5. What has been said covers all questions requiring special mention. We find no reversible error in the record, and the order appealed from is affirmed. he promptly notified the switching foreman | tiff was to his neck and spine and the muscles of the danger. This notice was denied by thereof. He was suffering at the time of the the foreman, though he admitted that, had trial from what the physicians termed wrythe notice been given, it would have been his neck, and those called by plaintiff were of duty to remedy the danger. Hagen made no opinion that it was permanent. At the time effort to remedy the situation, and, if he did of the accident he was caught by the wire not, in fact, notify the foreman, he failed in under his chin, and was hurled backward the performance of his conceded duty. If he between the cars where he was held until did notify the foreman, it stands admitted the cars were stopped. In this fall the back that he did nothing, and he also failed in his of his neck came violently in contact with duty. The trial court in its charge to the some part of the car. His neck is stiff, and, jury did not expressly charge that notice of if this is permanent, as the evidence tends the danger to Switchman Hagen was notice to show, we are not prepared to hold that to the railroad company. The court stated the damages are so excessive as to justify the claims of plaintiff in respect to the neg- interference by this court. ligence relied on for recovery, one of which was that notice to Hagen was notice to the company, and then in a general way left the jury to say, not whether the company had notice of the danger, but whether the charge of negligence against it was made out by the evidence. If the defendant was apprehensive that the jury might understand from the charge that the court intended to say that notice to Hagen was notice to the company, a request for some specific direction upon the point should have been made. But it is doubtful whether this feature of the case is of importance. The question in the case was whether the fellow servants of plaintiff failed in the discharge of their duties, and whether such failure constituted negligence rendering defendant liable. The evidence, taken as a whole, made this a question of fact. If the agents of defendant having authority to act, and with a duty to remedy dangers of this kind, had actual notice thereof, it would seem not necessary to bring notice home to some other higher servant. 3 Labatt, M. & S. p. 2774, note 6. [3] 3. The action is founded upon the federal Employers' Liability Statute (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]), and complaint is made that the trial court did not in its charge instruct fully as to the rights and liabilities of the parties thereunder. Defendant points out no reason for the conclusion that it was prejudiced by the failure of the court in this respect. The only omissions we discover are the failure to state the effect of contributory negligence under the federal act, and refer to the rule of assumption of risk. But this was not prejudicial. There was no evidence of negligence on the part of the plaintiff, and he was wholly unaware of the presence of the wire, and did not therefore assume the risk. And, moreover, there was no request for instructions upon the subject, and, since the charge fully covered the essential issues in the case in a general way, there was no prejudice. INTERNATIONAL LUMBER CO. v. BRAD- (Supreme Court of Minnesota. Jan. 28, 1916.) 1. CONFUSION OF GOODS 10 RIGHT TO Action in replevin to recover all of the lumber in the yards of defendant on the theory that defendant had willfully and with intent to defraud mixed lumber sawed from logs belonging to plaintiff with its own, resulting in an inextricable confusion of goods. It is held: By insisting on the trial that it was entitled expressly consenting to an instruction to the to recover all of the lumber or its value, and jury that the verdict must be for the value of all the lumber, or a verdict for defendant, plaintiff waived the right to recover for the lumber sawed from its logs. [Ed. Note.-For other cases, see Confusion of Goods, Cent. Dig. § 11; Dec. Dig. 10.] 2. APPEAL AND ERROR 853-PRESENTATION BELOW-INSTRUCTION-LAW OF THE CASE. An instruction to the jury to the effect that believed from the evidence that defendant's acts plaintiff was entitled to recover if the jury were intentional, willful, and fraudulent, but not if they believed such acts were due to mising no objection or exception by plaintiff, and take, inadvertence, or mere negligence, there bethe instruction being in accord with the theory of plaintiff on the trial, is the law of the case, and plaintiff cannot now urge that the law is otherwise than as stated in the instruction. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1524, 3405; Dec. Dig. 853.] 3. CONFUSION OF GOODS 12-REPLEVININTENTIONAL, WILLFUL, OR FRAUDULENT ACTS-SUFFICIENCY OF EVIDENCE. The evidence sustains the finding of the jury that defendant's acts were not intentional, willful, or fraudulent. [Ed. Note. For other cases, see Confusion of Goods, Cent. Dig. §§ 5-14; Dec. Dig. 12.] 