55

leading case sustaining the contracts of a voluntary relief association against the contention that the same were ultra vires, the corporate authority, was decided in Pennsylvania, the State wherein this form of organization was first judicially fostered. I shall notice this opinion further on under the subtitle, Pleading and Practice. In Leas v. Penn. Co., the court says it abundantly sppears from the answer of the railroad company that it is a co-member of the relief association with the plaintiff, but as it is shown in the same connection that appellant had obtained and accepted the benefits due on receiving injuries, the objection that membership in an association of that nature was ultra vires, the corporation would have probably been unavailing. And on a similar sta'e of facts Judge Allen56 charged the jury that it was not necessary to determine whether the relief association was an insurance company or not. That he would not feel justified in holding the contract void because the maintenance of the relief department may have some of the elements or features of an insurance company, or because it had not complied with the laws of Illinois in reference to insurance companies. But in each of these cases the plaintiff had accepted the benefits under the contract stipulation that such acceptance should discharge the railroad company from the liability for its tort.

Mutuality - Privity and Consideration. Where the action is one for personal injuries sustained by the plaintiff while in the defendant's service, the question of mutuality of and privity to the contract, as respects the corporation and its employees, is less difficult of solution than where the question arises in a suit by his personal representatives under the death liability statutes. In either instance the question of consideration moving from the corporation is usually decisive of the question of mutuality and privity. Taus it has been held that the fact of the railroad company having become a contributor to the fund from which the plaintiff accepted the benefits was ample to support the release

direct and proper proceeding as to enable them to pass on the question of ultra vires, will be awaited with interest by the profession.

54 Johnson v. R. Co,163 Pa. St. 127, 29 Atl. Rep. 854. 55 (Ind.) 37 N. E. Rep. 423.

36 Vickers v. C., B. & Q. R. Co., 71 Fed. Rep. 141.

against these objections.57 And the obligation to care for the relief fund, administer the affairs of the association, pay its operating expenses, pay interest on sums remaining to its credit, and make good any deficiencies in cash, especially where there was express assent to the terms of the rules and by-laws by both parties were held sufficient to establish the mutuality and due consideration thereof.5 58 As said in Chicago, B. & Q. R. Co. v. Miller, 59 the weight of the authorities agree that the obligation assumed by the employer to maintain and support the association by contributing the funds necessary for that purpose creates a privity of contract between the employer and all the members of the association and at the same time furnishes a sufficient consideration to support the contract. And this language is quoted as the most nearly expressing the views of the Supreme Court of Illinois.60 And while the question has never been directly presented, it seems that the mere guaranty of the railroad company to make good all deficiencies is sufficient consideration for its exaction of the stipulation exonerating it from blame.61 But supposing the railroad company to have faithfully kept and performed all the covenants entered into on its part with the employee, will that fact thereby impart the element of mutuality or privity with the beneficiaries under death liability statutes? The United States Circuit Court, District of Maryland, has held in the affirmative, the Appellate Court of Illinois, in the negative.62 In the Illinois case, unlike the case arising under the Maryland death liability act, the widow, although accepting the sum stipulated as the death benefit, seems to have executed no release, but the court intimates that even had she done so it would refuse to adjust the equities in an action wherein she claimed as administratrix to her own, and her children's

57 Leas v. Penn. Co. (Ind.), 37 N. E. Rep. 423.

58 Pittsburg, C., C. & St. L. R. Co. v. Cox (Ohio), 35 L. R. A. 507; Vickers v. C., B. & Q. R. Co., 71 Fed. Rep. 186; Chicago, B. & Q. R. Co. v. Bell, 62 N. W. Rep. 317.

59 40 U. S. App. 448. 76 Fed. Rep. 439.

60 Eckmann v. C., B. & Q. R. Co., 169 Ill. 312, 38 L. R. A. 750.

1 Ringle v. Penn. Co. (Penn.), 164 Pa. St. 529, 20 Atl. Rep. 492; Spitze v. B. & O. R. Co., 75 Md. 162, 23 Atl. Rep. 307.

