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the damages resulting when the driver moving car weighing 3,600 pounds of an automobile, in attempting to get from leaving the road." back into the road after he had pulled In Bancroft v. East Montpelier out on the side to let another automo- (1920) 94 Vt. 163, 109 Atl. 39 (affirmbile pass, went through a rotten guard ing a judgment for plaintiff), the rail on a bridge, even though the de- court said that, if there had been any fective brakes on the automobile were railing at the place in question, there a contributing cause of the accident. might have been some reason for comLa Ville de Belæeil v. Rioux (1918) plying with the defendant's request Rap. Jud. Quebec 27 B. R. 329.

to charge that the town was not legalIn Kelsea v. Stratford (1921) ly required to protect the culvert in N. H. 118 Atl. 9, overruling excep- question to the extent that it would be tions to the verdict for plaintiff, it was impossible for an automobile to run off held that a wire fence, almost ready the culvert or the approaches, but as to fall, which was built not on the top there was no railing it was not necesof a 25-foot embankment, but 2 feet sary to pass on the point. And to the from and 1 foot below the top, even if same effect is Richmond v. Bethlehem treated as a railing, could be found to (1918) 79 N. H. 78, 104 Atl. 773. be defective, or so placed that it was calculated to deceive rather than to

V. Where automobile is beyond control. notify travelers as to where it was

Where an automobile has gotten out safe for them to drive; for instead of

of the control of the driver and goes its being safe to drive close to the

through a barrier at a dangerous railing, as is usually the case, it was

point along the highway, or leaves the unsafe to drive within 2 feet of it.

highway at a point where there is no The court said in effect that this was

barrier, it is usually held that such true whether the office of a railing is,

accidents are so unusual that there is as the plaintiff contended, to prevent

no duty imposed to erect a barrier such travelers driving over an embankment,

as would have prevented the autoor, as the defendant contended, to

mobile from leaving the highway. notify them of the embankment.

Briglia v. St. Paul (1916) 134 Minn. The court in Kelsea v. Stratford

99, L.R.A.1916F, 1216, 158 N. W. 794; (N. H.) supra, in disposing of an ex

Best v. State (1922) 203 App. Div. 339, ception to a refusal of the trial court

197 N. Y. Supp. 69; Swain v. Spokane to charge the jury that the town was

(1917) 94 Wash. 616, L.R.A.1917D, not bound to maintain a railing that

754, 162 Pac. 991. would resist, without breaking, the

In Swain v. Spokane (Wash.) suimpact of a heavy automobile travel

pra, which is cited in the reported case ing at a given speed, said: “It may be

(DALLAS V. MAXWELL, ante, 927), aftrue, as the defendants contend, that

firming the judgment dismissing the a town is not bound to maintain rail- complaint, it was held that a ings that are strong enough to prevent nicipal corporation is not bound to a person driving his car over a bank, maintain a railing along the side of a but it does not follow that a railing bridge, of sufficient strength to stop an which is not strong enough to prevent

automobile which leaves the roadway a slowly moving car from going over and crosses the curb and sidewalk bea 25-foot embankment is a 'sufficient

cause of defective steering gear. The railing' within the meaning of that court said that the city was only term as used in Laws 1893, chap. 59, $

bound to maintain its streets safe for 1. The test to determine that issue is ordinary use reasonably to be anticito inquire whether the railing is such pated, and that it could not be a one as the ordinary man would main- anticipated that a car, by reason of its tain in such a place, and it cannot be own defects, would be driven across said as a matter of law that the ordi- the curb and over the sidewalk against nary man would not maintain a railing the railing. at the place where the accident hap- The state is under no duty to erect pened, which would prevent a slow- a barrier along a straight stretch of

mu

highway, adjacent to an abrupt de- Belæeil v. Rioux (Quebec) supra, IV., cline, sufficiently strong to withhold where defective brakes were a conthe impact of a motor bus, which had tributing factor to the accident. gotten beyond control by reason of a It was said in Indianapolis v. Moss defect in the steering gear, and so pre- (Ind.) supra, that if ordinary care for vent the bus from leaving the high- the safety of those traveling on a way. Best v. State (1922) 203 App. highway by the usual modes of Div. 339, 197 N. Y. Supp. 69.

