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the face of the warrant that it is for a “debt|188, “this . .. would certainly be so where the due by failure to carry and deliver cotton ac- terms of the contract were in accordance with cording to contract." A judgment is rendered the course of business of the company, to which for the plaintiff, simply and alone because it the shipper bad assented in previous transacwas developed in the proof that the agent of tions.” the Railroad Company did not bave on band, The length to which the opinion of the maat the time of shipment, any other form of bill jority goes makes extremely pertinent the lanof lading than the one used, and that no de guage of this court in the case of Dillard v. mand or request was made for any other form Louisville & N. R. Co. supra: “Some courts, of bill of lading; but that, if the shipper had wbile yielding to the current of authority on requested a form of bill of lading with the the main point, bave at the same time run common-law liability of the carrier unl mited, counter to it, and involved themselves in usethere would have been delay in the issuance of less refinements, by refusing to recognize what the same until such a time as it would have Judge McFarland very properly calls the ‘pattaken the agent to telegraph from Columbia, ural presumption' arising from the acceptance the point of shipment, to Nashville, to the of- by the shipper of a bill of lading embodying fice of the head of the transportation depart. the stipulations, and by requiring an uncertain ment, when a reply would have been instantly quantum of evidence aliunde io establish a returned authorizing the agent to issue the form contract. It were better to adhere to the old of bill of lading requested; in which event the law, and refuse to recognize the modern indofreight charge would have been $1.85 per bale, vations, than to resort to such viceties, which instead of $1 per bale, the amount charged must lead to harassing litigation, and render it upon the bill of lading issued with the limiied difficult, if not impossible, for the profession liability. That it is between forty and fifty to advise. It is the dictate of common sense miles from Columbia to Nashville, and it does that, wben a written instrument is received in not appear that there was any immediate occa. the execution of a contract, its contents are sion for baste in the shipment of the cotton, known and assented to, and a fortiori if there por that the time taken in telegraphing for in be nothing to raise a contrary presumption.” struction would bave delayed shipment beyond Now, I respectfully, but earnestly, submit the period that it would necessarily have been that the opinion of the majority in this case delayed in waiting for the next regular freight is doing just exacıly what was so earnestly train.

