tional interest was unpaid, or if he had not absolutely relied on the representation that it was paid. We are of opinion that this omission in the charge could not have misled the jury, and is of such technical character that it is too late now for defendant to assert it. Mpls., St. Paul, Rochester & Dubuque Elec. Trac. Co. v. Enggren, 111 Minn. 373, 127 N. W. 391; Applebee v. Perry, 87 Minn. 242, 91 N. W. 893.

of testimony with reference to what the de- he had had any information that $477 addifendant said or promised when he desired plaintiff to take the deed direct from Geddes, instead of Geddes deeding to Hall, Hall to defendant, and defendant to plaintiff, could not have been prejudicial; for, as above stated, by adjusting the interest on one of the mortgages and presenting to plaintiff a deed which clearly indicates that plaintiff was to pay interest on the mortgages only from and after the date of the contract, there was no controversy or dispute between the parties as to the matter. Moreover, the court expressly charged the jury to dismiss from their minds all testimony in regard to defendant's promise to stand back of the covenants in Geddes' deed. But, that aside, it is by no means clear that the testimony was not properly admitted, for the reason that defendant's willingness to vouch for the covenants in the deed of Geddes delivered to plaintiff in lieu of his own tends to prove the contention of plaintiff that he made the representations alleged.

[7] The testimony of plaintiff that he relied on defendant's representations as to the interest being paid on the $1,000 mortgage was properly admitted. This was necessary to prove, and the only way it could be done, outside of the inference from his act in accepting the deed, is for him, under oath, to state that he did rely on defendant's word. Berkey v. Judd, 22 Minn. 287.

[3] No exception was taken to the charge of the court, wherein again and again was stated that the sole questions for the jury were whether or not defendant had made the

false representation that the interest was paid on the first (or $1,000) mortgage to May 3, 1905, and, if he did so represent, how much of the back interest was unpaid, which plaintiff was compelled to pay. Unfortunately, one other element was omitted, namely, that it was necessary to find that plaintiff relied on the representation, being ignorant of its falsity. However, the oversight did not occur to defendant's counsel at the time, for no attention was called thereto, nor did he observe this technical defect in the charge when the first motion for a new trial was made, nor even when a second one was made, over a month after the first was denied; but în a third motion, set for hearing the same date as the second, the point is made. We do not think a new trial should be granted for this unnoticed omission in the charge. As hereinbefore stated, the plaintiff testified that he relied on the representation, believed it to be true, and was ignorant of the falsity when he took the deed. This was so fully brought out in the testimony that the jury must have been impressed with its importance. Furthermore, it is self-evident that plaintiff, having assumed the payment of the interest on the mortgage only from May 3, 1905, would not have accepted the deed if

[5] The contention that plaintiff's counsel, by improper remarks in his final argument to the jury, prevented defendant from having a fair trial, cannot be sustained. The defendant's testimony and the undisputed facts were such that strong language might well be used to characterize his conduct. Much must be left to the discretion of the trial court with respect to the limits of proper argument. Often the closing address of defendant's counsel is such that the opposing counsel is justified in making reflections which would be out of place if the tenor of the first address had been entirely proper. The trial court, who knew what had preceded, made no ruling on what defendant's counsel stated were the obnoxious remarks and the correctness of which plaintiff's counsel denied. We do not think the record presents any ground for new trial on account of misconduct of counsel.

The order appealed from is in all things affirmed.

KRENGEL v. HASLAM et al.

(Supreme Court of Minnesota. July 12, 1912.) (Syllabus by the Court.) MECHANICS' LIENS (§ 154*)-LIEN STATEMENT -VERIFICATION.

section 3511, R. L. 1905, showing upon its The verification of a lien statement, under face a full compliance with the statute, held sufficient, though made by an agent upon information communicated to him by the lien claimant.

Liens, Cent. Dig. §§ 261-267; Dec. Dig. § [Ed. Note.-For other cases, see Mechanics' 154.*1

Appeal from District Court, Ramsey County; Grier M. Orr, Judge.

abeth Haslam and others. Judgment for deAction by Adolph B. Krengel against Elizfendants. From an order denying a new trial, plaintiff appeals. Reversed, and new trial granted.

W. E. Barnacle, of St. Paul, for appellant. David F. Peebles, of St. Paul, for respondents.

BROWN, J. In June, 1909, defendant Thorp entered into a contract with the owner for the construction of a building upon property owned by him, in and by the terms of which he undertook and agreed to furnish

all labor and material for the completion | ticular transaction.

