future purchases, and make the following | at the trial of said cause, excluding conversastatement of present financial condition, tions between defendant's son and the witwhich statement is made for the purpose of showing means and ability to pay. ness Warren at the time defendant's son signed plaintiff's Exhibit A, as appears on page 67 of the transcript of testimony, etc., filed in said court. (4) The defendant excepted to a ruling of said justice at the trial of said cause, denying defendant's motion that a verdict be directed for defendant, as ap "Value of merchandise (stock of goods on pears on page 77 of the transcript of testihand) $1,600. mony, etc., filed in said court. (5) The de"Value of horse, wagons, and carriages fendant excepted to a ruling of said justice $500. at the trial of said cause, granting plaintiff's motion that a verdict be directed for the "Cash $800. "Bank account at Producers' National Bank plaintiff, as appears on page 80 of the trans"Leases amounting to $300. cript of testimony, etc., filed in said court." "Owe for merchandise on open account $60. As to the first exception: The question "Net worth after making allowances for had been before asked, answered, and objecbad bills and shrinkage in merchandise, tion made by plaintiff's counsel (page 36). above all liabilities $3,200. In the colloquy between court and counsel, "Have insurance in force upon merchandise Mr. Crane said: "Mr. Carroll is mistaken amounting to $3,000. from the questions and answers. The con"The above is a true statement of my pres-versation with Mr. Yanes was in this man's ent financial condition and shows my means and ability to pay, and by signing this statement, certify that I have carefully read all of the foregoing and understand the full import and tenor thereof. In the event of any material change in my financial affairs I agree to notify you at once, and until such notice you may rely upon this statement." This statement was signed, "Harry Whiteman, Pr Abe Whiteman." and was witnessed under date of January 4, 1909, by Max S. Warren. house. The Court: Mr. Carroll says it was The The evidence shows that these statements were false; that, instead of the defendant having $1,600 worth of merchandise at the time, he had about $700 or $800 worth; and, instead of "certain horse, wagons, and carriages amounting to $500," he had a horse and one wagon which cost him $300; and, instead of $800 in cash, he had no cash. At the conclusion of the evidence for plaintiff, the defendant offered no evidence, and moved for the direction of a verdict for the defendant. This motion was denied, and the defendant excepted. The plaintiff then moved The second exception is without merit. for the direction of a verdict for the plaintiff. The evidence showed that Abe Whiteman This motion was granted, and the defendant was the partner of the defendant; that he excepted. The jury under the direction of did the buying; that the defendant sent him the court rendered a verdict for the plaintiff to Boston to buy goods on credit; that he for $79. The case is now before this court went into plaintiff's store and selected a on the defendant's bill of exceptions. The ex- large bill of goods, larger than the defendceptions are: "(1) The defendant excepted to ant had bought there before; that Max a ruling of said justice at the trial of said Warren, a salesman of the plaintiff, told cause, excluding that part of a conversation him that it would be necessary to have some between defendant and the witness Yanes knowledge of his financial standing, and, which occurred outside of Mr. Crane's office, after his verbal statement as to the financial as appears on page 38 of the transcript of standing of the defendant, told him that testimony, etc., filed in said court. (2) The from that he was entitled to credit, but that defendant excepted to a ruling of said justice he (Mr. Warren) wanted something more at the trial of said cause, admitting in evi- sure, and Abe Whiteman then offered to dence a statement in writing made by defend- sign a statement, and did sign the stateant's son (plaintiff's Exhibit A), as appears ment offered in evidence. The statement on pages 50 and 54 of the transcript of testi-purported to be made to Colman Levin & mony, etc., filed in said court. (3) The de Co. The evidence showed, however, that business, dealing in carpets, etc., under the | of his agent, not only when he has previousname of Colman Levin & Co., and dealingly authorized or subsequently ratified the in stoves and ranges, in the same store, un-act, but even though he may have expressly der the name of the Boston Foundry Compa- forbidden it, if it has been committed by the ny. The statement was properly admitted. agent in the course and as a part of his emThe third exception is to the exclusion of ployment. Applying these principles of the following question and answer: "158 agency, therefore, a firm is liable for any Q. Didn't he tell you that his mother had loss or injury caused to any person not a $800 which he thought his father might be member of the firm, or for any penalty inable to get from her at a pinch? A. That curred by any wrongful act or omission of a is absolutely untrue." This was objected to partner, acting in the ordinary course of the by plaintiff's counsel, and the objection was business of the firm, or with the authority sustained. Max S. Warren was being cross- of his copartners. The extent of the firm's examined as to the making of the written liability is the same as that of the partner statement by Abe Whiteman, and had testi- so acting or omitting to act. Thus, all the fied as follows: "156 Q. There was some- members of a firm are liable for defamatory thing said about $800, wasn't there? A. statements made to aid the firm business, Something said about $800? 