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NEGLIGENCE CONTRIBUTORY NEGLIGENCE-DUTY OF OWNER OF PREMISES TO LICENSEE.
PARKER V. PORTLAND PUBLISHING CO.
Supreme Court of Maine, February, 1879.
1. CONTRIBUTORY NEGLIGENCE-DUTY OF ONE ENTERING PREMISES.---One entering the premises of another, whether by invitation, or as a mere licensee, is himself bound to exercise ordinary care and diligence, and failing in this and suffering injury, he can not recover.
2. FALLING THROUGH ELEVATOR WAY.-P having occasion to carry an advertisement to the defendant for publication in its newspaper late at night, found the counting-room closed. He thereupon proceeded to the editorial rooms on the second floor. At the head of the stairs there was a hall; on the right hand the door leading to the editorial rooms, and on the left an elevator entrance with folding doors. P, being a strang. er to the premises, and the hall being dark, in trying to find his way fell down the elevator way, the doors of which had been left open, and was seriously injured. Semble, that his want of care and prudence having caused the injury he could not recover.
3. NEGLIGENCE - EVIDENCE OF PRIOR CIRCUMSTANCES IRRELEVANT.-In an action on the case for negligence, the evidence must be confined to the time and place and circumstances of the injury, and the negligence then and there; but what occurred to others, at other times, more or less remote, is collateral and inadmissible. Thus, where one is charged with negligence in not sufficiently lighting the hall and passage. way to his place of business, and in leaving open the doors to his elevator-way: Held, that evidence, embracing a period of two years, tending to show at different times the condition of the hall and entranceway as to light-whether more or less, or none-the position of the elevator gates and doors, of what had happened to others at different times, and their fortunate escape from peril, was not admissible.
4. ORDINARY CARE AND DEIGENCE must be used to keep business places, and the usual passage-way to them, safe for the access of all persons coming to them at all reasonable hours, by their invitation express or implied, or for any purpose beneficial to them.
5. No DUTY IS OWED TO A MERE LICENSEE, and he has no cause of action for negligence in the place he is permitted to enter.
tiff, as he alleges, on the 17th of September, 1875, between eleven and twelve o'clock at night, was proceeding to the defendants' rooms on the second floor, the counting-room being closed, for the pur. pose of procuring the insertion of a notice in the newspaper published by them, when, there being no sufficient light in the hall, and the doors to the elevator-way being left open, he fell down the elevator-way and was seriously injured.
The question for determination was, whether there was negligence on the part of the defendants, at the time when, and the place where, the plaintiff sustained the injury for which he seeks compensation; not whether there was negligence at other times and under different conditions. If the defendants are liable, they are not liable for past neglects, when an injury might have occurre: but did not. Nor do previous omissions of duty prove, or tend to prove, the particular neglect of which the plaintiff complains.
Evidence, embracing a period of two years, tending to show at different times the conditions of the hall-way, aud entrance to the press, editorial and composing rooms, as to light-whether more or less, or none-of the position of the elevator gate and doors, of what had happened to other men at other times, and of their fortunate escape from peril, was received, notwithstanding the seasonable and strenuous objections of the defendants.
These facts were all collateral to the main issue, and should have been excluded; "and the reason is, that such evidence tends to draw away the minds of the jury from the point in issue, and to excite, prejudice and mislead them; and, moreover, the adverse party, having no notice of such a course of evidence, is not prepared to rebut it." 1 Greenl. Ev., $ 52. “It may be added, that the evidence not being to a material point, the witness could not be indicted for perjury if it were false." 1 Greenl. Ev., § 448. It was immaterial to the issue, whether, on some particular day or night previous to the plaintiff's injury, the gates to the elevator had been closed or not; whether there had been sufficient light in the ball or not, or whether some individual had or had not been exposed to injury and had escaped. If evidence of this character is receivable, contradictory proofs would be admissible, and there would be as many collateral issues as there were collateral facts and witnesses testifying to them.