The same situation

of the work. The contractor employed plain- might be presented in the case of a coparttiff to do certain decorating and painting nership. In either case the individual memupon the building at the agreed compensa- ber of the copartnership, or the agent of tion of $55.80. Plaintiff thereafter, his the corporation, in the preparation of the claim not being paid, duly perfected a lien lien statement would be required to rely for upon the premises for the amount so due specific information upon those personally him. This action was brought to foreclose familiar with particular items of the claim. the lien. Plaintiff's lien statement was in If this were not permissible, then the veriall things in conformity with the statutes, fication of the statement would necessarily but was not personally verified by him. The have to be made by all those who personally verification was by his agent and attorney, had in charge particular transactions. Such and in form and substance in compliance was clearly not the purpose of the statute. with section 3511, R. L. 1905. It appeared The statute is a remedial one and should be on the trial that the only knowledge the liberally construed. Coughlan v. Longini, 77 attorney had with reference to plaintiff's Minn. 514, 80 N. W. 695; Nordine v. Knutclaim was obtained from facts communicat- son, 62 Minn. 264, 64 N. W. 565. And since ed to him by plaintiff and by the contractor. no claim is made that the lien statement is Upon this fact so appearing, counsel for de- in any respect untrue, and the verification fendants raised the objection that the veri- upon the face is in full compliance with the fication was insufficient, and because thereof statute, we hold it sufficient. Such seems plaintiff had no valid lien. The court sus- to be the rule in New York. Ward v. Kiltained this contention, and ordered judg-patrick, 85 N. Y. 413. ment that plaintiff take nothing by the action as against the owner of the property. Plaintiff appealed from an order denying a new trial.

Order reversed, and new trial granted.

PERPICH v. LEETONIA MINING CO. (Supreme Court of Minnesota. July 12, 1912.) (Syllabus by the Court.)

ATTEMPTED RESCUE.

Section 3511, R. L. 1905, provides that lien statements shall be verified by some person having knowledge of the facts, or, to use the language of the statute, "by the oath of some person shown by such verification 1. NEGLIGENCE (8 74*)-RIGHT OF ACTIONto have knowledge of the facts stated." The contention of the defendant is that, because the attorney who verified the lien knew nothing about the facts except what had been told him, he was not authorized to verify the statement, and the attempted verification must be rejected. We do not concur in the contention. The verification was in form and substance in full conform

ity with the statutes, and purported to be based upon personal knowledge of the facts. Upon its face the lien statement was complete, and created a valid lien upon the property for whatever amount was due and owing to plaintiff. There is no claim that the statement demands more than was due, nor any suggestion that the statement is in any respect untrue. The naked claim is that the attorney could not properly verify the statement, because he was not personally cognizant of the employment of plaintiff. We do not think the statute should be construed so strictly. It must often happen that lien statements cannot well be verified by a person personally cognizant of all the facts, and that he must base his verification upon information furnished in part by others familiar with them. For instance, some agent or officer of a corporation would of necessity verify the lien statement, and it is obvious that in many instances he would be required, in making the statement, to rely upon information given him by other officers or agents who had personal charge of a par

A person who voluntarily attempts to rescue one whose life is imperiled by the negligence of another, if injured in the attempt, may recover therefor from the negligent person. if the act of attempted rescue be not one of extreme recklessness.

[Ed. Note. For other cases, see Negligence, Cent. Dig. § 102; Dec. Dig. § 74.*] 2. NEGLIGENCE (§ 136*)-CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY.

ed to be rescued by plaintiff was placed in a The question whether the person attemptposition of peril by defendant's negligence, and whether plaintiff's act in attempting the rescue was so reckless and rash as to constitute contributory negligence, or assumption of risk, were issues of fact for the jury.

[Ed. Note. For other cases. see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. 136. ] 3. NO ERROR SHOWN.

4.

The record presents no reversible errors. (Additional Syllabus by Editorial Staff.) Master and SerVANT (§ 246*)—INJURY TO

FELLOW SERVANT-NEGLIGENCE OF MASTER.

