[5] This would lead necessarily to a reversal of the case were it not for the fact that the amounts claimed are definite, and can easily be separated from the rest of the recovery, and it is evident that under the instructions the jury could do but one thing, namely, find for plaintiff for the full amount of the bills. Plaintiff should be required, therefore, to remit the amount of these bills from the amount of his judgment.

gard to certain facts was admissible to show | Boykin, 32 Tex. Civ. App. 72, 74 S. W. 93; his motive and interest in the case. An ob- Amann v. Chicago Consol. Traction Co., 243 jection to the question was sustained, and Ill. 263, 90 N. E. 673; Wheeler v. Tyler, S. there is no probability that the incident had E. Ry. Co., 91 Tex. 356, 43 S. W. 876. any effect upon the minds of the jury. Where such questions are improperly asked, with the intent to get before the jury a fact not material to the case, the court should penalize the party guilty of such misconduct by discharging the jury. But in this case the question asked was one which might naturally suggest itself under the circumstances, and does not seem to have been dictated by a desire to excite that prejudice, which many jurors seem to entertain against insurance companies, and, as before observed, was not asked in a manner likely to have had such an effect.

[6] It is claimed that the verdict is for an excessive amount, and instances are adduced where verdicts in much smaller amounts for injuries of like character have been set aside as excessive. the plaintiff suffered great pain for the greater part of a year, and that the sight of the other eye has been affected sympathetically to some extent, and we are not prepared to say that under the particular circumstances of this case the verdict is excessive. This court has always held that the question of excessive damages was a matter solely for the trial court, and its refusal to set aside a verdict on that ground would not be reviewed here. Nelson v. O. R. & N. Co., 13 Or. 142, 9 Pac. 321; McQuaid v. P. & V. R. R. Co., 19 Or. 535, 25 Pac. 26; Adcock v. Oregon R. Co., 45 Or. 181, 77 Pac. 78; Wolf v. City Ry. Co., 50 Or. 80, 85 Pac. 620, 91 Pac. 460, 15 Ann. Cas. 1181.

The evidence indicates that

[3] The question asked Dr. Ong, in relation to what the effect would be in producing a magnet if the wire or connection between the magnet and the electricity were not connected or out of order, was not improper. The theory of the defense was that the piece of metal which entered plaintiff's eye was from a manganese casting, and that such a substance would not be attracted by a magnet. The piece of steel presented by plaintiff and which the testimony of his witnesses tends to show was the identical one extracted from his eye was readily attracted by a common magnet, as was demonstrated in the presence of the jury. Under these circumstances, the jury was entitled to know that there might be conditions under which the complicated electric machine of Dr. Connell would fail to attract steel. In fact, there can be but one conclusion from the tes-ed for medical attendance and nursing, ertimony-either that plaintiff's witnesses were trying to foist upon the jury a piece of metal different from that which injured him, or that from some unexplained cause Dr. Connell's magnet did not work properly. It was proper for the jury to understand the difference between a machine of that compli- SPANDE v. WESTERN LIFE INDEMNITY cated character and the common horseshoe magnet exhibited to them, which possesses in itself the quality of attraction.

It is noteworthy also in this connection that experiments performed in the presence of the jury upon pieces of manganese steel showed that that substance was likewise attracted by a common magnet, and, reasoning from the effect to the cause, it seems highly probable that Dr. Connell's magnet was in some manner out of order when the first experiment was made.

[4] The court should have withdrawn the question of special damage for medical attention from the consideration of the jury. The rule is that a plaintiff in a case involving personal injuries can recover, as a part of his damages, his reasonable expenses for medicines and medical treatment, but there must be some evidence that the charges are reasonable. International & G. N. R. Co. v.

It is therefore ordered that, if the plaintiff shall within 30 days remit the amount claim

roneously submitted to the jury, and aggregating the amount of $950, the judgment will be affirmed as to the residue, but that, failing to do this, the judgment will be reversed.

CO.

(61 Or. 220)

(Supreme Court of Oregon: March 19, 1912.) 1. TRIAL (§ 165*) - NONSUIT-DETERMINA

TION.

In passing upon a motion for a nonsuit, the court should consider all the testimony and construe all the writings introduced by the plaintiff.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 373, 374; Dec. Dig. § 165.*]

2. INSURANCE (§ 678*)-REINSURANCE-CONTRACT PROPOSAL AND ACCEPTANCE.

Where a conditional offer is made to execute a written reinsurance contract, there is no contract until the offer is accepted with its conditions and the writing is executed and delivered.

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 1810; Dec. Dig. § 678.*] 3. INSURANCE (§ 679*)-REINSURANCE-CONTRACT-SEPARATE CONTRACT REFERRED TO.