4. ADMISSION OF EVIDence. admission of evidence. There was no error in the rulings on the 4. The trial court having approved the verdict as to the amount of damages awarded, we do not see our way clear for disturbing Appeal from District Court, Koochiching the recovery. The injury suffered by plain- | County; W. S. McClenahan, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Action by the International Lumber Com-, clearly that some of the lumber in the vapany against the Bradley Timber & Railway Supply Company. From judgment for defendant, plaintiff appeals. Affirmed. Harris Richardson and Walter Richardson, both of St. Paul, for appellant. Baldwin, Baldwin & Holmes, of Duluth, Franz Jevne, of International Falls, and Marshall A. Spooner, of Bemidji, for respondent. BUNN, J. This is an action in claim and delivery, or replevin, in which plaintiff demands judgment for the immediate return and possession of 2,000,000 feet of lumber or the value thereof, stated to be $20,000. The complaint alleged that defendant wrongfully caused to be sawed into lumber logs of plaintiff wrongfully taken from the Big Fork river, and caused the lumber to be piled in the millyard of the State Lumber Company near the town of Gemmel, in Koochiching county. The sheriff took the lumber under the writ of replevin, but defendant rebonded. The answer alleged that defendant was the owner of the lumber in question, except a small amount, not exceeding 2,000 feet, which belonged to plaintiff, coming into defendant's possession inadvertently and through mistake, for which defendant was and is ready and willing to pay plaintiff. The reply was a general denial. The case was tried to a jury, and the result was a verdict for defendant. Plaintiff moved for a new trial, the motion was denied, and judgment entered on the verdict. This appeal is by plaintiff from the judgment. rious piles in the yards at Gemmel was undoubtedly sawed from logs belonging to plaintiff, and taken out of the Big Fork and It appears with equal certainty that the shipped to the mill at Gemmel by defendant. amount of this lumber, if not in itself inthe total amount of lumber in the yards, considerable, was small when compared with which is what plaintiff seeks to recover in this action by applying the doctrine of confusion of goods. This fact is important only as it bears upon the question whether the jury was justified in finding defendant innocent of willfully taking and mixing defendant's goods with its own. That this is the pivotal question on this appeal will, we think, clearly appear. [1] 1. Defendant does not dispute that plaintiff was originally entitled to either the return of the lumber sawed from its logs or to the value thereof, but it insists that plaintiff waived the right to this relief by insisting all through the trial that it was entitled to recover all of the lumber seized on the writ, and by expressly consenting to the instruction of the court to the jury that the verdict must either be for $20,000, the value, as alleged in the complaint, of all the lumber described in the complaint, or a verdict for the defendant. We hold with defendant on this point. Plaintiff has waived its right to recover the lumber sawed from its logs or its value. [2] 2. Whether the doctrine of confusion of goods can be applied where the intermixing is the result of negligence only, without willPlaintiff's case is based upon the doctrine fulness, is possibly a debatable question unof confusion of goods. It was admitted in der the authorities. Judge Dibell discusses the answer and on the trial by defendant this point in Clay, Robinson & Co. v. Larson, that a few of plaintiff's logs were taken from 125 Minn. 271, 146 N. W. 1095. The decision the river by defendant, shipped to Gemmel, is not that mere negligence is insufficient to sawed into lumber at the mill of the State work a forfeiture under the doctrine of conLumber Company there, and piled with de- fusion of goods, but it indicates a leaning fendant's own lumber in the yard at Gemmel. toward what we believe is the prevailing rule The claim of defendant was that this was on this question; that is, that where the done through mistake and inadvertence, and confusion results from accident, mistake, or not willfully. Plaintiff contended that a negligence, but without any fraudulent inlarge number of its logs were taken from the tent, the property in the mixture does not river by defendant, sawed into lumber, and pass to the several owners, but they become the lumber piled in the yards with its own tenants in common in proportion to their sevlumber, and that this confusion of goods was eral interests. While it is probable that we willful and intentional on the part of defend- would adopt the rule indicated in the case ant. There is no doubt that plaintiff's log cited, and also in Stone v. Quaal, 36 Minn. marks appeared on many different pieces of 46, 29 N. W. 326, and Osborne & Co. v. Carlumber in the piles in the yards at Gemmel gill Elevator Co., 62 Minn. 400, 64 N. W. 1135, as well as upon sawed-off ends, slabs, and and which seems to be supported by the trimmings, which were found in the millyard, great weight of authority, we think that it and upon 290 spruce and tamarack pulpwood appears conclusively that plaintiff planted logs found in the pond of the State Lumber and tried its case on the theory