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the only purpose for which any one saw the injury been withdrawn from such or any engine used, both before and after the accommerce, and hence the plaintiff in that cident, was interstate commerce exclusively. case was not injured while engaged in in

[5] The plaintiff had thus made a prima terstate commerce. In this case, however, facie case, and, the defendant having pro the plaintiff was injured while engaged in duced no evidence upon that question, the repairing an instrumentality which before finding of the jury is conclusive upon this the injury had been exclusively used in incourt. After a careful reading of the opinion terstate commerce and was being repaired so in the case of Law v. Illinois Cent. Ry. Co., as to be again used for the same purpose and 208 Fed. 869, 872 (126 C. C. A. 27, 30, L. R. A. was so used after the injury. 1915C, 17), we can see no escape from the [6] It is next contended that the plaintiff foregoing conclusion. That case as before assumed the risk. In view that that defense stated, was decided after the Pierson Case is available as a complete defense under the to which we have referred. In the Law Case Federal Employers' Liability Act, and espeit appears that the plaintiff was a “boller-cially in view that the jury found the plainmaker's helper," and was injured while retif guilty of contributory negligence, counpairing what is called a "petticoat,” which sel for defendant has urged that proposiwas a part of the boiler used on the freight tion with much vigor. It is urged that in engine, and which the plaintiff contended was view that the jury found that the plaintiff being used in interstate commerce at the was guilty of contributory negligence, there time of the injury. The controlling facts fore it necessarily follows that he also had upon which the court based its decision in assumed the risk. Counsel insists that, in that case are stated in the opinion in the order to have found the plaintiff guilty of following words:

contributory negligence, the jury necessarily "In the instant case the engine was in the must have found that he knew and apprecishop for what is called 'roundhouse overhauling.' ated the dangers arising from the use of the It had been dismantled at least 21 days before the accident. Up to the time it was taken to emery wheel without protection to the eyes, the shop it was actually in use in interstate and that the foregoing are the only essential commerce. It was destined for return thereto elements in the defense of assumed risk. upon completion of repairs. It actually, was He insists, therefore, that we should declare so returned the day following the accident. It clearly did not lose its interstate character from as a matter of law that plaintiff had assumthe mere fact that it was not at the time actual. ed the risk. ly engaged in interstate movement, no more than In this case two independent grounds of did the dining car in Johnson v. So. Pac. R. R. Co., 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ea contributory negligence were pleaded by the 363, while waiting for a train to make the re- defendant, both of which were supported by turn trip, or than did the car in the Walsh Case evidence produced by it. One of the grounds while standing on a track awaiting replacement of negligence related to the plaintiff's conof the drawbar. Were the repairs being made in duct at the time of the accident, which it the roundhouse between two regular daily trips, the engine, while under such repair, would clear- was contended by the defendant, was really ly not lose its character as an instrumentality the proximate cause of the injury complainof commerce; and plaintiff, in such case, would ed of by the plaintiff, while the other ground have not here a case of original construction of of negligence arose after the accident and an engine not yet become an instrumentality of related to plaintiff's conduct, by which, it is interstate commerce. It had already been im- contended, he had aggravated the injury to pressed with such use and with such character. the eye and hence increased the damages. Its preservation as such was not a matter of indifference to defendant, so far as its interstate The jury, therefore, may have found that the commerce was concerned. See Pedersen Case, plaintiff was negligent in his conduct re229 U. S. 151-152, 33 Sup. Ct. 648, 57 L Ed. specting the treatment of his eye, and may 1125 (Ann. Cas. 1914C, 153). Under the exist-have deducted the amount from the whole ing facts, can the length of time required for the repairs change the legal situation? If so, where amount of damages allowed him for that is the line to be drawn? How many days tem- reason. If that were so, counsel's contenporary withdrawal would suffice to take it out of tion last above stated would necessarily have the purview of the act? And is it material whether the repairs take place in a roundhouse no application here. Assuming, however, for or in general shops? Is it not the test whether the purposes of this decision, that the jury the withdrawal is merely temporary in charac- found that plaintiff's conduct at the time of ter? As held in the Pedersen Case, the work of the injury was negligent, and hence found keeping the instrumentalities used in interstate him guilty of contributory negligence in that commerce (which would include engines) in a proper state of repair while thus used' is 'so regard, yet it does not necessarily follow clearly related to such commerce as to be in that counsel's contention that plaintiff aspractice and in legal contemplation a part of sumed the risk should prevail. The defenses it.'"

