Page images
PDF
EPUB

Preliminary to the discussion of this de- | father, was hired to the defendant in its murrer, it is contended by defendants that foundry. During the first two months he the same should not run to the allegations set forth in the first count because they say that no reference thereto or adoption of it is made in the second count. This seems to have been the view entertained by the trial court, and therein we see no error.

In Birmingham, etc., v. Allen, 99 Ala. 359, 13 South. 8, 20 L. R. A. 457, it was, in substance, held that, where a demurrer has been sustained to a complaint consisting of a single count, it was error to amend the complaint by adding thereto one or more counts even by reference to and adoption of the original count.

In Treweek v. Howard, 105 Cal. 434, 39 Pac. 20, it was held to be unnecessary to repeat at length in each succeeding count of the complaint the facts stated in the first count, where, in the succeeding count, reference to a preceding count is definite and certain, and the allegations therein contained are expressly adopted, but that the omission to either repeat or refer to them is fatal to their consideration. Byrne Mill Co. v. Robertson, 149 Ala. 273, 42 South. 1008; Hopkins et al. v. Contra Costa Co., 106 Cal. 566, 39 Pac. 933, citing cases; Gilmore et al. v. Christ Hospital, etc., 68 N. J. Law, 47, 52 Atl. 241. Concerning the demurrer, it is well settled that where the master knows the employment is dangerous, and also knows that the servant is ignorant and inexperienced in the employment and has no knowledge of the dangers incident thereto, it is the duty of the master to warn the servant of the danger and instruct him to avoid it. If the failure to perform said duty results in injury to the servant, the master is liable. Even where the danger is patent and open to observation, it is the duty of the master to warn and instruct the servant in regard to it if through inexperience, or from any cause whatever, the servant is unable to understand fully and appreciate the nature and extent of said danger. 20 Am. & Eng. Enc. of Law, 97, and cases cited. Or, as stated in Cyc. 1173: "Where the master knows, or ought to know, the dangers of the employment, and knows, or ought to know, that the servant, by reason of his immature years or inexperience, is ignorant of, or unable to appreciate, such dangers, it is his duty to give him such instruction and warning of the dangerous character of the employment as may reasonably enable him to understand its perils"-and cases cited.

Dowling v. Allen & Co., 74 Mo. 13, 41 Am. Rep. 298, was a suit in damages for personal injuries sustained while plaintiff was in the employ of defendant in its foundry in St. Louis. At the close of plaintiff's testimony there was a demurrer to his evidence, which was sustained, and plaintiff appealed. The facts were, in substance, that plaintiff was a boy

was employed in running errands and sweeping out. During the last month he was employed in the machine shop and in the yard, where a turntable was being constructed, under King, a fellow servant, and was under his orders. King knew the boy was "green" and persuaded him to remain at work at the turntable. Running east from this table was a shaft about 12 feet long and 6 inches in diameter, and covered, except for some 32 feet nearest the turntable and about 8 or 10 inches from the ground. It could be stepped over, and was in the habit of being stepped over by the men thereabout employed. At the end nearest the turntable, the shaft had a collar about an inch and a half thick, from which projected a set screw about 2 inches. King ordered the boy to stop the engine and to hurry. He took the short way, and in stepping over said shaft, which was revolving rapidly, the leg of his trousers was caught by the said screw, his leg was drawn in the shaft, and he was injured. The court, after laying down the general doctrine that one who enters upon the services of another takes upon himself the ordinary risks of the employment, said: "On the other hand, if there are concealed dangers known to the employer, and unknown to the employé, it is the duty of the employer to notify the servant of their existence. We think the doctrine equally well settled by the authorities that although the machinery, or that part of it complained of as especially dangerous, is visible, yet if, by reason of the youth and inexperience of the servant, he is not aware of the danger to which he is exposed in operating it, or approaching near to it, it is the duty of the master to apprise him of the danger, if known to him."

