« AnteriorContinuar »
house known as the Saengerbund Hall, be- plaintiff excepted; and from the judgment tween Third and Four-and-a-half streets on the plaintiff has appealed. C street northwest,” during the night of the The error assigned is, that the court below 27th day of October, 1895, while said street committed error in directing the verdict for was enveloped in darkness, without fixing the defendant. any light or sign at or near said stone, and It is contended by the plaintiff that the without placing any watchman or other per- carriage block in question was an unlawful son to warn plaintiff of its existence, posi- obstruction of the sidewalk, and consequenttion, and location, and without placing any ly a public nuisance, and that, being so, it guard or screen around said stone, by was the plain duty of the municipal aumeans of which the plaintiff stumbled and thorities of the District to see that all sidetripped against and fell over said stone and walks were kept free from obstruction of was injured, without any neglect on his every kind and description; and $8 222, 225, part, and he claims $25,000 damages. 226, 227, and 229 of the Revised Statutes re
The defendant pleaded the general-issue lating to the District of Columbia are cited plea of not guilty, and the case was tried and relied on in support of the proposition. and resulted in a verdict and judgment for By $ 226, D. C. Rev. Stat., it is provided the defendant.
that "it shall be the duty of the chief of There was considerable proof taken at the engineers, in charge of the public buildings trial, both as to the occurrence of the acci- and grounds, to cause obstructions of every dent, and as reflecting upon the question of kind to be removed from such streets, avecontributory negligence of the plaintiff, as- nues, and sidewalks in the city of Washingsuming that it might be shown that there ton as have been, or may be, improved, in was negligence on the part of defendant. whole or in part, by the United States, and But, in the view that we take of this case, to keep the same, at all times, free from obthe question of contributory negligence on structions.” And by § 229 it is provided the part of the plaintiff, in producing the that, "if any person shall place any obstrucinjury complained of, is not an element in tion on the streets, avenues, or sidewalks so the case, and therefore is not a matter for improved by the United States, such persons consideration. The carriage block or step shall pay the costs of removing the same, over which the plaintiff fell and injured and shall be subject to a penalty of $10, to himself is shown to have been of the ordi- be recovered as other debts are recovered in nary size and character, a block of brown said District, for each and every day the stone a little more than 2 feet long, about obstruction may remain after the chief of 15 inches wide, and about 8 inches high engineers shall have given notice for its refrom the surface of the pavement, and oc- moval." cupied a position in or at the curb dividing Without stopping to inquire what duty the street from the sidewalk, immediately these sections of the Revised Statutes imin front of the door of the Saengerbund posed, if any, upon the commissioners of the building, No. 312 C street N. W., on the District, the question here presented is, south side thereof; and that this block of whether an ordinary carriage block or step, stone or carriage step had been there from such as we have in this case, and such as the time the building was erected, many has been in use from time immemorial, as years prior to the time of the accident, and an incident or appurtenant of convenience, without question by anyone. It was similar if not of necessity, to places of business and in size and character to the one set in the residences in cities, constitutes an obstruccurb in front of the adjoining building, No. tion within the meaning of the sections of 314, and which had been used for many the statute quoted. It is clear, the proyears, according to the testimony in the visions of the statute do not apply to many
The plaintiff, in coming out of the things that may, in a sense, be regarded as Saengerbund building, by a quick and rapid obstructions to the sidewalks of a city. gait, and intending to go to the vehicle They certainly do not apply to the shade awaiting him in the street in front of the trees growing along the sidewalks, nor to door of the Saengerbund, stumbled over the lamp posts, water hydrants, awning posts, carriage block at the curb, and was thrown telegraph or telephone poles, that we find down, and fractured his leg. He swears that everywhere, in the city, along the sidewalks. he did not see the carriage block in his way, All these things may be regarded, in a parand that there was not sufficient light to ticular sense, as obstructions, but they are enable him to detect his danger.
