4. TRIAL 424-WAIVER OF REQUESTS FOR

INSTRUCTIONS-REMARKS OF COUNSEL.

In action for injuries in collision with defendant's automobile, remarks of attorney for defendant respecting the form of the third question submitted to the jury held not to amount to a waiver of his requests for instructions covering the point that the manager of defendant company's New Hampshire branch was not authorized to cause the company's automobile to be operated on his own personal business in Massachusetts.

Mass. 506, 118 N. E. 864. The conduct of the automobile or cause it to be operated in the executor does not bind the plaintiff in Massachusetts on his own business. his individual capacity in this particular. The failure to plead election as a defense to the action at law on the contract by the defendant does not preclude the plaintiff in his individual capacity from now relying upon that doctrine. In this view of the case the question of accident, mistake or ignorance of the plaintiff in omitting to raise the question of election in the action against him as executor is not material. The denial of the motion for a new trial setting up the principle of election does not bar him. It is not necessary to determine what might be the effect of these factors against the estate of the testator, if it alone were concerned in the present suit. Therefore cases like Fuller v. Cadwell, 6 Allen, 503, Payson v. Lamson, 134 Mass. 593, 45 Am. Rep. 348, and Boston & Maine R. R. v. D'Almeida, 221 Mass. 380, 108 N. E. 1065, relied upon by the defendant, are not controlling. A decree is to be entered affirming the interlocutory decree which overruled the demurrer, and enjoining the defendant from further prosecuting his action at law, but without costs.

So ordered.

(233 Mass. 105)

Exceptions from Superior Court, Middlesex County; Loranus E. Hitchcock, Judge.

Actions of tort by John Gondek, Josephine Gondek, Edward Gondek, and Mary Gondek against the Cudahy Packing Company. Verdicts for plaintiffs, and defendant excepts. Exceptions sustained.

The defendant filed the following requests for rulings which were denied by the presiding justice and exceptions duly taken, viz.: "(1) On all the evidence the plaintiffs are not entitled to recover.

"(2) On all the evidence the automobile of the defendant was not being used on the business of the defendant at the time of the accident.

"(3) On all the evidence the automobile of

GONDEK v. CUDAHY PACKING CO. (four the defendant was not being used with the per

cases).

(Supreme Judicial Court of Massachusetts.

Middlesex. May 22, 1919.)

mission of the defendant at the time of the accident.

"(4) The automobile was duly registered according to the laws of the state of New Hampshire, and was not being used in Massachusetts

1. LICENSES 14(1) - AUTOMOBILES-FOR-in violation of any laws of the commonwealth EIGN CORPORATION AS NONRESIDENT.

of Massachusetts; it was therefore duly regThe provisions of the automobile law re-istered and not a trespasser upon the highways. specting nonresidents (St. 1914, c. 204, § 1) were "(5) If the automobile was being used at the not applicable to a foreign corporation which direction and on the business of one Lacaillade, had places of business in Massachusetts, and the manager of the defendant, such use was not it was subject, respecting all its automobiles in the course of the business of the defendant, within the commonwealth, to the absolute pro-and the knowledge and permission of Lacaillade hibition against operating them on the highway was not knowledge and permission of the deunless registered in accordance with St. 1909, fendant. c. 534, § 9.

"(6) The permission of any officer or manager of the defendant to use the defendant's automo705(12)-AU-bile for any use other than that of the defendUNREGISTERED ant's business was ultra vires and was not therefore the act of the defendant.

One permitting a nuisance, such as operation of an unregistered automobile on a highway, is responsible for injuries caused thereby, though the car at the moment is being used in the business or pleasure of another.

3. MASTER AND SERVANT 330(3)-AUTHORITY OF SERVANT TO OPERATE AUTOMOBILE SUFFICIENCY OF EVIDence.

"(7) There is no evidence on which the jury would be warranted in finding that the automobile at any time during the trip was being used on the business of the defendant.

"(8) The defendant was a nonresident within the meaning of the automobile statutes and the automobile was duly registered in the state of the defendant's residence; it was therefore legally operated upon the highways of the commonwealth.

