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the plaintiff, and not to the defendant, Philip M. or not to question such distinct and independent Hildebrand, trustee; and that Beals & Orr owe proposition. to the plaintiff $936.48.”
Unquestionably it is horn-book law: (a) That a Into how many distinct propositions of law that demurrer to a declaration must fail where the particular language necessarily resolved itself | declaration contains several counts, one of which under the mental touchstone of the Appellate states a cause of action; (b) that if more parties Court of Indiana, their opinion, as written and than one join in a demurrer it must fail as to all filed, does not disclose.
of them if it is not well taken as to any of thein; That opinion does disclose, however, that ap
(c) that if more parties than one join in an expellant excepted to the conclusions of law as fol- ception, or in an assignment of error, neither the lows: " To which conclusions of law the defendant, exception nor the assignment of error will present Philip M. Hildebrand, trustee, now here at the
any other than such question as involves the rights time excepts;" and at the end of this come the of all of the parties, or avail as to any unless as to court's pregnant sentences:
· This alone is as
all of the parties. But suppose, under (a), the
cause of action which one of the counts states is a signed as error. The exception is to the conclusions of law jointly, and if any one of them is
cause of action, not against the demurrant, but right, the exception must fail," citing four cases,
against some one who, perchance, figures in the which will be looked into further on in the order
suit as a co-party, but comes not forward as a co
demurrant. Is it to be said that the demurrer is a of their citation.
challenge of the declaration for a cause of action On the concession that the language of the con
not as against the challenger, but as against any clusions of law so excepted to and so assigned
one who might have joined him in the challenge? as error by a single party to the cause, and he the
Or suppose, under (b), the demurrer sole appellant, necessarily resolves itselí into, say,
joined in by some one so figuring in the suit as a three distinct propositions of law, the point re
co-party, but who, that demurrer having been dismains whether, so far as the validity of the ex.
posed of by the court, comes forward as a sole ception as taken is concerned, under the rule upon
demurrant. Is it to be said that this demurrer by which the Appellate Court of Indiana takes their
him is a challenge of the declaration for a cause stand, any more than one of those propositions of
of action, not as against him, the challenger, but law was open to question by the exceptor as being
as against him jointly with any one who might a proposition of law in any wise affecting his
have joined him in the challenge? Or suppose, interests?
under (c), but one of all who chance to figure in For if there were three distinct propositions of
the suit as co-parties ventures upon the exception law involved in the trial court's statement of its
or the assignment of error. Is it to be said that conclusions of law, it is as “ plain as a pike staff”
the exception or assignment of error presents no that one of them pertained exclusively to a sep. question in the interest of the exceptor or plainarate issue formed between the appellee and
tiff in error because there was a question in the George Anthony, in which the appellant had in
interest of some one else who chanced to figure in no wise participated, and on which the appellee's the suit as a co-party as to which the decision of several judgment against George Anthony for
the trial court had been correct? $122.97 proceeded; and that another of them per
Unless principle and authority enforce an affirmtained exclusively to a separate issue formed be
ative answer to one or more of these queries, trytween the appellee and Beals & Orr, in which the
ing to understand the logic of the above shown appellant had in no wise participated, and on which application of a rule by the Appellate Court of the appellee's several judgment against Beals &
Indiana is not so very unlike trying to understand Orr for $936.48 proceeded.
how "passional attraction” left out of the Of course, the soundness of that proposition of
- the master of Cleveden should, of neceslaw which so pertained to George Anthony being sity, feel the twinges of a case of gout located in settled as to George Anthony, on the soundness some foot fortunate enough to bestow itself under of that proposition of law which so pertained to the mahogany of the master of Sandringham. Beals & Orr being settled as to Beals & Orr,
But speaking of principle and authority recalls might settle its soundness as to "all the world and
the matter of the four cases cited by the Appellate the rest of mankind,” under the doctrine of res
Court of Indiana in support of the rule as they so adjudicata, or some other doctrine convenient for apply it, and suggests the propriety of looking its lucidity or obscurity, as the case might be. into such cases for more light. But the pinch is to understand how that sort of a
Now, Royse v. Bourne (149 Ind. 187, 47 N. E. settlement could preclude examination by the Ap- 827) turns out to be a case where co-parties had pellate Court of Indiana into a proposition of law
joined in excepting to the conclusions of law, as distinct from and independent of either of those
also in assigning error, on appealing, and where on the appeal of a party incoinpetent to the court, in disposing of their appeal as question either of those two, whether competent done, were clearly either within the reason of the
doctrine that a declaration, is good as against any practically disposed of when they decided Kline of the defendants, is, under the test of a joint et al. v. Board, etc. (supra). So it may be said of demurrer from all, good as against all; or of the Heaston et al. v. Board, etc., that its application doctrine that an exception joint as to the except-, of the rule finds the same support in the reason of ors, or an assignment of error joint as to the the rule that the application made in Klne et al. plaintiffs in error, is, like a joint declaration or v. Board, etc., does. joint demurrer, not good as to any if not good as Evansville, etc., R. R. Co. v. The State, ex rel., to all who join; not to say a case where the court
etc. (149 Ind. 277), the remaining one of the cited. uses the word “joint” in relation to the exceptors / acses, proves to be a case where there had been or plaintiffs in error, and treats the tie which that and was but one party to the side, and where, word implies as the cause of which its disposition therefore, any conclusions of law possible of being of the appeal is the effect.
