Page images
PDF
EPUB

as the Weaver Street bridge. At the time of the accident he had passed from the cab over the top of the tender and the coal therein to ascertain the amount of water in the tank by looking through a manhole at the rear end of the tender used for the purpose of filling the tank, and was returning when, coming into contact with or close proximity to the running wire, he was instantly killed by the electric current. This wire was suspended, along and over the center line of the tracks upon which the train was traveling. It was used for the operation of trains by electricity, and was charged with a current of high voltage, dangerous to the life of a person who should receive it.

Bottomley entered the defendant's service as a fireman prior to July 7, 1907, and had thereafter continued in the employ of the company, until his death, either as fireman or as engineer. The major portion of this service was on the New York division, operating through the electric zone between Stamford and New York City. During the six months immediately prior to his death he had, as engineer, made at least 49 trips through this zone and past the Weaver Street bridge, the most of them being in the day time.

The time-tables furnished Bottomley, and receipted for by him, contained a notice to 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 the tracks for the support of wires running along the center lines of the several pairs of rails. Two of these were messenger wires so-called. They were hung somewhat higher than the third, which was the running or feed wire from which the current was taken.

The running wire, when suspended at the standard height, was about 221⁄2 feet above the level of the top of the rails. To enable these wires to be carried under overhead bridges it was necessary to depress them as the bridge was approached. This depression was gradual. At the Weaver Street bridge the wires, to pass under it, were brought down to within 15 feet 42 inches of the top of the rails. Between Stamford and Larchmont, a distance of about 15 miles, there were 15 overhead bridges. The height of the wires passing under them varied from 15 feet 41⁄2 inches to 18 feet 44 inches. In the case of only 3 was it more than 17 feet and of 7 it was between 15 and 16 feet only.

The locomotive which the deceased was using was one of medium size, and of a type which had been in use upon the line for 35 years. The tenders attached to this type of engine varied in height from 10% to 13 feet. The height of the one in use was not shown. Accessible to the engineer in his cab was a tank cock at a level of 18 inches above the bottom of the tank, by means of which it could be determined that the water in the tank had not fallen below that level leaving water enough to run several miles. The tank had been filled at Stamford. There was a water plug a short distance beyond the Weaver Street bridge, and others 2 and 51⁄2 miles further on. There was no evidence as to the actual depth of water in the tank.

Charles S. Hamilton and Edward P. O'Mea

ra, both of New Haven, for appellant. Thomas M. Steele and Harrison T. Sheldon, both of New Haven, for appellee.

PRENTICE, C. J. (after stating the facts as above). The court assigned two reasons for its direction of a verdict for the defendant, to wit: (1) That the plaintiff had failed to present evidence from which the jury could reasonably have found that the defendant was guilty of negligence in the premises; and (2) that the evidence in support of the defense of assumption of risk was such that it could not reasonably have been found that the risk was not assumed by the intestate's continuing in his employment with full knowledge and comprehension of it. The last of these reasons is so clearly sound and sufficient that we have no occasion to inquire into the other.

[1] The federal Employers' Liability Act, under which this action was brought, did not abolish the defense of the assumption of risk, save in cases where the violation by the carrier of some federal statute enacted for the safety of employés contributed to the injury or death of the employé. Seaboard Air Line v. Horton, 233 U. S. 492, 503, 34 Sup. Ct. 635, 58 L. Ed. 1062.

[2] As bearing upon the question of the intestate's assumption of the risk which caused his death, the pertinent facts lie outside of the realm of dispute or uncertainty. They show that Bottomley had full knowledge of all the physical factors in the situation. As an engineer, he was familiar with engines and tenders and their proportions. The engine he was driving was one of moderate size, and of a type long in use. Its tender,

whether of the larger or smaller size, was one in use with this type of engine. It was neither special nor unusual. In his years of experience, for the most part confined to this. section of the road, and his recent months of frequent service upon it, as engineer, he must have become acquainted with the existence of the many overhead bridges which here span the tracks, with the narrow space between bridges and tops of engine and tender, and with the manner in which the electric service wires were strung in carrying them under the bridges. These conditions were apparent to casual observation; they had remained unchanged for years; and they were closely related to the performance of his duties.

