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sons having actual knowledge on the subject. Testimony of actual speed is tangible, whatever may be the value of the opinions of particular observers; but opinions on relative speed, without some standard of rapidity are of no value by themselves. In regard to opinions of persons riding in the cars, and not observing from the outside, we are not prepared to say they may not be received, but we think they should be excluded unless the witnesses first show such extended experience and observation as to qualify them for forming such opinions as would be reliable. It is not presumable that ordinary railway travelers usually form such babits.
We are also of opinion that no defects in the track could be relied on to show negligence contributing to the accident except those existing where the track was injured or displaced, and that testimony as to the condition of the road away from the scene of the injury was improper to make out a cause of action, and could only tend to raise false issues. The testimony should be confined to the time as well as place of the accident.
We think there was no error in excluding testimony of the cost of Pullman cars and other stock. The law will not allow negligence to be presumed without proof of actual negligence. All speculations as to the antecedent probabilities must yield to the facts; and if such speculations can be indulged in, there would be no end to inquiry. It is easy to imagine a great variety of circumstances which might induce some persons to take more care than they would under others; but it would be a very strained presumption that carriers of passengers must be expected to care more for the safety of cars expensive or inexpensive, than for the lives and limbs of those who travel on their trains.
The fitness of ties for use is a matter which a conductor of several years' standing must be presumed to understand. His position is a very responsible one, and if he has not familiarized himself with such things as are customary in railway construction, he can hardly have used his eyes to much purpose.
The nature of the injury which Mrs. Huntley suffered became a leading subject of discussion. There was no apparent dispute concerning the original suffering of a slight wound on the head and the dislocation of a shoulder, which was at once set. The chief dispute was whether this dislocation involved any permanent injury, and also whether there was any injury to the spinal column which led to lasting trouble. Dr. Turner attended her a short time after the injury, and about ten days, after which she was left in charge of Dr. Ball. He visited her again about the time suit was begun, for the purpose of making an examination, and again about three weeks before the trial, or more than a year after the second visit. In each of the two latter visits he and another physician, Dr. Ball with Dr. Andrews, examined her without removing her clothing from her back and shoulder, and, as the testimony seems to show, made the examination by measuring the arm and shoulder in different positions, and pressing on the spine at
various points. He asked no question about the spine, but she made complaint of pain above the shoulders. Upon this testimony of examinations, Dr. Turner was allowed to state what in his opinion ailed Mrs. Huntley, and whether it was permanent. His conclusion was that she received a spinal injury at the time of the accident by a sprain -such a concussion as produced laceration and effusion of blood, resulting in a pressure on the spinal cord interfering with the functions of the nerve fluid, and preventing the assimilation of food; that she had a good appetite, but could not digest her food, which results in emaciation; that she had urinary difficulties, which is always the case, and that was the condition he thought the woman was in; that the difficulty was permanent. There is probably some error in taking down some parts of the testimony, which, as it reads on the record, is rather blind and incoherent. But we have stated it as it was evidently designed to appear.
We think this testimony was inadmissible. No portion of it was the result of the witness' conclusions from his own examination, which, according to his statement on the stand, was purely superficial, and without inquiry as to any of the injuries or maladies beyond the local injury. He was not her attending physician for purposes of treatment, nor counseling physician for any such purpose; nor did he examine her for purposes of treatment, but merely as auxiliary to a law-suit. The case shows very fully, from his own statement, that he had no means of knowing or suspecting from any treatment or examination whether there was any spinal, or dyspeptic, or urinary difficulty, or of what nature, or when discovered or originating, or how caused. He does not state on what he based his conclusions, but he does show that he had no knowledge to base them on. They are not scientific opinions, which can only be founded on established facts. They do not purport to be hypothetical, and were not given in answer to any hypothesis founded on evidence. There is no testimony set forth in the record bearing on them at all. As the case stands, his views are mere guesses upon no basis of facts. They are also objectionable as covering disputed facts on which it was for the jury, and not for experts to decide. Dr. Ball, who was present with Turner on both of the latter examinations, testifies that he was not desired to make, and did not make, any examination beyond the shoulder, and knew of no further examination. He was asked and allowed to answer what expression Mrs. Huntley made at the last examination, three weeks before trial, and answered that she complained of pain, and that it hurt her. He also swore that the examination was for the purpose of giving testimony. His evidence further was not very strongly corroborative of Dr. Turner's view.