of assumed risk and contributory negligence We remark: The case at bar is entirely are entirely independent, and in case there different from the case of Perez v. Union is a conflict in the evidence, or where the Pac. Ry. Co., 173 Pac. 236, decided at this facts are such that reasonable men may legitterm. In that case the instrumentality imately draw different conclusions from the which caused the alleged injury, although it evidence, or may arrive at different conclumay have been used in interstate commerce sions, it cannot be determined as a matter of before the injury, it yet had at the time of the law that either the one or the other defense

is established, and the jury may, therefore, , tion. The questions propounded to the mothfind that one of the defenses was established er were, however, pot proper cioss-examinaand may also find that the other was not. tion, and, in'view that her statements were While in some of the cases there is some con- not material evidence, the defendant was fusion respecting the distinction between the bound by her denials. It is elementary that two defenses, yet, as a general rule, the a witness may not be impeached unless the courts have found little difficulty in enforc- statements made by such witness which are ing the true distinction. The distinction is, sought to be impeached are material. perhaps, as well and as clearly stated in a [11, 12] It is also contended that the court few words as that can be done in the case erred in charging the jury upon the question of Thomas V. Quartermaine, in L. R. 18, of damages. It is insisted that the court inQ. B. Div. at page 697, where, in discussing cluded an element of damages in its charge the distinction, it is said:

with respect to which there was no evi“But the doctrine of volenti non fit injuria dence; and, further, that the court permit(assumed risk] stands outside the defense of conted plaintiff to recover for loss of earnings tributory negligence and is in no way limited

by before he was of age, which, it is asserted, it. In individual instances the two ideas sometimes seem to cover the same ground, but care- did not belong to him, but belonged to his lessness is not the same thing as intelligent mother. It is true that the court charged choice." (Italics ours.)

the jury that they were "authorized to take The distinction is also very intelligently into consideration * • whether discussed and clearly stated by the author in the injuries * • have affected * 3 Labatt Mast. & Serv. § 1219 et seq. The his

earnings in the past." There fundamental element in assumption of risk, was, however, neither allegation nor proof, where it is not assumed as a matter of con nor claim of any kind, for lost services or for tract, as stated in the foregoing quotation, services during plaintiff's minority. This 18 “Intelligent choice"; that is, the employé, element of damages was included in the before he may be charged with having as- court's charge merely because such elements sumed the risk, must not only have fully un are usually included in such charges. There derstood and appreciated the danger, but he, is, however, nothing in this case to show in the very face of the danger, must, volun- that the plaintiff did not support himself tarily, have assumed the risk of injury. from his own earnings, and'if he did so he Nothing short of that constitutes intelligent was certainly entitled to them. From a conchoice. As a matter of course, whether in sideration of the court's charge, it is quite any case the risk was or was not assumed clear, however, that the defendant was not, must be determined from all the facts and and could not have been, prejudiced by the circumstances. But whatever those facts and foregoing statement in the instruction comcircumstances are, it must appear therefrom plained of. The jury were clearly informed that the employé voluntarily elected to con- that they must be guided and controlled tinue in the hazardous work. It needs no alone by the evidence produced before them argument, therefore, to demonstrate that in arriving at their verdict. While it is true, while in a particular case facts may be such as a general rule, that it constitutes error to as to justify a finding of both contributory submit to a jury questions of fact or issues negligence and assumption of risk, yet con- upon which there is no evidence, yet it does tributory negligence does not necessarily not always follow that prejudice results from arise from intelligent choice, and therefore is an erroneous charge of that character. not necessarily included in assumption of Where, as here, there is no claim nor evirisk, as contended for by counsel.

