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Vol. I.]


[No. 3.

that its execution was attended with hazard to life or limb, and that a prudent man would not have ordered the boy to execute it.

It is apparent, from these findings, if the rule of the master's exemption from liability for the negligent conduct of a co-employé in the same service be as broad as is contended for by the plaintiff in error, that it does not apply to such a case as this. This rule proceeds on the theory that the employé, in entering the service of the principal, is presumed to take upon himself the risks incident to the undertaking, among which are to be counted the negligence of fellow-servants in the same employment, and that considerations of public policy require the enforcement of the rule. But this presumption cannot arise where the risk is not within the contract of service, and the servant had no reason to believe he would have to encounter it. If it were otherwise, principals would be released from all obligations to make reparation to an employé in a subordinate position for any injury caused by the wrongful conduct of the person placed over him, whether they were fellow-servants in the same common service or not. Such a doctrine would be subversive of all just ideas of the obligations arising out of the contract of service, and withdraw all protection from the subordinate employés of railroad corporations. These corporations, instead of being required to conduct their business so as not to endanger life, would, so far as this class of persons were concerned, be relieved of all pecuniary responsibility in case they failed to do it. A doctrine that leads to such results is unsupported by reason and cannot receive our sanction.

The injury in this case did not occur while the boy was doing what his father engaged he should do. On the contrary, he was at the time employed in a service outside the contract and wholly disconnected with it. To work as a helper at a moulding machine, or a common work-hand on the floor of the shop, is a very different thing from ascending a ladder resting on a shaft, to adjust displaced machinery, when the shaft was revolving at the rate of 175 to 200 revolutions per minute. The father had the right to presume, when he made the contract of service, that the company would not expose his son to such a peril. Indeed, it is not possible to conceive that the contract would have been made at all if the father had supposed that his son would have been ordered to do so hazardous a thing. If the order had been given to a person of mature years, who had not engaged to do such work, although enjoined to obey the directions of his superior, it might with some plausibility be argued that he should have disobeyed it, as he must have known that its execution was attended with danger; or, at any rate, if he chose to obey, that he took upon himself the risks incident to the service. But this boy occupied a very different position. How could he be expected to know the peril of the undertaking? He was a mere youth, without experience, and not familiar with machinery. Not being able to judge for himself, he had a right to rely on the judgment of Collett, and doubtless entered upon the execution of the order without apprehension of danger. Be this as it may, it was a wrongful act on the part of Collett to order a boy, of his age and inexperience, to do a thing which in its very nature was perilous, and which any man of ordinary sagacity would know to be so. Indeed, it is very difficult to reconcile the conduct of Collett with that of a pruVol. I.]

MAY v. Mar.

(No. 3.

dent man, having proper regard to the responsibilities of his own position and the rights of others. It is charitable to suppose that he did not appreciate the danger, and acted without due deliberation and caution. For the consequences of this hasty action, the company are liable, either upon the maxim of respondeat superior, or upon the obligations arising out of the contract of service. The order of Collett was their order. They cannot escape responsibility on the plea that he should not have given it. Having intrusted to him the care and management of the machinery, and in so doing made it his rightful duty to adjust it when displaced, and having placed the boy under him with directions to obey him, they must pay the penalty for the tortious act he committed in the course of the employment. If they are not insurers of the lives and limbs of their employés, they do impliedly engage that they will not expose them to the hazard of losing their lives, or suffering great bodily harm, when it is neither reasonable nor necessary to do so. The very able judge who tried the case instructed the jury on the point at issue in conformity with these views, and we see no error in the record. 2 Dillon C. C. R. 259.

The judgment is affirmed.
Mr. Justice BRADLEY dissented.

course of the employés, they do impir lives, or suffering.

The very


[TO APPEAR IN 109 Mass.]



A man of wealth and having no family dependent on him, under guardianship as insane, should be allowed those luxuries which he desires and can enjoy, which are unobjectionable in themselves and would be proper and reasonable expenditures

for a sane man in a similar position. A guardian of an insane man whose estate was worth over $200,000 spent four hours

three times a week in visiting and dining with his ward, and superintending the management of his house and grounds ; and the ward's spirits and condition were much improved by the visits. Held, that a monthly charge of $100 for personal services, besides a commission of five per cent. on the income collected, should be allowed to the guardian ; but that an additional charge of $100 for attending court should be disallowed, as should also a charge of $200 for attending the ward on two journeys of a fortnight each, which were undertaken partly on account of

the guardian's oron business. The additional compensation, if any, allowed to a guardian for changing investments of his ward's property, or making repairs thereon, should not be by way of commissions on the amount invested or expended. A guardian who makes up his accounts monthly may charge his ward's estate each

month with his commissions on the amount collected in that month, and with a month's interest on a balance from the preceding month in his own favor, and may carry the balance to the next month.

