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“The Stock, Grain & Provision Company of New York, Limited.
"Dealers in Stocks, Bonds, Grain, Provisions and Oil.

"Capital $100,000. (Full Paid.)

"Memorandum of Agreement. “Made this twentieth day of May 1901 between the Stock, Grain & Provision Company of New York, Limited, party of the first part, and Eldredge & Co. of Albany, N. Y., party of the second part, witnesseth, that the said parties do mutually agree as follows:

“1. That the following are the terms and conditions upon which all contracts between them shall be had, unless others shall be agreed upon in writing.

“2. It is herein agreed that the Stock, Grain & Provision Company of New York (Limited) will make actual delivery of all bonds, stocks and produce and all other properties they trade in, and will pay cash for all the above named articles sold for immediate, or future delivery when properly transferred and delivered to this company.

“3. That all property sold by either party to the other is to be delivered as hereinafter stated on payment of the contract price.

"4. That if the advance or decline in the market price of any property beyond the contract price equals or exceeds the cash credits of the party of the second part with the party of the first part, the party of the first part shall thereupon be at liberty to close and terminate the contract as to that property; and any credits the party of the second part may have with the party of the first part may be applied by the party of the first part to any indebtedness of the party of the second part to the party of the first part and the party of the first part may close and terminate any or all other contracts and apply the payments or deposits and profits to the payment of any such indebtedness.

"5. That the place of delivery of grain and provisions is Chicago, at such houses as the party of the first part may elect, and of all other property the office of the party of the first part in New York City.

“6. That Chicago warehouse receipts for grain and provisions, and National Transit Co. Pipe Line certificates for oil may be delivered in lieu of the property represented by them.

“7. That the party of the second part has and shall have no authority to act as the agent of the party of the first part, and that he shall in no way hold himself out or represent himself to be the agent of the party of the first part.

“The Stock Grain & Prov. Co.

“C. Wesley, Holland, Mang. "Eldredge & Co."

It is seen it was expressly provided that Eldredge & Co. were not the agents of Stock, Grain & Provision Company. It seems the business was done in about this way: A person desiring to speculate in stocks would go into plaintiffs' place of business in Albany, they being known as Eldredge & Co., and say buy so many shares of such a stock. Eldredge & Co. would telegraph Stock, Grain & Provision Company buy so many shares of such stock for number so and so giving a number. The customer was required when giving his order to Eldredge & Co. to put up "a margin” and also the amount of the war revenue tax on the transaction. This sum it appears was put to the credit of Stock, Grain & Provision Company. Of this, however, the customer had no knowledge. Stock, Grain & Provision Company would telegraph back "bought.” That company did not buy the stock or any stock, or have any to sell, or sell any. Eldredge & Co. would then give the customer a slip as follows:

Stock, Grain and Prov. Co.

Eldredge & Co. Dealers in

Correspondents Stocks, Bonds, Grain and Provisions.

71 State St.,
10 Wall St., New York.

Albany, N. Y.
No.

Both Phones 798
Mr.
As per your order, have bought for your account and risk for delivery.
Shares

@

-Deposited on account *Carried to

Duplicate Original Stamped

*The right is reserved to sell the above in case sufficient money is not deposited to carry said stock below market value.

-with the blanks filled. The customer was not informed he was dealing with any one except Eldredge & Co. If the stock went up, the customer could say sell, in which case Eldredge & Co. would telegraph “sell,” and Stock, Grain & Provision Company would telegraph back “sold,” when, in fact, no sale was made, and it had nothing to sell. In such case the gain to the customer on the wager or bet on the rise or fall of the market, if any, would be paid by Eldredge & Co. If the market went down and the customer did not keep his margin good, of course, he was out what he had put up and the money stood to the credit of Stock, Grain & Provision Company and was divided between it and Eldredge & Co. Each day Stock, Grain & Provision Company sent Eldredge & Co. a statement as follows: Cable address : Willianna. We have no Agents.

Long Distance Phone.
The Stock, Grain and Provision Company, Of New York, Limited.

