Page images


motion being overruled, the second exception should be compelled to exclude it, because was taken. Dr. Reiche, the family physician, the form of the expression implies a hope of. testified: That he was called in Monday recovery, however faint, if the doctor should night. That the girl laughed, and said there be procured. But the proof is clear that subwas nothing the matter with her, and he sequent to this, and before making the decmade no examination. That he was called in laration admitted, she constantly said she again in the middle of the day on Tuesday, “knew she was dying," and the mother tes. and that as soon as he saw her he knew she tified that "she could see death in her eyes." was suffering agony. That she said: “'Oh, This belief of the mother would not avail if doctor, I am dying now. I want you to re- not shared by the daughter, but it is confirmalieve me.' I said: "What is the matter? tion of the sincerity of her utterance when You said last night there was nothing. She she said she knew she was dying, and we replied, 'I will have to tell you there was an think there was no error in the ruling on this abortion performed.' She was in intense exception. agony. I found a hard tumor on the abdo- The second exception is founded on the

She told me all the time she was dy- theory that Mrs. Briele's testimony was so ing, and I must help her, and I gave her a weakened on cross-examination that it behypodermic injection, and told her she would came necessary to strike out the declaration be relieved in a little while, and sent for Dr. admitted under the first exception. During Prentiss, as her case was not ‘in my line of this cross-examination Mrs. Briele was asked practice.'” That he was called in about four, if she did not testify at a former trial of this o'clock next morning. That she then said case that the declaration was made when she was dying fast, and she died about an she was first called upstairs Tuesday mornhour and a half later. That both before and ing, and before her daughter had referred at after stating to witness the cause of her suf- all to her dying. This she denied, and said fering she repeatedly said she was dying, and that at the former trial she testified that at said he must do something for her. Here the that time her daughter said, “Send for a docstate offered her declaration, which was ad. tor, 1 am dying;” that she said, “What is mitted over the objection of counsel for de- the matter?” Her daughter said she had had fense, and Dr. Reiche testified she said the an abortion performed. She asked by whom, operation was performed by Dr. Hawkins and and then she told her; but she still adhered Mrs. Bell; that he asked her whether a man to her statement that before the declaration or woman did it, and she said both did. To as to Dr. Hawkins was made she repeatedly the ruling under which this was admitted said she knew she was dying. Whatever the third exception was taken.

contradiction or inconsistency in the stateThe admissibility of dying declarations un- ments of this witness were developed on der circumstances nearly the same as the cross-examination was for the jury to reconpresent has recently been considered in the cile, and we discover no error in the refusal case of Worthington y. The State, 92 Md. to strike out the declaration previously ad222, 48 Atl. 355, 56 L. R. A. 333, 84 Am. St. mitted. Rep. 506, and that case we thought at the ar- The third exception is based upon Dr. gument was conclusive of this. The impor- Reiche's testimony that when he was called tance and responsibility, however, in cases in on Tuesday she said: "Oh, doctor, I am where life or liberty is involved is such that dying. I want you to relieve me," and it is we have been led to review the Worthington argued that this was rather a cry for help Case, and to re-examine the authorities upon than the utterance of an abandonment of the question. It is suggested, rather than hope. Again, it is said that she continued to contended, by the appellant, that no suffi- repeat she was dying, and that he must help cient foundation was laid for the admission her-must relieve her in some way. But to of the declaration in this case, because it does assume, in the face of all the testimony in not certainly appear that the declarant spoke this case, that her cry for relief disproved under a sense of impending death, and with- the sincerity of her statement that she knew out any visible hope of recovery. That the she was dying, would be to deny to her the declaration would be inadmissible if there is privilege of asking the alleviation of what evidence of any expressed or clearly visible the doctor said he knew as soon as he saw hope of recovery is undoubtedly true, since her was intense agony. Nor is it a natural or the obligation to speak the truth would not reasonable conclusion that the doctor did not be that supposed to be created when every think death impending because he gave her a hope of this world is gone, and is not in legal hypodermic injection, and told her she would contemplation equal to that imposed by a be relieved in a little while. This injection positive oath in a court of justice. But is was plainly given to relieve the agony, and it there evidence of any hope of recovery? The is common knowledge that such treatment ground of the first exception is that on the does mercifully render suffering or dying perday the declaration was first made, when sons insensible to pain. The relief the doctor the mother was first called to her daughter, promised was what she asko-a respite from she said: “Do get me help. If you don't agony, not an escape from death. And it send for the doctor, I will die.” If the decla- must not be forgotten that it is not material ration rested upon this foundation alone, we the physician may think the patient may or will recover if he fully believes death is ac- gas company from excavating in a highway for tually impending. People v. Simpson, 48

