(185 P.) Trial was to been taxed on its "capital." Capital exists to William, and had done so. the court, and the findings and judgment were It appears that in November, 1917, plaintiff, Edward Seymour, had on deposit in a Monte Vista bank, $2,000.00. He was then under arrest, and in an attempt to secure his release he undertook to put up a cash bond of $1,500.00. To this end he drew a check for that amount, payable to the bank, which check he gave to his brother, William R. Seymour, who exchanged it for a cashier's check payable to the clerk of the court. This check was subsequently returned and another issued payable to the Sheriff. This latter check was likewise surrendered, as For these reasons, the judgment should be was also another check for $500.00, signed reversed, and the cause remanded. (67 Colo. 11) (No. 9475.) SEYMOUR v. GOAD, Sheriff. (Supreme Court of Colorado. Nov. 3, 1919.) 1. APPEAL AND ERROR ~1010(1) CIENCY OF EVIDENCE; REVIEW. SUFFI Conclusion of court will not be disturbed as to findings of fact upon controverted questions, if there is sufficient competent evidence to support them. 2. TRIAL EVIDENCE. by Edward, by his brother, William, and for these two checks, for $2,000.00, covering the entire amount on deposit in the bank to the credit of Edward Seymour, another cashier's check, for $2,000.00, was issued to William, which later William turned into cash. Shortly thereafter the brothers were arrested in Texas, and William was returned to Trinidad, where the $1,500.00 in question was found upon him by the Sheriff. While the money was in custody of the Sheriff an execution was levied against it, as the property of William R. Seymour. [1, 2] While it is well settled that the ver396(4)—FINDINGS CONTRARY TO dict of a jury, or the conclusion of the court sitting in lieu thereof, will not be disturbed as to findings of fact upon controverted questions, if there is sufficient competent evidence to support them, it is likewise equally true that where there is no conflict of testimony, either circumstantial or direct, as to material Where there is no conflict of testimony, either circumstantial or direct, as to material facts, the court is not at liberty to disregard the evidence adduced and return findings unsupported thereby. Error to District Court, Rio Grande Coun- facts, the court or jury is not at liberty to ty; Jesse C. Wiley, Judge. Action by Edward Seymour against J. Frank Goad, Sheriff of Rio Grande County. Judgment for defendant, and plaintiff brings error. Reversed and remanded, with directions. James P. Veerkamp, of Monte Vista, and James D. Pilcher, of Alamosa, for plaintiff in error. Jesse Stephenson, of Monte Vista, for defendant in error. BAILEY, J. The action was by Edward Seymour, plaintiff in error here, to recover $1,500.00 from J. Frank Goad, as Sheriff of Rio Grande County, which Edward alleges is wrongfully withheld from him. disregard the evidence adduced and return findings wholly unsupported thereby. In Hunt v. Milling, etc., Co., 1 Colo. App. 120, at page 124, 27 Pac. 873, 875, the court, in discussing this question, said: "This conclusion is not at all in conflict with the rule which has been so often declared by the appellate tribunals of this state-that they will not interfere with the verdict of a jury or the finding of the court upon questions of fact simply upon a conflict of testimony, or upon a question of the weight and preponderance of the evidence. It stands substantially uncontradicted in the record that Payne was given actual notice of the dissolution of the firm. The absence of a recollection on his part that such a conversation was had does not tend to shake or weaken the absolute testimony given by Mr. Hunt upon this subject. His direct and positive statement standing uncontradicted must be given full credit, unless there be something in the record which In his answer the defendant sets up that as Sheriff he had taken the money from the person of one William R. Seymour, who is a brother of Edward, when he arrested William upon a criminal charge; that as Sheriff he was retaining $850.00 of the money in dispute under an execution against William, and that by court order duly entered he had been directed to pay the balance, $750.00 over For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tends to overcome or weaken the force of that unimpeached testimony." The above case was cited with approval in Moyle v. Hocking, 10 Colo. App. 446, and at page 447, 51 Pac. 533, the court said: "In support of the judgment, defendant relies wholly upon the rule repeatedly announced and sustained