that if, in investigating a charge of a particular crime against A., B. should be examined as a witness, and give testimony which would tend to show that he had committed the same or some other crime, the grand jury could never find an indictment against B. for such crime, however clearly proven by other and independent evidence when the jury came to the investigation of such charge, but that the matter would have to be relegated to a subsequent grand jury; second, that, in finding an indictment against a person, the grand jury must indorse thereon the names, not only of those persons who were examined as witnesses touching that particular charge when it was under investigation, but also of all other persons who, while being examined on other matters, may have given evidence that might have been material upon that particular charge, although the grand jury may not have taken it into account in finding the indictment. And this last proposition necessarily leads to a third, equally novel and startling, viz.: That, upon a motion to set aside an indictment on the ground that the names of witnesses are not indorsed, a defendant may go into a general fishing expedition through the entire proceedings of a grand jury, and make them public, for the purpose of ascertaining what witnesses have at any time during the session, in the investigation of any case, given testimony material to the charge in the indictment. This would involve not only the reproduction of the evidence on the motion, but also the determination of the court as to its materiality upon the charge in the indictment. Indeed, we do not see why it would not require the court to go further, and enter into the minds of the grand jurors, to ascertain whether they took the evidence into account when finding the indictment. Any such course would be utterly incompatible with the orderly or prompt dispatch of public business, and any proposition which leads to any such results cannot be sound. Independently of any statute, the practice has long been in vogue to mark on the back of every indictment the names of the witnesses supporting it. This was usually done in this country by the prosecuting attorney, and in England by the clerk of the assizes. The object was twofold: First, to prevent malicious accusations being made by unknown and secret prosecutors; and, second, and chiefly, that the accused may to some extent be informed what witnesses he will have to confront at the trial. In most states where there are statutes providing for such an indorsement they are held merely directory, and hence its omission not a ground for quashing the indictment; and while, in this state, there is a statute providing for setting aside an indictment on this ground, there are very good reasons why its scope should not be enlarged by any strained construction. In the first place, it is an omission which might be supplied by amendment

without prejudice to the substantial rights of the defendant. In some states it is expressly provided that this may be done, and we are by no means prepared to say that it may not be done in this state. Again, as the state is not confined on the trial to the witnesses examined before the grand jury, the omission is not one of vital importance to the defendant. But lastly, and chiefly, it seems almost an absurdity to set aside an indictment on any such ground, when the very fact of his making such a motion conclusively shows that the defendant already has the very information which the indorsement was designed to furnish him. These and other considerations of public policy and convenience lead us to the conclusion that all that the statute requires is that there be indorsed on the indictment the names only of those witnesses who were examined and gave material evidence upon the investigation of the particular charge upon which the indictment was found, and upon whose evidence it was found.

There is nothing in State v. Beebe, 17 Minn. 241, (Gil. 218,) in conflict with this view. All that was held in that case was that where, in the investigation by a grand jury of a charge against one person, evidence is elicited which proves that another person is guilty of the same or another crime, the jury may, on such evidence, indict the latter person without recalling and re-examining the witnesses, and that in such case it would be its duty to indorse the names of the witnesses on the indictment. But, where the grand jury indorse only the names of those witnesses who were examined in the investigation of the particular charge against the defendant when it was under consideration, it seems to us that the only practicable rule is that it must be conclusively presumed that the indictment was found exclusively on the evidence of such witnesses. Therefore, without considering or determining how far the proceedings before a grand jury may be disclosed by the grand jurors for the purposes of such motions as these, our conclusion is that, in restricting the inquiry within the limits stated in the ruling of the court, there was at least no error prejudicial to the defendants; also, that, upon the evidence admitted, there was no error in the decision of the motions.

It follows from what has been said that there is nothing in the point that the defendant Evans was compelled to testify against himself before the grand jury. The case of State v. Froiseth, 16 Minn. 296, (Gil. 260,) furnishes him no aid on this point. In that case it was expressly stipulated that the grand jury required the defendant to be examined as a witness touching the charge and matters set forth in the indictment; and the fact that his name was inserted as a witness at the foot of the indictment showed conclusively that it was found, in part at least, on his evidence. The action of the

court on all points certified to us is affirmed, and the cause remanded for further proceedings.

EVARTS v. ST. PAUL, M. & M. RY. CO. (Supreme Court of Minnesota. Jan. 5, 1894.) INJURIES TO VOLUNTEER ASSISTING SERVANTLIABILITIES OF MASTER.