The question is raised on this, whether the expressions of pain were admissible as proof of actual suffering. It has been held several times by this court that statements of pain and of its locality, were exceptions to the rule excluding hearsay evidence. Hyatt v. Adams, 16 Mich. 180; Johnson v. McKee, 27 Mich. 471; Elliott v. Van Bu
ren, 33 Mich. 40. These statements are admitted only upon the ground that they are the natural and ordinary accompaniments and expressions of suffering. It would be impossible, in most cases, to know of the existence, or extent, or character of pain without them. They are received, therefore, as acts rather than declarations, and admitted from necessity. The rule which admits declarations of present suffering has never been extended so as to include declarations either of past suffering, or of the causes in the past of such suffering, so as to make such statements proof of the facts. Declarations concerning the past are narratives, and not acts. Exclamations of suffering may be, and if honest are, parts of the occurrence itself. It is difficult to lay down any very clear line of admission or exclusion, where the exclamation refers to the feelings of the moment. But we think it would not be safe to receive such testimony in any case where it is not the natural and ordinary expression of pain, called out without purpose, or in the course of medical treatment. The unstudied expressions of daily life, or the statements on which a medical adviser is expected to act, and which, if feigned, he should have skill enough to subject to some test of truth, stand on a footing which removes them in general from suspicion. But we can not think it safe to receive such statements which are made for the very purpose of getting up testimony, and not under ordinary circumstances. The physicians here were not called in to aid or give medical treatment. The case had been relinquished long before as requiring no further attendance. They were sent for merely to enable the plaintiff below to prove her case. The whole course of the plaintiff was taken to no other end. She had in her mind just what expressions her cause required. They were, therefore, made under a strong temptation to feign suffering if dishonest, and a hardly less strong tendency if honest, to imagine or exaggerate it. The purpose of the examination removed the ordinary safeguards which furnish the only reason for receiving declarations which bear in a party's own favor.
The general rule in regard to other classes of hearsay evidence and statements admitted upon the same principle is, that they must have been made ante litem molam, which is interpreted to mean not merely before suit brought, but before the controversy exists upon the facts. Stockton v. Williams, Walker's Ch. 120; 1 Dougl. M. R., 546 (citing the Berkley Peerage case, 4 Campb. 401; Richards v. Bassett, 10 B. & C., 657; Doe d. Tilman v. Tarver. 1 R. & M., 141; Monkton v. At. Gen. 2 Russ. & Myl., 160; Whitlocke v. Baker, 13 Ves., 514. The language of Lord Eldon in Whitlocke v. Baker has met with general acquiescence. He says: "All are admitted upon the principle that they are the natural effusions of a party who must know the truth, and who speaks upon an occasion when his mind stands in an even position, without any temptation to exceed or fall short of the truth." P. 514. It is not necessary to consider whether there may not be properly received in some cases the natural and usual expressions of pain, made under circumstances free from
suspicion, even post litem motam. The case must at least be a very plain one which will permit this. The present controversy presents no such difficulty. The physicians were called in, not to give medical aid, but to make up medical testimony; and the declarations were made to them while engaged in that work. It would be hard to find a case more plainly within the mischief of the excluding rule. The principal remaining questions arise out of the rules of liability established by the charge.