In an action against a company for injuries In a collision with its automobile driven without registration in Massachusetts by the company's chauffeur under direction of the manager of its New Hampshire plant on such manager's personal business, evidence held insufficient to warrant finding that the company expressly or impliedly authorized its manager to operate ways.

"(9) There was no evidence that the defendant's automobile had been operated in Massachusetts more than twenty days in the calendar year; the automobile was not therefore in that respect violating the statutes of the commonwealth and was not a trespasser upon the high

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(123 N.E.)

"(10) Even if it were found that the trip to | compensation for injuries sustained by them Lawrence was on the defendant's business, the on June 22, 1918, through collision with an subsequent trip to Lakeview Park and return automobile owned by the defendant. Conto Lowell was a departure from the defendant's fessedly the plaintiffs, at the time travelers business, and the defendant was not liable for the acts of Larivee and others during that pe- wealth, were in the exercise of due care and on a highway in Dracut in this commonriod of departure. the operator of the automobile was negligent. The defendant is a corporation domiciled in Maine, but had maintained in 1918 for more than thirty days before the plaintiffs' injuries several places of business in Massachusetts. It also maintained at Nashua, in the state of New Hampshire, a place of business in connection with which the

"(11) Such departure from the defendant's business did not terminate until the automobile had returned to the direct route back to the defendant's place of business.

"(12) The permission of Lacaillade to use the automobile on anything except the business of the defendant was ultra vires and therefore not binding upon the defendant.

"(13) The negligence of Larivee, the operator of the automobile, was not the negligence of the defendant, and the plaintiff is not entitled to

After the judge had delivered his charge, the following colloquy took place at the bench:

The attorney for the defendants objected to the form of the third question, and stated that the defendant claimed that the real question was whether Lacaillade had authority, or whether it was within the scope of his employment, to permit the use of the automobile on his own business, and whether that permission amounted to the consent of the company, and the defendant's counsel stated he thought that, if the manager had authority generally to use the automobile for his own business, it would follow that he would have authority to use it in Massachusetts as well as in Nashua for that purpose, and that he thought that was the real question at issue in the case; that whether or not Lacaillade had authority to permit the commission of an illegal act was not the issue from his point of

view.

"The Court: You would like to have added, 'Authority to operate the automobile upon business of Mr. Lacaillade'?

"Mr. Avery: Yes; and then whether it happened on the highways of Massachusetts or not I don't care."

automobile in question was used. It was registered in New Hampshire, but not in Massachusetts. It was purchased in July, 1917, by the defendant on requisition from one Lacaillade, who for over five years had been manager of the defendant's business at Nashua. It appeared that in 1917 Lacaillade used the automobile five or six times to go from Nashua to Lawrence in this combut there was no evidence on the point monwealth, chiefly on business of his own, whether it was registered in Massachusetts in that year. He occasionally, and whenever he so desired, used it in his own business around Nashua without complaint by the He had sole control over its use. He had ten or twelve men under him

defendant.

in the employ of the defendant at Nashua where a general meat packing business and the business of storing furs and household furniture was conducted. There were executive officers of the defendant in Boston, but none in New Hampshire. A general superintendent visited the Nashua place of business every other week, and perhaps once or twice a year other officers of the defendant went there. On June 22, 1918, Lacaillade having sold a gas stove, which he had stored without pay for several months in the defendant's storehouse at Nashua, to his cousin in Lawrence, Mass., asked one Larivee, employed by the defendant as chauffeur at Nashua, to take the stove to its new ownIt was while returning to Nashua from that journey to Lawrence that the automobile collided with the plaintiffs, causing the injuries here in suit.

er.

[1] The automobile at the time of the accident was an outlaw upon the highways of Massachusetts. The defendant was not a "nonresident" within the meaning of St. 1914, c. 204, § 1, in force on the day of the accident. By that statute "nonresidents"

The court thereupon reframed the third as used in the automobile laws, in subquestion to be submitted to the jury.