by this court, that where the evidence is conflicting, appellate courts will not disturb the verdict of the jury, or findings of fact by the trial court, unless manifestly against the evidence. If sufficient evidence appears to sustain such finding or verdict, it will be conclusively presumed that it was sustained by the weight of evidence. This rule is well settled, but it is not applicable to the case at bar. Here there was no conflict at all in the evidence; all of it was in favor of plaintiff, and there is none whatever to support the judgment." So also in C. & S. Ry. Co. v. Thomas, 33 Colo. 517, at page 519, 81 Pac. 801, 802, 70 L. R. A. 681, 3 Ann. Cas. 700, this court, in reviewing the evidence, said: "There is no testimony that in the slightest degree militates against the testimony of the Wilsons and Brown, as to any material facts testified to by them, nor any circumstance developed in the case that throws discredit upon their evidence; and we are unable to perceive any reason that warranted the jury in disregarding their testimony and all the admitted circumstances surrounding the case, and base their verdict on some undiscernible inference or conjecture." Judgment reversed and cause remanded, with directions. GARRIGUES, C. J., and TELLER, J., con cur. (67 Colo. 4) RHODES v. PEOPLE ex rel. TOWN OF (Supreme Court of Colorado. Nov. 3, 1919.) The city clerk is without power to sign the name of the mayor to an ordinance, under Mills' Ann. St. 1912, § 7390, and where he did so it was as though the ordinance had not been signed; so that, where it was adopted by the concurrence of a majority of the members elected, it became a valid ordinance without the mayor's approval under section 7391. Error to Phillips County Court; G. B. Weir, Judge. E. L. Rhodes was convicted of violation of an ordinance of the Town of Haxtun requiring the licensing of dogs, and he brings error. Application for supersedeas denied, and judgment affirmed. McConley & McConley, of Sterling, for plaintiff in error. Avery T. Searle, of Haxtun, for defendant in error. The above rule has been approved and applied in the following cases: Elwood v. W. U. T. Co., 45 N. Y. 549, 6 Am. Rep. 140; Decker v. Braverman, 196 Ill. App. 387, 389; Fitzgerald v. Metropolitan Life Ins. Co., 90 Vt. 291, 98 Atl. 498; Walker v. Warner, 31 App. D. C. 76; Flaherty v. Butte Electric Co., 42 Mont. 89, 111 Pac. 348; Gleason v. Prudential Fire Ins. Co., 127 Tenn. 8, 151 S. W. 1030; McNamara v. Georgia Cotton Co., 10 Ga. App. 669, 73 S. E. 1092; Hall v. Whip-dogs. ple (Tex. Civ. App.) 145 S. W. 308; St. Louis, etc., Ry. Co. v. Humbert, 101 Ark. 532, 142 S. W. 1122. SCOTT, J. The plaintiff in error was con victed of the violation of an ordinance of the town of Haxtun requiring the licensing of The only question presented is as to the validity of the ordinance. It is stipulated that the ordinance was adopted and published as required by the The record contains no syllable of testi- statute; but it was signed by "G. L. Cline mony, either direct or circumstantial, to in- (by J. E. Rugg), Mayor of the Town of Haxdicate that the money in question belonged tun, Colorado." Rugg seems to have been the to any one other than Edward Seymour, city clerk at the time. The city clerk was plaintiff in this case. The testimony of his without power to sign the name of the mayor ownership stands uncontroverted, either by to an ordinance. His act in so doing could direct testimony or by circumstances, and in no sense validate or invalidate the orjustifies but the one inference, namely, that dinance. It was as though the ordinance the money in question is his property. Upon had not been signed at all. the authorities cited the finding of the trial Section 7391, Mills' Ann. Statutes 1912, recourt is clearly wrong and should not be ap-quires the signature of the mayor to or dinances, but provides: proved. "If the mayor shall fail to return to the next subsequent meeting of the council any contract, resolution, or ordinance presented to him for his approval, the same shall become a valid ordiWil-nance or act, contract, or resolution, as the case may be, in like manner as if it had been approved by him." The judgment is therefore reversed, and the cause remanded, with directions to enter judgment for the plaintiff, Edward Seymour, in the amount found to be due him, after deducting what has already been paid to liam, which Edward admits was turned over to him, together with continuing legal interest on such balance from the date payment was demanded. This seems to have been precisely what was done in this