He must also have known that these wires were electrically charged for the operation of trains. As a locomotive engineer of experience living in this age of the world, he, untold and unwarned, must have been sufficiently intelligent and informed to know of the latent danger which lurked in the wires so charged to one who should come into contact with them or into their immediate vicinity, and of the extremity of that danger. But that matter aside, the knowledge of the danger had been so directly and forcibly brought home to him through the notices and warnings given to him by the defendant that he could not have failed both to know the danger to his life that there would be in permitting himself to come into contact with or near to one of the wires, and to comprehend the character and extent of that danger.

This being so, he certainly knew and comprehended the risk incident to his employment. No one could well be expected to have better knowledge or a more adequate appreciation. Possessed of this knowledge and appreciation, he had for years chosen to continue in his employment. By so doing he assumed its risk, which, during these years, had remained unchanged, and been unenhanced by any new act of the defendant which could by possibility be imputed to it as negligence. Baer v. Baird Machine Co., 84 Conn. 269, 273, 79 Atl. 673.

"When the employé does know of the defect, and appreciates the risk that is attributable to it, then if he continues in the employment, without objection, or without obtaining from the employer or his representative an assurance that the defect will be remedied, the employé assumes the risk, even though it arise out of the master's breach of duty." Seaboard Air Line v. Horton, 233 U. S. 492, 504, 34 Sup. Ct. 635, 640 (58 L. Ed. 1062).

There is no error. In this opinion the other Judges concurred.

(5 Boyce, 197)

HEITE v. COWGILL. (Superior Court of Delaware. Kent. April 27, 1914.)

son so employed is entitled to recover the stipulated price or, if there is no agreement as to the price, then such a sum as they are reasonably worth.

[Ed. Note.-For other cases, see Work and Labor, Cent. Dig. §§ 1, 2; Dec. Dig. § 1.*] 2. SET-OFF AND COUNTERCLAIM ( 6*)—"RECOUPMENT."

Recoupment is the right of a person, when sued for work and labor by another, having been damaged rather than benefited by the performance of the work, to recoup his damages so as to avoid the trouble and expense of another action, but, in order to give rise to a right of recause of action for which a separate suit could coupment, the defendant must have a valid be maintained, and the damage must not have occurred through defendant's fault, in which case he may recover up to the value of the claim of the plaintiff, but may not have an affirmative judgment for any excess.

[Ed. Note.-For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 6, 7; Dec. Dig. § 6.*

For other definitions, see Words and Phrases, vol. 7, pp. 6015-6018.]

3. WORK AND LABOR (§ 24*) - ACTIONS PLEADING-GENERAL ISSUE.

Where, in an action for work and labor, defendant filed a general issue with notice of recoupment, he was entitled to prove his countercontract and grew out of the same transaction, claim, provided it was founded on the same for the loss or damage sustained by reason of plaintiff's failure or refusal to perform either entirely or properly, in reduction and abatement of plaintiff's claim.

[Ed. Note.-For other cases, see Work and Labor, Cent. Dig. §§ 43-46; Dec. Dig. § 24.*]

Action by Edward T. Heite against Levick P. Cowgill. Verdict for plaintiff. Argued before PENNEWILL, C. J., and BOYCE and CONRAD, JJ.

Thomas C. Frame, Jr., of Dover, for plaintiff. James M. Satterfield, of Dover, for defendant.

PENNEWILL, C. J. (charging the jury). Gentlemen of the jury: The plaintiff in this action seeks to recover from the defendant the sum of $102.17, with interest, being the balance claimed to be due and owing for work and labor performed and materials furnished upon and for a certain gasoline engine owned by the defendant and used by him in propelling a boat on Jones' river.

The labor and materials claimed to have been furnished for the defendant are particularly mentioned in plaintiff's books of original entry which are in evidence, and which when supplemented by the oath of the plaintiff are taken to be true unless shown to be untrue.

The defense set up by the defendant is what is known in the law as recoupment. That is, he claims that the plaintiff injured his engine more than he benefited it, and is not, therefore, entitled to recover anything in this suit.

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- and 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 running condition, which he wholly failed to do.

The plaintiff denies that he made any such guaranty; and moreover he insists that the engine was in good condition long before the defendant removed it from the plaintiff's shop in the following year.

Such in brief are the contentions of the parties.

[1] Where one person is employed by another to perform work and labor and furnish materials for him upon an agreed price, the person so employed is entitled to recover the stipulated price for the work done. and materials furnished, if the work done and the materials furnished are in accordance with the agreement. But if there was no agreement as to the price for the work and materials, then the employé is entitled to recover for the same such a sum as they are reasonably worth. If they are worth nothing then there can be no recovery.

