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able contract. It did not become enforceable

(98 Me. 397) against the plaintiff by his signing a deed,

STATE v.

MCINTOSH. so long as that deed remained in his posses- (Supreme Judicial Court of Maine. Dec. 31, sion or under his control, and it was equally

1903.) under his control while it was in the pos

INTOXICATING LIQUORS–COMMON NUISANCEsession of his attorney. That Mr. Small,

WHEN NOT-EVIDENCE. throughout the transaction, was and acted as 1. One or

more unlawful sales of intoxithe attorney for the plaintiff, and that the cating liquors in a place do not necessarily,

and as a matter of law, make that place a comdeed was not simply sent to him to be held

mon nuisance; the place must be habitually, in escrow until the performance of some con- commonly used for the purpose before it becomes dition, is clearly apparent from the evidence a commou nuisance. in the case. See Day v. Lacasse, 85 Me. 242,

(Official.) 27 Atl. 124. So that the possession of the Exceptions from Supreme Judicial Court, deed by the plaintiff's attorney was the pos. | Androscoggin County. session of the plaintiff, and the deed was as Irving L. McIntosh was convicted of keepfully subject to his control as if in his man- ing a liquor nuisance, and brings exceptions. ual possession.

Exceptions sustained. Nor do these facts—the signing of the deed

This was an indictment under Rev. St. by the plaintiff, and its being sent by him

1883, c. 17, § 1, wherein the defendant was to his attorney-constitute a sufficient mem

charged with keeping and maintaining a liqorandum in writing to take the contract out

uor nuisance in the town of Lisbon between of the statute of frauds. It was still an

October 1, 1902, and the date of the indictunexecuted deed, because undelivered, and

ment. The intoxicating liquors in question still in the possession and under the control

consisted of six dozen bottles of Jamaica ginof the grantor. Day v. Lacasse, supra.

ger found on the defendant's premises. The When, on March 6th, the defendant visited

defendant, during the time covered by the inthe plaintiff, and they concluded a new con

dictment, was the proprietor of a store in tract for the sale of the property, there was

the village of Lisbon Falls, connected with no duty imposed upon the plaintiff to in

which was a billiard and pool room. His form the defendant that he had previously

stock of goods consisted of tobacco, cigars, concluded to sell for a less price, nor that confectionery, fruit, nuts, soda beers, canned he had already signed a deed for a smaller

goods, patent medicines of various kinds, and consideration, so long as that deed remained

three brands of Jamaica ginger, viz., Sanin his possession or subject to his control.

ford's, Gilt Edge, and Anchor Mills, the last Although he had determined to sell the prop

named being the particular brand seized by erty at a certain price, he had the right,

the officers, and carried in materially larger until he did sell, or make a valid contract of sale, to get a larger price, if a purchaser was

quantities than the others.

The analysis of this brand was found to be willing to pay it. An owner of property may

as follows: Total solids, 11.70 per cent.; have determined to sell that property at a

resin, .02 per cent.; fixed oil, trace; volatile certain price, but he is under no obligation

oil, .066 per cent.; residue, caramel and sugar to communicate that fact to a prospective

extractive; alcohol, 44.90 per cent.; water purchaser. So that, as there was no duty

sufficient to make 100 per cent. upon the plaintiff to disclose these facts

The evidence tended to show that the comabove referred to, it was not a fraudulent

pound contained the full medicinal strength concealment to withhold this information.

of the ginger. These were not material facts which he was

There was evidence tending to show that bound to disclose to a person who was de

this brand of Jamaica ginger contained only sirous of purchasing the property.

a trace of resin, while the brands generally Moreover, the defendant, after being in

sold and used for medicinal purposes containfull possession of all of these facts, com

ed a considerable proportion of resin, which pleted the transaction, to the extent of pay

made it practically impossible to use them as ing the remainder of the purchase price, and

a beverage, the resin being the irritant which by taking a deed of the property. If he had

exists in the usual brands. The evidence of had suficient cause to rescind the contract

the defense, however, tended to show that all by reason of fraud upon the part of the plain

of the various brands on the market could be tiff, he should bave done so in whole, by re

used as a beverage. fusing to take the deed, so that the plaintiff

The evidence further tended to show that would have retained the title to his prop

Jamaica ginger is a common article of comerty. The law does not allow a partial re

merce, and is sold by nearly all druggists and scission, whereby the party claiming the

grocers as a medicine, it being a common right to rescind can retain the beneficial part

household remedy; that the standard test of a contract, and refuse performance of his

Jamaica ginger, as provided by the United part.