Where an injury to an employé was not occasioned by any negligent act of a fellow in putting such servant to work without warnemployé, but by the negligence of the master ing him of the dangers, by reason of which such fellow servant was exposed to danger, and there would have been no occasion for plaintiff doing which he was injured, the master was to attempt to rescue such fellow servant, in liable.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 789-794; Dec. Dig. § 246.*]

Appeal from District Court, St. Louis County; Homer B. Dibell, Judge.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

Action by John Perpich against the Lee- Defendant contends, in support of its motonia Mining Company. Verdict for plaintiff. tion for judgment notwithstanding the verFrom an order denying motion for judgment dict, that the evidence wholly fails to show or a new trial, defendant appeals. Affirmed. | either that Martinovich was an ignorant or Spencer & Marshall, of Duluth, for appel- inexperienced miner, or that defendant was lant. Victor L. Power, of Hibbing, for re- negligent in not warning or instructing him spondent. concerning the dangers of the work; that plaintiff, his fellow workman, had a better BROWN, J. Action for personal injuries, opportunity to learn and know of his inexin which plaintiff had a verdict, and defend-perience, if in fact Martinovich was inexant appealed from an order denying its al-perienced, than defendant, and assumed the ternative motion for judgment or a new risk of working with him; that the act of plaintiff in going to the rescue of Martinovich was rash and foolhardy, in view of the situation presented, of which plaintiff was fully informed, and therefore that plaintiff recklessly contributed to his own injury and cannot recover. In support of the motion for a new trial certain rulings are urged as reversible error.

trial.

sets him to work with other servants, and such other servants are injured by reason of such incompetency, the master is liable for all damages sustained, unless it be shown that the injured servant had notice of the incompetency, or had equal opportunity with the master to discover it. Nutzmann v. Insurance Co., 78 Minn. 504, 81 N. W. 518. If the injured servant has notice of the incompetency, and fully appreciates the danger which might spring therefrom, he assumes the risk and cannot complain. It is well settled, also, that the master is under legal obligation to warn and instruct his ignorant and inexperienced servants of all hidden or concealed dangers connected with the em

The facts are as follows: Plaintiff and one Martinovich were fellow laborers in the employ of defendant in its underground iron mine. Their labor consisted, by means of dynamite and other explosives, in blasting iron ore and preparing it for cartage out of the mine. Holes in the face of the wall of ore were drilled to a proper depth, dynamite [1] 1. As respects the duty of a master to inserted therein, and by means of fuse at- his servants, the law imposes upon him the tached thereto exploded, and the ore dis-obligation of employing competent persons lodged and thrown into movable quantities. to do and perform the work assigned them. On the day of plaintiff's injury the usual If he employs an incompetent person, and procedure had been followed, holes drilled and filled with dynamite, and the fuse lighted. Some difficulty appears to have been encountered in lighting all the fuse, there being five charges of dynamite to be exploded, and because of the difficulty only two were lighted. Plaintiff deemed it imprudent to attempt to light the remaining fuse, and he called to his fellow workman to go to a place of safety, lest the blast come while they were exposed to danger. Plaintiff immediately started down the drift, some 8 feet wide, and after proceeding some distance, just how far is in dispute, he looked back and noticed that Martinovich was still standing near the lighted fuse, apparently ignorant of the danger confronting him. Realiz-ployment, or such as the servant might not ing that Martinovich was in imminent peril, plaintiff called to him and returned to within 20 feet of the wall of the mine, where Martinovich was still standing, for the purpose of rescuing him, when the charge of dynamite exploded, killing Martinovich, and seriously injuring plaintiff. In this action to recover damages for the injury so received by plaintiff, the complaint alleges that Martinovich was inexperienced in the work, unfamiliar with the dangerous character thereof, and that defendant employed and set him to work without previously warning and instructing him of the dangers surrounding the employment; that by reason of defendant's failure and neglect in this respect Martinovich was on the occasion of his death negligently and carelessly exposed to dangers of which he was unaware; and that plaintiff's injury was the result of an effort on his part to rescue him from his impending peril. In addition to a general denial, qualified by the admission of several allegations of the complaint, defendant interposed the defense of contributory negligence and

readily understand and appreciate, and a failure so to do renders the master liable for injuries received by the servant which might have been avoided, had the instructions been given. If in the case at bar Martinovich was inexperienced and unfit for the work in blasting, by the use of dynamite and other explosives, and defendant failed and neglected to warn and instruct him of the dangerous character of the work, defendant was properly held by the jury as chargeable with negligence in respect to his employment. The contention of defendant is that no such case was made by the evidence. In this we do not concur. Our examination of the record and a careful consideration of the evidence leads to the conclusion that the question was one of fact and properly submitted to the jury. We find evidence in the record reasonably tending to show that Martinovich was unfit and inexperienced in this class of work, and evidence also tending to show that no instructions were given him by defendant. Some of the evidence was perhaps of a negative character; but it

