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leading care 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 tbe 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. I shall in cash, especially where there was express notice this opinion further on under the sube assent to the terms of the rules and by-laws title, Pleading and Practice. In Leas v. by both parties were held sufficient to estabPenn. Co.,55 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," 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 tbat appellant bad ob. ployer to maintain and support the associatained and accepled the benefits due on re- tion by contributing the funds necessary for ceiving injuries, the objection tbat 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 Allens charged the jury tbat 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 the or not. Tbat 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 cov. the plaintiff had accepted the benefits under enants entered into on its part with the emthe contract stipulation that such acceptance ployee, will that fact thereby impart the eleshould discharge the railroad company from ment of mutuality or privity with the benethe liability for ils tort.

ficiaries under death liability statules? 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 bave 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

37 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 III. 312, 38 L. direct and proper proceeding as to enable them to R. A. 750. pasg on the question of ultra vires, will be awaited 61 Ringle v. Penn. Co. (Penn.), 164 Pa. St. 529, 20 with interest by the profession.

Atl. Rep. 492; Spitze v. B. & 0. R. Co., 75 Md. 162, 23 34 Johnson v. R. Co , 163 P&. St. 127, 29 Atl. Rep. 834. All. Rep. 307. 58 (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. Maney, Admx., v. C., B. & Q.R. Co., 49 III. App. 115.


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 tbe 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 forwal 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 administratris was ecuted by the widow, wbile 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 have 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 deliv. opinion in the Maney case, not having been ered a release.64 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.63 A re 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 por 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 par. were as claimed Wymore, the decedent, ties, and by the legal representatives of per. might 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

The agreement discharging the cause ages is not wbat he might have recovered had of action may take one or more of several he lived, but their pecuniary loss by reason of not essentially different forms. 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 a death deprive them of their right of action, covenant not to sue, or a ravified settlement. he could not contract away their right before

But the agreement claimed to operthe injury and witbout 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 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.


It may be a


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 membersbip therein, and deducted the dividually and not as administratris. In

accruing assessments from his monthly wages, held

tbat the sole remedy, of his personal representative maintaining this action she proceeds in her wbere be 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 Obio tbat a 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 game 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 tbe 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.

651 Jaggard on Torts, $ 106, p. 310.



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 tbis 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 wbich 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 satisfacdenial of a contrary tenor. 6 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 ti State 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 further objection that the aetion of tbe 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 membersbip 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 tense in a case wberein a statutory beneticiary had recovered damages for the death of the employee by

companies, and the relief association is not an 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. sbip certificate for the death benefit, as against bim. C., B. & Q. R. Co., 169 III. 312, 38 L. R. A. 750. selt sbould 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 Jobnson v. Philadelphia & R. Co., 29 Ail. Rep. € Winfield, Adjudged Words and Phrases, Estoppel. 854.

length of time, wbicb it would bave taken defendant to carry plaintiff to bis destination, ibe value of which is to be computed by the reasonable value of plaint. iff's service in bis 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 whetber or not plaintiff would have procured em: ployment, bad he been at his place of destination dur. ing the time be was delayed.

insurance company but a beneficial association.” The citations of South Carolina, Obio, 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 codle 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 railroalls. I he 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 wlio has contributed to the ben. efit fund and entitled to sbare its proceeds who can only obtain such aid by signing the agreement to release and discharge the association company from


and all claim for damages on account of the disabling injury, when such injury was caused by the negligence of the company, its ofticers 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 regligence "72 Danville, III.


In pursue

REAVIS, J.: Plaintiff (respondent) was a pas. senger on the steamship Cleveland, owned by de. fendant, and operated by it between the city of Seattle and St. Michael, Alaska. In August, 1897, defendant sold plaintiff a ticket entitling bim to passage from Seattle to Dawsou 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. ance 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 teain of dogs. Plaintiff alleged that he was compelled to make an expenditure of $900 for tbe necessary means and facilities in traveling between Ft. Yukon ard 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 contract of carriage were laid at 1,975. The 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 bere upon which you can allow plaintiff anything as damages for loss of time, and that you are to allow him nothing in this respect,”- ind error in the instruction given by the court, upon which a rigbt of recovery for loss of time was based; second, refusal to grant a new trial on the ground that the verdict was excessive; and, tbird, overruling the demurrer to the jurisdiction of the court to try the action.

