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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 Sha. er 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 unconstitution. highways. 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 re become 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 This general question has been considered in their nature and uniform throughout by the supreme court of Ohio. In McGill the state.” The court, elsewhere in its opin- v. State, 34 Ohio St. 238, the court, referring ion, when considering the scope of the con- to the constitutional provision requiring all stitutional provision that all laws of a laws of a general nature to have a uniform general nature shall have uniform operation operation throughout the state, said: “A throughout the state, said: “The act un general law that land should not be sold der consideration, while it is general in upon execution for less than two thirds of its nature, applies only to railroad con- its appraised value was excluded from operpanies and their employees, and is not, thereation in several counties by local enactment. fore, general in its application, and does not There different laws in different operate uniformly on all classes, of citizens. counties respecting the descent and distriUnder this statute, railroad companies are bution of intestate property. Some stat. prohibited from making contracts which utes defining legal offenses were excluded other corporations in the state are allowed in their operation from a large part of the to make.

The acı under considera- state; and different penalties for a violation is certainly one which impairs the tion of the same act were, in some instances, rights of a large number of the citizens of provided for different localities. These are Ohio to exercise a privilege which is dear to examples of the legislation to prevent which all persons, namely, that of making con in the future, and the mischief resulting tracts concerning their own labor and the from it, this provision of the Constitution fruits thereof, and, so far as it relates to was adopted. But no wider scope was such contracts already made, impairs their claimed for it than to guard the future validity. The act seems to assume that against the evils and inequalities resulting a large class of the citizens of the state, from legislation of the character complained namely, those employed by railroad corpora- of.” See also Lehman v. McBride, 15 Ohio tions, are incapable of making contracts for St. 573, 653; Ex parte Falk, 42 Ohio St. 638, their own labor."

641; Costello v. Wyoming, 49 Ohio St. 202, It may be proper here to observe that in 30 N. E. 613. a case recently determined by the supreme In State v. Nelson, 52 Ohio St. 88, 97, court of Ohio a contract such as the one 26 L. R. A. 317, 39 N. E. 22, where the ques. involved in Shaver's Case was held not to be tion was whether an act entitled “An Act interdicted by the above act of April 2, Requiring Persons, Associations, and Corpo1890 (87 Ohio Laws, 149), and not to be rations Owning or Operating Street Cars to contrary to public policy. Pittsburg, C. C. Provide for the Well-being of the Em& St. L. R. Co. v. Cox, 55 Ohio St. 497, 35 ployees”—the act, in its provisions, being L. R. A. 507, 45 N. E. 641.

made applicable only to electric street cars It is quite clear from an examination of other than trail cars—was in conflict with Judge Ricks's opinion that he intended to the constitutional provision requiring all decide nothing more-indeed, the case, un laws of a general nature to have a uniform der his view of the statute, required nothing operation throughout the state, the court more to be decided—than that the part of said: “The act in question is clearly of a the act of 1890 relating to contracts or agree. general nature, so that the only inquiry ments, whereby a right to damages against 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 The question under consideration is somewas to prevent laws of a general nature what like that presented in Harwood v. from being in force in some counties and not Wentworth, 162 V. S. 547, 563, 40 L. ed. in others; and these early cases have been 1069, 1074, 16 Sup. Ct. Rep. 890. There the followed