157 Q. Yes, for a malicious prosecution instituted for sir; cash? A. He filled out the statement the purpose of furthering such business and to his own ideas, just what he claimed to by its authority, or for fraud committed by have had. He put it down in the statement." one of them in the ordinary conduct of their Then followed the question and answer ob- business, although the others do not parjected to. It is difficult to see why the plain-ticipate in the fraud and have no knowledge tiff objected, and equally difficult to see of it." The rule is stated in Cyc. as follows: what advantage the defendant could derive "The firm is liable for the wrongful acts or from the question and answer if allowed to omissions of a partner, while he is acting in stand. It is true that great latitude is allow- the ordinary course of the firm's business, ed in cross-examination, and we do not think or with his copartner's authority." 30 Cyc. that a ruling allowing the question and an- 523. "For torts committed by a partner, or swer to stand would have been erroneous. by any agent for whose misconduct a partHowever, as it is clear that the ruling, al-nership is liable, the injured party may, at though against him, could only be of benefit to the defendant, he takes nothing by his exception. As to the fourth exception: The evidence sufficiently justified the denial of the defendant's motion that a verdict be directed for the defendant. As to the fifth exception, viz., to the decision of the court granting the plaintiff's motion that a verdict be directed for the plaintiff: This raises the question whether the defendant is liable in an action of deceit on the representations made by Abe Whiteman, his partner; he (the defendant) having no knowledge of said representations at the time they were made. It is shown by the evidence that his son Abe conducted the business for him; that he bought goods for him; that he sent him to Boston to get goods; that he told him to get goods on credit. He says he did not authorize Abe to make any representations in order to buy goods on credit, and that he did not authorize him to make any such statement. By the great weight of authority, it is well settled that all the members of a firm are liable for fraud committed by one of them in the ordinary conduct of the firm's business, although the others do not participate in the fraud and have no knowledge of it. 22 Am. & Eng. Ency. of L. 166, 167, states the rule as follows: "It is well established in the law of agency that a principal is civilly liable for the tortious or fraudulent act, whether criminal or not criminal, his election, sue all the partners or any one or more of them." 30 Cyc. 566. “Supposing a tort to be imputable to a firm, an action in respect of it may be brought against all or any of the partners. If some of them only are sued, they cannot insist upon the other partners being joined as defendants, and this rule applies even where the tort in question is committed by an agent or servant of the firm and not otherwise by the firm itself." Lindley on Partnership, p. *283. This rule is supported by numerous cases. See Murphy v. Coppieters, 136 Cal. 317, 68 Pac. 970; Tenney v. Foote, 95 Ill. 99; Patterson v. Seaton, 70 Iowa, 689, 28 N. W. 598; Banner v. Schlessinger, 109 Mich. 262, 67 N. W. 116; Durant v. Rogers, 87 Ill. 508; Morehouse v. Northrop, 33 Conn. 380, 89 Am. Dec., 211; Lark v. Stearns, 1 Metc. (Mass.) 560; Mode v. Penland, 93 N. C. 292; Clark v. Ball, 34 Colo. 223, 82 Pac. 529, 2 L. R. A. (N. S.) 100, 114 Am. St. Rep. 154; Hobbs & Tucker v. Chicago Packing, etc., Co., 98 Ga. 576, 25 S. E. 584, 58 Am. St. Rep. 320; Brown v. Foster, 137 Mich. 35, 100 N. W. 167; Hall v. Younts, 87 N. C. 285; Grissom v. Hofins, 39 Wash. 51, 80 Pac. 1002; U. S. v. Baxter (C. C.) 46 Fed. 350; Dudley v. Love, 60 Mo. App. 420. The direction of a verdict for the plaintiff on the evidence submitted was proper. The defendant's exceptions are overruled, and the cause is remitted to the superior court, with direction to enter judgment for the plaintiff upon the verdict. (30 R. I. 551) BAIN v. RHODE ISLAND CO. (Supreme Court of Rhode Island. July 5, 1910.) MASTER AND SERVANT (§ 261*)—INJURIES TO SERVANT-PLEADING. In an action for injuries to a servant employed in a car house, the declaration alleged that in certain places there were pits into which parts of cars to be repaired could be lowered, and that two certain pits were connected by a passage, which, when not in use, was covered by planks forming a removable floor; that one of the planks was warped or twisted throughout its length; that plaintiff, who was a repairman, placed a bearing on the defective plank, and while he was standing near the bearing another servant stepped on such plank, whereby the bearing was overturned and fell upon plaintiff, injuring him. The declaration alleged that plaintiff was in the exercise of due care. Held, that a demurrer was properly sustained; plaintiff having for his own convenience placed the bearing on the flooring made to walk on, and it being apparent that plaintiff's opportunity to observe the condition of the plank was perfect. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 849-854; Dec. Dig. 8 261.*] Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge. Action by Edgar Bain against the Rhode Island Company. A demurrer was sustained to the declaration, and plaintiff brings exceptions. Exceptions overruled. Thomas A. Carroll and Walter P. Suesman, for plaintiff. Joseph C. Sweeney and G. Frederick Frost, for defendant. BLODGETT, J. This cause is before the Court upon the plaintiff's exceptions to the decision of the superior court sustaining a demurrer to the following sole count in the declaration, viz.: "For that, whereas, heretofore, to wit, at said Providence, on, to wit, the 2d day of October, 1909, and for a long time prior thereto, the defendant was a common carrier, engaged in carrying passengers for hire in cars propelled by electricity; and the said defendant then and there owned, possessed, and controlled certain cars and a car house, so called, on Elmwood avenue, in the city of Providence, in said county, and in said car house was a pit room, so called, with car tracks running parallel with each other and level with the floor of said car house; that between the rails of said tracks in certain places were open spaces or pits, in one of which pits was a hydraulic pump or lift, so arranged that motors and other parts of defendant's cars could be lowered into said pit by means of said hydraulic pump; that near said hydraulic pump, and between two of said pits, was a falls and tackle for the purpose of removing wheels, axles, etc., from said cars, and for convenient handling of falls and tackle the two pits on either side thereof were connected by an open space or passage about six feet wide; that said open space, when not in use, was covered by certain planks or boards, lying side by side parallel with said tracks, and resting unfastened on supports, so as to form a removable floor or cover for said open space between said pits. And on, to wit, said 2d day of October, 1909, plaintiff was in the employ of said defendant in said car house as repairman, and in the course of his said employment he was instructed by said defendant to work upon certain motors, bearings, and other parts of cars near said removable floor or cover. "And it thereupon became and was the duty of the defendant to provide a reasonably safe place for the plaintiff to work, so that plaintiff might not be exposed to any unreasonable or unnecessary danger to life or limb in the course of his said employment; yet the said defendant, not regarding its duty in this behalf, did not provide a reasonably safe place for the plaintiff to work, but violated its duty in this: That the plank or board in said removable floor or cover, lying nearest to said hydraulic pump, was dangerous and defective, because it was warped or twisted throughout its length, so that, if one corner thereof was depressed, the corner thereof diagonally opposite would rise for a distance of, to wit, two inches, and when said pressure was removed said plank would regain its normal position by its own weight. And plaintiff says that he did not know that said plank was warped, or twisted, or defective, or dangerous, but that the defendant knew, or by the exercise of reasonable care and diligence might have known, that said plank was warped, twisted, defective, and dangerous. "And the plaintiff says that on, to wit, said 2d day of October, 1909, he was at work in the pit near said hydraulic pump; that said open space between the pits was covered over with said removable floor or cover, and said plaintiff was standing by said removable floor or cover cleaning a part of a car, to wit, a bearing, in the courseof his said employment; that plaintiff placed said bearing on said defective plank in said removable floor or cover, although plaintiff did not then know that said plank was defective, and while plaintiff was standing near said bearing, in the course of his said employment, a co-employé, or fellow servant, of plaintiff, came walking towards plaintiff from behind, in the course of said fellow servant's employment, and in passing over said removable floor or cover said fellow servant stepped upon a corner of said defective plank at the opposite end from which plaintiff had placed said bearing, whereupon the end of said plank on which said bearing rested was thereby suddenly raised, and said bearing, weighing, to wit, ten pounds, was thereby thrown down into said pit, striking plaintiff on his right foot with great force and violence, and in consequence