(108 A.) was held that the danger to which the deceased exposed himself was known and obvious, within the meaning of the law, and that he assumed the risk. What we have said upon this motion only amplifies what is necessarily involved in the holdings made in the opinion; and the motion is denied. and between the same parties or their privies, either in blood or estate. Exceptions from Chittenden County Court; Frank L. Fish, Judge. Action by Frank H. Kimball against the New York Life Insurance Company. Judgment for plaintiff, and defendant excepts. Judgment reversed, and judgment for de- Reversed and remanded. fendant to recover his costs. (94 Vt. 100) See, also, 106 Atl. 676. Argued before WATSON, C. KIMBALL V. NEW YORK LIFE INS. CO. JJ. (No. 192.) (Supreme Court of Vermont. Jan. 15, 1920.) Edmund C. Mower and Charles H. Darling, Chittenden. both of Burlington, for plaintiff. 2. JUDGMENT 713 (1)—JUDGMENT DENYING Adjudication in insurer's action to reform indorsement on policy that insurer was not entitled to reformation did not preclude insurer, in action on policy, from introducing evidence showing that the indorsement purported to extend the life of the policy beyond the date to which insured was entitled to have it extended under the terms of the policy, and that the policy had in fact expired at time of insured's death. Indorsement on life policy extending life of policy beyond death of insured, where not provided for or required by policy, did not preclude insurer from showing, in action on policy, that the indorsement purported to extend the life of the policy beyond the date to which the insured was entitled under the terms of the policy to have policy extended, and that in fact the policy had expired at the time of the insured's death, since the indorsement was not necessary, under the policy, to give effect to extended insurance provision thereof and was not a contract, but a mere admission, which insurer could explain or contradict, unless by its conduct and reliance thereon by insured it was estopped from so doing. Theo. E. Hopkins, of Burlington, and James H. McIntosh, of New York City, for defendant. MILES, J. This action is brought to recover upon an insurance policy. The case was tried by the court at the March term of the Chittenden county court, 1919. Upon the trial the defendant admitted the execution of the policy and its delivery, the death of the insured, and that proof of the same was made according to the terms of the policy and the rules and regulations of the company; but objected to the admission of the indorsement upon the policy, which extended the life of the policy beyond the death of the insured. The plaintiff then produced evidence of its execution and the same was received without objection. The defendant then offered to show that the indorsement extended the life of the policy beyond the date to which the insured was entitled under the terms of the policy, and that in fact the policy had expired at the time of the death of the insured, and was at that time not in force. The offer was excluded subject to the defendant's exception, and judgment was rendered for the plaintiff to recover of the defendant $1,765.18 damages and costs. With the concessions made upon the trial, all that was necessary for the plaintiff to prove in order to entitle him to recover was that the policy was in force at the time of the death of the insured. To establish this fact the plaintiff relies wholly upon the indorsement, and while he does not deny that the offered proof would defeat his right to recover, if received and believed, he contends that it is not admissible because it was offered in cross-examination, and that no error was committed by the court in excluding it at that time.. [1] The case clearly shows that the excluded evidence was offered, not only as cross4. JUDGMENT 713 (1) JUDGMENT CONCLU-examination, but also as a matter of right to 713(1)—JUDGMENT SIVE ONLY UPON MATTER IN JUDGMENT AND contradict the force of the indorsement and to show the character of the extended insurance to which the policy was in fact entitled. But whether it was so offered is of no con BETWEEN SAME PARTIES. A judgment that is not in rem is never conclusive except upon the very matter in judgment CO For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes sequence. The course of the trial was such | dorsement and show that the policy had exas fairly to show that the counsel and court pired before the death of the insured was undertook to get at the matter in an informal admissible, and it was error to exclude it. way without regard to the pleadings or regu- Judgment reversed, and cause remanded. lar course of procedure, so as to send the case to the Supreme Court on the merits alone. They treated the case as though the pleadings covered any phase of it that might arise, and the court sent up the question of the admissibility of the evidence offered and BROWN et al. v. BRISTOL LAST BLOCK nothing else. CO. et al. (No. 195.) 