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his petition in quo warranto in the court which he operates as undertaker; that he is

i of appeals of Franklin county against John receiving monthly payments, termed "inRenschler, resident of Hancock county, terest,” on mutual notes from many parOhio, charging the respondent with unlaw- ties, both young and old, and has been fully exercising the franchise and priv- ready, able, and willing to comply with ilege of writing life insurance.

the terms of the contract, and as an indiIt appears from the agreed statement of vidual undertaker has in fact complied facts set forth in the record that the re- with the terms thereof on the death of any spondent, Renschler, was, at the time of the holder of such mutual note, and is now furinstitution of this action and at the time nishing funeral outfits whenever any of of making the contracts hereinafter men- the holders of such notes decease. It is tioned, engaged as an individual in the un. also made to appear that the respondent dertaking business in the city of Findlay, has never applied for or received any liHancock county, Ohio; that in connection cense or permission to transact any insurwith such business, and to further its ance business, from the superintendent of volume, Renschler, during the last two insurance of Ohio, or from any other ofyears, not acting as a corporation, partner- ficer or branch of the state government, ship, firm, or association, or as the agent nor has he made any report of the nature or member of any such, but wholly in his or extent of his business to the said insurindividual capacity as a natural person, ance department. entered into certain written contracts with In February, 1914, the court of appeals certain other parties, of the following na- of Franklin county, on the foregoing agreed ture: The contract was termed a mutual facts, entered its decree of ouster against note, whereby the party of first part prom the respondent, and error was thereupon ised to pay to respondent during the natural prosecuted by respondent to this court. life of first party the sum of 15 cents Held, the so-called mutual note is clearly (termed "interest”) on or before the 10th insurance. By all the tests to which the of each month in advance. The face value contract may be subjected, it unerringly of the note varied from $50 to $100. The leads one to the conclusion that the intencontract or note provides that, if the said tion of the parties was on the one hand to first party be not in default at time of receive and on the other to provide a fund his or her death, the second party, Rensch- to pay the burial expenses of the insured. ler, agrees to furnish funeral for said first The contract being naked insurance and party.

nothing else, it is subject to regulation by There are many stipulations in the so- the insurance department. State ex rel. called mutual note, among which are these Coleman v. Wichita Mut. Burial Asso. 73 provisions: (1) That any person in good Kan. 181, 84 Pac. 757; Fikes v. State, 87 health from one to sixty years of age can Miss. 251, 39 So. 783; State v. Willett, 171, purchase one note 2: follows: One to ten Ind. 296, 23 L.R.A. ( N.S.) 197, 86 N. E. years of age shall pay 8 cents interest per 68; Guenther, Ins. § 191; 1 May, Ins. 4th month on a $50-note contract; ten to sixty ed. § 27; Robbins v. Hennessey, 86 Ohio years of age shall pay 15 cents interest per St. 181, 99 N. E. 319. month on a $100-note contract. (2) The Even if individuals, acting as purely natobject of the note is to provide the holder ural persons, can carry on the business of with a respectable burial; such funeral to insurance and exercise the functions of be furnished and conducted by the respond such, they must comply with all of the ent, his heirs or assigns, only. (3) After laws of Ohio on the subject of life insurperiod of one year's payments has been ance. Section 670, General Code, reading : completed, the holder may discontinue pay. “The provisions herein relating to the suments and will receive a credit slip, which perintendent of insurance shall apply to slip may be applied on his or her funeral all persons, companies and associations, expenses, provided the funeral be conducted whether incorporated or not, engaged in the by respondent. (4) Note not payable in business of insurance.” cash, and redeemable for its face in such It may well be questioned whether a goods as handled by the respondent, to be franchise of this character, which by its selected by his or her heirs or friends mak- very nature presupposes perpetuity, could ing funeral arrangements. (5) If holder be granted to an individual. See Robbins of note was not in good health at time of v. Hennessey, supra; State ex rel. Richissue, or if obtained through fraud, it shall ards v. Ackerman, 51 Ohio St. 163, 24 be deemed void.