not such within the meaning of the statute. At the close of the evidence the court be- They are objects allowed and authorized, by low, being of opinion that there was no case immemorial custom and usage, as being made out for the plaintiff, instructed the necessary to the health, convenience, projury to render their verdict for the defend tection, and enjoyment of the homes and ant, which was accordingly done, and the 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 located. It was not any more exposed than they always are and should be, they have was essential for its proper and useful lonever been regarded as nuisances, either cation.” And in the conclusion of the public or private. And, in the case of a opinion it was said: “It would be extending carriage step or block, it is of such reason the rule of the liability of municipal corpoable convenience and such a necessary ap- rations far greater than has yet been done purtenant to dwellings and places of busi- in any decided case, to hold that they are ness on the streets of a city that the right liable for assenting to the placing of stepto maintain it, of a proper size and in a ping stones on the edge of sidewalks in front proper position, has seldom been attempted of hotels, stores, public buildings, and to be questioned. The legal existence of private residences. The courts have gone carriage steps or blocks was fully recognized quite far in holding such corporations to a in this city long before the occurrence of the very strict responsibility in reference to acaccident, the subject of the present action, cidents caused by a failure of their officers and they have been regulated by both the to keep the streets and sidewalks in a proper building and police regulations prescribed and safe condition; but it would be adding by municipal authority. Their legal exist- to the corporate liability beyond reasonable ence has been explicitly recognized by this limits to hold that stepping stones, which court in the case of Howes v. District of are almost a necessity in providing for the Columbia, 2 App. D. C. 188, and that case is interest, comfort, and convenience of the in accordance with decisions of the highest public in the maintenance of walks, aveauthority elsewhere.
nues, and streets, constitute a nuisance or In the case of Dubois v. Kingston, 102 N. obstruction, and that (municipal] corpoY. 219, 55 Am. Rep. 804, 6 N. E. 273, it was rations are liable for damages by reason of the unanimous opinion of the court of ap- accidents caused thereby.” peals 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 its 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 a clear, open space upon the sidewalk for get into the same from the sidewalk, and the use of travelers, and the fact that the thus it was a means of accomodation to plaintiff, while hurrying in the nighttime those who had business at the postoffice, or to take a cab, stumbled over the stone,
when the place was well lighted and the ob- plaintiff in stumbling and falling over the ject plainly visible, does not prove, or tend stone. to prove, that the defendant was guilty of But the plaintiff contends that, even conany wrong or breach of duty in maintaining ceding that the carriage block in question the stepping stone in front of her house. It was not an unlawful obstruction, and did is true that the plaintiff was injured, but not constitute a public nuisance, yet the that was the result of an accident, due, street in that particular section was depossibly, to his own fault, but at all events fectively and insufficiently lighted, and, benot to any fault on the part of the defend cause of such defective and insutlicient ant, or to any unlawful obstruction by the lighting of the street and sidewalk, the defendant of the street. The question in- plaintiff ran against and stumbled over the volved in the case is, we think, well settled block or stepping stone and was injured, and by authority. Dubois v. Kingston, 102 N. that the defendant corporation is liable for Y. 219, 55 Am. Rep. 804, 6 N. E. 273; such injury, because of the neglect to Dougherty v. Horseheads, 159 N. Y. 154, 53 properly light and keep lighted the street N. E. 799. While it is said that these and sidewalk where the accident occurred. cases involved only the question of liability But, whatever insufficiency may have existed on the part of a municipality for negligence, in the light upon the occasion of the accithey also decided that the existence of ob- dent (if any insufficiency did in fact exist), jects of this character in the streets is law- such an action as the present is not the ful. If the city could not be held liable for remedy for the consequences of such defect. permitting them to be there after notice, Money is annually appropriated by Congress neither can the defendant be held liable for for lighting the streets of the city; but placing them there. The question involved whether such appropriation be sufficient or in this class of cases is whether the object insufficient, the courts cannot determine: complained of is usual, reasonable, or neces- nor can they determine how the lights shall sary in the use of the street by the owner of be distributed through the city; or how any the premises, or anyone else.”
particular street or section of a street shall There are other courts than those of New be lighted.- whether by few or many lights, York that have maintained the
or whether by gas or electricity. These are principle. Cincinnati v. Fleischer, 63 Ohio matters that are confided exclusively to the St. 229, 58 N. E. 568; Macomber v. Taunton, judgment and discretion of the municipal 100 Mass. 255; Cushing v. Boston, 124 Mass. authorities. 434; Horner v. Philadelphia, 194 Pa. 542, 45 Finding no error in the ruling of the Atl. 330.
court below directing the verdict for the deUpon general principle, as well as upon fendant, we must aflirm the judgment, and authority, we are clearly of opinion the car- it is so ordered. riage block or stepping stone in question Judgment affirmed. was not an unlawful obstruction of the street or sidewalk, and that the defendant Affirmed by Supreme Court of United is not liable for the injury received by the 'States January 3, 1905.
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
(...... Ga. ......)
*1. Mutual confidence being the foun
dation of the partnership relation, the mere fact that a member of a partnership is not the owner of property which he
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 part. nership, nor is he liable for the debts of that
partnership. 3, Husband and wife may, in this state,
* Headpotes by COBE, J.