62 State v. B. & O. R. Co., 36 Fed. Rep. 655; Maney, Admx., v. C., B. & Q. R. Co., 49 Ill. App. 115.

use.

ex

The opinion in the Maney case is throughout noteworthy for its searching analysis, an invariable mark of the judicial utterances of the learned judge who wrote it, Hon. C. C. Boggs, now on the supreme bench. The case of the Chicago, B. & Q. R. Co. v. Wymore, administratrix, resembles the Black case, in that there was a formal release ecuted by the widow, while the statute of the State in which the same arose resembles that of the State wherein the cause of action in the Maney case accrued, in that it makes the administrator the statutory plaintiff. The opinion in the Maney case, not having been given the currency of those tending to foster the extension of the voluntary relief system, was, although prior in time by some three years, not cited in the Wymore case. 63 A result was therein reached that agrees neither with that in the Black case nor with that in the Maney case. After holding that if the facts were as claimed Wymore, the decedent, might have maintained an action in his lifetime, the court says: "He had not waived his right of action. He undertook that the beneficiary in the contract might waive it by accepting the benefit, but this action is not for the benefit of his estate, but for that of his widow and next of kin. The measure of damages is not what he might have recovered had he lived, but their pecuniary loss by reason of his death. Whether or not he could by a compromise after the accident but before his death deprive them of their right of action, he could not contract away their right before the injury and without their consent. Nor could he contract that the widow might after his death deprive the next of kin of their remedy. The children, of whom there were eight, were not beneficiaries in the contract, and his contract and the widow's acceptance of a sum for her benefit did not discharge the right of action on the children's behalf. The widow in accepting her benefit acted individually and not as administratrix. maintaining this action she proceeds in her representative capacity, and is not estopped, as far as the rights of others are concerned, by her acts as an individual. The action can, therefore, be properly maintained, but only so far as necessary to enforce the rights of the children, plaintiff's

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63 (Neb.) 58 N. W. Rep. 1120.

position being different, she having, after the cause of action accrued, voluntarily accepted a sum of money in discharge and satisfaction of the company's liability," and evidenced the same by a formal release. And even where it appeared that decedent left a widow and but one child, and the child subsequently died, it was held that the administratrix was not barred from maintaining the action on the statute to recover the damages to which the child would have been entitled bad he lived, by the fact that, executing as widow, she had collected the death benefit and delivered a release.€4

Pleading and Practice.-"A cause of action sounding in tort may be settled and discharged by agreement of the wrongdoer and the sufferer. In order that such an agreement may operate as a bar to the suit in tort of the sufferer, three things are necessary: (a) It must be executed by all necessary parties, and by the legal representatives of persons incapacitated, or by the legal representatives whenever required by statute, as in cases of death by wrongful act. (b) It must be founded on a sufficient consideration. (c) It must show a completed intention to discharge the particular cause of action in issue. The agreement discharging the cause of action may take one or more of several not essentially different forms. It may be a compromise, or an accord and satisfaction, or a formal release with or without seal, or a covenant not to sue, or a ra.ified settlement. But the agreement claimed to operate as a discharge in whatever form it exists is a matter of affirmative defense, and must be specially pleaded."65 It has been frequently remarked that the acceptance of the

64 Montgomery v. Penn. Co. (Ind.), 49 N. E. Rep. 482. And where the railroad company took out a pol. icy of insurance for the benefit of the employee in an accident company, and issued him a certificate evidencing such membership therein, and deducted the accruing assessments from his monthly wages, held that the sole remedy, of his personal representative where he is killed in the service, is by action on the insurance policy against the accident company. Car penter v. Chicago & E. I. R. R. Co. (Ind. App.), 51 N. E. Rep. 493. But it has been held in Ohio that a release by the widow is no bar to action by the personal representatives, although section 6135, Act of April 13, 1880, gives same for benefit of widow and children. But it is a question for the probate court whether the widow shares in the distribution of damages. B. & O. R. Co. v. McCawey, 12 Ohio Cir. Ct. Rep. 543, 1 Ohio Cir. Dec. 631.

