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as the Weaver Street bridge. At the time of Bottomley entered the defendant's service the accident he had passed from the cab over as a fireman prior to July 7, 1907, and had the top of the tender and the coal therein to thereafter continued in the employ of the ascertain the amount of water in the tank by company, until his death, either as fireman looking through a manhole at the rear end or as engineer. The major portion of this of the tender used for the purpose of filling service was on the New York division, operthe tank, and was returning when, coming ating through the electric zone

electric zone between into contact with or close proximity to the Stamford and New York City. During the running wire, he was instantly killed by the six months immediately prior to his death he electric current. This wire was suspended, had, as engineer, made at least 49 trips along and over the center line of the tracks through this zone and past the Weaver Street upon which the train was traveling. It was bridge, the most of them being in the day used for the operation of trains by electric-time. ity, and was charged with a current of high The time-tables furnished Bottomley, and voltage, dangerous to the life of a person receipted for by him, contained a notice to who should receive it.

all trainmen that within the electric zone in Prior to July, 1907, the defendant's line question there was danger within 14 inches of between Stamford and New York City had the wires, and a warning to be cautious and been operated solely by steam power. At keep at least that distance away from them. that time its equipment for operation elec- A special written notice and warning to the trically had been completed, and the running same effect was also delivered to him, with of passenger trains by electricity was then the requirement that he carefully read it begun, and has since been continued. Freight and certify that he had done so upon a blank trains continued to be hauled by steam loco prepared for that purpose. This certificate motives. The method employed for electrical which he signed restated the substance of the operation was that known as the overhead notice and warning, and recited that he was system. The equipment required for this warned “to use the utmost care to look out method, and that installed, consisted in part for all such wires.” of steel structures by the side of and across

Charles S. Hamilton and Edward P. O'Meathe tracks for the support of wires running ra, both of New Haven, for appellant. Thomalong the center lines of the several pairs of as M. Steele and Harrison T. Sheldon, both rails. Two of these were messenger wires of New Haven, for appellee. so-called. They were hung somewhat higher than the third, which was the running or feed PRENTICE, C. J. (after stating the facts wire from which the current was taken.

as above). The court assigned two reasons The running wire, when suspended at the for its direction of a verdict for the defendstandard height, was about 2242 feet above ant, to wit: (1) That the plaintiff had failed the level of the top of the rails. To enable to present evidence from which the jury these wires to be carried under overhead could reasonably have found that the defendbridges it was necessary to depress them as ant was guilty of negligence in the premises; the bridge was approached. This depression and (2) that the evidence in support of the was gradual. At the Weaver Street bridge defense of assumption of risk was such that the wires, to pass under it, were brought down it could not reasonably have been found that to within 15 feet 412 inches of the top of the the risk was not assumed by the intestate's rails. Between Stamford and Larchmont, a continuing in his employment with full distance of about 15 miles, there were 15 knowledge and comprehension of it. Thre overhead bridges. The height of the wires last of these reasons is so clearly sound and passing under them varied from 15 feet 442 sufficient that we have no occasion to inquire inches to 18 feet 414 inches. In the case of into the other. only 3 was it more than 17 feet and of 7 it

[1] The federal Employers' Liability Act, was between 15 and 16 feet only.

under which this action was brought, did not The locomotive which the deceased was us abolish the defense of the assumption of ing was one of medium size, and of a type risk, save in cases where the violation by which had been in use upon the line for 35 the carrier of some federal statute enacted for years. The tenders attached to this type of the safety of employés contributed to the engine varied in height from 1042 to 13 feet. injury or death of the employé. Seaboard The height of the one in use was not shown. Air Line v. Horton, 233 U. S. 492, 503, 34 Accessible to the engineer in his cab was a Sup. Ct. 635, 58 L. Ed. 1062. tank cock at a level of 18 inches above the [2] As bearing upon the question of the inbottom of the tank, by means of which it testate's assumption of the risk which causcould be determined that the water in the ed his death, the pertinent facts lie outside tank had not fallen below that level leaving of the realm of dispute or uncertainty. They water enough to run several miles. The show that Bottomley had full knowledge of tank had been filled at Stamford. There was all the physical factors in the situation. As a water pug a short distance beyond the an engineer, he was familiar with engines Weaver Street bridge, and others 2 and 542 and tenders and their proportions. The enmiles further on. There was no evidence as gine he was driving was one of moderate to the actual depth of water in the tank. size, and of a type long in use. Its tender,