the purpose of laying its pipes until it had obMich, 474, 12 N. W. 662. In John's Case, 6

tained a permit from complainants, and an in

junction issued as prayed, restraining defendant Car. & Payne, 386, it is said that, though the from laying its pipes until it had obtained perdeceased does not state he is conscious of mission from the commissioners, “or until the impending death, if the declaration is made

further order of the court," defendant, on ob

taining the permit, might proceed with its work under such circumstances as, in the judg- without being in contempt, though no further ment of the court, will reasonably warrant order of the court was made. such inference, it is admissible as a dying

2. The board of county commissioners of Bal.' declaration; and in Hall v. Commonwealth,

timore county, acting under authority of the

general laws, and that vested in them by Laws 2 Grat. 594, it is said that proof of expecta- 1900, c. 685, p. 1080, and by Laws 1902, c. tion of death is not confined to declarations 524, p. 764, adopted an order to the effect that of the deceased, but may be satisfactorily

after a certain date ,no water mains or pipes

should be laid within the limits of a highway, established by the circumstances of the case. or any such highway dug up for such purpose, In People v. Simpson, 48 Mich. 474, 12 N. W. without a permit in writing, signed by the 662, the court said: “In this case there was

county commissioners. The charter of a gas certainly evidence from which the court be

company, in substance, authorized it to lay pipes

under roads, subject to any order that might low, under the ruling made, must have been be passed by the county commissioners for the satisfied that the deceased was under the be- filling up and repaving of any road, etc. Held, lief that death was impending, and the case

that an injunction would not lie, restraining the

gas company from excavating a highway and would require to be a very strong one to jus- constructing mains therein without having obtify this court, who did not see the witnesses, tained a permit from the county commissioners. in arriving at a different conclusion.” The

3. A corporation formed by the consolidation

of other corporations is vested with the powers, case now before us was tried before a care

privileges, and immunities of the consolidated ful and humane judge, in whose wise discre- companies, except in so far as otherwise protion in these rulings we can safely repose

vided by the act under which consolidation takes the confidence to which the above case de


4. A bill by the commissioners of a county clares they are entitled. The views we have against a gas company alleged that defendant expressed are sustained in 1 Greenleaf on was excavating, a public road for the purpose Evidence, $ 158; 1 Roscoe's Crim. Evidence,

of laying gas pipes, the excavation being such

as to greatly interfere with public use of the 53 to 61; Bishop's New Crim. Proc. $ 1213;

road, and the prayer was for an injunction Regina v. Peel, 2 Foster & Frulason, 21; and restraining such conduct on the part of defendMcLean v. State, 16 Ala. 672. We cannot

ant until it should have obtained a permit from

the board of county commissioners. Held that, adopt the view of the Kentucky court in

it appearing that defendant was not required Matherly V. Commonwealth, 19 S. W. 977, to secure a permit before making such excavathat the desire to have a physician sent for tions, the injunction would not be granted unclearly indicates in any case that the deceas

