A. Yes. Q. Did you know who brought it or destroy the property. In order, therefore, there? A. I did not. Q. Did you have any to convict the plaintiff under this section, it idea who brought it there? A. What my ideas was necessary to show that he took out the are is not the question; it is what I know. closet that was in there without right so to Q. Just answer the question. Did you have do, and for the purpose of injuring or deany idea who brought it there? A. You stroying the premises. His work had not might have brought it there for all I know. been accepted by the owner, or by the deQ. That is not what I ask you. Did you fendant, the contractor. He had the right to have any idea who brought it there? By the enter the premises in a peaceable manner, Court. Who did you suppose brought it there and make his work conform to that required that morning? A. Why, anybody might have by the contract; and if this was his purpose brought it there. By the Court. You sup- and intent, and it was so understood by the posed anybody brought it there? A. Why, defendant, there was no probable cause existcertainly. Q. Who did you think brought iting which justified his arrest. Payment of there? A. My inference would be that An- the balance under the contract had been rederson bronght it there, but I did not know fused. A suit had been commenced to rethat he did. Q. Did you form some idea cover such balance. In order to recover, it about what that was doing there, or who was important for the plaintiff to show that brought it there, when you stooped down to he had performed his work in accordance carry it out? A. I certainly knew that the with the requirements of the contract. The water-closet had no business there. * plaintiff had the right to correct his work so Q. What did you suppose the plaintiff brought that he could make good bis claim, and esit there for? A. That is his business, and tablish his right to recover, in another acnot mine. I don't know what he brought it tion, if not in the one pending. The defendthere for. Q. Did you have any idea on that ant sought to defeat him in the action pendsubject at all? Witness. Well, I appeal to ling, as is apparent from the answer interthe court if I ain to answer what my ideas are. posed, in which it was charged, as we have Court. Yes, certainly. Q. Did you have any seen, that the materials furnished were not idea what he brought it there for? A. He according to the specifications, and that the miglit have had a great many purposes. By work was not done according to the contract. the Court. What was your idea that he There was a reason, therefore, why the debrought it there for? A. At the morning fendant did not wish the closets changed call I had no idea in the excitement. I did while that action was pending. The plaintiff not stop to ask what he wanted to do with did not prosecute that action further, but alit.” It consequently appears to us that the lowed it to go down by not appearing on the plaintiff was there upon the premises mak- adjourned day. Thereafter the defendant ing a change of the water-closets so that they consented that the plaintiff might exchange would conform to the specifications attached the closets, which was done. We are thereto his contract, and that the defendant knew fore of the opinion that a question was prefrom what had been told him by the plumber sented which should have been submitted to Wedge on the Saturday before, and what he the jury, and that the court erred in grantsaw and heard on the morning in question, ing the motion to dismiss the complaint, and that such was the plaintiff's purpose and in- by refusing the plaintiff's request to go to tent.

the jury upon the question of probable cause Was there, therefore, probable cause, which and malice. The judgment should be rewould justify the arrest? The trial court versed, and a new trial granted, with costs to appears to have reached its conclusion upon abide the event. a strict construction of the Code; for in dismissing the complaint the court says: “I BRADLEY, J., (dissenting.) The defendthink this constitutes an offense within the ant was permitted to act on appearances; meaning of the section of the Code which and if they were such as to furnish reasonhas been called to my attention. If it had able grounds of suspicion, supported by cirnot been for that section, I should have held cumstances to warrant the belief of a cauthe other way." The section referred to tiously prudent man that the plaintiff was provides as follows: “A person who willfully guilty of the offense charged, he was justified * * * severs from the freehold of another, or in causing his arrest, although the plaintiff of the people of the state, any produce thereof, was innocent of the charge. The question or anything attached thereto, * * * is pun- whether or not there was any evidence tendishable by imprisonment not exceeding six ing to support the allegation of want of probmonths, or a fine not exceeding two hundred able cause was for the court; and, if there and fifty dollars, or both.” Pen. Code, $ 640. was not, the complaint was properly disThis provision is not, however, to be con- missed; but if there was any evidence, or strued to include persons who intentionally inference derivable from it, which would sever from the freehold with the knowledge justify the conclusion of want of probable and consent of the owner, or those who sever cause, the question was one of fact for the under a legal right. It was designed to meet jury. Masten v. Deyo, 2 Wend. 424; Foshay the cases where a person willfully and malici- v. Fergueson, 2 Denio, 617; Bulkeley v. Ketously severs from the freehold, without right, eltas, 6 N. Y. 384; Besson v. Southard, 10 for the purpose and with the intent to injure N. Y. 236; Cari v. Ayers, 53 N. Y. 14; Heyne