whether of the larger or smaller size, was son so employed is entitled to recover the stipuone in use with this type of engine. It was lated price or, if there is no agreement as to the neither special nor unusual. In his years of price, then such a sum as they are reasonably

worth. experience, for the most part confined to this

[Ed. Note.-For other cases, see Work and section of the road, and his recent months of Labor, Cent. Dig. $$ 1, 2; Dec. Dig. § 1.*] frequent service upon it, as engineer, he must 2. SET-OFF AND COUNTERCLAIM (8 6*)—“REhave become acquainted with the existence COUPMENT.” of the many overhead bridges which here Recoupment is the right of a person, when span the tracks, with the narrow space be-sued for work and labor by another, having been

damaged rather than benefited by the performtween bridges and tops of engine and tender, ance of the work, to recoup his damages so as and with the manner in which the electric to avoid the trouble and expense of another acservice wires were strung in carrying them tion, but, in order to give rise to a right of reunder the bridges. These conditions were ap- cause of action for which a separate suit could

coupment, the defendant must have a valid parent to casual observation; they had re- be maintained, and the damage must not have mained unchanged for years; and they were occurred through defendant's fault, in which closely related to the performance of his case he may recover up to the value of the claim

of the plaintiff, but may not have an affirmaduties.

tive judgment for any excess. He must also have known that these

[Ed. Note.-For other cases, see Set-Off and wires were electrically charged for the opera- Counterclaim, Cent. Dig. $$ 6, 7; Dec. Dig. tion of trains. As a locomotive engineer of $ 6.* experience living in this age of the world, he,

For other definitions, see Words and Phrases, untold and unwarned, must have been sutti- vol. 7, pp. 6015-6018.)

ACTIONS ciently intelligent and informed to know of 3. WORK AND LABOR (824)

PLEADING-GENERAL ISSUE. the latent danger which lurked in the wires

Where, in an action for work and labor, deso charged to one who should come into con- fendant filed a general issue with notice of retact with them or into their immediate vi.coupment, he was entitled to prove his countercinity, and of the extremity of that danger. contract and grew out of the same transaction,

claim, provided it was founded on the same But that matter aside, the knowledge of the for the loss or damage sustain danger had been so directly and forcibly plaintiff's failure or refusal to perform either brought home to him through the notices and entirely or properly, in reduction and abatement

of plaintiff's claim. warnings given to him by the defendant that he could not have failed both to know the Labor, Cent. Dig. $$ 43-46; Dec. Dig. 8 24.*]

[Ed. Note. For other cases, see Work and danger to his life that there would be in permitting himself to come into contact with or Action by Edward T. Heite against Levick near to one of the wires, and to comprehend P. Cowgill. Verdict for plaintiff. the character and extent of that danger.

Argued before PENNEWILL, C. J., and This being so, he certainly knew and com- BOYCE and CONRAD, JJ. prehended the risk incident to his employ Thomas C. Frame, Jr., of Dover, for plainment. No one could well be expected to have tiff. James M. Satterfield, of Dover, for debetter knowledge or a more adequate appre- fendant. ciation. Possessed of this knowledge and appreciation, he had for years chosen to contin

PENNEWILL, C. J. (charging the jury). ue in his employment. By so doing he as- Gentlemen of the jury: The plaintiff in this sumed its risk, which, during these years, action seeks to recover from the defendant had remained unchanged, and been unen- the sum of $102.17, with interest, being the hanced by any new act of the defendant balance claimed to be due and owing for which could by possibility be imputed to it work and labor performed and materials as negligence. Baer v. Baird Machine Co., furnished upon and for a certain gasoline 84 Conn. 269, 273, 79 Atl. 673.

engine owned by the defendant and used by "When the employé does know of the de- him in propelling a boat on Jones' river. fect, and appreciates the risk that is attributable to it, then if he continues in the employ: been furnished for the defendant are par.

