daughter, and that if she could come to live | instruct the jury as follows: "If the dewith the plaintiff she would break the will fendant did all that a reasonably prudent and leave him all her property. Mrs. Teish-man should do under the circumstances to man was a witness at the trial. The defend- determine whether Stephanic was sober or ant also excepted to a statement by the not at the time of the sale, then your verdict plaintiff's counsel, in opening and argument, should be for the defendant." to the effect that Mrs. Teishman was the real defendant.

Mederic Guilbault and Taggart, Tuttle, Burroughs & Wyman, for plaintiff. Burnham, Brown, Jones & Warren, for defendant.

PARSONS, C. J. The evidence was competent. The argument was justified by the

evidence.

Exceptions overruled. All concurred.

STATE v. DUBRUIEL et al (Supreme Court of New Hampshire. Rockingham. Dec. 7, 1909.)

1. TRIAL (§ 133*)-MISCONDUCT OF COUNSELEFFECT.

Where an improper question asked a witness informed the jury of an irrelevant fact, and counsel withdrew the question and requested the court to instruct the jury not to consider it, which was done, and it appeared affirmatively that the jury was not influenced by the improper question, the conduct of counsel was not ground for reversal.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 316; Dec. Dig. § 133.*]

Edwin G. Eastman, Atty. Gen., for the State. John W. Kelley, for defendants.

PARSONS, C. J. If it must be assumed that the question to which objection was taken informed the jury of a fact irrelevant upon any issue in the case, nevertheless the plaintiffs having restored to the trial the fairness of which they had divested it, and having made it appear affirmatively that the jury

not influenced by the unwarranted statement, the exception must be overruled. Pritchard v. Austin, 69 N. H. 367, 369, 46 Atl. 188; Furnald v. Burbank, 67 N. H. 595, 30 Atl. 409; Bullard v. Railroad, 64 N. H. 27, 32, 5 Atl. 838, 10 Am. St. Rep. 367.

The defendant's contract with the state,

evidenced by his bond was that in case, in the exercise of his license, liquor should be sold to an intoxicated person, he would pay the state the damages thereby occasioned, even if the sale were made by one of his servants without his knowledge and against his express command. State v. Corron, 73 N. H. 434, 446, 450, 454, 62 Atl. 1044. As the object of the bond is the protection of the

2. INTOXICATING LIQUORS (§ 86*)-BONDS-state, and not the punishment of the licensee LIABILITY.

A bond of a liquor licensee, conditioned on his paying damages in case liquor should be sold to an intoxicated person, is in effect a contract for the benefit of the state, and a liability on it arises on a sale of liquor to an intoxicated person irrespective of whether the licensee did all that a reasonably prudent man should have done under the circumstances to determine whether the buyer of the liquor was sober or not.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 89; Dec. Dig. § 86.*]

(State v. Corron, supra), the material question is whether that has been done which the bond stipulated should not be done. Since good faith in the defendant would not protect the state from loss, the contract cannot be construed in accordance with the requested instruction without destroying the purpose of iting the defendant's covenant to ordinary the bond. The absence of express terms limcare in the exercise of the privileges confer

Transferred from Superior Court, Rocking-red by the license, and the general purpose ham County; Wallace, Judge.

Action by the State against Albert Dubruiel and another on a liquor license bond. There was a verdict for the State, and the cause was transferred from the Superior Court on exceptions. Overruled.

of the bond, establish that no such limitation was intended. If the breach relied upon had been the defendant's failure to exercise the care of a reasonably prudent man to prevent sales to persons in a state of intoxication, the requested instruction would have been proper; but as the terms of the contract were that no liquor should be sold such a

The breach alleged was a sale of liquor to one Stephanic when intoxicated. Stephanic was called as a witness. During his ex-person, and the breach alleged was such a amination he admitted that he was arrested as he left the place of sale, and was then asked by the state's counsel if he paid a fine and costs for being drunk. Objection being made, the Attorney General withdrew the question and asked that the jury be instructed not to consider it. The question was stricken from the record, the jury were instructed to pay no attention to it, and the presiding judge found that the asking of the question did not render the trial unfair.

sale, the instruction was properly refused. In a criminal proceeding the weight of authority seems to sustain the proposition that, when in the exercise of the police power an act is prohibited, the intent with which the act is done is not material unless made so by the terms of the prohibiting act. State v. Campbell, 64 N. H. 402, 13 Atl. 585, 10 Am. St. Rep. 419; Commonwealth v. Julius, 143 Mass. 132. 8 N. E. 898; note to Farrell v. State, 32 Ohio St. 456, 30 Am. Rep. 617. Subject to exception, the court refused to But that question is not now presented.

duty ends with the supply of suitable ma- | The only convenient place for one to stand terials." In Thompson v. Bartlett, 71 N. H. 174, 51 Atl. 633, 93 Am. St. Rep. 504, the defendants' duty to prepare the staging was stated as a fact proved by the evidence. There was no controversy as to the sufficiency of the evidence upon which this statement was based. The only question passed upon was whether the plaintiff's fault conclusive ly appeared from his failure to discover the defect from which his injury resulted.