[2] But there is another principle of law which we must endeavor to explain, for upon that the defendant mainly relies in this It is called recoupment, as we have already stated. In plain language it means that if a person performs work and labor for another, and in its performance damages the other party to an amount as great as the performer claims for his services, there can be no recovery. In such case the defendant is allowed to recoup his damages so as to avoid the trouble and expense of another action.

But the claim or damage to be recouped must be a valid cause of action for which a separate suit could be maintained, and must not have occurred through the fault or negligence of the defendant.

Whenever the defendant is permitted to submit his claim for damages as a subject of recoupment he assumes the burden of proof in respect to it, and no recovery can be had for any balance or excess. And the defendant will be barred from any other suit or recoupment for such balance or excess over the plaintiff's claim.

The damages allowed a defendant by way of recoupment must be founded on the same contract and grow out of the same transaction under which the plaintiff claims.

[3] In Woolley on Delaware Practice, volume 1, § 502, it is said:

"The defendant may be allowed to present and give in evidence, under the general issue with his notice of recoupment, his cross or counterclaim to that of the plaintiff founded on the same contract and growing out of the same business transaction, for such loss and damage incurred by him by reason of the refusal or failure of the plaintiff to perform it entirely or properly, in reduction and abatement of the damages claimed by him."

plaintiff might otherwise be entitled to recover, the amount of such damages, and if such damage is as great as the sum the plaintiff claims, your verdict should be in favor of the defendant. But you cannot find in favor of the defendant for any sum even though you believe his damage is greater than the plaintiff's claim.

And while you may allow the defendant damages for any injury to his engine caused by the plaintiff in negligently and unskillfully working on the same, you cannot, under the facts of this case, allow him any other damages.

In conclusion we say that, if you believe the plaintiff performed the labor and furnished the materials for the defendant which he claims to have performed and furnished, your verdict should be in favor of the plaintiff for such sum as the labor performed and the materials furnished were reasonably worth, provided you do not believe that in the performance of the labor and the furnishing of the materials the plaintiff negligently and carelessly injured the defendant's engine. If you are satisfied that the defendant's engine was so injured, you should deduct from the sum that would otherwise be due the plaintiff the amount of such damage. And if the amount of such damage is greater, or as great, as the plaintiff's claim, your verdict should be in favor of the defendant.

All that we have said to you so far in respect to the defendant's claim of recoupment applies only to the plaintiff's charge for labor and materials furnished in the years 1911 and 1912, because it is not contended that the engine was injured by anything the plaintiff did prior to that time. And it is not denied that the plaintiff furnished some labor and materials for the engine before 1911. It will be your duty, therefore, to return a verdict in favor of the plaintiff for at least such sum as you believe the labor performed and the materials furnished by the plaintiff for the defendant in and for his engine prior to 1911 were reasonably worth, less the credit of $47, which was paid prior to 1911.

As to the labor and materials furnished during the years 1911 and 1912, you must be governed by the law as we have stated it. Verdict for plaintiff.

(5 Boyce, 201)

BALTIMORE LIFE INS. CO. v. FLOYD. (Superior Court of Delaware. New Castle.

May 19, 1914.)

1. INSURANCE (§ 255*)-WARRANTY-DISTINCTION BETWEEN WARRANTY AND REPRESENTATION.

A representation respecting a matter not material to a risk does not amount to a warranty, and such a representation, though false, breach of warranty nor avoid the policy. if made in good faith, does not amount to a

We say to you, therefore, that if you believe the plaintiff, in furnishing the labor and materials for the defendant's engine, by his negligence damaged the engine to any extent, you should deduct from the sum the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 548; Dec. Dig. § 255.*]

2. INSURANCE (§ 298*)-AVOIDANCE OF POLICY | considered most worthy of credit, having reFOR BREACH OF WARRANTY-INSURABLE IN

TEREST.

Where the beneficiary under a policy of life insurance had a legal insurable interest, insured's misrepresentation as to his relation to the beneficiary, not made in bad faith, was a misrepresentation or misstatement of fact not materially affecting the risk assumed, and hence, not ground for avoidance of the policy.

