(89 N. J. Eq. 95) (Court of Chancery of New Jersey. May 23, 1. RAILROADS 94(1) — RIGHT TO BRIDGE ROAD-CONSENT. Right of railroads to build road and carry it across public plank road by overhead bridge is absolute, and consent of municipal authorities is necessary only when it is desired to cross at grade, which consent must be obtained from municipality even in crossing county road. 2. RAILROADS 94(6)—INJUNCTION-IRREPA RABLE INJURY. Railroads having absolute right to bridge public plank road to connect lines will suffer irreparable injury, entitling them to injunction against county authorities interfering with work, if, with railroad partly constructed up to road way, use is delayed for want of bridge. 3. INJUNCTION 89-LACK OF IRREPARABLE INJURY-PUBLIC NECESSITY. Even if railroads, desiring to construct bridge to connect lines across public plank road, could not show irreparable injury in suit for injunction to restrain county authorities from interfering, court should see public work for government, proposed bridge being necessary for industrial works aiding prosecution of war, is not hampered. is in the township of Kearny. A petition was not appear to oppose the action of the complainants; on the hearing its counsel merely read the resolution passed by his board, granting the permission, subject to approval by the Hudson board, and rested. The exigencies of the case are such that no time should be lost in disposing of the matter. On the Hackensack meadows, between the two rivers, and on both sides of this plank road, shipbuilding and other industries, emWhere railroads have right to bridge public ploying many thousands of men, have been plank road to connect lines, and, though having right, under Railroad Act, § 27, to place abut- recently established to aid the government in ments of bridge within road, nevertheless pro- prosecuting the war. Adequate transportapose to place them outside, they have right to tion for men and materials is of prime imconstruct temporary bridge with abutments in-portance, without which works of great pub 4. RAILROADS 94(1) — RIGHT TO BRIDGE HIGHWAY-TEMPORARY BRIDGE. side road. 5. RAILROADS 94(6)-BRIDGING HIGHWAY SUIT AGAINST COUNTY AUTHORITIES TECHNICAL OBJECTION. Where railroads, in exercise of right, proceeded to bridge public plank road, and county superintendent of road caused arrest of engineer who has prior thereto been suspended in railroads' suit against county authorities to enjoin interference with construction, it being plain that what superintendent did accorded with authorities' views, objection superintendent's action was not that of county authorities is purely technical. Suit by the United New Jersey Railroad and Canal Company and others against the Freeholders of Hudson and Essex. Order for complainants directed to be submitted. Vredenburgh, Wall & Carey, of Jersey City, for complainants. John J. Fallon, of Hoboken, for Freeholders of Hudson. H. W. Taylor, of Newark, for Freeholders of Essex. GRIFFIN, V. C. The bill in this cause is filed by the complainants against the joint boards of Hudson and Essex counties to restrain interference with the complainants in the construction of a bridge across the Newark plank road (now called Lincoln Highway), forming a connecting link in a railroad duly laid out on both sides thereof. The joint boards are in possession of the plank road at the point in question. The history of the road and the title of the two counties may be found in Re Newark Plank Road & Bridges, 63 N. J. Eq. 710, 53 Atl. 5. The road (1) lic necessity will be greatly retarded. The [1-3] 1. Will the complainants suffer irreparable injury? The right of the complainants to build the road and carry it across the plank road with an overhead bridge is absolute. No consent of the municipal or county authorities is necessary. It is only when it desires to cross at grade that a consent becomes necessary, and that consent must be obtained from the municipality, and not from the county, even when crossing a county road. Freeholders v. Railroad Co., 68 N. J. Eq. 500, 59 Atl. 303; affirmed 70 N. J. Eq. 806, 65 Atl. 1117. This counsel for the Hudson board concedes. It is therefore apparent that the complainants will suffer an irreparable injury if, with their right clear, with the railroad partly constructed up to the roadway, the use of it is delayed for want of a bridge. [ and plainly indicates that what Dugan did But, in addition to this, if the complainants accords with their views, whether or not he would not suffer an injury which might be had been suspended. said to be irreparable, the public necessity at the present time is paramount, and should outweigh questions of private consideration; and the court should see to it that public work for the government, in its aid, is not hampered nor impeded. Especially is this so in this case, where the right of the complainants is clear, and the injury defendants will suffer, if any, is trifling, and is injury, if any, that is not legal, affording them any right, because it is occasioned by operation of the law, No criticism can be made