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some exceptions to these as well as to most gen- f employés of the existence of such a latent eral rules.”

danger. In that case we quoted with approval as Whether such conditions did in fact exist we had previously done what was said by was for the jury, as was also the question the Supreme Court in B. & O. R. R. Co. v. whether the plaintiff was guilty of contribuBaugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. tory negligence. The court could not say, Ed. 772:

as a matter of law, that it was negligence “A master employing a servant impliedly en- on the part of the plaintiff to place his foot gages with him that the place in which he is to where he did, if he believed the conveyor was work and tools or machinery with which he is to work, or by which he is to be surrounded, covered, as it ought to have been, and as it shall be reasonably safe. It is the master who usually was. The evidence certainly furnishes is to provide the place and the tools and ma- sufficient reasons for crossing where he did, chinery, and, when he employs one to enter his service, he impliedly says to him that there is and as he did, to require that to be submitted no other danger in the place, the tools, and the to the jury. The defendant's third prayer, machinery than such as is obvious and neces- asking the court to take the case from the sary."

jury on the ground of contributory negligence We gave, as illustrations of the exceptions of the plaintiff, was therefore properly reabove referred to, when a place is out of jected. Its fourth, fifth, sixth, and seventh repair and dangerous, and the employè un- prayers, which were granted, fully instructed dertakes to make it safe, and when he accepts the jury as to plaintiff's alleged contribuan employment or continues in it, with tory negligence, and its seventh was properly knowledge of the danger, the employè cannot modified. Its eighth, which was also granted ordinarily hold his employer liable.

with a slight modification, was as favorable [5] Applying these principles to the facts as the defendant could expect or ask. The of this case, the plaintiff's first prayer was ninth and tenth were properly rejected, and properly granted, and the defendant's first what we have already said will relieve us and second and its prayer 1A were properly from discussing them. rejected. There is nothing whatever in the In 2 Labatt's Master & Servant (2d Ed.) evidence to contradict the plaintiff, when he $ 995, p. 2668, the effect of changes in the said he did not know that the top of the con- parts of machines is thus stated : veyor was not solid, as it was supposed to be “A servant may recover damages for an inand as the defendant claims it thought it was. jury caused by the removal or alteration of No witness was more positive about the dan- some essential part of a machine, when the dan

ger of using it is thereby materially increased. ger of conveyors than Mr. Taylor, a super- | Hence, whatever doctrine may be entertained as intendent of the company, and it may well to the existence of a duty on the part of the be inferred from his testimony that he re-employer to keep dangerous machinery covered garded them so dangerous as to inspect them (see sections 975, 976, ante), the employer is

prima facie liable for an injury resulting from himself. He says he saw the old conveyor the entire or partial removal of a cover which the Sunday before the accident, and denied had been provided. The conditions thus created that there was then a collection of lime on are clearly more dangerous, because misleading, the machinery or that there was a sack there. there has never been a cover at all. In such

than those to which the servant is exposed when That was either the day before or two days cases, therefore, the right to maintain the acbefore the accident. Bowers says the acci- tion is complete, and can only be defeated by dent was April 8th, which was Monday, while showing that he understood and deliberately enone of the witnesses, according to the record, changed circumstances.”

countered the specific risks arising from the said it was on April 9th. But there was not

In reference to the master's duty under only some evidence, but abundant evidence, statutes relative to factories, the same learnin contradiction of those statements of Mr. ed author in volume 5, $ 1856, p. 5665, says: Taylor. He is also reported in the record

"It is not sufficient for the master to furnish to have testified that there was "no excuse the guards; he must also adjust them; and the not to protect screw conveyors," and, as duty of guarding is continuous, so that the it was known that some of the employés guards must be maintained as well as furnished, would be working about the old conveyor, contemplated by the statute."

and kept in condition to perform the service he would seem to be undoubtedly right in

