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to make their own contracts concerning a railroad company, arising from personal their own labor, is depriving them of 'liber- injury or death, was surrendered or waived ty,' and of the right to exercise the priv- when the employee became a member of the ileges of manhood, 'without due process of relief association referred to, was unconlaw.' Being directed solely to employees stitutional, as depriving the employees of of railroads, it is class legislation of the railroad corporations of their liberty with most vicious character. Laws must be not out due process of law. He had no occasion, only uniform in their application through- in the case before him, to consider tne vaout the territory over which the legislative lidity of the 3d section of that act. The jurisdiction extends, but they must apply 1st section might be held void, leaving the to all classes of citizens alike. There can- 3d section in full force. Even if the act not be one law for railroad employees, anoth- of 1890 in the particulars involved in Shaer law for employees in factories, and anoth-ver's Case, and for the reasons stated by er law for employees on a farm or the Judge Ricks, were held to be unconstitutionhighways. Class legislation is dangerous. al,-upon which question it is unnecessary Statutes intended to favor one class often to express an opinion, the statute, in rebecome oppressive, tyrannical, and proscrip- spect of the matters mentioned in the 3d tive to other classes never intended to be section, can be sustained as one of a general affected thereby; so that the framers of our nature, and having uniform operation Constitution, learning from experience, wise- throughout the state. ly provided that the laws should be general in their nature and uniform throughout the state." The court, elsewhere in its opinion, when considering the scope of the constitutional provision that all laws of a general nature shall have uniform operation throughout the state, said: "The act under consideration, while it is general in its nature, applies only to railroad companies and their employees, and is not, therefore, general in its application, and does not operate uniformly on all classes, of citizens. Under this statute, railroad companies are prohibited from making contracts which other corporations in the state are allowed The act under consideration is certainly one which impairs the rights of a large number of the citizens of Ohio to exercise a privilege which is dear to all persons, namely, that of making contracts concerning their own labor and the fruits thereof, and, so far as it relates to such contracts already made, impairs their validity. The act seems to assume that a large class of the citizens of the state, namely, those employed by railroad corporations, are incapable of making contracts for their own labor."

to make.

It may be proper here to observe that in a case recently determined by the supreme court of Ohio a contract such as the one involved in Shaver's Case was held not to be interdicted by the above act of April 2, 1890 (87 Ohio Laws, 149), and not to be contrary to public policy. Pittsburg, C. C. & St. L. R. Co. v. Cox, 55 Ohio St. 497, 35 L. R. A. 507, 45 N. E. 641.

It is quite clear from an examination of Judge Ricks's opinion that he intended to decide nothing more-indeed, the case, under his view of the statute, required nothing more to be decided-than that the part of the act of 1890 relating to contracts or agreements, whereby a right to damages against

This general question has been considered by the supreme court of Ohio. In McGill v. State, 34 Ohio St. 238, the court, referring to the constitutional provision requiring all laws of a general nature to have a uniform operation throughout the state, said: “A general law that land should not be sold upon execution for less than two thirds of its appraised value was excluded from operation in several counties by local enactment. There were different laws in different counties respecting the descent and distribution of intestate property. Some statutes defining legal offenses were excluded in their operation from a large part of the state; and different penalties for a violation of the same act were, in some instances, provided for different localities. These are examples of the legislation to prevent which in the future, and the mischief resulting from it, this provision of the Constitution was adopted. But no wider scope was claimed for it than to guard the future against the evils and inequalities resulting from legislation of the character complained of." See also Lehman v. McBride, 15 Ohio St. 573, 653; Ex parte Falk, 42 Ohio St. 638, 641; Costello v. Wyoming, 49 Ohio St. 202, 30 N. E. 613.

In State v. Nelson, 52 Ohio St. 88, 97, 26 L. R. A. 317, 39 N. E. 22, where the question was whether an act entitled "An Act Requiring Persons, Associations, and Corporations Owning or Operating Street Cars to Provide for the Well-being of the Employees"-the act, in its provisions, being made applicable only to electric street cars other than trail cars-was in conflict with the constitutional provision requiring all laws of a general nature to have a uniform operation throughout the state, the court said: "The act in question is clearly of a general nature, so that the only inquiry left is whether it is of uniform operation