Capital $200,000. Full paid.
Dealers in Stocks, Bonds, Grain and Provisions,
10 Wall Street,

Established 1893.
New York,

190 C. Wesley Holland, Manager. Walton O. Snyder, Secretary.

Dear Sir: We solicit and will receive no business except with the understanding that the ACTUAL DELIVERY of property bought or sold upon orders is in all cases contemplated and understood. Our transactions with you today are as follows:

E. & O. E. Numbers We sell We buy

Article

Price

Deposit to you

of you

As per our written agreement.
Remarks
Deposit

Number

Price

Settlements

—the blanks being filled. Stock, Grain & Provision Company would stamp a duplicate of this with the proper war revenue stamps. Eldredge & Co. did not stamp or at the time pay the tax on the transaction at their end of the line. Subsequently they were required to do so, and under protest did pay, and then brought this action to recover back the money paid as tax.

The contention of plaintiffs is that there was but one business carried on and but one transaction; that they were mere agents of Stock,

Grain & Provision Company and that it was all one thing, and that, as Stock, Grain & Provision Company paid the tax by putting stamps on the statement of each day's business, the full tax was paid, and Eldredge & Co., mere agents, assistants, servants, in the transactions and business, could not be required lawfully to pay a second tax. I hold under the evidence that Eldredge & Co. were not agents or servants of Stock, Grain & Provision Company; that they carried on a separate and distinct business. True, the two bucket shops aided each other and divided the profits, but there was “a business” at each end of the line subject to tax. Eldredge & Co. dealt with customers at their end, Albany, and Stock, Grain & Provision Company dealt with Eldredge & Co. independently. There was no contractual relation between these customers and Stock, Grain & Provision Company.

The complaint must be dismissed, with costs.

DOVER v. GLOUCESTER ELECTRIC CO.

(Circuit Court, D. Massachusetts. June 29, 1907.)

No. 245.

1. ELECTRICITY-DANGEROUS WIRES.

A man who climbs a telephone pole in the rightful performance of his duty is not charged with knowledge that its rightful use is for uninsulated

wires carrying a dangerous current of electricity. 2. ELECTRICITY-CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY.

In an action for injuries to a telephone lineman by a shock received by an uninsulated highly charged electric wire as he was climbing a pole, whether he was negligent in failing to discover the defect and danger before ascending the pole held for the jury.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 18, Electricity, 11.] 3. DAMAGES-EXCESSIVENESS-PERSONAL INJURIES.

Plaintiff, a telephone lineman, who had been a foreman, while climbing a telephone pole, received nearly 2,000 electric volts froin a wire from which the insulation had worn, which caused plaintiff to fall from the pole, a distance of 25 feet. Prior to his injury he had been in good physical condition, but had been continuously sick thereafter, and nearly two years after the injury there was still evidence of inflammation, adhesions in the vicinity of the liver, and neurosis. One physician of high skill and character testified there was nothing the matter with plaintiff which could be attributed to the accident, but there was other medical evidence to the contrary. Held, that a verdict in favor of plaintiff for $5,200 was not excessive.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, &$ 357, 365, 367, 368.]

Action by Joseph R. Dover against the Gloucester Electric Company. A verdict was rendered in favor of plaintiff for $5,200, and defendant moved for a new trial. Denied.

William A. Pew, for plaintiff.
John Lowell, for defendant.

HALE, District Judge. This case now comes before the court upon a motion by the defendant for a new trial, upon the ground that the

verdict is against the law and the evidence, and that the damages are excessive. The defendant contends that, while there might have been a scintilla of evidence upon which the jury could base a verdict, the overwhelming weight of the evidence is that the plaintiff was guilty of such negligence as to preclude recovery.

The plaintiff was an employé upon the lines of a telephone company. He had been a foreman, and had experience in the class of work committed to him. In the course of his employment he was required to climb a pole on which were telephone wires, and also highly charged wires of the defendant company. The insulation had been worn from one of the defendant's wires, and the wire had become an object of danger. It appears from the plaintiff's testimony that he approached the pole, in the ordinary course of his employment, walking upon a wall on the side of the road; that it was impossible for him, from the wall, to detect the absence of insulation on the wire, or to see a burnt place which the uninsulated wire had made upon the pole. There is evidence, however, that by going a little distance into the road he might have seen the defective conditions. He did not see them; but proceeded to climb the pole, having his right hand around the pole and sliding it up the pole as he ascended. With his left hand he was preventing the kinking of the cable which other telephone men were running from pole to pole. According to his testimony, he had ascended some 24 or 25 feet when he felt the pole sway as if the men working on the cable had given a sharp pull, and that was the last he knew. A burn was apparent upon the plaintiff's right wrist. His shoe was produced in court, and appeared to have been burned through, under the climbing spur. There was evidence tending to show that the pole was swayed by the pulling of the cable by the telephone linemen.