that defendCompany's mill at Gemmel, of which 258 ant's acts were done willfully and with inwere afterwards shipped back by defendant tent to defraud plaintiff, and that it was to the Big Fork river; the other 32 being necessary to so prove in order to recover. culls and worthless, according to defendant's The complaint alleged that the acts of dewitnesses. It is not necessary to detail the fendant complained of were done wrongfully evidence of the respective parties in regard and with intent to cheat and defraud plainto the probable extent of defendant's appro- tiff, and contained no allegation that they priation of plaintiff's logs. It appears very were negligently doue. No evidence on the trial was directed to the question of neg-, lumber piles was lumber sawed from plainligence. The court instructed the jury that, tiff's logs. if they believed from the evidence that the acts of defendant were intentional, willful, and fraudulent, plaintiff was entitled to recover, but, if they believed that these acts should be accounted for upon the theory of mistake, inadvertence, or even bare negligence, the verdict must be for defendant. Defendant took no exception to this instruction, did not object to it below, and does not here. There were no requests for instructions. The law as stated in the charge became the law of the case. It is plainly too late now to insist that this was bad law, and that plaintiff could recover if defendant's acts were negligently done. [3] 3. The pivotal question then is: Was the jury justified by the evidence in finding that the confusion of goods was not due to willful, intentionally fraudulent conduct on the part of defendant? If it appeared that defendant willfuliy and fraudulently mixed plaintiff's lumber with its own, with the result that there was an inextricable confusion of goods, plaintiff would have been entitled to recover the entire mass, unless defendant was able to distinguish its property specifical ly. That this is the rule is conceded by defendant. But, before this rule is applicable, it must be shown, not only that there is a confusion of goods, but that the intermixing was done willfully, with fraudulent intent. And the burden of proof is with plaintiff on both of these issues. Assuming that the lumber sawed from plaintiff's logs was not capable of identification, and therefore that there was an inextricable confusion, we reach the question whether the jury was justified in believing from the evidence that defendant's acts could properly be accounted for on the theory of mistake, inadvertence, or even negligence, and in refusing to find that such acts were intentional, willful, and fraudulent. We have mentioned the inconsiderable amount of plaintiff's lumber contained in the piles when compared to that admittedly owned by defendant, and that this fact has a bearing upon whether the confusion was the result of mistake or negligence, or of a willful intent to deprive plaintiff of its property. There was a mass of evidence directed to the extent of defendant's appropriation of plaintiff's logs, and the amount of the lumber sawed therefrom and contained in the yards, but the net result of our consideration of this evidence is the statement that it was conflicting, and that the jury was clearly warranted in finding that a comparatively very small portion of the total contents of the Logs belonging to plaintiff, to defendant, and to other owners were being floated down the Big Fork river. Plaintiff's logs were marked on the ends with its log mark, which was known to defendant. Defendant had sorting and hoisting works at Big Falls, and took the logs bearing its mark from the logs floating down the river, hoisted them from the river, loaded them upon flat cars, and transported them to the mill at Gemmel. It is not denied that from time to time it hoisted, loaded, and transported some of plaintiff's logs with its own. It is a bit difficult for us to see how defendant could do all this and follow by sawing the logs into lumber, through mistake or inadvertence, but we are not the jury, and there was evidence tending to show that it was not unusual to find among the logs of one owner taken out of a common mass in this way logs with the marks of other owners upon them. According to the testimony of an experienced lumberman, this is almost always the case. It was also in evidence that defendant's superintendent requested plaintiff to have some yard, but that plaintiff's president sent word one look after its stray logs in defendant's to the superintendent to look after his own could be made was met by plaintiff's pres logs; also that a suggestion that a settlement ident with the statement that he did not want to settle. Furthermore, it was testified to that defendant had provided facilities in its boom for letting out foreign logs; that its employés were instructed to look out for logs of other owners and to let them go; that such logs often got into the boom in spite of anything that could be done to prevent it; and that in many cases the marks were obscured by mud and slime. We need not refer to the other evidentiary facts bearing on the question of defendant's good faith. We have carefully considered the entire record, and reach the conclusion that the question was for the jury, and that the evidence sustains the verdict. Under the familiar rules which control our action in regard to disturbing the verdict of a jury after the trial court has approved it, we are forced to the result stated. [4] 4. It is urged that the trial court erred in a number of its rulings on the admission of evidence. No one of these claims of error deserves specific discussion or mention. We have examined and considered each ruling complained of, and conclude that no error was committed. BJORGO et al. v. FIRST NAT. BANK OF LAW OF 1. APPEAL AND ERROR 1097 [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4358-4368, 4427; Dec. Dig. 1097.] 