L.R.A. 298, 37 N. E. 828. But if it be It further appears from the agreed state granted that 8 670, General Code, above ment of facts that the respondent has en-quoted, would authorize the issuing of such tered into a number of such contracts, all, a franchise to an individual, such individual however, confined to the territory within' would be bound by all the restrictions and

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requirements of an incorporated company. , cannot speculate as to what he might have To hold otherwise would work a far-reach- been doing or why he was at the place where ing hardship on that part of our population the injury happened, contrary to the posimost needful of the protection of the state, tive testimony in the case. and lead to a recrudescence of the old wild. Same accounting for presence of emcat insurance days, now happily a thing of

ployee where injured. the past.

2. One seeking to recover damages for the

death of an employee injured at a place Judgment affirmed.

where he was forbidden to be by the rules

of his employer has the burden of showing Nichols, Ch. J., and Shauck, Johnson, that he was there in the performance of Donahue, Wanamaker, Newman, and i sume duty owing to the employer. Wilkin, JJ., concur.

Same – dying declarations – homicide.

3. Dying declarations are admissible as such only in case of felonious homicide.

Same - res gesta - declarations not exWASHINGTON SUPREME COURT. plaining main facts. (Departinent No. 2.)

4. Upon the question of liability of a rail

road company for injury to an employee MARY A. HOBBS, Admrx., etc., of Charles through the negligent collision of two enT. Hargraves, Deceased, Respt., gines, evidence of his statements soon after v.

the injury as to why he was at the place GREAT NORTHERN RAILWAY Com- where the injury occurred is not adinissible PANY, Appt.

as res gesta, because they do not in any

way explain or characterize the main facts (80 Wash. 678, 142 Pac. 20.)

under investigation.

Master and servant Federal employEvidence theory of jury.

ers' liability act scope of employ1. Upon the question of the right to re- ment. cover for the death of an employee, the jury 5. Liability under the Federal employers' Note. Declarations explaining why of the res gestæ in an action for his killing

person injured or killed was at place at another point by a train closely following of accident as res gestæ.

that from which he was ejected. "It is all

à part of the history of the case," the court Generally, as to statements made some said. Such cases, however, are not contime after accident as res gesta, see note to sidered as in point in this note, as they Walters v. Spokane International R. Co. tend more to consider the cause of the in42 L.R.A.(N.S.) 917.

jury than to explain why the person inA search has revealed but little authori- jured was at the place of injury. ty upon the precise question passed upon Testimony that when defendant's master in HOBBS v. GREAT NORTHERN R. Co., as mechanic ordered an employee into a mine to the admissibility of statements or ex- where he was suffocated by gas, he said it clamations by an injured person after the was perfectly safe, was held admissible as accident tending to explain the reason for part of the res gestæ of decedent's going inhis presence at the scene of the accident. to the mine, and of the order given him to In the Hobbs CASE, it will be observed that go into it, in Alabama Consol. Coal & I. Co. the declarations in question were not mere v. Heald, 168 Ala. 626, 53 So. 162, an acverbal acts, but were offered for their testi- tion based upon the negligence of the masmonial value, and their admission would ter mechanic in giving the order. have involved a real exception to the hear- Testimony of a plaintiff injured while out say rule. In some of the cases cited in the of his regular line of employment, that denote, it is not entirely clear whether the fendant's timekeeper and assistant engineer statements or exclamations were admitted both informed him that the superintendent as verbal acts, or because of their testimo- had ordered him to help with the work, nial value.

was held admissible in Elliff v. Oregon R. The statement of a passenger who was & Nav. Co. 53 Or. 66, 99 Pac. 76. The court injured on alighting from a train on a said: “Though the testimony so objected to dark night by falling into a pile of wood, is in the nature of hearsay evidence, the to the effect that the conductor made him statements were believed by the plaintiff, get off where he fell, made within a few who, acting thereon, left his work and asminutes of the accident, while he was still sisted in the manner indicated, and, as such uttering groans and exclamations of pain, deelarations were made at the time he was held admissible in International & G. obeyed the command, they formed a part of N. R. Co. v. Smith, Tex. --, 14 S. W. the res gestæ, and as such were admissible 642, 6 Am. Neg. Cas. 585, as res gestæ. in evidence."