case. The signature of the (185 P.) mayor is not required by law, either at the time of the recording of the ordinance or in its publication. The adoption of the ordinance was by the concurrence of a majority of all the members elected to the council. Section 7390, Mills' Ann. Statutes 1912. It was adopted by the affirmative vote of all the members of the council. The mayor's duties in this respect are directory and ministerial only. The ordinance, having been duly adopted, recorded, and published, is valid. The application for a supersedeas is de nied, and the judgment is affirmed. GARRIGUES, C. J., and DENISON, J., concur. (66 Colo. 606) SARVIS TIMBER CO. v. BITZER. (Supreme Court of Colorado. Nov. 13, 1919.) 5(1)-No CONTRACT WHERE MINDS FAIL TO MEET. Where one renting three horses lost one, his statement to the hirer on returning a horse which the hirer said was not his: "Well he looks like your horse; he is the same size and color as your horse. You take that horse and keep him until we find your horse"-was not an offer of such horse in lieu of the one lost, or as satisfaction for any claim on account of failure to deliver the proper horse, and there was no meeting of the minds if the hirer believed it to be such an offer and at the time stated, "I will see if he is as good as my horse." 2. ANIMALS 27 CONTRACT. HIRE; REVOCATION OF Where one who hired three horses lost one, and, upon returning a horse which the hirer denied was his horse, stated: "Well he looks like your horse; he is the same size and color as your horse. You take that horse and keep him until we find your horse"-to which the hirer said, "I will see if he is as good as my horse," the transaction passed no title, and was in its nature temporary, and was revocable after a reasonable time, and left the liability to account for the lost horse exactly as it was before. Department 2. Error to District Court, Routt County; H. P. Burke, Judge. Suit by John S. Bitzer against the Sarvis Timber Company. Judgment for plaintiff, and defendant brings error. Reversed, with directions to dismiss. Gooding & Gooding, of Steamboat Springs, for plaintiff in error. Arthur L. Wessels, of Steamboat Springs, and John Hipp, of Denver (William H. Gabbert, of Denver, of counsel), for defendant in error. DENISON, J. This was a suit brought by the defendant in error, Bitzer, against the Sarvis Timber Company, plaintiff in error, for malicious prosecution. The plaintiff had a verdict for $1,583.33 and $2,000 exemplary damages. The first count of the complaint was dismissed. The second was based on a criminal prosecution started by one Carpen der, the superintendent of the Sarvis Timber Company, against Bitzer, charging him with larceny as bailee of a horse called "Dandy." The third count charged the company with maliciously bringing an action of replevin against Bitzer for the same horse. The facts essential at present are as follows: The company gave Bitzer the following receipt: "October 18, 1913. "Mr. John S. Bitzer, Steamboat Springs, Colo.-Dear Sir: This is to certify that we have this day received three horses from Mr. Bitzer, two of which we are to use from this date to March 15, 1914, at a flat rental of $100.00, with the privilege of buying the complete outfit, consisting of team, wagon and harness, for $300.00 on November 1, 1913; the extra horse we are to have the use of without cost, or for his board. "Sarvis Timber Company, "By S. P. Carpender." The "extra horse" referred to in the re ceipt was called "John." The others do not now concern us. When Bitzer wanted his horse back it could not be found among the company's horses. Plaintiff said: "Well, Mr. Carpender, I want to get my 3. MALICIOUS PROSECUTION 18(4), 25(1) crop in; it is getting late, and I must get my PROBABLE CAUSE. Where defendant hired three horses and lost one of them, and returned one which plaintiff denied was his horse, and defendant said: "Well he looks like your horse; he is the same size and color as your horse. You take that horse and keep him until we find your horse" and plaintiff took the horse, and hid it when defendant asked for it and looked for it, de fendant had probable cause for having plaintiff arrested for larceny as bailee, and for bringing replevin although the plaintiff believed that he was to have the horse given him if his own could not be found. crop in. If you will give me my horse I will buy another horse, and then I will get my in." crop Carpender said: "Well, Mr. Bitzer, I will loan you a team, if you want to put your crop in." Thereupon the defendant loaned plaintiff a team which did not