As there was no evidence of negligence chargeable to the defendant, the denial of the nonsuit was error.

when starting the conveyor was near a hanger which supported one end of a shaft. Close to the hanger there was a collar which was held in place on the shaft by a projecting set screw, but the plaintiff was not aware of its existence until after the accident. While the plaintiff was working near the revolving shaft, his clothing was caught by the set screw, and he was carried around the shaft, thus receiving the injuries complained of. The defendants moved that a verdict be dírected in their favor, on the grounds that it could not be found from the evidence (1)

Verdict set aside. Judgment for the de- that the plaintiff was caught by the set fendant. All concurred.

screw; (2) that the defendants were negligent; (3) that the plaintiff had not assumed the risk; (4) that the plaintiff was in the exercise of due care; and (5) that the presence

DESCHENE v. BURGESS SULPHITE FI- of the set screw or the failure to warn him

BRE CO.

(Supreme Court of New Hampshire. Coos. Nov. 2, 1909.)

1. MASTER AND SERVANT (§ 150*)-INJURIES TO SERVANT-CONTRIBUTORY NEGLIGENCE.

A servant, who was working near a shaft, one end of which was supported by a hanger, and around which there was a collar fastened by a projecting set screw, was injured by having his clothing caught by the set screw. Held that, notwithstanding the servant knew that collars were used to hold shafting in place; that they were attached by set screws; that it was dangerous to come in contact with a set screw when the shaft was in motion; and that a collar was needed on this shaft he can recover if he neither knew, nor was in fault for not knowing, of this collar, for using such collar in that place created an abnormal condition of the master's instrumentalities, and it is the master's duty to warn even experienced servants of dangers peculiar to such a condition of his instrumentalities, of which he either knows or ought to know, and of which they neither know nor are in fault for not knowing.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 150.*]

of its presence was the proximate cause of the injury. The motion was denied, and the defendants excepted.

Henry F. Hollis and Alexander Murchie, for plaintiff. Sullivan & Daley, Drew, Jordan, Shurtleff & Morris, and Merrill & Merrill, for defendants.

YOUNG, J. It can be found that the plaintiff did his work as the ordinary man would have done it, and that he would not have been injured but for the projecting set screw. Consequently there is no merit in the first, fourth, and fifth grounds of the defendants' motion. As servants only assume the risk incident to those conditions of their master's instrumentalities as to which he owes them no duty (1 Labatt, M. & S. § 2), the second and third grounds will be considered together.

Notwithstanding the plaintiff knew that collars were used to hold shafting in place;

2. MASTER AND SERVANT (§§ 286, 288*)-AC- that they were attached by set screws; that

TION FOR INJURIES-EVIDENCE-QUESTIONS
FOR JURY.

In an action by a servant for injuries caused by having his clothing caught by a set screw, used to fasten a collar on a shafting, evidence held not to show as a matter of law, either that defendant was free from fault, or that plaintiff assumed the risk of his injury.

[Ed. Note. For other cases, see Master and Servant. Cent. Dig. §§ 1010-1050, 1068-1088; Dec. Dig. §§ 286, 288.*]

Transferred from Superior Court, Coos County; Pike, Judge.

it was dangerous to come in contact with a set screw when the shaft was in motion; and that a collar was needed on this shaft-he can recover if he neither knew, nor was in fault for not knowing, of this collar, for it can be found that using such a collar in that place created an abnormal condition of the defendants' instrumentalities, and it is the master's duty to warn even experienced servants of the dangers peculiar to such a condition of his instrumentalities, of which he either knows or ought to know, and of which they neither know nor are in fault for not knowing. The defendants' exception, therefore, must be overruled, unless all fair-mindIt was the plaintiff's duty to start the de- ed men would agree that the plaintiff ought fendants' chip conveyor whenever it stopped, to have known of the collar. The evidence which was sometimes few and sometimes relevant to that issue, in addition to that many times a day. When it stopped a num- already recited, shows that the plaintiff, in ber of men were forced to temporarily quit the month or more he was doing this work, work, and for that reason the plaintiff was was never near the collar for more than a expected to start it as quickly as possible. I few seconds at a time, and never but a few

Action by Joseph Deschene against the Burgess Sulphite Fibre Company. Judgment for plaintiff, and defendants file exception. Exception overruled.