[6] It only remains to consider the first that statement. We can appreciate the diffi- and second exceptions, which we will briefly culties that employers meet with at such a

do. The first was to permitting a section plant, but, if the evidence on the part of of the West Virginia Code to be read. That the plaintiff is correct (that sacks had

section is as follows: been used on this conveyor for a week

“1. In all manufacturing, mechanical and or more, as one witness said, or two or three other establishments, in this state, where the weeks, as another said, and that the sack machinery, belting, shafting, gearing, drums and and other parts of the top of the conveyor elevators, are so arranged and placed as to be were covered with so much dust that it engaged in their ordinary duties, shall be safely

dangerous to persons employed therein, while would have taken several weeks to accumu- and securely guarded when possible, and if not late; Mr. Taylor said "a couple of months"), possible, the notices of the danger shall be conit was inexcusable on the part of the defend-spicuously posted in such establishments, and

no minor or female of any age shall be permitted ant, and it did neglect its plain duty to cor- to clean any of the mill gearing or machinery rect the trouble, or at least to warn the in such establishments while the same is in mo

tion." Code W. Va. 1913, c. 15H, $ 59 (sec. ( hole into which Bowers' foot went was 518).

larger than the width of the sack, yet the As this plant was in West Virginia, we witness in his experiment said he had "used think it was proper to admit that statute the width of the bag for an experiment (this in evidence. It is not contended that the width was 26 inches), and placed 212 inches plaintiff could not sue the defendant in this lime upon it; the hole was longer than the state for these injuries, if service on the de- width of the sack.” If his object was to show fendant could be had, as it was. It might that the sack sagged under those circummaterially affect the usefulness of such stances, it is very probable that it did when a statute, if, when suit is brought in a state the hole was longer than the width of the other than the one where the injury happen- sack. There might have been altogether difed, the courts of the former refused to add- ferent results if he had experimented with mit it in evidence. It frequently happens a hole which was known to be of the same that employés live on one side of a state size as the one into which plaintiff's foot line and work on the other side, and while went. One of the witnesses said that Bowthey can sue in the state where the accident ers' leg had pushed away a part of the coveroccurred, they are liable to be required to ing on top of the conveyor. One sack might give security for costs and be subjected to have been stiffer than the other, but even if other inconveniences, even if they can fur- the sack did sag some before Bowers was hurt, nish the security. It is now very generally unless he knew or had some reason to suppose acknowledged that statutes of this character, there was a sack or something other than if they were really and bona fide passed for the regular cover, he would not likely have the protection of employés, are not only de- observed the sagging. He and the other sirable for them, but are in the end bene- witnesses who saw it said they did not noficial to employers and the public, and in a tice that there was a sack there. For this country like this, where there are so many and other reasons which might be given, the different jurisdictions, the courts of one state experiment could not be accepted as satisshould be inclined to aid in the enforcement factory, but, at any rate, it is difficult to see of such meritorious statutes of another state, how it could have had any material effect, at least to the extent of applying their pro- in the face of the positive evidence as to visions to suits for injuries sustained where the actual conditions. The judgment will the statutes are in force. Of course we do be affirmed. not mean to say that, if a statute of one

Judgment affirmed; the appellant to pay state be contrary to the policy adopted by the costs. the state in which suit is brought or is deemed unreasonable by the courts of that state,

(112 Me. 175) the latter must be governed by it, but, where


ER CO. such is not the case, it would seem to be only just to apply a statute which presum- (Supreme Judicial Court of Maine. Sept. 1, ably was read into the contract of employ

1914.) ment or at least was binding on the parties. 1. Costs (8 49*)—DEMURRER-OVERRULINGOne count of this narr. specially relies on

PLEADING ANEW. the West Virginia statute, and while, inde if a demurrer filed at the first term is overruled

Under Rev. St. c. 84, $ 35providing that, pendent of that, there was enough to go to the defendant may plead anew on payment of the jury under the other count, we are of costs, and that, after a decision on the demurthe opinion that the West Virginia statute shall be entered thereon unless costs are paid

by was admissible. Without quoting from au- and new pleadings are filed on or before the thorities, we will refer to some where the second day of the next term, a defendant whose question is considered. Boston & Maine R. demurrer is overruled must either pay or tenR. v. Hurd, 47 C. C. A. 615, 108 Fed. 116, 56 der costs on or before the second day of the L. R. A. 193; Christiansen v. William Gra- pleadings will be stricken and judgment ren

next term, and, in case of failure, his amended ver Tank Works, 223 Ill. 142, 79 N. E. 97, dered on demurrer. 7 Ann. Cas. 69; 22 Am. & Eng. Ency. of [Ed. Note.-For other cases, see Costs, Cent. Law, 1378; 26 Cyc. 1291.