v. Blair, 62 N. Y. 19; Fagnan v. Knox, 66 | at the time in question, or whether there N. Y. 525. The offense with which the was any evidence in support of that fact; for plaintiff was charged was within the statute if the defendant was at the time advised that which provides that “a person who willfully the plaintiff was not engaged in a criminal * * *

severs from the freehold of another, act, although there were appearances indior of the people of the state, any produce there cating it, he was not justified in causing the of, or anything attached thereto, * * * is arrest and prosecution of the plaintiff. Fagpunishable," etc. Pen. Code, $ 640. The term nan v. Knox, 66 N. Y. 525. And if, from “willfully” is not defined by the statute. The what he observed and learned upon the occadefinition given to it by section 718 in the sion, he was not justifier in entertaining the original act (Laws 1881, c. 676) was elimi- honest belief that the plaintiff was commitnated by amendment in 1882. Its meaning ting any crime, his prosecution was without is not an arbitrary one, applicable alike in all probable cause. 2 Greenl. Ev. § 455; Shafer its relations; but its import is dependent v. Loucks, 58 Barh. 426, and cases there cited; somewhat upon its connection, by which the Merriam v. Mitchell, 13 Me. 439; Grinnell purpose of its use is to be ascertained. This v. Stewart, 32 Barb. 544. I am inclined to provision of the Penal Code was intended to think there was evidence sufficient to require take the place of that of the prior statute, the submission of that question to the jury. which was that every person who should The defendant was a party to the contract willfully commit any trespass by “maliciously with the plaintiff; and when he went to the severing from the freehold any produce stable on that occasion, and before the arrest thereof, or anything attached thereto," should of the plaintiff, his attention was called to be guilty of a misdemeanor, etc. 2 Rev. St. the closet apparatus which the plaintiff dep. 693, § 15. The Code, as amended, I think, signed to substitute for the one before put in. was not intended to materially modify that The inference was permitted from all that provision of the Revised Statutes. The word may have been or was seen, and what oc*willfully” is common in criminal law, and curred, that the defendant was advised of or there its import is extended beyond the plain understood the purpose for which the plain. meaning of “intentionally” or “designedly,"tiff had it there, and the use he was proceedand embraces within it a certain degree of ing to make of it in the work; and that, inmalice or purpose to do injury; and there is stead of willfully severing anything from the involved in the statutory offense the element freehold, he was proceeding to change the of criminal intent. Kilpatrick v. People, 5 apparatus referred to. The facts are so fully Denio, 278, 281; Wait v. Green, 5 Parker, referred to in the opinions of Judges POTTER Crim. R. 185; Com. v. Williams, 110 Mass. and Haight that it is unnecessary to make 401; Com. v. Kneeland, 20 Pick. 206; 1 Bish. any further reference to them here. I think Crim. Law, § 428, p. 272. The conclusion a new trial should be granted. was therefore warranted that the plaintiff was guilty of no crime in what he did, but

BROWN, J., concurs. that he was acting in good faith to make the work which he had undertaken to perform,

(116 N. Y. 416) conform to the requirement of his contract. TISDALE V. DELAWARE & HUDSON CANAL It is true that he previously assumed to have