travel required that a barrier should And in the reported case (DALLAS V. be erected and maintained, it was MAXWELL, ante, 927) it is held that the duty of the city to anticipate a city is under no duty to maintain a that some vehicle might come in barrier along a street, which in the contact with the barrier with such absence of a barrier is safe for ordi- force as might have been overcome nary travel, which would prevent an with reasonable resistance, and to automobile out of control of the driv- have provided against dangers ariser, because of a defect in the steering ing therefrom, and a person would gear, from leaving the street and run- have the right to the protection that ning into a near-by ravine.

such barrier would afford, regardless A city is under no duty to erect a of the cause of the occurrence. It was guard rail or barrier along a well- indicated that a city would be under surfaced, comparatively wide highway, no duty in all cases to provide barriers separated from a precipitous bluff by to prevent automobiles not under cona gutter and sidewalk, which would trol, because of locked steering gear, prevent an automobile which, for some from leaving the street, since such reason not explained, had stopped and circumstances are not reasonably to commenced to back across the side- be foreseen, nor to erect a barrier sufwalk, from going over the embank- ficiently strong to prevent automobiles ment or bluff, which was separated not under control, from going over an from the roadway by a gutter and embankment along the street, regardsidewalk. Briglia v. St. Paul (1916) less of weight, power, and speed of 134 Minn. 99, L.R.A.1916F, 1216, 158 machine. N. W. 794. See also Dorrer v. Calli

VI. Where automobile is being driven coon (N. Y.) supra, III.

recklessly. But it has been held that where the

And likewise where an automobile steering gear of an automobile locked, causing the machine to cross the high

is being driven at a reckless speed, no way and go through an improperly duty is imposed of erecting a barrier constructed barrier along a river bank

of strength sufficient to prevent the adjacent to the highway, that the city machine from leaving the highway. was under a duty to maintain such a

That a county is under no duty to barrier as would have resisted the im

erect a barrier along a steep declivity pact of the automobile, and prevented adjacent to the highway, of sufficient it from leaving the highway, it appear

strength to prevent a speeding autoing that at the time the automobile,

mobile from leaving the highway and which was of comparatively light going through the barrier over the deweight, struck the barrier, it was trav

clivity, is held in Wasser v. Northeling at a rate of 4 or 5 miles an hour,

ampton County (1913) 249 Pa. 25, and the brakes were set. Indianapolis L.R.A.1915F, 973, 94 Atl. 444, where v. Moss (1920) 74 Ind. App. 129, 128

it is held there could be no recovery N. E. 857.

for injuries sustained where an autoSee also Bond v. Billerica (Mass.) mobile driven at 25 miles an hour went supra, II., where the village was held through a wooden barrier at a declivliable when an automobile momentari- ity adjacent to the highway. The ly out of control of the iver went court observes : “There is no hard over an unguarded embankment ad- and fast rule as to the kind and jacent to the highway, and La Ville de character of a guard rail or barrier to be erected so that the highway may the curve. Camp v. Allegheny County be deemed reasonably safe for the or- (Pa.) supra, III. dinary needs of travel. Public roads It is indicated in Lendrum v. Cobleare intended for ordinary travel; if skill (N. Y.) supra, II., that a municithey meet the requirements which pality is under no duty to erect such their ordinary uses demand, the au- barriers or guards as would prevent thorities in charge of them have recklessly driven trucks or highperformed their duty under the law, powered automobiles from leaving the and cannot be made answerable in highway. damages for extraordinary accidents So, where an automobile, descendoccurring on them. i. It is true, ing a steep, winding hill at the rate of of course, that the ordinary needs of 10 or 12 miles per hour at night, withtravel change with changed circum- out lights sufficient to see the road, stances, and road officers must keep in went through a railing at a curve admind the new uses of travel in the jacent to a steep bank, causing inconstruction and maintenance of high- juries to the occupants of the car, it ways. . . . It has never been de- was held that the negligent and reckclared to be the law in this state that less driving, and not the insufficiency a township must erect guard rails or or inadequacy of the guard rail, was barriers at points where the public the proximate cause of the automohighway runs near an embankment, so bile's leaving the highway, causing strong as to stop an automobile run- the resultant injuries. Miller v. Wentning at the rate of 25 miles an hour. worth County (1913) 5 Ont. Week.