Vol. I.

MAY v. Mar.

(No. 3.

THE FIRST of these cases was an appeal by Josephine May, Ernestine May, James B. Bradlee and his wife Mary P. Bradlee, George P. May, and Edwin May, next of kin of Frederick May, an insane person, from a decree of the judge of probate, rendered March 22, 1870, authorizing Frederick W. G. May, his guardian, to build a stable on the estate of the ward at an expense not exceeding $10,000, and to sell personal estate of the ward sufficient to defray the expense. The reasons of the appeal were, that the expenditure was extravagant, and was not needful for the comfort of the ward.

The second case was an appeal by the same persons from a decree of the judge of probate, rendered February 8, 1870, allowing the third account of the guardian. The reasons for the appeal were, that the amounts charged in the account for the services, commissions, and expenses of the guardian, in the care of the person and property of his ward, were excessive and unreasonable.

Both appeals were heard in June, 1871, before Ames, J., who reported the evidence and all questions of law therein for the determination of the full court. The following is the substance of the report:

Many witnesses were called and examined by the appellee, and crossexamined by the appellants. No witnesses were called by the appellants.

It appeared that in 1844 Joseph Ballard was appointed guardian of Frederick May, and by the inventory then filed by him the ward's property amounted to $92,748; that in 1862 Ballard was removed, and the next year the appellee was appointed guardian, and by the inventory then filed the ward's property amounted to $202,025 ; that the appellee filed his second account on September 1, 1865, which showed a balance due to him from his ward of $8, 510, and was duly allowed ; that the account now in question was filed on July 1, 1868, thus covering a space of thirtyfour months, and showed a balance due to the guardian of $15,382 ; that the amount due to him remained about the same at the time of the hearing, and the debts then due from the ward's estate to other persons amounted to about $12,000; that the property of the ward, as inventoried at the time of the filing of this account, was $207,977, including a parcel of real estate of six acres in Medford, on which the ward lived, which was inventoried at $40,000, its cost, and would now sell for only $25,000 or $30,000, but including also other property which was worth more than the inventoried value ; that the annual income of the ward, during the time covered by this account, was about $14,000 a year, from which repairs, taxes, insurance, and interest on debt were to be deducted ; that the ward was a bachelor, about sixty-five years old, not fit to take care of himself or his property, but of peaceable disposition, of considerable intelligence, and very fond of animals, especially of horses; that his principal amusement was driving ; that the stable at present on his estate was too small to hold his horses and carriages, and wholly out of keeping with his house and the rest of his establishment; that the stable which it was proposed to build was to be of brick, covering 2,220 square feet of ground, and twenty-five feet high to the ridge pole, and would cost about $10,000 ; that it would increase the value of the estate, though not to the extent of its cost; that the ward was intensely interested in having the new stable built, and complained bitterly of his present stable; that he was not on

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Vol. I.)

May v. Mar.

[No. 3.

terms of intimacy or even friendship with any of his next of kin; that Edwin May, one of the appellants, was dead; and that the other appellants were persons of large fortune except George P. May, who had a wife and two children and a settled income of $2,000 a year.

The account in question showed that the gross amount collected during the time covered by it was $39,658, and the appellee charged a commission of five per cent. thereon, amounting to $1,982.90, as appeared by the first item in a statement made up from the account.

The appellee, in the account, charged $100 a month for personal services, as appeared by the fourth item in said statement. It appeared that he visited and dined with his ward three times a week, travelling from Boston to Medford and spending four hours each time, one of which was passed in the travelling ; that the ward had a housekeeper at a salary of $1,000 a year, who took care of the house, but the appellee took charge of all out-of-door matters and the affairs of the ward generally; and that the spirits and mental condition of the ward had greatly improved while he had been under the guardianship of the appellee.

