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house known as the Saengerbund Hall, between Third and Four-and-a-half streets on C street northwest," during the night of the 27th day of October, 1895, while said street was enveloped in darkness, without fixing any light or sign at or near said stone, and without placing any watchman or other person to warn plaintiff of its existence, position, and location, and without placing any guard or screen around said stone, by means of which the plaintiff stumbled and tripped against and fell over said stone and was injured, without any neglect on his part, and he claims $25,000 damages.
The defendant pleaded the general-issue plea of not guilty, and the case was tried and resulted in a verdict and judgment for the defendant.
There was considerable proof taken at the trial, both as to the occurrence of the accident, and as reflecting upon the question of contributory negligence of the plaintiff, assuming that it might be shown that there was negligence on the part of defendant. But, in the view that we take of this case, the question of contributory negligence on the part of the plaintiff, in producing the injury complained of, is not an element in the case, and therefore is not a matter for consideration. The carriage block or step over which the plaintiff fell and injured himself is shown to have been of the ordinary size and character, a block of brown stone a little more than 2 feet long, about 15 inches wide, and about 8 inches high from the surface of the pavement, and occupied a position in or at the curb dividing the street from the sidewalk, immediately in front of the door of the Saengerbund building, No. 312 C street N. W., on the south side thereof; and that this block of stone or carriage step had been there from the time the building was erected, many years prior to the time of the accident, and without question by anyone. It was similar in size and character to the one set in the curb in front of the adjoining building, No. 314, and which had been used for many years, according to the testimony in the case. The plaintiff, in coming out of the Saengerbund building, by a quick and rapid gait, and intending to go to the vehicle awaiting him in the street in front of the door of the Saengerbund, stumbled over the carriage block at the curb, and was thrown down, and fractured his leg. He swears that he did not see the carriage block in his way, and that there was not sufficient light to enable him to detect his danger.
At the close of the evidence the court below, being of opinion that there was no case made out for the plaintiff, instructed the jury to render their verdict for the defendant, which was accordingly done, and the
plaintiff excepted; and from the judgment the plaintiff has appealed.
The error assigned is, that the court below committed error in directing the verdict for the defendant.
It is contended by the plaintiff that the carriage block in question was an unlawful obstruction of the sidewalk, and consequently a public nuisance, and that, being so, it was the plain duty of the municipal authorities of the District to see that all sidewalks were kept free from obstruction of every kind and description; and §§ 222, 225, 226, 227, and 229 of the Revised Statutes relating to the District of Columbia are cited and relied on in support of the proposition.
By § 226, D. C. Rev. Stat., it is provided that "it shall be the duty of the chief of engineers, in charge of the public buildings and grounds, to cause obstructions of every kind to be removed from such streets, avenues, and sidewalks in the city of Washington as have been, or may be, improved, in whole or in part, by the United States, and to keep the same, at all times, free from obstructions." And by § 229 it is provided that, "if any person shall place any obstruction on the streets, avenues, or sidewalks so improved by the United States, such persons shall pay the costs of removing the same, and shall be subject to a penalty of $10, to be recovered as other debts are recovered in said District, for each and every day the obstruction may remain after the chief of engineers shall have given notice for its removal."
Without stopping to inquire what duty these sections of the Revised Statutes imposed, if any, upon the commissioners of the District, the question here presented is, whether an ordinary carriage block or step, such as we have in this case, and such as has been in use from time immemorial, as an incident or appurtenant of convenience, if not of necessity, to places of business and residences in cities, constitutes an obstruction within the meaning of the sections of the statute quoted. It is clear, the provisions of the statute do not apply to many things that may, in a sense, be regarded as obstructions to the sidewalks of a city. They certainly do not apply to the shade trees growing along the sidewalks, nor to lamp posts, water hydrants, awning posts, telegraph or telephone poles, that we find everywhere, in the city, along the sidewalks. All these things may be regarded, in a particular sense, as obstructions, but they are not such within the meaning of the statute. They are objects allowed and authorized, by immemorial custom and usage, as being necessary to the health, convenience, protection, and enjoyment of the homes and lives of the inhabitants of the city. Where
these objects of convenience and comfort in the building in front of which it was have been subject to proper regulation, as they always are and should be, they have never been regarded as nuisances, either public or private. And, in the case of a carriage step or block, it is of such reasonable convenience and such a necessary appurtenant to dwellings and places of business on the streets of a city that the right to maintain it, of a proper size and in a proper position, has seldom been attempted to be questioned. The legal existence of carriage steps or blocks was fully recognized in this city long before the occurrence of the accident, the subject of the present action, and they have been regulated by both the building and police regulations prescribed by municipal authority. Their legal exist ence has been explicitly recognized by this court in the case of Howes v. District of Columbia, 2 App. D. C. 188, and that case is in accordance with decisions of the highest authority elsewhere.