Qua, Howard & Rogers, Albert S. Howard, and Melvin G. Rogers, all of Lowell, for plaintiffs.

H. S. Avery, of Boston, for defendant.

RUGG, C. J. These are four actions of tort, whereby the plaintiffs seek to recover

stance, is defined to mean "residents of states or countries who have no regular

place of abode or business in this commonwealth for a period of more than thirty days in the calender year." It is conceded that the defendant had places of business in Massachusetts. Therefore the provisions of the automobile law respecting nonresidents were not applicable to it. It was subject respect

ing all its automobiles within the common- [ registered automobile operated upon a highwealth to the absolute prohibition against way, is that he is responsible for injuries operating them upon the highway unless caused thereby even though it is at the moregistered in accordance with our law (St. 1909, c. 534, § 9). Dudley v. Northampton St. Ry., 202 Mass. 443, 89 N. E. 25, 23 L. R. A. (N. S.) 561; Holden v. McGillicuddy, 215 Mass. 563, 565, 102 N. E. 923; Dean v. Boston Elev. Ry., 217 Mass. 495, 498, 105 N. E. 616. The words of the statute are so plain as to render any other construction not rationally possible. If it be thought harsh to impose such stringent liability upon actual nonresidents who have places of business în this and other states relief must be sought from the Legislature and not from the judiciary. See St. 1919, c. 88.

There is no evidence whatever to the effect that the automobile at the time of the accident was being operated on the business of the defendant. The evidence shows that it was a personal matter of Lacaillade upon which it was driven into Massachusetts.

[2, 3] There is no evidence on this record which warrants the conclusion that the defendant expressly or impliedly authorized Lacaillade, the manager of its Nashua branch, to operate or cause to be operated its automobile on the highways of Massachusetts on his own business. There was evidence from which the inference might be drawn that Lacaillade was authorized to use the automobile in the neighborhood of Nashua on his own business and pleasure. The general course of conduct would constitute evidence to that end. But it was a wholly different matter to use the automobile in Massachusetts. The operation of the automobile in Massachusetts by the authority of the defendant not only would subject it to a fine (St. 1909, c. 534, § 10), but also would render it liable to heavy and unusual civil liability. It would be responsible for injuries caused by the negligent operation of the automobile even though not at the time being used in its business. The consequence of one permitting a nuisance, such as an un

ment being used in the business or pleasure of another. Gould v. Elder, 219 Mass. 396, 107 N. E. 59; Koonovsky v. Quellette, 226 Mass. 474, 116 N. E. 243, Ann. Cas. 1918B, 1146. Authority to impose liabilities of this kind upon the defendant, having their origin in authority to commit a crime, cannot be inferred from mere employment as manager of a business dealing in the necessities of life. For all things done within the natural course of the management of its Nashua branch and in furtherance of its business by Lacaillade, the defendant would be liable. On the occasion in question the automobile was not being used to promote its affairs, but for something quite outside its business.

There is nothing in the evidence which warrants the inference that the defendant knew or ought to have known that Lacaillade was using the automobile in Massachusetts for his own business or pleasure, so that acquiescence in such use might be implied. The day of the accident was the first time it had been used in Massachusetts in 1918. If it be assumed in favor of the plaintiffs that the automobile was not registered in Massachusetts in 1917, the use of it by Lacaillade five or six times to visit his family in Lawrence is not enough to fasten knowledge, consent, and responsibility upon the defendant under all the circumstances. It does not appear that this use was at times and under conditions likely to come to the attention of the defendant.

[4] The defendant's requests for instructions plainly cover this point. The remarks of counsel respecting the form of the third question did not amount to a waiver of his requests and do not appear to have misled the judge in any particular. They were made after the requests for rulings had been denied and the law thus established for the trial.

Exceptions sustained.

(188 Ind. 724)

(123 N.E.)

INDIANAPOLIS TELEPHONE CO. v.
STATE. (No. 23584.)

(Supreme Court of Indiana. June 6, 1919.)
APPEAL AND ERROR 1161-CONFESSION OF
ERROR.