Dig. 88 211-215, 217; Dec. Dig. şi 49.*] [7] There was no error in the second ex- 2. PLEADING ($ 239*)—DEMURRER-PLEADING ception. Without discussing the question

OVER—WAIVER OF PAYMENT OF COSTS. from other standpoints, the conditions stated journment of court on the second day of the

A plaintiff, by failing to object, before adby the witness, as we understand them, are term following the one when , defendant's denot shown to be the same as at the time of murrer was overruled, to the filing of amended the accident. Precisely what the size of the pleadings by defendant, does not waive his

right to demand that, as defendant did not pay. opening was, which the sack covered when the costs, judgment should be rendered on the Bowers put his foot on the conveyor, is not demurrer, because defendant has until the end shown, but there was evidence that the screw of the second day to pay, such costs and until forced his leg along in the conveyor for fendant intends to make the payment.

such time plaintiff cannot know whether desome distance, but what the distance was is

[Ed. Note.-For other cases, see Pleading, not known. There was no evidence that the Cent. Dig. 88 626-635; Dec. Dig. & 239.*]

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

3. DAMAGES (8 132*)—PERSONAL INJURIES- | gard to costs.” The court ruled as matter of MEASURE OF DAMAGES.

law that the filing of the plea without payAn award of $4,900 in favor of plaintiff, a ment of costs did not make a good plea and young man 23 years of age, who earned $2 a day, to compensate him for injuries resulting granted the motion. No objection thus overin the loss of one eye which had to be removed ruled can avail. The objections are based upand the impairment of the sight of the other, on failures and omissions of defendant. The is not excessive.

[Ed. Note.-For other cases, see Damages, plaintiff was under obligations to do none of Cent. Dig. $8 372, 385, 396; Dec. Dig. & 132.*j the things alleged to be undone.

[2] The defendant argues that the plaintiff On Motion and Exceptions from Supreme waived the payment of costs. If this be open Judicial Court, Kennebec County, at Law. to defendant under his bill of exceptions, we

Action by Harold C. Rollins against the are forced to conclude that there was no Central Maine Power Company. Judgment waiver. Certainly none was expressed, nor was rendered upon the overruling of defend- do we consider that any can be inferred. ant's demurrer, and defendant excepted and whether the cause was to be tried upon its moved for new trial. Exceptions and mo- merits or only upon question of. damages, tion denied.

nothing was done during the first two days See, also, 111 Me. 72, 88 Atl. 86.

of the term which was not required in the Argued before CORNISH, BIRD, HALEY, way of preparation for trial by court or coun. HANSON, and PHILBROOK, JJ.

sel in either event. Until adjournment at Benedict F. Maher, Harold H. Murchie, and the end of the second day of the term plainSamuel Titcomb, all of Augusta, for plaintiff. tiff could not know if defendant had forgone Harvey D. Eaton, of Waterville, for defend his right. At the close of the second day the ant.

rights of the parties were fixed, and we are

unable to find in the action of plaintiff thereBIRD, J. This is an action for the recov. after conduct from which a waiver of his ery of damages for personal injuries. It is rights as determined can be inferred.