drawn by the court on any special finding of facts As to Kline et al. v. Board, etc. (152 Ind. 321, of necessity left the party who might competently 51 N. E. 476) that turns out to be a case where, except to such conclusions of law throughout, or to quote from the opinion of the court, the court to one or more of them only, according as all or made a special finding of facts and stated its sev- one or more of them might affect some substantial eral conclusions of law thereon. Appellants did right of the party to determine for itself the scope not except to these conclusions severally, but ex- of its challenge in the premises, and abide whatcepted jointly. The rule is, under such circum- ever might be the legal consequences of its choice. stances, that all of the conclusions must be wrong As will be seen from the opinion of the court, the in order to render such an exception available. It trial court made a special finding of the facts, and cannot be successfully insisted in this case that stated two conclusions of law thereon, the first in all of the conclusions are wrong, and it must favor of the appellant, the second in favor of the thereiore follow that the exception to the conclu- appellee. The court say: “ Appellant excepted to sions does not serve to raise any question for our them jointly, and not severally, and it is well consideration." Now whoso will but stop a mo- settled that if either is good the exception must ment over the concise sentence that the present fail." If the law of procedure were so elastic that quoter has ventured to put in italics, and consider the pleader might at once face about and become how possible it was for “appellants” to individu- the demurrant to his own pleading, it would not ally and collectively “except” to the “conclu- be hard to understand why a litigant might not at sions " distributively and in mass, instead of once face about on a conclusion of law in his collectively excepting to them as a body of con- favor, and, by exception, present it for review on clusions, must, it should seeni, understand the appeal; to say nothing about understanding how court to have simply meant, in their use of that a litigant by failing, in his exception, to discrimsentence, that, in respect of the exceptors, the inate that particular conclusion of law from anexception was by each of them for himself and other and distinct conclusion of law squarely all of the others, so to speak, and, in respect of against him, and involving whatever there could the “conclusions," a challenge by each of the be in the way of possible injury to his rights, exceptors for himself and all of the others of the should be denied the benefit of the exception in validity of said conclusions, considered in the respect of the latter conclusion of law, on the bunch, not distributively; and, so understanding, ground that having excepted to the “conclusions concede that the court, in the disposal of that jointly, and not severally," his “exception must appeal, was within the reason of the doctrine that fail is either is good.” But he this such stumblinga declaration good as against one is good as block as it may, it must be conceded here and now against all of the co-demurrants, under a demurrer that the decision of the Supreme Court of Judicawhich they interpose collectively and not distribu- ture of the State of Indiana in this case is, for all tively.
practical purposes, sufficiently “ on all fours" withi Heaston et al. v. Board, etc. (153 Ind. 439) that of the Appellate Court of the State of Indiana proves to be a case where the appellants, proceed in the principal case to be an authority in point. ing upon the theory that they were joined together Still, when the former tribunal conclude their in unity of interest, together excepted to con- written opinion with the paragraph: “No objecclusions of law, not as conclusions of law which tion is pointed out to the first conclusion, and we they were seeking to bring under review dis- think it is correct. The first conclusion being tributively, but under review in their collective correct, under the rule stated, appellant's excepform; and where, as the error particularly pressed tion to both conclusions must fail,” the reader, if for correction occurred in one of the conclusions an attorney, will perhaps be thankful that only, the court accordingly held that they could
fell to his lot, whether as appellant or appellant's not consider that particular one of the con- attorney, to try to point out an objection to a clusions apart from the rest, under such an excep
conclusion of law so essentially harmless to his tion as challenged their validity in their collective side of the controversy, if he is not inclined to form only; and the court treated the appeal as doubt whether it may not, after all, be rank legal
heresy to say that a demurrer by a single demur
MASTER AND SERVANT. rant is merely a challenge of the sufficiency of the pleading as confined to the demurrant.