Appellee having confessed error of record, the judgment will be reversed, and the case remanded for further proceedings.

the issues submitted to a jury for trial, resulting in a verdict for $8,237.94 in favor of the stone company, and judgment followed in its favor against appellants.

The overruling of appellants' motion for a new trial is assigned as error, and is the only error assigned and not waived. The specifications relied upon to support the motion require a consideration of the evidence. The giving of certain instructions are challenged, but not on the ground that they were impropAppeal from Circuit Court, Marion County; er and erroneous upon any state of the eviLouis B. Ewbank, Judge. dence admissible under the issues. The instructions are here, if at all, only by a bill of

Controversy between the Indianapolis Telephone Company and the State of In-exceptions. Appellee makes the point that diana. From the judgment rendered the for- neither the evidence nor the instructions are mer appeals.. Reversed and remanded. properly a part of the record.

L. Ert. Slack, of Indianapolis, Charles M. Braclelear, Foster & Smith, and Myers, Gates & Ralston, of Indianapolis, for appellant.

PER CURIAM. In this case the appellee confesses error of record. The judgment is therefore reversed, and this case is remanded for further proceedings.

(188 Ind. 328)

It appears from the record that the jury returned its verdict into the Adams circuit court on May 3, 1916. On May 15, 1916, appellants filed their motion and specifications for a new trial. On October 27, 1916, appellants' motion for a new trial was overruled and the stone company was given judgment on the verdict. On that day appellants prayed an appeal to the Supreme Court, which was granted, amount of bond fixed. and 30 days given in which to file same; also 90 days given in which to file their bill of exceptions. The transcript fails to dis

SISK et al. v. STATE ex rel. ERIE STONE close an order book entry showing the filing CO. (No. 23247.)

of any bill of exceptions within the time allowed by the court, or that any extension of time was given in which to file bills of exception, nor is there any order book entry or certificate of the trial judge showing that any bill of exceptions was filed, or even tendered to the court for settlement, within the time allowed therefor. The only order book entry which is of date April 23, 1917, in any manner referring to the filing of a bill of exceptions, is as follows:

"Come now the defendants, by their attorney, A. L. Sharp, and file herein their bill of exceptions No. 1 in these words, (H. I.) and the same is signed, sealed, and made a part of the record herein."

This order book entry refers to what purA. L. Sharpe, of Bluffton, and Jesse C. Sut-ports to be the bill of exceptions No. 1 emton, of Decatur, for appellants.

Peterson & Moran and C. J. Lutz, all of Decatur, Moran & Gillespie, of Portland, and H. B. Heller, of Decatur, for appellee.

MYERS, J. This was an action by appellee, the Erie Stone Company, to recover upon a contractor's bond for stone and material furnished appellants in the construction of a macadam road. The complaint, in two paragraphs, answered by general denial, a plea of payment, set-off, and a counterclaim in two paragraphs, with a reply of general denial to each affirmative paragraph of answer and to each paragraph of the counterclaim, formed

bodying the evidence, and to which is attached the certificate of the trial judge in effect authenticating the correctness of the transcript of the evidence as made by the report from his shorthand notes of the evidence taken at the trial, together with all objections and rulings of the court and exceptions thereto. This certificate is dated April 23, 1917.

This state of the record, as pointed out by appellee and unchallenged by appellants, and which upon examination we find to be correct, compels us to hold that neither the evidence given in the cause nor the instructions tendered by the appellants and refused, as well

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 123 N.E.-26

Frederick Van Nuys and Elias D. Salsbury, both of Indianapolis, and Gentry & Campbell, of Noblesville, for appellant.

as the instructions given by the court, are Quo warranto on the relation of George B. a part of the record. Therefore any questions Daubenspeck against Elbert H. Day and depending upon the evidence, or questions others. From the judgment rendered, repertaining to the instructions, are not pre- lator appeals. Reversed and remanded, with sented, for the reason it clearly appears from instructions. the record that the bill of exceptions relied on by appellants were not filed within the term at which the cause was tried nor were they filed within the time given by the court for that purpose. Lengelsen v. McGregor, 162 Ind. 258, 67 N. E. 524, 70 N. E. 248; Taylor v. Schradsky, 178 Ind. 217, 97 N. E. 790; Haehnel v. Seidentopf, 63 Ind. App. 218, 114 N. E. 422; North American Union v. Oleske (App.) 116 N. E. 68; Huntingburg Bank v. Morgenroth (App.) 115 N. E. 798. Judgment affirmed.