der such a prayer on the ground that the facts

justified the interposition of a court of equity. ed had hope of living, though he said he was going to die. This inference must be con- Appeal from Circuit Court, Baltimore Countrolled by all the circumstances of the case. ty; N. Charles Burke, Judge. The case of Rex v. Hayward, 6 Car. & Payne, Suit by the county commissioners of Bal160, relied on by the appellant, is not in con- timore county and others against the Consoliflict with anything we have said. There the dated Gas Company of Baltimore. From a declaration was made as to who had inflicted decree granting a preliminary injunction, dethe injury, before anything was said about fendant appeals. Reversed. impending death. Then suddenly the declar- Argued before McSHERRY, C. J., and ant exclaimed: "Oh, God! I am going fast. FOWLER, BRISCOE, BOYD, PAGE, I am far too gone to say more;" and the dec- PEARCE, SCHMUCKER, and JONES, JJ. laration was excluded because the court

Edgar H. Gans, for appellant. Osborne I. thought the conviction of impending death

Yellott, for appellees. then for the first time forced itself upon his mind.

BOYD, J. This is an appeal from an order We cannot discover any warrant for re

granting a preliminary injunction on a bill versing the rulings in this case. Judgment

filed by the appellees against the appellant. affirmed, with costş above and below.

The bill refers to the powers given to the

county commissioners over the public high(98 Md. 689)

ways by the general laws, and to those vest

ed in the board of road commissioners of BalCONSOLIDATED GAS CO. OF BALTI. MORE v. BALTIMORE COUNTY

timore county by chapter 685, p. 1080, of the

Laws of 1900, as amended by chapter 524, p. COM’RS et al.

764, of the Laws of 1902, and alleges that the (Court of Appeals of Maryland. Feb. 25, 1904.)


rules and regulations governing the granting EXCAVATE ROADS-PERMISSION OF COUNTY of permits to individuals and corporations COMMISSIONERS -- CONSOLIDATION OF CORPORATIONS_RIGHTS OF CONSOLIDATED COM- desiring to go upon and dig up or disturb PANY.

the beds of the public highways of Baltimore 1. Where a bill by county commissioners prayed for a preliminary injunction to restrain a 1 3. See Corporations, vol. 12, Cent. Dig. $ 2354.

county, and requiring them to secure permits Baltimore county, and the gas company has to do so. It further alleges that the rules no power to use the highways in getting gas and regulations were duly recorded among from another company. The bill then prays the records of the county commissioners, of (1) that a preliminary injunction may be which the defendant had due notice, and they | granted, prohibiting the defendant, its seryhad been at all times ready and willing to ants and agents, “from tearing up and disgrant such permit to any individual or cor- turbing the beds of the Trappe and Sellers poration entitled to and applying therefor. It Point Roads, in Baltimore county, and from 'alleges that the defendant is a body corporate laying gas mains and pipes therein, until engaged in the business of manufacturing, such time as it may obtain from the county selling, and supplying illuminating gas, be- commissioners of Baltimore county a written ing a consolidation of two companies named, permit so to do, or until the further order of which were incorporated under the general this court”; (2) that at the final hearing the incorporation laws of the state, and of the defendant may be forever enjoined and reEquitable Gaslight Company of Baltimore strained from tearing up the beds of these City, incorporated under chapter 132, p. 207, roads for the purpose of laying gas mains or of the Acts of 1867, as amended by chapter pipes to conduct gas from the property of 337, p. 550, of the Acts of 1882, and chapter the Maryland Steel Company to the plant of 221, p. 377, of the Acts of 1886, all of which the defendant; (3) and for general relief. are prayed to be taken as a part of the bill. An order was passed that a “preliminary writ It then charges that the defendant entered of injunction be issued as is prayed in the into an agreement with the Maryland Steel first prayer of said bill,” with the usual proCompany, of Baltimore county, by which it visions for a motion to dissolve, and that a was to purchase large quantities of coal gas, permanent injunction issue as prayed in the which was to be conducted through mains second prayer of the bill, unless cause to the or pipes from the property of the Maryland contrary be shown, etc. After filing an anSteel Company, through and across the