reprehended in the case from which we have Such a conclusion and such a holding are not quoted, where the language of Judge McFarsustained by the authorities as I understand and in the Oluell Case was adopted, as dethem. On ihe contrary, it appears to me to be ploring the introduction of any modification in direct opposition to the principles settled in requiring an “uncertain quantum of evidence, cases of the highest authority, which have been and resorting to such niceties as must lead to approved and announced by our own court. harassing litigation, and render it difficult, if It is stated to be placed, by the majority of the not impossible, for the profession to advise." court, upon the general principle that all con- Heretofore, when the shipper presented to bis tracts for the limitation of the common law lia-counsel a bill of lading coutaining the “fire bility of carriers must be fair and reasonable, clause,” further inquiry was made for the as-a doctrine sound in its statement, but, as I certainment as to whether or not there bad been respectfully submit, misconceived in its appli- any negligence on the part of tbe Company, cat on to the case at bar. The reasonableness and, when told that tbere was no proof of neg. per se of the rule wbich allows a stipulation for ligence attainable, the lawyer could with cerexemption from loss by fire, pot occasioned by tainty state that there was no liability. Under the negligence of the carrier, is abundantly es- the new order of things which this opinion established by tbe overwhelming weigbt of au- tablishes, as I understand it, the attorney would thority; and in the language of this court in proceed to inquire whether the shipper had the case of Dillard v. Louisville & N. R. Co. 2 been tendered or offered any other form of bill Lea, 293, "it subjects to less restraint the great of lading, and when told that no such offer had interests of the commerce, upon which so much been made he would then be told the ( ompany of our modern civilization rests,”--quoting in was liable because be, the shipper, “bad not this case the language of the Supreme Court bad an opportunity of exercising the option” of the United States in Neu York Cent. R. Co. of accepting a limiied or unlimited liability bill V. Lockwood, 84 U. S. 17 Wall. 360 [21 L. ed. of lading; and if the shipper should further 627], where it is said by Mr. Justine Bradley: inform his attorney that he had made no re"A modification of the strict rule of respousi. quest for a different form of bill of lading, and bility, exempting the carrier from liabiliiy for ibat he had for years been shipping on identiaccidental losses, wbere it can be safely done, cally the same form of bill of lading, he would enables the carrying interest to reduce its rates be told that that would not prevent a recovery of compensation, thus proportionately relieving for the value of the freight, for the reason that the transportation of produce and merchandise in the case of Louisville & N. R Co. v. Gilbert from some of the burden with which it is it bad been decided that the railroad company loaded.” Again: "The patural presumption would be liable unless it should, with the burwould be that the shipper was apprised of the den of proof upon it, aflirmatively show that contents of the receipt, and assented to its such opportunity had been tendered to the terms, and that a lower rate of freight, or some-shipper, and declined by him; and that it would thing equivalent, will be a sufficient considera- make no difference if in twenty years as a tion for the stipulation;” and, to quote from shipper no such bill of lading had been asked the language of Judge McFarland in the case for, where the con pany bad failed to provide of Olweil v. Adams Exp. Co. 1 Cent. L. J. I such a form, or authorized its agent to issue one, if the shipper bad asked for it. In other wise. Let us see how this tribunal answered words, it is not necessary to show that the these questions. It said: "The first of these sbipper wanted another form of bill of lading, positions is answered by the fact that it noand it is not sufficient to show that be know where appears that the agents disclosed their ingly accepted the bill of lading containing the agency when contracting for the transportation “tire clause;" but you must go further, and of the cotton. So far as the defendant could ascertain wbether the agent of the Railroad see, they were themselves the owners. The Company would have issued him another form, second position is answered by the fact that containing the common-law liability, if be had there is no evidence that a consideration was asked for it. I very much fear that such a not given for tbe stipulation. The company, conclusion cannot but lead to unnecessary liti. probably, had rates of charges proportioned to gation, and great confusion and uncertainty in ihe risks they assume froni the nature of the the administration of justice. It invites and goods carried, and the exception of losses by tenders necessary the performance of an idle tire must necessarily have affected the compen. ceremony, meaningless and deceptive, as a pre-sation demanded. Be this as it may, the conliminary to the obiaining of the benefit by the sideration expressed was sufficient to support common carriers of the country of the privi. tbe entire contract made.” lege that is abundantly and universally ad. This case has, in terms, been approved by mitted to exist. The carrier must bave on this court in Olwell v. Adams Erp. Co., supra. hand and tender a form of bill of lading which If the spirit of this decision is followed, there the previous dealings with the shipper has in- is no trouble in reaching fair and reasonable formed the carrier is not wanted. The plain. result in the case at bar. It would say that Emtiff shows by bis own testimony that be knew bry did not disclose bis principals. He conall the facts; that for twenty years he had been fessedly knew of the fact that the Company bad a shipper of cotton over this road. The opin two rates, -one with, and one without, the ion of ibe majority is not as full as it might be "fire clause,"—for he had, in the language of in its statement of the testimony of the plain the witness, frequently talked with Embry, tiff Parks, in this: that after stating that the the plaintiff's agent, about the two rates before Merchants' Exchange, in Nashville, had pro- this shipment,” and his knowledge and actested against the introduction of the "fire ceptance was the knowledge and acceptance of clause" in the defendant's form of bill of lad the plaintiff. Second, it would say that the ing, and bad given notice of that protest, it proof shows that if dissatisfaction had been exfails to show that this was after the loss of pressed with the $1 rate, accompanied with the these goods by fire, or, at least, that the lan- limited liability, the shipper could bave obgrlage of the witness is susceptible of this in- tained the $1.85 rate, if he had waited for a terpretation. The language of the plaintiff is few moments for a telegram from the agent at as follows: “As a member of the Merchants' Nashville, and that, in the absence of proof Excbange I know that the exchange held a that the necessity for the shipment of the cotton meeting and protested against the insertion of was so pressing that a delay would have been this fire clause in this bill of lading and a copy injurious, such delay would not be wrong or of this protest was served against the Railroad negligence on the part of the carrier, especially Company after the loss of these goods by fire. where it does not appear that there would have I went to Louisville to see Mr. Knott who is been any delay in the shipment; for the Comthe general traffic manager of this railroad. I pany was under no obligation to send this cottold bim that myself and other mercbants of ton by a special lightning express, but bad the Nashville were anxious that he should make right to hold it until the next regular freight two rates for the shipment of cotton, one of train coming to Nashville. It would further which should exclude the fire clause." There say that a limitation in favor of the Company, being po punctuation of the above in the tran- and with a reduced rate, will not deprive the script, it is difficult to say whether the lan. Company of its benefit, when the shipper has guage, “after tbe loss of these goods by fire, had the advantage of such reduced rate, simapplied to the time of the protest, or to the ply because it appears, in a suit brought nearly time of bis going to Louisville to see Mr. Knoti. ibree years afterwards, that the Company did But it is immaterial, for the reason that, if it not bave on band a form of common-law bill applies to the time of the protest, it shows af. of lading: Moreover, it would have been held firmatively that be bad knowledge of the fire that, baving gotten the benefit of the lower rate clause, and with that kpowledge purposely for the six or nine years, it was too late now acceptel a bill of lading giving bim the benetit to say that he was not bound because he was of a reduced tariff, without calling for the com- not offered any other rate. mon-law liability; and, if it applies to the time The shipper is charged with knowledge of of his going to Louisville, of course it was in the law that authorized him to demand a comcompetent, and should not bave been admitted mon-law liability of the carrier, and his acceptin evidence.