The entire weight of judicial authority is against the reception of the evidence received subject to objection. The attention of the jury would be diverted from the questions really in dispute, and directed to what is entirely collateral. Hubbard V. A. & K. Railroad Co., 39 Maine, 506; Aldrich v. Pelham, 1 Gray, 510; Kidder v. Dunstable, 11 Gray, 342; Collins v. Dorchester, 6 Cush, 396; Gahagan v. B. & L. R. Co., 1 Allen, 187; 'Baltimore & Susquehannah R. R. Co. v. Woodruff
, 4 Md. 242; Schoonmaker v. Wilbraham, 110 Mass. 13+. “ The evidence of what had happened at the same place the year before,” observes Gray, C. J., in Blair v. Pelham, 118 Mass. 420, “was rightly rejected; because it tended to raise a collateral
Action on the case for negligence. Plea, general issue. Verdict for plaintiff for $4,000. The facts, and so much of the bill of exceptions as are necessary to the understanding of the points decided, appear in the opinion.
S. C. Andrews, A. A. Strout and G. F. Holmes, for the plaintiff'; T. B. Reed, for the defendant.
APPLETON, C. J., delivered the opinion of the court:
This is an action on the case for negligence. The defendants had their counting-room on Exchange street, on the lower fivor. The editorial and composing rooms were on the second floor. At the head of the stairs is a hall, on the right hand is the door leading to defendants' rooms, and on the left is an elevator-way with folding doors. The plain
issue; because, it being admitted that the highway lower floor. This was the defendants' place of had been in the same condition for twenty-four business. The editorial and composition rooms hours before the injury now sued for, the previous were in the second story. If there was an implied length of time for which it had existed was imma- invitation, or permission merely, as a matter of terial."
accommodation, as the defendants' witnesses tesThe case of Edwards v. Ottawa Riv. Nav.Co., 39 tified, the question would arise, if an invitation, U.C. Q. B. 264, was an action against the defend- whether such invitation could be implied after ant for negligence in the construction and manage
business hours and through the night, when the ment of their steamboat, by which sparks escaped inhospitable absence of light would seem to negafrom the funnel at the wharf, and the plaintiff's tive such invitation. lumber and mills were burnt. The alleged negli- But it is well settled, if the plaintiff was at gence consisted in leaving the screens of the the place where the injury was received by license steamer open; and, on the part of the plaintiff, merely, that the defendants would owe him no evidence was received, though objected to, that on duty, and that he can not recover. In Holmes v. N. other occasions and at different times and places, E R. W. Co., L. R. 4 Ex. 257, Bramwell, B., the screens were open and cinders escaped. The said: “If the plaintiff had gone where he did by presiding judge ruled that this evidence was ad- mere license of the defendants, he would have missible. Held, that such evidence was inadmiss- gone there subject to all the risks attending his ible to support the plaintiff's case, when it was going.” In the same case, Channel, B., remarked: tendered and received. All the English and Amer- "I quite concur in the rule laid down by the cases, ican cases bearing on this question were examined that where a person is a mere licensee, he has no and discussed by Harrison, C. J., who, after cause of action on account of dangers existing in stating the facts, says: “ The declaration charges the place he is permitted to enter.” In Blackman negligence by the defendants on a particular occa- v. Toronto Street Railway Co., 38 U. C. Q. B. 173, sion and at a particular place, whereby, etc., and the deceased, a boy selling newspapers, got on a this the defendants deny. The only issue, there- street railway car at the rear end and passed fore, for the determination of the jury, was through the car to the front platform, where the whether there was the negligence charged, on the driver was standing; he stepped to one side behind occasion and at the place alleged, resulting in the driver and fell off, there being no step on that damage to some amount to the plaintiff. If, on side, and was killed by the car running over him. the day and at the place in question, the screens The boy had paid no fare. It appeared that newswere open and sparks escaped, one or more of boys were allowed to enter the cars to sell newswhich sparks set fire to the pile of lumber, there was papers without being charged. It was held that such negligence and such damage as alleged, and no right of action existed against the defendant; the jury should find for the plaintiff. It could not that there was no breach of duty to him, and that assist the jury in coming to a determination on he must take the cars as he found them. “Assumthat issue to show that, on other days and at other ing,” says Burton, J., "for the purposes of this places, the screens were open and sparks escaped. case, that the defendant would be bound by any Such evidence would, in my opinion, be more license or permission given to the deceased by the likely to mislead than to assist the jury in arriving driver, he was, at best, in the position of a licensee, at a proper determination.” So in this case, what and, although whilst there the defendants would was done or omitted to be done, at other times, is not be justified in injuring him, by careless drivimmaterial.