Hanhere upon exceptions to the ordering of judg. scom v. Ins. Co., 90 Me. 333, 38 Atl. 324, and ment upon demurrer and defendant's motion Haskell v. Brewer, 11 Me. 258, relied upon by for new trial upon the ground of excessive defendant, seem to be inapplicable to the presdamages.

ent case. There are aspects of hardship in [1] As to the exceptions: Upon the facts the case, but to grant relief would transcend set out in the plaintiff's bill, we think the ex- the function of the court. ceptions to the ordering of judgment must be [3] Upon entry of judgment upon the deoverruled. At common law, when exceptions murrer, the damages were assessed by the to the overruling of a demurrer to the decla- jury in the sum of $4,935, which defendant ration were overruled, judgment on the de- claims to be excessive. Defendant offered no murrer, or that plaintiff recover, followed evidence. The plaintiff was at the time of and was final. The Legislature, relaxing the his injury 23 years of age and earning in the severity of the common law, has provided : employ of defendant $2 per day. The sight

If the demurrer is filed at the first term and of one eye was destroyed and later the eye overruled, the defendant may plead anew on

was removed. The evidence indicates that payment of costs from the time when it was filed, unless it is adjudged frivolous and intend- his earning capacity has been reduced, the ed for delay, in which case judgment shall be other eye affected, and that annoyance and entered at the next term of court in the county disfigurement must be experienced throughwhere the action is pending, after a decision on the demurrer has been certified by the clerk of out life. Considering these elements of damthe district to the clerk of such county, and not age in view of his expectation of life, his before, judgment shall be entered on the de- pain, and expenses, the court is unable to say murrer, unless the costs are paid, and the that the amount of the verdict shows bias, amendment or new pleadings filed on the second day of the term.” R. S. c. 84, § 35; State v. prejudice, or improper conduct on the part of Peck, 60 Me. 498.

the jury. A new right is thus given, not to the plain

The exceptions and motion must therefore tiff, whose rights at common law are abridg- be overruled. ed, but to the defendant whose rights are en

So ordered. larged upon his compliance with the conditions named. The defendant filed his new

(112 Me. 559) pleadings on the first day of the "next term,"

PIERCE V. COLE. but made neither payment nor tender of the (Supreme Judicial Court of Maine. Sept. 7, costs upon either the first or second day.

1914.) A jury being impaneled for the trial of the FRAUD ($ 50*)—DECEIT-BURDEN OF PROOF. cause, plaintiff moved on the fourth day of In an action for deceit in the sale of a the term for judgment on the demurrer. To farm, the burden is on plaintiff to prove the the granting of this motion the defendant ob- misrepresentations alleged to have induced him

to purchase, and on his failure to do so he canjected because “there had been no taxation not recover. of costs, nor request for payment thereof, nor

[Ed. Note.-For other cases, see Fraud, Cent. any mention whatever previously made in re | Dig. $$ 75–77; Dec. Dig. & 50.*]

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

· On Motion from Supreme Judicial Court, i had been given him by Mr. Strout, the agent Kennebec County, at Law.

of whom he bought the farm of the plaintiff. Action by George A. Pierce against Charles But the statement did not contain such a repJ. Cole. On motion for a new trial. Granted. resentation as to the quantity of hay in the

Argued before SAVAGE, C. J., and SPEAR, barn as would sustain an action of deceit. CORNISH, KING, BIRD, and PHILBROOK, Accordingly, at the present trial the plaintiff JJ.

furnished the technical oral proof that would

sustain his action. Williamson, Burleigh & McLean, of Augus

We cannot avoid the conclusion, however, in ta, for plaintiff. George W. Heselton, of view of the plaintiff's voluntary and unbiased Gardiner, for defendant.

testimony in 1909, that this evidence of the

son was introduced to meet the contingency, PER CURIAM. This is an action of deceit that the writing, as the plaintiff called it, was arising from the sale of a farm by the de- not sufficient to sustain his action. The fendant to the plaintiff, in which the plaintiff plaintiff's evidence was so fully contradicted alleges that the defendant misrepresented the by himself, and the other testimony in the amount of hay which the farm cut in case, that it cannot be regarded as sufficient 1907 and previous years, as an inducement to sustain his verdict. See Musgrave v. Farto the plaintiff to buy the farm. This case ren, 92 Me. 198, 42 Atl. 355. has been tried twice and each time contained

Motion sustained. a very long record involving, as such cases New trial granted. usually do, much conflicting testimony. The plaintiff obtained a verdict in his favor at each trial. The first verdict was set aside