65 1 Jaggard on Torts, § 106, p. 310.

stipulated benefits bars the action for the tort on principles of estoppel, even binding the statutory plaintiffs to whom have accrued a right of action under death liability acts when they as beneficiaries have drawn money from the relief fund. It is true that this use of the word estoppel finds warrant in the authorities holding that where one compromises a claim or demand by making a choice between two inconsistent or alternative rights or benefits, he is thereafter estopped to assert or claim the other.66 Nevertheless the writer questions its accuracy. An estoppel is strictly a preclusion in law which prevents a man from alleging or denying a previous fact in consequence of his own previous act, allegation or denial of a contrary tenor. 67 Now, what fact, essential to be averred in order to constitute bis cause of action, is the plaintiff precluded from alleging or denying by reason of the perception of benefits? If the scheme of the relief department contemplated benefits in all cases of accidents and injuries except those due to the master's actionable negligence, and it should happen that for an injury due to such negligence the servant, or the parties in whose favor the statute bestowed damages recoverable for his death, should claim and collect the death benefit, I should say that under such circumstances it would be correct to hold that the servant, or his personal representatives were estopped from averring that the accident in which he was killed or injured (as the case might be), was due to the actionable negligence of the master. The use of the term "estoppel," in cases of this na. ture, however, is merely an effort to establish

State v. B. & O R. Co., 36 Fed. Rep. 655; Chicago, B. & Q. R. Co. v. Bell (Neb.), 62 N. W. Rep. 314; Same v. Curtis (Neb.), 71 N. W. Rep. 42. The application of the principles of estoppel to defeat the action of the beneficiary in the membership certificate suing thereon, after having recovered damages, seems to me to be free from the above criticisms, because the action to recover the stipulated benefits is, of course, contractual. The decedent being competent to designate his beneficiary in the membership certificate is thereby in such privity with her as to invest the relief department with the same right of defense in a case wherein a statutory beneficiary had 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 membership certificate for the death benefit, as against him. self should be sue for personal injuries. Fuller v. B. & O. Emp. Rel. Assn., 67 Md. 433, 10 Atl. Rep. 237; Donald v. C., B. & Q. R. Co., 93 Iowa, 281, 33 L. R. A. 492, 61 N. W. Rep. 971.

Winfield, Adjudged Words and Phrases, Estoppel.

69

a more compact terminology. In this instance it operates at the expense of precision. The transaction is in fact an accord and satisfaction. 68 This treatment of the question while bringing it within the exact terms of the definition of accord and satisfaction, i. e., something of legal value to which the creditor before had no right, received in full satisfaction of the debt owing or damages sustained, at the same time satisfies the requirements of common law pleading, namely, the reduction of the controversy to an issue of fact, the juries' finding respecting which shall be decisive of the litigation. "The plea of accord and satisfaction raises an issue upon the delivery or acceptance of something in satisfaction of the debt or damages demanded."0 The foregoing propositions having been acted upon in every instance with but a single exception, where the relief defense was relied upon, there is, by consequence, practical agreement between the averments of the defendant's special pleas in common law States, and of those paragraphs of the answer setting up affirmative defense in code States. The Illinois, Maryland and West Virginia (federal court), citations make this clear with respect to the common law States. Regard should, however, be had to special statutory provisions that may affect the manner of presenting the relief defense. Thus, in Pennsylvania, only plea to an action in form of trespass on the case is, since the abolition of the distinction between trespass and case, "not guilty," but the act abolishing this distinction was not intended to tie down that plea to those defenses only that were prior to the enactment of the statute admissible in trespass, and a release is therefore admissible without being specially pleaded in that State. The court also said that "the further objection that the release was not admissible because in form it did not comply with the Act of May 11, 1881 (P. L. 20), requiring copies of the application to be attached to the policy, is sufficiently answered by the consideration that that act applies only to policies issued by insurance companies, and the relief association is not an

the

68 Otis v. Penn. Co., 71 Fed. Rep. 136; Eckmann v. C., B. & Q. R. Co., 169 Ill. 312, 38 L. R. A. 750. 69 Winfield, Adjudged Words and Phrases, Accord and Satisfaction.

70 Bouvier's L. D. tit. Accord and Satisfaction. 71 Johnson v. Philadelphia & R. Co., 29 Atl. Rep. 854.

insurance company but a beneficial association." The citations of South Carolina. Ohio, Indiana, Iowa, Nebraska and Colorado decisions, and decisions of the federal courts sitting in those States, will illustrate the pleading and practice with respect to relief defenses in code States.