avce in silence of the bill of lading with the That the "fire clause” is not unfavorably con "fire clause” is a waiver of such demand of sidered, is shown by the case of York Mfg. Co. rigbt, in the absence of fraud, where it appears v. Illinois C. R. Co.,70 U. 8. 3 Wall. 107 (18 L. that there was a difference in the freight charges ed. 170]. In that case the plaintiff's positions for a limited and for an unlimited liability. were: first, that Troul & Co., agents at Mem- Not having spoken when it was his duty to bave pbis, who shipped the cotton and received the done so, the law now enjoins silence, when he bill of lading, bad no autbority to consent to bas for years pocketed the fruits of bis silence such a condition; second, that it did not appear beretofore. The limitation of the carrier's liathat any consideration existed for such limited bility as an insurer against fire is not to be conLiability in the reduced rate of fare or other- fused with limitations that are not favored, and

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with efforts to avoid the consequences of the And if the offer or tender be waived, then it negligence of the carrier or bis agents. Wben, must be tbat the Company need not, as to such therefore, we bave to deal with a limitation shipper, certainly, have bad on band, or been against loss by fire, without fault or negligence prepared to issue instanter, a common law bill on the part of the carrier, there is no reason of lading, that the shipper's long course of deal. why the same general principles applicable 10 ing led the carrier to believe would not be called knowledge and estoppel between individuals for. Again, at section 241 of Hutchinson on other than carriers should vot apply. For in- Carriers, it is said: “Accordingly, wben the stance, the piesumption of acquiescence is made owner of the goods accepis a (bill of lading or where the slipper receives a bill of lading con receipt] he is conclusively presumed, in the abtaining this limitation without complain); and sence of fraud and imposition, to have assenied that he is estopped to say that he was ignorant to all the terms and conditions." of the contents of the bill of lading, as we have We have at the present term held, what had already seer, is fully established in this State been heretofore approved by this court, that an in East Tennessee. V. & G. R. (0. v. Brumley, insurance conipany would be conclusively ad5 Lea, 401, and Dillard v. Louisvilie & N. R. judged to bave waived a written stipulation, in Co. 2 Lea, 288. But suppose our predecessors its policy, concerning the void character of inhad lookeil at the cases cited, and decided them svrance upon property op leased ground, where in the spirit and on the logic of the case at bar, that fact is not written on the policy, because such presumption and estoppel would bave it would be a fraud upon the insurer to allow been refused recognition. In the language of the insurance company to bold the premium on the opinion of the majority here, the inquiry a policy known by it to have been void at the there would bave been, Is the limitation "fair time of its issuance. Home Ins. Co. v. Stone and reasonable?” to be determined upon the River Nat. Bank (Tenn.) 12 S. W. Rep. 915. facts of each case as it arises, “with the bur- Now, we are unable to see why the same prin. den of proof on the carrier to show it fair and ciple would not preclude a party, who bas for reasonable in each case.” And it would have years arcepted the benefit of a reduced rate of been held unfair and unreasonable to bivd the freight in considerot on of a limited liability of shipper to a loss that, in his ignorance of the the carrier, from defeating that stipulation by terins of the bill of lading, he had never assented saying, after the loss, that "you did not give to.