(112 Me. 181) upon exceptions, and the merits of the case, WILSON, Atty. Gen., ex rel. HALL V. of course, were not considered. The case is

McCARRON. now before us on motion only. It would be (Supreme Judicial Court of Maine. Sept. 10, useless to attempt a detailed review of the

1914.) evidence contained in this long record of 532 1. MUNICIPAL CORPORATIONS ($ 176*)—CITY pages. The plaintiff's action sounds in de MARSHAL-TERM OF OFFICE. ceit. It was therefore incumbent upon him The provision of Lewiston city charter to prove all the elements necessary to make that the city council should annually, on or

after the third Monday of March, elect and apout and sustain this form of action. The point all subordinate officers for the ensuing plaintiff's chief contention was that the de- year, the same to be chosen and vacancies filled fendant made such misrepresentations as to for the current year, was repealed as to the

city the quantity of hay in the barn cut the year marshal by Sp. Laws 1878–80, c. 293, which

provides that the city marshal shall be appointhe purchased, and as to the quantity cut ined by the mayor with consent of the aldermen, previous years, as to sustain in law an action and shall hold office for two years, and repealof deceit. It was, of course, the first duty of ing all inconsistent acts. the plaintiff to prove the misrepresentations

[Ed. Note. For other cases, see Municipal claimed. We think he has

failed to do this. Corporations, Cent. Dig. 88 427-440; Dec. Dig.

$ 176.*] His own testimony is so contradictory and

2. MUNICIPAL CORPORATIONS (8 183*)-CITY conflicting upon this vital point that the

MARSHAL-"TERM." denial of the defendant of the representa Under Sp. Laws 1878–80, c. 293, § 1, tions, as claimed by the plaintiff, must prevail providing that the city marshal of the city of in determining this issue. It appeared at this Lewiston shall hold office for two years, a city trial of the case that the plaintiff, at a trial marshal holds office for the full term of two

years from his appointment, whether appointed in the superior court in 1909 involving other at the beginning of one of the successive peissues, but raising directly and emphatically riods of two years counting from the date the the representations made by the defendant act became effective, or to succeed one who when the plaintiff purchased the farm of him, the word "term" means a limited or definite

did not serve out the full term, especially as denied, upon oath, both upon cross and direct extent of time, or the time for which anything examination that the defendant made any lasts, and, when used with reference to the such representations, either to himself, or to tenure of office, ordinarily refers to a fixed and his son in his presence and hearing, as he nate a fixed, definite time that the person ap

definite time, and is used in the act to designow claims. This trial occurred nearly four pointed shall hold the office. years before the present one, when his recol [Ed. Note. For other cases, see Municipal lection of what took place must have been Corporations, Cent. Dig. 88 472-481; Dec. Dig.

$ 183.* fresh and clear. His testimony was certainly without bias or prejudice. We think it should vol. 8, pp. 6916, 6917.)

For other definitions, see Words and Phrases, have been regarded by the jury as sufficient to overcome the later testimony which he Report from Supreme Judicial Court, Anproduced when he was influenced by self- droscoggin County, at Law. interest to sustain his action of deceit. In Petition in the nature of quo warranto by this connection it should be noted that at the Scott Wilson, Attorney General, on relation trial in the superior court, the plaintiff said of George R. Hall, against C. H. McCarron. repeatedly that he relied upon a writing which On report. Petition dismissed. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Argued before SAVAGE, C. J., and COR- | 1910, when Arsene Callier was appointed city NISH, BIRD, HALEY, HANSON, and PHIL marshal by the mayor, but his appointment BROOK, JJ.

was rejected by the aldermen. April 1, 1911, Newell & Skelton, of Lewiston, for relator. Arsene Callier was appointed and confirmed John A. Morrill, of Auburn, and Louis J. | city marshal for two years, and on March

18, 1913, C. H. McCarron, the respondent, Brann, of Lewiston, for defendant.

was appointed and confirmed city marshal

for the term of two years from the 1st day HALEY, J. This is a petition, in the na- of April of that year. March 31, 1914, ture of quo warranto, to determine the title George R. Hall, the relator, was appointed to the office of city marshal of the city of and confirmed for a term of two years from Lewiston, and is before this court upon re- April 1, 1914. port.