dence respecting plaintiff's earnings, it will [7] In view of what has just been said, it not be assumed that, in view of the charge was the province of the jury to say which of the court that the jury must be governed one of the two defenses was established. by the evidence, they did allow anything for

[8] It is further contended that the district past earnings. This question was before the court erred in excluding certain declarations Supreme Court of Indiana in the case of attributed to plaintiff's mother relating to Ohio & M. Ry. Co. v. Stein, 140 Ind. 61, 39 the treatment of his eye. The declarations N. E. 246, and in Lytton v. Baird, 95 Ind. of the mother not made in the presence of | 349, in which cases it was held that such a the plaintiff were clearly not admissible. charge, under the circumstances outlined

[9] Nor did the court err in excluding the above, cannot be held to be prejudicial. proffered evidence respecting the acts of the Moreover, it is assumed by appellant's coun. mother in treating plaintiff's eye. The rea- sel that, inasmuch as plaintiff is a minor, he son why such acts are incompetent evidence i necessarily may not recover anything for are clearly stated by Mr. Justice Thurman loss of services during his minority. That, in the case of Farnon v. Silver King, etc., however, does not of necessity follow, since, Co., 167 Pac. 675. This question was, how- under our statute (Comp. Laws 1907, 88 1544 ever, submitted to the jury under proper in- and 3243), the earnings of a minor do not structions.

absolutely belong to the parent. If the con. (10) Nor did the court err in excluding the tract for services is made with the minor other statements attributed to the mother. alone, then, under section 1544, supra, the True, she had denied them on cross-examina- employer may safely settle with and pay the

reasons

minor and the parent has no claim. Here, The Judgment, now as then, decrees the as we have seen, the mother makes no claim existence of a partnership, and adjudges whatever, and hence we cannot see how the plaintiff, Gleeson, the owner of a one-third defendant could have been prejudiced.

interest in the mining claims which are held For the

stated the judgment to be the property of such partnership. From should be, and it accordingly is, affirmed; this judgment, together with the order deplaintiff to recover costs.

nying defendant's motion for a new trial,

an appeal to this court has been prosecuted. MCCARTY, CORFMAN, THURMAN, and The case was tried by the court without a GIDEON, JJ., concur.

jury, and findings of fact full and complete, together with conclusions of law, were filed.

Thirty-two errors, based largely on the find(19 Ariz. 532)

ings, have been assigned, but we discuss only COSTELLO v. GLEESON. (No. 1531.)

those deemed vital and necessary to a correct (Supreme Court of Arizona. May 10, 1918.) determination of the issues involved. Inas

much as the pleadings are practically the 1. MINES AND MINERALS 98-CREATION OF TRUST-EVIDENCE-PARTNERSHIP,

same as in the former action, there is no Evidence held insufficient to warrant the necessity for restating here the respective finding by the trial court that defendant's tes- claims of the parties as they appear in the tator held one-half of a mining claim in trust third amended complaint and the second for an alleged partner, or that he held other mining claims in trust for the alleged partner- amended answer upon which the case was ship.

tried and is here for review. The executor 2. TRUSTS CW44(3) — CREATION OF PARTNER- of Reilly's estate was made a party defendant SIIIP TRUST-EVIDENCE REQUIRED.

in this action, but his answer contains only Proof of a consummated partnership which would have the effect of establishing a trust re

an admission of Reilly's death, and the aplation ought to be as clear and satisfactory as is pointment and qualification of his executor, torequired to prove the trust relation direct. gether with an allegation denying any knowl. 3. MINES AND MINERALS 97-PARTNERSHIP edge or information on the part of the exec

ESTABLISHMENT OF RELATION - WEIGHT AND SUFFICIENCY OF EVIDENCE.

utor relative to the facts alleged in the third Evidence held insufficient to prove the es- amended complaint and submitting any intablishment of the partnership relation.