throughout the state. And here, again, it | formly upon the classes of persons therein is equally clear that the law is in operation designated in every part of the state. The throughout every part of the state, uni- act is clearly authorized as a police regulaformly as to all classes therein named. Is tion to protect the health and promote the this sufficient? Soon after the adoption of comfort of those engaged in operating the Constitution it was said by this court electric cars." that the scope and purpose of this section was to prevent laws of a general nature from being in force in some counties and not in others; and these early cases have been followed ever since." Again: "Of late years an effort has frequently been made to claim for this section of the Constitution a wider scope than to guard against the evils resulting from legislation of the character mentioned by Thurman, J., in Cass v. Dillon, 2 Ohio St. 607, Scott, J., in Lehman v. McBride, Boynton, J., in McGill v. State, and Okey, J., in Ex parte Falk; but such efforts have uniformly failed. The only statutes which have been declared in conflict with this section of the Constitution are statutes making different classes of different parts of the territory of the state, such as cities, villages, etc. This section of the Constitution requires that laws of a general nature shall have not only an operation, but a uniform operation, throughout the state; that is, the whole state, and not only in one or more counties. The operation must be uniform upon the subject-matter of the statute. It cannot operate upon the named subject-matter in one part of the state differently from what it operates upon it in other parts of the state. That is, the law must operate uniformly on the named subject-matter in every part of the state, and when it does that it complies with this section of the Constitution. That this is the scope and purpose of this section appears from its language, the debates of the constitutional convention, and the uniform construction placed thereon by this court in the cases above cited, and others hereinafter referred to. In Adler v. Whitbeck, 44 Ohio St. 539, 9 N. E. 672, an effort was made to have the statute there under consideration declared unconstitutional because its classification included saloons and excluded distilleries and breweries; but the elort failed. A similar effort was made in Senior v. Ratterman, 44 Ohio St. 661, 11 N. E. 321, because wholesale dealers and manufacturers were not included within the same class; and the effort again failed. A similar effort was made in State v. Ports mouth & C. Turnp. R. Co. 37 Ohio St. 481, as to the classification of turnpikes; and the effort again failed. . . . The scope and force of this section of our Constitution being as herein indicated, it is clear that the statute in question is not in conflict therewith. The statute is in operation in every part of the state, and operates uni

The question under consideration is somewhat like that presented in Harwood v. Wentworth, 162 U. S. 547, 563, 40 L. ed. 1069, 1074, 16 Sup. Ct. Rep. 890. There the question was whether an act of the legislature of Arizona fixing the compensation of county officers, and for that purpose classifying the counties of the state according to the assessed valuation of property in each county, was a local or special act. If so, it was void, as repugnant to an act of Congress declaring that the legislatures of the territories shall not pass local or special laws in certain cases. The practical effect of the act was to establish higher salaries for the particular officers named in some counties than for the same class of officers in other counties. "But," the Supreme Court said, "that does not make it a local or special law. The act is general in its operation; it applies to all counties in the territory; it prescribes a rule for the stated compensation of certain public officers; no officer of the classes named is exempted from its operation; and there is such a relation between the salaries fixed for each class of counties, and the equalized assessed valuation of property in them, respectively, as to show that the act is not local and special in any just sense, but is general in its application to the whole territory, and designed to establish a system for compensating county officers that is not intrinsically unjust, nor capable of being applied for purposes merely local or special.”

We do not deem it necessary to pursue this subject further. We think it clear that the Ohio statute is not obnoxious to the constitutional provision requiring all laws of a general nature to have a uniform operation throughout the state. As it applies to all railroad corporations operating railroads within the state, it is, within the meaning of the state Constitution, general in its nature; and, as it applies to all of a given class of railroad employees, it operates uniformly throughout the state.

It is next contended by the plaintiff in error that, if Van Dusen was injured by the negligence of Bartley, the conductor, he is not entitled to recover, for the reason that the latter was not negligent in the performance of any duty imposed by law on the master personally, but only in respect to the performance of work pertaining to him and other employees in the same work. The principal authorities cited in support of this view are Central R. Co. v. Keegan, 160