swer, an appeal was entered from the order Twelfth Election District of Baltimore coun- granting the preliminary injunction, and the ty, into Baltimore City, to the manufactur- only question before us is whether there was ing plant of the gas company, “whence it is error in granting that injunction, as, of to be distributed throughout Baltimore City course, there is no appeal from the order to as the product of said Consolidated Gas Com- show cause. pany"; that, in pursuance of said agreement, A copy of the rules and regulations adoptwithout first getting permission of the coun- ed by the county commissioners was filed ty commissioners, or from the road commis- with the bill. By them it was ordered on sioners, the defendant began to dig trenches the 30th of April, 1903: "First. That from in a public highway of the county, and to lay and after this date no electric light, telein the trenches large gas mains or pipes, said graph, or telephone poles shall be planted on, work being done with great inconvenience across, along, or within the limits of any of to the traveling public, and not under the the public highways of Baltimore county, or rules and regulations of the county commis- wires strung thereon or thereover, and no elecsioners, whereupon the county commission- tric, steam, or other railway tracks shall be ers notified it not to do any further work in laid down or constructed on, across, along, laying said gas mains without obtaining a or within the limits of any of said public written permit; that the defendant proceed- | highways, and no water mains or pipes laid ed with its work, and dug trenches and laid within the limits of said highways, or any mains in the public highways of the county other structure of any kind whatsoever confor a distance of over two miles; and that structed or erected thereon, or any such pubit was then engaged in laying pipes for a lic highway be dug up, uncovered, or disdistance of about three miles. In the eighth | turbed for said purpose or purposes, without paragraph of the bill it is alleged that the a permit in writing duly signed by the county pipe line is being laid in a way which is commissioners of Baltimore county, and regreatly detrimental to the interests of the corded among the records of said body." Vatraveling public, and the method adopted is rious provisions are then made for the issuing set out at some length, by which it is claim- of the permits, regulation of the work, etc. ed that the roads will be rendered, in a great It will be observed that the preliminary inmeasure, untit for public travel, and the junction simply prohibits the defendant from plaintiffs will be put to great expense and tearing up and disturbing the beds of those trouble. It is then charged that the defend- roads, and from laying gas mains and pipes ant has no authority to use said highways therein, "until such time as it may obtain without first obtaining permission, and with- from the county commissioners of Baltimore out conforming to the rules and regulations county a written permit so to do, or until the which the county commissioners have here- further order of this court.” If, then, a writtofore imposed or may impose in the prem- ten permit was not necessary, it is manifest ises. It also alleges that the agreement be- that the preliminary injunction was improptween the steel company and the gas com- erly issued, as the court could not prohibit pany is null and void, as the steel company the defendant from laying its mains and has no power to manufacture and sell gas in pipes until it did something which it was not required to do. The bill does not pray for a certainty whether the omission was intentionpreliminary injunction to prevent the defend- al or accidental, but it possibly was because ant from laying its mains and pipes in an the county commissioners knew that the improper manner, or in a way that is injur- Legislature had already authorized gas coming the roads and interfering with the public | panies to lay pipes on the public highways. travel, as it alleges it was doing, but the re Section 110 of article 23 of the Code of Public lief sought in the first prayer of the bill is General Laws expressly authorizes gas comsimply to enjoin the defendant until it ob- panies formed under that article "to lay contained the written permit, and nothing else. ductors or pipes, for the transmission of gas, The failure or refusal to obtain such written in any city, town or county under the streets, permit is the only ground upon which relief squares, lanes, alleys and roads thereof under that prayer is asked. The alternative,

subject, however, to any law or or"or until the further order of this court," dinance that may be passed by the municipal cannot enlarge the relief prayed for. The authorities of the city or town, or the county court could dissolve the injunction by its commissioners having jurisdiction, for the fillfurther order before a written permit was ing up and repaving any street, square, lane obtained by the defendant, but it could not or alley or road, under which the said pipes continue it under that prayer after it deter- may be laid.” The constituent companies mined that a permit was not necessary.