And see Knoxville, C. G. & L. R. Co. v. And where plaintiff was injured while Wyrick, 99 Tenn. 500, 42 S. W. 434, hold- oiling a moving saw, which he claimed the ing evidence that a brakeman on defendant's foreman of the mill had instructed him to train shoved or kicked deceased from a do, the instructions of the foreman were train at a specified point admissible as part admissible as part of the res gesta. Ribble


liability act does not extend to injury to Messrs. F. V. Brown and F. G. Dorety, an employee who is not at the time of the for appellant: injury acting within the scope of his em- An employee cannot recover for injuries ployment, or performing some act which is received while at work, without any evidence incidental to his employment.

that he was at the time engaged in the per

formance of work within the scope of his (July 30, 1914.)

employment, or in fulfilling directions of

his employer, and without proof that his of the Superior Court for King County ceived his injury, or that the defendant in plaintiff's favor, and from orders denying knew, or or had any reason to anticipate, motions for a directed verdict and for judg. that he would be in such a position. ment notwithstanding the verdict, in an

Kennedy v. Chase, 119 Cal. 637, 63 Am. action brought under the Federal employ- St. Rep. 153, 52 Pac. 33, 3 Am. Neg. Rep. ers' liability act to recover for the death 520, 26 Cyc. 1088; 20 Am. & Eng. Enc. of plaintiff's minor son while in the employ Law, 2d ed. p. 131; 2 Labatt, Mast. & S. of the defendant company. Reversed. $ 629, p. 1851; 4 Labatt, Mast. & S. & 1561,

The facts are stated in the opinion. p. 4706; Krebbs v. Oregon R. & Nav. Co. 40 v. Starrat, 79 Mich. 204, 44 N. W. 594. no ticket that morning; and after her death Such instructions immediately preceded the those who took immediate charge of her act to be done and were what moved him to effects found no ticket and only a few pendo the act.

nies in money in her purse; also, that durA case not in point in this note, but ing the thirty minutes she had been at apworthy of notice in this connection, is Chi- pellant's station one regular passenger cago Terminal Transfer R. Co. v. Stone, train had departed for Chicago, and one 55 C. C. A. 187, 118 Fed. 19. In that case in the other direction. The question for the action was for the death of a car re-consideration is whether this evidence was pairer by the alleged negligence of a round- part of the res gestæ. If so, it was properly house “hostler” sent out in charge of a admitted by the trial court, and if not, switch engine without a fireman. On cross- it was

Courts have not always examination the witness was questioned as found it without some difficulty of deterto who sent him out without a fireman. mination as to whether or not particular This question was objected to on the ground acts or declarations were so nearly conthat there was no charge that the injury temporaneous or coincident with the act resulted from negligence in not furnishing itself as to become part of the res gesta. a fireman. The appellate court, sustaining The rule is thus laid down by Greenleaf: the ruling of the trial judge, held that the 'Declarations, to become a part of the res question and answer to the effect that the gestæ, must have been made at the time of roundhouse foreman sent him were admis- the act done which they are supposed to sible as a part of the res gesta, on the is characterize, and have been well calculated sue of negligence on the part of the "host- to unfold the nature and quality of the ler."

facts which they were intended to explain, That one killed at a station by a railroad and so to harmonize with them as obviously train intended to take passage on one of to constitute one transaction.' Greenl. 8 defendant's trains is a material fact in an 108, note 1. One of the cases relied on to action against the railroad company for his support the contention of appellee that this death, and his declarations concerning such evidence was admissible as part of the res intent are admissible in evidence when part gestæ is Lake Shore & M. S. R. Co. v. of the res gesta. Chicago & E. I. R. Co. v. Herrick, 49 Ohio St. 25, 29 N. E. 1052, 10 Chancellor, 165 Ill. 438, 46 N. E. 269, 1 Am. Neg. Cas. 8. In that case a witness Am. Neg. Rep. 408.