(189 Ind. 243)

Emsley W. Johnson and Joseph W. Hutchinson, both of Indianapolis, for appellees.

MYERS, J. This is a proceeding in quo warranto brought by the relator, George B. Daubenspeck, against appellees to determine the right of each appellee to the office of director of the Union Telephone Company of Carmel, Ind. Issues were formed, trial had, special finding of facts made, and conclusions of law stated thereon in favor of appellees, and judgment against appellant. The errors assigned question: (1) The ruling

STATE ex rel. DAUBENSPECK v. DAY et al.* of the trial court on relator's demurrer to

(No. 23508.)

(Supreme Court of Indiana. May 27, 1919.)

1. TELEGRAPHS AND TELEPHONES STOCKHOLDERS NUMBER OF SHARES ONE

MAY HOLD-PROVISIONS OF ARTICLES.

In view of Burns' Ann. 1914, §§ 5794, 5800, articles of incorporation of telephone company in question providing that no one shall at any of the capital stock is without force, not being required by section 5790, as to articles of incorporation, and owner of more than five shares is entitled to vote all shares; there being no statute or by-law to the contrary.

one time own or control more than five shares

2. CORPORATIONS 55 MAY MAKE.

BY-LAWS

WHO

While ordinarily by-laws are made by the stockholders, yet, where the statute gives that power to the board of directors, the stockholders cannot change it or interfere with the board in this particular so long as such by-laws are reasonable and do not interfere with the vested and substantial rights of the stockholders or are not contrary to public policy or established law. 3. TELEGRAPHS AND TELEPHONES 5-INCORPORATION OF COMPANIES "SUPPLEMENTAL" ACT-CONSTRUING TOGETHER.

the second paragraph of answer; and (2) each conclusion of law.

The assignments of error present the same question. The following facts taken from the special findings will suffice to indicate the question for decision: The Union Telephone Company was incorporated on August 19, 1903, under an act of the General Assembly of this state approved April 7, 1881 (Acts 1881, c. 101), and acts amendatory thereof and supplemental thereto. From then until now the board of directors has been composed of five stockholders. It was the custom of the company to elect annually three, one for the term of one year and two for the term of two years. 962 shares is a majority of all the shares of stock issued and outstanding. Appellees are now acting as directors of the company, claiming to have been elected at a regular annual stockholders' meeting. The facts pertaining to their election are as follows:

Three directors were to be elected. Tellers were chosen, and six persons, appellees and three others, all qualified for the office of director, were nominated to be voted for. Appellees each received 68 votes and all counted for them. The other three nominated received 96% votes each, but the tellers only counted for them 281⁄2 votes, and rejected and refused to count the other 68 on the sole ground that these votes represented 68 shares of stock of the company owned and controlled by the relator over and above the 5 shares voted by him, and that to count the 68 votes would be in violation of, and contrary to, article 11 of the articles of as211-CONSTRUCTION-TITLE- Sociation, which reads as follows::

Acts 1881, c. 101, entitled "An act concerning telephone companies and supplemental to an act for the incorporation of manufacturing companies," etc., supplemented the manufacturing act, and the acts must be construed together and as applicable to telephone companies; "supplemental" referring to "that which is added to a thing to complete it."

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Supplemental Act.]

4. STATUTES

LEGISLATIVE INTENT.

The title of an act may be used as a guide in determining the intention of the lawmakers.

Appeal from Circuit Court, Hamilton County; Ernest E. Cloe, Judge.

"No person, firm or company can ever at any one time own or control more than five shares of the capital stock of this company, and every I such person, firm or company shall be entitled to only one telephone connection for each paid-up

share of stock so owned."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Rehearing denied.