Where an insured accepted a certificate from an indemnity company which stated that the company bound itself as set forth in a

certain contract of reinsurance between it and the order in which the insured had his policy, such contract of reinsurance became a part of the contract between the insured and the indemnity company.

all the things to be done by the Order of Washington. The circular letter in that respect merely proposes on receipt of a certain payment to issue a formal agreement or guaranty binding the company to fulfill

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1812, 1818, 1819; Dec. Dig. the obligations of the order "until such time 679.*]

4. INSURANCE (§ 678*)-REINSURANCE-CONSTRUCTION-ACCEPTED OFFER.

One who has accepted the offer of an indemnity company to reinsure him cannot adopt the part most favorable to him and reject the remainder.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1810; Dec. Dig. § 678.*]

5. INSURANCE (§ 686*)-ACTIONS-PLEADING -PROOF.

as a policy for an equivalent amount can be issued on our forms and at our premium . rates in accordance with the provisions of the reinsurance contract entered into between the Order of Washington and this company." This conditional offer is not proof of the absolute liability alleged in the complaint. The sum and substance of this circular letter is that the membership of the Order of Washington is informed that measures have been inaugurated looking to a novation, whereby the order is to be released from its obligation to its members, who are to accept the company, instead of the order, and the company is to assume the obligations in question in consideration of members of the order. specified payments to it by the individual It invites the com&rades of the order to participate in the pro

One declaring upon a specific contract of reinsurance must prove all the conditions which are essential under it to fix and measure the defendant's liability.

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 1823; Dec. Dig. § 686.*]

On reheåring. Former opinion adhered to.
For former opinion, see 117 Pac. 973.
John H. Smith (John H. & A. M. Smith
and Edward & A. R. Mendenhall,

on the

brief), for appellant. G. C. Fulton (C. W. G. C. Fulton, on the brief), for respondent.

BURNETT, J. This case was originally submitted on briefs without oral argument, and a decision was rendered reversing the judgment of the circuit court and remanding the cause for further proceedings. 117 Pac. 973. On motion of the plaintiff a rehearing was granted, and counsel have been heard orally.

posed novation, all the time referring to the reinsurance contract between the company and the order as the standard by which the liability of the company is to be ultimately measured. The circular is nothing more than negotiation on the part of the company and does not amount to a contract.

[2] Even construing it as an offer,,it points out as part of the offer that the contract on the part of the company must be in the form In pursuance of some oral stipulations of a writing to be attached to the membermade in the circuit court between counsel, ship certificate, embodying particular conbut of which no memorandum appears in ditions. Under such circumstances there is the record before us, counsel for defendant no contract until the offer is accepted and at the argument on rehearing waived the the writing executed and delivered. Stanton question of whether the plaintiff is entitled v. Dennis (Wash.) 116 Pac. 650; Ferre Canal to recover in his own name on an instrument Co. v. Burgin, 106 La. 309, 30 South. 863; providing for payment of money to his wife Donnelly v. Currie Hdw. Co., 66 N. J. Law, and not to him in any event. The principal 388, 49 Atl. 428. The plaintiff cannot accontention presented by plaintiff on rehear-cept the part of his offer, if it be one, which ing was that the circular letter dated Chica- is favorable to his contention, and reject go, February 22, 1908, addressed generally the remainder, if he expects to bind the de"To the Comrades of the Order of Washing- fendant. ton," with the peroration "Come with us, live with us, die with us, you will never regret either. Faithfully yours, George M. Moulton, President"-quoted in our former opinion, is itself sufficient proof of the allegations of the complaint to take the case to the jury as against defendant's motion for a nonsuit.

[1] Such a motion being in effect a demurrer to the evidence of the plaintiff, it is the duty of the court to consider all the testimony and to construe the writings, and all of them, introduced by plaintiff in support of his case. Adverting to the allegations of the complaint which are quoted in the former opinion, we find that, according to plaintiff's contention, the defendant bound itself absolutely at all events to the performance of

[3] But we are not left in the dark about how the plaintiff construed the circular letter or what he did in pursuance thereof. By his own testimony, in speaking of the certificate of March 21, 1908, quoted in the former opinion, he says he received it, attached it to his policy, and kept it. Under his own statement he must be held to have accepted it. This certificate, in plain words, states that the company assumes the obligations of the order to the plaintiff "to the extent and in the manner as are set forth in a certain contract of reinsurance made and entered into by and between the Order of Washington of Portland, Or., and the Western Life Indemnity Company of Chicago, Ill., on the 15th day of February, A. D. 1908." This agreement between the order

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

and granting a rehearing, defendants should As a condition to setting aside the decree pay the costs and disbursements incurred by plaintiffs in the trial court up to the time the decree is vacated.

and the company thus became a governing | 2. JUDGMENT (§ 396*)-DEFAULT-VACATING -CONDITIONS. part of the contract by novation between the plaintiff and the defendant. Donnelly v. Adams, 115 Cal. 129, 46 Pac. 916. Whether the defendant contracted with the plaintiff in the absolute terms averred in the complaint depends upon the provisions of the contract between the order and the company, and the case of plaintiff in the testimony is not made out without it.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 757; Dec. Dig. § 396.*]

Appeal from Circuit Court, Curry County; J. W. Hamilton, Judge.

