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after a regular adjudication of the qnestion by dne process of law he has been found to be insane; and “due process of law” in establishing the in. sanity of a person requires the fact of insanity to be found by a jury of inquiry: In re Brynt, 3 Mackey, 489; Commonwealth v. Kirkbrile, 2 Brewst. 419; Territory v. Sheriff of Gallatin County, 6 Mont. 297; Stule v. Baird, 47 Mo. 302; In re Lindsley, 46 N. J. Eq. 358; Fiscus v. Turner, 125 Ind. 46; In re Dickie, 7 Abb. N. C. 417; Gridley v. College etc., 137 N. Y. 327; De Hart v. Comit, 51 N. J. Eq. 611; 40 Am. St. Rep. 545. It is true that most of the cases cited seem to have been based on provisions of the statute allowing a trial of the issue of insanity before a jury when, upon an inqui. sition, the alleged lunatic demands a jury, except in cases where the lunatic clearly appears mentally incompetent to frame such a demand; but it ap. pears that he had the right, at common law, to a trial of such issue by a jury. For a statement of the cominon-law doctrine, see De Hart v. Condit, 51 N. J. Eq. 611; 40 Am. St. Rep. 545. And in Commonwealth v. Kirkbride, 2 Brewst. 419, a case not founded upon a statute, the doctrine is clearly anuonnced that no man can be deprived of his liberty without the judgment of his peers, whether the detention is for insanity or crime.

Statutes requiring a party charged with insanity to be produced in open court, when possible, are designed to prevent fraud in the procuring of ver. dicts of insanity without affording the defendant an opportunity of being heard: F'iscus v. Turner, 125 Ind. 46. Counsel may sum up his case before the jury: In re Dickie, 7 Alb. N. C. 417. The jury are not anthorized to make up their verdict upon the appearance and conduct of the alleged lunatic when he is brought before them; but they must consider all the evidence in the case: Fiscus 1, Turner, 125 Ind. 46. The legal effect of a verdict as to sanity on an inquisition of lunacy is not impaired by a recommendation of the jury that the alleged luvatic, from long confinement and its conse. quences, may require some temporary guardianship, as this is proper: In re Dickie, 7 Abb. N. C. 417. In Territory v. Sheriff of Gallatin County, 6 Mont. 297, one adjulgeil insane was discharged because the jury who ex. amined hiin failed to certify upon oath that the charge was correct, and because only two of the three jurors qualified to do so signeil the verdict. But, if there is a right to trial by twelve jurymen, a fiuding of lunacy con. curred in by twelve jurymen is not defeated by the fact that only eleven of them visited the alleged lunatic for personal examination: De Hart v. Con. dit, 51 N. J. Eq. 611; 40 Am. St. Rep. 545. So, under a statute requiring that a commission of lunacy shall be directed to eighteen jurymen, any twelve of whom shall execute it, the fact that thirteen acted does not viti. ate it: Field v. Lucas, 21 Ga. 447; 68 Ain. Dec. 465. And the unanimous verdict of a jury of twelve men npon a lunacy inquest, although only twelve jurors be suinmoved, agreeably to the statute, instead of twenty-four, is sufficient: In re Linilsley, 46 N. J. Eq. 358. Again, a statute providing that a commission de lunatico inquirendo shall be executed before a jury of twelve men does not contravene the provision of a constitution subsequently adopted, and guaranteeing the right of trial by a jury of twenty-four men, even conceding that such provision applies to proceedings of this nature: De Hart v. Condit, 51 N. J. Eq. 61); 40 Ain. St. Rep. 545. In Iowa it is held that the restraint of an insare person by virtue of an adjudication of lunacy is not unconstitutional; and that the constitutional provision guar. anteeing to the accused, in cases of life or liberty, a speedy trial before an iinpartial jury, applius ouly to accusations for offenses against the criminal

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law, and not to an inquest of lunacy by a board of commissioners, as provided by statute: County of Black Hawk v. Springer, 58 Iowa, 417.

Suficiency and Conclusiveness of Adjudication. — The appointment of a gnarlian for an insane person is a determination of the fact of insanity, and will be presumed to have been made under jurisdiction properly acquired in compliance with law: Ockendon v. Barnes, 43 Iowa, 615; Hill v. Day, 34 N. J. Eq. 150. On an inquisition of lunacy a finding that the alleged lunatic "at the time of taking the inquisition is of unsound mind, and mentally incapable of governing himself or his affairs, and that he has been in the same state since" a specified date, is sufficient without using the word "lunatic,” as that is not necessary: In re Rogers, 9 Abb. N. C. 141. In an order for the appointment of a guardian for an incompetent person a state. ment that it satisfactorily appears to the court that such person is mentally incompetent to have the charge and management of his property and per. son, and that a guardian should be appointed for the reason that he is mentally incompetent to have the charge and management of his estate, is & sufficient adjudication of such facts: Aunger v. Judge of Probate, 86 Mich. 363. Statutes authorizing the court to appoint a commission to investigate the sanity of a prisoner committed on a criminal charge are not compulsory, but only permissive, and the finding of the commission does not prevent the prisoner from litigating the question of his sanity over again upon the trial under a general plea of not guilty: Ostrander v. People, 28 Hun, 38; People v. McElraine, 125 N. Y. 596. If, however, he is tried on such a plea before the same jury that has heard and considered the evidence on his special plea of insanity, and which jury, after disagreement, has been dischargeil, he is thereby deprived of his constitutional right to trial by an impartial jury: French v. State, 85 Wis. 400; 39 Am. St. Rep. 855.

Remedies.-One illegally committed as an insane person may move to set aside the inquisition for insufficiency of the evidence or other material mat. ters: In re Perrine, 41 N. J. Eq. 40); or he may be discharged on habeas cor. pus: Territory v. Sheriff of Gallatin County, 6 Mont. 297; Doyle, Petitioner, 16 R. I. 537; 27 Am. St. Rep. 759. Or an action for damages will lie for a malicious prosecution on a charge of insanity which results in committing to an asylum one who is not insane. The oriler of commitment in such a case is not conclusive evidence against the plaintiff of his insanity at any tine, or of probable cause for the prosecution: Kellogg v. Cochran, 87 Cal. 192. In an action, by such a person, for false imprisonment the broadest latitude should be allowed in showing the jury what the patient said and did, anıl how he appeared when in the asylum, as facts bearing on the ques. tion of his sanity: Van Deusen v. Newcomer, 40 Mich. 90. The defeadant in a lunacy proceeding may personally appeal from a judgment declaring him to be a person of unsound mind: Cuneo v. Bessoni, 63 Ind. 524.

Confinement upon Charize of Insanity After Acquittul of Crime on Ground of Insanity.— A statute providing for the confinement in the insane hospital of the state prison of persons acquitted of murder or other felony on the ground of insanity, until discharged the governor on receiving the cer. tificate of the trial judge and the medical superintendent of the state insaue asylun, upon an examination made by them, after being duly summoned for that purpose by the prison directors, that the prisoner is no longer insane, has been condemuel, not only upon the ground that it fails to fur. nish adıquate means for the enforcement of the remedy provided, against the resiri'nt being continued beyond the necessity which alone can justify it, but also upon the ground that it plainly violates the constitutional safe

guard against restraints of personal liberty withont "dne process of law,” the proceeilings contemplated by it being not only inquisitorial and ex parte, but incapable of being set in motion except at the will of the prison direct. ors, who would, therefore, practically control the liberty of the person: Underwood v. People, 32 Mich. 1; 20 Am. Rep. 633.

McDonough v. LANPHER.


building for his business permits, but does not require, his employees to ride up and down on a freight elevator used therein, they are, while 80 riding in going to and from work, employees, and not passengers. The degree of care required of a master toward his servant is imposed upon the employer in such a case, and not that of cominon carrier of passengers. Kueffner, Fauntleroy & Searles, for the appellants. Charles H. Taylor, for the respondent. 603 GULFILLAN, C. J.

The action is to recover for a personal injury. The defendants were engaged in business as wholesale dealers in hats, caps, furs, gloves, etc., and manufacturing and repairing furs and fur garments, carrying on the business in a five-story building on Fourth street, St. Paul. In the building was an elevator, running from the lowest to the highest story. The elevator was not inclosed with any thing in the nature of wainscoting or boarding, but consisted of a platform or floor, with posts at the corners, and an intermediate post on each side extending up to the framework at the top. About three feet above the floor was a narrow strip of board on the sides, nailed to the posts, and another about three inches high from the edge of the platform. The plaintiff was working for defendants, and was employed with seventy-five or a hundred others in the fur department of the business, the work of which was done in the fifth story. The elevator was used for carrying freight, and the employees were permitted, especially when arriving in the morning and when quitting at night, but were not required, to ride up and down in it, to and from the stories where they worked. There were stairs which they could use if they chose. On arriving at the building one morning plaintiff took the elevator to ride up to the fifth story, and, on entering it, she rested her hand on the upper strip and one foot on the lower, and, in ascending, the foot, which must have been in part outside the strip, was caught and injureil by a joist or timber in one of the floors projecting inside the wall or casing of the elevator well or shaft, so as to come very near the edge of the elevator floor.

On the trial plaintiff had a verdict, and the appeal is from an order denying a new trial.

The appellants make several assignments of error, only one of which it is necessary to consider.

The court instructed the jury: “If you find that this elevator described in the testimony was used, with their knowledge and consent, as a passenger elevator, in that case the defendants were bound to the exercise of the highest human skill, foresight, and 504 prudence in making the elevator safe for the purpose of transporting human beings from one portion of the building to another. So much for the obligation resting on the defendants in case you find this to have been a passenger elevator."

That is the degree of care required of a common carrier of passengers toward the passengers he carries. It is a higher degree than is required of a master toward his servant. That degree is stated in Cooley on Torts, page 567, thus: “The law does not require him to guaranty the prudence, skill, or fidelity of those from whom he obtains his tools or machinery, or the strength or fitness of the materials they make use of. If he employs such reasonable care and prudence in selecting or ordering what he requires in his business, as every prudent man is expected to employ in providing himself with the conveniences of his occupation, that is all that can be required of him": See Gates v. Southern Minn. Ry. Co., 28 Minn. 110.

The rules are general, and, from considerations of convenience and public policy, there are no exceptions. There are sound reasons for requiring a higher degree of care in one case than in the other. An obvious one is, that, in the case of the passenger, he neither does know nor can know, nor is he called on to inform himself, whether the carrier employs competent and careful servants and fit and proper machinery and means for performing the service, but he commits himself unreservedly to the care of the carrier; wbile the servant in most cases may know, and, if the matter is open to ordinary observation, is bound to know, whether the machinery and appliances employed by the master be fit and proper.

As there cannot be two rules as to cases between niaster and servant, one applying to the use of one kind of machinery and another to another kind, it is evident that, if the relation between plaintiff and defendants at the time of the injury was only that of master and servant, the instruction was wrong. We suspect the court below was misled by some indefiniteness in the opinion in Goodsell v. Taylor, 41 Minn. 207, 16 Am. St. Rep. 700, which was not a case of master and servant, but of innkeeper and guest; and it was said: “The relation between the owner and manager of an elevator for passengers is similar to that between an ordinary common carrier of passengers and those carried by him." That would not be 106 applicable where a relation requir. ing a different degree of care exists, and the person is riding and being carried in that relation.

The question comes, then, to this: Was plaintiff, in riding in the elevator from the lower to the fifth story of the building, doing so as the defendants' servant, or was she riding as a passenger, being carried by them as a common carrier ?

We find no case precisely similar in which that question was distinctly passed on. Treadwell v. Whittier, 80 Cal. 574, 13 Am. St. Rep. 175, was not a case of an employee, but of a customer, riding in an elevator. It was, therefore, not unlike Goodsell v. Taylor, 41 Minn. 207, 16 Am. St. Rep. 700, and the rule expressed in the latter case was applied. Wise. v. Ackerman, 76 Md. 375, was the case of an employee, and the court, treating the plaintiff as in the elevator of an employee, and not as a passenger, stated the rule: “But an elevator is in many respects a dangerous machine, and, though it may be primarily intended only as a freight elevator, yet, if the employees, in the course of their employment, are authorized or directed to use the elevator as a means of personal trangportation, the employer controlling the operation of the elevator is required to exercise great care and caution, both in the construction and operation of the machine, so as to render it as free from danger as careful foresight and precau. tion may reasonably dictate.” This is considerably short of the degree of care required of a common carrier of passengers, and stated in the instruction of the court below—“the exercise of the highest human skill, foresight, and prudence." It is but the expression, in different terms, of the degree required of a master toward his servant; for an ordinarily prudent man employing a dangerous machine where human

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