itself upon the theory that respondent possessed the same knowledge and thereby assumed the risk of hidden defects. But this contention fails to take into account the fact that respondent had no knowledge of the condition of the particular pole in question or knowledge of the latent defects, and that he owed the company no duty of inspection. That he was not instructed to or expected to make an inspection is fully borne out by the testimony offered by one of appellant's division superintendents in answer to the following question: * "Q. You expect him to make whatever investigation necessary? * A. He only makes an ocular examination of the pole as he goes to it. We have never expected him to stop and dig around a pole before he climbs it." As was said in the case of McGuire v. Bell Telephone Co., 167 N. Y. 208, 60 N. E. 433, 52 L. R. A. 437: "The advantage to the company by this course is plain. If each lineman was to dig around and test every pole before he ascended it, a large part of his time would be taken up by this work alone, and repeated tests would soon impair the stability of the pole itself." tention is untenable. It is clear from the evidence that respondent was nothing more than a "trouble man" or "trouble shooter." Dow v. Sunset Telephone & Telegraph Co., 157 Cal. 182, 106 Pac. 587. That he was designated by some other name would make no difference-the contract and the scope of his employment determined his relationship to the company, and not his designation. It was respondent's duty to discover and correct minor troubles interfering with the tele be no decrease either in the service to the public or revenue to the company. He was not charged with the duty of ascertaining the state of preservation of the pole line. As such trouble man he was furnished with such tools only as were necessary for his use in the performance of these particular duties. To say that additional tools were owned by the company, or that under special directions he had replaced poles and, possibly upon special occasions, performed work and labor outside of his general known duties is no answer to the charge of negligence, particularly in view of the failure of the company to exercise due care to furnish the respondent with a reasonably safe place to work and its failure in the performance of its primary duty to make reasonable inspections from time to time of its pole line. While it is true that even a trouble man must use reasonable care to avoid open and obvious dangers, and that he assumes risks incident to his employment and which grow out of the same, he is not required, under the general rule as we find it in cases of this kind, to make an independent inspection, unless such inspection is made one of his primary duties and is within the contract of his employment or under express instructions to make an independent inspection for hidden dangers of each and every pole upon which he works. [5, 6] This disposes of the assignments of error touching the sufficiency of the evidence, intelligence to qualify as a juror into the erand further renders a detailed discussion of roneous view contended for by appellant. the assignments with reference to instruc- It may be that for the purpose of an intions unnecessary. The main point in the struction the principle involved might be case, and the instructions relating thereto, stated with greater judicial nicety, but the has already been discussed. The objections language is neither ambiguous, confusing, raised to the instructions given are all based nor misleading. In any event, as is tacitly upon appellant's erroneous theory as to the conceded by appellant, the instruction has matters already reviewed. Some of these in- no important bearing, except as to the structions were given as requested by appel- amount of the verdict, which was the full lant with slight modifications; we have ex- amount demanded in the complaint. When amined the modifications in the light of ap- all of the facts and circumstances in evipellant's criticism and have found that in dence are considered, there is nothing in the each instance the instruction as given stated record which tends to show either that the the law more favorably to appellant than verdict was excessive, or that it was the rewould have been the case without the modifi-sult of passion or prejudice, or that it had cation. The instructions which were re- been superinduced by any misconception on fused, likewise, were drawn in the light of the part of the jury as to the law which appellant's erroneous theory of the facts was to control and guide their deliberations hereinbefore considered and the law appli- upon the evidence in arriving at a verdict. cable thereto, and did not in either instance correctly state the law with reference to this case. The instructions as a whole correctly stated the law applicable to the facts and circumstances in evidence upon every issue involved. They are neither ambiguous nor misleading, and this court has uniformly adhered to the rule that: "All the instructions given in a case must be read and considered together, and where, taken as a whole, they correctly state the law and are not inconsistent, but may be reasonably and fairly harmonized, it will be assumed that the jury gave due consideration to the whole charge, and was not misled by an isolated portion thereof." State v. Curtis, 30 Idaho, 537, 165 Pac. 999; Osborn v. Cary, 28 Idaho, 89, 152 Pac. 473; Cady v. Keller, 28 Idaho, 368, 154 Pac. 629; Taylor v. Lytle, 29 Idaho, 546, 160 Pac. 942; State v. Curtis, 29 Idaho, 724, 161 Pac. 578. [7-9] It is contended by appellant that, in any event, the verdict is excessive. Instruction No. 5 as given reads as follows: "I instruct you that, if you find for the plaintiff, the rule as to damages to be allowed is this: 'Where an injury has been received by the servant on account of the negligence of the master, damages should be computed and ascertained and awarded on the basis, as nearly as possible, of compensating the servant for the pain, suffering, and loss he has sustained and will sustain in the future on account of the injury; and he should be placed, as nearly as it is possible to estimate, in as good a position as he was before the injury was inflicted.'"' It is urged that the italicized portion of this instruction "turned the jury loose, without chart or guide, to grant such damages as they may think the pecuniary necessities of the plaintiff might seem to need, regardless of the evidence in the case," and the case of Holt v. Spokane & P. Ry. Co., 3 Idaho, 703, 35 Pac. 39, is cited in support of this contention. But the attempt on the part of appellant to draw a parallel between the instructions as here given and the situation confronting the court in the Holt Case is strained and untenable. The instruction as given, when read as a whole, fairly states the law, and could lead no one of sufficient We have carefully examined the entire case, and are satisfied that no prejudicial error is disclosed in the record. The judg ment is therefore affirmed. Costs awarded to respondent. 1. MORGAN and RICE, JJ., concur. (31 Idaho, 191) SALA v. CRANE et al. (Supreme Court of Idaho. Jan. 2, 1918. On Petition for Rehearing, Feb. 1, 1918.) PUBLIC LANDS 114(3) - PETITION-DESCRIPTION-PLAT. Where a patent conveys land according to the official plat of the survey returned by the surveyor general, the plat becomes an integral part of the description of the land. On Petition for Rehearing 2. PUBLIC LANDS 114(3)—PATENT-CON The expression in the patent "according to the official plat of the survey of the land returned to the General Land Office by the surveyor general" refers to the description of the land as well as to the quantity conveyed. 3. PUBLIC LANDS 25-SURVEY AND PLAT COLLATERAL ATTACK. The survey and the plat thereof having been approved by the General Land Office, neither can be called in question in a collateral proceeding. Appeal from District Court, Kootenai County; Robert N. Dunn, Judge. Action to quiet title by Cattina E. Sala against A. A. Crane and others. Judgment for defendants, and plaintiff appeals. Reversed, and a new trial ordered. McFarland & McFarland, of Cœur d'Alene, and Cyrus Happy, of Spokane, Wash., for appellant. John P. Gray and W. F. McNaughton, both of Coeur d'Alene, and Crane & Craig, of Harrison, for respondents. RICE, J. Three causes of action are set out in the complaint in this action. The first is an action to quiet title; the second for res |