Co.1 completed his contract; but, since the closet was not such as by the specifications he had (Court of Appeals of New York, Second Divis

ion. Oct. 29, 1889.) agreed to put in, he had entered upon the premises, and was seeking to make the change TRIAL-READING PLEADINGS-Cost OF APPEAL. in that respect, when he was arrested by the 1. In an action against a railroad company for direction of the defendant. The plaintiff's injuries to a passenger, when defendant in its anrelation to the transaction was different than swer denies information as to certain allegations

in the complaint, and afterwards stipulates that it it would have been if he had not bad the con- will admit its liability “for damages in conse. tract to do the plumbing. It was essential quence of the fall of the railroad bridge, to his claim for service that he perform the thus narrowing the issues to the plaintiff's injury, work substantially as he had agreed to do it; proper for the plaintiff's attorney, in summing up,

and the amount of damages suffered by her,” it is and the fact that he had before announced to read portions of the answer, and comment its completion did not deny to him the right thereon, as showing what facts were admitted. to seek the opportunity to correct any error he Y. $3251, for damages by way of costs for the de

2. An application under Code Civil Proc. N. had made in the work, if it could be done lay caused by an appeal, will not be granted where without prejudice to the other party or owner the appeal presents debatable questions which of the property. The fact, however, that he had not been settled at the time it was brought. had entered by forcible means to do it was a

Appeal from supreme court, general term, circumstance, unexplained, which enabled third department. the defendant to believe that he was unlaw

Action for personal injuries, brought by fully there, engaged in a criminal trespass, Anna S. Tisdale against the Delaware & within the statute. But the question is Hudson Canal Company. The plaintiff alwhether a reasonably prudent or cautious leged in her complaint that in October, 1883, man, under the circumstances, would have the defendant, a railroad corporation, operobserved or been advised of the actual purpose of the work the plaintiff was engaged in 1 Affirming 42 Hun, 654, mem.

ated a railroad passing over a bridge at Fortjand, for aught that appears, they may have Edward, N. Y.; that on the 22d of that been moderate, fair, and harmless. month said bridge, through the negligence of The object of pleadings is to define the the defendant, gave way as a train of its cars issue between the parties; and, when an issue was passing over; that said train was there- of fact is tried before a jury, they cannot apby wrecked, and the plaintiff, a passenger preciate the evidence as it is given, unless thereon, was thrown therewith about 30 feet they know the nature of the issues to be deinto the bed of the feeder below, and perma- cided. Hence it is customary and proper for nently injured. The defendant, by its veri- counsel, in opening, to tell the jury what the fied answer, denied any knowledge or infor- issues are, as well as what they expect to mation sufficient to form a belief as to the fol-prove. In some states the case is ordinarily lowing allegations of the complaint: “That opened by reading the pleadings. 1 Thomp. plaintiff was a passenger on the cars of de- Trials, § 260. The pleadings are before the fendant October 22, 1883, or at any other court, not as evidence, but to point out the time; that plaintiff was injured in the acci-object to which evidence is to be directed. dent at Fort Edward, October 22, 1883, or at while a party sometimes formally reads in any other time or place; that plaintiff was evidence the pleading of bis adversary, or injured for life, suffered pain or anguish, or some part thereof containing a distinct and had her clothing damaged; that she has been unconditional admission, no legal advantage put to expense, or will be, to cure herself of is gained thereby, as the admissions, properly said alleged injuries." The defendant fur- so called, contained in an adverse pleading ther denied, upon information and belief, admit of no controversy, and require no proof. “that it had been guilty of any carelessness Paige v. Willet, 38 N. Y. 28; White v. Smith, or negligence in failing to build or maintain 46 N. Y. 418; Cook v. Barr, 44 N. Y. 156, a bridge in a good and safe condition, and of 158; Fleischmann v. Stern, 90 N. Y. 110, 114; strength sufficient to enable its cars and lo- Dunham v. Cudlipp, 94 N. Y. 129, 133; Code comotives to pass over the same in safety, at Civil Proc. $ 522. It is the duty of the court, Fort Edward, or elsewhere, and in allowing in charging the jury, to state the issues of the same to become or remain in an unsafe, fact raised by the pleadings. While this is insecure, or dilapidated condition, or by rea- commonly done in a summary way, by statson of any act, omission, or thing whatso- ing the precise questions of fact to be deever;

