And in Boyd v. Bayless (1843) 4 Humph. (Tenn.) 386, it was held that a complainant to whom a nonresident was indebted might, under the Tennessee Act of 1835-6 (which is not set out), attach a debt in his hands due from him on a judgment on a promissory note which the nonresident had deposited with a resident agent or trustee for his benefit.

IV. Question as one of local law.

It has been held that the question whether or not garnishee process may be issued against and levied on an indebtedness due from the plaintiff to the defendant in the same action is a question of local law, since it depends on the interpretation of the statutes of the state providing for the issue and levy of garnishee process, and relates to tangible things having a local situs. Sandusky Cement Co. v. A. R. Hamilton & Co. (1921) 273 Fed. 596 (following the rule in Ohio that the plaintiff may make himself a garnishee).

In Jos. Joseph & Bros. Co. v. Hoffman (1911) 173 Ala. 568, 38 L.R.A. (N.S.) 924, 56 So. 216, Ann. Cas. 1914A, 718, the court, although recognizing that in Alabama the rule is that a plaintiff cannot make himself a garnishee in his own action, held that where the law of another state (Ohio) permitted a creditor to garnish for the satisfaction of his claim a debt which he owed his debtor, a judgment rendered in such proceeding upon a claim against a resident of Alabama must, under the full faith and credit clause of the Federal Constitution, be recognized and enforced by the courts of the latter state.

V. Miscellaneous.

It was held in Smith v. Dickson (1881) 58 Iowa, 444, 10 N. W. 850, that a debtor who was sued by his creditor, and who knew that the claim was exempt from execution and garnishment, could not, after the beginning of the action, go into another county and "procure himself to be garnished" and cause a judgment to be entered against himself,

without notice to or knowledge of his creditor, and then successfully plead such a judgment as a bar to the action by the creditor. The court said that this action was in the nature of a fraud on the creditor; that, even conceding the rule to be that a garnishee defends only for himself, the defense must be in good faith, whereas, in this instance, no defense was interposed, and in bad faith, in fraud of the rights of the plaintiff, the defendant procured a judgment against himself.

In Maryland, and possibly in other states, the decisions upon the question under consideration have been governed by the express terms of the statute, which permitted an attachment of property or credits in the plaintiff's own hands, or in the hands of any other person. Davidson v. Beatty (1797) 3 Harr. & M'H. (Md.) 594; Baltimore v. Root (1855) 8 Md. 95, 63 Am. Dec. 692; Hardesty v. Campbell (1868) 29 Md. 533; Morton v. Grafflin (1888) 68 Md. 557, 13 Atl. 341, 15 Atl. 298.

In Albert v. Albert (1894) 78 Md. 338, 28 Atl. 388, the court does not refer to any statute governing the question, though possibly the apparent assumption that the plaintiff may charge himself as garnishee is based on express statutory provisions. In this case, where one sued out a writ of attachment against a nonresident, and caused the same to be laid in his own hands as garnishee, it was held that as garnishee he had an option to plead or otherwise, and that he had the right to have an appearance made for him and pleas filed in his name, without his consent, stricken out, as unauthorized and as a wrongful invasion of his right to be represented by attorneys selected by him. It was unsuccessfully contended that this view enabled one who is both plaintiff and garnishee to control both sides of the litigation; but the court held that the rights of the nonresident defendant would not be affected by any plea put in for him by the garnishee, as the latter had a right to do under the statute.

Where the plaintiff is not allowed

to make himself a garnishee, it has been held that a motion by the defendant to quash the garnishment proceedings is an appropriate method of raising the objection. First Nat. Bank v. Elliott (1901) 62 Kan. 764, 55 L.R.A. 353, 64 Pac. 623, holding that a motion by the defendant to quash the garnishment proceedings was appropriate to the relief sought, and was properly sustained, where a bank, which brought an action on notes, filed an affidavit in garnishment, stating that it was indebted to the defendant, and a summons in garnishment was thereupon issued, requiring the bank to answer as garnishee, which it did, admitting an indebtedness in a stated amount.

The question whether a plaintiff may garnish himself for a debt due the defendant was considered, but not passed upon, in Beach v. Fairbanks (1884) 52 Conn. 167, it being

held that, even if the rule obtained in that state that a plaintiff may not so garnish himself, it would not preclude the factorizing of the assignees of a claim in a suit brought on such claim by their assignor, who retained under the assignment an equitable interest in the claim, since, having both the legal title and an equitable interest, the assignor must be considered the real party, and not the assignees, who held no legal title, but only a certain equitable interest.

Where moneys in the hands of a sheriff, collected by him upon an execution, cannot be seized on attachment or garnished by a third party, a creditor of the plaintiff in execution, they cannot, a fortiori, be seized or garnished in his hands in an attachment proceeding in favor of the sheriff himself. Hill v. LaCrosse & M. R. Co. (1861) 14 Wis. 291, 80 Am. Dec. 783. R. E. H.

not proximate cause.