The law does not contemplate News, 317. the building of such a barrier or guard But where by statute a duty is imby counties or townships in country posed on the county commissioners to districts, and the proper and ordinary erect guard rails on approaches to uses of the highways in such com- bridges, the failure to erect such munities do not demand this extraor- guard rails will render the commisdinary protection to the traveling sioners liable for injuries sustained public.”

when an automobile runs off such unBoard authorities are not required guarded approach, even though it to construct such a barrier at a turn

appears that at the time of the acciin a highway as would prevent an dent the automobile was being driven automobile, going at a high rate of recklessly. Belmont County v. Brown speed, from leaving the highway at (1916) 5 Ohio App. 395. G. S. G.

E. L. BELLMAN et al., Doing Business as Bellman-Williams Auto

Company, Appts.,

V.
HOME INSURANCE COMPANY, Respt.

SAME, Appts.,

V. MINNEAPOLIS FIRE & MARINE INSURANCE COMPANY, Respt.

SAME, Appts.,

V.
AUTOMOBILE INSURANCE COMPANY, Respt.

SAME, Appts.,

v.
ÆTNA INSURANCE COMPANY, Respt.

(178 Wis. 349, 189 N. W. 1028.)

SAME, Appts.,

V.
ORIENT INSURANCE COMPANY, Respt.

Wisconsin Supreme Court - October 10, 1922.

(178 Wis. 349, 189 N. W. 1028.) Partnership — right to recover insurance on property wilfully destroyed.

1. An innocent partner'cannot recover on an insurance policy upon partnership property wilfully burned by his copartner, especially where the policy provides that insured shall use all reasonable means at and after a fire to preserve the property.

[See note on this question beginning on page 948.] Insurance wilful burning of prop- - rights of assignee of policy, erty - effect.

3. The assignee of a fire insurance 2. An insured who deliberately sets policy has no greater rights against fire to the insured property cannot re- the insurer than had the one to whom cover on the policy.

the policy was issued. [See 14 R. C. L. 1223.]

[See 14 R. C. L. 1007.]

APPEAL by plaintiffs from judgments of the Circuit Court for Rock County (Grimm, J.) dismissing the complaints in separate actions brought to recover the amounts alleged to be due on fire insurance policies. Affirmed Statement by Owen, J.:

These several actions were comOn the 15th day of January, 1920, menced by the plaintiffs to recover the plaintiffs Bellman and Williams on the various policies of insurance. associated themselves together as a The cases were tried before the partnership under the firm name of court without a jury. Findings of Bellman-Williams Auto Company, fact and conclusions of law were for the conduct of an automobile made and filed, resulting in judgbusiness in the city of Evansville. ments dismissing the complaints Thereafter they secured various From the judgments so rendered, policies of fire insurance in the de- plaintiffs bring these appeals. The fendant companies. The plaintiff same questions are involved in each Bank of Evansville held a chattel case. They were briefed and argued mortgage upon the insured prop- together, and will be disposed of in erty, and the policies were made one opinion. payable to said bank as its interest

Messrs. R. M. Richmond and Nolan, might appear. On the 27th day of

Dougherty, & Grubb, for appellants: May, 1920, in the nighttime, during Where insurance on partnership the absence from the city of the property is issued to the partnership, plaintiff Bellman, and, as the court the fact that one partner, without the found, without his knowledge, con- knowledge, consent, participation, or sent, procurement, connivance, or procurement of the remaining partner participation, either direct or indi

or partners, sets fire to the partnerrect, the plaintiff J. R. Williams, one

ship property, does not preclude a reof the partners, wilfully set fire to

covery by the partnership and the inthe insured property for the pur

nocent partner on the policy.