ing, any more than they would be by reckless driv· As the case is one of grave importance, it may
ing over him if on the street, it is clear there was not be inexpedient to consider the various legal
no duty on the part of the defendants, as regards questions, which may arise in its different aspects
the deceased, to have the steps of the cars in any in the trial of the case hereafter.
other condition from that in wbich he found them The defendants are only responsible for neg.
when he availed himself of the permission to enlect of duty. They are bound to use ordinary
ter. He acquired no right, and whatever may have and common care and diligence to keep the prem- been the obligation of the defendants as regards ises and the usual passage-way to them safe for their passengers, they owed no duty to the dethe access of all persons coming to them at season
ceased to keep the car in repair.” In the same able hours by their invitation, express or implied,
cas, Moss, J., remarks: "The passengers may or for any purpose beneficial to them, they exer
have the right to insist that the car shall be free cising ordinary care in so coming. If the prem
from patent defects, as the Court of Queen's Bench ises are in any respect dangerous, they are bound
holds, but the licensee must take the vehicle as it to give such visitors notice, to enable them with
is. He cannot claim that it should have beeu safer ordinary care to avoid the danger. Knight v. P.
or stronger.” “If,” remarks Hagarty, C. J., “in & S. & P. Railroad Co., 56 Maine, 235; Campbell
the hall or office of a large hotel newsboys or oth9. Portland Sugar Co., 62 Maine, 552; Elliot v.
ers were seen coming in and going out, offering Pray, 10 Allen, 378; Sweeny v. Old Colony & newspapers, etc., for sale, I do not think there Newport Railroad Co., 10 Allen, 369; Chapman v.
would be any implication in the event of an acciRothwell, 96 E. C. L. 168; John v. Bacon, L.R. 5
dent that such persons were guests in the hotel, or C. P. 437. Such are the general principles of
were there under any contract, express or implied, law applicable to the case.
with the host or owner that the premises should The counting room of the defendants was on the
be in any particular order or condition."
The distinction between what is due to one on the premises by invitation and a mere licensee, was fully considered and discussed in an elaborate opinion of Lord Chief Baron Lefroy, in the case of Sullivan, ex'r, v. Waters, 14 Irish Com. L. 466. The case came before the court on demurrer to a summons and plaint brought by the widow and administratrix of Patrick Sullivan, claiming damages from the defendants under Lord Campbell's act, on the ground that the death of Patrick Sullivan was occasioned by the negligence of the defendant. The negligence relied on is stated to consist in the permitting an aperture in the loft of the defendant to remain unguarded and neglected, by reason of which the deceased, passing along the floor of the loft, fell through the aperture and received injuries of which he died. The statements in the declaration, observes the Chief Baron, are, in substance, “that the defendant, at the time of the grievances in question, was in the possession of a distillery and loft connected with it; that Patrick Sullivan was employed by him as a laborer to do certain work about the distillery at night; that Patrick Sullivan, as such laborer, had, whilst so employed, access by the license of the defendant to one of the said lofts at night, and by such license used one of said lofts for the purpose of sleeping during the intervals of the night when he was not actually engaged in said employment. The summons and plaint then proceeds (in the form of an assignment of a breach) to assert: Yet the defendant, well knowiug the premises, wrongfully and negligently permitted a certain aperture, then being in the floor of said loft, to remain open, without being properly guarded and lighted, by reason whereof the said Patrick Sullivan, whilst passing along the floor of said loft in pursuance of said license, fell through the said aperture, and was thereby wounded and injured; and, by reason of the wounds and injuries thereby occasioned to him as aforesaid, the said Patrick Sullivan, afterwards and within twelve months before this suit, died. The pleading states that the deceased had access to the loft, for the purpose of sleeping, by the license of the defendant; which negatives that he used the loft for that purpose under the contract of his employment. It is, therefore, quite plain that, if any obligation towards the deceased existed in the defendant to guard or light the aperture, such obligation must have arisen from the license to use the loft at night, and from the fact that the deceased used the loft in pursurance to such li
After an elaborate and exhaustive review of all the authorities, the Chief Baron concludes thus: “The deceased took the permission to sleep at the loft, instead of remaining up at night or sleeping elsewhere, during the intervals when he was not engaged in the business of the defendant. He must, I think, be considered as having taken the permission (to apply the language of Williams, J., in Hansel v. Smith, 7 C. B., N. S. 731) •with its concomitant conditions, and, it may be, perils. Under such circumstanc s he became his own insurer."
Whatever may be the position of the plain
tiff, whether there by express or implied invitation, or as mere licensee (his presence being simply permissible), he was bound to exercise common care and caution. He wished to find the press office.
He had never been there and did not know where it was. He was ignorant after he got to the head of the stairs as to the location of the door leading from the passage-way into the editorial rooms of the defendants. It was dark and he was a stranger to the premises. The alternative in such a case, as presented by Bramwell, B., in ordering a nonsuit was that, “if it
so dark that the plaintiff could not see, he ought not to have proceeded without a light; if it was sufficiently light for him to see, he might have avoided the staircase, which is a different thing from a hole or trap-door through wbich a person may fall." Wilkinson v. Fairie, 1 H. & C. 633. “In general,” remarks Pollock, C. B., in that case, “it is the duty of every person to take care of his own safety, and not to walk along a dark passage without a light to disclose to him any danger.” In Forsyth v. Boston and Albany R. R. Co., 103 Mass. 513, it appeared that the plaintift was a passenger in the defendants' cars at night, at a station of the defendants', on one of two platforms extending along each side of the track
a highway (which, as the plaintiff knew, crossed the railroad), and having a step at the end next the highway; that, instead of walking along the platform, he voluntarily stepped from it, with the intention of going obliquely across the track to the highway, and when he stepped off fell into a cattle guard dug across the track and was injured; that the night was so dark that he felt with his foot to find the edge of the platform; and that he did nothing to ascertain what would be found on stepping from the platform. Held, that be was not in the exercise of due care, and could not recover, because he did not take any precaution to ascertain if he could not make a step with safety. In Pierce v. Whitcomb, 48 Vt. 127, the facts were these: The plaintiff and defendant were farmers. The plaintiff went to the defendant's late in the evening to buy some oats. The defendant kept his granary locked. He obtained the key and went with the plaintiff to the upper floor of the granary where the oats were, and, while the defendant went for a measure, the plaintiff walked about the floor in the dark, fell through an aperture therein, and was injured. Held, that the defendant was not liable for the injury. If the plaintiff's want of common care and prudence was the cause of his injury, he has only himself to blame, and cannot recover.
Exceptions sustained. WALTON, DANFORTH, PETERS and LIBBY, J.J., concurred. VIRGIN, J., concurred in the result.
The proper measure of damages in a suit by the purchaser of a safe against the manufacturer, who warranted it “burglar-proof,” is the difference between the value of the safe as it was and what it would have been worth if it had been as represented, and not the damages sustained in the loss of valuables taken out of the safe by burglars.-Herring v. Skaggs. Supreme Court of Alabama.
INSURANCE COMPANY-NEGOTIABLE PA
ALEXANDER V. HORNER.
United States Circuit Court, Eastern District of
Arkansas, April Term, 1879.
1. POWERS OF INSURANCE COMPANIES-NEGOTIABLE PAPER.-Insurance companies have the power to take and hold negotiable notes and other securities in the general conduct of their business, and this includes the power to negotiate them.
2. PROMISSORY NOTE-PAYMENT-FRAUD. – The maker of a note, who pays it to an indorsee and holder wbo obtained it by fraud, is discharged from liability thereon to the payee, unless the maker had notice of such fraud; and the discharge extends as well to the original consideration.
3. PARTIES.-Wbere, in such a case, the payee files a bill in equity to avoid the assignment and compel the maker to pay the note a second time, upon the ground that he had notice of the fraud, the alleged fraudulent indorsee to whom the payment was made is an indispensable party.
4. PRACTICE, NON-JOINDER OF PARTIES. The objection of the non-join ter of necessary parties is not required to be raised by the pleadings; it may be made on the hearing and it may, and in a clear case, ought to be raised and acted upon by the court on its own motion.
the latter an attorney for the company) and the Life Association of America, to get possession of the assets of the Life Insurance Company by fraudulent means; that in execution of this fraudulent scheme, Britton, Davis, and the Life Association, in December, 1875, obtained pos-session of the notes of the defendants and the deed of trust given to gecure the same, and cancelled and delivered them to the defendants; that the Life Insurance Company received no consideration from Britton, Davis, or the Life Association for these notes, and that the defendants paid nothing for their surrender, but only gave in exchange therefor shares of stock in the company, which were worthless, because the same had never been paid for and because the company was insolvent; and that defendants had notice of these alleged facts. Horner and Horner, the makers of the notes and who are citizens of Arkansas, and Britton, the trustee named in the deed of trust and who is a citizen of Texas, are made defendants. Davis and the Life Association of America are not made defendants, because they are, as the bill alleges, beyond the jurisdiction of the court, and cannot be joined without ousting the jurisdic tion, being citizens of the same State as the plain tiff.
Prayer for decree for amount of notes and foreclosure of deed of trust
The defendants answering say, the notes were given by them in payment for $5,000, subscription to the capital stock of the company; that the stock issued to them was full paid stock; they deny all knowledge of the insolvency of the company, or of any conspiracy or fraud on the part of Britton, Davis, and the Life Association of America to obtain possession of their notes; and allege that in the month of November, 1875, they were advised by another stockholder residing in Helena, that Britton, upon whose representations they subscribed for the stock and in whom they had confidence, was about to retire from the directory of the company; that they could then sell their stock for par, or possibly something more, to parties who were buying it up; that after consultation the Helena stockholders reluctantly agreed to sell their stock, because they believed it was actually worth much above par if the true condition of the company could be known, and they only corsented to sell for the reason that they could not be on the ground personally to ascertain and look after their interests, and believed if they did not sell, some means would be resorted to, to crowd them out; that thereupon they sent their certificates of shares of stock in the company, indorsed in blank, to Herman & Rainey, their correspondents in St. Louis, and authorized them to sell the same, but in no event for a less sum than would be sufficient to pay off their notes then held by the company; that their correspondents afterwards advised them that they had sold their stock to George J. Davis, and taken in payment their
L. E. Alexander, as receiver of the Columbia Life Insurance Company, and the company, are named as plaintiffs in the bill which alleges that the company is a Missouri corporation; that on the 18th of October, 1877, it was, by decree of the circuit court of St. Louis County, adjudged to be insolvent and enjoined from doing further busiDess, and the plaintiff, Alexander, appointed receiver of its property and assets, with anthority to sue for their recovery, etc.; that pursuant to the terms of the decree, the company executed an assignment of all its property and assets to the receiver, and by the terms of the same decree the corporation was dissolved.
The bill alleges further, that on the 29th of November, 1872, the defendants were “indebted” (it is not alleged this indebtedness was for a stock subscription or how it arose) to the Mound City Mutual Life Insurance Company in the sum of $5,830, for which sum they made their notes, payable to the company, and secured the same by deed of trust on lands in Arkansas; that the name of the last-mentioned corporation was changed successively, to Mound City Life Insurance Company, to St. Louis Life Insurance Company, and lastly to Columbia Life Insurance Company, but the corporation continued the same; that the company was insolvent on the 23d of November, 1875, and for some time prior to that date, and so continued until it was judicially declared to be insolvent; that on the 23d of November, 1875, a combination was entered into between Alfred M. Britton and George J. Davis, both of whom were directors in the Life Insurance Company (the former its vice-president and acting president and
and inclosed a check for that sum, and their notes duly assigned by the company to Davis, and by him cancelled, and also a deed of release of the
deed of trust executed by Britton, the trustee; cepted.” Then follows a list of the securities sold that they never heard of George J. Davis until (which are the same mentioned in the contract bethey saw he was the a-signee of their notes, and tween Davis and the Life Association), with prices were informed by their correspondents that he had annexed to each, amounting in the aggregate to purchased their stock; that they believed the com- $1,111,898.34. Among the securities thus sold to pany was solvent, and would not have sold their Davis were the notes of the defendants, which stock for less than par; that they acted in good were afterwards duly indorsed by the Insurance faith, and had no suspicion of any fraud, or that Company and delivered to him. Davis having defraud was charged upon any one in connection livered the stock and other securities to the Life with the transaction until the filing of the bill in Association under the contract of November 3, February, 1878, more than three years afterwards, 1875, received in payment some cash and the draft and these allegations of the answer are well sup- of the Life Association for $1,111,898.34. This draft ported by the evidence.
Davis indorsed and delivered to the Insurance It is shown by the evidence that on the 23d of į Company on the 10th December, 1875. November, 1877, the Life Association of America In the proceedings of the board of directors on entered into a contract with George J. Davis by that day, it is set forth that the president of the comwhich the former agreed to purchase from the lat- pany stated to the board for its information “ that ter 9,400 shares of the capital stock of the St. Louis Mr. G. J. Davis had tendered him this day the draft Life Insurance Company, and as much more, up to as specified in the resolution of the board, passed 10,000 shares (the whole capital stock of the com- November 30th, in the sum of $1,111,898.34, and pany), as Davis might transfer and deliver within tbat in accordance with the authorization of said thirty days. Contemporaneously with the deliv- resolution he had sold and delivered to Mr. Davis ery of the stock of the Insurance Company, Davis the securities named.” At the conclusion of this was also to deliver to the Life Association certain transaction the directory of the Insurance Company other stocks and securities mentioned in the con- resigned and the Life Association, now the holder tract, then owned by the Insurance Company. of the stock of the former company, elected a di
Davis was to receive for the 9,400 shares and rectory composed mainly, if not altogether, of the other securities $1,215,000, and par value for all same persons who constituted the directory of the shares delivered in excess of that number. The
Life Association. mode of paying Davis for this stock and securities In 1876, by an amendment of its charter approved was prescribed with some detail, the substance of by the superintendent of the insurance department which was, that about ninety per cent. of the sum of the State, the name of the company was changed was to be paid in the draft of Hough, President of
to the Columbia Life Insurance Company, and it the Life Association on the Life Association, and was authorized by a two-thirds vote of its board accepted by it, payable at one day's sight, and the of directors to reduce the capital stock of the comremainder in cash, on delivery of the stock and pany, then 10,000 shares of the par value of $100 other securities mentioned in the contract.
each, to any amount not less than $100,000. To Having made this contract with the Life Associ- effect this reduction, the surplus assets of the ation, Davis resigned as a director of the Insur- company might be used to purchase in the stock of ance Company, and on the 30th of November,
the company. Under this authority the directory 1875, made a proposition to the Life Insurance resolved on a reduction of 9,000 shares of the capCompany to purchase from it the securities men
ital stock, and to effect the reduction, set aside tioned in his contract with the Life Association at
$900,000 alleged surplus funds and afterwards purprices stated in his proposition; and at a meeting chased that number of shares at par-$900,000– of the board of directors of the Life Insurance
from the Life Association, and paid therefor by Company on that day, the record shows the follow- cancelling that amount of the draft of the Life Asing proceedings were had:
sociation given by it to Davis, and by him ir dorsed " Mr. Davis then submitted a list of securities
to the Life Insurance Company under its contract belonging to the company which be desired to pur
for the purchase of its securities. The balance of chase, the price being satisfactory and for pay
that draft, viz. : $211,898.34, was liquidated by cash ment of which he would give the draft of H. W.
payments and other transactions between the comHough, president, on the Life Association to his
pinies. (Davis') order at one day's sight, and accepted by The Life Insurance Company continued to be a said Life Association. After an examination of going concern until it was adjudged to be insolthe list and full discussion thereof, the following vent. The evidence is conflicting as to whether resolution, offered by Mr. Bogy, was adopted: it was, in fact, a solvent institution in December,
“Resolved, That the vice-president be authorized 1875, but it was reputed solvent and to be doing a to sell and deliver to Mr. George J. Davis the fol- profitable business, and its stock was then worth lowing securities, or any one or all of said securi- par in the market. ties, at the price named in the list hereto append
The Life Association is still a going concern. ed, and that the vice-president be authorized to
The superintendent of the insurance department, receive in payment for the securities so sold and in the proceedings in which the company was ad. delivered the draft of H. W. Hough, president, judged insolvent, made no complaint against the drawn at one day's sight, to the order of G. J. reduction of the stock of the company nor the sale Davis, and by him indorsed on the Life Associa
of its securities to Davis; nor has the company or tion of America, and by said Life Association ac- any stockholder or creditor, or the receiver had