me an opportunity to elect which form of bill But we have only to turn to approved text- of lading I would take." The shipper, having books to see that this fire limitation is favored gotten the benefit of the reduced rate, should and that knowledge does estop in a contract not be heard to say the contract was vidl, and with a common carrier, as with other people. so known to him at the time. If the one propMr. Hutchinson, in bis excellent work on Car- osition can be accepted as sound, I see no ocriers, says, speaking of knowledge: "The the casion for refusing to apply the saine principle ory upon which they all stand is that if a party, to this case. They both relate to insurance knowing his published terms, employs tue against fire only. It will not do to say that the carrier without objection, a contract according public character and public duties of the car. to those terms is implied between the employed rier require that a different rule should be ap. and employer.” Again, this author says: plied to it than would be applied in the case of "Every map of ordinary intelligence know's the insurance company; for in the case at bar that no individual or company engaged in the it concerns alone the benefit or advantage that business of carrying to distant places now un. I the particular sbipper has already derived by deriakes to carry his goods subject to the old his silence, and gives the Company tbe lenefit common law liability of the carrier. He knows, of a clause which has been repeatedly said to moreover, that bills of lading are constantly be reasonable. given, pot only as the evidence of the receipt Nor does it suffice to say that this court bas of the goods, but as an express and direct notice held in Marr v. Western Ù. Teleg. Co. 85 Tenn. that they will be carried on certain terms. (1 Pickle) 529, that it is not recessary for a Knowing this he cannot be willfully blind, and party dealing with one of these public corporaplead igporance, when it was his duty to know; tions to speak. In the Marr Case there were and knowing in such cases is asseniing. If it four alternatives presented, all of which were was his intention to hold the carrier 10 bis com- held to be "unreasonable and oppre sive," and mon-law liability, he should have said so, and the effort was to escape liability for a loss ocbave either declined to employ him, or sued casioned by the pegligence of the telegraph bim for his refusal, after tendering a reasonal company, while the exemption of the carrier ble sum for bis services or risk.” And be says from tbe liability of an insurer, for a suficient this is in accordance with the English and Amer. consideration, is not unreasonable or unfavored; ican decisions, and adds: Nor is there any. on tbe contrary, as we have seen and have said, thing unrcasonable in this." Hutch. Carr. adopting the language of the Supreme Court $S 238-240.

of the United States in York Mfg. Co. v. IliNow, if this be true of a shipper making his nois C. R. Co. 70 U. S. 3 Wall. 112 (18 L, ed. first shipment, bow much more emphatic is it 171), there is no good reason on principle why by way of estoppel against a shipper of twenty parties should noi be permitted to contiact for years with the same company, wbere the last a limited responsibility. The uansaction con. six or nine years' business was upon the iden. cerns them only. It involves simply rights of tiral bill of lading sued on here. Does not bis property, and ibe public can bave no interest previous acquiescence and acceptance of ibis in requiring the responsibility of insurance to particular bill of lading, without complaint or accompany the service of transportation in face demand, amount to a waiver of the offer or of a special agreement for its relinquishment.” tender of another form? It would seem so. I But the opinion of the majority attempts to make out a case, and seems to take it for grant | Company would have a right to make a rule ed that it has made out a case, where as a mat-tbat where it was to be held liable as an insurer ter of fact there was no consideration for such against loss by fire, for such combustible maJimited liability, because, forsooth, it is said terial as cotion, notice should be given the the rate of $1 on the bill of lading with the home office by the local agent, so that special "tire clause" was the same as the rate six or provision might be made to protect itself by nine years before on the bill of lading witbout obtaining reivsurance, provided that it did not such fire clause.” The fact that the rate to cause such delay as would incommode or inday on tbe bill of lading with the fire limitation jure the shipper. If the shipper wanted insuris the same as it was years ago without such ance, there were two avenues open to bim to limitation is no proof that the rate of today is obtain it-one by paying the Company the innot fixed in consequence of such limited liabili- creased rate of freight, the other, by insuring ty, even in the absence of all other proof on in a regular insurance company; and it is a the subject. Before any probative effect can matter of common information that insurance be given this fact or circumstance, to overcome can be obtained from an insurance company, the presumption of a consideration, you bave generally, for a smaller amount than is usually to negative the idea and destroy the right of charged by the carriers for the insurance liathe carrier to change its tariff of charges from bility. Certainly, it seems to me, with due time to time, to meet competition, and other deference to my learned associates that every exigencies. I say, in the absence of proof (ex. principle of justice and fairness revolts at the cept that relied on by the majority as showing idea of allowing the shipper to have insurance no consideration, to wit, $1 before and $1 after where be bas knowingly refused to apply and the adoption of the “tire clause”) it does not pay for it, either to the transportation company follow that at the time of the issuance of the or to the insurance company. To hold the particular bill of lading sued on here there was transportation company now liable as an in. pot apotber and a bigber rate for the full com- surer is to do so upon ex post facto inquiry, mon-law liability. The consideration need not aliunde the contract, and in violation of what be great, because, in the language of the books, 1 regard as elementary principles of law and some consideration, bowever slight, is sufficient, morals. and the consideration will be presumed from If the opinion of the majority concerned the manifest and absolutely necessary differ- alone the disposition of the case ip band, I ence of responsibility.