that it has been guilty of cided, no reason is perceived why it may not any carelessness, negligence, breach of duty, be done by reading and analyzing the pleador violation of agreement with or towards ings, when they are not complicated, and this plaintiff, or that plaintiff has been in- thus pointing out the issues, and the posijured or damaged in any sum by reason of tion of the respective parties. It is evident, any fault of theirs." Before the commence- therefore, that the established practice does ment of the trial, the defendant stipulated in not require that the contents of the pleading's writing that it would “admit its liability to should be concealed from the jury, as im. plaintiff for dainages in consequence of the proper evidence is required to be kept from fall of the railroad bridge over the feeder at their attention. On the contrary, as the Fort Edward; thus narrowing the issues in pleadings mark the boundaries within which this case to the plaintiff's injury, and the the proof must fall, counsel upon either side amount of damages suffered by her.” Judg- are permitted to point out where they claim ment was rendered on verdict for the plain- those boundaries are, before they introduce tiff, and defendant's motion for new trial was their evidence. So, when sumining up, they denied. The judgment and order were af- restate the issues in order to logically apply firmed by the general term, and defendant the evidence to them. If they do not agree appeals.

as to the construction of the pleadings, a E. L. Fursman, for appellant. Amasa J. question of law is presented, and it becomes Parker, for respondent.

the duty of the court to construe them, to de

termine their legal effct and meaning, and to VANN, J., (after stating the facts substanz- instruct the jury accordingly. In this case tially as above.) Upon the trial of this ac- the answer was modified, but not superseded, tion, the counsel for the plaintiff, while ad- by the stipulation; and in order to state the dressing the jury after the close of the evi- issues, and point out what was admitted and dence, was reading a portion of the answer, what denied, it was necessary to construe the when the counsel for the defendant objected complaint, answer, and stipulation togetlier. upon the ground that it was not in evidence, while the stipulation narrowed the issues to and was inadmissible and immaterial under the injury inflicted upon the plaintiff, and the the stipulation in the case. The court over- amount of damages sustained by her, as it ruled the objection, and gave the defendant was alleged in the complaint, and not denied an exception. The plaintiff's counsel there by the answer as modified, that she was preupon, by permission of the court, continned cipitated with the falling bridge and train a to read the answer, or portions thereof, to distance of about 30 feet into the bed of the the jury, and also made comments upon it; feeder, this became an admitted fact, imthe defendant duly excepting. The record portant to be known by the jury, as it bore before us does not disclose the nature of the directly upon the extent of the injury. The comments made by counsel upon the answer, fright naturally caused by being thrown that

distance, amidst the crash of the breaking | have also considered the claim of the respondbridge and falling train, was also important. ent that the court should award damages, by

Was it not within the discretion of the way of costs, for the delay caused by this aptrial court to permit counsel, in summing up peal, under section 3251 of the Code of Civil for the plaintiff, to call the attention of the Procedure; but, as the appeal presented dejury to this allegation of the complaint, and batable questions that had not been settled to show by reading, and, by proper comments, at the time it was brought, we do not think fairly explaining, the answer, that it was that the application should be granted. The not denied ? It does not appear that more judgment should be affirmed, with costs. All than this, or that even as much as this, was concur, except BRADLEY, J., who concurs in done upon the occasion in question. We are result, and POTTER, J., not sitting, not informed by the record how much, or what part, of the answer was read, nor what

(117 N. Y. 285) comments were made by counsel thereupon.

MOYNAHAN V. WHEELER et al. The part read may have been unimportant, (Court of Appeals of New York. Nov. 26, 1889.) and the comments made may have been im

INJURIES BY VICIOUS ANIMALS. material. No presumption of harm arises

1. A complaint under Laws N. Y. 1872, c. 776, from the fact that a party has read a portion which makes it unlawful for cows to run at large of his opponent's pleading to the jury, and in any public place, alleging that defendants' cow

was carelessly permitted to run at large on a public has commented upon the same. Cases may highway, where she knocked plaintiff down, is anarise where such a course, if allowed by the swered by showing that while defendants' servant court after objection, would be palpably in- was lawfully leading the cow through the streets jurious, and furnish good ground for an ap- control, and while so at large inflicted the injury.