Plaintiff had been associated with Martino

vich but one day prior to his injury and

part of defendant, and was sufficient to re- | 28 N. E. 172, 13 L. R. A. 190, 29 Am. St. quire defendant to disprove the case so Rep. 553. When confronted with a sudden made. Defendant offered no evidence that emergency of the kind, the person in position Martinovich was properly instructed or to render aid is not afforded either time or warned of the dangers of his work. It did opportunity to measure the chances of sucappear that, when Martinovich applied for cess. He must act quickly, if at all, and work, he stated to the defendant's officer much must be left, in determining the charthat he was a miner. But this, standing acter of the act, to the particular situation alone, was insufficient to relieve defendant with which he is at the moment confronted, of its obligation of instructing him concern- viewing the act in the light of common pruing the exceedingly dangerous character of dence and the probability or improbability the work, or of affirmatively ascertaining of success. In the case at bar the evidence whether he understood and appreciated the disclosed the fact, not disputed, that Marsame. Nutzmann v. Insurance Co., supra. tinovich was in a perilous position. The dyThe question was for the jury. The further namite was likely to explode and kill him, contention that the evidence affirmatively as in fact it did, unless plaintiff could reach shows that plaintiff knew of, or had equal and warn him of his peril in time to enable opportunity with defendant to discover, the him to make his escape. inexperience of Martinovich is not sustained. that his position was brought about by the The jury found negligence of defendant in failing to warn situation justifying plaintiff's efforts to avert, if possible, the Whether plaintiff could safely approach the place, or whether it after he had himself reached a place of was an act of recklessness for him to do so, safety. and was guilty of extreme negligence tempt to save a human life, was, we hold, a in resolving the question in favor of the atquestion for the jury. The length of time he had been away after lighting the fuse, necessarily short, and the distance he had gone down the drift to a place of safety, were matters in dispute, and for the jury to consider in determining the question. The evidence is not such as to justify this court in saying, as a matter of law, that his return was an act of recklessness precluding his right of action. The question was properly left to the jury, and the evidence sustains

death, and it cannot be said as a matter of

law that he should within that time have

learned of his inexperience.

and instruct him, a

threatened harm.

the verdict.

[2] 2. It is well established, though perhaps not by a uniform line of decisions by all the courts, that when, through the negligence of one person, another is placed in imminent peril of his life, a third person, standing by, who successfully rescues or unsuccessfully attempts to rescue the imperiled person may recover for injuries received by him in the attempt, in an action against the one whose negligence imperiled the life of the rescued person, unless it appear that the attempt to rescue was clearly one of rashness or recklessness under the circumstances presented. The authorities are practically all collected in a note to Corbin v. City of Philadelphia, 49 L. R. A. 715. The proximate cause of the injury to the rescuer in such cases is held to be the act of the person whose negligence created the peril, and, [3, 4] 3. We discover no error in the rulthough the rescuer owed no duty to either, ings of the court, or its refusal to charge the he may recover from the negligent person, jury as requested by defendant, to justify a unless under the circumstances disclosed it new trial. The court refused to charge the may be said that the attempt was one of ex-jury, at the request of defendant, that if treme recklessness. We adopt that view of the law, and come to the question whether the act of plaintiff in attempting to save Martinovich was so rash and reckless as to constitute contributory negligence as a matter of law. Upon that question the law is neither harsh nor exacting. Persons are held justified in assuming greater risks in the protection of human life than would be sustained under other circumstances. Schroeder v. Railway Co., 108 Mo. 327, 18 S. W. 1094, 18 L. R. A. 827. Sentiments of humanity applaud the act, the law commends it, and. if not extremely rash and reckless, awards the rescuer redress for injuries received, without weighing with technical precision the rules of contributory negligence or assumption of risk. The question is ordinarily one of fact for the jury. Eckert v. Railway Co., 43 N. Y. 503, 3 Am. Rep. 721; Railway Co. v. Langendorf, 48 Ohio St. 316,

plaintiff knew, or could by ordinary observation have learned, that Martinovich was not an experienced miner, and plaintiff continued to work with him without complaint to defendant, then plaintiff assumed all risks incident thereto and could not recover. The court was right in refusing this request. The injury to plaintiff was not occasioned by any negligent act on the part of Martinovich in the performance of his work, but by the negligence of defendant in putting him to work without previously instructing and warning him of the dangers connected therewith. In other words, if Martinovich had been properly warned and instructed, he would not have been exposed to danger, and there would have been no occasion for plaintiff to make the effort to rescue him. The request, though a correct proposition of law, was inapplicable to the case.