NOTE.—As to business partnership between husband and wife, see also, in this series. Gilker. son-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.
lawfally transact business as copart-, his wife's business, would not render her ners, and therefore there may be a subpart- liable for it. nership between a husband and wife in refer
Blount v. Dugger, 115 Ga. 109, 41 S. E. ence to the profits of a business in which
270. the husband is a partner. 4. In a subpartnership of the character
Messrs. Felder & Rountree, for defendabove referred to, where the members ant in error: are husband and wife, a gift by the wife to It is not material that the contract of the husband of a portion of her interest in purchase was signed "J. L. Dickey, Presi. the profits which the husband would derive from the first partnership is valid; and the dent, and J. J. Morrison.” The partners use by him, or by his copartner, of such
were liable, at least inter se, for the debt. profits to discharge a debt of the husband Maddox v. Wilson, 91 Ga. 40, 16 S. E. would not render his partner liable to the 213; Lenney v. Finley, 118 Ga. 718, 45 S. wife on account of having used her money for E. 593. the purpose of paying her husband's debt.
Mrs. Morrison was originally liable for 3. The verdict for the defendant was demanded by the evidence, and
the debt. She was liable upon the prin
any errors that may have been made by the ciple of ratification and estoppel. judge in his instructions to the jury did not Code, $$ 2626, 5150; Murray v. Walker, l'equire the granting of a new trial.
44 Ga. 58.
A party who has received the benefit of (March 7, 1905.)
a contract made by a husband concerning
property owned by the wife cannot resist E RROR to the City Court of Atlanta to performance on the ground of the wife's cov
review a judgment in favor of defend-erture and the absence of her statutory asant in an action brought to recover money sent to the contract. alleged to have been wrongfully appropriat
Texas & St. L. R. Co. v. Robards, 60 Tex. ed by defendant to the payment of a debt 545, 48 Am. Rep. 268; Hathaway v. Payne, of plaintiff's husband. Afirmed.
34 N. Y. 92; Louisville, N. A. & C. R. Co. The facts are stated in the opinion.
v. Flanagan, 113 Ind. 488, 3 Am. St. Rep. V. W. R. Hammond, for plaintiff in 674, 14 N. E. 370.
The creation of a partnership by an agent The debt was that of the husband, and his without authority may be ratified and made alone, both morally and legally; and plain- valid by the principal, notwithstanding that tiff is absolutely disqualified by the statute intervening rights are thereby cut off, where from making any contract to assume it or such rights rest on an inferior equity to that
of the principal. Code, § 2488.
Williams v. Butler, 35 Ill. 544. The mere fact that Mr. Morrison was the agent of his wife in the conduct of her busi
Cobb, J., delivered the opinion of the ness, he being in possession of the property court: and the apparent owner, would not make
an action by Mrs. Morrison Dickey her partner.
against Dickey to recover a sum of money 2 Lawson, Rights, Rem. & Pr. p. 1190, 1 which she alleged had been wrongfully ap6:35.
propriated by Dickey to the payment of her Partnership, as between the partners, is husband's debt. The jury found in favor of a contractual relationship, and cannot the defendant, and the plaintiff assigns era rise in any other way, though a liability as
ror upon the overruling of her motion for to third parties may arise, by estoppel, on
a new trial. the part of one who is not a partner.
Mrs. Morrison was the owner of a busiIbid.; Civil Code, 8 2626. See also g 2629; ness which was conducted by her husband Huggins v. Huggins, 117 Ga. 151, 43 S. E. in his name. Her ownership was not dis759.
closed to the world, nor was there anything The law of concealed agency, which makes to indicate to those who dealt with Morrithe principal liable, when discovered, at the son that he was not the owner of the busielection of the other party, operates alone ness. Dickey, while ignorant of Mrs. Morfor the protection of the other party to the rison's ownership, bought from Morrison a contract.
half interest in the business. This sale was Williams v. Merle, 11 Wend. 80, 25 Am. made, if not with the approval, certainly Dec. 605; Ga. Civ. Code, $$ 3024, 3539; without the disapproval, of Mrs. Morrison. Maddox v. Wilson, 91 Ga. 40, 16 S. E. 213; Morrison and Dickey purchased a machine, Rosser v. Darden, 82 Ga. 219, 14 Am. St. which, if not necessary, was adapted to and Rep. 152, 7 S. E. 919.