[Ed. Note.-For other cases. see Insurance, Cent. Dig. § 677; Dec. Dig. § 298.*]

3. INSURANCE (§ 124*)-"CONTRACT OF LIFE INSURANCE"-NATURE.

A "contract of life insurance" is an agreement between insurer and insured whereby the insurer undertakes to pay a certain sum of money to a certain person, who usually is a person other than insured, upon the happening of a particular event, usually the death of insured, in consideration of payment by insured of certain stated premiums.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 172, 178; Dec. Dig. § 124.* For other definitions, see Words and Phrases, vol. 4, pp. 3675-3677.]

4. INSURANCE (§ 114*) - CONTRACT OF LIFE INSURANCE-INSURABLE INTEREST.

A contract of life insurance may be effected only for some benefit incident to or contemplated by insured, and an insurable interest in the beneficiary arises from his relationship to insured within certain degrees, or from the fact of pecuniary interest, such as that between partners, and between debtors and creditors; and a person may take out insurance upon his own life for the benefit of one having no insurable interest therein, if the transaction is bona fide and free from speculation, but insurance procured upon a life by one, or in favor of one, under circumstances of speculation or hazard amounts to a wager contract, void as in contravention of public policy.

[Ed. Note-For other cases, see Insurance, Cent. Dig. §§ 136-138; Dec. Dig. § 114.*] 5. INSURANCE (§ 114*)-EVIDENCE OF INSURABLE INTEREST-PAYMENT OF PREMIUMS.

One of the tests as to the validity of a contract of life insurance is to determine by whom the premiums are paid; when insured pays the premiums the contract is generally upheld, but where the premiums are paid by the beneficiary, there is a tendency to condemn it.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 136-138; Dec. Dig. § 114.*] 6. INSURANCE (§ 655*)-INTEREST OF INSURED -EVIDENCE-GOOD FAITH.

Where the beneficiary under a policy of life insurance has an insurable interest in the life of insured, such interest is evidence, which may be considered in connection with all the other evidence in determining the good faith of the transaction.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1677-1685; Dec. Dig. § 655.*] 7. INSURANCE (§ 646*)-ACTION-BURDEN OF PROOF.

In an action on a policy of life insurance, the burden of proving the legality of the contract, plaintiff's performance of conditions precedent, and defendant's liability, by a preponderance of the evidence, rests upon plaintiff. [Ed. Note. For other cases, see Insurance, Cent. Dig. 88 1555, 1645-1668; Dec. Dig. 646 *]

[ocr errors]

8. EVIDENCE (§ 588*)—Jury—DELIBERATIONWEIGHT OF EVIDENCE.

Where the evidence in a civil action is conflicting, it is the jury's duty to reconcile it if it can, and, if it cannot, to reject that considered least worthy of credit and accept that

gard to the intelligence and the bias of the witnesses and their ability to see, comprehend, and remember that to which they have testified. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 2437; Dec. Dig. § 588.*]

Action by William Floyd against the Baltimore Life Insurance Company. Motion for nonsuit refused, and verdict for plaintiff.

Argued before WOOLLEY and RICE, JJ. Andrew C. Gray, of Wilmington, for appellant. Lilburne Chandler, of Wilmington, for respondent.

Action

Appeal (No. 6, January term, 1914) from a judgment of a justice of the peace. of assumpsit brought before the justice by William Floyd against the Baltimore Life Insurance Company, to recover under an insurance policy issued to Albert Hanlin in which the plaintiff was the beneficiary. Motion for nonsuit refused. Verdict for plaintiff.

The contentions of the parties appear in the charge of the court.

At the conclusion of the plaintiff's case, counsel for defendant moved for a nonsuit on the ground that the applicant for insurance made a false answer to the question as to the relationship between himself and the beneficiary.