1. If a person volunteers to assist the servants of another, the master owes him no contract duty, and he assumes all the ordinary risks incident to the situation, and cannot recover from the master for an injury caused by a defect in the instrumentalities used, or by the mere negligence of the servants.

2. But if, after discovering that such volunteer has placed himself in a position of danger, even through his own negligence, the servants fail to exercise reasonable care to avert the danger, the master will be liable.

3. This liability does not rest on any contract obligation, but on the general duty not to inflict a wanton or willful injury on another. As respects this duty, a volunteer cannot occupy a less favorable position than a trespasser.

(Syllabus by the Court.)

Appeal from district court, Hennepin county; Hicks, Judge.

Action by Jennie H. Evarts, administratrix of the estate of James Evarts, deceased, against the St. Paul, Minneapolis & Manitoba Railway Company, to recover damages for the death of decedent. Judgment was ordered on a verdict for plaintiff, and defendant appeals. Affirmed.

Benton, Roberts & Brown and W. E. Dodge, for appellant. F. D. Larrabee, for respondent.

MITCHELL, J. This was an action to recover damages for the death of plaintiff's intestate, caused by the alleged negligence of the defendant. At the time of his death, the deceased was in the employment of the defendant as assistant timekeeper, his duties being to keep an account of the time of men at work upon, and to make measurements of materials used in, construction work. It was no part of his duty to assist in the operation of trains, nor had any conductor of a train authority to direct or employ him to assist in any such work. Neither had he any experience, as brakeman or otherwise, in the operation of trains. On the day of the accident he was sent by his superior officer from the office to a yard about a mile distant, with an order to the conductor of a construction train to bring certain car loads of stone to a place where construction work was going on. Having delivered this message, he boarded the construction train for the purpose of riding back to the office. The train consisted of 35 cars, flat cars loaded with stone, and 29 empty dump cars. The train was moving easterly, and was made up as follows: At the west end was the engine, with the pilot facing east; then came the dump cars, and then the 6 cars loaded with stone; the engine facing the cars and pushing

them, the stone being on the front end of the train as it moved east. The deceased was riding on the rear car of stone next to the dump cars. When the train approached the destination of the stone, the conductor in charge desired to put the 6 cars of stone upon one track, and the 29 dump cars upon another parallel track, without bringing any portion of the train to a full stop. This was to be done after the cars had attained a sufficient rate of speed, by uncoupling the stone cars, and then reversing the engine, which would check the speed of the dump cars, while the stone cars would continue at the previous rate of speed, and pass the switch, onto the desired track, before the dump cars reached it. To accomplish this, the conductor signaled the engineer to "kick" the train, in obedience to which the latter pushed the train rapidly ahead at the rate of from seven to ten miles an hour. Immediately upon giving this order to the engineer, the conductor, as the jury found, ordered Evarts to pull the pin between the stone cars and the dump cars, and, in obedience to this order, Evarts stepped down between the stone car and the dump car next to it, and stooped down and pulled the pin. While the evidence is not entirely conclusive on the point, yet it would seem that Evarts, while pulling the pin in this stooping positon, stood with one foot on each car. Meanwhile, the conductor had signaled the engineer to reverse his engine. The engineer promptly obeyed. This, of course, suddenly checked the speed of the dump cars with a jerk, as the slack between them was taken up. This jerk occurred while Evarts, still partially in a stooping position, was in the act of straightening himself up, holding the pin in one hand. The consequence was that he was thrown upon the ground, and run over by the cars and killed. The evidence is not very clear whether at this time Evarts still had one foot on each car, or, while in the act of straightening himself up, he had placed botn feet on the end of the dump car. The defendant claims that the evidence shows that the latter was the fact. As we view the case, the question is not one of importance; but we think the jury would have been at least justified by the evidence in finding that, so suddenly did the whole thing occur, Evarts was still substantially in the same position when thrown from the cars as when the conductor signaled the engineer to reverse his engine. The evidence was also ample to justify the jury in finding that the conductor knew Evarts' position when he gave the signal to reverse. In any event there is no assignment of error that raises the question of its sufficiency.

