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498

Joseph Schlitz Brewing Co. Meredith, Rock Island Plow v. Parlow.....

252 Co. v.

Messenger et al., Sheppard v. 717
K
Miner, State v.

656

Moffitt v. Chicago Chronicle
Kahl v. Schmidt.

550
Co....

407 Key v. National Life Insur

Moller v. Gottsch..

238 ance Co....

446 Montis v. McQuiston, county Keys v. City of Cedar Falls.. 509

auditor, et al.....

651 King et al., Gwinn v.

207 Mountain v. Low et al.. 403 Kilmer v. Gallaher et ux. 676

Mulgrew, McCarthy v.

76 Kincade v. Chicago, M. & St. Murphy, county treasurer, et P. Ry. Co..

682
al., Youngerman v.

686 Kleineck v. Reiger.

325
Murphy, Sigler v

128 Kling v. Schnellbecker et al. 636

Murphy v. Olberding.

547 Knosby et al., Gates v.... 239

Murry et al., Seery v.. 384 Koboliska v. Swehla.

124

Mutual Guaranty Fire Insur

ance Co. v. Barker...... 143 L Law v. Douglass et al........ 606

N Leonard, Ellis v.

487 Leonard, Lucas County v.

593

National Masonic Accident Lightfoot, State v.

344

Ass'n et al., Prader v...... 431 Linkmeyer v. Brandt et al... 750 National Life Insurance Co., Locke v. Chicago Chronicle

Key y.

446 Co...

390
Nelson, Manning v..

34 Loughran v. Des Moines St. Nodle v. Hawthorne, sheriff. 380 Ry. Co., et al.

639

Noel et al., Talcott et al. v... 470 Low et al., Mountain v. 403 Lucas County v. Leonard.... 593

O Lund's Estate, in re..

264

Oehler et al., Chambers V... .. 155
M
Olberding, Murphy v.

547

502 Madison, Bonniwell v.......

Osceola County, Clark v... 85

189 Manning v. Nelson...

Osterman, Pitstick v...

34 Manton v. Seiberling et al., 534

Oyster et al. v. Bank, Judge. 39 Marshalltown State Bank, National Bank of Marshall

Р town v...

327 Matheson et al., Prouty et al. v. 259

Peterson, Preston v.... 244 Markert, McCormick Har Peterson v. Gittings et ux... 306 vester Co. V... 340 Peterson, Haggard v.

417 McAllister et al., State v.. 641

Phillips v. Reed.

331 McCarthy v. Mulgrew.. 76

Pierce et ux., Everist v.. 44 McCoy v. Iowa State Insur

Pitstick v. Osterman...

189 ance Co...

80 Polk County, City of Des McCune et al., Halpin et al. v. 494

Moines v...

525 McCormick Harvester Ma

Prader y. National Masonic chine Co. v. Markert.... 340

Accident Association.... 431 McGillivary el al. v. Case.. Pratt v. C. R. I. & P. Ry. Co. 287 McGuire et al. v. Blanchard . 490 Preston v. Peterson...

244 McMahon v. City of Dubuque 62

Price, Culp v....

133 McMurray's Estate, In. re... 648

Pringle et al. v. Des Moines McPeek v. Western Union

Insurance Co...

742 Telegraph Co.

356

Prouty et al. v. Matheson et al 259 McQuiston, County Auditor, et al., Montis v.

651 Merchants National Bank of

Clinton v. Eyre et al....... 13 Quinn v. C. R. I. & P. Ry. Co. 710

17

REPORTS

OF

CASES AT LAW AND IN EQUITY

DETERMINED BY THE

SUPREME COURT

OF

THE STATE OF IOWA

AT

DES MOINES, OCTOBER TERM, A. D., 1898.

AND IN THE FIFTY-SECOND YEAR OF THE STATE.

107 137

John C. JOHNSON, Appellant, v. CHICAGO, Rock ISLAND

& PACIFIC RAILWAY COMPANY."