useful in the business they were carrying The mere fact of the purchase of this ma- on, and was actually used in that business. chine by Morrison, even though it may have The contract for the purchase price was been intended for use in connection with signed, not by the partnership, but by Mor
rison and Dickey individually. Suit was , unless the persons are known to each other, brought upon this contract, and judgment and each has an opportunity to determine obtained against Morrison and Dickey as in- whether that relation shall be formed bedividual joint promisors. Up to this point tween them. Partnership is founded upon it seems that Dickey was still in ignorance agreement and consent, and there can be no of the fact that the business into which he consent to the formation of a partnership had been admitted as a partner with Mor- with a person who is not known. 1 Bates, rison was in reality the business of Mor- Partn. § 158; 22 Am. & Eng. Enc. Law, 2d rison's wife, but this fact was subsequently ed. p. 15. The relation which existed bedisclosed to him. Dickey, having ascer
tween Morrison and his wife after Dickey tained that Mrs. Morrison was the real had been admitted as a partner into the owner of the business, negotiated with her business carried on by Morrison was in the for the purchase of her remaining one-half nature of a subpartnership, which made interest; and an agreement was reached by Morrison and his wife partners as between which Mrs. Morrison sold this interest to themselves; and as such they assumed all Dickey for the sum of $2,500, $1,000 of of the responsibilities that would be incident which was to be paid in cash. The stipu- to a partnership created between two perlation in the contract with reference to the sons, where one furnished the capital, and remaining $1,500 was in the following the other the skill and labor, necessary in words: “The balance of the amount, being carrying out the enterprise. 1 Bates, Partn. fifteen hundred dollars, I hereby give and 88 164, 169. How profits between themconvey to him, my said husband, J. J. Mor- selves as members of this subpartnership rison, for the affection I have for him, to- would be divided would be immaterial, and gether with some compensation for his long therefore the mere fact that Mrs. Morrison service in it. Of course he can do as he was to receive the entire profits of the busipleases with that, provided I get one thou ness thus carried on in her husband's name sand dollars or its equivalent.” Dickey as for her benefit would not deprive the busisumed all debts and liabilities of the firm. ness relationship between them of the essenMorrison agreed with Dickey that the $1,- tial elements of a subpartnership. It is now 500 above referred to should be left in the the settled law of this state that husband latter's hands, to be appropriated first to the and wife may lawfully engage in business as payment of one half of the judgment against partners. Ellis v. Mills, 99 Ga. 490, 27 S. Dickey and Morrison above referred to, and E. 740. But this relation existing between the remainder, so far as necessary, to the Morrison and his wife as to each other payment of one half of the other debts of would not make the wife a partner in the the firm. Dickey subsequently paid the bal business carried on by Dickey and Morrison, ance due on the judgment, and it is claimed nor would she be liable for the debts of that by Mrs. Morrison that this payment was partnership; but she would be liable for any made from the proceeds of the business in debts which might be considered as debts which her money had been placed by her of the subpartnership existing between herhusband, and therefore that one half of this self and her husband. 1 Bates, Partn. $$ money paid on this judgment was hers, and 168, 169; 22 Am. & Eng. Enc. Law, 2d ed. should have been paid to her, and the pay. p. 17. Mrs. Morrison therefore could not ment of it by Dickey on her husband's debt have been held bound on the contract for the was illegal, and she was entitled to recover purchase of the machine above referred to, the amount from him; it being also claimed as this purchase was made before the fact that the arrangement by which $1,500 of the of her interest in the business came to the purchase money of her remaining interest knowledge of Dickey, and therefore before in the business should be left in the hands there could have been, in law, any partnerof her husband, and the subsequent arrange- ship relation existing between them. But ment between Dickey and her husband that Morrison was bound, not only by virtue of this sum should be appropriated in part to the partnership relation existing between the payment of the judgment, was merely himself and Dickey, but by the express terms a scheme or device to use her money for the of the contract itself. When Dickey dispurpose of paying her husband's debt. No covered that Mrs. Morrison was the real partnership relation existed between Mrs. owner of the business which he had formerMorrison and Dickey prior to the time that ly carried on as a partner of her husband, he knew that the business was owned by he had a right to deal with her as such ownher. The partnership up to that time was er, by either admitting her into the partnerone composed of Dickey and Morrison. The ship, or by purchasing from her her interest relation created by a partnership agreement therein. The contract, therefore, between is one founded so essentially upon mutual Dickey and Mrs. Morrison, by which he purconfidence that there can be no such thing chased her remaining one-half interst in in the law as a partnership between persons 'the business, was valid and lawful, and after