prove satisfactory to plaintiff, and another team, Louie and Monte, were substituted. Afterwards Carpender told plaintiff that they had found his horse, and the defendant offered him the horse For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Dandy as his horse. He said he was not his. [ offered; to see whether he was as good as He testifies that one of the defendant's men then offered him Dandy in place of his horse. He did not accept. They then unhitched one of the two horses, Louie and Monte, which had been loaned by the company to him to get his crop because John could not be found, and put Dandy in his place, and drove to the company's office. Then there was conversation ending thus: Carpender said: "Well, he looks like your horse; he is the same size and color as your horse. You take that horse and keep him until we find your horse." Bitzer said: "I will see if he is as good as my horse." Bitzer kept the horse Dandy for some time, and finally when Carpender demanded him for the company, refused to deliver. The demand was made at a garage in Steamboat Springs. The horse was then behind the garage. Carpender looked for him, but did not find him. Bitzer intimated he was elsewhere, and when Carpender went to get him, Bitzer took the horse and drove him to a distant ranch, and left him there. Carpender learned of this, and thereupon consulted the attorney for the company, Mr. Gooding, detailed to him the history of the case, except that he did not tell him of the receipt above quoted, and under his advice and the advice of Mr. Monson, the district attorney, began criminal proceedings, charging Bitzer with larceny as bailee and a civil proceeding in replevin to recover the horse, which were the proceedings charged in the matter now before us as malicious. The verdict is general upon both counts. There is no way in which we can distinguish between the damages on one count or the other. [1] It is obvious that Carpender did not, by his words last quoted, offer the horse Dandy in lieu of John or as satisfaction for any claim on account of the failure to deliver John, though Bitzer's reply that he would see if he was as good as John might be an answer to such an offer. Bitzer had, however, borrowed Louie and Monte "to get in his crop," because John was not found. He took Dandy in Louie's place to keep till John was found, if we go by what Carpender John, if we go by Bitzer's reply. But Carpender's offer and Bitzer's reply show no meeting of minds and no contract. There is no evidence as to what was to be done in case John could not be found at all, or in case Dandy did or did not prove as good as John. The understanding of the parties must be deduced, as well as we can from their circumstances, conduct and language. The only understanding that can be inferred or deduced from these sources, as shown by Bitzer's own testimony, is that Dandy was given into his possession as a loan to do his work until John was found, both parties expecting him to be found in a reasonable time. There is nothing to justify the presumption that the arrangement was perma. nent, or other than a loan to enable Bitzer to “get in his crop." [2] The transaction passed no title, was in its nature temporary, and required readjustment after a reasonable time, and was therefore revocable after a reasonable time, and left the liability of the company to account for the horse John exactly as it was before. Whether the company was liable at all for the horse John does not appear, but the question is not important. [3] It follows from what has been said that under the facts, so far as they appear in this record, the company was entitled to judgment in the replevin suit. This being so, it is impossible to say that there was not probable cause for the criminal prosecution. The horse belonged to the company. The company was entitled to possession. Bitzer had refused to deliver. Carpender learned that he had deceived him as to the horse's location, had run the animal off, as soon as he could do so secretly, and hidden him. All this, appearing by Mr. Bitzer's own testimony, shows not only probable cause, but shows his actual guilt of larceny as bailee if he did not really believe that he had a legal right to the possession. It follows that under the evidence in this case the defendant was entitled to a directed verdict. The judgment of the district court is reversed, with directions to dismiss the case. GARRIGUES, C. J., and SCOTT, J., con cur. some three or four months prior to his death. At the time of the accident he was at work with another boy, in hoisting rivets and