[4] The plaintiff was not bound to accept the offer of the defendant in lieu of the promises of a moribund insurance order; but, having accepted, he cannot adopt the part favorable to him and reject the re-versed and remanded on condition. mainder.

Action by L. G. Higgins and others against From an Norman G. Seaman and another. order denying a motion to set aside a decree for plaintiffs, defendants appeal. Re

[5] The plaintiff has declared upon an alleged contract. His evidence must correspond to his allegations, if he would prevail on the general issue. Furthermore, if he would establish a liability against the defendant, he cannot stop short of disclosing to the court all the conditions upon which the liability was assumed and by which it was to be measured.

It is unnecessary to notice the numerous other assignments of error. The motion for nonsuit should have been allowed. adhere to the former opinion.

MCBRIDE, J., did not sit in this case.

(61 Or. 240)

HIGGINS et al. v. SEAMAN et al.

We

(Supreme Court of Oregon. March 19, 1912.) 1. JUDGMENT (§ 363*)-DEFAULT-VACATING -GROUNDS-MISTAKE.

The plaintiffs entered into a contract with the defendants for the sale to the latter of certain mining claims for an agreed price of $30,000, stipulating that the purchasers should have possession of the mines and work them until they could thereby raise the money to pay the purchase price. On May 19, 1909, the plaintiffs instituted this suit to cancel the contract and remove the cloud thereof from plaintiffs' title to the real property in question on the alleged grounds that the defendants had not only violated the contract, but had also abandoned the same. On July 29, 1909, the defendants filed their answer, denying a breach of the contract on their part, charging an infraction of it on the part of the plaintiffs, and claiming damages in the sum of $5,000. A reply traversing most of the new matter in the answer was filed August 9, 1909. On August 24th of that year the cause was called for trial in the circuit court of Curry county, in the absence of defendants and their counsel, and resulted in a decree according to the prayer of the complaint. The present contention arises upon the refusal of the circuit court, on motion of the defendants, to set aside the decree, and allow them to be heard upon the merits as upon a new trial of the cause. The defendants appeal. Other facts are stated in the opinion.

John F. Logan (Isham N. Smith and Sam M. Johnson, on the brief), for appellants. Robert G. Smith, for respondents.

On August 2d defendants' counsel wrote plaintiffs' counsel, requesting him to draw a stipulation for a change of venue, which plaintiffs' counsel favored, and put the hearing_as late as possible at the September term. Before further arrangements were made, defendants' counsel was called away by impending family illness without the knowledge of plaintiffs' counsel, but on August 6th the latter wrote to defendants' counsel, stating that plaintiffs insisted on having the case tried in the county of the venue, and that the writer would be there on the 23d of August to take up the case, but defendants' counsel did not receive the letter until August 14th, and on the 17th telegraphed plaintiffs' counsel, then en BURNETT, J. (after stating the facts as route to court, that he had relied upon the above). [1] The record shows that at the prior arrangement to try the case in a different county, but plaintiffs' counsel replied that he time of filing the answer the defendants' expected to try the case the following week, counsel opened negotiations by correspondand a decree was rendered for plaintiff's in abence with the attorney for the plaintiffs sence of defendants or counsel. The moving affidavits showed that defendants, relying upon looking to a trial of the cause either before a the correspondence between counsel, had gone referee who would take the testimony at on their vacation so as to be out of touch with some point more convenient than the distheir attorneys at the time of trial. Held, that tant county of Curry or a change of venue. defendants were entitled to have the decree set aside under L. O. L. § 103, authorizing the The overtures were accepted favorably by trial court to release a party from a judgment the plaintiffs' counsel, and the correspondtaken against him through mistake, inadvertence resulted in this letter from defendants' ence, or excusable neglect; the failure of de- counsel to plaintiffs' attorney, under date of fendants' counsel to attend trial not being August 2, 1909: "Your letter of July 31st is acknowledged. Myself and my client will be willing to have the case tried at Grants Pass.

through defendants' fault.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 205; Dec. Dig. § 363.*]

answer or reply to be made or other act to be done after the time limited by this code or by an order enlarge such time and may. also in its discretion and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect."