located. It was not any more exposed than was essential for its proper and useful location." And in the conclusion of the opinion it was said: "It would be extending the rule of the liability of municipal corporations far greater than has yet been done in any decided case, to hold that they are liable for assenting to the placing of stepping stones on the edge of sidewalks in front of hotels, stores, public buildings, and private residences. The courts have gone quite far in holding such corporations to a very strict responsibility in reference to accidents caused by a failure of their officers to keep the streets and sidewalks in a proper and safe condition; but it would be adding to the corporate liability beyond reasonable limits to hold that stepping stones, which are almost a necessity in providing for the interest, comfort, and convenience of the public in the maintenance of walks, avenues, and streets, constitute a nuisance or obstruction, and that [municipal] corporations are liable for damages by reason of accidents caused thereby.”
In the case of Dubois v. Kingston, 102 N. Y. 219, 55 Am. Rep. 804, 6 N. E. 273, it was the unanimous opinion of the court of appeals of New York that a stepping stone in In the more recent case of Robert v. the front of a public building, just inside Powell, 168 N. Y. 414, 55 L. R. A. 775, 85 the curb of the sidewalk, was not such an Am. St. Rep. 673, 61 N. E. 699, the same obstruction as would render a city liable for principle is very fully laid down. In this an injury sustained by a person falling latter case the action was brought against over it, even though others had been previ- the owner of the dwelling in front of which ously injured by falling over the step. It the carriage block was placed. It was held appeared that the plaintiff was injured by the unanimous opinion of the court that while running to a fire, which appeared to the block, being of an ordinary size, and be in the direction of his own house, in the placed in the usual position at the curb, was city of Kingston, by falling over a stepping not an unlawful obstruction of the sidewalk, stone lying in the sidewalk in one of the and the plaintiff could not recover for instreets of the city. The stone was 3 feet 4 juries received by stumbling over the step. inches in length, 20 inches wide, and 14 In that case, on the night of the accident, inches high. It lay lengthwise with the the plaintiff, while walking rapidly on Fiftycurb and on the side thereof, in front of the eighth street, crossed the street diagonally building containing the postoffice, a music from the defendant's house, in order to take hall, and several stores. In the opinion, the a cab, and stumbled over a stepping stone court said: "Actions against municipal or carriage block maintained by the decorporations for injuries sustained by indi- fendant in front of her residence. The stone viduals while using or passing along its over which the plaintiff fell was 18 inches streets are founded upon the ground of high, 13 inches long, and 16 inches wide. negligence of its officers in the performance In the opinion the court said: "The stepof their official duties, and cannot be main-ping stone in this case, located upon the tained without evidence showing that they sidewalk in front of a private house, was a have been derelict in this respect, by means reasonable and necessary use of the street, of which the injury has been sustained. We not only for the convenience of the owner of think there was no such proof upon the trial the house, but for other persons who desired of this action. The stepping stone over to visit or enter the house for business or which the plaintiff fell and was injured was other lawful purpose. It did not interfere not of unusual size or of an improper con- in the least with the use of the roadway or struction, nor was it located at an improper bed of the street; nor did it interfere to any place. It was placed in a position on the | appreciable or unreasonable extent with the sidewalk most convenient for persons who use of the sidewalk. There were 8 feet of should alight from a wagon or carriage or get into the same from the sidewalk, and thus it was a means of accomodation to those who had business at the postoffice, or
a clear, open space upon the sidewalk for the use of travelers, and the fact that the plaintiff, while hurrying in the nighttime to take a cab, stumbled over the stone,