The labor and materials claimed to have ment, without objection, or without obtaining been furnished for the defendant are parfrom the employer or his representative an as- ticularly mentioned in plaintiff's books of surance that the defect will be remedied, the original entry which are in evidence, and employé assumes the risk, even though it arise which when supplemented by the oath of the

the Air Line v. Horton, 233 U. S. 492, 504. 34 plaintiff are taken to be true unless shown Sup. Ct. 635, 640 (58 L. Ed. 1062).

to be untrue. There is no error. In this opinion the oth The defense set up by the defendant is er Judges concurred.

what is known in the law as recoupment.

That is, he claims that the plaintiff injured (5 Boyce, 197)

his engine more than he benefited it, and is HEITE v. COWGILL,

not, therefore, entitled to recover anything

in this suit. (Superior Court of Delaware. Kent. April 27, 1914.)

The defendant also claims that he is not

liable for any part of the bill charged for 1. WORK AND LABOR ($ 1*)—MATERIALS.

Where a person is employed to furnish work, labor and materials furnished in 1911 work, labor, and materials for another, the per-land 1912 because the plaintiff guaranteed

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

that he would put the engine in good and plaintiff might otherwise be entitled to rerunning condition, which he wholly failed to cover, the amount of such damages, and if do.

such damage is as great as the sum the The plaintiff denies that he made any such plaintiff claims, your verdict should be in guaranty; and moreover he insists that the faror of the defendant. But you cannot find engine was in good condition long before the in favor of the defendant for any sum even defendant removed it from the plaintiff's though you believe his damage is greater shop in the following year.

than the plaintiff's claim. Such in brief are the contentions of the And while you may allow the defendant parties.

damages for any injury to his engine caused [1] Where person is employed by by the plaintiff in negligently and unskillfulanother to perform work and labor and ly working on the same, you cannot, under furnish materials for him upon an agreed the facts of this case, allow him any other price, the person so employed is entitled to re- damages. cover the stipulated price for the work done

In conclusion we say that, if you believe and materials furnished, if the work done and the plaintiff performed the labor and furnishthe materials furnished are in accordance ed the materials for the defendant which with the agreement. But if there was no he claims to have performed and furnished, agreement as to the price for the work and your verdict should be in favor of the plainmaterials, then the employé is entitled to re- tiff for such sum as the labor performed and cover for the same such a sum as they are the materials furnished were reasonably reasonably worth. If they are worth nothing worth, provided you do not believe that in then there can be no recovery.

the performance of the labor and the furnish[2] But there is another principle of law ing of the materials the plaintiff negligently which we must endeavor to explain, for up- and carelessly injured the defendant's enon that the defendant mainly relies in this gine. If you are satisfied that the defendcase. It is called recoupment, as we have ant's engine was so injured, you should dealready stated. In plain language it means duct from the sum that would otherwise be that if a person performs work and labor for due the plaintiff the amount of such damage. another, and in its performance damages And if the amount of such damage is greater, the other party to an amount as great as the or as great, as the plaintiff's claim, your verperformer claims for his services, there can dict should be in favor of the defendant. be no recovery. In such case the defendant is

All that we have said to you so far in reallowed to recoup his damages so as to avoid spect to the defendant's claim of recoupthe trouble and expense of another action.

ment applies only to the plaintiff's charge for But the claim or damage to be recouped labor and materials furnished in the years must be a valid cause of action for which a 1911 and 1912, because it is not contended separate suit could be maintained, and must that the engine was injured by anything the not have occurred through the fault or neg- plaintiff did prior to that time. And it is ligence of the defendant.