2. APPEAL AND ERROR 1099-LAW OF CASE -DECISION ON FORMER APPEAL-ADDITION- The evidence in this case considered and held not to be materially different from that presented on the trial reviewed on the former appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4370-4379; Dec. Dig. 1099.] 3. BANKS AND BANKING 154 PAYMENT Appeal from District Court, Freeborn Action by A. H. Bjorgo and others against the First National Bank of Emmons and others. From denial of new trial, plaintiffs appeal. Reversed, and new trial granted. A. U. Mayland and J. O. Peterson, both of Albert Lea, and T. A. Kingland, of Lake Mills, Iowa, for appellants. John F. D. Meighen and Bennett O. Knudson, both of Albert Lea, for respondents. BUNN, J. On a former trial of this case the court below ordered a dismissal, but afterwards concluded it was wrong and granted a new trial. This order was affirmed by this court in Bjorgo v. First National Bank, 127 Minn. 105, 149 N. W. 3, also reported in L. R. A. 1915B, 287, with note. At the close of plaintiffs' case on the new trial the court again granted defendant's motion to dismiss. Plaintiffs appeal from an order denying their motion for a new trial. [1] If the evidence at the close of plaintiffs' case on this trial was in all material aspects the same as the evidence on the former trial, our decision on the former appeal, whether right or wrong, was the law of the case, the question is res adjudicata, and the trial court erred in dismissing the action. Dunnell's Digest, § 398, and cases cited. Orr v. Sutton, 127 Minn. 37, 148 N. W. 1066; Marshall v. C., R. I. & P. R. Co., 155 N. W. 208. [2] Defendant claims that there was important additional evidence on the new trial. We are unable to find any additional facts AS that make the case essentially different from the case made on the former trial, so that it can reasonably be said that the issues were for the jury on the first trial, but not on the second. On both trials the evidence tended to show the following facts: The Southwest Land & Orchard Company was incorporated under the laws of Arizona February 21, 1911. B. B. Haugan was its chief promoter. He had come to Emmons some two months before he presented the draft to the defendant bank, to deliver a lecture. The cashier of the bank had met Haugan. knew he was promoting and selling stock in stock from him. Outside of knowing that the orchard company, and had bought some Haugan was a lecturer on various subjects, religious and humorous, and that he was attempting to sell stock in an Arizona corporation that claimed to own or have an option on an extensive tract of land in Texas, the cashier had no acquaintance with his character or financial standing. March 2, 1911, Haugan presented to the cashier the draft in question and requested payment. stated in the former opinion, this draft was for $600, drawn by the Kensett Bank, of Kensett, Iowa, upon the Commercial National Bank of Chicago, and was payable to the order of the First National Bank of Emmons, Minn., the defendant in this action. The cashier made no inquiries, but paid the amount of the draft to Haugan, who afterwards disappeared. Plaintiffs resided at Kensett, Iowa. On February 25th, at Kensett, they agreed with Haugan to subscribe for 10 shares of the orchard company stock. They procured from the Kensett bank the draft in question and handed it to Haugan. They had pleaded in the complaint, and offered to prove, that the draft was delivered to Haugan with the instructions that it should be deposited by Haugan in the defendant bank, to pay for the shares subscribed for when the orchard company should acquire the title to the Texas land. The trial court excluded all evidence as to these instructions and of the agreement in this regard between plaintiffs and Haugan. The evidence which defendant relies on to support its claim that the facts presented on this appeal make a vitally different case from those on the former appeal does not seem to us to bear out the contention made. It is pointed out that the cashier testified on this trial that it was a common custom of his to cash drafts payable as this one was. He did mention one instance in which he had done this before, but it was for a man whose standing was well known to him, and the transaction fell far short of establishing any custom. Besides the cashier was an adverse witness, and his testimony was not conclusive on plaintiffs. Another new item of evidence is the testimony of the cashier that Haugan told him, as the reason why For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes' the draft was made