But the plaintiff contends that, even conceding that the carriage block in question was not an unlawful obstruction, and did not constitute a public nuisance, yet the street in that particular section was defectively and insufficiently lighted, and, because of such defective and insufficient lighting of the street and sidewalk, the plaintiff ran against and stumbled over the block or stepping stone and was injured, and that the defendant corporation is liable for such injury, because of the neglect to properly light and keep lighted the street and sidewalk where the accident occurred. But, whatever insufficiency may have existed in the light upon the occasion of the accident (if any insufficiency did in fact exist), such an action as the present is not the remedy for the consequences of such defect. Money is annually appropriated by Congress for lighting the streets of the city; but whether such appropriation be sufficient or insufficient, the courts cannot determine: nor can they determine how the lights shall be distributed through the city; or how any particular street or section of a street shall
when the place was well lighted and the ob- | plaintiff in stumbling and falling over the ject plainly visible, does not prove, or tend to prove, that the defendant was guilty of any wrong or breach of duty in maintaining the stepping stone in front of her house. It is true that the plaintiff was injured, but that was the result of an accident, due, possibly, to his own fault, but at all events not to any fault on the part of the defendant, or to any unlawful obstruction by the defendant of the street. The question involved in the case is, we think, well settled by authority. Dubois v. Kingston, 102 N. Y. 219, 55 Am. Rep. 804, 6 N. E. 273; Dougherty v. Horseheads, 159 N. Y. 154, 53 N. E. 799. While it is said that these cases involved only the question of liability on the part of a municipality for negligence, they also decided that the existence of objects of this character in the streets is lawful. If the city could not be held liable for permitting them to be there after notice, neither can the defendant be held liable for placing them there. The question involved in this class of cases is whether the object complained of is usual, reasonable, or necessary in the use of the street by the owner of the premises, or anyone else." There are other courts than those of New be lighted.-whether by few or many lights, York that have maintained the same principle. Cincinnati v. Fleischer, 63 Ohio St. 229, 58 N. E. 568; Macomber v. Taunton, 100 Mass. 255; Cushing v. Boston, 124 Mass. 434; Horner v. Philadelphia, 194 Pa. 542, 45 Atl. 330.
Upon general principle, as well as upon authority, we are clearly of opinion the carriage block or stepping stone in question was not an unlawful obstruction of the street or sidewalk, and that the defendant is not liable for the injury received by the
or whether by gas or electricity. These are matters that are confided exclusively to the judgment and discretion of the municipal authorities.
Finding no error in the ruling of the court below directing the verdict for the defendant, we must affirm the judgment, and it is so ordered.
Affirmed by Supreme Court of United States January 3, 1905.
GEORGIA SUPREME COURT.
Hattie H. MORRISON, Plff. in Err.,
James L. DICKEY.
*1. Mutual confidence being the foundation of the partnership relation, the mere fact that a member of a partnership is not the owner of property which he
Headnotes by COBE, J.
NOTE. AS to business partnership between husband and wife, see also, in this series. Gilkerson-Sloss Commission Co. v. Salinger, 16 L. R. A. 526, and note; Fuller & F. Co. v. McHenry, 18 L. R. A. 512; Vail v. Winterstein, 18 L. R. A. 515; Haggett v. Hurley. 41 L. R. A. 362; and Hoaglin v. Henderson, 61 L. R. A. 756.
has embarked in the partnership enterprise the same belonging to a third person, who has consented that it may be so used for his benefit, but whose interest is not disclosed to the other member of the partnership-does not cause a partnership relation to arise between the other partner and the concealed principal of his copartner.
2. A partner may make an agreement with a third person for a division of the profits coming to him from the partnership enterprise, and, if the character of the agreement is such as to disclose the essentials necessary to a partnership, a subpartnership is thereby formed between the partner and the third person; but such person does not become a member of the first partnership, nor is he liable for the debts of that partnership.