Order affirmed.

VAN DYKE v. RAILWAY MAIL ASS'N et al. (Supreme Court of Minnesota. July 5, 1912.)

(Syllabus by the Court.) CORPORATIONS (§ 665*)-FOREIGN CORPORA TIONS-ACTIONS-JURISDICTION.

thereof residing within that territory formally organized that division as authorized by the constitution. A by-law was enacted fixing the dues of the members at 50 cents per year. Dues and assessments payable to the association itself are fixed by the constiThe rule that the courts of one state have tution, and the payment of benefits for inno jurisdiction of an action wherein the relief jury or death of members is solely under demanded involves an interference with the its control and authority. The dues preinternal affairs of a foreign corporation follow-scribed by the division just referred to go ed and applied.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2571, 2573, 2595-2600; Dec. Dig. § 665.*]

to defray, as we understand the matter, the expense of the division, and do not go into the treasury of the association. The division

Appeal from District Court, Ramsey Coun- also elected officers authorized by the assoty; Oscar Hallam, Judge.

Action by Carl C. Van Dyke against the Railway Mail Association and others. From an order denying a temporary injunction, plaintiff appeals. Affirmed.

Frank E. McGray and W. B. Douglas, both of St. Paul, for appellant. O'Brien, Young & Stone, of St. Paul, for respondents.

ciation, and plaintiff in this action was elected or appointed to the office of "Chairman of the Welfare Committee of the Tenth Division." Some time thereafter the members of this division amended their by-laws by providing a salary of $1,500 per year for this officer and increasing the division dues from 50 cents to $3 per year, for the purpose of raising a fund to meet the salary so provid

BROWN, J. The defendant Railway Mailed for. Certain members of the division, Association is a corporation organized under claiming that these changes in the division the laws of the state of New Hampshire, by-laws were unauthorized, complained with its managing officers and principal thereof to the association, and objected to place of business in that state. The pur- the enforcement of the same.

The associa

ter to the insurance commissioner of New Hampshire for decision. The insurance commissioner, holding that the association was essentially an insurance company, entertained the matter and ruled that the division had no authority to make the change, and that the failure of members to comply therewith, by refusing to pay the increased dues, would not in any way affect their rights as members.

And he directed that his order in the premises be "carried into effect." Upon the promulgation of this order, the secretary of the association, acting under authority, directed the division treasurer, whose duty it was to collect all assessments and dues, to refrain from collecting in the future the increased dues. As a result of the order of the insurance commissioner and that of the secretary of the association, members have ceased paying the additional assessment, and the fund for the payment of the salary provided for has been exhausted.

poses of the corporation, as stated in its ar- tion, acting through defendant Wood, secreticles of association, are to promote the clos-tary, and other officers, submitted the mater relationship among railway postal clerks, and enable them by concerted action to better the service in which they are employed, and to provide pecuniary relief and assistance to the members and their families, when the members are, by reason of sickness, temporary or permanent injury, or old age, rendered incapable of work. The association is composed entirely of men employed in the United States railway mail service, and is divided, for convenience in the management of its affairs, into divisions corresponding with the divisions in the mail service, as classified and arranged by the federal postal authorities. Defendant Wood is the secretary of the association and resides in the state of New Hampshire. The constitution of the association authorizes the several divisions to elect their own officers, to conduct and manage the affairs of the division, and to adopt rules prescribing eligibility to membership not inconsistent with the constitution of the association. The divisions may also levy assessments and dues, As heretofore stated, plaintiff is the duly the payment of which is essential to the re-elected and acting chairman of the welfare tention of membership in the association. committee of the Tenth division of the asThe divisions are all subordinate branches sociation, and in his complaint sets out, in of the parent corporation, and the rules and addition to the foregoing facts, that the deciregulations made by them must conform to sion of the New Hampshire insurance comand be not inconsistent with the constitution missioner was without authority or jurisdicof the association. tion, and the result of a conspiracy between The Tenth division of the association em- certain railroad officials, members of the fedbraces the states of North and South Da-eral post office department, and officers of kota, Minnesota, Wisconsin, and a part of the association, including defendant Wood, the state of Michigan. Subsequent to the or- to deprive plaintiff of the rights conferred ganization of the association the members upon him by the amended division by-laws.