The primary cause of the accident was the broken axle. Some stress seems also to have been laid on the condition of the track and the rate of speed. So far as appears upon the record, we have not discovered any proper evidence to authorize these matters to be considered. There is no testimony from such persons as are qualified to give opinions on the subject, that either the condition of the road or the speed indicated negligence. Whether the structure of a road is such as to warrant fast travel, is not a question which usually belongs to ordinary witnesses, and it would be dangerous to allow a jury to act on its own suspicions or prejudices in such a matter. The road, if in such a condition as would be regarded as safe by railroad men of usual intelligence and experience, could not be complained of for any possible deficiencies which would not be regarded by competent persons as existing, nor could the rate of speed be properly held excessive without similar evidence from men of experience. It is a matter of daily occurrence in many parts of the country and of occasional occurrence everywhere, for cars to be run at very high rates of speed on railroad tracks. No particular rate can be assumed, without proof, to be dangerous.
The main question, however, relates to responsibility for the condition of the axle. It was held by the court below that no diligence or care in the railroad company could exempt them from want of care in the manufacturers of the cars and axles. This doctrine is we think entirely incorrect. Carriers of freight are liable whether careful or not, for any act or damage not caused by the act of God or of the public enemy. Their liability, therefore does not arise from negligence or want of care. It arises from their failure to make an absolutely safe carriage and delivery, which they insure by their undertaking. The analogies of carriers of freight have nothing to do with passenger carriers. These are liable only when there has been actual negligence of themselves or their servants. If they exercise their functions in the same way with prudent railway companies generally, and furnish their road and run it in the customary manner which is generally found and believed to be safe and prudent, they do all that is incumbent upon them. M. C. R. R. v. Coleman, 58 Mich. 440; G. R. & I. R. R. v. Judson, 34 Mich. 506; Ft. Wayne, J. & S. R. R. v. Gildersleeve, 33 Mich. 133; M. C. R. R. v. Dolan, 32 Mich 510. This general doctrine the court below laid down very clearly, but qualified it so as to make them absolutely responsible for the omissions or lack of skill or attention of the manufacurers from whom they made their purchases of
stock, however high in standing and reputation as reliable persons.
There is no principle of law which places such manufacturers in the position of agents or servants of their customers. The law does not contemplate that railroad companies will in general make their own cars or engines, and they purchase them in the market, of persons supposed to be competent dealers, just as they buy their other articles. All that they can reasonably be expected to do is to purchase such cars and other necessaries as they have reason to believe will be safe and proper, giving them such inspection as is usual and practicable as they buy them. When they make such an examination, and discover no defects, they do all that is practicable, and it is no neglect to omit attempting what is impracticable. They have a right to assume that a dealer of good repute has also used such care as was incumbent on him, and that the articles purchased of him which seem right are right in fact. Any other rule would make them liable for what is not negligence, and put them practically on the footing of insurers. The law has never attempted to hold passenger carriers for anything which they could not avoid by their own diligence.
The case of Richardson v. Great Eastern Railway Co., L. R., 1. C. P. Div. (Court of Appeal), is quite in point and establishes the doctrine as it has been fixed by the general understanding since the carrying of passengers has been the subject of legal discussion. That was a passenger case, depending on the doctrine of negligence as applied to defective trucks. The axle of a truck belonging to another company, brought on the line of the respondents to be forwarded, was broken by reason of a flaw which might have been discovered by a minute examination, but which was not discovered in fact by such an examination as was customary, and reasonably practicable. It was held no negligence could be imputed for not making a more minute examination than was made. In that case the court also held that it was not within the province of a jury to lay down rules after their own opinion, which imposed duties beyond the usual practice of prudent railways. See also Daniel v. Metropolitan Railway Co., L. R. 5 H. L., 45, upon the right of a railway company to assume there is no negligence in others over whom they exercise no control.
The injustice and illegality of holding passenger carriers to anything like a warranty of their carriages was very fully discussed and asserted in Readhead v. Midland R. W. Co., L. R. 4 Q. B., 379. The New York cases which were relied on upon the argument of the present cause were considered in the light of a large number of decisions, and disapproved, as we think correctly. They entirely ignore the true ground of responsibility as depending on the actual negligence of the carrier. There is no such thing as implied negligence, when there is none in fact.