You may draw the stipulation for a change | court may likewise, in its discretion and of venue to that effect. Inasmuch as we upon such terms as may be just, allow an have a term beginning in September, might I ask that you put the hearing of this case as late as possible in your September term of court. Let me know as near as you can judge approximately when it can be heard so that I can arrange my affairs to be present. I remain, Very truly yours, John F. Logan." While this "gentleman's agreement" was in this uncompleted state, awaiting the drawing and execution of the stipulation, Here is a situation in which either attorthe defendants' attorney was called away ney, as affected by his viewpoint, was aufrom his home in Portland to Seaside on ac- thorized to act as he did. Counsel for plaincount of what is termed in the record "im-tiffs might well have considered that the pending illness" in his family, and was ab-negotiations were yet open, awaiting the sent from his office. This absence and its draft of a stipulation for a change of venue, moving cause was unknown to the opposing as stated in the letter from defendants' councounsel, but on August 6, 1909, the latter ad- sel under date of August 2, 1909. It was dressed to defendants' attorney this letter: very natural for plaintiffs' attorney to sup"Dear Sir and Friend: My Client, Mr. Hig-pose he had a right to withdraw from the gins, was in to see me yesterday and he in- arrangement if his client insisted upon such sists on trying the case in open court at a course when the matter was brought to Gold Beach. I hoped I could persuade him the attention of the latter. Plaintiffs' counto try it here, but his desire is that it be sel acted with commendable good faith in at tried at Gold Beach, and he gave me very once addressing opposing counsel under date good reasons for doing so. I will therefore of August 6, 1909, notifying the latter that be at Gold Beach on the 23rd of this month, the case was to be tried at Gold Beach. Not which is the first day of the term, to take receiving any reply to his withdrawal from up this case as soon as possible thereafter. the negotiations, plaintiffs' counsel would natEnclosed you will find copy of reply which I urally think that the withdrawal had been have caused to be filed. Very truly, Robert accepted and that the case would take its G. Smith." This letter was addressed to de- usual course, but he had not reckoned on the fendants' counsel at Portland where he re- "impending sickness" in the family of his sides, but, on account of his absence from brother attorney on the other side of the home, it did not reach him until about Aug- case. We cannot say that the latter is to ust 14, 1909. On the 17th of that month he blame for not informing the plaintiffs' countelegraphed plaintiffs' counsel substantially sel of that fact in advance. On the other that he had relied upon the correspondence hand, in view of the correspondence already agreement to try the case at Grants Pass in noted, defendants' counsel, from his standSeptember, and that sickness and important point, would naturally suppose that the case engagements would prevent his appearance would not be tried in Curry county, but that at Gold Beach during the August term. This the venue would be changed to the more telegram reached plaintiffs' counsel while he convenient county of Josephine. Here, then, was en route to attend court, and he immed- is a difference between two honorable gentlefately telegraphed in answer to it that he men, ornaments of the profession, in which expected to try the case the following week. each has acted in good faith and according He proceeded to Curry county, and tried the to his client's interests as he honestly concase with the result already noted. templated the situation. On the one hand, at the critical moment the plaintiff could not control his bellicose client, and, on the other, the defendant could not control the "impend

There is but one term of court held annually in Curry county, and that on the fourth Monday in August. The motion to open the decree, and the affidavits in supporting sickness" in his family. thereof were filed August 8, 1910, and there But this is not a case between the attorwere no opposing affidavits. The defendants join in an affidavit setting forth in detail the correspondence between respective counsel, and that, being informed of the same, they themselves had abandoned the idea of going to Curry county to attend the trial, had made other arrangements, and gone off on their vacation out of reach of their attorneys, and hence were unprepared. They also set forth, not only in their own affidavits, but in the affidavits of some witnesses, very material matters which would be proper in evidence in their behalf on the issues raised by the pleadings. Section 103, L. O. L, says: "The

neys, neither of whom is really culpable in the matter. The just rights of the parties must be conserved. In such cases the law is more tender respecting the defendants because they are not the moving parties. Moreover, the inadvertence, surprise, or excusable neglect of the losing party, the defendants in this instance, are what the court must consider rather than what was apparently justifiable conduct on the part of the plaintiffs. We cannot balance one against the other. We think the defendants have made a case requiring the decree to be set aside and the suit heard upon its actual merits on the is

sues involved. In thus seeking extraordi- | ter rights to afterwards claim such rights by nary relief from a court of equity, however, adverse user, they must have made some affirmative assertion of ownership under a claim they should themselves do equity. They of right, open, notorious, and exclusive in charshould at least put the plaintiffs in a posi- acter, which amounted to such an invasion of tion as favorable as they were in prior to the the owners' title as would give them a cause of decree complained of. As the negotiations action. appeared to them, the plaintiffs and their counsel were, authorized to act as they did and to call the case for hearing, especially considering the fact that there is but one term of court in that county, and that it would be a hardship to tie up valuable property rights, and be compelled to wait another year in order to bring the case to trial.

CANTRALL et al. v. STERLING MINING entitled to given quantities of the waters of a