In Sullivan v. India Manufacturing Co., 113 Mass. 396, the court said: "It may frequently happen that the dangers of a particular position for or mode of doing work are great, and apparent to persons of capacity and knowledge of the subject, and yet a party from youth, inexperience, ignorance, or general want of capacity may fail to to appreciate them. It would be a breach of duty on the part of a master to expose a servant of this character, even with his own consent, to such dangers, unless with instructions or cautions sufficient to enable him to comprehend them, and to do his work safely, with proper care on his own part."

In Ingerman v. Moore, 90 Cal. 410, 27 Pac. 306, 25 Am. St. Rep. 138, the court said: "The complaint alleges that the work of running the machine was dangerous, and plaintiff was inexperienced and ignorant of the dangers attending the same, and that defendant knew this, and neglected to warn him of such dangers, or properly instruct

66

TATE v. GAINES.

(Supreme Court of Oklahoma. Nov. 9, 1909.)
INDIANS (§ 15*) - UNAUTHORIZED CONVEY-
ANCE OF LAND-RECONVEYANCE-RECOVERY
BY VENDEE OF PRICE PAID.

ly from Jones v. Florence Mining Co., 66 [ the only point raised by the demurrer, the Wis. 277, 28 N. W. 210 (57 Am. Rep. 269), judgment of the lower court is reversed. said: We think it is now clearly All the Justices concur. settled that if a master employs a servant to do work in a dangerous place, or where the mode of doing the work is dangerous and apparent to a person of capacity and knowledge of the subject, yet if the servant employed to do work of such a dangerous character or in a dangerous place, from youth, inexperience, ignorance, or want of general capacity, may fail to appreciate the dangers, it is a breach of duty on the part of the master to expose a servant of such character, even with his own consent, to such dangers, unless he first gives him such instructions or cautions as will enable him to comprehend them, and do his work safely with proper care on his part."

in Greef et al. v. Brown, 7 Kan. App. 394, 51 Pac. 926, the court, after laying down the general rule insisted on by defendants herein in support of their demurrer, to the effect that plaintiff assumed the risk of obvious dangers incident to her employment, qualified it thus: "This rule applies to minors, as well as adults, who are of such age, intelligence, discretion, and judgment as to enable them to understand and appreciate the dangers." Casey v. Railroad Co., 90 Wis. 113, 62 N. W. 624. Clearly implying the converse of the rule to be that where the minor is not of such age, intelligence, discretion, and judgment as to enable her to understand and appreciate the dangers, she does not assume such danger, and that the neglect of the master to inform her thereof is actionable negligence. This is a distinction running through all the cases, or, as stated in the first section of the syllabus in Jane Jones, by Her Next Friend, v. Roberts, 57 Ill. App. 56: "Where the danger of injury is apparent to a person of ordinary intelligence and experience, and incident to the employment, the risk of injury is assumed by the employé as one of the ordinary risks of service. This rule does not apply, however, to employés who from youth are unable to appreciate and realize the danger to which they are exposed." See, also, Ertz v. Pierson, 130 Mich. 160, 89 N. W. 680; Luebke v. Berlin Mach. Works, 88 Wis. 442, 60 N. W. 711, 43 Am. St. Rep. 913.

Inasmuch as the petition alleges, in substance, that plaintiff's child, as the servant of defendants, was put by them at work feeding a dangerous machine, that the danger incident thereto she, owing to her tender years and inexperience, was wholly unable to understand or appreciate, all of which was known to defendants, who carelessly and negligently failed to instruct and inform her of such danger, and that said failure resulted in her injury, we are of the opinion that the same stated facts sufficient to constitute a cause of action, and, as this is