20, 1920.) (94 Vt. 123) COMPENSATION CLAIMANT HAS BURDEN OF PROOF. pensation Act (G. L. 5768), the burden is on To recover under the Workmen's Comthe claimant to show not only that the injury was the result of an accident, but that the accident arose out of and in the course of the employment. [2] The plaintiff also contends that the offered evidence was not admissible, because (Supreme Court of Vermont. Addison. Jan. we held in the case, when it was before us on the appeal in chancery, that the mistake could not be corrected in that proceeding. 1. MASTER AND SERVANT 403-WORKMEN'S But the plaintiff misconstrues the holding in that decision. The question there raised was, not whether the evidence now offered would constitute a defense to the plaintiff's present claim, but whether there was any equity in the bill, and we held that the bill disclosed no facts that entitled the defendant to equitable relief. It was not held that the policy was in force at the time of the death of the insured; but it was merely held that the indorsement was not a contract, that it was unilateral, and the mistake alleged lacked mutuality and was made through the company's negligence. It was not there decided that the company could not contradict the indorsement in an action at law, nor was it intimated that the company did not have an adequate remedy at law. [3] The indorsement is not a contract and is nothing more than an admission. It has no more force in evidence than it would have had if it had been upon a separate piece of paper referring to the policy, or had been a letter sent to the insured. It is not provided for nor required by the policy. It is in the same class with a receipt for money. The policy provides the term of extended insurance and requires no indorsement upon it to give effect to that provision. The insurance company could properly be allowed to explain or contradict it, unless by its conduct and reliance thereon by the insured it was estopped from so doing. No estoppel being presented by the record, no question is presented for consideration in that regard Brown v. Mudgett, 40 Vt. 68; Lockwood v. White, 65 Vt. 466, 26 Atl. 639. [4] The plaintiff further claims that the decision in the chancery case established the law of the case. But that is not so. A judgment that is not in rem is never conclusive except upon the very matter in judgment and between the same parties or their privies, either in blood or estate. Nason v. Blaisdell, 12 Vt. 165, 36 Am. Dec. 331. The very question here raised was not decided in the chancery case. So much of the offered evidence as tended to meet and explain the in 2. MASTER AND SERVANT 371 UNDER WORKMEN'S COMPENSATION ACT INJURY MUST HAVE ARISEN OUT OF EMPLOYMENT. It is not enough, in a proceeding to obtain compensation under the Workmen's Compensation Act (G. L. 5768), that the injury arose in the course of the employment, as it must also have arisen out of the employment. 3. MASTER AND SERVANT 371-"INJURY ARISING OUT OF AND IN THE COURSE OF EM- An injury arises in the course of the employment, within Workmen's Compensation Act (G. L. 5768), when it arises within the period of the employment, at a place where the employé may reasonably be, and while he is reasonably fulfilling the duties of his employment; and injury arises out of the employment when it occurs in the course of it, and as a proximate result of it, or when the injury is a natural and necessary incident or consequence of the employment; a risk being incidental to the employment when it belongs to, or is connected with, what a workman has to do in fulfilling his contract of service. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Course of Employment.] 