was permitted to testify that on the mornBut to be admissible as res gesto such ing defendant in error left his hotel, he declarations of the party must be connect- said to witness, who was a clerk, that he ed with the act of departure. Ibid. was going to Collins. He was injured

So, a remark made by deceased to a neigh- while on his way to the train that ran to bor about an hour before her death, while Collins. In its opinion the court says: performing her ordinary household duties, 'Was his declaration that he was going to that she intended taking passage that morn. Collins competent evidence of that fact? ing on one of defendant's trains, is not ad- | That depends on whether the declaration missible as res gestre, to show relation as was contemporaneous with and explanatory passenger. Chicago & E. I. R. Co. v. Chan- of the act of departure. One departing cellor, supra. The court said: “The evidence from home may have in view any conceivof Mrs. Stangnan, above cited, as to the acts able place or any conceivable purpose as and declarations of decedent an hour before his destination or object. The act of dethe accident, was practically all that was parture is thus in itself of the most ambigurelied on by appellee to show her relation as ous character. It does not afford the slighta passenger. To controvert this, it was est clue to the object of the journey. It shown by the only persons in charge of ap: is natural and usual, according to the natpellant's ticket office, that she purchased I ural experience of mankind, that the party Wash. 138, 82 Pac. 130, 84 Pac. 609; Stark Mr. Arthur E. Griffin, for respondent: v. Port Blakely Mill Co. 44 Wash. 309, 87 Plaintiff's right to recover does not dePac. 339; Baltimore & 0. R. Co. v. Doty, pend upon the deceased having actually been 67 C. C. A. 38, 133 Fed. 866; San Antonio engaged in some service at the moment he & A. P. R. Co. v. Beam, Tex. Civ. App. I was injured. 50 S. W. 411; Grant v. Union P. R. Co.

Missouri, K. & T. R. Co. v. Rentz, Tex. Civ. App.

162 S. W. 959; Sayward v. 45 Fed. 673; Williams v. Arkansas, L. & G. R. Co. 125 La. 894, 51 So. 1027; Martin Carlson, 1 Wash. 29, 23 Pac. 830; Lynch

Tex. Civ. App. v. Kansas City, M. & B. R. Co. 77 Miss. v. Texas & P. R. Co. 720, 27 So. 646; Shadoan v. Cincinnati, N. ton R. & Nav. Co. 72 Wash. 503, 47 L.R.A.

133 S. W. 522; Horton v. Oregon-Washing0. & T. P. R. Co. 26 Ky. L. Rep. 828, 82 (N.S.) 8, 130 Pac. 897; Texas & P. R. Co. S. W. 567; Taylor v. Grant Lumber Co. 94

v. Harvey, 228 U. S. 319, 57 L. ed. 852, Ark. 566, 127 S. W. 962; Doggett v. Mi- 33 Sup. Ct. Rep. 518; Warren v. Townley nois C. R. Co. 34 Iowa, 284; Phillips v. Mfg. Co. 173 Mo. App. 116, 155 S. W. 850; Central R. Co. 68 N. J. L. 605, 53 Atl. 221; | Cincinnati, N. 0. & T. P. R. Co. v. Daniels, George Fowler, Son & Co. v. Brooks, 65 146 Ky. 86, 141 S. W. 119 North CaroKan. 861, 70 Pac. 600.