We think the judgment erroneous, and it must be reversed with costs and a new trial be granted.
1. MANDAMUS WILL NOT LIE TO COMPEL À COUNTY COURT to issue a warrant on the county treasurer on the general revenue fund of county, to pay a judgment against the county on bonds issued for subscription of county to capital stock of Missouri & Mississippi R. R. Co.
2. UNDER SEC. 13 OF CHARTER OF COMPANY, said county court had no power to levy in one year a tax of more than one-twentieth of one per cent. upon assess ed value of taxable property of county, and the bonds are payable only out of the special fund to be raised by taxation under that act and none other. That section entered into and formed a part of the contract, under which the bonds were issued, and operated as a limitation upon the taxing power of county as therein provided; holders of bonds can only look to fund which that section authorizes to be raised for payment thereof, and when that is exhausted they can not compel, by mandamus, a county court to resort to any other fund to effect such payment.
3. THAT THE BONDS AND COUPONS have been put into judgment can neither enlarge nor diminish the powers of the county court, in regard to providing for payment by levying a tax.
4. THE COMMON REVENUE FUND OF THE COUNTY derived from the taxes annually levied was created by law to defray the ordinary and current expenses of the county. It was not designed or intended to include therein an indebtedness incurred by a county in subscribing to stock of railroad company, and issuing bonds therefor: other and ample provisions for levying taxes and creating a fund for payment of such obligations have been provided by law; and a warrant for payment out of such common fund of such railroad debt would be illegal, and if knowingly done would subject the members of the county court voting for its issue to fine and imprisonment in the penitentiary.
5. MANDAMUS WILL NOT LIE TO COMPEL an officer to do an act not authorized: a fortiori will it not be awarded to compel such officer to do that which he is absolutely forbidden by law to do. Nor will such writ be granted when its effect would be to disrupt or disor ganize subordinate municipal organizations, and thus impair the power of the state to maintain itself. Neither will it issue to require inferior tribunals to give particular judgments, or reverse their decisions, when they have once acted.
6. THE ACTION OF A COUNTY COURT in ascertaining the amount of indebtedness due from a county, and ordering a warrant on the treasury therefor, out of a particular fund, is judicial in its character, and can only be reviewed on appeal or writ of error. Manda. mus is not the proper remedy.
NORTON, J., delivered the opinion of the court:
This is a proceeding instituted in the circuit court of Macon county, against the defendants, as justices of the county court of Macon county, to compel them, by mandamus, to draw a warrant on the county treasurer of said county, payable out of the general expenditure fund. It is alleged in the petition that the relator obtained judgment in the circuit court of Macon county for the sum of $3,645 against said county on certain bonds issued and delivered to the Missouri and Mississippi R. R. Co., in payment of a subscription of stock to said company, made under and by virtue of the charter of said company; that said judgment is unpaid, and that the county has no property out of which said judgment or any part thereof could be made on execution; that the levy of one-twentieth of one per cent. on the assessed value of the taxable property of said county is wholly insufficient to pay said judgment and other judgments now subsisting against the county on other bonds issued to said company; that the defendants, upon demand made, refused to issue their warrant to relator, in discharge of said judgment, to the county treasurer, payable out of the common fund of the county.