3. Husband and wife may, in this state,
liable for it.
lawfully transact business as copart-, his wife's business, would not render her ners, and therefore there may be a subpart nership between a husband and wife in reference to the profits of a business in which the husband is a partner.
4. In a subpartnership of the character above referred to, where the members are husband and wife, a gift by the wife to
the husband of a portion of her interest in
the profits which the husband would derive
from the first partnership is valid; and the use by him, or by his copartner, of such profits to discharge a debt of the husband would not render his partner liable to the wife on account of having used her money for the purpose of paying her husband's debt. 5. The verdict for the defendant was demanded by the evidence, and any
that may have been made by the judge in his instructions to the jury did not require the granting of a new trial.
(March 7, 1905.)
RROR to the City Court of Atlanta to review a judgment in favor of defendant in an action brought to recover money alleged to have been wrongfully appropriated by defendant to the payment of a debt of plaintiff's husband. Affirmed.
The facts are stated in the opinion.
The law of concealed agency, which makes the principal liable, when discovered, at the election of the other party, operates alone for the protection of the other party to the contract.
Williams v. Merle, 11 Wend. 80, 25 Am. Dec. 605; Ga. Civ. Code, §§ 3024, 3539; Maddox v. Wilson, 91 Ga. 40, 16 S. E. 213; Rosser v. Darden, 82 Ga. 219, 14 Am. St. Rep. 152, 7 S. E. 919.
The mere fact of the purchase of this machine by Morrison, even though it may have been intended for use in connection with
Blount v. Dugger, 115 Ga. 109, 41 S. E. 270.
Messrs. Felder & Rountree, for defendant in error:
It is not material that the contract of
purchase was signed "J. L. Dickey, PresiThe partners dent, and J. J. Morrison."
were liable, at least inter se, for the debt.
Maddox v. Wilson, 91 Ga. 40, 16 S. E. 213; Lenney v. Finley, 118 Ga. 718, 45 S. E. 593.
Mrs. Morrison was originally liable for the debt. She was liable upon the principle of ratification and estoppel.
Code, §§ 2626, 5150; Murray v. Walker, 44 Ga. 58.
A party who has received the benefit of a contract made by a husband concerning property owned by the wife cannot resist performance on the ground of the wife's coverture and the absence of her statutory assent to the contract.
Teras & St. L. R. Co. v. Robards, 60 Tex. 545, 48 Am. Rep. 268; Hathaway v. Payne, 34 N. Y. 92; Louisville, N. A. & C. R. Co. v. Flanagan, 113 Ind. 488, 3 Am. St. Rep. 674, 14 N. E. 370.
The creation of a partnership by an agent without authority may be ratified and made valid by the principal, notwithstanding that intervening rights are thereby cut off, where such rights rest on an inferior equity to that of the principal.
Williams v. Butler, 35 Ill. 544.
Cobb, J., delivered the opinion of the court:
This was an action by Mrs. Morrison against Dickey to recover a sum of money which she alleged had been wrongfully appropriated by Dickey to the payment of her husband's debt. The jury found in favor of the defendant, and the plaintiff assigns error upon the overruling of her motion for a new trial.