SAFE PLACE TO WORK - INSPECTION -ORDER Anent the principal case, then, it is submitted: BY MASTER HIMSELF CREDIBILITY OF WitThe court first decide that the defendants in two of the three judgments in the record are not necessary parties to appellant's appeal, but that his
NEW YORK COURT OF APPEALS. appeal can stand without their joinder, or notice to
Decided June 19, 1900. them to join, on the ground that there is no necessary privity of interest between the appellant ARCANGELO Capasso, Respondent, v. EDWARD G. and any of them, and no privity of interest in the
WOOLFOLK et al., Appellants. result of the appeal, since the affirmance or re- A contractor who undertakes to do work which versal of the judgment which is against appellant includes the picking up of loose stone and rock alone can in no wise affect any of them, all oi thrown out by blasting has the right to inwhich strongly argues, to say the very least, a trust the duty of making inspection of the flat elimination from appellant's appeal of all ques- place where the work is being performed, as tions affecting the correctness of any judgment well as the other details of the work, to a skillagainst Beals & Orr alone, or against George ful foreman and competent workmen; and if Anthony alone, with nothing left save the question one of the workmen thus employed is injured of the correctness of the conclusions of law as on account of a failure to make inspection, or pertinent to the judgment against appellant alone. by any negligent act of commission or omis
Though appellant's exception was to the con- sion in the progress of the work, such negliclusions of law, it would have been idle of him to gence is that of a fellow-servant, for which except to them distributively, save in case of a the master is not liable. particular one of them.
Whether the servant is ordered to go to the place General as the exception was, the rank folly of
where he is subsequently injured, by the masthe exceptor, in attempting to except to what in ter in
person or by some superintending no wise affected or pertained to his own interests, agent, is unimportant; for in either case the was enough for the court to understand the excep- duty of the master to his employe is the same. tion as pertaining wholly to the one of the con- The principal witness for the plaintiff gave testiclusions which affected the exceptor's interests mony of a general nature that no inspection -- affected the judgment against himseli alone. of the work had ever been made. Defendant's and not that other ore against Beals & Orr alone, foreman then gave direct and precise evidence or yet that other one against George Anthony to the effect that on the night in question he alone.
had carefully inspected the place. Afterwards
the plaintiff and the said principal witness Assuredly the court could not, in the teeth of
were recalled in rebuttal, but did not contrathe exception, excusably say that they needed to
dict in any way such testimony of the foreman. be shown which one that was.
Held, that upon such testimony the evidence The upshot of the whole case seems to be pretty that inspection had taken place was undismuch as if the court had said to appellant: You puted, and that there was, therefore, no queswere entirely right in taking your own appeal on tion to be submitted to the jury. your own hook; but then, good sir, you have not
·Plaintiff brought this action for personal inestablished the foregone conclusion that you were
juries, received by him while employed by the appealing on your own point alone, and not on
defendants and which he alleges to have been some other people's points also. Therefore we caused by the negligence of the latter. The demust assume that you have not brought up your fendants, as contractors, were engaged in lowerown point, but brought up some other people’; ing the tracks of the New York & New Haven points. We will decide one of these points of the
R. R., a work which had been going on for some other people, not for you, but for the other people,
two years. During that time the plaintiff had been for it is a point which the other people, not being working for them, and at the time when he rebefore 11s, have not brought before us, and which
ceived the injuries in question he was a member
of what was called the " night gang.” The duty you could not bring before 11s, and we will not
of those belonging to the night gang was to pick decide your point, though the only point you
up and remove loose stone and rock which had could bring before us, inasmuch as you have, in
been left in the cutting after blasts. Upon the bringing it before us, brought along. cheek-by
evening in question, plaintiff says that one of the joul with it. the aforesaid point that
defendants gave him orders to go to work, and decide.
('. J. ILUMONT).
that at about half-past three in the morning a INDLAXAPOLIS, IND.
large stone, becoming loosened, fell from the top of the bank above him upon his foot. A witness and the others were engaged, and that the negliin his behalf, who was one of the workmen, was gence of the foreman in that respect was the examined as to the manner in which the blasting negligence of a fellow-servant. The theory of was generally accomplished and how many holes the court below, in that case, that the duty of the were drilled for a blast. He was then asked this deiendant to provide a reasonably safe place for question: "Now, after the blastings occurred, or his workmen was continuous, so that in every went off, what did they do, ii anything, with re- change in the situation, occasioned by the blastgard to the examination of the rocks before sending, the master's duty of providing a reasonably ing the men to work?” The answer given was: safe place for his workmen attached, was nega** The contractors never did anything. They never tived in the opinion of this court. It was observed, sent anybody around.” No other evidence was with respect to the master's duty towards the given on the part of the plaintiff with respect to plaintiit to remove threatening fragments of stone, the work of inspection. On behalf of the defend- that "it formed one of the many details of the ants it was testified by the foreman in charge of work incident to the removal of this rocky cliff, the blasting that, after the blasts of the day pre- which the deiendant had a right to intrust to a ceding the accident, they had barred down any- skillful foreman and competent workmen, after thing that was loose or dangerous; that it was providing them with the necessary and proper customary to do it; that he had it done on that machinery, appliances and tools.” The conclusion day, and that there was nothing when he left at reached by us in that case was predicated upon six o'clock that was dangerous or likely to fall. the prior decisions of Loughlin v. State of New The foreman of the night gang, in which the York (105 N. Y. 159) and Cullen v. Norton (126 plaintiff worked, testified concerning this stone, or N. Y. 1). The principle of that decision is applirock, on the evening in question, that he had called cable to the present case, and, in my opinion, calls the men up and tried to turn the rock with bars, for a reversal at our hands. It is true that the but could not move it; that an effort was made to plaintiff testified that one of the defendants dipull the rock over with the derrick, but neither by rected him to go to work, and in the opinion of using the derrick nor by the men with bars could the Appellate Division stress is laid upon that the rock be moved. At the conclusion of the case, feature. But I am quite unable to perceive how the request of the plaintiff to go to the jury upon it in anywise affects the case. Assuming, as we certain questions was denied, and the defendants' must, the truth of the fact so testified to, it was no motion to dismiss the complaint was granted, to more than what would be always implied in a which the plaintiff excepted. At the Appellate direction given to an employe to perform his work Division, where the exceptions were ordered to in a designated place. Whether the direction is be heard in the first instance, the pliantiff's excep- given by the master in person, or by some supertions were sustained and a new trial ordered. | intending agent, is unimportant; for, in either case, From the order of the Appellate Division the the duty of the master towards his employe is the deiendants appealed to this court, giving the usual same. If the master gave the plaintiff the order to stipulation for judgment absolute in the event of enter upon the work that evening, the former had affirmance.
the right to intrust its details to the foreman, Perry D. Trafford for appellants; T. F. Hamil-whose competency is not quetsioned, and to the ton for respondent.
night gang. whose members, in the absence of
evidence to the contrary, were, presumably, comGRAY, J. - I am unable to distinguish this case
petent workmen. The master, in such a case, is from that of Perry v. Rogers, decided by us since
not supposed to watch for supervening conditions the decision of the Appellate Division in this case
in the progress of the work on which his work(157 N. Y. 251). In that case the plaintiff was
men are engaged. directed by the foreman in charge of the men to
If his measure of duty had
been performed by sending them off to the work go up on the bench,” which had been created in
under right conditions, with an experienced forethe side of a ledge of rock by blasting, for the pur
man and competent workmen, nothing further pose of cleaning it off. While so engaged a large
was incumbent upon him. If the accident hapstone fell out of the wall, some six or seven feet
pened during the performance of their work, due above the bench, and inflicted upon him the personal injury for which he recovered a judgment. sion in their midst, then the negligence was that
to some negligent act of commission or of omisThe judgment was reversed in this court, upon the ground that the master had furnished everything plaintiff assumed in entering upon the employ
of a fellow-servant, and that was a risk which the that he was obliged to, including competent em
ment. ployes and a skilled foreman; that any omission
Nor can it be said of this case, as it was conon the part of the foreman to notify the plaintiff to pry off the piece of rock that fell upon him was