The negligence charged against defendant is the act of the conductor in signaling the engineer to reverse the engine when, as is claimed, he either knew, or ought to have known, that the result would be to endanger the life of Evarts. The theory of the law,

and doubtless the correct one, upon which the case was submitted to the jury, was that, as to the acts he was then performing, Evarts was a mere volunteer, and that the defendant owed him no contractual duty as master. The learned trial judge, over and over again, in the most explicit manner, instructed the jury that plaintiff could not recover unless the conductor, at the time he gave the signal to reverse the engine, knew, or in the exercise of ordinary care ought to have known, that the giving of the signal "would result in jerking Evarts from the train;" "would necessarily produce injury to Evarts;" "would result in injury to Evarts." This was but another way of saying that plaintiff could not recover unless, with knowledge that Evarts was in a dangerous position, the conductor, who controlled the movements of the cars, failed to exercise reasonable care to avert the danger. This is the law, even as to trespassers. Hepfel v. Railway Co., 49 Minn. 263, 51 N. W. 1049. This duty rests on no contract obligation, but upon the bare obligation, founded upon the dictates of common humanity, to avoid inflicting a willful or wanton injury on another. Had Evarts been a mere trespasser, and the conductor had seen him in such a position of danger, it would have been the duty of the conductor to exercise reasonable care to avert it, and, if he failed to do so, the defendant would have been liable. We fail to see why a volunteer should have any less rights than a mere trespasser. Because a man is a trespasser or a volunteer, he is not therefore an outlaw, so as to permit others to willfully or recklessly do him an injury. It is no doubt the law, as repeatedly held, that, if a person volunteers to assist the servant of another, the master, as such, owes him no duty; that he assumes all the ordinary risks incident to the situation; and that he cannot recover from the master for an injury caused by a defect in the instrumentalities used, or by the mere negligence of the servants. Church v. Railway Co., (Minn.) 52 N. W. 647.

But it seems to us that this is not inconsistent with the further proposition that if, after discovering such volunteer has placed himself in a position of danger, even through his own negligence, the servants fail to exercise reasonable care to avert the danger, the master will be liable. Such must be the law unless, as already suggested, a volunteer occupies a less favorable position than a trespasser. There is nothing in the Church Case inconsistent with this; and, while we have found no case precisely in point, there is nothing inconsistent with it in any of the cases cited by counsel. It is sometimes given as a reason why a master is not liable to a volunteer for the negligence of a servant that a servant cannot, by his officious conduct, impose a greater duty on the master than that which the latter owes his servant, and that a master is not liable to a servant for the negligence of a fellow servant. If there is

anything in this "fellow-servant" doctrine that has any bearing on the question, it is at least inapplicable in this state as to railway companies.

It strikes us that the very ingenious argument of counsel for the defendant is all based on one radical fallacy, to wit, that in all respects, and for all purposes, Evarts is to be considered as a skilled and experienced brakeman, and therefore, if he did or failed to do anything which an experienced brakeman, in the exercise of reasonable care, would have done or omitted to do, he was guilty of negligence which would prevent a recovery; also, that if the conductor of the train did nothing that would have been negligent had Evarts been an experienced brakeman, then he was not guilty of any negligence in this instance. To the first part of this proposition it is sufficient answer that the question of Evarts' negligence up to the time the conductor gave the signal to reverse the engine was wholly immaterial, under the theory upon which the case was submitted to the jury, to wit, that a recovery could only be had in case the conductor, when he gave the signal, knew, or in the exercise of ordinary care had reason to believe, that Evarts would be imperiled thereby. The court correctly instructed the jury that "although it may be deemed an act of negligence on the part of Evarts to have gone there and performed this duty as a volunteer, because dangerous to any man unaccustomed to perform it, * yet if, after he assumed to do that act, even though he was negligent, and the conductor, as a matter of fact, saw him in that perilous position, and gave the order knowing that the effect of the order would be to throw him from the car, then his negligence would not prevent a recovery." To the matter of negligence on the part of Evarts after the conductor signaled the engineer we will refer hereafter. The second branch of the proposition, viz. that the conductor was not negligent if he did nothing but what would have been proper had Evarts been an experienced brakeman, is clearly incorrect. If he knew, as he did, that Evarts was inexperienced, and for that reason in greater peril, it was the conductor's duty to regulate his conduct with reference to that fact. A position might be perilous to a young boy that would not be so to a mature man; and for the same reason the conductor should reasonably have anticipated danger to an inexperienced man like Evarts, when he might not have done so in the case of an experienced brakeman.