not denied that the plaintiff furnished some Whenever the defendant is permitted to labor and materials for the engine before submit his claim for damages as a subject of 1911. It will be your duty, therefore, to rerecoupment he assumes the burden of proof turn a verdict in favor of the plaintiff for in respect to it, and no recovery can be had at least such sum as you believe the labor for any balance or excess. And the defend-performed and the materials furnished by the ant will be barred from any other suit or plaintiff for the defendant in and for his recoupment for such balance or excess over engine prior to 1911 were reasonably worth, the plaintiff's claim.

less the credit of $47, which was paid prior The damages allowed a defendant by way to 1911. of recoupment must be founded on the same

As to the labor and materials furnished contract and grow out of the same transac-during the years 1911 and 1912, you must tion under which the plaintiff claims.

be governed by the law as we have stated it. [3] In Woolley on Delaware Practice,

Verdict for plaintiff. volume 1, § 502, it is said:

“The defendant may be allowed to present and give in evidence, under the general issue

(5 Boyce, 201) with his notice of recoupment, his cross or BALTIMORE LIFE INS. CO. v. FLOYD. counterclaim to that of the plaintiff founded on the same contract and growing out of the same

(Superior Court of Delaware. New Castle. business transaction, for such loss and damage

May 19, 1914.) incurred by him by reason of the refusal or fail- 1. INSURANCE ($255*)-WARRANTY-DISTINCure of the plaintiff to perform it entirely or

TION BETWEEN WARRANTY AND REPRESENproperly, in reduction and abatement of the

TATION. damages claimed by him.”

A representation respecting a matter not We say to you, therefore, that if you be- material to a risk does not amount to a warlieve the plaintiff, in furnishing the labor ranty, and such a representation, though false, and materials for the defendant's engine, breach of warranty nor avoid the policy.

if made in good faith, does not amount to a by his negligence damaged the engine to any

[Ed. Note. For other cases, see Insurance, extent, you should deduct from the sum the Cent. Dig. $ 548; Dec. Dig. $ 255.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

2. INSURANCE ($ 298*)- AVOIDANCE OF POLICY | considered most worthy of credit, having re

FOR BREACH OF WARRANTY-INSURABLE IN- gard to the intelligence and the bias of the witTEREST.

nesses and their ability to see, comprehend, and Where the beneficiary under a policy of remember that to which they have testified. life insurance had a legal insurable interest, in [Ed. Note.- For other cases, see Evidence, sured's misrepresentation as to his relation Cent. Dig. $ 2437; Dec. Dig. $ 588.*] to the beneficiary, not made in bad faith, was a misrepresentation or misstatement of fact Action by William Floyd against the Baltinot materially affecting the risk assumed, and more Life Insurance Company. Motion for hence, not ground for avoidance of the policy.

nonsuit refused, and verdict for plaintiff. [Ed. Note.-For other cases, see Insurance, Cent. Dig. 8 677; Dec. Dig. § 298.*]

Argued before WOOLLEY and RICE, JJ. 3. INSURANCE (8 124*)—"CONTRACT OF LIFE

Andrew C. Gray, of Wilmington, for appelINSURANCE"-NATURE.

lant. Lilburne Chandler, of Wilmington, for A “contract of life insurance” is an agree

respondent. ment between insurer and insured whereby the insurer undertakes to pay a certain sum of money to a certain person, who usually is a Appeal (No. 6, January term, 1914) from a person other than insured, upon the happening judgment of a justice of the peace. Action of a particular event, usually the death of insured, in consideration of payment by insured of assumpsit brought before the justice by of certain stated premiums.