since.” Again: "Of late question was whether an act of the legislayears an effort has frequently been made to ture of Arizora fixing the compensation of claim for this section of the Constitution a county officers, and for that purpose classiwider scope than to guard against the fying the counties of the state according to evils resulting from legislation of the char- the assessed valuation of property in each acter mentioned by Thurman, J., in Cass v. county, was a local or special act. If so, it Dillon, 2 Ohio St. 607, Scott, J., in Lehman was void, as repugnant to an act of Congress v. McBride, Boynton, J., in McGill v. State, declaring that the legislatures of the terriand Okey, J., in Ex parte Falk; but such tories shall not pass local or special laws efforts have uniformly failed. The only in certain cases. The practical effect of statutes which have been declared in conflict the act was to establish higher salaries for with this section of the Constitution are the particular officers named in some counstatutes making different classes of different ties than for the same class of officers in parts of the territory of the state, such as other counties. “But,” the Supreme Court cities, villages, etc. This section of the Con- said, “that does not make it a local or spe stitution requires that laws of a general cial law. The act is general in its operation; nature shall have not only an operation, but it applies to all counties in the territory; a uniform operation, throughout the state; it prescribes a rule for the stated compensathat is, the whole state, and not only in one tion of certain public officers; no officer of or more counties. The operation must be the classes named is exempted from its uniform upon the subject-matter of the stat. operation; and there is such a relation be ute. It cannot operate upon the named tween the salaries fixed for each class of subject-matter in one part of the state dif counties, and the equalized assessed valuaferently from what it operates upon it in tion of property in them, respectively, as to other parts of the state. That is, the law show that the act is not local and special must operate uniformly on the named sub- in any just sense, but is general in its apject-matter in every part of the state, and plication to the whole territory, and de when it does that it complies with this sec- signed to establish a system for compensattion of the Constitution. That this is the ing county officers that is not intrinsically scope and purpose of this section appears unjust, nor capable of being applied for from its language, the debates of the con- purposes merely local or special.” stitutional convention, and the uniform con

We do not deem it necessary to pursue struction placed thereon by this court in this subject further. We think it clear the cases above cited, and others hereinafter that the Ohio statute is not obnoxious to referred to.

In Adler v. Whitbeck, the constitutional provision requiring all 44 Ohio St. 539, 9 N. E. 672, an effort was laws of a general nature to have a uniform made to have the statute there under consid- operation throughout the state. As it aperation declared unconstitutional because plies to all railroad corporations operating its classification included saloons and ex- railroads within the state, it is, within the cluded distilleries and breweries; but the meaning of the state Constitution, general eliort failed. A similar effort was made in its nature; and, as it applies to all of a in Senior v. Ratterman, 44 Ohio St. 661, 11 given class of railroad employees, it oper. N. E. 321, because wholesale dealers and ates uniformly throughout the state. manufacturers were not included within the It is next contended by the plaintiff in same class; and the effort again failed. A error that, if Van Dusen was injured by similar effort was made in State v. Ports the negligence of Bartley, the conductor, he mouth & C. Turnp. R. Co. 37 Ohio St. 481, is not entitled to recover, for the reason that as to the classification of turnpikes; and the latter was not negligent in the performthe effort again failed.

The scope ance of any duty imposed by law on the masand force of this section of our Constitution ter personally, but only in respect to the perbeing as herein indicated, it is clear that formance of work pertaining to him and the statute in question is not in conflict other employees in the same work. The therewith. The statute is in operation in principal authorities cited in support of this every part of the state, and operates uni- | view are Central R. Co. v. Keegan, 160

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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. 239. 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 inat "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 au 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 That the evidence was such as to require track. When I backed up, I did not see the submission of the question of negligence you. I did not know just where you was to the jury is, in our judgment, too mani- until I heard you holler.'fest to require discussion. Indeed, so far We are of opinion that this evidence was from there being no proof to support tiie al properly admitted. Its exclusion was not legation of negligence, the preponderance of required by the rule that "an act done by an evidence on that issue was with the plaintiff. agent cannot be varied, qualified, or ex