would bave been content with the mere anBut we are not left to fall back on these pouncement of my non-concurrence. But well-settled principles, nor to indulge in pre. w bere the spirit and tendency of the decision sumption; for the proof is clear and uncon- appear to me burtful, I deem it my duty to tradicied tbat at the time of the issuance of point out, even at ibe expense of wcariness to this bill of lading the rate for cotton, with the myself and the bar, the dangers to which it common-law liability, was $1.85. This posi- may lead. The spirit and tendency to wbich tive and uncontroverted proof surely cannot I refer are to be found in the strictness with be overcome by a presumption predicated upon which the common law liability of the carrier the mere fact that six or nine years before ibis is sought to be enforced, and the severe condi. time the Company carried the common-law tions imposed as necessary to obtaining the liability at $1, the same price that it now benefit of a contract for limited liability. Incharges for the limited liability; nor can this deed, the difference between myself and the proof be affected, one way or the other, by the majority may be said to be thai, in my opinfact ibat ibe Company had no printed bill of ion, a contract for exemption from loss by tire, lading on band, and bad not instructed its not resulting from the negligence of the car. agent in relation thereto. Wbile, in the opin- rier, should be construed liberally and fairly, ion of the majority, this fact may make the in accordance with the intention of the parties, Company liable, as not giving the shipper op in the absence of fraud or imposition, while portunity to get something he did not ask for, the majority opinion applies a degree of strictand did not want, it capuot disprove the un- vess in considering such contract which, in contradicted fact that there were two rates, many cases in practice, would amount to proone of which could be obtained instanter at $1 hibition. It seems to me that every exemption with the limitation, and the other at $1.85 or condition is, in the opinion of the majority, without any limitation, obtainable by waiting placed upon the same footing, and construed until the agent could telegraph to the general with equal strictness, without regard to the freight department at Nashville. It must be policy which should govern in the trealment noticed that there was no occasion to telegraph of the sundry exemptions. This is bappily to Nashville to ascertain what the common-law. illustrated by the quotation with which the liability rate was. This was known to the majority opinion closes, as follows: "The agent, and is positively testified to by bim, and carrier and his customer do not stand on a that it was $1.85 per bale, and this was also footing of equality. The latter is only one in. known to the plaintiffs through their agent, dividual of a million. He cannot afford to Mr. Embry. The telegram was therefore biggle or stand out, and seck redress in the necessary, not to ascertain the rate, but merely courts. His business will not admit of such a to get instructions as to the issuing of such a course. He prefers, rather, to accept any bill form. It does not seem that there was any of lading, or sign any paper the carrier premore necessity for the Company to keep on sents, often, indeed, without knowing what band a form of bill of lading that was never the one or the other contains. In most cases called for than there would be for a merchant he has no alternative but to do this, or abandon to keep on hand goods for which there is no de- bis business." Such language may be well mand. Indeed it may be safe to say that the enough in the case in wbich it was used, when applied, as was done there, to a case where the bility, exempting the carrier from liability for carrier was seeking to obtain the benefit of a accidental losses, wbere it can be safely done, contract exempting it from a claim for dama- enables the carrying interest to reduce its rate ges for a personal injury to a passenger, occa- of compensation, thus proportionally reliev. sioned by the carrier's own negligence; but the ing the transporiation of produce and mer. same language, when applied to a contract ex. cbandise from some of the burdens with which emption for loss by fire, without negligence, it is loaded;" which, as we have seen, bas becomes misleading, and tends, though unin- been approved by our own court. For the tentionally, to intiame the mind of the trier, reasons stated, I am constrained to dissent whether judge or jury. The quotation I re- from the views of the majority, both as to tbe spectfully suggest is as inapplicable to the facts conclusion reacbed, and the reasoning upon of ibe case at bar as it is to the law. To my which such conclusion res s. Tbis I do with mind the case in band, instead of being viewed great respect for my esteemed associates, in the light of the quolation above, should whose views are the result of a careful considhave been decided in the light of the language eration of the case. From my point of view, of the same judge, in tbe same case, wbere, the judgment of the circuit court should be respeaking of such exemption as is the subject versed, and judgment repdered here for the of decision in the case at bar, he says: "A defendant, modification of the strict rules of responsi



Jeremiah O'LEARY

Mass. 353; Riddle v. Proprs. Locks and Canals

on Merrimac River, 7 Mass. 186; Leoni Tip. v. BOARD OF FIRE & WATER COMMIS. Taylor, 20 Mich. 148; Cooley, Const. Lim. 241SIONERS of the City of Marquette, Appt.