William Floyd against the Baltimore Life [Ed. Note. For other cases, see Insurance, Insurance Company, to recover under an inCent. Dig. 88 172, 178; Dec. Dig. 8 124.*

surance policy issued to Albert Hanlin in For other definitions, see Words and Phrases, which the plaintiff was the beneficiary. Movol. 4, pp. 3675–3677.]

tion for nonsuit refused. Verdict for plain4. INSURANCE (8 114*) – CONTRACT OF LIFE

tiff. INSURANCE-INSURABLE INTEREST. A contract of life insurance may be effect

The contentions of the parties appear in ed only for some benefit incident to or contem- the charge of the court. plated by insured, and an insurable interest in At the conclusion of the plaintiff's case, the beneficiary arises from his relationship to insured within certain degrees, or from the fact counsel for defendant moved for a nonsuit on of pecuniary interest, such as that between the ground that the applicant for insurance partners, and between debtors and creditors; made a false answer to the question as to the and a person may take out insurance upon his relationship between himself and the benefisurable interest therein, if the transaction is ciary. bona fide and free from speculation, but insurance procured upon a life by one, or in favor

WOOLLEY, J. (delivering the opinion of of one, under circumstances of speculation or the court). [1] The judges that constitute hazard amounts to a wager contract, void as in contravention of public policy.

this court sat in the Keatley Case, 82 Atl. [Ed. Note-For other_cases, see Insurance, 294, either below or above, and are clear Cent. Dig. $8 136-138; Dec. Dig. § 114.*] upon the policy of the law touching the 5. INSURANCE (8 114*)-EVIDENCE OF INSURA- subject of insurance warranties. The rule BLE INTEREST-PAYMENT OF PREMIUMS. of the common law was that all representa

One of the tests as to the validity of a con- tions made by an applicant for insurance, tract of life insurance is to determine by whom the premiums are paid; when insured were warranties, whether they were mapays the premiums the contract is generally terial or immaterial to the risk, and a false upheld, but where the premiums are paid by representation or misstatement of fact made the beneficiary, there is a tendency to condemn

[Ed. Note. For other cases, see Insurance, by the applicant amounted to a breach of Cent. Dig. 88 136-138; Dec. Dig. & 114.*] warranty, regardless of its materiality to

the risk. 6. INSURANCE (8 655*)-INTEREST OF INSURED

From this rule the American -EVIDENCE-GOOD FAITH.

courts have gradually and very generally Where the beneficiary under a policy of departed, and under a line of cases known life insurance has an insurable interest in the as nonserious ailment cases, the courts life of insured, such interest is evidence, which may be considered in connection with all the have held that a representation respecting a other evidence in determining the good faith matter not material to the risk, did not of the transaction.

amount to a warranty, and that such a rep[Ed. Note.-For other cases, see Insurance, resentation, if proven to be made in good Cent. Dig. $$ 1677-1685; Dec. Dig. § 655.*]

faith but nevertheless false, did not amount 7. INSURANCE (8 646*)-ACTION-BURDEN OF to a breach of warranty and did not operate PROOF.

The law as In an action on a policy of life insurance, in avoidance of the contract. the burden of proving the legality of the con- thus established by force of judicial decisions tract, plaintiff's performance of conditions pre- has been enacted into statutes by several cedent, and defendant's liability, by a prepon- states. This was done by the state of Pennderance of the evidence, rests upon plaintiff.

[Ed. Note. For other cases, see Insurance.sylvania, and by the state of Delaware since Cent. Dig. 88 1555, 1645-1668; Dec. Dig. $ the making of the contract of insurance sued 646 *]

upon in this case. Though not decided in any 8. EVIDENCE (8 588*)—JURY-DELIBERATION- reported case, we hold this to be the law of WEIGHT OF EVIDENCE.

the state of Delaware at the time the defendWhere the evidence in a civil action is ant entered into the contract here sued upon. conflicting, it is the jury's duty to reconcile it if it can, and, if it cannot, to reject that con

[2] It may be a business policy of the desidered least worthy of credit and accept that I fendant insurance company not to issue a