terest or claim which Reilly's estate might 4. MINES AND MINERALS 100 – PARTNER- have in the partnership to the consideration

SHIP-DISSOLUTION AND ACCOUNTING-Evi- of the court. ! Evidence held to show that plaintiff had re

It appears from the findings that in Deceived from defendant's testator a return of the cember, 1901, John Gleeson, appellee, one money he claimed he had paid into the partner. James Reilly, and Martin Costello, decedent ship, and had thereby dissolved the partnership, of appellant herein, agreed to form a partand abandoned any interest therein, if one existed, and that the alleged partnership property nership, having for its object the owning, was the individual property of defendant's tes working, and selling of four certain contigtator.

uous mining claims, situated in the TurAppeal from Superior Court, Cochise Coun- quoise mining district, Cochise county, Ariz., ty; A. O. Lockwood, Judge.

to wit, the San Francisco, Fennard, Batavia, Action by John Gleeson against Mary M. and Mono. By the terms of this agreement Costello, as executrix of Martin Costello, de it was provided that Gleeson should contribceased. From judgment for plaintiff, and an

ute to the partnership an option which he order denying new trial, defendant appeals. then held, and on which he had paid $350 in Reversed and remanded, with direction.

monthly payments of $50 each, to purchase Joseph Scott and Ben Goodrich, both of 18 months from May, 1901, three of the

from one Patrick Power, for $20,000, within Los Angeles, Cal., and Ellinwood & Ross, of Bisbee, for appellant. Eugene S. Ives, of aforesaid mining claims, to wit, the San Tucson, and Fred Sutter, of Bisbee, for ap-valued at $40,000; that Reilly and Costello

Francisco, Fennard, and Batavia, which were pellee.

should contribute the Mono mining claim, MCÀLISTER, J. This case is before the which was valued at $20,000, and of which court a second time upon practically the they were then the owners, but, in order that same pleadings, evidence, and judgment. In the contributions of the three partners might the former opinion it was described as:

be equal, it was agreed that Costello and "An equitable action prosecuted by John Glee- Reilly should pay the $20,000 purchase price son, appellee, against Mary M. Costello, as ex- called for by Gleeson's option from Patrick ecutrix of the last will and testament of Martin Power, less the monthly payments already Costello, deceased, appellant, praying for the made by Gleeson. dissolution of an alleged partnership, for an accounting, and for an order directing a convey.

Two months thereafter, to wit, in Februance to John Gleeson by the said executrix of ary, 1902, at a conference of the three part. an undivided one-third interest in the mining ners, on the suggestion of Reilly, it was declaims described in the second amended complaint and alleged to belong to the partnership." cided to extend the scope of the partnership 15 Ariz, 280, 138 Pac. 544.

so as to embrace a large number of other

DENCE.

mining claims in the Turquoise district, in this that when the partners were ready to which, in the opinion of Gleeson, Reilly, and begin active work on the mines, and Gleeson Costello, the mining industry was then look- and Reilly had contributed their proportions ing up. At that time Costello was the own- of the purchase price of the said claims, Coser of over $200,000 in cash, but was indebted tello should deed to the corporation all the to Reilly in the sum of $90,000, and John mines owned by the partnership, and that Gleeson, on that day, became the owner of John Gleeson should have the management four promissory notes, aggregating $53,000, of the affairs of said corporation, at a salsecured by a mortgage on certain mines and ary of $250 per month, and be paid $60 per mining claims of the Copper Belle Mining month for the use of his teams and wagons. Company. Gleeson objected at first to Reil. The Costello Copper Company, however, ly's proposal to extend the scope of the part- transacted no business whatever, and none nership by the purchase of other claims up of the claims was deeded to it, but Martin on the ground that he had not the means to Costello paid for all assessment work, taxes, enter upon such an undertaking, whereupon and the expenses of making locations and Costello agreed to advance the money for procuring patents. him, provided he would transfer to Costello Litigation arose over the Copper Belle the said Copper Belle notes as security for notes not many months after their receipt by Gleeson's contributions, and provided, fur: Gleeson, who, acting upon the advice of Reilther, that title to all the claims acquired ly, transferred them to Martin Costello for should be taken in the name of Costello, and the purpose of making more sure their colso beld until Gleeson and Reilly should con- lection, in consideration of the sum of $25,tribute their share of the purchase price of 000 and other mining property situated near said claims. In pursuance of this arrange- Tombstone. This transfer, while ostensibly ment, Gleeson at that time left said notes evidencing a sale in fact, was, in reality, a with Reilly, representing the partnership, "as wash sale, not bona fide, and made solely security for his obligation to contribute his for the purpose of enabling Costello to colshare of the expenses of the partnership." lect the notes; it having been mutually