2. Where the negligence, as found by the jury, is not the proximate cause

of the injury, there can be no recov

ery.

[See 22 R. C. L. 113; 3 R. C. L. Supp. 1233; 4 R. C. L. Supp. 1456.]

there is no emergency such as will excuse the care due in all ordinary cases.

Savage v. Joseph H. Bauland Co. 42 App. Div. 285, 58 N. Y. Supp. 1014,

6 Am. Neg. Rep. 632; Stanley v. Helm, 204 Mo. App. 159, 223 S. W. 125.

Even though there was an emergency, still the judgment should not be reversed, because there was evidence of plaintiff's negligence which should be left to the jury.

Tozier v. Haverhill & A. Street R. Co. 187 Mass. 179, 72 N. E. 953; American Car & Foundry Co. v. Inzer, Ind. App. —, 86 N. E. 444; Alabama G. S. R. Co. v. Hunt, 17 Ala. App. 566, 86 So. 97; Atkins v. Lackawanna Transp. Co. 182 Ill. 237, 54 N. E. 1004, 6 Am. Neg. Rep. 472; Edgerton v. O'Neil, 4 Kan. App. 73, 46 Pac. 206; Kansas City-Leavenworth R. Co. v. Langley, 70 Kan. 453, 78 Pac. 858; McCallion v. Missouri P. R. Co. 74 Kan. 790, 9 L.R.A. (N.S.) 866, 88 Pac. 50.

If an emergency is brought on by the negligence of the man who seeks to excuse his act by reason of the emergency, it will not excuse him.

Tuttle v. Connecticut Valley Street R. Co. 239 Mass. 553, 132 N. E. 360; Dobbins v. Seaboard Air Line R. Co. 108 S. C. 254, 93 S. E. 932; Condiff v. Kansas City, Ft. S. & G. R. Co. 45 Kan. 256, 25 Pac. 562; Atchison, T. & S. F. R. Co. v. Henry, 57 Kan. 164, 45 Pac. 576.

At the time of the explosion the plaintiff was 1,100 feet from the place of the explosion. She alleged that the shock of the explosion and the poisonous gases affected her nervous system, and gave her permanent injuries, for which the jury allowed her $1,500.

The plaintiff in her petition alleged negligence of defendant as follows: "The agents of said defendant company as above named, while in the employ and service of said defendant company, and in compliance with said order of the company to transport said nitroglycerin over said highway, so carelessly, negligently, and unlawfully conducted themselves transporting said nitroglycerin, by driving the cars in which said nitroglycerin was being transported at such a high rate of speed as to cause one of them to catch fire, and negligently, carelessly, and

in

unlawfully drove said car while it was so afire along the public highway near to and past the residence of this plaintiff, about a quarter of a mile south of the Floyd

This is an action for damages for personal injuries, alleged to have been sustained by the negligence of defendant. The jury made special findings and returned a general verdict for plaintiff, upon which judgment was rendered. The defendant appeals, claiming that what the jury found to be negligence of the defendant is not negligence at all, and not the proximate cause of the injury. The defendant was transporting two automobile loads of nitroglycerin from its factory in Oklahoma into Kansas, over the public highway. It seems that one of the automobiles got on fire, and after they had passed the residence of plaintiff about 800 feet distant there was quite a steep hill. The automobile on fire could not make the hill; the driver abandoned it, and the automobile ran back down the hill and upset, and later, perhaps half an hour, the nitroglycerin exploded.

Kansas, and about 2 miles east of Peru, Kansas, and driving it a short distance north of the plaintiff's house, partially up a steep hill, and carelessly, negligently, and unlawfully abandoned it on said hill without securing it, and permitting it to run backwards near the plaintiff's residence and into a ditch, which caused the nitroglycerin in said car to explode with great force."

Among the special findings made by the jury are the following:

5. Was the car in question on fire at the time that the plaintiff first saw it?

A. Yes.

7. If you find for the plaintiff, then state what acts of negligence the defendant, its servants and employees, were guilty of.

A. Abandoning car on steep hill without securing it, permitting car to back downhill and upset.

It will be noted that the only neg

Negligence

abandoning load is such that one is of nitroglycerin justified in getting away as soon

on fire.

as

possible. We are inclined to adopt that view. In 29 Cyc. 434, the rule is thus stated: "Persons suddenly placed in a position of peril and impending danger do things which ordinarily would be acts of negligence, but acts done in such extreme circumstances are not to be judged by ordinary rules, and if an act has to be performed in a brief period, with no time in which to determine the best course, negligence cannot be predicated of it."

In Donahue v. Kelly, 181 Pa. 93, 59 Am. St. Rep. 632, 37 Atl. 186, 2 Am. Neg. Rep. 229, an employee in a restaurant picked up a gasolene lamp which had become improperly ignited, to carry it outside. While proceeding to the door he was severely burned, and threw the lamp, causing it to explode. The court held that the employer was not liable as for culpable negligence to a third person injured by such explosion.