4. MASTER AND SERVANT 375(1)-EMPLOYÉ RUN OVER BY FRIGHTENED TEAM, WHICH HE Where a servant, employed with his team, was killed by the team about the noon hour, after he had eaten his dinner when he attempted to stop the team when running away, the accident occurring at a place where he had a right to be in the performance of his duty, he was injured by an accident arising out of his employment, within the Workmen's Compensation Act (G. L. 5768). (108 A.) Negligence does not defeat recovery under 6. MASTER AND SERVANT 403-WORKMEN'S PROVE NEGATIVE. In a proceeding under the Workmen's Com- 7. APPEAL AND ERROR 907 (1)-FACT NOT ASSUMED TO REVERSE CASE. Appellate court will not assume a fact not It 5. MASTER AND SERVANT 356-NEGLIGENCE To recover under this statute it was neces- 8. MASTER AND SERVANT 348-WORKMEN's STRUED. The Workmen's Compensation Act should Appeal from Commissioner of Industries; Proceedings by Ella M. Brown and others, Lawrence, Lawrence & Stafford, of Rut- [4, 5] No question is raised in the case at MILES, J. This case comes here on ap- "If a workman receives personal injury by employment. It is apparent to the rational mind, upon For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes was the instrumentality with which the, talk with a fellow workman, may go to a workman's labors were performed and with- convenient place to eat or wash or get fresh out which he would not have been injured. air, to hang up his coat, or even to rest, He may have been negligent in the use of without fórfeiting his right as an employé. that agency; but that does not defeat re- It is said in that case: covery. G. L. 5766. We think the facts, about which there is no dispute, clearly support the finding of the commissioner that the accident arose out of Brown's employment. The defendant excepted to the findings of the commissioner that there were marks upon the body of Brown apparently made by the hoofs of the horses, and that he was preparing the horses for the afternoon work, when they became frightened and ran away. But whether there was evidence tending to show those facts is of no importance, and we take no time in searching the transcript in respect to that matter. It is conceded that the horses ran over Brown and killed him. It is of no importance whether they ran over him when he was preparing them for work or when he was trying to stop them when they were running away. In either case he was performing a duty which he owed the master, and which was necessary to perform in order to enable him to proceed with the afternoon work. It is equally of no importance whether marks of the horses' hoofs were upon Brown's body; for no one disputed the fact that Brown was killed by the horses running over him, and whether it was done by the horses stepping upon his body or otherwise could not affect the result of this suit. The most of the evidence was devoted to the inquiry of whether the accident happened while Brown was resting at the noon hour, and while the horses were eating their feed, or just after and before work for the afternoon was resumed; the contention of the defendants being that the employment was suspended during that time. But this contention is not sound. This court has held in Ingram's Adm'x v. Rutland R. R. Co., 89 Vt. 278, 95 Atl. 544, Ann. Cas. 1918A, 1191, that the circumstances may be such that the duty may cover the servant's trip across the premises to and from his working place, and the circumstances may be such that a servant may step aside to get a drink of water, may go into a building to get warm, may withdraw to answer a call of nature, may stop to "Such digressions and interruptions are to be expected, and, when reasonably necessary, are held to be within the contemplation of the parties when the contract of employment is entered into, and covered thereby. The relation is not in such cases interrupted, but con tinues." [6, 7] The defendants further argue that because there was no evidence tending to show that Brown was not resting or doing something else wholly unconnected with his employment at the time the horses started to run away that there was no evidence supporting the commissioner's ultimate finding. The applicants were not called upon to prove that negative and the appeal does not raise it. If it were raised, we could not assume a fact not shown by the record to reverse the case. First National Bank of Montpelier v. Bertoli, 88 Vt. 421, 92 Atl. 970. In this connection some question is made that the horses were owned by Brown, and therefore what he did in trying to stop them was an act in his own interest, and not in the interest of his employer. But this position is not tenable to its full extent. The horses were hired by the employer, and for the time in which the accident happened, their services belonged to it, and the employer was materially interested in that service. It [8] The act should have a liberal and reasonable construction. It is framed on broad principles for the protection of the workman. Relief under it is not based on the neglect of the employer or affected by acts of negligence on the part of the employé. rests on the economic and humanitarian principle of compensation to the employé, at the expense of the business, or to his representatives for earning capacity