coal, by means of a rope and pulley to workmen who were erecting tanks at the top of a structure some seventy-five or eighty feet from the ground. On the day of the accident young Carlson told his fellow worker that he had discovered a new way to hoist the rivets, and in pur That employé performed his duties in an unusual and dangerous manner does not of itself place him outside of provisions of Work-suance of which he climbed about twentymen's Compensation Act. REVIEW OF COMMIS five feet up the scaffolding, seized the hoisting rope, to the other end of which a bag of 417(7)-WORK- rivets was attached, and jumped to the ground, upon the theory that his weight would counterbalance that of the rivets, and so hoist them to the workmen above. As he reached the ground his head struck the bottom of the scaffolding, he lost hold of the hoisting rope and the bag of rivets fell upon his stomach in such a way as to fatally injure him. Finding of Industrial Commission on conflicting evidence, where there is ample competent evidence to support it, will not be disturbed. En Banc. Error to District Court, City and County of Denver; Julian H. Moore, Judge. Proceedings by Joe Carlson and others under the Workmen's Compensation Act for compensation for death of Alfred Carlson, opposed by H. Koppers Company, employer, and the Travelers' Insurance Company, insurer. Employer and insurer bring action to set aside findings and award of Industrial Commission for claimants. Judgment for employer and insurer, and Industrial Commission and claimants bring error. Reversed. and remanded. Victor E. Keyes, Atty. Gen., and John S. Fine, Asst. Atty. Gen. (Walter E. Schwed, of Denver, of counsel), for plaintiffs in error. Frank C. Goudy, E. P. Steinhauer, and J. H. Burkhardt, all of Denver, for defendants in error. [1] Numerous questions have been discussed by counsel, but one only need be determined and that is whether there is suffi cient evidence to support the findings of fact by the Commission. the Commission the evidence was in conflict At the hearing before as to whether Carlson had violated his con tract of employment by ignoring his instrucshould hoist the rivets. The foreman, under tions in relation to the way in which he whom Carlson was employed, testified that he had instructed the two boys, Carlson and another, who were working together, to hoist rivets only when standing on the ground, and that they were not to climb upon buildings or scaffolding even to put the hoisting apparatus into position. On the other hand, the boy who was a fellow workman with Carlson, engaged in the same task, testified BAILEY, J. This was an action before that the only instruction given them was in the Industrial Commission by the depend-effect that they were to get the rivets and ents of Alfred Carlson, a minor, to secure other supplies to the workmen: "That they compensation for the death of Alfred, who was killed while employed by the Koppers Company, one of the defendants in error. After a hearing the plaintiffs were awarded compensation in the sum of $429.68, to be paid in installments. The defendants, after having been denied a rehearing by the Commission, brought this action to set aside such findings and award. The district court, upon the ground that the deceased by disregarding his instructions as to the method to be employed in doing his work, had taken himself without the Act, entered an order in compliance with such request. Plaintiffs bring that judgment here for review. were to get the rivets to the top." While it may be conceded that Carlson at the time he met with the fatal accident was performing the duties of his employment in an unusual and dangerous manner, this fact, in and of itself alone, does not place him outside the provisions of the Compensation Act (Laws 1919, c. 210). As detailed above, the manner in which Carlson was instructed to do his work is in dispute, and the testimony conflicting. In Passini v. Industrial Commission, 171 Pac. 369, this court, in discussing the effect of the findings of the Commission upon disputed questions of fact at page 370, said: The essential facts are that Carlson was "This court may consider only the legal quesemployed by the Koppers Company as ation of whether there is evidence to support the rivet boy, and his duties were to carry rivets findings, and not whether the Commission has and other supplies to workmen employed by misconstrued its probative effect. The award the company. He had been so engaged for is conclusive upon all matters of fact properly For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |