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leading case sustaining the contracts of a vol-against these objections.57 And the obligauntary relief association against the conten tion to care for the relief fund, administer tion that the same were ultra vires, the cor the affairs of the association, pay its operatporate authority, was decided in Pennsyl- ing expenses, pay interest on sums remaining vania, the State wherein this form of organ to its credit, and make good any deficiencies ization was first judicially fostered.5! I shall in cash, especially where there was express notice this opinion further on under the sub assent to the terms of the rules and by-laws title, Pleading and Practice. In Leas v. by both parties were held suflicient to estabPenn. Co.,65 the court says it abundantly sp lish the mutuality and due consideration pears from the answer of the railroad com thereof.58 As said in Cbicago, B. & Q. R. pany that it is a co-member of the relief as Co. v. Miller,59 the weight of the authorities sociation with the plaintiff, but as it is shown agree that the onligation assumed by the emin the same connection that appellant had ob. ployer to maintain and support the associatained and accepted the benefits due on re tion by contributing the funds necessary for ceiving injuries, the objection that member that purpose creates a privity of contract beship in an association of that nature was ultra tween the employer and all the members of vires, the corporation would bave probably the association and at the same time furnishes been unavailing. And on a similar sta'e of a sufficient consideration to support the confacts Judge Allen charged the jury that it tract. And this language is quoted as the was not necessary to determine whether the most nearly expressing tbe views of the Surelief association was an insurance company preme Court of Illinois.60 And while tbe or not. That he would not feel justified in question has never been directly presented, holding the contract void because the main it seems that the mere guaranty of the railtenance of the relief department may have road company to make good all deficiencies some of the elements or features of an insur is sufficient consideration for iis exaction of ance company, or because it had not complied the stipulation exonerating it from blame.61 with the laws of Illinois in reference to insur But supposing the railroad company to bave ance companies. But in each of these cases faithfully kept and performed all the covthe plaintiff had accepted the benefits under enants entered into on its part with the emthe contract stipulation that such accrptance ployee, will that fact thereby impart the eleshould discharge the railroad company from ment of mutuality or privity with the benethe liability for its tort.

ficiaries under death liability statutes ? The Mutuality - Privity and Consideration. United States Circuit Court, District of MaryWhere the action is one for personal injuries land, has held in the affirmative, the Appelsustained by the plaintiff wbile in the defend late Court of Illinois, in the negative.62 In ant's service, the question of mutuality of the Illinois case, unlike the case arising unand privity to the contract, as respects the der the Maryland death liability act, the corporation and its employees, is less difficult widow, although accepting the sum stipulated of solution than where the question arises in as the death benefit, seems to have executed a suit by his personal representatives under no release, but the court iotimates that even the death liability statutes. In either in

had she done so it would refuse to adjust the stance the question of consideration moving equities in an action wherein she claimed as from the corporation is usually decisive of administratrix to her own, and her children's the question of mutuality and privity. Tous it bas been beld that tbe fact of the railroad

57 Leas v. Penn. Co. (Ind.), 37 N. E. Rep. 423. company having become a contributor to tbe

58 Pittsburg, C., C. & St. L. R. Co. v. Cox (Obio), 35 fund from which the plaintiff accepted the L. R. A. 507; Vickers v. C., B. & Q. R. Co., 71 Fed. benefits was ample to support the release

Rep. 186; Chicago, B. & Q. R. Co. v. Bell, 62 N. W.
Rep. 317.

59 40 U.S. App. 418. 76 Fed. Rep. 439.

60 Eckmann v. C., B. & Q. R. Co., 169 Ill. 312, 38 L. direct and proper proceeding as to enable them to R. A. 750. pass on the question of ultra vires, will be awaited el Ringle v. Pepn. Co. (Penn.), 164 Pa. St. 529, 30 with interest by the profession.

Atl. Rep. 492; Spitze v. B. & 0. R. Co., 75 Md. 162, 23 54 Johnson v. R. Co , 163 Pa. St. 127, 29 Atl. Rep. 854. Atl. Rep. 307. 55 (Ind.) 37 N. E. Rep. 423.

62 State v. B. &0. R. Co., 36 Fed. Rep. 655; & Vickers v. C., B. & Q. R. Co., 71 Fed. Rep. 141. daney, Admx., v. C., B. & Q.R. Co., 49 Ill. App. 115.


A re

use. The opinion in the Maney case is position being different, ebe having, after the throughout noteworthy for its searching an cause of action accrued, voluntarily accepted alysis, an invariable mark of the judicial ut a sum of money in discharge and satisfaction terances of the learned judge who wrote it, of the company's liability," and evidenced Hon. C. C. Boggs, now on the supreme bench. the same by a formal release. And even The case of the Chicago, B. & Q. R. Co. v. where it appeared that decedent left a widow Wymore, administratrix, resembles the Black and but one child, and the cbild subsequently case, in that there was a formal release ex died, it was held that the administratrix was ecuted by the widow, while the statute of the not barred from maintaining the action on State in which the same arose resembles that the statute to recover the damages to wbich of the State wherein the cause of action in the cbild would bave been entitled bad he the Maney case accrued, in that it makes the lived, by the fact that, executing as widow, administrator the statutory plaintiff. The she had collected the death benefit and delivopinion in the Maney case, not having been ered a release." given the currency of those tending to foster Pleading and Practice.-"A cause of acthe extension of the voluntary relief system, tion sounding in tort may be settled and diswas, although prior in time by some three charged by agreement of the wrongdoer and years, not cited in the Wymore case. the sufferer. In order that such an agreesult was therein reached that agrees neither ment may operate as a bar to the suit in tort with that in the Black case nor with that in the of the sufferer, three things are necessary : Maney case. After holding that if the facts (a) It must be executed by all necessary pår. were as claimed Wymore, the decedent, ties, and by the legal representatives of permight have maintained an action in his life sons incapacitated, or by the legal representatime, the court says: "He had not waived his tives whenever required by statute, as in right of action. He undertook that the ben cases of death by wrongful act. (b) It eficiary in the contract might waive it by ac must be founded on a sufficient consideration. cepting the benefit, but this action is not for (c) It must show a completed intention to the benefit of his estate, but for that of his discharge the particular cause of action in iswidow and next of kin. The measure of dam sue. The agreement discharging the cause ages is not what he might have recovered bad of action may take one or more of several he lived, but their pecuniary loss by reason of not essentially different forms. It may be a his death. Whether or not he could by a compromise, or an accord and satisfaction, or compromise after the accident but before his a formal release with or without seal, or death deprive them of their right of action, covenant not to sue, or a ra vified settlement. he could not contract away their right before

But the agreement claimed to operthe injury and without their consent. Nor ate as a discharge in whatever form it exists could he contract that the widow might after is a matter of affirmative defense, and must his death deprive the next of kin of their rem be specially pleaded."65 It bas been freedy. The children, of whom there were quently remarked that the acceptance of the eight, were not beneficiaries in the contract, and his contract and the widow's acceptance 64 Montgomery v. Peno. Co. (Iod.), 49 N. E. Rep.

482. And where the railroad company took out a pol. of a sum for her benefit did not discharge

icy of insurance for the benefit of the employee in an the right of action on the children's behalf.

accident company, and issued him a certificate eviThe widow in accepting her benefit acted in dencing such membership therein, and deducted the dividually and not as administratrix. In accruing assessments from his monthly wages, held

that the sole remedy, of his personal representative maintaining this action she proceeds in her where he is killed in the service, is by action on the representative capacity, and is not estopped, insurance policy against the accident company. Car. as far as the rights of others are concerned,

penter v. Chicago & E. I. R. R. Co. (Ind. App.), 51 N.

E. Rep. 493. But it has been held in Ohio tbat à re. by her acts as an individual. The action can,

lease by the widow is no bar to action by the personal therefore, be properly maintained, representatives, although section 6135, Act of April * * * but only so far as necessary to en

13, 1880, gives same for benefit of widow and children.

But it is a question for the probate court whether the force the rights of the children, plaintiff's

widow shares in the distribution of damages. B. & 0. R. Co. v. McCawey, 12 Obio Cir. Ct. Rep. 543, 1

Obio Cir. Dec. 631. 63 (Neb.) 58 N. W. Rep. 1120.

& 1 Jaggard on Torts, $ 106, p. 310.

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stipulated benefits bars the action for the tort a more compact terminology. In this inon principles of estoppel, even binding the stance it operates at the expense of precision. statutory plaintiffs to whom have accrued a The transaction is in fact an accord and satright of action under death liability acts when isfaction.68 This treatment of the question they as beneficiaries have drawn money from while bringing it within the exact terms of the relief fund. It is true that this use of the the definition of accord and satisfaction, i.e., word estoppel finds warrant in the author something of legal value to which the creditor ities holding that where one compromises a before had no right, received in full satisfacclaim or demand by making a choice between tion of the debt owing or damages sustained,69 two inconsistent or alternative rights or ben at the same time satisfies the requirements of efits, he is thereafter estopped to assert or common law pleading, namely, the reduction claim the other.66 Nevertheless the writer of the controversy to an issue of fact, the questions its accuracy. An estoppel is strictly juries' finding respecting which shall be de. a preclusion in law which prevents a man from cisive of the litigation. "The plea of accord alleging or denying a previous fact in conse and satisfaction raises an issue upon the dequence of his own previous act, allegation or livery or acceptance of something in satisfac. denial of a contrary tenor. 67 Now, what fact, tion of the debt or damages demanded." 70 essential to be averred in order to constitute The foregoing propositions baving been acted bis cause of action, is the plaintiff precluded upon in every instance with but a single exfrom alleging or denying by reason of the ception, where the relief defense was relied perception of benefits? If the scheme of the upon, there is, by consequence, practical relief department contemplated benefits in all agreement between the averments of the decases of accidents and injuries except those fendant's special pleas in common law States, due to the master's actionable negligence, and of those paragraphs of the answer setting and it should happen that for an injury due up affirmative defense in code States. The to such negligence the servant, or the parties Illinois, Maryland and West Virginia (federal in whose favor the statute bestowed damages court), citations make this clear with respect recoverable for his death, should claim and to the common law States. Regard should, howcollect the death benefit, I should say that ever, be had to special statutory provisions that under such circumstances it would be correct may affect the manner of presenting the reto hold that the servant, or bis personal rep lief defense. Thus, in Pennsylvania,” the resentatives were estopped from averring that only plea to an action in form of trespass on the accident in wbich he was killed or injured the case is, since the abolition of the distinc(as the case might be), was due to the ac tion between trespass and case, "not guilty," tionable negligence of the master. The use but the act abolishing this distinction was not of the term "estoppel," in cases of this na. intended to tie down that plea to those deture, however, is merely an effort to establish fenses only that were prior to the enactment

of the statute admissible in trespass, and a 66 3tate v. B. & O R. Co., 36 Fed. Rep. 655;

release is therefore admissible without being Chicago, B. & Q. R. Co. v. Bell (Neb.), 62 N. W. Rep. 314; Same v. Curtis (Neb.), 71 N. 'W. Rep. 42. The

specially pleaded in that State. The court application of the principles of estoppel to defeat the also said that "the farther objection that the aetion of the beneficiary in the membership cer.

release was not admissible because in form it tificate suing thereon, after baving recovered dam. ages, seems to me to be free from the above criticisms,

did not comply with the Act of May 11, 1881 because tbe action to recover the stipulated benefits (P. L. 20), requiring copies of the applicais, of course, contractual. The decedent being com.

tion to be attached to the policy, is sufficiently petent to designate his beneficiary in the membership certificate is thereby in such privity with her as to in.

answered by the consideration that that act vest the relief department with the same right of de applies only to policies issued by insurance tepse in a case wherein a statutory beneficiary had

companies, and the relief association is not an recovered damages for the death of the employee by reason of the actionable negligence of the master, against an action by the beneficiary in the member. 68 Otis v. Penn. Co., 71 Fed. Rep. 136; Eckmann v. ship certificate for the death benefit, as against him. C., B. & Q. R. Co., 169 III. 312, 38 L. R. A. 750. selt should be sue for personal injuries. Fuller v. 69 Wintield, Adjudged Words and Phrases, Accord B. &0. Emp. Rel. Assn., 67 Md. 433, 10 Atl. Rep. 237; and Satisfaction. Donald v. C., B. & Q. R. Co., 93 Iowa, 281, 33 L. R. A. 70 Bouvier's L. D. tit. Accord and Satisfaction. 492, 61 N. W. Rep.971.

71 Johnson v. Philadelphia & R. Co., 29 Atl. Rep. 6 Winfield, Adjudged Words and Phrases, Estoppel. 854.

insurance company but a beneficial associa length of time, wbich it would bave taken defendant tion." The citations of South Carolina.

to carry plaintiff to bis destination, the value of which

is to be computed by the reasonable value of plaint. Ohio, Indiana, Iowa, Nebraska and Colorado

iff's service in his usual occupation at the place of decisions, and decisions of the federal courts

destination. sitting in those States, will illustrate the 3. In determining the value of plaintiff's services, pleading and practice with respect to relief the jury should take into consideration the question

of whetber or not plaintiff would have procured em: defenses in code States.