In that were incorporated under the general the recent case of Shipley v. Western Mary- laws and consolidated in the defendant comland Tide Water R. Co. (decided in January (pany were therefore expressly authorized to of this year), 56 Atl. 968, it was contended lay pipes on the county roads, and were only that a preliminary injunction could not issue, made, by that section, subject to the orders because it was not specifically prayed for; of the county commissioners “for the filling but as the bill did pray for an injunction, and up and repaving" of the roads. In the exthat was the only relief asked for, we said, cellent article on "Corporations” in 10 Cyc., it "We are not aware of any decision in this is said on page 303 that, “as a general rule, state that requires the plaintiff to pray for a the new company succeeds to the rights, dupreliminary injunction under these circum- ties, obligations, and liabilities of each of the stances.” In Webb v. Ridgely, 38 Md. 364, precedent companies, whether arising ex conthis court had said "that, in order to obtain tractu or ex delicto. The charter powers, a preliminary injunction, there must be a privileges, and immunities of the constituent formal prayer for such process, for, although corporations pass to, and become vested in, a bill may pray for relief by way of injunc- the consolidated company, except so far as tion, yet, if it does not pray for the process otherwise provided by the act under which of injunction, the process will not be gran- the consolidation takes place, or by other apted." "Such process," as there used, referred plicatory, constitutional, or legislative proto the "process by way of injunction," and visions." In speaking of a consolidation of not specially to a preliminary injunction, as two railroad companies, this court said in is shown by the context and by the prayer State, Use of Dodson, V. Balt. & Lehigh R. set out on page 369, which this court said was Co., 77 Md. 489, 26 Atl. 865: "Nothing is desufficient to justify the issuing of a prelim- stroyed by the consolidation. Whatever apinary injunction. Now, by general equity pertained to either of the constituent bodies rule 16, adopted by this court, if an injunc. now, in the same measure and under the tion is asked for in the prayer for relief, it same condition, appertains to the composite is not necessary to repeat it in the prayer for body.

It could not have been the process. Article 16, 8 134, of the Code of

purpose to deprive them of any rights, propPublic General Laws. But when, as in this erty, or credits which they previously had; case, there is a special prayer for a prelim- neither was it the purpose to relieve them inary injunction, and an order is passed di- from any responsibilities which they had inrecting it to be issued as asked for in that curred. The design was to gather into one particular prayer, we must look to it to as- all the concerns of each of them, and vest certain the extent of it; and, when we do, we them in the corporation formed by their find that it only enjoined the defendant until union.” The provisions of the charter of the it obtained a permit. If it had obtained one other company consolidated in the defendant after the injunction was issued, it certainly corporation do not materially differ from could not be pretended that the defendant those in the general laws, in so far as they would have been in contempt if it had pro- reflect upon the question now before us. A ceeded to lay its gas mains and pipes before comparison of section 110 of article 23 with a further order of the court.

section 246 of article 23 of the Code of PubThe regulation of the county commissioners lic General Laws will show that the Legisabove quoted, which was relied on by the lature, in its wisdom, gave the county comappellees, does not include gas mains or pipes. missioners much greater powers over water It, in terms, only refers to electric light, tele- companies laying pipes than it did over gas graph, and telephone poles and wires, elec- companies. The assent of the county comtric, steam, and other railway tracks, water missioners must be first had and obtained by mains and pipes, within the limits of said water companies before laying pipes, "and all highways. It may be difficult to say with such works and the exercise of the powers

[ocr errors]

hereby granted shall at all times be subject

(207 Pa, 611) to such reasonable regulations as

In re VILSACK'S ESTATE. said county commissioners


Appeal of KRAUSE. from time to time provide.” Even conceding

(Supreme Court of Pennsylvania, Jan. 4, to the county commissioners the power to

1904.) make reasonable regulations before the pipes

WILLS--CONSTRUCTION-NATURE OF ESTATE. are laid by the defendant, they had no power,

1. Testator gave all his estate to his wife for under existing laws or existing rules and life, and at her death gave the proceeds or inregulations, so far as shown by the record, terest thereon to his sons and his daughters to require a written permit to be first ob

during their natural lives, and after the death

of either of them gave to their child or children, tained by it. It would seem to be clear, then,