The defendants, in their return to the alternative writ, admit all the facts stated in the petition, and set up, by way of further return, that the stock was subscribed and the bonds issued to said company under the following provisions of the 13th section of said charter, which is as follows: shall be lawful for the corporate authorities of any city or town, or county court of any county desiring so to do, to subscribe to the capital stock of said company, and may issue bonds therefor, and levy a tax to pay the same, not to exceed onetwentieth of one per cent. upon the assessed value of the taxable property for each year." That in and by virtue of the power thus conferred, and no other, the said county court, without a vote of the people, and against the wishes of a large majority of the people, subscribed, on the 16th of April, 1867, $175,000 to the capital stock of said company, and also on the 12th of April, 1870, made a like subscription of the further sum of $175,000, under the same authority and no other, without a vote of the people and against the wishes of nine-tenths of the voters of said county; that the county court of said county had levied, every year since such subscriptions were made and bonds issued, a special tax of one-twentieth of one per cent. on the assessed value of all the taxable property in said -county, which tax has been regularly collected and applied to the payment of said bonds and interest; that the tax thus collected was wholly inadequate to pay all the interest on said bonds; that the constitution of 1875, sec. 11, art. 10, limits the power of the county court to impose a tax for county purposes to fifty cents on the $100 valuation; that sec. 165, ch. 118, Wag. St., provides that the "several county courts are empowered to levy such sums as may be annually necessary to defray the expenses of their respective counties, by a tax upon all property and licenses made taxable by law for state purposes, but the tax shall in no case exceed one-half of one per cent. on all taxable
property;" that the tax thus authorized to be levied constitutes the common fund of the county, and that the whole amount thus raised is necessary to pay the current and necessary expenses of conducting the county government, and that no part of this fund is applicable to a payment of relator's judgment, and that a withdrawal of it for such a purpose would disorganize the county government.
A demurrer to this return was overruled, and judgment was rendered for defendants, from which plaintiff has appealed.
The record presents for our determination the simple question, whether the common fund of the county, collected for the purpose of defraying the current expenses of the county government, is applicable to the payment of relator's judgment, and whether the county court can be compelled to draw a warrant on the treasurer, payable out of said fund.
Without stopping to consider or to determine whether, after a demand against a county has been put into judgment, mandamus will lie to compel the county court to issue its warrant on the treasurer in payment of the same, we will proceed to the discussion of the question presented by the record. The only authority upon which the relator relies for issuing the bonds is to be found in the 13th section of an act to incorporate the Missouri and Mississippi River R. R. Company (Acts 1865, p. 86), which declares that it shall be lawful for the corporate authorities of any city or town, or the county court of any county desiring to do so, to subscribe to the capital stock of said company, and may issue bonds therefor, and levy a tax to pay the same, not to exceed one-twentieth of one per cent. upon the assessed value of the taxable property for each year." This section has been construed by this court in the case of State v. Shortridge, 56 Mo. 126. It was there held that section 13 of said act entered into and formed a part of the bonds themselves as much as if it had appeared in hæc verba on their face; and that the effect of said section was to limit the power of the county court to a levy of a tax of one-twentieth of one per cent. for their payment in any one year; and that this limitation was for the benefit of the tax payer, and forbids the imposition of any greater tax than one-twentieth of one per cent., in any one year, by the county court. The principle announced that section 13 of the act entered into the contract finds support in the case of Von Hoffman v. City of Quincy, 4 Wall. 554, and Cooley Con. Lim., 285. It was also held that the power of taxation belongs alone to the state, and can only be exercised by virtue of laws passed by the general assembly for that purpose, and that there can be no such thing as an implied power in a county court to levy a tax. We are disposed to adhere to the principles enunciated in that case, believing them to be supported both by reason and authority, and, adhering to them, we are forced to answer the question this record presents in the negative. If, as was decided in that case, the county court of Macon county could not be compelled, by mandamus, to levy a tax, in excess of one-twentieth of
one per cent., to raise revenue with which to pay such bonds, and the interest on them, as constituting the right of action on which the relator obtained his judgment, we are at a loss to perceive upon what principle the court could be compelled by mandamus to seize upon other funds in the treasury of the county, raised for another and different purpose, and apply them to an object not contemplated when the tax which brought the revenue into the treasury was imposed.