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

policy of insurance to a person seeking insur- | that if there ever existed a contract between ance, in favor of a beneficiary not a relative, it and the deceased Hanlin, there exists no yet after all, that person may have an in- contract upon which the plaintiff may now surable interest, if the insured pays the pre- maintain this action at law, for the following miums; and while an insurance company reasons: may establish any legal business policy for First, that in his application for insurance, its governance that it may see fit, yet we the insured made a false representation as think that a statement made by the applicant to his relationship with the beneficiary, in for insurance that merely disturbs that busi- declaring him to be his uncle, and thereby ness policy but does not reach to something made a misrepresentation material to the that materially affects the risk, is not a mis- risk; statement or misrepresentation that avoids Second, that Floyd, the beneficiary, had no the policy. It appears to us that while the insurable interest in the life that was insured applicant may have made a misrepresentation for his benefit, in that Floyd, the beneficiary, as to his relation to the beneficiary, neverthe- was in no way related to Hanlin, the inless, there is evidence of a legal insurable sured; interest in the beneficiary, though not so re Third, that the alleged contract of insurlated to the insured; and while the misrepre- ance was sought and procured by Floyd, the sentation of the applicant as to the degree of beneficiary, and not by Hanlin the insured, his relationship to the beneficiary may have and that the premiums thereupon were paid been false, there was no evidence that it was not by Hanlin the insured, but by another made in bad faith. We are of opinion that otherwise than with the money or upon the the statement of the applicant, if untrue, was authority of the insured, and was therefore a misrepresentation or misstatement of fact

a wager contract; and that did not materially affect the risk assum

Fourth, that Hanlin, the insured is not ed by the insurance company in making the

dead. contract of insurance, and therefore, the mo

These issues raise several questions, both tion for a nonsuit should be refused.

of law and fact, with respect to the former WOOLLEY, J. (charging the jury). Gentle- of which we will instruct you and with remen of the jury: In explanation of the spect to the latter, you are the sole judges. rather lengthy charge we are about to de The first question is whether the contract liver to you, we may say that though this of insurance between the insured and the incase involyes a sum of money inconsiderable surer is vitiated by an alleged misrepresenin amount, the principles of law involved are tation by the insured in his application for important, not only to the determination of insurance as to the relationship of the benethe case in hand but to the business of life ficiary to himself. We are of opinion and insurance and to litigation that might here- charge you, that if such a misrepresentation after arise therefrom.

was made, it was not such a misrepresentaThis is an action brought upon a contract tion or misstatement of fact that was mateof insurance, wherein it is claimed on the rial to the risk and therefore does not avoid part of the plaintiff that Albert Hanlin, the the contract. For this reason we refuse the insured, procured from the Baltimore Life prayer of the defendant to give you binding Insurance Company, the defendant, a policy instructions to return a verdict in its favor, of insurance for the sum of $244, payable as for various reasons we decline a like upon the death of the insured unto William prayer made in favor of the plaintiff. Floyd, the plaintiff; that the contract of in The next several questions may be considsurance was sought and procured by the in- ered together and they are whether the bensured and the premiums thereon, though paid eficiary had an insurable interest in the to the insurance company by one Payton Rose, life insured, and whether if he had or had were paid by him upon the authority and not, was the contract of insurance under the with the money of Hanlin the insured; and circumstances in which it was procured and that Floyd, the beneficiary named in the pol- maintained, a valid contract in law. icy of insurance, was a cousin of the insured,

[3] A contract of life insurance is an agreethough described in the application for in- ment between the insurer and the insured, surance as his uncle, and that the relations whereby the insurer undertakes to pay a ship between the two established in Floyd, certain sum of money to a certain person, the beneficiary, an insurable interest in the who may be and usually is a person other life of Hanlin, the insured, that gave to him than the insured, upon the happening of a a right to recover and to maintain this action particular event, usually the death of the infor the amount stipulated by the company to sured, in consideration of the payment by be paid upon, the death of Hanlin, the in- the insured of certain premiums, made at sured ; that the insured is dead and the stated periods. amount due the beneficiary by the defendant [4] Such an undertaking, though based upinsurance company is the sum of $122 with on a contingency that has in it an element lawful interest thereon from the date upon of chance, when entered into with legal reqwhich the payment should have been made. uisites and for a lawful purpose, is in this

The defendant on the other hand contends, day a perfectly legal and commonplace trans

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