of the Hudson board for its action. It is doing what it conceives to be its duty in the protection of the public highway; but, believing, as I do, that there is an absolute right, without its consent, to erect this bridge, and owing to the existing state of war rendering it necessary that these works should as early as possible, have the most adequate railway facilities, I will advise an order that the joint boards be enjoined from interfering with the complainants in the construction of the temporary bridge. [4] 2. Counsel for the Hudson board, however, makes a distinction between a permanent and temporary bridge. He cites no authority to support his view. I am at a loss to follow his reasoning, considering that the temporary bridge is an added expense, incurred only to accommodate transportation pending the construction of the permanent structure. If his theory is correct, it would lead to very dangerous results. It is common practice, in replacing old bridges with new, to provide in the contracts for the erection of a temporary bridge pending the construction of the new one, as an incident; and the cost of such temporary bridge is charged against the cost of the new structure, without the statute particularly specifying that it might provide for the erection of the temporary ridge. If such power does not exist, whenever the county desired to replace an old with a new bridge, all traffic on the highway would BRIGHTLOOK HOSPITAL ASS'N v. GARbe cut off for a long period, to the great detriment of the public. But, apart from this, (Supreme Court of Vermont. the complainants, if they desired, might, under section 27 of the Railroad Act, supra, treat this temporary structure as permanent, to the detriment of the road. Instead, they do not desire to take advantage of the bene it conferred by the act to maintain their abutments within the road, but propose, at in additional expense, to replace the temporary structure with one, the abutments of which shall be outside of the lines of the road. The order of restraint, however, must specifically provide that the joint counties, through their engineers, shall supervise the work, with power to see that no unnecessary damage is done to the road, that, upon completion of the temporary structure, the road at the point in question be placed in suitable condition for public travel and so maintained luring the existence of the temporary bridge, and, upon its replacement by the permanent structure, that the road be placed in as good condition as it was before the surface was broken. Counsel may present the order to me at the chancery chambers at Jersey City on Monday morning next, March 18th, at 10 o'clock a. m. [5] 3. The third objection is purely technical. The complainants believed, when they filed their bill, that Dugan, as superintendent, was acting under the orders of the offi FIELD. 16, 1918.) (92 Vt. 353) Caledonia. May 1. CONTRACTS 349(3)—EXPRESS CONTRACT EVIDENCE ADMISSIBLE. In suit on implied contract for service rendered by plaintiff hospital in caring for defendant after he had been injured while working for manager of company to pay hospital expenses, a company, evidence, as to an agreement of held admissible to show an express promise to pay plaintiff; it being immaterial whether manager had authority to bind company, since if he did not, he would bind himself. 2. APPEAL AND ERROR 997(3) DIRECTED VERDICT REVIEW. Where neither party wished to go to jury on any issue, directed verdict will be affirmed, if there is any evidence to sustain it. 3. WORK AND LABOR 9-IMPLIED PROMISE. cers of the boards. The Hudson board does not disclaim an intent to stop the erection of this bridge. It says that, if another petition is presented, it is willing to permit the construction of a temporary bridge over the Lincoln Highway (the Newark plank road), and the maintenance thereof during the period of the war, upon such reasonable terms and conditions as might be agreed upon. This expression of views, coupled with the attitude of counsel with respect to the temporary bridge, clearly indicates the opposition of the Argued before WATSON, C. J., and POWHudson board to the crossing of the highway, ERS, TAYLOR, and MILES, JJ. Express promise of telephone company's manager to pay plaintiff hospital for caring for defendant, injured employé of company, being shown no promise implied in law, arises on the part of defendant. Appeal from Caledonia County Court; Stanley C. Wilson, Judge. Action by the Brightlook Hospital Association against Stanley F. Garfield. Directed verdict for defendant, and plaintiff appeals Judgment affirmed. Dunnett, Shields & Conant, of St. Johnsbury, for appellant. Porter, Witters & Harvey, of St. Johnsbury, for appellee. MILES, J. On the 22d day of August, 1913, the defendant, while working for the New England Telephone Company, was severely injured and taken to the plaintiff's hospital in St. Johnsbury, where he was treated and cared for until November 3, 1913, incurring an expense in the sum of $167.19. This suit in contract, in the common counts, is brought to recover that sum, It