States pharmacopæia formula, contains 94 Judgment for plaintiff for $189, and inter

per cent. of alcohol, and that the brands and est from March 10, 1902, the date of the presentation of the check and refusal of

1 1. See Intoxicating Liquors, vol. 29, Cent. Dig. payment, and for protest fees.

98 152, 311, 340.

qualities ordinarily sold by druggists and gracers contain from 40 per cent. to 60 per cent. of alcohol.

There was evidence tending to show that this compound was kept and sold by the defendant, but there was no direct evidence that it was sold or kept to be sold as a beverage, the defendant claiming that what was sold was sold in the ordinary course of business as a medicine. There was evidence, however, tending to show that empty bottles, in considerable numbers, similar in shape and

found guilty, brings the case to the law court upon this and other exceptions.

The instruction complained of was undoubtedly erroneous. One or more unlawful sales of intoxicating liquor in a place does not necessarily, and as a matter of law, make that place a common nuisance. The place must be habitually, commonly used for the purpose before it becomes a common pui. sance, State y. Stanley, 84 Me. 555, 24 Atl. 983.

We have examined the whole charge,

ginger seized by the officers, were found some see if this instruction was not so limited and rods from the defendant's store; but the evi. explained in other parts of the charge as to dence also tended to show that the place prevent any danger of a misconception upon where these empty bottles were found was the part of the jury as to what constituted no nearer to the defendant's store than to the offense charged by the indictment. But other stores, in one of which similar ginger while the offense was clearly and properly had been sold.

explained in other portions of the charge, we There was evidence tending to show that think that this instruction was given as a all of the various brands of Jamaica ginger separate and independent proposition to such on the market were intoxicating if drank in an extent that the jury would be warranted sufficient quantities.

in believing that a single unlawful sale of The presiding justice, among other things, intoxicating liquors by the defendant in his instructed the jury as follows: "You will shop would make that shop a common nui. inquire whether, from all the facts and cir

sance under the statute, and the respondent cumstances in this case, you are satisfied be- guilty of maintaining such nuisance. yond reasonable doubt that he [the de As this disposes of the case, it is unnecesfendant] has sold any of that ginger between sary to consider the questions raised by the the first day of October and the date of this other exceptions. indictment. If so, then I instruct you that

Exceptions sustained. he is guilty of keeping a nuisance under the indictment." The defendant's counsel requested the pre

(98 Me. 384) siding justice to instruct the jury as follows,

SHEPHERD v. PIPER. which he declined to do: “If the Jamaica ginger in question was

(Supreme Judicial Court of Maine. Dec. 26,

1903.) sold or kept to be sold, given away, drank,

LIBEL AND SLANDER WORDS ACTIONABLE or dispe ed by the defendant as a beverage, AND NONACTIONABLE-COMMISSION OF NO the jury should convict; but if it was kept

OFFENSE CHARGED-DOUBLE VOTING-DE

MURRER SUSTAINED, or sold only as a medicine, they should

1. Slanderous words which impute the comacquit, although the compound might be in- mission of some crime by the plaintiff involving toxicating.”

moral turpitude, or which would subject the To this instruction and refusal to instruct

offender to an infamous punishment, are action

able per se; and this is true whetber such the defendant excepted. The entire charge

crime is one at common law or has been made was made a part of the exceptions.

so by statute. Argued before WISWELL, C. J., and EM- 2. Double voting upon a question merely callERY, WHITEHOUSE, STROUT, SAVAGE,

ing for an expression of opinion, and where

those voting have no power to determine the and POWERS, JJ.

question voted upon, is not an offense either at

common law or by statute. W. B. Skelton, Co. Atty., for the State. 3. In the declaration in an action of slander R. W. Crockett and R. F. Springer, for de- the cause of action set out was language charfendant.

ging the plaintiff with being guilty of counseling and procuring another to cast more than

one ballot, and thereby being accessory thereto, WISWELL, C. J. The respondent was

at a meeting of the inhabitants of a town, dulý

called and held, upon the question of the pastried upon an indictment charging him with sage of a resolution declaring that the use of maintaining a common nuisance under Rev. soft coal in the lime kilns in that town conSt. 1883, c. 17, § 1.

stituted a nuisance, and should be abated. The

declaration contained no averment of special In the course of his charge the presiding

damage. Held, that the declaration was demurjustice instructed the jury, in substance, that, rable, as the language declared upon did not im. if they were satisfied beyond a reasonable pute the commission of any crime, either at doubt that the respondent had sold any in

common law or by statute. toxicating liquor during the period covered

(Official.) by the indictment, he would be guilty of Exceptions from Supreme Judicial Court, maintaining a nuisance under the indictment, Knox County. to which instruction an exception was sea- Action by Joseph Shepherd against Alsonably taken. The respondent, having been bert F. Piper for slander.