lina R. Co. v. Zachary, 232 U. S. 248, 58 should say something respecting his de, or declaration of the party, for the reason parture of an explanatory character. Dec- that such declaration or act could not be larations thus made are part of the act said to throw any light upon the motives itself.' Where the evidence shows the party of the parties. A person desiring to commit is about to start on a journey, from common suicide might, an hour before the act, deexperience we know it is usual and nat- clare that he intended to become a passenural that something is said by the party ger upon a train, when, as a matter of fact, relating to the departure, and of a character no such intention existed in his mind, but indicative or explanatory. For such dec- the only intention there existing might be larations to be admissible in evidence as to go to a passenger station where trains part of the res gestæ, they must be made were passing, for the purpose of taking in connection with an act proven, as in the his own life. Such declaration, therefore, case above cited. The rule is that the res made an hour, or any other space of time, gestæ generally remains with the locus in previous to the act of departure itself would quo, and it does not follow the parties after afford no light upon his intention, and the principal act is completed. The au- could not be considered as evidence unless thorities to which we are cited in argument immediately connected with the act of deare principally those in which the decla-parture. In the case of Lake Shore & M. rations sought to be considered were made S. R. Co. v. Herrick, supra, the declaration after the act or injury with which they are was connected with the act of leaving the attempted to be connected. The rule is, hotel. The declaration was not made in in determining whether or not declarations connection with an preparation for a space made before or after the principal act are of time previous to the act of departure for to be considered as part of the res gestæ, the train, but was immediately connected lapse of time is taken into consideration, with the act of departure itself. In the and such declarations made after the prin- case at bar, at the time the declarations cipal act will not be considered as part of which were sought to be admitted as evithe res gestæ if there is any change from dence were made, the decedent was getthe place of occurrence of the principal act ting her children ready for school and peror in the condition of the parties. The forming her ordinary household duties, and evident reason of the rule is that in such while so doing she declared an intention of event an opportunity for fabrication might going to the city of Chicago. This declarabe given, or testimony might be manufaction was not connected with the act of detured by interested parties. Whether or parture itself, and was not admissible. To not such act or declarations will be so con admit such declaration as constituting a sidered must depend upon the circumstan- part of the res gestæ would, on the same ces of each case. The real test is whether principle, hold admissible a like declaration the principal act and the declarations made the day or a week before. Such a sought to be considered as part of the res declaration, therefore, made to the witness gestæ are separated from each other by Stangnan, was not competent as part of such a lapse of time as to render it proba- | the res gesta, and it was error to admit it.” ble that the parties are speaking from de- Where deceased was killed at a railroad signing purposes rather than instinctive im- station where he went to take passage on a pulse. It can be stated as the general rule, train, his declarations before setting out that anything said or done before the prin- on his journey as to where he was going, cipal act occurred, or was within the con- and how, were admissible as res gestæ. templation of the parties, cannot be re Central of Georgia R. Co. v. Bell, Ala. garded as part of the res gesta, although 65 So. 835. The court quoting from only separated by the least possible span Kilgore v. Stanley, 90 Ala. 523, 8 So. 130, of time, unless it tends to explain and un- case not otherwise in point here, said: fold the principal act by the un viesigned act i “What a person says on setting out on a

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L. ed. 591, 34 Sup. Ct. Rep. 305, Ann. Cas. Pac. 444, 647; Dean v. Oregon R. & Nav. 1914C, 159.

Co. 38 Wash. 565, 80 Pac. 842; Illinois C. The declarations of the young man made R. Co. v. Doherty, 153 Ky. 363, 47 L.R.A. at the hospital were properly admitted. (N.S.) 31, 155, S. W. 1119.

Riggs v. Northern P. R. Co. 60 Wash. 297, 111 Pac. 162; Walters v. Spokane In- Morris, J., delivered the opinion of the ternational R. Co. 58 Wash. 293, 42 L.R.A. court: (N.S.) 917, 108 Pac. 593; Roberts v. Port Respondent brought her action under the Blakely Mill Co. 30 Wash. 32, 70 Pac. 111, Federal employers' liability act, to recover 12 Am. Neg. Rep. 372; Starr v. Ætna L. for the death of her minor son, who was a Ins. Co. 41 Wash. 209, 4 L.R.A. (N.S.) hostler's helper in appellant's employ in 636, 83 Pac. 113.