In Owen v. Cook, 9 N. D. 134, 47 L.R.A. 646, 81 N. W. 285, it was held: "A person whose property is threatened with imminent destruction by fire may take such steps for its protection as are reasonable and proper; if his acts aid or contribute to the destruction of another's property, he will not be liable as for its negligent destruction. The fire from which, without negligence, he seeks to protect himself, will be considered as the direct and

proximate cause of the loss, and also the cause of his acts."

In Allen v. Schultz, 107 Wash. 393, 6 A.L.R. 676, 181 Pac. 916, it was held: "One confronted with a sudden peril not arising from his fault may, to avoid injury to himself, act in the way the emergency seems to require without being guilty of negligence, though he injures another who in no way contributed to the condition creating the peril."

In Moody v. Gulf Ref. Co. 142 Tenn. 280, 8 A.L.R. 1243, 218 S. W. 817, it was held: "An employee of defendant, in unloading a tank car filled with gasolene, is not negligent in that, while emptying the spout at the bottom of the tank into a tub, he, on warning of blasting of rock near by, ran around the car to escape danger, and in his absence the tub overflowed, and the overflow was ignited, and the fire burned plaintiff's building." And further held: "One who in sudden emergency acts according to his best judgment, or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence."

In Louisville & N. R. Co. v. Wright, 193 Ky. 59, 235 S. W. 1, it was held: "Failure to exercise the best judgment in an emergency is not evidence of negligence, though the error be fraught with lamentable results."

In Sieb v. Central Pennsylvania Traction Co. 47 Pa. Super. Ct. 228, it was said: "When one who is without fault is unexpectedly placed in a position of peril, he is to be dealt with in the light of his surroundings at that time, and he is not necessarily negligent even though his judgment has been wrongly exercised."

In Filippone v. Reisenburger, 135 App. Div. 707, 119 N. Y. Supp. 632, it was said: "Plaintiff was working in a building excavation, and was standing on a runway leading into the the excavation, when defendant stepped upon a barrel standing near the runway, and, as claimed by

plaintiff, the barrel turned over and defendant caught plaintiff's feet to prevent himself from falling into the excavation, and caused plaintiff to fall and injure himself; but defendant claimed that the barrel gave in, and he took plaintiff's hand, held out to help him onto the runway, when they both fell. The barrel was in reasonably good condition, was not placed there by defendant, and was not so placed that it would necessarily turn when defendant stepped on it. Held that, in either event, the injury was accidental, and, under the rule that an act done under the influence of pressing danger is presumed to have been done involuntarily, defendant was not liable."

In Floyd v. Philadelphia & R. R. Co. 162 Pa. 29, 29 Atl. 396, it was held that, though a flagman may have signaled persons in a carriage to advance over the crossing, yet, on discovering a train almost on the crossing and the carriage coming in disregard of it, he is not negligent in stopping the horse by any means in his power, even if in doing so he frightened the horse-a thing which, with cooler judgment, he might have avoided.

Appellee contends that this rule should not be applied, because the driver had time for deliberation. This is based upon plaintiff's testimony that the car "hung on the hill and ran back."

The plaintiff testified:
Q. You

place?

saw them pass your

It seems clear that the time was not sufficient, nor the circumstances such as, to permit of meditation or deliberation. In 20 R. C. L. 29, it was said: "The rule judicially stated is that one who in a sudden emergency acts according to his best judgment, or who, because of want of time in which to formulate a judgment, omits to act in the most judicious manner, is not chargeable with negligence."

In Ransom v. Union Depot Co. 142 Mo. App. 361, 126 S. W. 785, an employee of an express company, while unloading an express car, was warned that a train was coming into the depot close to the track where his truck stood, and that he must move his truck immediately to avoid collision with the train, and he got it across the track of the incoming train and upon the platform, but in so doing came in contact with a depot truck, and caused the depot truck to roll down so close to the track that it was struck by the incoming train and thrown against plaintiff, who was passing upon the platform; the court held that the expressman was not guilty of negligence. In the opinion it was said: "It is suggested in the evidence that the expressman hesitated for a moment, and also that he did not follow the most expeditious course for removing the truck to a place of safety. The suggestions amount to nothing more than an expression of opinion, but, if well founded, they afford no ground for an inference of negligence. The expressman was

Q. Was either of them afire at that time?

A. Yes, sir; the one was. Q. What happened after the cars. passed your place?

A. They went by the hill, one car clear up, and the other hung on the hill and ran back.

Just how long the car "hung on the hill" is not shown. The expression would indicate a brief time.

il, which gave him no time to think. The law imposes no rules of conduct upon one who is suddenly confronted by impending danger and is compelled to act, not by the dictates of care and reason, but by the instinct of self-preservation."

Appellee cites cases holding that, if the emergency is brought on by the negligence of the man who seeks to excuse his act by reason of the emergency, it will not excuse him. These cases are not applicable here,