The appellee charged $100 for attendance at the probate court and at this court, and also $200 for attending his ward on two journeys, of a fortnight each, one in September, 1866, and the other in June and July, 1867, as appeared by the fifth item in said statement. The appellee testified that he took these journeys for business of his own ; that the ward wanted to go with him ; that had he gone on his business alone he would not have been away more than two or three days each time; and that he extended the trips on his ward's account.

The appellee charged in his account $114 as a commission of three per cent, on a sale of real estate for $3,800, and investment of the proceeds, as appeared by the second item in said statement.

The account showed that during the time covered by it $20,084 were spent in remodelling the ward's house, and $2,702 in repairs on other estates, and on these two sums the appellee charged a commission of five per cent., amounting to $1,139.30, as appeared by the third item in said statement.

The account was made up monthly, the appellee crediting the ward's estate with the amounts collected by him, and charging it with the amount expended for the ward, and also with his own commissions for the monthly collections, and a month's interest on the balance due to him from the estate at the end of the preceding month. The balance, which was always in his favor, was carried to the next month.

T. H. Sweetser f G. W. Phillips, for the appellee.
E. D. Sohier f °C. A. Welch, for the appellants.

AMES, J. The ward in this case is an unmarried man, about sixty-five years of age, and the owner of a large amount of property, yielding an income of at least $12,000 annually. Nobody can be said to be dependent upon him, or to have an interest in the final disposition of his estate, in any such sense as to need any special or peculiar protection from the law. His immediate relatives are all of them persons of large property, and he does not appear to be connected with any of them by any close ties of intimacy or friendship. He is put under guardianship, partly for the constant direction and care of his personal habits, and attention to his wants, (No. 3.

Vol. I.)

May v. May.

and partly because he has not sufficient intelligence for the transaction of business and the management of his property. The guardian is appointed for the welfare, comfort, and security of the ward ; and not for the increase of the estate in his hands by accumulations from the income, in order to enlarge the wealth of remote or collateral relatives who may ultimately succeed to the inheritance. It is no part of his duty to diminish the reasonable comforts of his ward, or to prevent him from enjoying such luxuries, or indulging such tastes, as would be allowable and proper in the case of a man similarly situated in other respects, but in the full possession of his faculties.

In Oxenden v. Compton, 2 Ves. Jr. 69, Lord Eldon says that in the management of the estate the guardian should attend “ solely and entirely” to the interest of the owner, without looking to the interest of those who, upon his death, may have eventual rights of succession ;. " and nothing could be more dangerous or mischievous than for him to consider how it would affect the successors," as the ward is the only person he is bound to take care of. He adds that the court will always shut out of view all eventual interests, and will consider only the immediate interests of the person under its care. To the same general effect are the other cases cited by the appellee, of Ex parte Baker, 6 Ves, 8; Dormer's case, 2 P. W. 262; Ex parte Whitbread, 2 Meriv. 99; In re Persse, 3 Molloy, 94; Kendall v. May, 10 Allen, 59.

The case finds that the ward is fond of domestic animals; that the keeping and use of horses is the principal comfort and enjoyment of his life, if not absolutely necessary to his health ; and that the stable accommodations which he now has are scanty, and not at all in keeping with his dwelling-house and domestic establishment generally. Under such circumstances, the question is not whether the proposed outlay for the construction of the new stable is strictly judicious and expedient in an economical sense ; nor whether a trustee, acting for the benefit of minors, and bound to increase the fund in his hands by all proper means, would be justified in incurring such an expenditure ; but whether it would be unreasonable and extravagant to allow such an investment from this particular estate. We do not think that when the management of the property is taken out of the ward's hands for his own good, the law intends to deprive him of the enjoyment of his wealth, except so far as the necessity of the case absolutely requires. We see no reason why the wishes and tastes of the ward may not properly be considered in such cases, provided the expenditure is for a purpose that is unobjectionable in itself and can be afforded without material inconvenience to his financial position, especially where there is neither wife nor child whose interests can be affected unfavorably. It could not be said to be an unreasonable expenditure for a man of like fortune and circumstances not under guardianship; and we think that the fact of guardianship furnishes no sufficient ground, in the present case, for its disallowance. The decree of the judge of probate in this respect is therefore affirmed.

With regard to the guardian's account, the charge of five per cent. upon the gross amounts collected is not objected to by the appellants. The charge of one hundred dollars per month, for the services of the guardian in the personal charge of the ward, although apparently somewhat large,

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