U. S. 259, 40 L. ed. 418, 16 Sup. Ct. Rep. It is alleged that error was committed in 269, and Stockmeyer v. Reed, 55 Fed. 259. permitting plaintiff, against the objection of If this contention were sustained, the stat- the defendant, to prove what Bartley, the ute of Ohio would be deprived of all practi- conductor, said just after the plaintiff was cal value, and the manifest object of the injured. The conductor and those under legislature in passing it would be defeated. him were very near each other during the The Keegan and Stockmeyer Cases enforced performance of the work committed to them. the general rule that a foreman or superin- Van Dusen testified that his hand was tendent of a body of employees doing a par- caught and held fast while the car that ticular service was a fellow servant of those mashed it backed up 5 or 10 feet. Getting under him; and, consequently, the common his hand out as soon as the car backed, he employer was not liable to one of them for came from between the cars, and walked tothe negligence of the other. The very object wards the engine, holding his hand up. The of the statute before us was to prevent the engineer got off the engine, and, with Bartapplication of that rule in Ohio as between ley, came towards Van Dusen. Being asked a railroad company and its employees. how long after the accident before Bartley Hence it declared that every person in the met him, Van Dusen said: "It was not a employ of a railroad company, "having pow-minute,-that is, a minute after I got my er or authority to direct or control any other hand out and walked towards the engine:" employee of such company, is not the fel- and that it may have been "six or seven ear low servant, but the superior, of such other lengths" before he met Bartley. Being asked employee." If, by force of the statute, what Bartley said to him at that time, the Bartley was not a fellow servant, but the question was objected to; but the court persuperior, of Van Dusen, he did not become. mitted him to answer, upon the ground that within the meaning of the statute, a fellow it came "within the rule of the res gesta," servant simply because he did some work and unat "what was said by this plaintiff of the kind done by Van Dusen. The ob- and what was said by the engineer or by ject of the statute was to make one to whom the conductor in the very doing of this is committed by a railway company the u thing is a part of the thing itself." The thority to direct and control employees in plaintiff answered: "Well, I asked Mr. the same service the representative, in re- Bartley what in the world he was trying to spect of that service, of the common employ- do, coming back on me the second time er, so that his acts, within the scope of his without saying anything about making a employment, are the acts of the company, second cut. He said: 'Ed, I am sorry. I and his negligence its negligence. was going to put this car on the elevator track. When I backed up, I did not see you. I did not know just where you was until I heard you holler.'"

That the evidence was such as to require the submission of the question of negligence to the jury is, in our judgment, too manifest to require discussion. Indeed, so far from there being no proof to support the allegation of negligence, the preponderance of evidence on that issue was with the plaintiff.

It is said that the damages found were excessive, and that the judgment below should, for that reason, be reversed. That was a question for the consideration of the trial court on a motion for a new trial. Upon a writ of error this court can deal only with questions of law. If there was a case of disputed facts upon which the plaintiff was entitled to go to the jury,-as undoubtedly there was,-it was for the jury to assess the damages; and, if the trial court did not disturb the verdict upon the ground that the damages were excessive. that was the end of the question of damages. As that court laid down no rule for the assessment of damages that was erroneous in law, this court is without power to revise the judgment in respect of the amount of damages. It is restricted in its consideration of the case to questions of law. New York C. & H. R. R. Co. v. Fraloff, 100 U. S. 24, 31, 25 L. ed. 531, 534.

We are of opinion that this evidence was properly admitted. Its exclusion was not required by the rule that "an act done by an agent cannot be varied, qualified, or explained, either by his declarations which amount to no more than a mere narrative of a past occurrence, or by an isolated conversation held, or an isolated act done, at a later period." Northwestern Union Packet Co. v. Clough, 20 Wall. 528, 540, 22 L. ed. 406, 408. The case is rather covered by the rule formulated by Greenleaf (1 Greenl. Ev. 14th ed. § 113), and sanctioned by the Supreme Court in Vicksburg & M. R. Co. v. O'Brien, 119 U. S. 99, 105, 30 L. ed. 299, 301, 7 Sup. Ct. Rep. 118, namely: "The party's own dmission, whenever made, may be given in evidence against him; but the admission or declaration of his agent binds him only when it is made during the continuance of the agency in regard to a transaction then depending, et dum fervet opus. It is because it is a verbal act, and part of the res gesta, that it is admissible at all, and therefore it is not necessary to call the agent to prove it; but wherever what he

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did is admissible in evidence, there it is competent to prove what he said about the act while he was doing it."