"should they leave any children at their death, that the appellees were not entitled to a the share held by my sons or daughters at the preliminary injunction to prevent the appel

time of his or her death, but should neither of

my sons or daughters leave no heirs, then their lant from laying its gas mains and pipes un

share is to be divided between all my grandtil it obtained a written permit so to do. .children share and share alike.” Held, that the

We do not mean to intimate that the coun- word "children” meant heirs of the body, and ty commissioners of a county cannot prevent

that the testator's children took an estate in fee

tail, which was enlarged by the statute into a a gas company from making improper use of

fee simple. its public highways. It was urged with great

Appeal from Orphans' Court, Allegheny zeal at the argument of this case that, even

County. if the appellant was not required to obtain, a written permit before proceeding with the

In the matter of the estate of George Vil

sack. From decree dismissing petition of work, the bill alleged such acts on its part as justified the interposition of a court of partition, William Kraus appeals. Affirmed. equity. But without determining how far The following is the opinion of the court that could be done, if such relief was asked, below by Over, J.: there is nothing in the prayer for a prelim

“This is a petition filed by the children of inary injunction to authorize its issue on that Elizabeth Kraus, a deceased daughter of grounů. If the defendant was doing the George Vilsack, deceased, praying for a parwork in the manner alleged in the bill, with

tition of the real estate devised by him, as all the serious consequences therein stated, follows: 'I give and bequeath to my beloved the county commissioners could never prop-wife, Katherine, all my real and personal eserly give a written permit for it to proceed; tate during her natural life, and at her death, and hence we cannot see how it can be said I give the proceeds or interest thereon to my that the application for a preliminary injunc- sons, George and Siebol, and my daughters, tion was to afford relief against such acts as Elizabeth and Catherine, during their natural are alleged in the eighth paragraph of the lives, share and share alike, and after the bill, which, in effect, charged the defendant death of either of the above named sons or with committing a nuisance. It would estab- daughters I give and bequeath to their child lish a dangerous precedent to grant an in- or children (should they leave any children junction to prevent a nuisance on a prayer at their death) the share held by my sons which is as specific as this is in asking for and daughters at the time of his or her death, it on an entirely different ground, and for a but should neither of my sons or daughters different purpose.

leave no heirs, then their share is to be diWe do not feel called upon to consider the vided between all of my grandchildren share other questions referred to-whether the and share alike. The widow died October agreement between the appellant and the 21, 1886, and Elizabeth Kraus, testator's Maryland Steel Company is valid, or whether daughter, October 20, 1897. All of the other the appellant has the power to lay pipes for sons and daughters of the testator are still the purpose of conducting coal gas purchased living. The question raised by the petition of the steel company, as they are not involved and answer is whether the children of testain this appeal. They are intended to be pre- tor take an estate in fee. After the death of sented by the second prayer of the bill, but his wife he gave his estate to his sons and the order of the court only requires the de- daughters during their natural lives, and aftfendant to show cause why the perpetual in- er their death to their children, should they junction should not issue as therein prayed, leave any. Had he stopped here, there could and there is nothing in that part of the order be no question that the word 'children' was from which an appeal could be taken. Un- used in its ordinary sense as a word of purder the views we have expressed as to the chase, and that his sons and daughters only prayer for the preliminary injunction, noth- took a life estate, but if any of them left no ing we might say on these other questions children there would be intestacy as to this would have anything to do with what is share. This, however, does not seem to have now before us. So much of the order of the been his intention, as he next provided that, court as directs the preliminary injunction to if any of his sons or daughters left no heirs, issue must be reversed.

their share was to be divided, share and Order granting preliminary injunction re- share alike, between all of his grandchildren. versed, and cause remanded; the appellees to “If the word 'heirs' here means children pay the costs.

alone, and a son or daughter died, leaving no

« ՆախորդըՇարունակել »