its Interbay yards, Seattle. The accident It is immaterial to an injured employee, resulting in the death of the minor, Charles or in case of death his beneficiaries, whether Hargraves, happened about 7 A, M., Nothe employee was injured while engaged vember 16, 1912. The deceased was a memwithin the scope of his employment or not, ber of the night crew, and had been assistor whether when injured he was obeying ing in preparing the engines to go out some command of a superior, or doing some upon the road, by providing them with fuel, act necessary to be done of his own voli oil, sand, and water. His work was ended tion without any direction from any per. at 7 o'clock, when the day crew came on son over him.

duty. The last work he was engaged in Horton v. Oregon-Washington R. & Nav. concerning which there was no dispute was Co. 72 Wash, 506, 47 L.R.A. (N.S.) 8, 130 putting sand in an engine which then stood Pac. 897; Colasurdo v. Central R. Co. 180 at the sand house. There is some dispute Fed. 832.

as to whether the sand was being placed in It was error to refuse to permit the plain the dome of the engine or behind the fire tiff to prove that it was customary in the box door, but this is immaterial, as it is yard at the time for hostler's helpers to go , apparent that, whether the sand was being upon the pilots of the engines while assist- ! placed in the dome or in the rear of the ing in moving the engines, and plaintiff cab, it would not call for deceased's presence is clearly entitled to a retrial, and defend at the place where he was when he received ant estopped from claiming the action his injury. At this time engine 960 was should be dismissed.

standing on the roundhouse track, and a Lohse v. Burch, 42 Wash. 163, 84 Pac. switch engine was standing on a storehouse 722; Greer v. Squiré, 9 Wash. 359, 37 Pac. track connecting with the roundhouse track, 545; Libbey v. Packwood, 11 Wash. 176, 39 / so close to the frog that it was not in the journey, or to go to a particular place, ex- be known in order to a right understandplanatory of the object he has in view in ing of its nature. These surrounding cirso setting out, is res geste evidence, and cumstances, constituting parts of the res may be proven; and the jury may give it gestæ, may always be shown to the jury such weight as they think it entitled to.” along with the principal fact; and their

And declarations of deceased made just admissibility is determined by the judge before he boarded defendant's train and according to the degree of their relation immediately preceding the occurrence of the to that fact, and in the exercise of his sound accident causing his death, touching his discretion, it being extremely difficult, if purpose in going on the train, were held not impossible, to bring this class of cases admissible as part of the res gestæ in Bal within the limits of a more particular detimore & 0. R. Co. v. State, 81 Md. 371, 32 scription. The plaintiff was entitled to this Atl. 201. In this case the declarations of testimony as having an important bearing deceased expressed his intention of going to upon the right of the decedent to be upon Washington. The court said: "Such dec. the defendant's property, and pass over a larations of the decedent, made at the very customary way to the ticket office of the moment of time immediately preceding the defendant, for the purpose of purchasing act of the defendant company by which he a ticket over its road to Washington." lost his life, form part of the res gestae, And in Denver & R. G. R. Co. v. Spencer, and were properly admissible. In support 25 Colo. 9, 52 Pac. 211, for the purpose of of this view, Mr. Greenleaf in his work on showing that deceased was upon the depot Evidence, vol. 1, § 108, pointedly observes grounds of defendant at the time the acthat the affairs of men consist of a com-cident occurred, to meet his daughter-inplication of circumstances so intimately in-law, who was expected to arrive on defendterwoven as to be hardly separable from ant's train, witnesses were permitted to each other. Each owes its birth to some testify over defendant's objection that they preceding circumstances, and in its turn heard him make arrangement to that effect becomes the prolific parent of others: and with her a few days previously. It was each, during its existence, has its insepara- insisted that this testimony was mere bearble attributes and its kindred facts materi- say, and therefore inadmissible. But, susally affecting its character, and essential to 'taining its admissibility as res gestae, the

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