The fact that the bonds and coupons have been put into a judgment, can neither enlarge nor diminish the powers of the county court in regard to providing for payment by levying a tax. To compel the county court to divert the common fund of the county from the purposes for which they had the lawful right to impose the tax which produced these funds, and apply it to a purpose for which they had no lawful right to impose a tax beyond the limit prescribed by law, viz.: onetwentieth of one per cent., would be doing, indirectly and by evasion, what we have decided could not be done directly. We can give no toleration to such a doctrine. The very law authorizing the issuance of the bonds and coupons, upon which relator obtained his judgment, provided for raising a special fund, out of which they were to be paid. This law entered into and formed a part of the contract, and when the subscription was made, and the bonds issued to the company in payment of it, the company and all others into whose hands they might come, are chargable with knowledge of the fact that they were to look for payment to a specific fund to be provided by the levy of a tax not in excess of one-twentieth of one per cent. It is no answer to say that the fund provided is inadequate. The inadequacy of the fund to discharge the obligation can not confer either on the county court or any other court the power to provide any other fund to meet the obligation than that which the law, authorizing the contraction of the debt, had provided. If the county court, in subscribing $350,000 of stock, and issuing that amount of bonds to pay it, issued an amount in excess of what a tax of one-twentieth of one per cent. would pay, the company could have refused to accept the subscription on that ground. This, however, was not done.
The amount of bonds and interest that an annual tax of one-twentieth of one per cent. would pay, could have been ascertained almost to a mathematical certainty at the time the subscription was made and the bonds issued. Prudence on the part of the county court would have confined them to a subscription, and the issuance of bonds, to an amount which the fund authorized by the legislature to be raised would pay, and fair dealing would have required the company to have refused to accept a subscription in excess of what could have been paid by it.
The intention of the legislature, in conferring the power on the county court to subscribe stock to this company, to be exercised independent of, and even against the will of the tax payers, doubtless was to confine them to such a subscription in amount, as an annual tax of one-twentieth of one
per cent. on all the taxable property would pay; and it may seriously be questioned whether the bonds issued in excess of that amount have any binding force.
If section 13 of the act of 1865 entered into and formed a part of the contract, which the court, in the case of State v. Shortridge, supra, declared it did, then it follows, under the following cases, heretofore decided, that the holders of the bonds can only look to the fund which section 13 provides, and, when that fund is exhausted, they have no authority of law to demand of the county court that they resort to another and different fund, provided for other and different purposes. In the case of Campbell v. Polk Co., 49 Mo. 214, it was held that, when a county warrant was made payable out of a particular fund, the holder of such warrant, after such fund had been exhausted, could not recover against the county in an action thereon. In the case of Pettis Co. v. Kingsbury, 17 Mo. 479, it was held that a contractor, who had built a bridge, to be paid for out of the road and canal fund, could not compel the county to pay a warrant (drawn payable out of said fund) with the common fund of the county. In the case of Kingsbury v. Pettis Co., 48 Mo. 208, the doctrine of the above case was affirmed.
Considering section 13 as entering into the contract in this case, as fully as if it had been copied on the face of the bond, the legal effect of it is to make the bonds payable out of the special fund there provided for that purpose, and to bring this case within the principle announced in the above cases. The contract made between the county and the Missouri and Mississippi R. R. Co. was that if the county court subscribed for stock in said corporation, the company would accept bonds therefor, to be paid by funds derivable from a tax of one-twentieth of one per cent. to be annually levied on the assessed value of all taxable property in said county. The record before us shows that this contract, thus made, has been fully executed. The county court made the subscription, which the company accepted, and it received the bonds of the county therefor, to be paid as section 13 of the act of incorporation provided, and the tax therein authorized to be levied has been regularly levied, and the proceeds, so far as they would go, have been applied to the payment of said bonds. If the contract and the law which authorized it to be made have been fully complied with, that is an end of the matter, and all that the plaintiff is entitled to. And if, for the purpose of paying these bonds, the county court of Macon county was powerless, as we have decided, to levy a tax exceeding onetwentieth of one per cent., it necessarily follows that they can not be forced to pay them out of funds raised by taxation for a different purpose. If this were allowed to be done, it would be equiv alent to enlarging the powers of the county court, and giving them a right to levy a tax greater than one-twentieth of one per cent. for the purpose of paying these bonds, which this court, in State v. Shortridge, supra, held they could not do, but were forbidden to do. They could no more be compelled to pay a warrant drawn upon the treasurer,