It was further agreed that Gleeson, being agreed between Costello and Gleeson that a man of experience in the mining industry, when they were collected Costello should should contribute his knowledge and experi- turn the proceeds over to Gleeson, the real ence in acquiring such claims as they might owner of the notes. desire; that Reilly, who was an attorney at In September, 1907, Costello granted to law, should contribute the legal services nec- L. W. Powell, representing the Calumet & essary in the acquisition and disposition of Arizona Mining Company, an option to pursaid claims; and that Costello, a man of chase certain of the partnership mining large means, should advance, without inter- claims for the sum of $150,000, to be paid est, the cash necessary to purchase said as follows: $15,000 down, $35,000 on or beclaims, subject to reimbursement by Reilly fore September 30, 1908, and $100,000 on or and Gleeson in proportion to their one-third before March 30, 1909. Gleeson had prominterests. In pursuance of the agreement to ised Powell, shortly before this, while Cosextend its scope, the partnership purchased, tello was in Europe, an option covering this between 1902 and 1908, a large number of identical property, and on the same terms, mining claims in the Turquoise district, and except that he required no payment down, took title to same in the name of Costello, whereas Costello demanded a 10 per cent. who advanced from his personal funds all initial payment and refused to sign any the money therefor, to wit, about $80,000.

option which did not contain such provision, Shortly after the partnership decided to whereupon Gleeson, desirous that the sale increase its holdings, the Power option, be be consummated, guaranteed said L. W. Powcause of the decrease in value of mining ell, representing the Calumet & Arizona property and the depressed condition of the Mining Company, a repayment of the 10 mining industry generally in the Turquoise per cent. demanded by Costello in case said district, was by mutual agreement abandoned, and payments stopped thereon, under the option was not completed, and, since no pay. belief that a second option could be procured ments other than the initial one of $15,000 later on at a less price; and thereafter, to rendered and Gleeson forced to return to

were made thereon, the option was surwit, on June 6, 1903, an option on the said San Francisco, Fennard, and Batavia mining said company $6,250, but the agreement to claims was taken from Patrick Power by the return this initial payment was the individpartnership in the name of Costello, which ual obligation of Gleeson; the other parties option was thereafter consummated by Cos- having neither consented to it nor ratified tello's paying the purchase price of the said it. Gleeson was very active in the negotiaclaims.

tions of the said option for the reason that In August, 1903, Gleeson, Reilly, and Cos he and one Douglas Gray were interested tello formed a corporation, the Costello Cop in an option on which L. W. Powell, repreper Company, for the more convenient han- senting the Calumet & Arizona Mining Comdling of the mining claims owned by the pany, had paid them $15,000, and he bepartnership. It was agreed shortly before lieved that if the option on the partnership

an

property was taken by the Calumet & Ari-, money and his interest in the property, he zona Mining Company also, it would make accepted from Costello, without deducting the consummation of the option he and Gray anything for his contribution to the partner. were interested in more probable, since the ship, the money due him on the Copper properties covered by the respective options Belle notes, less the amounts due both Coswere located in the same district not very tello and Reilly on account of individual far apart. The Calumet & Arizona Mining transactions, and an item of $11,549.19 due Company, however, abandoned its option by Mrs. Reilly. Gleeson thereafter executed a failing to make the second payment of $35,- | deed in favor of Martin Costello conveying 000 due September 30, 1908, but thereafter, the mines deeded by the latter to the for. to wit, on December 16, 1908, the Copper mer as a part of the consideration for the Queen Consolidated Mining Company took pretended sale of the notes, and offered to

option on the same property, upon deliver the same to Costello, but he refused which Costello received about that date the it, as did his executrix when the offer was sum of $35,000, and on June 21, 1909, a' fur. renewed after his death. ther sum of $57,500. Thereafter said Copper