It is said that the damages found were plained, either by his declarations which excessive, and that the judgment below amount to no more than a mere narrative of should, for that reason, be reversed. That a past occurrence, or by an isolated converwas a question for the consideration of the sation held, or an isolated act done, at a trial court on a motion for a new trial. later period.” Northwestern Union Packet Upon a writ of error this court can deal Co. v. Clough, 20 Wall. 528, 540, 22 L. ed. only with questions of law. If there was a 406, 408. The case is rather covered by the case of disputed facts upon which the plain. rule formulated by Greerleaf (1 Greenl. Ev. tiff was entitled to go to the jury,—as un- 14th ed. $ 113), and sanctioned by the doubtedly there was,-it was for the jury Supreme Court in Vicksburg & M. R. Co. v. to assess the damages; and, if the trial O'Brien, 119 U. S. 99, 105, 30 L. ed. 299, court did not disturb the verdict upon the 301, 7 Sup. Ct. Rep. 118, namely: “The ground that the damages were excessive party's own ·dmission, whenever made, may that was the end of the question of damages. be given in evidence against him; but the As that court laid down no rule for the admission or declaration of his agent binds assessment of damages that was erroneous him only when it is made during the conin law, this court is without power to revise tinuance of the agency in regard to a transthe judgment in respect of the amount of action then depending, et dum fervet opus. damages. It is restricted in its consider. It is because it is a verbal act, and part of ation of the case to questions of law. New the res gestæ, that it is admissible at all, York C. & A. R. R. Co. v. Fraloff, 100 U. and therefore it is not necessary to call the S. 24, 31, 25 L. ed. 531, 534.

agent to prove it; but wherever what he did is admissible in evidence, there it is injury to Van Dusen was to be attributed competent to prove what he said about the to his (Bartley's) negligence, were admisact while he was doing it.”

sible in evidence as part of the res gestæ. Judge Hammond, in an opinion overrul. These declarations cannot properly be char. ing 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 motionductor 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 gestæ 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 con eted, 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

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 gestæ,- simply an assertion or rep- son having such thing in charge as to justi. resentation, 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.”

We recognize the difficulty of laying down Having considered all the matters prea rule upon this subject that would apply in sented by the record which, in our judgment, every case. But we do not doubt that, both require consideration, and perceiving no erupon principle and authority, the declara- | ror of law in the record, the judgment is tions of Bartley, tending to show that the affirmed.



* Delaware, L. & W. R. Co. v. Ashley, 14 C. C. N. W. 1083; Hill v. Com: 2 Gratt. 594, 605 ; A. 368, 28 U. S. App. 375, 67 Fed. 209; Union Ellcige v. National City & 0. R. Co. 100 Cal. Cent. L. Ins. Co. v. Cheever, 36 Ohio St. 201, 282, 38 AD. St. Rep. 290, 34 Pac. 720; State 207, 38 Ain. Rep. 573; Keyser v. Chicago d G. V. Molisse, 38 La. Ann. 381, 58 Am. Rep. 181; T. R. Co. 06 Mich. 390, 33 N. W. 867 ; Rockwell UcLeod v. Ginther, 80 Ky. 399; Louisville & v. Taylor, 41 Conn. 55, 59; Waldele v. New York, N. R. Co. v. Foley, 94 Ky. 220, 21 S. W. 866 ; C. & H. R. R. Co. 95 N. Y. 274, 47 Am. Rep. Shafer V. Lacock, 168 Pa. 497, 32 Atl. 44 ; 41; Hanorer R. Co. v. Coyle, 55 Pa. 402; Lund Baltimore a 0. R. Co. v. State, 81 Md. 371, 32 v. Tyngsborough, 9 Cush. 36 ; Quincy Horse R. Atl. 201 ; Louisville, N. A. & C. R. CO. 7, Buck, & Carrying Co. v. Gnuse, 137 III. 264, 27 N. E. 116 Ind. 566, 2 L. R. A. 520, 9 Am. St. Rep. 190; Hermes v. Chicago & N. TV. R. Co. 80 Wis. 883, 19 N. E. 453; Broronell v. Pacific R. Co. 590, 27 Am. St. Rep. 69, 50 N. W. 584; Hooker 47 Mo. 239. v. Chicago, M. & St. P. R. Co. 76 Wis. 542, 44 69 L. R. A.