WOOLLEY, J. (delivering the opinion of the court). [1] The judges that constitute this court sat in the Keatley Case, 82 Atl. 294, either below or above, and are clear upon the policy of the law touching the subject of insurance warranties. The rule of the common law was that all representations made by an applicant for insurance, were warranties, whether they were terial or immaterial to the risk, and a false representation or misstatement of fact made by the applicant amounted to a breach of warranty, regardless of its materiality to the risk. From this rule the American courts have gradually and very generally departed, and under a line of cases known as nonserious ailment cases, the courts have held that a representation respecting a matter not material to the risk, did not amount to a warranty, and that such a representation, if proven to be made in good faith but nevertheless false, did not amount to a breach of warranty and did not operate in avoidance of the contract. The law as thus established by force of judicial decisions has been enacted into statutes by several states. This was done by the state of PennSylvania, and by the state of Delaware since the making of the contract of insurance sued upon in this case. Though not decided in any reported case, we hold this to be the law of the state of Delaware at the time the defendant entered into the contract here sued upon. [2] It may be a business policy of the defendant 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 insurance, in favor of a beneficiary not a relative, yet after all, that person may have an insurable interest, if the insured pays the premiums; and while an insurance company may establish any legal business policy for its governance that it may see fit, yet we think that a statement made by the applicant for insurance that merely disturbs that business policy but does not reach to something that materially affects the risk, is not a misstatement or misrepresentation that avoids the policy. It appears to us that while the applicant may have made a misrepresentation as to his relation to the beneficiary, nevertheless, there is evidence of a legal insurable interest in the beneficiary, though not so related to the insured; and while the misrepresentation of the applicant as to the degree of his relationship to the beneficiary may have been false, there was no evidence that it was made in bad faith. We are of opinion that the statement of the applicant, if untrue, was a misrepresentation or misstatement of fact that did not materially affect the risk assumed by the insurance company in making the contract of insurance, and therefore, the motion for a nonsuit should be refused.

WOOLLEY, J. (charging the jury). Gentlemen of the jury: In explanation of the rather lengthy charge we are about to deliver to you, we may say that though this case involves a sum of money inconsiderable in amount, the principles of law involved are important, not only to the determination of the case in hand but to the business of life insurance and to litigation that might hereafter arise therefrom.

This is an action brought upon a contract of insurance, wherein it is claimed on the part of the plaintiff that Albert Hanlin, the insured, procured from the Baltimore Life Insurance Company, the defendant, a policy of insurance for the sum of $244, payable upon the death of the insured unto William Floyd, the plaintiff; that the contract of insurance was sought and procured by the insured and the premiums thereon, though paid to the insurance company by one Payton Rose, were paid by him upon the authority and with the money of Hanlin the insured; and that Floyd, the beneficiary named in the policy of insurance, was a cousin of the insured, though described in the application for insurance as his uncle, and that the relationship between the two established in Floyd, the beneficiary, an insurable interest in the life of Hanlin, the insured, that gave to him a right to recover and to maintain this action for the amount stipulated by the company to be paid upon, the death of Hanlin, the insured; that the insured is dead and the amount due the beneficiary by the defendant insurance company is the sum of $122 with lawful interest thereon from the date upon which the payment should have been made. The defendant on the other hand contends,

that if there ever existed a contract between it and the deceased Hanlin, there exists no contract upon which the plaintiff may now maintain this action at law, for the following reasons:

First, that in his application for insurance, the insured made a false representation as to his relationship with the beneficiary, in declaring him to be his uncle, and thereby made a misrepresentation material to the risk;

Second, that Floyd, the beneficiary, had no insurable interest in the life that was insured for his benefit, in that Floyd, the beneficiary, was in no way related to Hanlin, the insured;

Third, that the alleged contract of insurance was sought and procured by Floyd, the beneficiary, and not by Hanlin the insured, and that the premiums thereupon were paid not by Hanlin the insured, but by another otherwise than with the money or upon the authority of the insured, and was therefore a wager contract; and

Fourth, that Hanlin, the insured is not dead.

These issues raise several questions, both of law and fact, with respect to the former of which we will instruct you and with respect to the latter, you are the sole judges.

The first question is whether the contract of insurance between the insured and the insurer is vitiated by an alleged misrepresentation by the insured in his application for insurance as to the relationship of the beneficiary to himself. We are of opinion and charge you, that if such a misrepresentation was made, it was not such a misrepresentation or misstatement of fact that was material to the risk and therefore does not avoid the contract. For this reason we refuse the prayer of the defendant to give you binding instructions to return a verdict in its favor, as for various reasons we decline a like prayer made in favor of the plaintiff.

The next several questions may be considered together and they are whether the beneficiary had an insurable interest in the life insured, and whether if he had or had not, was the contract of insurance under the circumstances in which it was procured and maintained, a valid contract in law.

[3] A contract of life insurance is an agreement between the insurer and the insured, whereby the insurer undertakes to pay a certain sum of money to a certain person, who may be and usually is a person other than the insured, upon the happening of a particular event, usually the death of the insured, in consideration of the payment by the insured of certain premiums, made at stated periods.

[4] Such an undertaking, though based upon a contingency that has in it an element of chance, when entered into with legal requisites and for a lawful purpose, is in this day a perfectly legal and commonplace trans

« ՆախորդըՇարունակել »