Settlement: FALSE REPRESENTATIONS. A settlement for an action 2 for tort is not fraudulent because defendant's attorney represented 3 to plaintiff that he had no cause of action, in the absence of proof

that that was not his opinion. SAME. A representation that a railroad company could show by five

or six witnesses that plaintiff had not been pushed from the car

by the company's brakeman, made to induce the compromise of a 2 suit against the railroad company for injuries received through

such alleged pushing off, is not false where plaintiff testifies that

he and two others got on the train, and other people got on it at 5 the same time, and that there were other parties on the car in front

of him, since the representation is not that the witnesses were eye

witnesses.

*The figures on the left of the syllabi refer to corresponding Egures placed on the margin of the case at the place where the point of the syllabus is decided. VOL. 107 Ia-1

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A settlement of an action by plaintiff with defendant's attor2 ney direct is not fraudulent because defendant's attorney stated

that it could be made in the absence of plaintiff's attorney, where

plaintiff and his mother were the moving parties and went to the 6 town where the attorney was located in order to procure it. RELIANCE. After commencement of a suit for personal injuries

against a railroad company, plaintiff and his mother went to the 2 town where defendant's attorney was, called on him, and, without

the knowledge of their attorney, made a settlement. Held, that 4 such settlement was made without reliance on an opinion as to the

merits of plaintiff's cause of action expressed by defendant's

attorney. PLEA AND PROOF. Under a reply to a plea of compromise and settle

ment that it was procured by defendant fraudulently representing

to plaintiff that he had no cause of action and that the defendant 7 could show that the facts were not as plaintiff claimed them to

be, evidence that one of the representations made to induce the settlement was a statement by defendant's attorney that plaintiff's attorney had offered to settle the suit for a certain sum is inad.

missible, because not set up in the pleading. Striking Pleading: HARMLESS ERROR. Where defendant in an action

for tort pleaded a settlement, error in sustaining demurrers to 1 replies which alleged such settlement to have been procured by

fraud is cured by permitting an averment, which raises the issue of fraud as completely as the averment held bad did, to stand.

Appeal from Valaska District Court.—Hon. D. RYAN,

Judge.

FRIDAY, DECEMBER 16, 1899.

PLAINTIFF states as his cause of action in substance as follows: That about August 23, 1893, he got onto one of defendant's freight trains, going east, at the city of Des Moines, without a ticket entitling him to ride on said train, and was riding on top of one of the cars; that when nearing Altoona defendant's brakeman ordered him to get off said train, then running at a rapid speed, and immediately rushed at plaintiff in a threatening manner, whereupon plaintiff immediately descended the ladder for the purpose of getting off; that said brakeman followed, ordering plaintiff in an angry and threatening manner to hurry and get

off, and crowded upon plaintiff, and seized his hands, and tore his hold loose from the ladder, by reason of which acts and conduct plaintiff fell, and his left leg was run over by several of the cars, and so injured as to necessitate amputation. Plaintiff alleges that he asked to be allowed to remain until the train stopped, but was compelled to get off at once; also that the acts, conduct, and language of said brakeman were negligent, and with malice and ill will towards the plaintiff, and that said brakeman had no authority to remove persons from said train who were trying to ride thereon without paying, and who had no right to ride thereon. Other allegations are made, going to the amount of damages, and plaintiff asks to recover ten thousand dollars. The defendant answered, admitting its corporate capacity, denying the other allegations of the petition, and alleging contributory negligence. In an amendment to its answer, defendant alleges that about the day of October, 1895, plaintiff and defendant had a full settlement of all matters involved in this action, and that defendant then paid plaintiff one hundred and fifty dollars in full of all demands claimed to have been incurred by said accident, and that it was agreed that this case should be dismissed at plaintiff's costs. Plaintiff filed a lengthy reply to said amendment to the answer. Defendant moved to strike said reply upon these grounds: First, that it is not a pleading authorized to be filed; and, second, that the matter is irrelevant, and redundant, and immaterial. The court overruled the motion as to the first ground, and sustained it as to the second, and thereupon plaintiff filed an amendment to his reply, to which defendant filed a motion and demurrer. No ruling appears to have been made upon the motion, but the demurrer was sustained, to which plaintiff excepted. Plaintiff then filed a second amendment to his reply, to which defendant demurred, and the demurrer was sustained, except as to a part thereof, which is as follows: "Comes plaintiff, and by leave of court amends his reply, and says: That he

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