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 ad(136 red. 359.)

judication as a bankrupt, of a lease which

he had taken from the appellant. On May •1. Rents which the bankrupt had

agreed to pay at times subsequent 1, 1902, Brown leased of Watson a storeto the fling of the petition in bank- room in a building about to be erected for ruptcy do not constitute a provable claim a term of ten years from October 1, 1902, under the bankruptcy law of 1898, because and agreed to pay a monthly rental of they are not a “fixed liability

absolutely owing at the time of the filing of the

$60 in advance during the term. He paid petition against him," and because they do

this rent to March 1, 1903. On February 6, not constitute an existing demand ; but both 1903, a petition in bankruptcy was filed the existence and, the amount of the possible against him, and receivers were appointed, future demand are contingent upon future who took possession of his personal propevents, such as default of lessee, re-entry of lessor, and assumption by trustee, so that erty in the rented premises. On April 2, they neither form the basis of an unliqui.

1903, he was adjudged a bankrupt, and a dated, nor of a liquidated, provable claim. trustee was appointed. On March 2, 1903,

Act July 1, 1898, chap. 541, $ 63, cls. a, b. Watson and Brown made a written contract 2. Damages for the breach of a con- which recited that it had become impos.

tract of the bankrupt to pay rents sible for Brown to comply with the terms at times subsequent to the filing of the peti. of his lease, and that he was obligated to tion in bankruptcy do not constitute a prov. able claim, for the same reason that the his lessor thereby in the sum of $6,900, claim for the rents is not provable.

and in which he acknowledged himself to 8. The retaking of the premises by be indebted to Watson in the sum of $2,300, the lessor releases the lessee from

and surrendered to him all his rights anil payment of all subsequently accruing rents,

privileges under the lease; while Watson, unless the contract expressly provides other

by the same contract, released Brown from 4. The trustee in bankruptcy has the any further obligation to pay rent for the option to


leased premises. Afterwards Watson filed leases and other executory contracts of the his proof of claim for $2,300 against the bankrupt, as he may deem for the best inter- estate of Brown, which was founded on the est of the estate.

lease and on the contract of March 2, 1903. 3. An adjudication of bankruptcy ab- He also filed a petition for the liquidation solres the bankrupt from no agree

of this claim, in which he alleged that he ment, terminates no contract, and discharges no liability.

had incurred extraordinary expense in the 6. An adjudication of bankruptcy in

construction of the building in expectation a case in which there was no rent of the rental, that the rental value of the due at the time of the filing of the premises was only $40 per month, and that petition in bankruptcy does not constitute a breach at that time of the covenants of the

he had sustained damages to the amount bankrupt in his lease to pay rents accruing of $20 per month from March 1, 1902, until thereafter.

the end of the term of the lease, which (March 18, 1905.)

amounted in the aggregate to $2,300. The

referee found the rental value of the premA

PPEAL by petitioner from a decree of ises to be $17.50 per month, and allowed

the District Court of the United States the claim of Watson for $1,437.50 for damfor the District of Kansas reversing an order of the referee in bankruptcy allowing a

ages for a breach of the lease. Upon a claim for alleged breach of contract. Af petition for a review, the district court re

versed this decision, and directed the referee firmed.

to disallow the claim. Statement by Sanborn, Circuit Judge: This is an appeal from a decree of the Argued before Sanborn and Van Devanter,

Circuit Judges, and Philips, District Judge. *Headnotes by SANBORN, Circuit Judge.

Alr. David Ritchie, for appellant: NorE.-On the question whether claims for The institution of proceedings in bankunaccrued rents are fixed liabilities which may

ruptcy dissolves all of the contractual re. be proved in bankruptcy proceedings, see also,

lations of the bankrupt. in this series, Atkins v. Wilcox, 53 L. R. A. 118, and cases in note to Cobb v. Overman, 54 Re Jefferson, 2 Am. Bankr. Rep. 206, 93 L. R. A. 374,

Fed. 948; Bray v. Cobb, 3 Am. Bankr. Rep.




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