injury to Van Dusen was to be attributed to his (Bartley's) negligence, were admissible in evidence as part of the res gestœ.* Judge Hammond, in an opinion overrul- These declarations cannot properly be charing the motion for a new trial, properly de-acterized as hearsay, for they really accomscribed the situation when he said that the panied the transaction out of which arose conductor "almost immediately, and while the injury. The principal matter was the the cars were moving, or had just stopped, doing of certain work under the superviand while the plaintiff was bleeding from the sion of one having authority to control those injury at that moment received, described engaged in it. The statements of the conhis own part in bringing about the motion ductor were made while the work was in that effected the injury." The rule insisted progress, while the plaintiff was assisting upon for the exclusion of such declarations him, and in presence of the fact necessary would, he said, “exclude everything from the to be explained. They illustrated what had, res gesta which did not occur on the very up to the moment of such statements, been instant of the grinding of the flesh and bones done by him in the prosecution of the work. by the colliding car." In O'Brien's Case the What the conductor and Van Dusen set out question was as to the admissibility of cer- together to do was not completed, and what tain declarations of a railroad engineer as to the former said was almost simultaneous the rate of speed at which his train was with the doing of the thing causing the inmoving at the time of the accident. The jury. The infliction of the injury and his court said: "Although the speed of the train explanation of his conduct were so close was, in some degree, subject to his control, together that they may be said to have ocstill his authority, in that respect, did not curred at the same time. His declarations, carry with it authority to make declara- therefore, were not, in any proper sense, a tions or admissions at a subsequent time as mere narrative of past occurrences; but were to the manner in which, on any particular part of the occasion out of which the plaintrip, or at any designated point in his route, tiff's cause of action arose. They served to he had performed his duty. His declara- disclose the nature and quality of the acts tion, after the accident had become a com- in question; and were made under circumpleted fact, and when he was not performing stances precluding the possibility of premedthe duties of engineer, that the train, at the itation, design, or deliberation on the part of moment the plaintiff was injured, was being the conductor. They were made on the spot run at the rate of 18 miles an hour, was where the injury occurred. To exclude them not explanatory of anything in which he was would be to make their admissibility in evithen engaged. It did not accompany the dence depend wholly upon the matter of act from which the injuries in question time, although the circumstances show such arose. It was, in its essence, the mere nar- direct and immediate connection between the ration of a past occurrence, not a part of thing done and the declarations of the perthe res gesta,— simply an assertion or rep- son having such thing in charge as to justiresentation, in the course of conversation, as fy the court in characterizing the transto a matter not then pending, and in respect action as one continuous, uncompleted transto which his authority as engineer had been action, and such declarations to be part of fully exerted.” it.

We recognize the difficulty of laying down a rule upon this subject that would apply in every case. But we do not doubt that, both upon principle and authority, the declarations of Bartley, tending to show that the

*Delaware, L. & W. R. Co. v. Ashley, 14 C. C. A. 368, 28 U. S. App. 375, 67 Fed. 209; Union Cent. L. Ins. Co. v. Cheever, 36 Ohio St. 201, 207, 38 Am. Rep. 573; Keyser v. Chicago & G. T. R. Co. G6 Mich. 390, 33 N. W. 867; Rockwell v. Taylor, 41 Conn. 55, 59; Waldele v. New York, C. & H. R. R. Co. 95 N. Y. 274, 47 Am. Rep. 41; Hanover R. Co. v. Coyle, 55 Pa. 402; Lund v. Tyngsborough, 9 Cush. 36; Quincy Horse R. & Carrying Co. v. Gnuse, 137 Ill. 264, 27 N. E. 190; Hermes v. Chicago & N. W. R. Co. 80 Wis. 590, 27 Am. St. Rep. 69, 50 N. W. 584; Hooker v. Chicago, M. & St. P. R. Co. 76 Wis. 542, 44 69 L. R. A.

Having considered all the matters presented by the record which, in our judgment, require consideration, and perceiving no error of law in the record, the judgment is affirmed.

N. W. 1085; Hill v. Com. 2 Gratt. 594, 605; Elledge v. National City & O. R. Co. 100 Cal. 282, 38 Am. St. Rep. 290, 34 Pac. 720; State v. Molisse, 38 La. Ann. 381, 58 Am. Rep. 181; McLeod v. Ginther, 80 Ky. 399; Louisville & N. R. Co. v. Foley, 94 Ky. 220, 21 S. W. 866; Shafer v. Lacock, 168 Pa. 497, 32 Atl. 44; Baltimore & O. R. Co. v. State, 81 Md. 371, 32 Atl. 201; Louisville, N. A. & C. R. Co. . Buck, 116 Ind. 566, 2 L. R. A. 520, 9 Am. Sc. Rep. 883, 19 N. E. 453; Brownell v. Pacific R. Co. 47 Mo. 239.