she was set upon by dogs, and escaped from his peal; but, in order to be available, a com 2. Defendants are not liable for such injury on plete history of the transaction, including all an allegation that they knew the cow to be unruly that was said and done, should be spread be- and vicious, and negligently permitted her to be fore the appellate court; otherwise, it would that the cow had previously done similar or any

led through the street, without proof by plaintiff be unable to determine whether the alleged mischief, or that she was of an ungovernable temerror was prejudicial or not. If the court per, or that defendants knew her to be unruly. should permit an improper question to be Appeal from city court of Brooklyn, genasked, an exception based thereon would be eral term. worthless, unless the answer of the witness

Action by Janet Moynahan, an infant, by was stated, as it might have been irresponsive her guardian ad litem, Daniel Moynahan, and immaterial. Even if the record showed against Thomas E. Wheeler and others, for that the question was answered, the exception an injury to plaintiff caused by a cow. A would still be unavailing, unless the charac-verdict for plaintiff was affirmed at the genter of the answer appeared. So the com- eral term, and defendants appeal. ments of counsel for the plaintiff in this case Wm. Parker, for appellants. Chas. J. may have been injurious to the defendant, but Patterson, for respondent. they are not presumed to have been so, and, as they have not been presented to us, we are DANFORTH, J. It is not lawful for any unable to determine whether they were or cow to run at large in any street or public not.

This position is supported by the an- place in this state, (Laws 1872, c. 776,) and thorities, so far as the subject has been before it was assumed by the parties that the origthe courts. Willis v. Forrest, 2 Duer, 310, inal complaint stated a good cause of action 317; Rowe v. Comley, 2 N. Y. Civil Proc. by alleging that on the 1st of April, 1885, a 424, 427; Colter v. Calloway, 68 Ind. 219; cow owned by the defendants was carelessly Boots v. Canine, 94 Ind. 408. In a case re- permitted to run at large and unrestrained cently before this court the record shows that, upon a public highway in the city of Brook“while addressing the jury, the counsel for lyn, and, being so at large, knocked down the plaintiff was about to read to the jury a and injured the plaintiff. But these circumportion of the defendant's answer, when the stances were explained by evidence. It was defendant's counsel objected upon the ground I made to appear that the defendant Wheeler that the answer was not in evidence, and had agreed to sell and deliver the cow to the that it was improper to read the same. The other defendant, Farrell, and, in pursuance court overruled the objection, and the plain- of their engagement, one Matt Finnan, a tiff's counsel read to the jury, and comment- person long accustomed to that kind of busied upon, certain parts of the answer, to all ness, was employed to lead the cow to the which the defendant's counsel duly except- purchaser. For that purpose he put a suited,” —thus presenting a state of facts almost able rope around her horns, and with that in identical with those now under consideration. hand started for Mrs. Farrell's. Before The point was not regarded as of enough reaching Farrell's place, however, two dogs weight to reverse the judgment, as it was af- violently seized upon and frightened the cow. firmed both by the general term and the court She kicked and knocked down Finnan, pulled of appeals. Huston v. Gilbert, 40 Hun, 638, away from him, and ran off. While thus at 113 N. Y. 622, 20 N. E. Rep. 876.

large, and beyond his control, she inflicted We have examined the exceptions relating the injury complained of. This answered to the admission of evidence, but found noth- the complaint. But the plaintiff was pering that should disturb the judgment. We'mitted to amend by adding that “the cow