destroyed by an accident in the course of, or connected with, his work. Waters v. William J. Taylor Co., 218 N. Y. 248, 112 N. E. 727, L. R. A. 1917A, 347. The award is affirmed, with costs. Let the result be certified to the Commissioner of Industries. (108 A.) MEMORANDUM DECISIONS Company against Wilbert J. Simmerman, Collector of Taxes of Millville, to review a tax assessment of omitted property. From a judgment confirming the assessment, the prosecutor appeals. Affirmed. Lewis Starr, of Camden, for appellant. Louis H. Miller, of Millville, for respondent. STATE V. LA ROSE. (Supreme Judicial | 17, 1919.) Appeal from Supreme Court. Court of Maine. Feb. 14, 1920.) Exceptions Certiorari by the Cumberland County Gas from Superior Court, Cumberland County, at Law. Mary La Rose, convicted of maintaining a liquor nuisance, excepts. Exceptions overruled, and judgment ordered for the State. Argued before CORNISH, C. J., and SPEAR, PHILBROOK, MORRILL, WILSON, and DEASY, JJ. Carroll L. Beedy, of Portland, for the State. Henry Cleaves Sullivan, of Portland, for respondent. THOMPSON, Treasurer of Bangor State Hospital, v. HAMM. (Supreme Judicial Court of Maine. Dec. 4, 1919.) Case Reserved from Supreme Judicial Court, Penobscot County, at Law. Action by William Thompson, Treasurer of the Bangor State Hospital, against Charles Henry Hamm. Judgment for plaintiff. Argued before CORNISH, C. J., and SPEAR, HANSON, DUNN, WILSON, and DEASY, JJ. George E. Thompson, of Bangor, for plaintiff. D. F. Snow, C. P. Conners, and Gillin & Gillin, all of Bangor, for defendant. PER CURIAM. This case is decided upon the docket entries, to wit: "Ent. at Bangor, 1919; 3d writing; both briefs to be filed before Portland term; if not, judgment for plaintiff. Case and plaintiff's brief in." The defendant's brief was not filed in accordance with the docket entry, nor is it yet filed. Judgment for plaintiff. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Black in the Supreme Court, 92 N. J. Law, 361, 105 Atl. 805. ECKRODE v. ENDURANCE TIRE & RUB BER CORPORATION OF NEW YORK. (No. 33.) (Court of Errors and Appeals of New Jersey. Nov. 17, 1919.) Appeal from Court of Chancery. Bill by Clement E. Eckrode against the Endurance Tire & Rubber Corporation of New York. Bill dismissed by Court of Chancery, and complainant appeals. Affirmed. August C. Streitwolf, of New Brunswick, for appellant. Collins & Corbin, of Jersey City, for respondent. PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Foster. 106 Atl. 29. SWAYZE and KALISCH, JJ., dissent. FISCHER v. TOWNSHIP OF DOVER et al. (No. 65.) (Court of Errors and Appeals of New Jersey. Nov. 17, 1919.) Appeal from Supreme Court. Separate writs to review the determination of the Supreme Court Justices, sitting as a special legislative tribunal under Local Option Act (P. L. 1918, pp. 32, 33) §§ 25, 26, brought by Charles H. Miller, Alfred H. Holbrook, Charles A. Nutting, Harry S. Myers, Earnest R. Brown, and William H. Fischer, against the Town of Montclair and another, the City of East Orange and another, the Borough of Caldwell and another, the Borough of Roselle and another, the Borough of Dunellen and another, and the Township of Dover and another. From judgments dismissing the writ in each case, William H. Fischer appeals. Affirmed. Collins & Corbin, of Jersey City, for appellant. William H. Jeffrey and Berry & Riggins, all of Toms River, for respondents. BROWN v. BOROUGH OF DUNELLEN et al. (No. 64.) (Court of Errors and Appeals of New Jersey. Nov. 17, 1919.) Appeal from Supreme Court. Writ to review determination of the Supreme Court Justices, sitting as a special legislative tribunal under the Local Option Act,1 brought by Ernest R. Brown against the Borough of Dunellen and others. From a judgment dismissing the writ, plaintiff appeals. Affirmed. Collins & Corbin, of Jersey City, for appellant. R. P. F. Von Minden, of Plainfield, for respond-pressed in the opinion delivered by Mr. Justice ents. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Parker in the Supreme Court. Miller v. Town of Montclair, 92 N. J. Law, 292, 108 Atl. 131. PER CURIAM. The judgment under review herein should be affirmed, for the reasons ex Parker in the Supreme Court, 108 Atl. 131. HOLBROOK v. CITY OF EAST ORANGE et al. (No. 61.) (Court of Errors and Appeals of New Jersey. Nov. 17, 1919.) Appeal from Supreme Court. Writ to review determination of Supreme Court Justices sitting as a special legislative tribunal under the Local Option Act, 1 brought by Alfred H. Holbrook 1 P. L. 1918, p. 14. CUMBERLAND COUNTY GAS CO. v. SIMMERMAN, Collector, etc. (No. 37.) (Court of Errors and Appeals of New Jersey. Nov. |