Conclusion.-There is but one instance in the reports of the judicial consideration of an attempted extension of the scheme of the relief department to other corporations besides railroads. The result was adverse to the claim that the relief contract was valid and binding, and available as a defense. In passing upon the alleged release the court said: "We have no hesitation in saying that an injured person who has contributed to the benefit fund and entitled to share its proceeds who can only obtain such aid by signing the agreement to release and discharge the association company from and all claim for any damages on account of the disabling injury, when such injury was caused by the negligence of the company, its officers and agents, for which such company under the circumstances and rules of law would be liable, is not bound thereby, unless it appears that the injured person was fully informed or had knowledge of the fact of the company's negligence, and of its liability to him therefor, and fully understood that, by signing such agreement, he was thereby releasing and discharging the company from all liability to him from such negligence "72 Danville, Ill.

WM. B. MORRIS.

72 O'Neil v. Lake Superior Iron Co. (Mich.), 30 N. W. Rep. 688; Cf. Hermann v. Roesner, 8 Fed. Rep. 782.

SHIPPING JURISDICTION OF STATE COURTS -CARRIERS - PASSENGERS - DAMAGESBREACH OF CONTRACT.

RANSBERRY v. NORTH AMERICAN TRANSPORTATION & TRADING CO.

Supreme Court of Washington, May 17, 1900.

1. The State courts have jurisdiction of an action against a resident steamboat company for breach of a contract of carriage which was to be performed on the high seas, and without the State.

2. Where a carrier fails to perform its contract of carriage, it is liable in damages for what the passen. ger necessarily expended in completing the trip from the place where he was abandoned, together with compensation for time lost, beyond the reasonable

length of time, which it would have taken defendant to carry plaintiff to his destination, the value of which is to be computed by the reasonable value of plaintiff's service in his usual occupation at the place of destination.

3. In determining the value of plaintiff's services, the jury should take into consideration the question of whether or not plaintiff would have procured em. ployment, had he been at his place of destination dur ing the time he was delayed.

REAVIS, J.: Plaintiff (respondent) was a pas senger on the steamship Cleveland, owned by defendant, and operated by it between the city of Seattle and St. Michael, Alaska. In August, 1897, defendant sold plaintiff a ticket entitling him to passage from Seattle to Dawson City, in the dominion of Canada. Defendant at the time of the sale represented that the steamer would make close connections with steamboats owned and operated on the Yukon river by the defendant, and that within a reasonable time thereafter, plaintiff would be safely carried to Dawson City. Defendant agreed to furnish plaintiff's transportation and subsistence, and carry for him baggage to the amount of 150 pounds weight. In pursuance of the contract, plaintiff was carried to Ft. Yukon, about 400 miles below Dawson City, and there abandoned by defendant. Plaintiff thereafter traveled to Dawson City from Ft. Yukon by dog sled, with team of dogs. Plaintiff alleged that he was compelled to make an expenditure of $900 for the necessary means and facilities in traveling between Ft. Yukon and Dawson City, and also alleges that he lost ninety days of time, which was reasonably worth the sum of $12.50 per day. The whole damages for the breach of The contract of carriage were laid at 1,975. jury returned a verdict of $1,500.

Defendant assigns three errors. First, refusal. to give the following instruction: "I instruct you that there is no evidence here upon which you can allow plaintiff anything as damages for loss of time, and that you are to allow him nothing in this respect," and error in the instruction given 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 excessive; and, third, overruling the demurrer to the jurisdiction of the court to try the action.

1. The demurrer to the jurisdiction is founded upon the claim that the contract of carriage was a maritime one, and therefore not cognizable in the State court. The case of The MosesTaylor, 4 Wall. 411. 18 L. Ed. 397, is cited upon the demurrer; but in that ease a seizure was made of the ship for breach of a contract of carriage under a California statute directing such seizure. It was an action in rem, and it was there observed: "A proceeding in rem, as used in the admiralty court, is not a remedy afforded by the common law. It is a proceeding under the civil law. When used in the common law courts, it is given by statute." The ninth section of the federal judiciary act of 1789 saves to suitors the right

of a common law remedy where the common law is competent to give it." The case at bar is a common law action against the person of the defendant, and such actions have been frequently maintained. Crawford v. Roberts, 50 Cal. 235; The E. P. Dorr v. Waldron. 62 Ill. 221.