was to the defendants' knowledge unruly and Bill by Annie Harding, as executrix of vicious, and with this knowledge they negli- Henry A. Whitten, against Mary A. Littlegently permitted her to be led and driven by hale and Sarah A. Whitten, for instructions their servant through the streets, where she as to the disposition of certain money held by was allowed to escape from control.” The plaintiff as executrix, and claimed by each of plaintiff, however, failed to establish that the the defendants. The sum in controversy was cow had ever before done mischief similar to the proceeds of a policy of life insurance isthat complained of, or of any kind; or that sued to plaintiff's testator by a corporation she was by habit or nature of an ungovern- doing business on the assessment plan, which able temper; or if from her present conduct plaintiff claimed as part of the testator's esthat could be inferred, no evidence was given tate, and which was sought to be recovereil that the defendants had knowledge or notice by defendants, as the daughter and widow, that she was unruly or had done similar acts. respectively, of testator. There was judgment In the absence of that proof, the defendants for plaintiff, and defendants appeal. cannot be held liable. Van Leuven v. Lyke, W. C. Parker and E. L. Barney, for ap1 N. Y. 515. In such an action for injury pellants. L. L. B. Holmes and E. D. Stetdone to the person by domestic animals the son, for appellee. owner must be shown to have had notice of their viciousness before he can be charged, or KNOWLTON, J. The statutes of 1885, c. that he failed to use in their management the 183, made important changes in the law relreasonable care which a man of ordinary ative to life and casualty insurance on the prudence might be expected to exercise un- assessment plan. Section 1 is as follows: der like circumstances. The plaintiff's case “Every contract whereby a benefit is to acpresented both alternatives, but in respect to crue to a party or parties named therein, upeach the proof failed. It is not necessary to on the death or physical disability of a perconsider the other points made by the appel- son, which benefit is in any degree or man. lant. The one discussed sustains the appeal, ner conditioned upon persons holding similar and upon another trial the other questions contracts, shall be deemed a contract of inmay not arise. The complaint should have surance on the assessment plan, and the busbeen dismissed for failure of proof; and be-iness involving the issuance of such concause it was not, the judgment in favor of tracts shall be carried on in this commonthe plaintiff should be reversed, and a new wealth only by duly-organized corporations, trial granted, with costs to abide the event. which shall be subject to the provisions and All concur.

requirements of this act; but nothing herein

contained shall be construed as applicable to (150 Mass. 100) HARDING V. LITTLEHALE et al.

organizations which conduct their business

as fraternal societies, on the lodge system, or (Supreme Judicial Court of Massachusetts. Bristol. Nov. 13, 1889.)

to organizations which do not employ paid

agents in soliciting business, or limit their INSURANCE-FOR BENEFIT OF INSURED.

certificate-holders to a particular order or 1. St. Mass. 1885, C. 183, relating to insurance on the assessment plan, defines, in section 7, a con- fraternity, or to the employes of a particular tract of insurance on the assessment plan as any town or city, designated firm, business house, contract whereby a benefit is to accrue to a party or corporation; or to organizations which are or parties named therein upon the death of a per: unincorporated, and limit the amount of son, which benefit is in any manner conditioned upon persons holding similar contracts. Held, every certificate issued to a maximum amount, that the chapter authorized the insurance of an ap- not exceeding five hundred dollars on any plicant for his own benefit, the proceeds of the pol- one risk. If the benefit is to accrue through icy going to his personal representative, for the benefit of his estate; sections 10, 11, forbidding in the death of the insured person, the contract surance for the benefit of a person not having an shall be of life insurance; if through the acinsurable interest in the insured life, and exempt-cidental death only, or the physical disability, ing from attachment money paid under the policy, from accident or sickness, of the insured, it

inconsistent with such construction. 2. Where the policy of insurance provides for shall be of casualty insurance.” the accumulation of an emergency fund, as re- part of the section is a broad and comprehenquired by St. 1885, c. 183, $ 8, and in other particu- sive definition of insurance on the assessment lars conforms to the requirements of that chapter, the corporation making the contract must be plan. The last part of the section marks the deemed to be acting with the enlarged powers con- distinction between life insurance and casualferred thereby; it being provided by section 3 that ty insurance. In the middle of the section, all companies then existing for the purposes con- certain classes of organizations are excepted templated by that chapter may exercise the rights and powers conferred by the chapter as if reincor- from the provisions of the act. The second porated thereunder.

section provides for the formation of corpo3. Where, in such policy, the corporation agrees rations to carry on the business of life or to pay “to the executors or adminstrators of said member, in trust, however, for, and to be forth-casualty insurance on the assessment plan. with paid over to, his heirs at law,” but in the ap- Section 3 relates to existing corporations enplication, which is expressly made part of the con- gaged in transacting that business, and autract, the contract is stated to be for the benefit of thorizes the reincorporation of such corporathe applicant himself, in the absence of anything else to show an intention to make the heirs bene- tions, with a proviso “that nothing in this act ficiaries, the proceeds of the policy must be admin-contained shall be construed as requiring or istered as part of the estate of the insured.

making it obligatory upon any such corporaAppeal from superior court, Bristol county. 'tion to reincorporate; and any such corpora

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