Mrs. Morrison was the owner of a business which was conducted by her husband in his name. Her ownership was not disclosed to the world, nor was there anything to indicate to those who dealt with Morrison that he was not the owner of the business. Dickey, while ignorant of Mrs. Morrison's ownership, bought from Morrison a
half interest in the business. This sale was made, if not with the approval, certainly without the disapproval, of Mrs. Morrison. Morrison and Dickey purchased a machine, which, if not necessary, was adapted to and useful in the business they were carrying on, and was actually used in that business. The contract for the purchase price was signed, not by the partnership, but by Mor
rison and Dickey individually. Suit was brought upon this contract, and judgment obtained against Morrison and Dickey as individual joint promisors. Up to this point it seems that Dickey was still in ignorance of the fact that the business into which he had been admitted as a partner with Morrison was in reality the business of Morrison's wife, but this fact was subsequently disclosed to him. Dickey, having ascertained that Mrs. Morrison was the real owner of the business, negotiated with her for the purchase of her remaining one-half interest; and an agreement was reached by which Mrs. Morrison sold this interest to Dickey for the sum of $2,500, $1,000 of which was to be paid in cash. The stipulation in the contract with reference to the remaining $1,500 was in the following words: "The balance of the amount, being fifteen hundred dollars, I hereby give and convey to him, my said husband, J. J. Morrison, for the affection I have for him, together with some compensation for his long service in it. Of course he can do as he pleases with that, provided I get one thousand dollars or its equivalent." Dickey assumed all debts and liabilities of the firm. Morrison agreed with Dickey that the $1,500 above referred to should be left in the latter's hands, to be appropriated first to the payment of one half of the judgment against Dickey and Morrison above referred to, and the remainder, so far as necessary, to the payment of one half of the other debts of the firm. Dickey subsequently paid the balance due on the judgment, and it is claimed by Mrs. Morrison that this payment was made from the proceeds of the business in which her money had been placed by her husband, and therefore that one half of this money paid on this judgment was hers, and should have been paid to her, and the payment of it by Dickey on her husband's debt was illegal, and she was entitled to recover the amount from him; it being also claimed that the arrangement by which $1,500 of the purchase money of her remaining interest in the business should be left in the hands of her husband, and the subsequent arrangement between Dickey and her husband that this sum should be appropriated in part to the payment of the judgment, was merely a scheme or device to use her money for the purpose of paying her husband's debt. No partnership relation existed between Mrs. Morrison and Dickey prior to the time that he knew that the business was owned by her. The partnership up to that time was one composed of Dickey and Morrison. The relation created by a partnership agreement is one founded so essentially upon mutual confidence that there can be no such thing in the law as a partnership between persons
unless the persons are known to each other, and each has an opportunity to determine whether that relation shall be formed between them. Partnership is founded upon agreement and consent, and there can be no consent to the formation of a partnership with a person who is not known. 1 Bates, Partn. § 158; 22 Am. & Eng. Enc. Law, 2d ed. p. 15. The relation which existed between Morrison and his wife after Dickey had been admitted as a partner into the business carried on by Morrison was in the nature of a subpartnership, which made Morrison and his wife partners as between themselves; and as such they assumed all of the responsibilities that would be incident to a partnership created between two persons, where one furnished the capital, and the other the skill and labor, necessary in carrying out the enterprise. 1 Bates, Partn. §§ 164, 169. How profits between themselves as members of this subpartnership would be divided would be immaterial, and therefore the mere fact that Mrs. Morrison was to receive the entire profits of the business thus carried on in her husband's name for her benefit would not deprive the business relationship between them of the essential elements of a subpartnership. It is now the settled law of this state that husband and wife may lawfully engage in business as partners. Ellis v. Mills, 99 Ga. 490, 27 S. E. 740. But this relation existing between Morrison and his wife as to each other would not make the wife a partner in the business carried on by Dickey and Morrison, nor would she be liable for the debts of that partnership; but she would be liable for any debts which might be considered as debts of the subpartnership existing between herself and her husband. 1 Bates, Partn. §§ 168, 169; 22 Am. & Eng. Enc. Law, 2d ed. p. 17. Mrs. Morrison therefore could not have been held bound on the contract for the purchase of the machine above referred to, as this purchase was made before the fact of her interest in the business came to the knowledge of Dickey, and therefore before there could have been, in law, any partnership relation existing between them. But Morrison was bound, not only by virtue of the partnership relation existing between himself and Dickey, but by the express terms of the contract itself. When Dickey discovered that Mrs. Morrison was the real owner of the business which he had formerly carried on as a partner of her husband, he had a right to deal with her as such owner, by either admitting her into the partnership, or by purchasing from her her interest therein. The contract, therefore, between Dickey and Mrs. Morrison, by which he purchased her remaining one-half interst in the business, was valid and lawful, and after