payable to the bank, that plaintiffs did not want their banker to know that Haugan got their money. Another item is the testimony of the cashier that he had cashed checks and drafts for Haugan before. As to these alleged differences in the testimony on the two trials, it is sufficient to say that the jury was not bound to accept the cashier's testimony as true on either point, even conceding the importance of either item. The only new testimony of any importance, as it seems to us, is that of the vice president of the Kensett bank to the effect that that bank had no knowledge of the claimed instructions by plaintiffs to Haugan. The argument here is, of course, that an inquiry to the Kensett bank would have disclosed no information other than as to who were the purchasers of the draft. We think this fact insufficient to justify a holding contrary to the decision on the former appeal. No inquiry was in fact made, and it is not for us to say that an inquiry of the Kensett bank, or of plaintiffs, might not have disclosed to the defendant that Haugan had no right to payment of the draft. Mr. Justice Holt on the former appeal. It was decided adversely to defendant's contention by the majority of the court, and the decision is the law of the case. We have not said, and do not say, that defendant is liable in this case. We have said, and again say, that the evidence should be allowed to come in, and the case be passed upon by a jury. Order reversed, and new trial granted. STATE ex rel. CROOKSTON LUMBER CO. V. DISTRICT COURT OF PENNINGTON COUNTY. (No. 19555 [209].) (Supreme Court of Minnesota. Feb. 4, 1916.) (Syllabus by the Court.) 1. MASTER AND SERVANT 250, New, vol. 16 Key-No. Series-WORKMEN'S COMPENSATION ACT-NOTICE-SUFFICIENCY OF EVIDENCE. under the Workmen's Compensation Act (Gen. Findings of the trial court in a proceeding St. 1913, §§ 8195-8230) to the effect that claimant was injured while engaged in the work of tual knowledge' thereof, and further that such his employment, and that the employer had acinjury rendered claimant totally disabled within the meaning of the statute, held sustained by the evidence. 2. MASTER AND SERVANT 250, New, vol. 16 Key-No. Series-INJURIES TO SERVANT"ACTUAL NOTICE"-"ACTUAL Knowledge”WORKMEN'S COMPENSATION ACT-FINDINGS -CONSTRUCTION. The finding that the employer had "actual notice" of the injury held equivalent to a finding of "actual knowledge" thereof. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Actual Notice; Actual Knowledge.] The briefs are largely directed to the question of the soundness of the former opinion. As we view the case, that question is not open for discussion. We, therefore, do not review the authorities cited by counsel, or indicate whether that decision would or would not be followed in another case. In the present case, as pointed out in the decisions before cited, we cannot overrule the former decision. The result is that the trial court was wrong when it declined to follow that decision, and there must be a new trial. [3] There were also erroneous rulings on the admission of evidence. In our opinion Certiorari from District Court, Penningthe court should have admitted the evidence ton County; Andrew Grindeland, Judge. of plaintiffs as to their agreement with and Proceedings under the Workmen's Cominstructions to Haugan. Of course it would not bind defendant on the question whether pensation Act by a workman to obtain comit was negligent in paying the draft to Hau-pensation for injuries, opposed by the Crookgan, but the rejected evidence tended to show the situation an inquiry by defendant bank might have disclosed, and also to show plaintiffs' interest in the draft, both material issues in the case. This also applies to a ruling, sustaining an objection to testimony tending to show that the orchard company never acquired title to the Texas land. It was error to exclude the evidence offered tending to show the custom of banks in regard to cashing, without inquiry, at the request of the one presenting them drafts that are payable to the order of the bank itself. It occurs to us now, as it did when the case was here before, that evidence of this kind would be of great value in reaching a decision of the doubtful question. The point that plaintiffs should stand this loss, rather than defendant, because of their negligence in intrusting Haugan with the draft, formed the basis of the dissent of pensation awarded, and the employer brings ston Lumber Company, the employer. Comcertiorari against the District Court of Pennington County. Order affirmed. R. J. Powell and Leslie C. Millar, both of Minneapolis, for relator. Erling Swenson, of Minneapolis (Donald G. Hughes, of Minneapolis, of counsel), for respondent. BROWN, C. J. Proceedings under the Workmen's Compensation Act, brought to this court on certiorari after judgment against the employer, relator herein. The only question presented is whether the findings of the trial court in the respects challenged by the assignments of error are sustained by the evidence. It appears that relator, the employer, is a corporation, and at the time in question was engaged in lumbering operations in woods of northern Minnesota. Claimant was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |