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entitled to recover, even if the defendant has shown and in an action for his services a physician by a preponderance of the evidence that the death is not required, under the law, to prove the neof Albert Musson was caused or superinduced by cessity of his making the number of visits that the use of intoxicating liquors, narcotics or opiates, if you likewise believe from the evidence that the he makes, and for which he is seeking comsaid Albert Musson took the intoxicants, opiates or pensation." On appeal, the Supreme Court narcoties under the advice of his physician, and affirmed the judgment for the plaintiff, the in the manner and amounts prescribed by his doctrine of an earlier case being approved, in physician."
which it was said: “Where a physician is It was argued that the advice of a physi- called by a person to treat him or his wife, cian in the case would be no protection, the and he takes charge of the case and attends contract being plain that if death was caused from day to day, evidently, in view of his by the use of narcotics, there could be no responsibility for skilful and proper treatment, recovery. In sustaining the contrary view of he must, in the first instance, determine how the learned trial judge, the Supreme Court often he ought to visit the patient, and, so cited Insurance Co. v. Ward (140 U. S. 76-91; long as the person employing him accepts his II Sup. Court, 720; 35 L. Ed. 371). In the services, and does not discharge him or latter case it was held that strong drink, taken require him to come less frequently, or fix the in good faith under medical advice and for times when he wishes him to attend, he cannot medical purposes, was not a violation of the afterwards be heard to say that the physician condition in the policy similar to the one now came oftener than was necessary. There was under consideration. In that case the court no proof that the claimant came when he was said:
forbidden to come, or that he was discharged " It is in evidence that the assured did take alco- and continued to attend thereafter.” We holic stimulants under medical advice, and, if his
agree taking them was only under such advice and only Law Journal, in the opinion that the Illinois
with our contemporary, the New York in such quantities as were prescribed by a physician, even if impairment of health followed, it court has stated somewhat too broadly the would not avoid the policy; and, if his impairment rule that a physician is himself the proper of health was caused by a strict, fair and bona fide judge of the necessary frequency of his visits following of the doctor's prescription, then the
to a patient. Though the physician, doubtpolicy would not be avoided. It appears that these narcotics, as well as other drugs, are used by physi- less, is, in the first instance, the proper one to cians to counteract diseases such as the assured had, determine how often he ought to visit a and though all are, to some extent, poisonous, yet patient, it seems to be going too far to hold the effect is to prolong life and relieve the afflicted that the latter “cannot afterward be heard to party for the time being, so that the use of such
say the physician came oftener than was necesdrug, under the advice of a physician and according to directions, without excess, could not be con
sary;" even though it could be shown, to the sidered a violation of the terms of the policy, but satisfaction of court and jury, that the illness a duty of the assured.”
of the patient had been grossly exaggerted
I and the visits of the physician unnecessarily Another interesting adjudication, with frequent. reference to physicians, is embodied in the decision of the Supreme Court of Illinois, in The Supreme Court of Cape Colony Ebner v. Mackey, in which the claim was by recently considered a somewhat novel applia physician for professional services. The cation which had been made on behalf of the question at issue was whether a physician can Law Society to strike the name of Wr. O. S. regulate the number of calls which he should Termooten off the list roll of attorney's and make or should wait for a direction by his solicitors on the ground of professional mispatient. On the trial the jury was instructed conduct. Mr. Vermooten had been duly that, “ as a matter of law, the physician attend- admitted as an attorney and notary of the ing a patient is the proper and sole judge of court, and had taken the oath of allegiance to the necessary frequency of the visits to his Her Majesty the Queen. He had, however, patient, so long as the patient is in his charge; at the Criminal Sessions, held at Grahamstown, been indicted for high treason, found gage on his stock is not libelous per se (Newhold v. guilty and sentenced to four years' imprison- Bradstreet, 57 Md. 38; Dun v. Maier, 27 C. C. A. ment by the presiding judge. The acting 100, 82. Fed. 169). Nor is it libelous per se to pub
lish of a merchant that a judgment has been chief justice, the Hon. Justice Buchanan, in recovered against him (Woodruff v. Bradstreet Co., pronouncing judgment, said:
N. Y., 22 N. E. 354, 5 L. R. A. 555). The stateThe respondent in this case has been tried before ments made in the financial report, which is the a judge and a jury on a charge of high treason, subject of the plaintiff's complaint, so far as they when he was convicted and sentenced to four years' relate to the mortgage, which he is said to have imprisonment, and the explanation which has been given, contain nothing which is discreditable to him, made on his behalf in his affidavit to-day I see was either as an individual or as a merchant. For a fully laid before the court then. He gave his own
merchant to secure his creditor by mortgage upon evidence fully in extenuation, and, although there his stock is neither discreditable nor dishonest, and was some remark made by the prosecuting counsel, there is nothing in such an act which is calculated there was a certain importance in the fact that the to hold the merchant up to public ridicule or conjudge who tried the case imposed a serious sentence, tempt. It might be otherwise, if the charge had no less than four years. As an attorney of this been that the plaintiff had made a fictitious mortcourt, the respondent, on his admission, took the gâge, or that he had executed a mortgage to a oath of allegiance, and when he violated his oath bona fide creditor and had colluded with him to and was convicted of having done so the Law withhold the same from record in order that the Society was justified, and very properly brought his goods of others might be fraudulently brought under conduct before this court to ask for his suspension. the lien of the mortgage, or, if it had been stated A person like respondent was not in a position to that he had given a mortgage for the purpose of plead ignorance or inexperience, as he was a man giving a preference in violation of the Bankrupt who had studied the law and passed examinations in Law. To execute a mortgage, which was founded law, and knows the law, not only practically, but upon no consideration, with the understanding that from actual study. He acted as an attorney and the same was to be used by one to whom the person took the oath of allegiance to Her Majesty the purporting to be the mortgagor owed nothing, Queen, but in spite of his knowledge of the law, would, if used to the detriment of creditors or practically, as well as theoretically, and in spite of others, amount to a gross fraud. Withholding from his oath of allegiance taken in open court to be a loyal record a mortgage taken in good faith, for the pursubject of Her Majesty, he now stood in his present pose of misleading those to whom the debtor will position. It was a very serious matter for a person apply for credit, is a badge of fraud. Under the in his position. At the same time the youth of the Bankrupt Act of 1898, the transfer by a debtor, respondent and his severe punishment will be taken while insolvent, of any portion of his property, to into consideration, and all the court will do at one or more of his creditors, with the intent to present is to order that the respondent be suspended prefer such creditors from other creditors, would from practice as an attorney and notary public until be an act of bankruptcy (Fost. Fed. Prac. sec. 72). a further order of the court, and the respondent But, even if charging any of these acts would make must hand up his certificate of admission to the the publication a libel, there is nothing in the Registrar of the Supreme Court. Their lordships language used in the present case which would (Mr. Justice Maasdorp and Mr. Justice Solomon) justify an inference that it was the purpose of the concurred.
defendants to charge any of these acts.
Was the statement that the plaintiff did not seem Notes of Cases.
to have succeeded “in obtaining the implicit confi
dence of local people," and that he was “ looked Libel What Constitutes.- In Dun v. Wein- upon locally as an itinerant trader, of small financial traub, decided by the Supreme Court of Georgia in responsibility and uncertain prospects," libelous July, 1900, it was held that to publish of a merchant per se? Whether it would be libelous to say of a that he has given a mortgage lien upon his stock merchant that he is an itinerant trader, we will not of goods, though the same does not appear of stop to inquire, as, under the view we take of the record, is not actionable, without allegations of present case, it is unnecessary to decide this quesspecial damage.
tion. To say of a merchant that he has not sucIt was further held that to publish of a merchant ceeded in obtaining the implicit confidence of his that he has "succeeded in obtaining the neighbors, coupled with the statement that he is a implicit confidence of local people," and that “he man of small means and of uncertain prospects, is looked upon locally as an itinerant trader, of would be, to say the least of it, placing the individual small financial responsibility and of uncertain thus spoken of in a position which is neither enviprospects," is, if false, libelous per se. The court | able nor desirable, and would be calculated to injure said, in part:
him in the estimation of the business men of other To write of a merchant that he has given a mort-'communities with whom he might be compelled to
come in contact. The words imply that he has | self from liability for the negligence of the wrongmade an effort to secure the confidence of his doer on the ground of independent relation, even neighbors, and for some reason has failed to attain though such wrongdoer was a competent and fit this end, and that on this account, coupled with the person to do the work, and was acting under a fact that he is a man of small means, his future contract to do the specific act, and not as an ordisuccess is doubtful. Such statements, in reference nary employe (2 Thomp. Neg. 909). And, where to a merchant, could have but one effect upon his he has the right to control the work or the conduct business, and that is to seriously injure, if not of the workmen, whether they be working under an destroy, his credit in those markets where the char- independent contractor or not, the doctrine of acter thus given to him precedes his applications for respondeat superior applies, and he is liable for incredit. Such statements, in reference to a merchant, juries to persons caused by the negligence of such when false, are libelous per se, as we understand the workmen (Rait v. Carpet Co., 66 Minn. 76, 68 law. The Code declares that charges made of N. W. 729). And, again, “a contractor may be another, in reference to his trade, office or profes- employed to do a particular job, under circumsion, calculated to injure him therein, are slander- 'stances which leave the proprietor charged with ous, without proof of special damage (Civ. Code, the duty which regularly attaches to him to see that sec. 3837). And, as said by the present chief justice the work does not endanger the safety of others ” in Hardy v. Williamson (86 Ga, 557, 12 S. E. 876); / (2 Thomp. Neg. 907; Homan v. Stanley, 66 Pa. St. “If this be true, as to mere slander, much more is it 464; Pickard v. Smith, 10 C. B., N. S., 470). There true as to written defamation." (See, also, Brown
can be no question in this case but that so long as v. Holton (Ga.), 34 S. E. 717, 13 Am. & Eng. Enc. defendants kept their place of business open to Law (1st ed.], 314; Newell, Defam., 2d ed. pp. 74, | customers, and invited and permitted them to enter 193; Odgers, Lib. & Sland., p. 77; Price v. Conway, therein to trade, they owed a duty to such custom134 Pa. St. 340, 19 Atl. 687, 8 L. R. A. 193.) iers to keep the same in a reasonably safe condition
and free from danger to personal injury (Dean v. Shopkeeper — Duty to Maintain Safe Place
Depot Co., 41 Minn. 360; 43 N. W. 54; 5 L. R. A. Independent Contractor.— In Corrigan v. Elsinger, ' 442; Engel v. Smith (Mich.), 46 N. W. 21; Emery decided by the Supreme Court of Minnesota in v. Exposition, 56 Minn. 460; 57 N. W. 1132; Pelton August, 1900, it was held that a shopkeeper, so long v. Schmidt (Mich.), 62 N. W. 552). And they as he keeps his shop open to customers, and invites could not shift such duty upon some other person and permits them to enter therein to trade, owes a' (Jag. Torts. 90). It affirmatively appears from the duty to them to keep his store and place of busi- ' evidence that on the day and at the time of the acciness in a reasonably safe condition, and free from dent to plaintiff the defendants' store was open to danger to personal injury, and he cannot avoid this the public, and defendants were engaged in the conduty, or be relieved therefrom, by permitting an | duct of their business, receiving and trading with independent contractor to enter his store at such customers, and there is no suggestion that they had time to perform a contract with the shopkeeper. surrendered the control of the store, or any part The court said, in part:
thereof, to the Blossom Company; nor does it “ Defendants seek to avoid liability on the theory appear that defendants did not have the right to rethat the Blossom Company was an independent quire that the counter be placed in the store after contractor, having exclusive charge and control of business hours, when no customers were in or the work in the performance of which plaintiff was about the place. Having permitted the counter to injured, and that no responsibility attached to de- be moved into the store during business hours, and fendants for its conduct or the conduct of the at a time when customers were there trading, it agents, it not appearing that the contract, or the was defendants' duty to take charge of the work or means of its performance, was in itself dangerous of the workmen, and see to it that no injury reor likely to lead or result in injury to others. We sulted to or was inflicted upon any of such customhave fully considered the very well and carefully ers; and, having failed in this duty, they are clearly prepared brief of counsel for appellants, but are liable. The court below submitted the case to the unable to concur with him on this branch of the jury on this theory of the law, and there was no
The test by which to determine whether the error in the charge. The requests to charge were person who negligently causes injury to another properly refused, even if we overlook the fact that was acting as an agent or employe of the person they were not presented to the court at the proper sought to be charged, or as an independent con- time. They proceeded on the theory that defendtractor, is, did the person so sought to be charged ants were relieved from liability on the ground of have the right to control the conduct of the independence of contract; and, for the reasons we wrongdoer in the manner of doing the actre- have stated, such defense was not available to them sulting in such injury? (Gahagen v. Aermotor because they could not thus avoid the duty they Co., 67 Minn. 252; 69 N. W. 914). If he owed to plaintiff as one of their customers. They had such right, either as to the time, place or were bound to keep such store in a reasonably safe manner of doing the act, he cannot absolve him-l condition, and the mere fact that they had contracted with the Blossom Company to construct charge of the court did not fairly present the case to and place the counter in the store could not change the jury. It must have been quite satisfactory to the such duty.
counsel who represented the defendant upon the
trial, for the record does not show a single excepNEGLIGENCE.
tion to the charge, or any request for further or
fuller instructions. It is conceded that the law was WHEN DAMAGES FOR INJURY TO CHILD Not Ex- properly stated to the jury, but the charge is now CESSIVE — EXCLUDING CONDUCTOR'S Written criticised as having unduly magnified the theory REPORT – CHARGE OF COURT.
i of the plaintiff upon the trial and unduly minimized
the evidence presented by the defendant," so that it New York SUPREME Court, APPELLATE Division, is said that “the evidence offered by the defendant SECOND JUDICIAL DEPARTMENT.
was practically withdrawn from the consideration
of the jury.” July, 1900.
The language of the charge does not seem to us Present - Hons. WILLIAM W. GOODRICH, P. J.;
to justify this criticism. On the contrary, its tone WILLARD BARTLETT, JOHN WOODWARD, MICHAEL
throughout was extremely fair, and we cannot perH. HIRSCHBERG and ALMET F. JENKS, JJ.
ceive that the learned judge said anything or omitHOWARD WILLIAMSON, an Insant, by Louise Wil-, ted anything to the prejudice of the defendant. The LIAMSON, His Guardian ad litem, Respondent, v.
accident occurred, according to the testimony of the THE BROOKLYN Heights RAILROAD, Appellant. plaintiff's witnesses, by reason of the fact that the
fender of the car projected over the sidewalk upon Appeal by the defendant from a judgment of the which the boy was standing and swept him off his Supreme Court on a verdict in favor of the plaintiff, feet. As to this occurrence the court instructed which judgment was entered in the office of the the jury that it was not negligence in itself for the clerk of Kings county on the 16th day of February, company to permit its fender to pass over the top 1900, and also from an order entered in the same of the curbstone. Certainly, this instruction was office on the 26th day of February, 1900, denying highly favorable to the defense; and the court was the defendant's motion for a new trial.
careful in other respects to protect the rights of the John L. Wells for appellant; Thomas E. Pearsall defendant, as, for example, at the close of the for respondent.
charge, where the jury were cautioned not to punish
the railroad company, if they rendered a verdict in WILLARD BARTLETT, J. - The plaintiff was
favor of the plaintiff, by adding anything to their over by one of the defendant's cars in the borough
award by way of exemplary damages. of Brooklyn, on September 25, 1899, and so badly The conductor of the car by which the plaintiff injured that he was compelled to suffer two ampu
was injured was a witness for the defendant, and tations, the first removing the lower portion of the testified that the accident occurred in consequence left leg at a point about three inches below the knee, of the boy's attempt to board the car. At the time joint, and the second operation destroying the knee of the trial the witness was no longer in the emjoint and all below it. This suit was brought to re- ployment of the railroad company, and he stated, cover damages for the negligence of the defendant upon cross-examination, that he had been disin inflicting such injury, and it resulted in a verdict charged for having an unsatisfactory register acfor $22,500.
The defendant complains of this verdict count, and that before his discharge he was sent for as excessive, and also argues that the charge of the to go down to the office of the defendant and make trial judge did not fairly present the case to the a statement as to the accident, which he did. Upon jury.
his redirect-examination he identified a paper as the The boy was eleven years old at the time of the statement or report which he made to the company accident, and had always previously enjoyed good in regard to the accident, and that paper was offered health. He lived with his mother, who a in evidence in behalf of the defendant, but was exwidow, and he was attending the public school in cluded by the court. The exception to this ruling the neighborhood of his mother's residence. It is presents no error. The mere fact, brought out on manifest that the pain resulting from the injury and cross-examination, that the witness had made a refollowing the two amputations was extreme, and port of the circumstances of the accident, did not the permanent disability arising from the loss of his entitle the defendant to prove the contents of such leg will put the plaintiff at a serious disadvantage report. The excluded statement is submitted to us physically when he arrives at manhood and enters on a separate sheet, apart from the appeal-book, and into the competition of life. The former General is not certified as a portion of the record. AssumTerm has sustained verdicts as large as this for ing, however, that it is thus laid before us by consimilar injuries to children; and, although the sent of counsel, we do not see how the exclusion amount of the recovery is certainly large, we are of the report could have been harmful to the denot prepared to say that it ought to be reduced. fendant in any point of view. The statement gives
Nor can we accede to the proposition that the substantially the same account of the accident as
was given by the witness upon the trial, but there the dissatisfied creditor insists that the reieree was no suggestion by plaintiff's counsel that the erred in appointing the candidate of the majority in witness had ever described the occurrence differ- number. He also objects to the action of the refently, and, indeed, the jury could hardly have drawn eree in refusing to permit his attorney to vote at the any inference from the circumstance that the con- meeting without producing a written proxy. The ductor was required to make a statement concern- | meeting was adjourned to enable the attorney to ing the accident before leaving the service of the procure the necessary written authority, and as he railroad company, unless it was that the defendant did not return at the expiration of the time, it exercised a very proper and commendable degree of was clearly in the discretion of the referee to procare in obtaining a written narrative of the facts ceed with the meeting without further delay. His while they were fresh in the mind of the witness. | action in requiring the production of a written letThere is really no view of the case which makes this ter of attorney was proper (In re Blankiein, 3 A. B. paper, or any of the testimony in regard to it, in Rep. 165). any manner material or important to the determina- It seems, however, that the vote of the objecting tion of the issue.
creditor was received and considered by the reieree, Judgment and order affirmed, with costs.
and that he decided to break the deadlock by ap
pointing the trustee supported by the majority in GOODRICH, P. J. (memorandum) – I concur in the number. He thought, and rightly thought, that opinion of Mr. Justice Willard Bartlett, except that further delay would be injurious to the interests of I think that the amount of the verdict was excessive the creditors. It is manifest that he acted entirely and should be reduced.
within the scope of his duty in making the appointment. Creditors, by disagreeing, cannot block the
administration of the estate (In re Hoffler, 3 A. B. THE RIGHTS OF CREDITORS.
Rep. 162). Section 44 of the act expressly provides
that if the creditors do not appoint a trustee the HARLES H. MILLS was appointed trustee in court shall do so, and section 56 limits the votes
bankruptcy of the property of Walter S. Rich- at the meeting to those whose claims are proved ards, lumber dealer of this city, by a vote of the and who are actually in attendance. The referee majority, in numbers, of creditors, but who held was not called upon to consider the claim of credless than half the amount of the claims, by order itors who were not present. There is nothing to of William Lansing, referee in bankruptcy for Al- show that the trustee is not a perfectly proper perbany county, says The Albany Argus. Eugene D. son to act. Vague and inconsequential accusations Flanigan, as attorney for Mr. Richards and Mr. are made, but nothing is said affecting his ability Richards' mother, who was a creditor, having re- or integrity which will justify the court in overrulceived part payment in preference to the general ing the decision of the referee. The action of the creditors, made application to United States Dis- referee is confirmed.” trict Judge A. E. Coxe, at Utica, on September 17 for the reversal of the action of Referee Lansing in
NEGLIGENCE – FAILURE TO GUARD OPEN appointing a trustee. N. B. Spalding appeared in
DRAW OF BRIDGE – INJURY TO BICYCLE opposition. The question involved was as to how
RIDER EVIDENCE CONTRIBUTORY a trustee may be appointed when the bankrupt is
NEGLIGENCE. able to create a deadlock in the meeting of creditors and is one of undeniable interest to all lawyers and
BENEDICT V. CITY OF Port HURON. creditors. Judge Coxe yesterday handed down his decision
Opinion filed September 13, 1900. in the following language, holding in favor of Reieree Lansing's action:
LAINTIFF'S intestate was killed by riding off “ United States District Court for the Northern an open draw of a bridge at night while on a District of New York: In the matter of Walter S. bicycle. A chain, which had been stretched across Richards, bankrupt, upon petition to review the this open draw, as customary, had been run into action of the referee in appointing a trustee. and broken prior to the accident, and the open space Eugene D. Flanigan for the petitioners; N. B. was unguarded. The defense of contributory negliSpalding opposing.- Strictly speaking, there is gence prevailed. nothing for the court to decide, as the referee has Held: That the admission of evidence showing not certified the question presented, but, as this that the deceased had ridden his bicycle against the omission can probably be supplied, the matter may chain upon this bridge upon other occasions and had as well be disposed of without further delay. The been violently thrown down upon the bridge, tocontroversy arises over the action of the referee in gether with the argument of counsel upon this appointing a trustee after the creditors had failed proof, was not reversible error, the court having to make a choice, a majority in number voting for cautioned the jury that such proof was admissible one person and a majority in amount for another. I only for the purpose of showing that deceased had