W. W. WATSON, Appt.,

district court, sitting in bankruptcy, which reversed an order of the referee that the


J. J. MERRILL, Trustee, etc., of P. A. appellant, Watson, should be allowed a Brown, Bankrupt.

claim of $1,437.50 for damages for the breach by P. A. Brown, by means of his adjudication as a bankrupt, of a lease which he had taken from the appellant. On May

(136 Fed. 359.)

1. Rents which the bankrupt had agreed to pay at times subsequent 1, 1902, Brown leased of Watson a storeroom in a building about to be erected for a term of ten years from October 1, 1902, under the bankruptcy law of 1898, because and agreed to pay a monthly rental of

to the filing of the petition in bankruptcy do not constitute a provable claim

they are not a "fixed liability absolutely owing at the time of the filing of the petition against him," and because they do not constitute an existing demand; but both the existence and, the amount of the possible future demand are contingent upon future events, such as default of lessee, re-entry of

lessor, and assumption by trustee, so that they neither form the basis of an unliquidated, nor of a liquidated, provable claim. Act July 1, 1898, chap. 541, § 63, cls. a, b. 2. Damages for the breach of a contract of the bankrupt to pay rents at times subsequent to the filing of the petition in bankruptcy do not constitute a provable claim, for the same reason that the claim for the rents is not provable. 3. The retaking of the premises by

the lessor releases the lessee from

$60 in advance during the term. He paid this rent to March 1, 1903. On February 6, 1903, a petition in bankruptcy was filed against him, and receivers were appointed, who took possession of his personal property in the rented premises. On April 2, 1903, he was adjudged a bankrupt, and a trustee was appointed. On March 2, 1903, Watson and Brown made a written contract which recited that it had become impossible for Brown to comply with the terms of his lease, and that he was obligated to his lessor thereby in the sum of $6,900, and in which he acknowledged himself to be indebted to Watson in the sum of $2,300, and surrendered to him all his rights and privileges under the lease; while Watson, by the same contract, released Brown from any further obligation to pay rent for the leased premises. Afterwards Watson filed his proof of claim for $2,300 against the estate of Brown, which was founded on the lease and on the contract of March 2, 1903. He also filed a petition for the liquidation of this claim, in which he alleged that he had incurred extraordinary expense in the construction of the building in expectation of the rental, that the rental value of the premises was only $40 per month, and that he had sustained damages to the amount of $20 per month from March 1, 1902, until the end of the term of the lease, which amounted in the aggregate to $2,300. The referee found the rental value of the premises to be $47.50 per month, and allowed the claim of Watson for $1,437.50 for damages for a breach of the lease. Upon a petition for a review, the district court reversed this decision, and directed the referee to disallow the claim.

payment of all subsequently accruing rents, unless the contract expressly provides otherwise.

4. The trustee in bankruptcy has the option to assume or renounce the leases and other executory contracts of the bankrupt, as he may deem for the best interest of the estate.

5. An adjudication of bankruptcy absolves the bankrupt from no agreement, terminates no contract, and discharges no liability.

6. An adjudication of bankruptcy in

a case in which there was no rent

due at the time of the filing of the petition in bankruptcy does not constitute

a breach at that time of the covenants of the

bankrupt in his lease to pay rents accruing


(March 18, 1905.)


PPEAL by petitioner from a decree of the District Court of the United States for the District of Kansas reversing an order of the referee in bankruptcy allowing a claim for alleged breach of contract. Affirmed.

Statement by Sanborn, Circuit Judge: This is an appeal from a decree of the *Headnotes by SANBORN, Circuit Judge.

NOTE. On the question whether claims for unaccrued rents are fixed liabilities which may be proved in bankruptcy proceedings, see also, in this series, Atkins v. Wilcox, 53 L. R. A. 118, and cases in note to Cobb v. Overman, 54 L. R. A. 374.

Argued before Sanborn and Van Devanter, Circuit Judges, and Philips, District Judge. Mr. David Ritchie, for appellant: The institution of proceedings in bankruptcy dissolves all of the contractual relations of the bankrupt.

Re Jefferson, 2 Am. Bankr. Rep. 206, 93 Fed. 948; Bray v. Cobb, 3 Am. Bankr. Rep.

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