is conceded by the defendant that, if the plaintiff is entitled to recover, it is entitled to recover that sum, with interest on the same from November 3, 1913, to the date of judgment. The general issue was pleaded and the case was tried by jury at the December term of the Caledonia county court, 1917. The plaintiff seeks to recover on a promise implied by law. The defendant defends on the ground that the liability was incurred by the New England Company or by its general manager, C. F. Merrill, under an express contract between Merrill and the plaintiff, with the understanding of the plaintiff, defendant, and the New England Telephone Company, through its general manager, at the time the defendant was taken to the hospital, that the telephone company was to pay the expense for the care and nursing of the defendant while at plaintiff's hospital. [1] The first exception taken and relied upon by the plaintiff was to the testimony tending to show the contract claimed by the defendant to have been made by Merrill, on behalf of the telephone company, with Mrs. Flora Lovejoy, matron of plaintiff's hospital, on behalf of the plaintiff, in which it was agreed that the telephone company should bear the expense incurred by the plaintiff in the care of the defendant, and that this contract was made in accordance with the understanding of the defendant, Merrill, and Mrs. Lovejoy, Merrill acting on behalf of the telephone company and Mrs. Lovejoy on behalf of the plaintiff. The objection to this evidence was based upon the ground that Merrill had no authority to bind the telephone company, and that the defendant, having received the benefit, with full knowledge of the same, a promise implied in law created a liability on his part, and that the promise of the telephone company, if one was made, was collateral, and did not extinguish the original liability of the defendant. It is immaterial whether Merrill had authority to bind the telephone company; in other words, it is of no importance whether the contract, which the defendant relies upon, was with the telephone company or with Merrill. If such a contract was made, allowing that Merrill had no authority to bind the telephone company, he would bind himself. Clark v. Foster, 8 Vt. 98; Roberts v. Button, 14 Vt. 195; Royce v. Allen, 28 Vt. 234; Clay v. Wright, 44 Vt. 538; Hinsdale v. Partridge, 14 Vt. 547. The testimony was therefore admissible as tending to show an express promise to pay the plaintiff for the expenditures on behalf of the defendant which was accepted by the plaintiff and charged by the plaintiff against the telephone company. This holding is not in conflict with Sias v. Consolidated Lighting, 73 Vt. 35, 50 Atl. 554; Whitwell et al. v. Warner et al., 20 Vt. 426; Roben v. Ryegate Light & Power Co., 91 Vt. 402, 100 Atl. 768; Lyndon Mill Co. v. Lyndon Literary & Biblical Institution, 63 Vt. 581, 22 Atl. 575, 25 Am. St. Rep. 783. [2] The remaining exception to be considered is to the court's refusal to direct a verdict for the plaintiff and to its direction of a verdict for the defendant. Since it affirmatively appeared from the record that neither party wished to go to the jury on any issue of fact, it was for the court to direct a verdict for one party or the other on such a state of the facts as it regarded proved by the evidence, and the verdict will be upheld if there was any evidence to sustain it. Lowe v. Vermont Savings Bank, 90 Vt. 532, 98 Atl. 1023. An examination of the transcript, referred to in the bill of exceptions, discloses that there was substantial evidence sustaining it. The evidence was clear that Merrill promised to pay the plaintiff for the care and nursing of the defendant while at its hospital, and that promise was original and not collateral, and that it was so understood by the defendant and by Merrill and Mrs. Lovejoy. [3] The express promise of Merrill being shown, no promise implied in law arises on the part of the defendant. Morse v. Kenney, 87 Vt. 445, 89 Atl. 865. The plaintiff's claim that Merrill's promise was collateral cannot be sustained, for there was no evidence in the case tending to support it. If the promise was made by Merrill, as the evidence tends to show, and as the court must have found, it was original, and he or the telephone company, to whom the credit was given, is liable on that promise. Judgment affirmed. (92 Vt. 362) In re MARTIN'S WILL. (Supreme Court of Vermont. Windsor. May 16, 1918.) 1. WILLS 322-CONTESTS-MENTAL INCOMPETENCY-EVIDENCE-DISCRETION of Court. In a will contest on ground of testator's mental incompetency, the range of time before and after the execution of the will within which evidence as to his mental condition is admissi ble is discretionary with court. 