2. The evidence is sufficient to sustain the verdict if the plaintiff was entitled to recover for loss of time. The rule for damages in this class of cases insisted upon by counsel for appellant is that announced in Hadley v. Baxendale, 9 Exch. 341, as follows: Where two parties bave made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally (i. e., according to the usual course of things) from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it." Accepting the rule as stated thus far, "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract, should be such as may fairly and reasonbly be considered,*** arising naturally (i, e., according to the usual course of things) from such breach of contract," there is yet much difficulty left in the application to the varying facts of breaches of contract as they arise. As said by the Supreme Court of Minnesota in Serwe v, Railroad Co., 48 Minn. 78, 50 N. W. Rep. 1021: The important question, after all, is whether the injury was the direct and proximate, or only the remote, consequence of the wrongful expulsion. That loss of time may be a usual and natural result of the breach of contract of carriage has been recognized by this court in Turner v. Railway Co., 15 Wash. 213, 46 Pac. Rep.243, where it was determined that a failure to fulfill the contract of carriage of a passenger to a certain destination, subjected the carrier to the expense thereby incurred, including the cost of conveyance by other means, and also that incident to the delay. It was there said of the plaintiff, a law. yer:

Now, it is evident that, if the plaintiff was delayed in reaching his destination by the fault of the defendant, he was damaged, on account of lost time, to an amount exactly equal to that which he would have earned by the practice of his profession." The trial court in that case instructed the jury that plaintiff was entitled to recover such sum as his time at home for the period he was delayed by reason of defendant's failure to transport him was reasonably and fairly worth in his profession or business, and such instruction was approved here; and Yonge v. Steamship Co., 1 Cal. 353, 3 Suth. Dam. (2d Ed.) § 936, and 2 Sedg. Dam. (8th Ed.) § 863, were cited with reference to the evidence tending establish damage for loss of time. The case of Yonge v. Steamship Co., supra, was an action

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against a common carrier upon a contract to carry the plaintiff from New Orleans to San Francisco. There the trial court instructed the jury “that, it being shown in evidence that the plaintiff was a good bookkeeper, * * the measure of damages would be the wages at the then rate in San Francisco of a good bookkeeper," during the period of detention on the way. The supreme court say of this instruction: An improper rule was prescribed by the district judge as the measure of damages. It may be, and probably was, proper to admit evidence that the plaintiff was a good bookkeeper, but it should have been left to the jury to weigh the probabilities of his procuring employment at San Francisco immediately upon his arrival, and of such employment being continued during the entire period covered by the charge of the court." Substantial evidence in the case at bar tended to show that the wages of a common laborer at Dawson City were from $1 to $1.50 by the hour; that such labor was in continuous demand; that the plaintiff had been a laborer nearly all bis life, and was able to earn the common wages at Dawson. The evidence also tended to show that plaintiff lost about ninety days of time; that the labor of travel which plaintiff performed was equal to the bardship of labor at any mentioned work in Dawson. The superior court instructed the jury upon the measure of damages that the plaintiff was entitled to recover such sum as would compensate him for any loss in money he had necessarily sustained in completing his jour ney from Ft. Yukon to Dawson City, together with such other sum as would fairly compensate him for the time he necessarily lost in completing his journey. The court also instructed that the plaintiff was entitled to pay for such time as he necessarily lost, over and beyond the reasonable length of time for defendant to carry plaintiff to his destination at Dawson City; that the rate of compensation for such time was what an ordinary laboring man might or could have procured at Dawson City; and that the jury should determine from the testimony whether the plaintiff could have procured such employment, and, if so, for what length of time, and at what compensation. The jury was further instructed that it should take into consideration in considering the question of wages, the amount which it would have cost the plain iff to live during the period for which he was allowed for loss of time, and such cost of living should be deducted. It will thus be seen that the rule assumed in Turner v. Railway Co., supra, was followed by the superior court in its instructions. The appellant agreed to carry plaintiff to Dawson City in a reasonable time. It abandoned him at the commencement of winter, and left him to complete his journey as best he could. Certainly loss of time was a natural result of the breach of contract. It would also seem that the evidence of damage for such loss was competent, and from it the jury, in its sound discretion, could assess the amount. Much of the