[1] It is the claim of the relator that the Prior to 1880 the city marshal, and all terms of office of city marshal are succesmembers of the police force of the city of sive terms of two years each, reckoning from Lewiston, were chosen for one year, being the first acceptance of the act and terminatelected by the city council on the third Mon- ing the last day of March of the even years, day of March, or as soon thereafter as con regardless of vacancies occurring during any venient, and served from the 1st day of term, and that, such being the case, CalApril.

lier's appointment of April 1, 1911, legally In 1880 the Legislature enacted chapter entitled him only to serve out the unexpired 293 of the Private and Special Laws (1878– term then existing; that his occupancy after 80), which was approved by the Governor on March 31, 1912, was de facto only; that the March 16, 1880, and took effect upon its ap- office was in law vacant; and that when proval by the city council of the city of McCarron was appointed on March 18, 1913, Lewiston prior to March 25th of that year. there remained to be filled only the unexpired Section 1 of said act reads:

term of two years from April 1, 1912. When , licemen of the city of Lewiston, shall here the act of 1880 was passed and accepted by after be appointed by the mayor, by and with the city council, the charter provided that the advice and consent of the aldermen. The the city council should annually, on or after city marshal shall hold his office for the term the third Monday of March, elect and appoint of yearsand the remainder of the police force shall hold their office for the term of all subordinate officers for the ensuing year, three years: Providing, however, that the first the same to be chosen and vacancies filled year after this act shall take effect, one-third for the current year, but that provision does in number, as near as may be, of said police not apply to the city marshal of the city, beforce, shall be appointed for the term of one year; one-third in number, as

cause, by section 2 of chapter 293 of the be, shall be appointed for the term of two / Special Laws of 1880, it is provided that “all years, and one-third in number, as near as acts and parts of acts inconsistent with this inay be, shall be appointed for the term of act are hereby repealed," and, as the act prothree years, and there shall be appointed each year thereafter, one-third in number, as near vides that the city marshal shall hold his as may be, of said police force; subject, how- office for the term of two years, it is inconever, after a hearing to removal at any time sistent with the provisions of the charter by the mayor, by and with the advice and consent of the aldermen, for insufficiency, or oth- stating that subordinate officers shall be er cause."

elected and vacancies filled for the current The police force was organized under this year, and we must look to the act of the act by appointments made March 25, 1880, Legislature of 1880 in determining the term when Hillman Smith was appointed and con- of office of city marshal, whether appointed firmed as city marshal for two years, and to fill a vacancy caused by death, resignaMarch 20, 1882, he was reappointed and con- tion, removal, or the refusal of the aldermen tirmed for two years. January 16, 1883, the to advise and consent to the appointment resignation of Hillman Smith as city marshal of a person to that office by the mayor. was accepted. On January 16, 1883, George [2] The petitioner claims that the case of W. Metcalf was appointed and confirmed to French v. Cowan, 79 Me. 426, 10 Atl. 335, is till the unexpired term of Hillman Smith. conclusive of the question in issue in this March 12, 1885, John French was appointed case. That was a petition for a writ of manand confirmed as city marshal for the term damus, and in that proceeding it was sought of two years from April 1, 1884. March 22, to try out the title to the office of city mar1885, Daniel Guptil was appointed and con- shal of the city of Lewiston by rival claim. tirmed as city marshal for two years. The ants, under the act of 1880. The respondent last two appointments resulted in a petition claims that, as that case decided that mandafor a writ of mandamus by John French, mus was not the proper proceeding to try out which case is reported in 79 Me. 426, and is the title of a public office, the only rule of relied upon by the petitioner in this case as law declared in that case was upon that giving the correct construction of the act branch of the case, and that the case was corin question. After said Guptil had served rectly decided, because, as the respondent out his term, other marshals were appointed says, it is clear that mandamus was not the for the term of two years, were all confirmed proper remedy. It is true that in the opinion ind served their terms down to March 28, the court discussed the question of when the


as may

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