The defendant filed a general demurrer fense at common law. State v. Philbrick, to the declaration, which having been sus- 84 Me. 562, 24 Atl. 935, citing Commonwealth tained, the plaintiff took exceptions. Excep- V. Silsbee, 9 Mass. 417. And we may go furtions overruled.

ther, and assume, for the purpose of this The material part of the declaration is as case, that it is equally an offense at common follows:

law for a person to willfully cast more than "That ballot box was stuffed (meaning one vote at the same balloting upon any that many votes had been placed by one question that is submitted by authority of party in the ballot box by the solicitation law to the determination by ballot of the and procurement of the plaintiff at the time qualified voters of a town or any other poof taking the vote hereinafter referred to), litical division. and a good reliable man from out of town But that is by no means this case. The told me that he saw a man throw a handful question as to whether or not the use of of 'no' votes (meaning votes opposed to a soft coal in lime kilns constituted a nuisance motion made by one C. Fred Knight, here- was not one submitted by authority of law inafter referred to, and advocated by the to the determination of the qualified voters defendant) into the ballot box; and he heard of Rockport. The result of the ballot upon Joe Shepherd (meaning the plaintiff) tell him this resolution decided nothing. The voters to put them in, and he would back him up" of that town had no authority whatever to (meaning that the plaintiff requested said determine that question. They did have the man to put in illegal votes on said motion, right, guarantied by the state Constitution, and to vote numerous times thereon, and to assemble at all times for consultation and he (the plaintiff) would protect him from expression of opinion upon all questions conthe punishment and penalties provided by cerning the public good. This must have law for illegal voting).

been the sole purpose of this meeting, and Argued before WISWELL, C. J., and EM- the resolution voted upon was simply subERY, WHITEHOUSE, STROUT, SAVAGE, mitted for the purpose of obtaining an exand POWERS, JJ.

pression of opinion upon this subject-mat

ter. A. S. Littlefield, for plaintiff, D. N. Mort

Double voting upon a question merely callland, for defendant.

ing for an expression of opinion, and where

those voting have no power to determine the WISWELL, C. J. The defendant Aled a question voted upon, has never been considgeneral demurrer to the plaintiff's declara- ered an offense at common law in any aution in an action of slander. The demurrer thorities called to our attention, or that we was sustained, and the case comes here upon are aware of. It cannot be an offense the plaintiff's exception to this ruling.

against the law to cast more than one ballot As the declaration contains no averment upon a question as to which the law does of special damage, and as the words were not recognize the right of any one to vote not spoken of the plaintiff with reference to at all. The demurrer was rightfully sushis trade, profession, or calling, the question tained. is whether the words alleged to have been Exceptions overruled. used of and concerning the plaintiff were actionable per se. They are if they impute the commission of some crime involving

(98 Me. 353) moral turpitude, or which would subject the TWOMBLY v. CONSOLIDATED ELECTRIC offender to an infamous punishment, and

LIGHT CO. this is equally true whether the crime im

(Supreme Judicial Court of Maine. Dec. 21, puted by the words used is one at common

1903.) law or has been made so by statute.

MASTER AND SERVANT-SAFE APPLIANCESThe slander relied upon and set out in the REPAIRS-NEGLIGENCE-DEFECTIVE LADDER declaration is language charging the plaintiff

-FELLOW SERVANT AND FOREMAN. with being guilty of counseling and procur

1. It is the duty of the master to exercise

reasonable care in providing suitable appliances ing another to cast more than one ballot, and

for his servants to use, and in inspecting them thereby being accessory thereto, at a meet- afterwards, so as to ascertain their condition, ing of the legally qualified voters of the town and, when necessary, to put them into a proper of Rockport, duly called and held at the

state of repair. And, while there are some du

ties respecting the repair of appliances which time and place named upon the question of the master may so delegate to a servant as to the passage of this resolution: “That the escape responsibility for the negligence of the smoke and gas from the kilns where soft

servant in performing them, there are others

which the master may not thus delegate. coal is used for fuel has become such a nuis

2. A 40-foot extension ladder, used in the ance to Rockport village, and should be abat- business of an electric light company, is held ed.”

not to be a common tool or appliance within It is not claimed that this charges the

the meaning of the rules that there is no duty

resting on a master to inspect, during their use, commission of a statutory offense. Does it

those common tools and appliances with which one at common law? Illegal voting at the every one is conversant, and that, if they vear election of a town or school district officer has been decided by this court to be an of