An allottee of land in the Creek Nation, which was inalienable by virtue of the provisions of Act Cong. March 1, 1901, c. 676, § 7, 31 Stat. 863, for a valuable consideration made, executed and delivered a warranty deed thereto, and accompanied the same with a tract, which provided substantially that, should the said grantor at any time become dissatisfied with the sale or fail or refuse to carry out the provisions of the deed, she would pay to the grantee, his heirs or assigns, all money paid for the purchase price of said land, and for all allowance for rents for the use of the land durimprovements made thereon, less a reasonable ing the time grantee held it. The grantor exercised her right of repossessing herself of the land without a repayment of the moneys as agreed in the contract. Grantee brought suit for the same, and at the same time tendered a deed of reconveyance of the land. To his petition setting up substantially the foregoing facts, a demurrer was filed, which was by the trial court sustained. Held, error.

[Ed. Note.-For other cases, see Indians, Dec. Dig. § 15.*1

(Syllabus by the Court.)

Error from District Court, Seminole County; A. T. West, Judge.

Action by Henry M. Tate against Phoebe Gaines. Judgment for defendant, and plaintiff brings error. Reversed and remanded. J. A. Baker, for plaintiff in error. Crump, Rogers & Harris, for defendant in error.

DUNN, J. On June 1, 1906, there was filed by plaintiff in error, as plaintiff in the court below, a complaint at law in the office of the clerk of the United States Court for the Western District of the Indian Territory, in which it was alleged: That on the 29th day of October, 1901, defendant, for a good and valuable consideration, sold, transferred, and delivered to plaintiff a certain tract of land, describing it, in the Creek Nation of the Indian Territory. At the time of the execution of the deed, the parties entered into a contract, in which it was agreed that, in the event the grantor should at any time become dissatisfied or fail to carry out the provisions of the sale or recover the land, she would first repay plaintiff all moneys which he had paid therefor or expended for improvements on the same, less a reasonable sum for rent thereof. That under and by virtue of these agreements, plaintiff entered into possession of the land, broke and cleared it at an expense, which, including the price paid for the same, amounted to $858. That thereafter, and in 1903, the defendant caused the Indian agent to remove the plaintiff from

*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

cause of the absence of the exercise of a right of which his grantor was in full possession. There was nothing, however, illegal in this transaction-no act upon which

the land and repossessed herself thereof, and that she and her successors and assigns had continued in possession to the date of the . bringing of the action. The contract referred to, which was signed by both grantor the state visited its condemnation by penand her husband, provides that: "Whereas, said sale is against the provisions of the law; and, whereas, said H. M. Tate, has in good faith paid us a valuable consideration, and we have in good faith sold the said land to the said H. M. Tate: Now this is to further agree with the said H. M. Tate, that if at any time we should become dissatisfied with said sale and fail or refuse to continue to carry out the provisions of said sale, or should we or either of us, our heirs or assigns, ever at any time fail or refuse to carry out the provisions of said sale, or undertake to recover the said land, we or either of us, our heirs or assigns, shall first pay to the said H. M. Tate, his heirs or assigns, all money he has paid for the purchase price thereof and for all improvements the said H. M. Tate shall have made on the said land, less a reasonable amount for rents of said lands for the time he shall have used the same." At the time plaintiff filed his action, he made and executed a warranty deed to the tract of land warranting title thereunder against all persons claiming by, through, or under him, and tendered the same to the defendant.

alty or punishment. That which was done was not malum in se, but was just within the domain of malum prohibitum, upon which the law visited no punishment severer than the declaration that any act seeking to effect a transfer of this land would be void, and that no transfer would be effected-that it was inalienable. Also, the only effect which the deed plaintiff made and tendered to defendant would have would be evidence of his acquiescence so far as he was concerned in defendant's title and to clear the record. It would take nothing from plaintiff which he had, and it would in fact give defendant nothing that she did not already possess. Now, with the foregoing considerations before us, and with a clear understanding of the relationship of the parties, what in fact did they accomplish by their effort to deal? No law, prohibited defendant from acquiescing in plaintiff's possession of the land involved. No law prohibited defendant from inducing plaintiff to improve the land. Both parties knew, as is evidenced and made manifest by the contract, that this was virtually all defendant was yielding and all that plaintiff was securing. Under the contract and the law, defendant yielded possession in præsenti, or from day to day, and plaintiff secured it in the same way. Such a possession creates a tenancy at will.