D. I. Felsenthal v. Northern Assur. pose of obtaining the insurance

Co. 284 Ill. 343, 1 A.L.R. 602, 120 thereon, causing the complete de

N. E. 268; Kirkpatrick v. Allemannia struction thereof. Subsequently

F. Ins. Co. 184 N. Y. 546, 76 N. E. 1098, said Williams confessed the crime

affirming 102 App. Div. 327, 92 N. Y. and was duly sentenced to the state's

Supp. 466; 30 Cyc. 422; People v. Zanprison at Waupun.

gain, 301 Ill. 299, 133 N. E. 783. 27 A.L.R.-60.

The doctrine of the agency of each Ins. Co. v. Carnahan, 19 Ohio C. C. 97; partner for the firm, making the D. I. Felsenthal Co. v. Northern Ascopartnership responsible for sur. Co. 284 Ill, 343, 1 A.L.R. 602, 120 wrongful acts of the individual mem- N. E. 268; Meily Co. v. London & L. F. bers, is limited in its application to Ins. Co. 142 Fed. 873, affirmed in 79 acts of the partners in the ordinary C. C. A. 454, 148 Fed. 683; Kirkpatrick course of the firm's business, or with v. Allemannia F. Ins. Co. 102 App. the specific authority of all of the Div. 327, 92 N. Y. Supp. 466, affirmed partners. For other wrongs commit- in 184 N. Y. 546, 76 N. E. 1098; Binted by him, neither the firm nor his dell v. Kenton County Assessment F. partners are liable, unless their spe- Ins. Co. 17 L.R.A. (N.S.) 189, note; 22 cific consent or ratification be shown. Am. & Eng. Enc. Law, 2d ed. 166; Mc

30 Cyc. 523; Shapard v. Hynes, 52 Intyre v. Kavanaugh, 242 U. S. 138, 61 L.R.A. 675, 45 C. C. A. 271, 104 Fed. L. ed. 205, 37 Sup. Ct. Rep. 38; Castle 449; Teague v. Martin, 228 Mass. 458, v. Bullard, 23 How. 172, 16 L, ed. 424; 117 N. E. 844; Page v. Citizens' Bkg. Re Peck, 206 N. Y. 55, 41 L.R.A.(N.S.) Co. 111 Ga. 73, 51 L.R.A. 463, 78 Am. 1223, 99 N. E. 258, Ann. Cas. 1914A, St. Rep. 144, 36 S. E. 418; Lindley, 798; Sabinal Nat. Bank v. Bryant, – Partn. 8 299; George, Partn. p. 242; Tex. 221 S. W. 940; Gilchrist v. Cooley, Torts, p. 535, Ewell's Evans, Brande, 58 Wis. 184, 15 N. W. 817; Agency, p. 180; Cooley, Partn. p. 253; Fletcher v. Ingram, 46 Wis. 191, 50 Marks v. Hastings, 101 Ala. 165, 13 N. W. 424; Boston Foundry Co. v. So. 297; Farrell v. Friedlander, 63 Whiteman, 31 R. I. 88, 76 Atl. 757, Hun, 254, 18 N. Y. Supp. 215; Hender- Ann. Cas. 1912A, 1334; Wiley v. Nason v. Western M. & F. Ins. Co. 10 Rob. tional Surety Co. 103 Neb. 68, 170 N. (La.) 164, 43 Am. Dec. 176; Feibel- W. 349; Wood v. Luscomb, 23 Wis. man v. Manchester F. Assur. Co. 108 287; Haase v. Morton, 138 Iowa, 205, Ala. 180, 19 So. 540; Walker v. Phænix 115 N. W. 921, 16 Ann. Cas. 350; Ins. Co. 62 Mo. App. 209.

