IN

The Albany Law Journal.

ALBANY, DECEMBER 19, 1891.

CURRENT TOPICS.

We

N our last issue we printed a short review, by a very accomplished lawyer, of Mr. Ringgold's "Law of Sunday." We agree with it in the main, but wish to guard ourselves against the implication that we deny the power of the State to ordain the cessation of business on Sunday. Mr. Ringgold argues that the State has no power to compel idleness on Sunday. That may be granted, just as it must be granted that the State has no power to compel men to sleep at night. But the State has the police power to render night quiet so that they can sleep who wish, and so it has the police power to render Sunday quiet so that they who wish can rest or worship-to prevent noisy, bustling and disturbing trade and business, and riotous amusement. do not exactly see what just right the State has to say that a promissory note made on Sunday shall be void, any more than the court has to inquire whether a brief presented to it was drawn (as Mr. Ringgold leads us to suspect some of his are) on Sunday. But we do suppose that the State has the power to shut up a brokers' auction-room where such paper is sold, on Sunday, for the reason that such business disturbs the peace of that major part of the community who want to rest on that day. Why has not the State the same police power to prohibit trade and business on Sunday that it has to regulate trade and business on secular days? The State may prohibit the prosecution of an offensive trade or a dangerous business within certain populous bounds, on account of the annoyance to the senses of the inhabitants. If the State may compel a slaughter-house to "move on" upon the approach of population, why may it not compel it to shut up on Sunday? Our reviewer hits the nail exactly on the head, and expresses an idea which had occurred to us, when he says that although the State may not prescribe a holy day, it may prescribe a holiday. Mr. Ringgold's argument would impeach the power of the State to prescribe holidays, which we believe has not seriously been doubted. Another part of Mr. Ringgold's argument, namely, that there is no evidence that one day's rest in seven is physically essential or desirable, seems to us very ill founded. He says, for example, that doctors and lawyers, who notoriously work on Sunday, are notoriously long-lived. Suppose we grant it; how does Mr. Ringgold know that they would not live longer yet if they rested one day a week? But if we carry out his argument- would he be in favor of keeping courts open for business on Sunday? Undoubtedly not, for although he might be willing to drag his antagonist to court on Sunday now and then, in an urgent case, he would be very apt to resent such a procedure when applied to himself in all cases. VOL. 44-No. 25.

However ingenious and plausible much of Mr. Ringgold's argument may seem, the practical answer to all of it is that in matters of police the citizen in society must yield to the dominant wish of the majority. It is impossible for the majority in this country to see any oppression in the establishment of one day's rest in seven, and in such reasonable regulations as shall render it a period of real repose and quiet. The oppression on the contrary would be in practically compelling them to work against their wish because the minority desire to work on that day.

The late decision of the Supreme Court of the United States (ante, p. 325), that the Federal courts have no power to compel the plaintiff in an action for personal injuries to submit to a surgical examination, has been somewhat criticised by the law journals, and they seem inclined to the dissenting view of Justices Brewer and Brown, that the examination should be compelled because the party has the optional right to have it made on his own behalf. It is difficult to accept the argument that a party may be compelled to produce particular evidence against his will, simply because he had the right to produce it if he wishes. It seems to us that the true reason of the case has not been clearly propounded in either of the opinions, nor anywhere else, so far as we have read, excepting one case. The court has no power to compel the suitor to produce any particular piece of evidence. He is suing for his own benefit, and may put in such evidence as he chooses, taking upon himself the burden of satisfying the jury. The jury may lean against him because of his omission to produce certain available evidence, but the court has no more power to compel his exposure of his person to a surgical examination, than to compel his production of a particular witness to the transaction in question, whom he omits or refuses to produce. This last class of omission is frequently commented on by opposing counsel as suspicious, but no one ever claimed that the party could be obliged to produce such evidence. And yet the reasoning of Mr. Justice Brewer, followed to its legitimate conclusion, would imply such a compulsory power. The judges frequently lay stress on the fact that such an examination tends to certainty,

which is the aim of the law. The answer is, the plaintiff is not bound to render his case certain, although it be within his power to do so. may He takes the risk of his omission to do so. The most in Roberts v. Railroad Co., 29 Hun, 155, as follows: cogent expression of this idea is by Learned, P. J., "But again