A policy insured against loss of life, limbs, sight, or time in the sum of $5,000, and paragraph 1 prescribed the conditions under which the policy was to become a claim. Paragraph 2 provided for payment of the full principal in case of death within 90 days after injury. Paragraph 3 made the full principal sum payable in lieu of weekly indemnity if the injuries resulted in loss of sight of both eyes, loss of both hands above the wrist, of both feet above the ankles, or of one hand and one foot. Paragraph 4 made one-half the principal sum payable in Action by Ola Anderson against the Etna lieu of weekly indemnity for loss of the right hand or of either leg above the knee. Para- Life Insurance Company. Verdicts for plaingraph 5 provided that if the injuries resulted tiff, and case transferred from Superior

Court on defendant's exceptions. Exceptions | verdict for $500-the weekly indemnity due overruled.

under the policy for total disability for 20 weeks with interest thereon from January 15, 1907; (2) a verdict of $70 for surgical operations, made up in accordance with a schedule annexed to the policy, which provided that "the amounts stated shall be pay

able in addition to other benefits," as follows:

Amputation of hand, $25; reduction of frac ture of nose, $25; reduction of fractures of ribs, $10; amputation of fingers, $10.

Martin & Howe, for plaintiff. Streeter & Hollis (Edward K. Woodworth, orally), for defendant.

PARSONS, C. J. The policy upon its face insures against loss of life, limbs, sight, or time, and states that the principal sum insured is $5,000, and that the weekly indemnity for total disability is $25. The plaintiff was injured during the life and within the terms of the policy, and offered evidence from which the court has drawn the inference that he was totally disabled within the meaning of the policy because of the results of the injuries proved. There is no contention that the evidence was not legally sufficient to au

then, should not the defendants pay the plaintiff the indemnity for total disability promised by the face of the policy? If the plaintiff's total disability is permanent, as it appears to be conceded it will be, he would, if he has any right to such indemnity, be entitled to the weekly indemnity for 200 weeks, thus exhausting the full principal sum. But the engagements upon the face of the policy are made "subject to the conditions and benefits printed on the following pages."

The provisions of the policy relative to the amounts payable for various bodily injuries and as weekly indemnities for disability are stated in the opinion. The policy further stipulated that: "No legal proceeding shall be brought * * * unless commenced within one year from the date of the alleged accident, as to death, loss of limb, or surgical operation, or within six months from the filing of claim with the company, as to total or partial disability." The plaintiff was injured on August 31, 1906. January 15, 1907, he filed with the company notice of his injury, claim of weekly indemnity for permanent total disability, and certificate of his medical attendant as to the extent of his injuries, which contained a reference to "reamputation of crushed limbs." Payment was refused on the ground that the plaintiff was only entitled to one-fifth the principal sum, for loss of his left hand. The writ in this action was made and dated July 8, 1907, but was not delivered to the sheriff until on or about September 9, 1907, which was the day of its service upon the defendants. The plaintiff was engaged in the granite busi-thorize the finding of total disability. Why, ness, and he had a quarry and stoneyard in Concord. On the day of the accident, while he was checking off stone on a platform car, a locomotive ran from the main line of the railroad upon the sidetrack leading to the yard, and collided with the car upon which he stood. The injuries sustained by the plaintiff as a result of the collision included loss of the left arm at the middle third by amputation, loss of the thumb and two fingers of the right hand, fractures of the nose and two ribs, severe injuries to the head, and scalding of the back, and the undersides of both arms. The plaintiff's evidence tended to show that the injuries to his head resulted in serious impairment of memory and inability to figure contracts, which continued at the date of the writ, that his disability was total within the terms of the policy during the time covered by the specification, and that the following surgical operations were performed: (1) Amputation of left hand at forearm; (2) reduction of fracture of nose; (3) reduction of fractures of ribs; and (4) amputation of fingers of right hand. The defendants excepted to the denial of their motion for a nonsuit and to the refusal of the court to make the following rulings: (1) That the plaintiff cannot recover for weekly indemnity under the policy; (2) that he cannot recover for surgical operations under the policy; (3) that if he can recover for any surgical operation under the policy, he can only recover the sum of $25 for amputation of his hand. It was agreed by the defendants that if the plaintiff was entitled to weekly indemnity for total disability, he could recover for 20 weeks in this action. Two ver

The defendants, for the purpose of escaping their apparent liability for the principal sum insured, contend that one of the "benefits" to which the plaintiff is entitled is the payment to him of one-fifth the principal sum, or $1,000, for the loss of his left hand, which was one of the injuries he received, and that a correct construction of the conditions of the contract releases them, upon payment of the fixed sum for the disability produced by this injury, from their engagement to indemnify the plaintiff for the total disability actually resulting from the injuries he received. The main controversy, therefore, is whether the plaintiff can recover the weekly indemnity of $25 stipulated in the policy, for the total disability resulting from an accident occurring during the life of the policy, or whether his recovery must be limited to the fixed sum which the policy provided should be paid for the removal of the left hand at or above the wrist. The plaintiff, standing on his policy, in this suit is neces sarily bound by its provisions, and the de fendants are liable only in accordance with the terms of the contract. Johnson v. Casualty Co., 73 N. H. 259–261, 60 Atl. 1009, 111