2. WITNESSES 322-CROSS-EXAMINATION— WITNESS WHOM PARTY IS COMPELLED TO CALL. In a will contest, it is within the discretion of the court to allow cross-examination of a witness which proponent is obliged to introduce. -- 322-CONTEST-EVIDENCE-DIS CRETION Of Court. In a will contest, where evidence was admitted, but was objected to too late, and the court treated it as a motion to strike out, it was within the court's discretion to hold the proponent to the waiver, or to strike the testimony out. 15. EVIDENCE 550(2)-EXPERT TESTIMONY -SANITY. In a will contest, it was prejudicial error to allow a doctor to predicate an opinion of decedent's sanity on all the evidence he had heard in the case, where such evidence was conflicting. 1048(3)—HARMLESS 16. APPEAL AND ERROR 5. EVIDENCE 474(4) — OPINION MENTAL Where the record does not show that a foun- STITUTES. decedent's sanity on all the evidence he had Allowing doctor to predicate an opinion of heard in the case, where such evidence was con 17. TRIAL 110-CONDUCT OF COUNSEL. In a will contest, counsel's statement when disposition on the part of the other side to intera question was objected to that there was a fere with the examination was error. 471(2)—OPINION-WHAT CON-18. WILLS 53(9)—CONTEST-EVIDENCE. In a will contest, the naturalness or unnaturalness of the will may be considered in determining the testator's mental capacity. 19. APPEAL AND ERROR In a will contest, based on decedent's mental incapacity, it was not error to ask proponent whether at the time the will was drawn her conduct was such that the scrivener was justified in asking for a separate room wherein to draw the will, such evidence not constituting an opin-to ion on propriety of scrivener's action. 8. APPEAL AND ERROR 232(2)—OBJECTIONS BELOW-NECESSITY. In a will contest, where evidence by decedent's widow as to a contract with decedent was objected to below on the ground that a party to the contract was dead, but the objection on appeal was that the statute did not allow one spouse to testify to a conversation with the other, neither point will be considered. 9. TRIAL 133(6)-CONDUCT OF COUNSEL— INSTRUCTIONS. In a will contest, where proponent's counsel asked her a question which was objected to and then explained his position, whereupon the court ruled the question out, a further explanation of counsel's purpose, made in good faith, was not improper, and did not need to be withdrawn, the court instructing the jury to disregard it. 10. WILLS 53(1) - CONTEST EVIDENCE ADMISSIBILITY. 232(2) - OBJEC TIONS BELOW-SCOPE. the admission of evidence, such objection canWhere a specific objection is taken below not be extended on appeal. Exceptions from Windsor County Court; Zed S. Stanton, Judge. Proceedings to probate the will of Alonzo A. Martin. Verdict for contestant, and proponent excepts. Reversed and remanded. Davis & Davis, of Windsor, and Pingree & Pingree, of White River Junction, for proponent. W. Batchelder, of Woodstock, C. Batchelder, of Bethel, and Frank Plumley, of Northfield, for contestant. POWERS, J. On January 26, 1916, Alonzo A. Martin executed an instrument purporting to be his last will and testament. The validity of this instrument is here in question, and the only ground of contest is that he In a will contest, based on decedent's mental incapacity, evidence that decedent formerly was then of unsound mind and incompetent had confidence in the business ability of pro- to make a will. The trial below was by jury ponent's sister, and that such confidence chang- and resulted in a verdict against the instrued, was admissible as showing failing mentality.ment. The case comes up on exceptions sav11. APPEAL AND ERROR 690(3)-RECORD-ed by the proponent. REVIEW. In a will contest, where the record fails to [1] Witnesses for the contestant were alshow enough facts to determine whether testi-lowed, subject to the proponent's exception, mony admitted was admissible or inadmissible, to relate facts and observations covering an an exception thereto will not be sustained where extended period prior to the execution of no harm is shown. the instrument in question, and subsequent 12. APPEAL AND ERROR 926(5)-REVIEW-thereto down to Mr. Martin's death, and PRESUMPTIONS. In a will contest, where transcript of a wit-thereon to predicate opinions that he was not ness testimony before the probate court was of sound mind. We cannot say that such evireceived below on the ground that witness was dence was not material. The factum probanunable to attend, it will be presumed that he dum was, of course, his mental condition on January 26, 1916. But when the issue of testamentary capacity is raised, the inquiry In a will contest, where complimentary state-is conducted under liberal rules of procedure ments by witness as to contestant's care of dece (In re Esterbrook's Will, 83 Vt. 229, 75 Atl. dent were admitted, it will be assumed that such 1), and it is competent, as bearing on this testimony was made admissible by evidence not shown, the record not showing such evidence to question, to show the person's mental condition at any reasonable time before or after the was too ill to do so. 13. APPEAL AND ERROR PRESUMPTIONS. have been erroneous. 926(3)—REVIEW— testamentary act (In re Wheelock's Will, 76, dent and the real contestant, was a witness. Vt. 235, 56 Atl. 1013). Just how wide a range In her direct examination she was asked by is permissible in a given case depends upon the character of the alleged unsoundness and other circumstances, and rests largely in the discretion of the trial court. 