Plaintiff admitted that he had been instructed generally that, before climbing a pole, he should see that such pole was safe; but he had never worked near this pole before, and his attention had not been called to the defective wire or to the burn on the side of the pole. He had seen other workmen going up and down the pole in safety. He was called upon to climb it in the course of his business. He approached it in the way I have described, and did not, as a matter of fact, see the defects, either before beginning to climb the pole or during his ascent. It is earnestly contended by the defendant that, if he had gone a little distance into the road, he could have seen the defective conditions, and that, if he had been in the exercise of due care during his progress up the pole, he would have seen those conditions.

This was the second trial of the cause. At the first trial the plaintiff obtained a verdict. Judge Brown, the learned judge before whom the cause was tried, refused to set that verdict aside as being against the law and the evidence. He did, however, grant a new trial on the ground of excessive damages, unless the plaintiff should remit a certain sum. In refusing to grant a new trial for errors in law, he made a comprehensive reference to the testimony which was before the jury on that trial. He also commented on Chisholm v. New England Telephone & Telegraph Co., 176 Mass. 125, 57 N. E. 383, and Law v. Central Dist. Printing & Telegraph Co. (C. C.) 140 Fed. 558. I agree

155 F.-17

with his comment upon those cases, and with his conclusion that it is the duty of the court to leave to the jury the question of due care under the special circumstances of each case. I think it will be seen that this is the only way in which such a case can be passed upon competently, in order to do full justice in the premises. It is true that in railroad cases the dangers upon a railway are so well known that failure to look and listen is as a matter of law held to be negligence; but a railroad track is for the purpose of the running of railway trains. The man who approaches it has full knowledge that such is its primary and rightful use; and the use of it by him is subject to its dominant use. On the other hand, the man who climbs a telephone pole is not charged with knowledge that its rightful use is for uninsulated and dangerous wires. He knows, on the other hand, that there is a duty to keep the wires insulated; and that, while the purpose for which the structures are used renders some danger from electrical currents unavoidable, he has some reason to expect that the wires will be kept protected. He knows, to be sure, that it is difficult to do this, and that there is liability that there may be a lack of insulation of some wire; but the risk of defective insulation varies with the circumstances, as Judge Brown has pointed out. And the case is not like that of a railroad track, where the danger is always well known, distinct, and incident to its lawful use.

After Judge Brown's decision in the matter of a new trial, this case went to the Circuit Court of Appeals. In speaking for that court, Judge Aldrich said:

“Knowledge that wires are liable to get out of repair, and when out of repair that they are dangerous to life, is something entering into the question of care as it applies to both parties. * * There is no evidence that he saw the lack of insulation. It is only argued that he ought to have seen it. This being so, and the unforeseen swaying of the pole being the probable cause of the contact, it reasonably, we think, became a question for the jury whether, under all the circumstances, the plaintiff exercised the care of a prudent man in attempting to do what he did.”

The testimony upon which the jury found this verdict is not the same as that upon which the Court of Appeals passed in arriving at their conclusion; but, in my opinion, it is not so different as to require a different rule of law. For the purposes of this case, I must assume that the decision which I have cited states the doctrine of the federal courts upon this subject. In accordance with Judge Aldrich's opinion, I think this court must say that the question of due care of the plaintiff in a case like this must properly be left to the jury to decide under the special circumstances of each case. I decline to grant a new trial for error of law.

The defendant contends, also, that the damages are excessive. The date of the injury was August 18, 1905. Before that time the plaintiff was in good physical condition. He has been sick ever since. The evidence shows that he received nearly 2,000 electric volts, and fell at least 25 feet, and that from that time he has suffered. He has now the pained and pinched appearance of a sick man. The testimony tends to show that there is still inflammation, that there are adhesions in the vicinity of the liver, and that there is some evidence of neurosis. Some

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