thereof said plaintiff was hurt, bruised, wounded, and injured," etc. We are of the opinion that the demurrer was properly sustained. It appears that the plaintiff for his own convenience placed the bearing in a passageway and upon a removable and temporary flooring, which it appears was made to walk upon, and was not designed or constructed to be used as a shelf or other place of storage. Nor is any reason given for the plaintiff's failure to discover that the plank was twisted, and, although he avers he was in the exercise of due care, it is evident that he must have seen its condition if he had looked at it. In Baumler v. Narragansett Brewing Co., 23 R. I. 430, 435, 50 Atl. 841, 842, it is said by this court: "When it is apparent, from the facts stated in a case of this sort, that if the plaintiff had used his senses he must have known of the danger complained of, no allegations which he may incorporate in his declaration as to lack of knowledge, lack of warning, or duty of the master will be allowed to overcome and rebut said facts and render the declaration sustainable. Such a declaration is inconsistent, and therefore demurrable." And see Donohoe v. Lonsdale Co., 25 R. I. 187, 55 Atl. 326. Gen. Laws 1909, c. 352, § 1, provides that the state probation officer, in the case of any female committed to his custody, may provide for her maintenance apart from her family, protimes under the control of the officer and subject vided that every such female shall be at all to the authority of the court committing her to his care. Held, that the probation officer has in the House of the Good Shepherd, when he so power to place a female committed to his care acts with the sanction of the court, and may detain her there as against a writ of habeas corpus, subject to the reasonable rules of the institution. [Ed. Note. For other cases, see Habeas Corpus, Dec. Dig. § 13.*] Habeas corpus by John Scamporrino to obtain the release of Mary Scamparrino from the custody of Margaret Dennehy, assistant state probation officer. Writ denied. James A. Williams, for petitioner. Henry W. Greenough, Asst. Atty. Gen., for the State. Here it is distinctly averred that the planks were removable in order to permit the passage of certain implements and machines connected with the repair work. Being a repairman, working in a pit connected by a passageway only six feet wide with a second pit, and so near to the plank in ques-restraining said Mary. tion as to be within arm's reach of it when placing the bearing upon it, it is clear that his opportunity for observation of its condition was unimpeded and perfect, and that its twisted condition must have been seen, had he looked at it, and that it was so simple in its construction as to bring the plaintiff within the rule as to the assumption of the risk of so using such a plank as a place of storage for a heavy weight which is laid down in Sheridan v. Gorham Mfg. Co., 28 R. I. 256, 66 Atl. 576, 13 L. R. A. (N. S.) 687, and that he cannot recover. He, however, chose to assume the risk of placing the bearing in this improper place, where it was liable to be upset, or one might stumble upon it, rather than to place it upon the ground or other suitable resting place. SWEETLAND, J. John Scamporrino, husband of Mary Scamporrino, in behalf of said Mary, prays that a writ of habeas corpus issue against Margaret Dennehy, commanding her to have the body of said Mary before this court and to show cause for imprisoning and Plaintiff's exceptions overruled, and case remitted to the superior court for further proceedings. On May 10, 1910, Mary Scamporrino was arrested upon a warrant issued upon a complaint made to a justice of the district court of the Sixth judicial district, charging her, under the name of Mary Sharkey, alias Mary Black, with being a common night walker. Upon arraignment before said court, she pleaded guilty, and the complaint was continued to September 30, 1910, for sentence. Thereupon said court, under the power conferred by Gen. Laws 1909, c. 351, § 7, placed the said Mary Scamporrino under the control and supervision of Margaret Dennehy, an assistant to the state probation officer. Mrs. Dennehy, under the authority given to her, as she claims, by Gen. Laws 1909, c. 352, § 1, and as far as appears with the sanction of said district court, placed said Mary Scamporrino in the House of the Good Shepherd, a reformatory institution in Providence established and maintained by a corporation duly created under the laws of the state. Gen. Laws 1909, c. 352, § 1, is as follows: "The state probation officer, in the case of any female committed to his custody either by the court or under the authority of section 2 of this chapter, may provide for the care and maintenance of such female, apart For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes from her family, whenever in his opinion | to be the intent of the statute. The respondthe moral improvement and welfare of such female will be promoted thereby, and such care and maintenance shall be for such period as said officer shall deem advisable and shall be paid for by the state at a rate not exceeding two dollars per week for each