Stockwell v. United States, 13 Wall. Messrs. Olin, Butler, Thomas, Steb- 531, 20 L, ed. 491; Page v. Citizens' bins, & Stroud, for respondents:

Bkg. Co. 51 L.R.A. 463, 469-476, 479, There can be no recovery, because note; Bernheimer v. Becker, 3 L.R.A. Bellman as well as Williams was a (N.S.) 221, 222, note; Boston Foundry party to the fraudulent burning of the Co. v. Whiteman, 22 Ann. Cas. 1337, property.

note; Re A. F. Hardie & Co. 143 Fed. United States Exp. Co. v. Jenkins, 607; Mick v. Royal Exch. Assurance, 73 Wis. 471, 41 N. W. 957; 31 Cyc. 87 N. J. L. 607, 52 L.R.A. (N.S.) 1074, 1280; Donason v. Barbeo, 230 Il. 138, 91 Atl. 102; Shepard v. Pabst, 149 82 N. E, 620.

Wis. 35, 135 N. W. 158. The fraudulent burning of the The failure of the partnership to property by Williams, even without use all reasonable means to save and Bellman's participation, bars a re- preserve the property at and after the covery by any of the plaintiffs.

fire bars any recovery by it on the 14 R. C. L. 1223; Bindell v. Kenton policies. County Assessment F. Ins. Co. 128 Ky. 26 C. J. 273, 347; 14 R. C. L. 1124, 389, 17 L.R.A. (N.S.) 189, 129 Am. St. 1223; 5 Joyce, Ins. 2d ed. p. 4939; Rep. 303, 108 S. W. 325; 5 Joyce, Ins. Wolters v. Western Assur. Co. 95 Wis. 2d ed. p. 5554, SS 2851, 3343; 30 Cyc. 265, 70 N. W. 62, 1 Am. Neg. Rep. 391; 444, 523, 561; 2 Lindley, Partn. 2d Am. Bindell v. Kenton County Assessment ed. 339; Parsons, Partn. 4th ed. § 178; F. Ins. Co. 17 L.R.A. (N.S.) 189, note; Hammond v. Capital City Mut. F. Ins. Siemers v. Meeme Mut. Home ProtecCo. 151 Wis. 62, 138 N. W. 92, Ann. tion Ins. Co. 143 Wis. 114, 139 Am, St. Cas. 1914C, 57; Vinal v. West Virginia Rep. 1083, 126 N. W. 669; Beavers v. Oil & Oil Land Co. 110 U. S. 215, 28 Security Mut. Ins. Co. 76 Ark. 595, L. ed. 124, 4 Sup. Ct. Rep. 4; Sindelare 90 S. W. 13, 6 Ann. Cas. 585; First v. Walker, 137 Ill. 43, 31 Am. St. Rep. Nat. Bank v. German American Ins. 353, 27 N. E. 59; Pope v. Thompson, Co. 23 N. D. 139, 38 L.R.A.(N.S.) 213, 171 Wis. 468, 177 N. W. 607; Hays 134 N. W. 873; 4 Joyce, Ins. SS 2596a, Motor Truck Wheel Co. v. Wolff, 175 2812, 2813; 2 Wood, Fire Ins. 2d ed. Wis. 501, 185 N. W. 512; Westby v. Bekkedal, 172 Wis. 114, 178 N. W. 451; There can be no recovery by the Western Assur. Co. v. Towle, 65 Wis. Bank of Evansville. 247, 26 N. W. 104; Pennsylvania F. Wunderlich v. Palatine F. Ins. Co.

p. 1056.

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