The interest of James Reilly in and to Queen Consolidated Mining Company aban- the assets of said copartnership were transdoned said option, making no further pay- ferred by him to Costello before the former's ments thereon.

death, which occurred June 8, 1909. This · By August, 1908, the suit on the Copper action was filed September 24, 1909, and CosBelle notes had been decided, and the pro-tello died September 15, 1911. ceeds were ready to be paid over to Gleeson. The foregoing gives the substance of the Reilly wrote Gleeson on August 8, 1908, to court's findings and with sufficient particuthis effect, inclosing a statement of the larity for the purposes of this decision. amount due Reilly by Gleeson on account [1] The assignments of error in the main of various legal services, and on September revolve around the question of the sufficiency 13, 1908, “Gleeson called upon Reilly and of the evidence to support: First, the find. Costello in Tombstone for the purpose of ing that Gleeson, Costello, and Reilly enter. settling up the Copper Belle transaction, ed into a partnership agreement in December, and all of his dealings with Reilly and Cos- 1901, relating to the four mining claims, San tello, and repaying the said Costello, such Francisco, Fennard, Batavia, and Mono; and, sums as were due him for money advanced second, the finding that the scope of such on behalf of Gleeson’s interest in the partner- partnership was extended in February, 1902, ship.” At the interview which the three when the three partners agreed to purchase a partners then had, Reilly, who had been for large number of other claims in the Turyears the legal adviser of both Gleeson and quoise mining district; and, third, the further Costello individually, and who had acted finding that Gleeson did not relinquish and also as legal adviser for the partnership, and abandon any interest he may have had in the kept a record of its transactions, produced partnership by the transaction or settlement a list of the partnership mining claims, with of September, 1908. Appellant contends, first, the amounts paid for each, from which the that the evidence is not sufficient to support Casey claims, to wit, the Tin Horn, Hard the finding that a partnership agreement reUp, and Head Center, were omitted, and to lating to the three Power claims and the this Gleeson objected, Costello then, for the Mono was made and consummated, for the first time, denied that either Gleeson or the reason that there is nothing in the record to partnership owned any interest in these show that Reilly ever owned one-half of the three claims, but admitted the existence of Mono claim or contributed such one half or the partnership and Gleeson's interest as to any other thing of value to the alleged partner. the other claims. After a heated controversy ship. According to Gleeson's allegations, and between Costello and Gleeson as to whether the court's findings, the assets of the part. these three claims belonged to Costello or the nership, to begin with, consisted of four partnership, Reilly suggested that, inasmuch mining claims, to wit, the San Francisco, as the money due in a few days under the Fennard, Batavia, and Mono, valued, for option to L. W. Powell, representing the Cal. umet & Arizona Mining Company, was more partnership purposes, at $60,000, which were than sufficient to pay all moneys advanced contributed by Gleeson, Reilly, and Costello by Costello, it was not necessary that Glee- in equal proportions. Gleeson's contribution son repay Costello for his advances out of of $20,000 was the Power option, of which he the proceeds of the Copper Belle notes, but was then the owner, and upon which he had that he should take the money and have no paid $350 in monthly installments of $50 each. further dispute over the matter, and every- Reilly's and Costello's contributions were one thing would be all right. Realizing that the half each of the remaining purchase price of title to the mining claim stood in Costello's the San Francisco, Fennard, and Batavia name, and that the notes had been trans- claims, which was $20,000, less the payments ferred to him also, and fearing that if he made by Gleeson, and one-half each of the did not accept the proceeds of the notes as Mono claim, valued at $20,000, of which they

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