It is agreed by both parties that under and by virtue of Act Cong. March 1, 1901, c. 676, § 7, 31 Stat. 863, entitled "An act to ratify and confirm an agreement with the Muscogee or Creek Tribe of Indians, and for A case in which a similar question was inother purposes," the land was inalienable volved is Rogers et al. v. Hill, decided by the by the grantor, and that any deed which Court of Appeals of the Indian Territory, reshe made was absolutely void and of no force ported in 3 Ind. T. 562, 64 S. W. 536. In that or effect, as a conveyance, and it is the con- case, as in this, there was an invalid contention of counsel for defendant that no veyance or contract of sale and of the possesrecovery can be had on the contract on which sion of the grantee. The court said: "It has this action is based, for the reason that it been uniformly held that possession under relates to money paid and expended in car- an invalid conveyance or contract of sale rying out a contract, part of which at least creates a tenancy at will, and where a tenwas void; that money so paid or expended ant goes into possession under an invalid cannot be recovered upon the recipient there- lease his tenancy at its inception is merely of exercising the right of repudiation. A a tenancy at will. Hall v. Wallace, 88 Cal. contract which the law denounces as void 434, 26 Pac. 360; Packard v. Railroad Co., is necessarily no contract whatever, and the 46 Ill. App. 244; Lehman v. Nolting, 56 Mo. acts of the parties in an effort to create one App. 549; Howard v. Merriam, 5 Cush. in no wise bring about a change of their (Mass.) 583; McIntosh v. Lee, 57 Iowa, 356, legal status. The parties and the subject- 10 N. W. 895." A "tenancy at will" is dematter of the contract remain in all partic- fined by the Supreme Court of Maine in the ulars just as they did before any act was case of Cunningham v. Holton, 55 Me. 33, 36, performed in relation thereto. So that in as follows: "A "tenancy at will' is an estate the case at bar, when defendant made, exe- which simply confers a right to the possescuted, and delivered to plaintiff her deed to sion of the premises leased for such indefithe tract of land, both parties knew, and are nite period as both parties shall determine held to have known, that no transfer took such possession shall continue. place, that the grantor still owned the land may arise by implication as well as by exand was still entitled to its possession, and press words." So, while the conveyance was that the grantee received naught for the wholly void and of no effect in itself, the money he paid, except the grantor suffered possession of the grantee amounted to a tenhim to go into possession of the land. In ancy at will, not made so by the void conother words, the grantor refrained from ex- veyance, but because out of the effort to deal

grantee of the imputation of and liability for | withstanding the fact that the contract was trespass. In order to secure this possession, ultra vires and void, the bank could not regrantee offered, and had accepted by grantor, tain the bonds without accounting to plaina certain sum of money, and within the tiff for their value. In passing Justice Harunderstanding of the parties grantee was lan said: "It would seem, upon defendant's to improve the land while permitted to re- theory of its powers, to be too clear to admit main in possession. Neither party appar- of dispute that the act of Congress does not ently knew how long this possession would give a national bank an absolute right to recontinue, but both agreed that, when termi- tain bonds coming into its possession by purnated, if by the naked exercise by grantor of chase, under a contract which it was without her inalienable right of repossession, grantee authority to make. True, it is not under a should be repaid, less a reasonable rental, duty to surrender possession until reimbursed that which he had expended. Can this re- the full amount due to it. It has the right payment be enforced? to hold the bonds as security for the return of the consideration paid for them; but when such amount is returned, or tendered back to it, and the surrender of the bonds is demanded, its authority to retain them no longer exists, and, from the time of such demand. and its refusal to return the bonds to the vendor or owner, it becomes liable for their value upon grounds apart from the contract under which it obtained them. It could not rightfully hold them under or by virtue of the contract, and at the same time refuse to comply with the terms of purchase. If the bank's want of power, under the statute, to make such a contract of purchase, may be pleaded in bar of all claims against it based upon the contract—and we are assuming, for the purposes of this case, that it may be-it is bound, upon demand, accompanied by a tender back of the price it paid, to surrender the bonds to its vendor. The bank, in this case, insisting that it obtained the bonds of the plaintiff in violation of the act of Congress, is bound, upon being made whole, to return them to him. No exemption of immunity from this principle of right and duty is given by the national banking act."