female: Provided, that every female for whom such provision of care and maintenance is made shall at all times be under the control of said officer, and any such female who has been committed to his care by any court shall continue to be subject to the authority and direction of such court." The petitioner alleges that Margaret Dennehy is restraining said Mary Scamporrino of her liberty by confining her in the premises of the House of the Good Shepherd, and that Margaret Dennehy and the agents and officers of said corporation actually imprison the said Mary, compelling her to work and labor, and preventing her from having any liberty and also from seeing her husband. The petitioner claims that said chapter 352, § 1, does not empower the probation officer to exercise her custody and control in such manner. The superintendent of the House of the Good Shepherd has made affidavit that the said Mary is not prevented from seeing her husband, and it was not contended before us at the hearing that the said Mary is not permitted to see her husband or other proper persons at such times and under such circumstances as is consistent with the good order and discipline of said institution. Except as it is alleged in the petition that the said Mary is compelled to work and labor, and that she is prevented from “having any liberty," nothing has been presented to us showing the nature of the restraint placed upon her. We are not informed as to the amount of work or labor that she is compelled to perform, or as to the means employed in preventing her from having any liberty. No attempt has been made to show that her treatment is harsh or cruel, or, if she lawfully can be restrained of her liberty by the probation officer in such an institution, that the nature of her restraint is not perfectly reasonable and proper. The whole scheme of probation provides for a departure from ordinary criminal procedure in those cases which, in the judgment of the court, are suited to its employment. It is clearly the purpose of the statute to confer upon our criminal courts an authority, in the nature of a paternal control, over persons charged with crime and those who have been convicted. In the cases of persons convicted, who are given the benefit of the system of probation, the court is to exercise its authority in such a way as shall best protect the offenders from further temptation and shall best promote their moral reform. Of necessity much must be left to the judgment of the criminal court, and such we find ent, though placed in the custody of the probation officer, continues to be subject to the authority and direction of the court. The probation officer is but the instrument of the court in carrying out its beneficent purposes. In this view of the statute relating to the probation of respondents in criminal cases, this court will not consider a petition for a writ of habeas corpus, preferred against a probation officer and based upon the manner in which such officer has exercised his control over a respondent placed in his custody by a criminal court, until after an application has been made to that court asking for a regulation of the probation officer's conduct. The proper administration of the probation law requires that an opportunity should be given to the criminal courts to direct their own officers before this court will interfere with the action of such officers. Furthermore, as to the main question which has been argued before us, we are of the opinion that it is within the power of the probation officer, under Gen. Laws 1909, c. 352, § 1, to place a female respondent committed to her care in an institution, such as the House of the Good Shepherd, when the officer so acts with the sanction of the court having the direction of the respondent. The probation officer, in the exercise of her control over the respondent provided by chapter 352, § 1, may detain the respondent in such an institution subject to the reasonable rules of the institution. She may so control the respondent, even though her control amounts to a restraint of the respondent's liberty. The rules of such institution should not lead to a restraint which is cruel or unduly oppressive. They should be such reasonable restrictions as remove the respondent from. temptation and aid in her reformation. The nature of the probation officer's control is proper when it tends to restore the respondent's moral stamina and to fit her for final discharge from the paternal oversight of the court. This is the aim of the system of probation, and should not be lost sight of. No suggestion has been made that the control which Mrs. Dennehy is exercising over this respondent does not naturally tend towards that desirable result. Petition for a writ of habeas corpus is denied and dismissed. (31 R. I. 174) M. M. STONE & CO. v. POSTAL-TELEGRAPH CO. (Supreme Court of Rhode Island. July 13, 1910.) 1. TELEGRAPHS AND TELEPHONES (§ 54*)-DELAY IN TRANSMISSION OF TELEGRAM-EXEMPTION FROM LIABILITY. the back of its message blanks, exempting the A rule of a telegraph company, printed on company from liability where a claim is not presented in writing within 60 days after the mes |