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* we know of no right which this court has to compel a party to submit to any bodily examination. In a common-law action like this the jury are to pass on the issues of fact. And they are enti tled to see and hear for themselves the evidence. It is of the very essence of the common-law system that the evidence shall be produced before the jury. Exceptious to this rule (and not desirable exceptions) are those cases in which evidence is previously reduced to writing, and then read to the jury. Now if a party is entitled to the compulsory exhibition of the body of his opponent, it would seem to follow that he might

NOTES OF CASES.

principles are fully sustained by the following cases: Russell v. Tomlinson, 2 Conn. 206; Adams v. Hall, 2

coal mines, several miles apart, was thrown into a stream without any concert of action on the part of the mine-owners, and it accumulated so as to cause the overflow of plaintiff's land, and the deposit thereon of coal-dust, etc. Held, that although it was difficult to apportion each mine-owner's contribution to the damage, plaintiff's release, for a valuable consideration, to one of all claim for damages done or to be sustained by his pollution of the stream was not an accord and satisfaction for the whole damage, or a bar to a recovery from the other. The court said: "It is argued, on the part of the appellants, that the injury to which the plaintiff was subjected was of such a character that it could not, as between the parties who caused it, be divided, so as to determine in what proportion it was caused by each; and that, even if the defendants' mines had not been operated, the mining operations of the Highland Coal Company would have resulted in the same injury. It is true that the injury complained of may have been caused in part by the operations of the Highland Coal Company, conducted contemporaneously with the operations of the defendants' mines, and that it would be difficult, if not quite impossible, to separate and ascertain, definitely or certainly, the proportion of the whole damage done by each of these operations, respectively. But these several operations were entirely independent of each other. They were several miles apart, and the ownership, management and control were wholly distinct and separate. There was no concert of action, or common purpose or design, which would support the theory of joint injury. The case, in this branch, is ruled by Navigation, etc., Co. v. Richards' Adm'r, 57 Penn. St. 142. the mill-dam was filled by deposits of coal dirt from different mines. The court below charged the jury that if, at the time the defendants were throwing dirt into the river, the same thing was being done by other collieries, and the defendants knew it, they were liable for the combined result. This instruction was held to be erroneous. The ground of action,' it was there said, 'is not the deposit of the dirt in the dam, but the negligent act above. The defendants' liability therefor began with the act on their own land, and they were responsible for the consequences; and, as the negligent act was separate and independent of the acts of the other miners, it was several when committed, and did not become joint because the general consequences were united.' 'Without concert of action,' said this court in the case cited, 'no joint suit could be brought against the owners of all the collieries, and clearly this must be the test; for if the defendants can be held liable for the acts of all the others, so each and every other owner can be made liable for all the rest, and the action must be joint and several. But the moment we should find them jointly sued, then the want of concert and the several liability of each would be apparent. These

In that case,

Buddington

Haam, 1 Den. 495; Partenheimer v. Van Order, 20 Barb. 479.' Unless the negligence of two persons is joint and concurrent, each is liable for his own negligence only. Boyd v. Insurance Patrol, 113 Penn. St. 269. To the same effect are the cases of Seely v. Alden, 61 id. 306; Leidig v. Bucher, 74 id. 67; and Railroad, etc., Co. v. French, *81 id. 366. It is a matter of no consequence whatever that the stream was not a public highway; that fact could not in any way affect the principle referred to; and if the Highland Coal Company was not a joint tortfeasor, it is immaterial in what form the release was effected, whether by deed or otherwise."