Mr. Page, in his recent work on Contracts, volume 1, at section 510, says: "If A. makes a promise to B., consisting of two or more covenants upon valuable and legal consideration, and one of the covenants made by A. is void by reason of its subject-matter, but not illegal, then the legal covenant can be enforced whether the contract is severable or inseverable." And at section 543 the same author says: "If a contract is merely void as distinguished from illegal, a contract collateral to it and in aid of it is not thereby invalidated. This follows from the rule that a void covenant in an inseverable contract does not invalidate the remaining valid covenants." To our minds the principle enunciated in the foregoing quotations is applicable to the relationship existing between the parties in the case at bar, and there is no reason we can perceive why the defendant, having secured from plaintiff under the arrangement mentioned in this case the money and property involved, should be permitted, upon repossessing herself of the consideration therefor, to retain both. A reasonable rental is certainly all that she has a right to claim. To this she agreed when From the foregoing considerations, the she received it, and the overplus of plain-judgment of the trial court is reversed, and tiff's property in her possession does not be- the cause is remanded to the district court long to her, and she should be willing by all of Seminole county, with instructions to set the considerations of honesty, good faith, and aside the judgment heretofore rendered and good conscience, to account therefor. She enter one overruling defendant's demurrer. should not want to keep it if she could, and the law will not permit it if she would.

KANE, C. J., and TURNER, WILLIAMS, and HAYES, JJ., concur.

BIERCE v. STATE NAT. BANK OF MEM-
PHIS, TENN.

(Supreme Court of Oklahoma. Nov. 9, 1909.)
PRINCIPAL AND AGENT (§ 146*)-UNDISCLOSED
PRINCIPAL-LIABILITY OF AGENT-NATION-
AL BANKS-CROSS-COMPLAINT.

A case somewhat similar to the one at bar is that of Logan County National Bank v. Townsend, 139 U. S. 67, 11 Sup. Ct. 496, 35 L. Ed. 107, which was a case in which the Logan County National Bank purchased from Townsend certain bonds of Logan county, Ky., under an agreement that it would, upon plaintiff's demand, replace to him at the price paid or less; that, on demand being made on the bank, it refused to comply, setIn an action brought by a nonresident nating up that its agent had no right, author- tional bank to recover judgment upon a negoity, or power to make the contract set out in tiable promissory note, transferred to it in due the petition; that the same was a gambling ring that plaintiff was not the owner of the note course, the defendant responded by answer avertransaction and a dealing and betting upon in suit and not the real party in interest, and the future value of the bonds, and it was by a cross-petition setting up a transaction beurged that the act was ultra vires the power in which he averred that the payee was indebted tween himself and the original payee of the note, of the bank and void. The Supreme Court, to him largely in excess of the amount due in rejecting these contentions, held that, not-upon the note, and that the plaintiff bringing

the action on the note was the agent of the payee, its undisclosed principal, and hence was liable for the full amount due from the payee to the defendant. To this cross-petition a demurrer was filed, which was sustained by the trial court. Held not error.

[Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 521-526; Dec. Dig. 8 146.**]

(Syllabus by the Court.)

Error from District
District Court,
County; B. F. Burwell, Judge.