ployment, bad he been at bis place of destination dur. Conclusion.—There is but one instance in ing the time be was delayed. the reports of the judicial consideration of an attempted extension of the scheme of the re REAVIS, J.: Plaintiff (respondent) was a pas. lief department to other corporations besides senger on the steamship Cleveland, owned by derailroalls. Ihe result was adverse to the

fendant, and operated by it between the city of

Seattle and St. Michael, Alaska. In August, 1897, claim that the relief contract was valid and

defendant sold plaintiff a ticket entitling him to binding, and available as a defense. In pass passage from Seattle to Dawsou City, in the doing upon the alleged release the court said: minion of Canada. Defendant at the time of the “We have no hesitation in saying that an in

sale represented that the steamer would make jured person who has contributed to the ben.

close connections with steamboats owned and opefit fund and entitled to sbare its proceeds

erated on the Yukon river by the defendant, and

that within a reasonable time thereafter, plaintiff who can only obtain such aid by signing the would be safely carried to Dawson City. Deagreement to release and discharge the as fendant agreed to furnish plaintiff's transportasociation company from any and all claim for tion and subsistence, and carry for him baggage damages on account of the disabling injury,

to the amount of 150 pounds ight. In pursuwhen such injury was caused by the negli-Yukon, about 400 miles below Dawson City, and

ance of the contract, plaintiff was carried to Ft. gence of the company, its officers and agents,

there abandoned by defendant. Plaintiff therefor which such company under the circum after traveled to Dawson City from Ft. Yukon by stances and rules of law would be liable, is dog sled, with team of dogs. Plaintiff alleged not bound thereby, unless it appears that the

that he was compelled to make an expenditure of

$900 for tbe necessary means and facilities in injured person was fully informed or had

traveling between Ft. Yukon ard Dawson City, knowledge of the fact of the company's neg

and also alleges that he lost ninety days of time, ligence, and of its liability to him therefor,

which was reasonably worth the sum of $12.50 and fully understood that, by signing such per day. The whole damages for the breach of agreement, he was thereby releasing and dis contract of carriage were laid at 1,975. The charging the company from all liability to

jury returned a verdict of $1,500. him from such regligence":72

Defendant assigns three errors. First, refusal.

to give the following instruction: “I instruct you Danville, III. W. B. MORRIS.

that there is no evidence here upon which you can

allow plaintiff anything as damages for loss of 72 O'Neil v. Lake Superior Iron Co. (Mich.), 30 N.

time, and that you are to allow him nothing in W, Rep. 688; Cf. Hermann v. Roesner, 8 Fed. Rep. this respect,”-ind error in the instruction given 782.

by the court, upon which a right of recovery for
loss of time was based; second, refusal to grant a
new trial on the ground that the verdict was ex-

cessive; and, third, overruling the demurrer to SHIPPING—JURISDICTION OF STATE COURTS the jurisdiction of the court to try the action.

-CARRIER - PASSENGERS – DAMAGES 1. The demurrer to the jurisdiction is founded

upon the claim that the contract of carriage was RANSBERRY v. NORTH AMERICAN TRANS.

a maritime one, and therefore not cognizable in PORTATION & TRADING CO.

the State court. - The case of The Moses Taylor,

4 Wall. 411.18 L. ED. 397, is cited upon the deSipreme Court of Washington, May 17, 1900.

murrer; but in that ease a seizure was made of

the ship for breach of a contract of carriage 1. The State courts have jurisdiction of an action

under a California statute directing such seizure. against a resident steamboat company for breach of a

It was an action in rem, and it was there observed : contract of carriage wbich was to be performed on the bigb seas, and without the State.

**A proceeding in rem, as used in the admiralty 2. Where a carrier fails to perform its contract of

court, is not a remedy afforded by the common carriage, it is liable in damages for what the passen.

law. It is a proceeding under the civil law. ger necessarily expended in completing the trip from

When used in the common law courts, it is given the place where he was abandoned, together with by statute." The ninth section of the federal compensation for time lost, beyond the reasonable judiciary act of 1789 saves to suitors the right

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of a common law remedy where the common law against a common carrier upon a contract to is competent to give it." The case at bar is a com carry the plaintiff from New Orleans to San mon law action against the person of the defend Francisco. Tbere the trial court instructed the ant, and such actions have been frequently main jury that, it being shown in evidence that the tained. Crawford v. Roberts, 50 Cal. 233; The plaintiff was a good bookkeeper, * * * the E. P. Dorr v. Waldron. 62 III. 221.