3 Elliott, Ev. § 2602. We are not convinced that too much latitude was here allowed. [2] One of these witnesses was E. D. Ainsworth, one of the subscribing witnesses to the will, and it is claimed by the proponent that the contestant was allowed to examine him under the rules governing a cross-examination, and it is insisted that this was error. The argument is that the law required the proponent to introduce this witness, and that such a witness is not vouched for by the party introducing him; that there is no cross-examination of such a witness in the ordinary sense of the term; and that it was her counsel if there came a time when it appeared to her that her husband became suspicious that she was trying to beat him in money matters. Subject to exception, she replied in substance that there did come such a time, and that it was in 1915. The only point now made in support of this exception is that no foundation was laid by showing the particular facts from which this inference was drawn. A sufficient answer is that the record does not show that such a foundation was not laid, and therefore we will assume that it was. Sargent v. Burton, 74 Vt. 24, 52 Atl. 72. will in question, and went to the decedent's [7] It appears that Gov. Pingree drew the while he was there, Mrs. Martin's conduct residence for that purpose. He testified that was so strenuous and the scene she made so stormy that he asked for a room where he could have Mr. Martin alone to complete the unfair and prejudicial to allow it in this [3] The contestant was allowed to take answers from some of the witnesses which were not in the line of strict cross-examination, and the proponent excepted. But no error is shown. It is not made manifest that the admission of this testimony in this way resulted in any surprise, or prejudice to the proponent's case, and it was therefore within the discretion of the court to allow it. Slack v. Bragg, 83 Vt. 414, 76 Atl. 148; State v. Pierce, 87 Vt. 144, 88 Atl. 740. The fact that in some respects this was to anticipate the contestant's case is of no consequence. In re Mason's Will, 82 Vt. 160, 72 Atl. 329. [4] The contestant was allowed, subject to exception, to ask leading and suggestive questions to certain witnesses. This, too, was within the discretion of the trial court. Berry v. Doolittle, 82 Vt. 471, 74 Atl. 97. When Mrs. Martin was on the stand, her counsel asked her if her conduct on that occasion was such that there was any reason for Gov. Pingree's asking for a separate room. To this the proponent objected; and, subject to exception, the witness was allowed to answer that she might have been a little bit excited, but that she was not strenuous, nor loud, nor quarrelsome. The argument of the proponent assumes that the witness was allowed to express an opinion on the propriety of Gov. Pingree's action. But this is not what the witness did; she simply stated the facts as she claimed them to be. This is just what counsel then said they were willing she should do, and just what she could properly do. [8] Mrs. Martin was allowed to testify to a conversation had with her husband in the fall of 1897, which resulted in an arrangement whereby she took on the management of the business at Martinsville. To this the proponent excepted. The objection below was specific. It was that Mr. Martin being dead, the living party "shouldn't be allowed to come in here and swear contracts onto the [5] The opinion of the decedent's mental the statute does not allow one spouse to testidead one." The only point here made is that condition given by Mary Hope, the trained fy to a conversation with the other, and that nurse who took care of him from February the death of the latter does not affect the 15, 1916, to his death on March 6th of the question. Here, then, is a new objection not same year, was not inadmissible. It is true made below. In these circumstances neither that the witness had not previously known point is considered. Jewell v. Hoosac, etc., the decedent, and that he was then very weak R. Co., 85 Vt. 64, 81 Atl. 238; Goslant v. and sick; but these facts only affected the Calais, 90 Vt. 114, 96 Atl. 751. Exactly the weight of her testimony, and not its admis-same situation exists regarding the conversasibility. Foster's Ex'rs v. Dickerson, 64 Vt. tion about the keys to the box of securities, 233, 24 Atl. 253. Here, again, the law does and for the same reason the exception is overnot lay down a hard and fast rule, and the ruled. question whether the witness has had an ade[9] During Mrs. Martin's examination, her quate opportunity of observation, in circum-counsel asked her a question which was obstances calculated to result in an inferencejected to. Thereupon counsel explained his helpful to the jury, is largely one of adminis-position in regard to the question, and the tration, and within the discretion of the trial court ruled it out. Contestant's counsel then court. 3 Chamb. Ev. § 1912. (apparently in good faith) made a further |