1. See Master and Servant, vol. 34, Cent. Dig. $$ 235, 252, 406.

out, and become defective, the employer may ing put in charge and control of the work relý upon the presumption that the servant us- and of the other men. ing them will first detect the defect, and that the master is not to be held for negligence

As it was necessary to put two corner when the tool is a common one, of the fitness brackets into the corner of the house at a of which the servant is as competent to judge point 30 feet from the ground, the extension as the master. 3. Nor is the replacing of a dozy or rotten

ladder was placed on the sidewalk in front round in such a ladder to be held as such "ordi. of the house and extended, and the top end nary repairs” as a workman is usually expect allowed to lean against the side of the house, ed to make, in the absence of proof that the and near to its northwesterly corner. Plaindefective condition of the round was known to the servant.

tiff was sent by Moody up this ladder to put 4. While the master may delegate to a sery

in the corner brackets and attach the wires ant such ordinary repairs as arise incidently thereto. This he did. from the use of properly constructed appliances, and such as they must naturally require from

Foster was sent up a pole standing in the time to time by reason of their use, and be

street in front of the house, and from which relieved from responsibility therefor, held, that the wires were taken to insert into the house. the replacing of a rotten round in the ladder

The plaintiff put in the brackets, and the in this case was not such an ordinary repair. 5. A master using ladders in his business can

wires which were thrown to him by Foster not escape the consequences of the breaking of from the pole by means of a handline he a rotten round in a ladder by merely showing fastened to the brackets; the handline, in that he had a foreman, and that that foreman had the general oversight of all appliances, with

the meantime, lying on the top of a railing, the general duty, among others, of seeing that

which was on the roof of a bay window in repairs were made when necessary. The peg. the second story of the house, the top of ligence of such a foreman in the matter of in- which railing was 25 feet and 9 inches high. specting or repairing such a ladder is the negligence of the master, and not the negligence of

When plaintiff had completed all the work a fellow servant of the one injured by its

up there that he was directed by Moody to breaking.

do, he prepared to descend to the ground, 6. The court is unable to say that the verdict and took hold with his right hand of the top was clearly wrong either as to liability or amount of damages.

round in the ladder, and placed his left foot (Official.)

over onto the roof of the bay window to en

able him to reach for the handline. He got On Motion from Supreme Judicial Court, hold of the line in his left hand, and made Cumberland County.

an effort to pull himself back in an upright Action by Harry N. Twombly against the position on the ladder by his right hand, Consolidated Electric Light Company. Ver

when the round that he had hold of suddendict for plaintiff. Motion for new trial.

ly broke at one side of the ladder and pulled Overruled.

out from the other side, and thus threw him Case for personal injuries sustained by the over backwards down onto the sidewalk, one plaintiff January 1, 1902, while in the de- of his feet striking the glass in the upper bay fendant's employ at work upon an extension | window, breaking two lights. ladder at a house on Congress street in the On the way down he caught hold of the city of Portland.

top part of the lower section of the ladder From the testimony it appeared that the with his right hand, changing the position of defendant corporation was engaged on the his body so that his feet were lower than his 1st day of January, 1902, and had been for head, and fell the rest of the distance of 20 a long time previous thereto, in generating feet, striking the sidewalk in a sitting posiand transmitting electricity for lighting tion, but leaning backwards, receiving inhouses and other buildings in Portland, and juries to his back, right foot, and left arm for various other purposes, and had lines of and hand, from which he has ever since sufpoles or posts erected upon and along the fered, and still suffers, and has not been able public streets and highways of Portland for to do, and has not done, any labor, to speak the purpose of transmitting electricity there- of, since that time. on; and the plaintiff was a "lineman" in its The jury returned a verdict of $3,000 for employ, and had been from August, 1901, to the plaintiff. the day of the accident.

Argued before WISWELL, C. J., and For the purpose of attaching brackets and WHITEHOUSE, STROUT, SAVAGE, and wires to buildings at points high up from the SPEAR, JJ. ground, the defendant corporation used a Wm. Lyons, for plaintiff. Geo. E. Bird 40-foot extension ladder; that is, the part of

and Wm. H. Bradley, for defendant. the ladder that stood upon the ground was 20 feet long and the extension part was also SAVAGE, J. Case by servant against 20 feet long.

master to recover damages for personal inAt about 2 o'clock in the afternoon of the juries. day of the accident, the plaintiff, George The plaintiff was employed upon a ladder Moody and John F. Foster-two other men about 25 feet from the ground, and in reachthen in the employ of the defendant-were ing for a rope with one hand nearly his whole sent to this house by Mr. Phillips, foreman weight was suspended from a round in the of outside construction, to connect it with ladder which he held with the other hand. wires for the purpose of lighting, Moody be- The round broke, and he fell to the ground, sustaining injuries. No complaint is made the master to inspect, during their use, those that the plaintiff himself was not in the ex- common tools and appliances with which ercise of due care. But after a verdict for every one is conversant; that, if they wear the plaintiff the defendant now contends, up

out and become defective, the employer may on a motion for a new trial, that the case rely upon the presumption that those using shows no want of due care on its own part. them will first detect the defect; and that the