[a sum in excess of $31,000, which the defendant avers Porter owes him; that, upon the maturity of the note here in suit, James K. Porter, as indorser, paid the amount due thereon to the bank, which delivered the same to Porter, and the note thereupon became the property of Porter and subject to any offset or defense which defendant might make against him; that the defendant reOklahoma fused to pay the amount due on said note to said Porter and informed the plaintiff of the offset which he claimed against said note in the hands of said Porter; that thereupon the plaintiff and the said Porter entered into a collusive agreement, in which it was agreed

Action by the State National Bank of Memphis, Tennessee, against W. W. Bierce. Judgment for plaintiff, and defendant brings error. Affirmed.

Flynn & Ames, for plaintiff in error. Har- that this action be brought on the note in ris & Wilson, for defendant in error.

the name of the bank in order that the said Porter might avoid subjecting himself to the jurisdiction of this court, and to the liability to respond in damages to this defendant on account of the transaction above mentioned; and that the bank in this proceeding is acting as the undisclosed agent of Porter, and hence is liable to the defendant for damages alleged to be due him from Porter. To the cross-petition counsel for plaintiff filed a general demurrer, which was by the court sustained, and to reverse this ruling the cause was taken on error to the Supreme Court of the territory of Oklahoma, where it was pending at the time of the admission of Oklahoma as a state and is now before us for determination by virtue of the terms of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267) and schedule to the Constitution.

DUNN, J. This action was begun in the district court of Oklahoma county by the defendant in error, as plaintiff, on the 2d day of April, 1906, filing its petition, in which it asked judgment upon a certain promissory note given by plaintiff in error, W. W. Bierce, to James K. Porter, in the sum of $4,333.34, on March 2, 1901, at Memphis, Tenn., and due 5 years after date. The said note, prior to maturity and for value, was indorsed by the said Porter to the plaintiff, and, the same not having been met at its maturity, this action was brought. To the petition the defendant filed an answer and cross-petition. The answer admits the making, execution, and delivery of the note, but denies that the plaintiff was at the time of the commencement of the action the owner or legal holder The proposition insisted on by counsel for thereof, or that it had been at any time plaintiff in error is certainly a novel one, since the commencement of the action such upon which counsel for both parties readily owner or holder, and hence that it was not concede they have been unable to find any the real party in interest and entitled to authority in point, and the brief of neither maintain the action. It was further averred of them contains any citation to case or that, during all of the time the said note was text on the subject; and we will say that held by plaintiff, the original payee, James our investigation for precedent has resulted K. Porter, was the indorser, and liable there- no better. Counsel for plaintiff in error inon, and also director in plaintiff bank, and voke the rule that, where an agent acts in that on the maturity of the said note it was his own name without disclosing his principaid in full by the said defendant, Porter, pal, the other party to the contract can eiand upon such payment was delivered to him, ther hold the undisclosed principal or the and that he has ever since been the legal agent himself, and that, where such an agent owner and holder thereof, and that the is guilty of fraud, he is liable personally for plaintiff has no interest in the cause of ac- the fraud. We do not understand the law tion sought to be pleaded, and is not entitled rendering liable the agent who acts for an to maintain this action. Defendant further undisclosed principal has ever been carried averred that he had a complete and valid to the extent that is here contended. The defense and offset to said note as against reason for the rule is that, generally speakthe said Porter, which defense was more ing, every contracting party has the right to fully set up and described in the cross-peti- choose for himself those with whom he deals, tion. The cross-petition set up in detail the and if a party acting for another fails to distransaction which the defendant alleges took close to the one with whom he deals the fact place between himself and said Porter two of his agency, but misleads the party into the years subsequent to the date of making exe- belief that he is himself the sole contractor cution and delivery of the note in suit, in and is acting for himself, then he is estopped which it is alleged that by misrepresentation to deny the reality of the assumed characand deceit Porter induced Bierce to part with ter. The party with whom he deals, being certain property and money amounting to led to believe by him that he was dealing

« PreviousContinue »