1. The demarrer to the jurisdiction is founded upon the claim that the contract of carriage was a maritime one, and therefore not cognizable in tbe State court. The case of The Moses Taylor, 4 Wall. 411, 18 L.. Ed. 397, is cited upon the demurrer; but in that case a seizure was made of the ship for breach of a contract of carriage under a California statute directing suc seizure, It was an action in rem, and it was there observed : *A proceeding in rem, as used in the admiralıy 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

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





Supreme Court of Washington, May 17, 1900.

1. The State courts bave jurisdiction of an action against a resident steamboat company for breacb of a contract of carriage wbich was to be performed on the bigb 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 wbere he was abandoned, togetber with compensation for time lost, beyond the reasonable

* the

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 bave been frequently maintained. Crawford v. Roberts, 50 Cul.. 233; The E. P. Dorr v. Waldron. 62 III. 221.

2. The evidence is sufficient to sustain tbe 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 tbat announced in Hadley v. Baxendale, 9 Exch. 341, as follows: "Where two parties bave made a contract which one of tbem has broken, tbe damages wbich 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 bave been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.” Accepting tbe rule as stated thus far, “Where two parties have made a contract wbich one of them has broken, tbe damages which the other party ought to receive in respect of such breach of contract, sbould 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 inuch 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 inportant question, after all, is wherber the injury was the direct and proximale, 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 tbereby 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 tbat, if the plaintiff was delayed in reaching bis destination by the fault of the defendant, he was damaged, on account of lost time, 10 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 pleintiff was entitled 10 recover euch sum as his time at home for the period he was delayed by reason of defendant's failure to transport bim was reasonably and fairly worth in his profession or business, and such instruction was approved bere; and Yonge v. Steamship Co., 1 Cal. 353, 3 Suth. Dam. (2d Ed.) $ 936, and 2 Sedg. Dam. (8b Ed.) § 863, were cited with reference to the evidence tending to es tablish damage for loss of time. The case of Yonge v. Steamsbip Co., supra, was an action

against a common carrier upon a contract to carry the plaintiff from New Orleans 10 San Francisco. There the trial court instructed the jury "that, it being shown in evidence that the plaintiff was a good bookkeeper, * measure of damages would be the wages at the then rate in San Francisco úf a good bookkeeper, "? during the period of detention on ibe 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 adinit evidence that the plaintiff was a good bookkeeper, but it should have been left to the jury 10 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 bour; that such labor was in continuous demand; tbat the plaintiff bad been a laborer nearly all his life, and was able to earn the common wages at Dawson. The evidence alon tended to sbow that plaintiff lost about ninety days of time; that the labor of travel which plaintiff performed was equal to the bardsbip 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 be had necessarily sustained in completing bis journey from Ft. Yukon 10 Dawson City, together with such other sum as would fairly compensate him for the time be necessarily lost in completing his journey. The court also instructed that the plaiutiff was entitled to pay for such time as be necessarily lost, over and beyond ihe reasona ble length of time for defendant to carry plaintiff to his destination ai Dawson City; that the rate of compensation for such time was wbat an ordin. ary laboring man might or could have procured at Dawson City; and that the jury should determine from tbe testimony whether the plaintiff could bave procured such employment, and, if so, for what length of time, and at wbat compensation. Tbe jury was further instructed ibat it should take into consideration in considering the question of wages, the amount which it would have cos: tl.e plain iff 10 live during the period for wbich he was allowed for loss of time, and such cost of living should be deducted. It will this be seen that the rule assumed in Turner v. Railway Co., supra, was followed by tbe 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 bis journey as best he could. Certainly loss of time was a natural result of the breach of contract. It would also seem ibat the evidence of damage for such loss was competent, and from it the jury, in its sound discretion, could assess the aniount. Much of the

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