sidered at the Appellate Division, that there was not attributable to the master, as it related to an any evidence for the consideration of the jury ordinary detail of the work in which the foreman | that there had been an omission in the duty of inspection. The only evidence on the part of the themselves on the ground that they believe in plaintiff bearing upon inspection was general in their own arts. The Vagrancy Act makes punishits nature and with no especial reference to the able "every person pretending or professing to situation upon the night in question. It was to tell fortunes or using any subtle craft, means or the effect that after the blastings occurred, which device by palmistry or otherwise to deceive or had been previously described by the witness, impose on any of her majesty's subjects.” Now, " the contractors never did anything; that they from Reg. v. Entwistle (1899, 1 Q. B. 846) it apnever sent anybody around.” On behalf of the pears that a person who, without any intent to defendants it was testified by the day foreman deceive, pretends to tell the fortune of a personi that, after the blasts of the day preceding the
who knows that it is merely a game and is party night in question, he and his men had gone over to the pretence, is not guilty of an offense; but the loose stone and had barred down all that otherwise the intention to deceive is included in seemed dangerous. The foreman of the night the words “pretending or professing,” and it is gang, particularly, testified that he had noticed this not necessary that the intent should be specifically particular stone, or rock, which fell upon the alleged. The case of Penny v. Hanson (35 W. R. plaintiff, and that he had tried to move it by use
379, 18 Q. B. D. 478) is much stronger. It was of the derrick, as well as by bars, without success. contended for the accused in that case that no After the evidence was closed the plaintiff was re
evidence had been given against him that he did called, as was his principal witness who had given not believe in what he professed to do. In the evidence concerning the blastings and the
answer, Denman, J., said: “ In this case, res ipso custom of the contractors; but neither of them loquitur. It is absurd to suggest that this man contradicted in any way the testimony of the fore could have believed in his ability to predict the man of the night gang. The effect of this direct fortunes of another by knowing the hour or place and precise evidence given by the foreman of the
of his birth and the aspect of the stars at such plaintiff's gang and the failure to contradict it by time. We do not live in times when any sane mau the plaintiff and his witnesses, when recalled in
believes in such a power." And Mathew, J., said: rebuttal, did not seem to have been appreciated in
“ I am entirely of the same opinion.” But if it is the court below. I regard them as determining absurd to think that the fortune-teller himself features of the case.
should believe in his own powers, it is unfortuAs the case was left upon all the testimony, nately the iact that many persons of good position there was no question to be submitted to the jury; and education do believe in the powers of some for the evidence that there had been an inspection of these adventurers. In the recent case it was
said in court that the woman's clients included of the work and that care had been exercised to remove the threatening danger was undisputed persons of all sorts and conditions. “Bishops ” If, therefore, it could be said that the master, in
were expressly mentioned, but nothing was said personally directing the plaintiff to perform his
about judges or police magistrates. It may be work at the place in question, had assumed some
hoped, therefore, that none of these latter gentleextraordinary duty of care, which I do not admit,
men have laid themselves open to the risk of being it was not shown that he failed in its requirements.
classed as insane by Mathew, J. At all events, as The order of the Appellate Division should be
such persons do exist, it is clearly right that they
should be protected from deception, even though reversed, and judgment should be entered dis
it is due to some mental weakness on their own · missing the complaint, with costs to these appel
part that they are deceived. It is a crime for the lants in all the courts.
fortune-teller to take advantage of this weakness, PARKER, Ch. J.; O'BRIEN, HAIGHT, Martin, LANDON and WERNER, JJ., concur.
and that crime should be punished. — Solicitors'
A Concord, N. H., judge has decided that soda
water is one of the necessaries of life and may be sons being prosecuted and convicted for
sold on Sunday. fortune-telling; but the police do not seem to trouble fortune-tellers who charge high fees, oc- Two Christian Scientists were found guilty recupy expensive rooms, and find their dupes in the cently in a Milwaukee court of practicing medihigher classes of society. Yet it is notorious that cine in violation of a State medical law. In giving such persons flourish, and one has this week been his decision Judge Neelen cited the decision of brought to justice who was making an income that the United States Supreme Court in the Mormon many a professional man would consider princely, case, holding that a man's religion is subordinate but it seems to have been left to a private persou to the laws of the land, and that he cannot go conto take proceedings against her. It is idle for trary to the laws of the State. An appeal was fortune-tellers nowadays to attempt to defend taken.