247; Ang. & A. Corp. 719-762; Hamilton Co.

V. Mighels, 7 Obio St. 109. (-...Micb.....)

A townsbip is not liable for the misfeasance or nonfeasance of one of its officers, but the

remedy is against the delinquent officer him. A municipal agency incorporated for self. the protection of the city from tire and for

Fish v. Dodge, 38 Barb. 163; Robinson v. supplying water, and without means of raising Chamberlain, 34 N. Y. 389. money by taxation, is not liable to an action for injuries resulting from negligence of its servants. quasi municipal corporation, as created by

In order to create a rigbt of action, against a

stalute, there must be some statutory provis(January 24, 1890.)

ions for such liability or there is no right of

action. E RROR to the Circuit Court for Marquette Hedges v. Madison Co. 6 II). 567; Ang. & A.

County to review a judgment in favor of Corp. & 24, 629; Shearm. & Redf. Neg. ss 118, plaintiff in an action to recover damages for 139; Morey v. Neufane, 8 Barb. 652; St. Johns v. personal injuries alleged to have resulted from McFarlan, 33 Mich. 12; Dargan v. Mobile, 31 the negligence of defendant's servants. Re- Ala. 469; Forsyth v. Atlanta, 45 Ga. 152; But. oersed.

trick v. Lowell, 1 Allen, 172; Walcott v. SicumpThe case suficiently appears in the opinion. scott, Id. 101; Ilafford v. Nero Bedford, 16 Gray, Mr. F. 0. Clark, for defendant, appellant: 297; Fisher v. Boston, 101 Mass. 87; Grube v.

A public corporation is not liable to an ac- St. Paul, 34 Minn. 402; Voorath v. Hoboken, 6 tion by individuals, unless the right of action Cent. Rep. 338, 49 N. J. L. 285; Hines v. Char be given by statute.

lotte (Mich.) 1 L, R. A. 844. White v. Charleston, 2 Hill, L. 571; Detroit Messrs. Mapes & Kinkade for plaintiff, v. Blackeby, 21 Mich. 84; McCutchcon v. Homer, appellee. 43 Mich. 486; Kincaid v. Hardin Co. 53 Iowa, 430; Eastman v. Meredith, 36 N. H. 284; Dos- Campbell, J., delivered the opinion of the dall v. Olmstead Co. 30 Minn. 96; Bigelow v. court : Randolph, 14 Gray, 541; Hill v. Boston, 122 Plaintiff was injured by falling into a ditch

NOTE.- Public agencies not liable for negligence of limited to officers and agents of fire insurance their servants.

companies, being a private, and not a public, cor

poration, nor a public charity, is liable for the negA personal injury caused by the negligence of ligent act of its servants notwithstanding the fact an agent or servant of a public charitable corpora- that the saving of life and property is referred to tion does not give a right of action for damages in its churter in general terms. See Newcomb v. against a corporation. Fire Ins. Patrol v. Boyd, Boston Prot. Dept. (Mass.) 6 L. R. A. 778. 1 L. R. A. 417, and note, 120 Pa. 6:24,

So a cemetery corporation is not a public charity So where the corporation was a public charitable and is liable to the owner of a grave for the negli. institution (McDonald v. Mass. General Hospital, gent buria) of a stranger therein. Donnelly v. 120 Mass. 432); or was a mere agent to perform a Bostou Catholic Cem. Asso. 5 New Eng. Rep. 741, duty for the benefit of the public under the au- 146 Mass. 163; Old South Society v. Crocker, 119 thority of law. Benton v. Boston City Hospital, Mass. 23; Evergreen Cemetery Asso. v. Beecher, & 140 Mass. 13.

New Eng. Rep. 308, 53 Conn. 551; Re Deansville But a corporation the membership in which is Cemetery Asso. 66 N. Y. 569.

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