The ladder in question was a 40-foot ex. employer is not to be held for negligence tension ladder, and was extended at the time when the tool is a common one, of the fitness of the accident to the plaintiff. There was of which the servant is as competent to judge evidence that an examination of the round as the master. And the defendant cites auafter the accident showed it to be dozy or thorities in support of these propositions. the outside and rotten. The ladder had been But it seems to us that a 40-foot extension in use somewhat more than three years. It ladder is not a common tool or appliance seems that the defendant company had no within the meaning of these rules. A defect regular rules governing the inspection of ap- in a ladder, arising from age or decay, might pliances. Such inspection and repairs con- not be discoverable by such inspection as a sequent upon it were usually reserved for workman is expected to make, and might be rainy weather, when the men could not work upon more careful inspec on. To replace out of doors. The foreman of construction dozy round of a ladder is not, we think, such had general oversight over the appliances, “ordinary repairs" as a workman using it is and was under the duty of keeping them in usually expected to make, and certainly not repair. A man was especially delegated to unless the defect is brought to the knowledge make general repairs, but it does not appear of the servant. Of course, a master may that it was his duty to make inspections. It furnish suitable materials for such renovais true that the testimony of the defendant tions, and the circumstances in a given case tended to show that the rounds of the ladder may show that the workman is expected to were of white ash, and sound; that an ex- make his own repairs. And in such case the amination of the round after the accident master is not responsible for the neglect of showed it to be well seasoned and sound; th workman. But that is not this case, that it broke off at both ends by the sides of This plaintiff was under no special duty to the ladder, showing fresh breaks, and leav- inspect or repair this ladder, except as rainying slivers or "burrs” on the edges of the day work in common with his fellow laborers, holes through which the ends of the round when he might be directed specially to do so. bad passed; and the defendant's evidence But the defendant further says that it protended further to show that the ladder had vided proper persons to see that the ladder been inspected only a few days before it was kept in proper condition and to make orbroke, and was found to be all right. And dinary repairs and renewals, and that such in respect to this testimony we may add that, persons were fellow servants of the plainif it be reliable, it is utterly incomprehensible tiff; and from this the defendant contends how the accident could have happened. The that if, by the negligence of any of these jury certainly were warranted in finding, as persons, the ladder was not suitably inspectthey undoubtedly did, that this testimony ed and properly repaired, it was the negliwas not reliable, and that the round was not gence of the plaintiff's fellow servants, for sound and reasonably safe. And we think which the defendant is not responsible. it was fairly open to the jury to find that the While it is generally the duty of the masdefective condition of the round might have ter to use reasonable care in seeing that apbeen discovered had it been suitably inspect. | pliances furnished are reasonably safe, and ed; not perhaps by such an inspection as by repairs are kept reasonably safe, doubtwould naturally be given to it by the work- less there are some duties respecting the reman upon it, whose duty it was to work, not pair of appliances which the master may so to inspect, and who might lawfully rely up- delegate to a servant as to escape responsion the presumption that the master had per-bility for the negligence of the servant in performed its duty, but by such an inspection forming them, and doubtless there are some on the part of the master as reasonably duties which the master may not thus delewould be necessary to make sure that an ap- gate. The line between these classes of dupliance upon which the servant was to risk ties must necessarily be shadowy, and any bis life or limb every time he used it was rule stating them must be indefinite. Rogers reasonably safe.

V. Ludlow Manufacturing Co., 144 Mass. 198, The plaintiff testified that the round looked 11 N. E. 77, 59 Am. Rep. 68. As was said in all right as he worked upon the ladder. But Rice v. King Philip Mills, 144 Mass. 229, 235, even that fact does not show that it was all 11 N. E. 101, 104, 59 Am. Rep. 80: “It is right, or that the unsafe condition might not the duty of the master to exercise due care have been discovered by suitable inspection, in employing competent servants, in providsuch as was incumbent upon the master, un- ing suitable machines, and in keeping them less in some way relieved from the duty. in proper repair, and the master cannot whol

But it is contended as a matter of law that ly escape responsibility by delegating these the defendant is not liable upon the evidence. duties to a servant. If this could be done, a It is urged that there is no duty resting on master might escape all responsibility by

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