In Tinken v. Tallmadge, Supreme Court of New Jersey, November 5, 1891, a mayor of a city officially promised a reward for the apprehension of a fugitive municipal officer, and on account of the absence of any authority in the mayor to bind the city there was no principal to respond. Held, that by reason of this excess of his authority the mayor became personally liable for the performance of the contract. The court said: "There is a well-defined distinction between the contracts entered by private agents and those contracts made by public agents in respect to their personal responsibility. Where a private agent does not attempt to bind his principal, and in terms imposes the obligation upon himself, the rule is he incurs by such act a personal liability, although he describes himself as agent. Dayton v. Warne, 43 N. J. Law, 659. But this is not the rule where the obligation is the same, but the agent is acting within the scope of his authority as a public agent. Knight v. Clark, 48 N. J. Law, 22; Woodbridge v. Hall, 47 id. 388. A public agent, whenever the contract is within the limits of the officer's power and duty, is not personally bound, unless a contrary intention is plainly indicated by the terms and circumstances of the transaction. The presumption is that he is acting in his official capacity, and that the engagement is meant to be with the public only. Woodbridge v. Hall, supra. The paper signed by the mayor does not rebut, but fortifies, this presumption. The service for which the money was to be paid was a public service. The fugitive was a municipal officer. The promise was made by the defendant over his official title as mayor. The money was to be paid at the mayor's office. Therefore, if it had appeared that the mayor had, as a part of his official power and duty, the authority to bind the municipality or any of its departments by such a promise, no one would doubt for an instant that the action would lie against the city alone. It however conclusively appeared that no such authority or duty existed. In fact the mayor was without the least semblance of power to act for any public body in the matter. Now, a rule applicable to private agents is that, if an agent contracts, although in his character of agent, with no responsible principal to whom resort may be had,

the law presumes that he contracts upon his personal responsibility, and intends to bind himself, and so holds him; for in no other way could the contract have any validity. Booth v. Wonderly, 36 N. J. Law, 250-255; Dunl. Paley Ag. 374. Whether this doctrine applies to public agents has been denied by some courts and doubted by others, except when there existed some express warranty of authority or fraudulent conduct on the part of the agent. The cases are collected in Mr. Mechem's useful book on Public Officers, sections 809-815. It is useless to examine these cases, for the rule applicable to private agents is extended to public agents in its full vigor by this court in the case of Bay v. Cook, 22 N. J. Law, 343. In that case an overseer of the poor had directed a physician to attend a pauper. The charges were made against the overseer as such. An action was brought against the township to which the pauper was chargeable, in which action the physician was nonsuited on the ground that the overseer was not authorized to bind the township. Another action was then brought by the physician against the overseer personally, and a verdict was returned against him. Upon error it was urged that the overseer was acting as a public agent, and that the physician had recognized him as such. This was not denied, but nevertheless this court held the overseer personally liable for the physician's bill. The court remarked: 'If an agent, either public or private, exceeds his authority in making a contract, he is personally liable for its performance, for the law will esteem him as acting in his individual capacity, rather than suffer the contract to fall.' Upon the rule laid down in that case the judgment brought up is affirmed."

In Louisville, E. & St. L. C. R. Co. v. Berry, Appellate Court of Indiana, October 2, 1891, deceased, eighteen years of age, employed by defendant as an "engine-washer,” was directed to go under the boiler of an engine and tighten boiler-plugs, and while so engaged a plug came out, and he was scalded so that he died shortly thereafter. When the accident occurred he crawled from under the engine, and was assisted to a chair twenty-five or thirty steps away; and when he reached the chair, being asked how the accident happened, and while suffering intense pain, and being greatly excited, exclaimed: "I am a dead man, but nobody is to blame but myself. I turned the plug the wrong way, and it came out." Held, in an action by the father for loss of services, that such statement was competent as a part of the res gesta. The court said: "We do not concur in the proposition that the evidence was allowable as an admission. It does not come within the doctrine that an admission of one against his interest while in the possession and enjoyment of a right may be given in evidence against one who succeeds him in the right, when it is the subject-matter of the litigation, and there is a clear distinction between the declarations of the deceased in this case and the declarations of a decedent in an action by his administrator to recover for the