The court after charging the jury, as already stated, that, even if Evarts was negligent on account of his inexperience in attempting to perform so dangerous an act, this would not prevent a recovery if, as a matter of fact, the conductor saw him in a perilous position, and gave the order knowing that the effect or it would be to throw him from the car, added: "This, then, is the

cepts it. This is a question of the intention of the parties, to be gathered from the language of the order, but we apprehend this language must be construed with reference to the character and relation of the parties.

Counsel for respondent has argued the case precisely as if the order had been on a natural person, possessed of unlimited power to accept drafts. Were such the fact, we may concede, without deciding, that this order would be held a draft drawn upon the general credit of the drawer. But the city, being a municipal corporation, had no power to accept drafts generally. Its only power in the premises was to pay to McCann or his assignee the contract price of the work. Had the order been accepted by any city officer, assuming that he had authority to accept such orders at all, clearly the extent of the city's liability would have been to pay it out of moneys due McCann, if sufficient for that purpose. In view of this fact, the intention must have been that the order should be paid out of that fund; otherwise, it would have been of no effect whatever. Strader v. Batchelor, 8 B. Mon. 168. We infer from the record that this distinction, growing out of the character of the city, was not specifically called to the attention of the trial court.

It is also claimed that nothing was assigned by this order, because there was nothing then presently due and payable to McCann on his contract. It would be too narrow a construction of the order to thus limit the meaning of the words "which may be due." The word "may," as here used, implies contingency, possibility, or probability, and is broad enough to include whatever might become due and payable on the contract.

It is further urged that as the contract was not entered into until the 23d of June, and the order was given on the 22d, there was nothing then capable of assignment. As the case was not decided on any such point, and the findings may not have been drawn with that in view, we would not, in any event, be disposed to affirm on that ground. It is undoubtedly the law that where a person is not engaged in, or under contract for, any employment, the mere possibility of being employed and earning wages in the future is not assignable, being a mere possibility coupled with no interest. But, in view of all the provisions of the city charter relating to the letting of contracts for the construction of public improvements, we are not prepared to say that the money that might become due on such contracts does not have a potential existence, so as to be the subject of assignment, even before the execution of a formal written contract, to which the date named in the findings presumptively refers. But we do not think that question is properly presented by the record. Order reversed.

GRIESER et al. v. HALL. (Supreme Court of Minnesota. Jan. 5, 1894.) ACTION TO CANCEL NOTE-USURY - SUFFICIENCY

OF EVIDENCE.

The findings held to be justified by the

evidence.

(Syllabus by the Court.)

Appeal from district court, St. Louis county; Baxter, Judge.

Action by Louis H. Grieser and Emil Hartmann against Martin O. Hall for the cancellation of a certain promissory note on the ground that the same is usurious and void, and for other relief. There was judgment for defendant, and a new trial denied. Plaintiffs appeal. Affirmed.

On March 3, 1892, plaintiff Grieser made his promissory note for $1,300, due in 90 days from date, bearing interest at the rate of 10 per cent. per annum, to one Alice King. This note was, before delivery, indorsed by plaintiff Hartmann, and after maturity it was sold and indorsed by Alice King to defendant. After the note became due the note in suit was given as a renewal, and was made by Grieser, and indorsed by Hartmann, the same as the original. In the transactions resulting in the execution of the original note one Wallace Warner acted as agent. Plaintiff Grieser insists that Warner was agent for Mrs. King, and the latter claims that he was acting in behalf of Grieser. Plaintiffs allege that for their original note for $1,300 they received but $1,287, and for that reason it was usurious and void, and therefore the renewal note is also void.

Wilson & Taylor and Geo. L. Spangler, for appellants. Cotton & Dibell, for respondent.

MITCHELL, J. The issue in this case was purely one of fact, and the only question presented by this appeal is whether the evidence was sufficient to justify the finding of the court that the original promissory note, (of which the note in suit was a renewal,) executed by plaintiffs to Mrs. King, was not usurious. We think the court may well have found that Mrs. King supposed that Warner was plaintiffs' agent to secure the loan, and not her agent in making it, and that as such he was entitled from them to a commission, of which he voluntarily gave her the benefit. This version of the transaction, which was justified by Mrs. King's testimony, was entirely consistent with the conclusion that there was no intention on her part to take or contract for more than the legal rate of interest for the use of the money loaned, which is always an essential constituent of usury. The existence of this corrupt intent is always a question of fact to be collected from the whole of the transaction as it passed between the parties. Moreover, the attitude which both plaintiff Grieser and his principal witness,