measure of damages would be the wages at the 2. The evidence is sufficient to sustain the ver then rate in San Francisco of a good bookkeeper," dict if the plaintiff was entitled to recover for during the period of detention on the way. The loss of time. The rule for damages in ibis class supreme court say of this instruction : of cases insisted upon by counsel for appellant is An improper rule was prescribed by the district that announced in Hadley v. Baxendale, 9 Esch. judge as the measure of damages. It may be, 341, as follows: "Where two parties bave made and probably was, proper to adınit evidence that a contract which one of tbém has broken, the the plaintiff was a good bookkeeper, but it should damages which the other party ought to receive have been left to the jury to weigb the probabili. in respect of such breach of contract should be ties of his procuring employment at San Fransuch as may fairly and reasonably be considered cisco immediately upon his arrival, and of such either arising naturally (i. e., according to the employment being continued during the entire usual course of things) from such breach of con- | period covered by the charge of the court." tract itself, or such as may reasonably be sup Substantial evidence in the case at bar tended to posed to have been in the contemplation of both show that the wages of a common laborer at parties, at the time they made the contract, as Dawson City were from $1 to $1.50 by the bour; the probable result of the breach of it.” Accept that such labor was in continuous demand; tbat ing tbe rule as stated thus far, “Where two par the plaintiff bad been a laborer nearly all bis ties have made a coatract wbich one of them has life, and was able to earn the common wages at broken, the damages which the other party ought Dawson. The evidence also tended to sbow that to receive in respect of such breach of contract, plaintiff lost about ninety days of time; that the should be such as may fairly and reasonbly be labor of travel which plaintiff performed was considered, * * * arising naturally (i, e., accord equal to the bardsbip of labor at any mentioned ing to the usual course of things) from such work in Dawson. Tbe superior court instructed breach of contract," there is yet much difficulty the jury upon the measure of damages that the left in the application to the varying facts of plaintiff was entitled to recover such sum as breaches of contract as tbey arise. As said by would compensate him for any loss in money be the Supreme Court of Minnesota in Serwev, had necessarily sustained in completing bis jourRailroad Co., 48 Minn. 78, 50 N. W. Rep. 1021: ney from Ft. Yukon to Dawson Ciiy, together “The important question, after all, is whether with such other sum as would fairly compensate the injury was the direct and proximale, or only him for the time be necessarily lost in completthe remote, consequence of the wrongful expul- ing his journey. Tbe court also instructed that sion." That loss of time may be a usual and nat the plaiutiff was entitled to pay for snch time as ural result of the breach of contract of carriage be necessarily lost, over and beyond ihe reasonahas been recognized by this court in Turner v. ble length of time for defendant to carry plaintiff Railway Co., 15 Wash. 213, 46 Pac. Rep.243. where to his destination a: Dawson City; that the rate of it wa: determined that a failure to fulfill the con compensation for such time was wbat an ordin. tract of carriage of a passenger to a certain des ary laboring man might or could have procured tination, subjected the carrier to the expense at Dawson City; and that the jury should deterthereby incurred, including the cost of convey mine from the testimony whether the plaintiff ance by other means, and also that incident to the could bave procured such employment, and, if delay. It was there said of the plaintiff, a law. so, for what length of time, and at wbat compenyer: “Now, it is evident that, if the plaintiff sation. The jury was further instructed that it was delayed in reaching bis destination by the should take into consideration in considering the fault of the defendant, he was damaged, on ac question of wages, the amount wbich it would have count of lost time, to an amount exactly equal to cos: tl.e plain iff to live during the period for which that which he would have earned by the practice he was allowed for loss of time. and such cost of of bis profession." The trial court in that case living should be deducted. It will thus be seen instructed the jury that pleintiff was entitled 10 that the rule assumed in Turner v. Railway Co., recover euch sum as his time at home for the supra, was followed by the superior court in its period he was delayed by reason of defendant's instructions. The appellant agreed to carry failure to transport bim was reasonably and fairly plaintiff to Dawson City in a reasonable time. worth in his profession or business, and such in It abandoned him at the commencement of winstruction was approved here; and Yonge v. ter, and left him to complete bis journey as best Steamship Co., 1 Cal. 353, 3 Suth. Dam. (2d Ed.) he could. Certaioly loss of time was a natural $ 936, and 2 Sedg. Dam. (8th Ed.) $ 863, were result of the breach of contract. It would also cited with reference to the evidence tending to seem that the evidence of damage for such loss establish damage for loss of time. The case of was competent, and from it the jury, in its sound Yonge v. Steamiship Co., supra, was an action discretion, could assess the amount. Much of the

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