injury resulting in his death. In the latter case the suit is brought by the personal representative of the decedent to recover for an injury personal to and in a sense in the right of the deceased, and for which he could have sued had he survived the injury. In the case at bar the injury sued for was originally and primarily inflicted upon the appellee, and no part of the damages described in the complaint and awarded by the jury could have been recovered by the deceased had he survived the injury. Mayhew v. Burns, 103 Ind. 328. His services during his minority belonged to the appellee as his lawful right, and it was not within the power of the deceased son to have legally defeated this right. Consequently, upon the clearest principles of the law, the admissions of the deceased could not bind the appellee. *** The statements of one while doing an act, explanatory thereof, may be given in evidence as part of the act when it becomes the subject of litigation. The act may be said to have the power of speech under such circumstances. Where a statement, in this connection, is so closely related to the litigated act or event that it may be said to be the utterance of such act or event instead of the individual, it is a part of the res gesta. How nearly contemporaneous a statement must be to an event to become part of it under the rules of evidence must depend mainly upon the circumstances of each particular case. It should be practically the automatic manifestation or impulse of the princpal event. It should be instinctive in a sense, and the causal relations between the event and the utterance should not be disturbed by calculation or reflection. The case of Railway Co. v. Buck, 116 Ind. 566, is a very valuable one upon this question. The authorities are collected, and they abundantly sustain the opinion of the court. Among other things, the court, by Mitchell, J., said: 'It is not always easy to determine when declarations having relation to an act or transaction should be received as part of the res gesta, and much difficulty has been experienced in the effort to formulate general rules applicable to the subject. This much may however be safely said: That declarations which were the natural emanations or outgrowths of [the act or occurrence in litigation, although not precisely concurrent in point of time, if they were yet voluntarily and spontaneously made, so nearly contemporaneous as to be in the presence of the transaction which they illustrate and explain, and were made under such circumstances as necessarily to exclude the idea of design or deliberation, must, upon the clearest principles of justice, be admissible as part of the transaction itself.' In the case before us the declarations of the deceased were practically in the presence of the occurrence. They were explanatory in their character, and were the first expressions of the deceased after the accident. He was suffering much pain, and laboring under great excitement. His death resulted in a few hours thereafter. We are of the opinion that the declarations were competent evidence, and the court erred in excluding

them."

JURIDICAL EVOLUTION.

II.

MUST be understood to confine myself to the au thorities contained in the ALBANY LAW JOURNAL for the past four years. These show the drift of judiclal opinion in this country during that period perhaps better than a more pretentious and extensive collection. The intention of the author of the series of articles upon the cases so collected, commencing at Mental Suffering as an Element of Damage in the Negligence of Telegraph Companies, has been and is, to note both those applications of the principles of the common law to new conditions which secured that "highest practical wisdom" which Judge Somerville alludes to in Parsons v. State, 36 Alb. L. J. 249, and those which did not. He must confess with a sigh, for he was always, and is now, an admirer of the sturdy directness and honesty of the common law, that they supplied no rule in many cases, to guide the court to a correct conclusion, that in other cases their application was strained and unsatisfactory; that instead of "juridical evolution" he has found much "judgemade" law. He has given some instances in the former articles, and intends in this to note a few more. Of course, with no access to original authority, and having to take the citations of each opinion upon trust, the writer is conscious that his view is circumscribed; that he can only suggest, and not exhaustively discuss the points as they arise. Nor can he, without being tedious, refer to all the cases which illustrate the purpose of these articles, even among the limited numbers to which he has access.

1. Under no other topic of the law does it seem that the courts are emerging so rapidly from the chaos and confusion of numerous and conflicting decisions, to definitely outline principle, as under that of Master and Servaut. The obligation of each are to be tested by the duties each owes the other under the contract of employment.

The courts have definitely imposed upon the master a four-fold duty, which seems to include, by inference, if not by the letter of its statement, every imaginable case: 1st, to furnish reasonably safe appliances to work with, a reasonably safe place to work in, and to keep them safe; 2d, to supply competent vice-principals and co-servants, and a sufficient number of them; 3d, to instruct servants ignorant, through inexperience or infancy, of the dangers incident to a dangerous work; 4th, to direct, supervise and control his business.

I do not intend to define what is a co-servant, if such definition is possible. But this seems the result of the decisions-he must have a common master; must be engaged in a common employmeut, co-operating together for a common end with the employee injured. The simplest test of a vice-principal is this: is he in the negligent act itself, doing, by authority of master, one of the duties which the law requires the master to perform; if so, he is a vice-principal, otherwise not, whatever his grade may be. But the English courts, before the Employers' Liability Act, limited the master's liability for defective machinery occasioning injury very much. Says Lord Cairns, in Wilson v. Merry, L. R., 1 H. L. Sc. 326: What the master, in my opinion, is bound to his servant to do, in the event of his not personally superintending and directing the work, is to select some proper and competent person to do so, and to furnish him with adequate materials and resources for the work. When he has done this, he has, in my opinion, done all that he is bound to do.” It is manifest that under such rule the master may delegate his duty to repair to another or others, employed in the general business for that purpose, and

escape liability for the defaults or neglects of such employees, on the ground that they are co-servants of other employees, and that he himself has done all that in the law he is bound to do. Judge Knowlton, in Moynihan v. Hills Co., 38 Alb. L. J. 280, classifies repairs thus: 1st. Ordinary working repairs, or those which are incident to the servant's principal employment. In making or selecting them he is co-servant with his fellow-laborers. 2d. Those in which repair or reconstruction of a machine is necessarily of such a kind as is commonly done, or may properly be done, under the direction of the master, by servants employed in their general business. The negligence of repairers is negligence of co-servants. But to release the master from liability, he himself, by himself or agent, must not be negligent in supervising the repairs and the repaired machine. 3d. Repairs done outside of the business. There is no intervening duty between the master and servant here, and the former is liable if repairs are negligently made.

Judge Finch thus describes the repairs of the first class in Cusgan v. Marston, 44 Alb. L. J. 52: "When the facts show that in the understanding of both parties, a class of ordinary repairs are to be made by the servants, with materials furnished by the master for that express purpose; that they and he regard it as a detail of their own work; that it is something entirely within their capacity, and not dependent upon the skill of a special expert, and that the necessity springs from their daily use of the appliance, occurs at different and unknown periods in their service, and is open to their observation in the absence of the master, the inference is inevitable that the contract relation between the parties makes it the duty of the servants and a detail of their work to correct the defect when it arises, with material furnished."

The facts of that case serve excellently well to illustrate the point I desire to make. Plaintiff's intestate was killed while loading coal into buckets to be raised by a derrick, by the breaking of a rope, which allowed the bucket to fall upon him. The lengths of rope used were called "falls," and would last from fourteen to twenty days. Defendants kept a large number on hand. Usually the engineer or his assistant made the application, but any one could give the notice and get the new full. Omitting consideration of the effect of knowledge of defect, with means to remedy it, upon the question of servant's contributory negligence, and considering only the character of the repairs, they are obviously those which it was the duty of servant to make. The defect was a mere working one-one which under his contract of employment he was as much bound to repair as to load coal into his bucket. То remedy it was in the scope of his employment. In contrasting the facts of this case with those of Webber v. Piper, 38 Alb. L. J. 57, in the same court, the distinction between the two classes of repairs, Nos. 1 and 2, is made more clear. In the latter case plaintiff was injured on account of the neglect of a servant, employed by the master for that purpose, to reset and sharpen a circular saw, the master having provided him with adequate appliances for that purpose. The New York court, in this also agreeing with the Massachusetts court, requires the active supervision of the master himself, or by an agent, over the details of his business. Coppins v. Railroad Co., 43 Alb. L. J. 78.

It seems to the writer, with the utmost deference, that the evolution of the doctrine governing the relations of master and servant with reference to the second class of repairs, has been toward favoring the master at the expense of the rights of the servant. Whatever may be said to the contrary (see Rogers v. Ludlow Manuf g Co., 35 Alb. L. J. 450) the master's duty to repair is an absolute one. He may delegate it, but those to whom he does are pro hac vice, acting for him.