In bers of the town council. At the town meeting in | of the council ex officiis were dropped. April, 1888, it was "voted that there be five coun-1798 the number of councilmen was fixed at cilmen for the ensuing year, "and five were elected. Held that, under Pub. St. c. 37, § 6, providing that, five or seven; and since 1844 the number has "before election of members of the town council been not less than three nor more than sev* * is begun, * the electors shall de- en, as the town may determine. The constitermine the number of such officers to be elected," the vote did not limit the membership of the coun- tution (article 10, 87) gives to the town of cil to five, but determined the number to be elect- New Shoreham the right "to continue to ed, which with those made members by the char-elect wardens as heretofore." It is agreed ter constituted the council. 2. Under Pub. St. c. 37, § 1, providing that the electors choose a town council, to consist of not less than three nor more than seven members, the council of New Shoreham, consisting of five members elected and two wardens, does not exceed the limit. Information for quo warranto to determine whether the respondent, John P. Champlin, is a member of the town council of New Shoreham. William P. Sheffield, for petitioner. Francis B. Peckham, for respondent. that the first and second wardens of New Shoreham have always been regarded as members of the town council, under the charter, and have always acted as such. At the town meeting in April last it was "voted that there be five councilmen for the ensuing year:" and five were thereupon elected. These with the two wardens make a council of seven, which, it is claimed, is inconsistent with the vote of the town fixing the number of the council at five, according to the statute. We do not think that such inconsistency is necessarily to be implied. The language of the statute (Pub. St. c. 37, § 6) is as follows: "Before the election of members of the town council or justices of the peace is begun at the annual town meeting, the electors shall determine the number of such officers to be elected." The vote of the town pursuant to the statute does not limit the membership of the town council to five, but simply determines the number of members to be elected. Then these, with the officers STINESS, J The question to be determined upon this information is whether the respondent is a member of the town council of New Shoreham by virtue of his office as first warden of that town. The self-constituted towns of Providence, Portsmouth, Newport, and Warrick came into union, and organized the colony under the charter of 1643-44, and the same towns were recognized in the charter of 1663. The first addition to their number was the town of Westerly, in 1669, un-made members by the charter, constitute the der a general vote giving the same privileges council. Thus the result is the same as unwhich the other towns enjoyed. 2 Col. Rec. der the act in the digest of 1719, when a town R. I. p. 250. The next town added was New elected six, to whom others were added, ex Shoreham, under a lengthy and quite formal officiis, to form the council. Moreover, the charter, (4 Col. Rec. R. I. p. 466,) granted town of New Shoreham, by virtue of its November 6, 1672, which provided, among formal charter, stands in a somewhat differother things, that the town council should ent position in this respect from other towns. consist of three, "who shall be added to the Statutes of a general nature do not repeal by two wardens for the town council, to have implication, or modify, charters and special like authority as other town councils have." acts passed for the benefit of particular In 1674, Kingstown, (2 Col. Rec. R. I. p. towns, unless the intention of the legislature 525,) and, in 1678, Jamestown, (3 Col. Rec. to repeal or modify is plain. This rule folR. I. p. 21,) were made towns, "with the lows the maxim, generalia specialibus non same liberty granted to New Shoreham." derogant. If both the general and special In other cases the towns were generally de- law can stand together, they will be conclared to be incorporated as townships, with strued accordingly. To this effect was the the same privileges as other towns. In Au- opinion of Judge POTTER in Verry v. Comgust, 1738, (4 Col. Rec. R. I. p. 548,) it was mittee, 12 R. I. 578. Also People v. Supervoted "that there shall be two more wardens visors, 40 Hun, 353; Wood v. Commissionadded to the town of New Shoreham, to be ers, 58 Cal. 561; Fosdick v. Village of Perchosen in the same manner as heretofore has rysburg, 14 Ohio St. 472; State v. Branin, been customary, according to their charter." 23 N. J. Law, 484. See, also, 1 Dill. Mun. The terms of this act did not make these ad- Corp. § 54, and note; Sedg. St. & Const. Law, ditional wardens members of the town coun- (2d Ed.) pp. 97, 98, and Pomeroy's note. cil. In the digest of 1719, (page 22,) an act, Section 1 of chapter 37, cited above, provides noted in the margin as having been passed that the electors shall choose a town council, in the eighteenth year of Charles II., 1666, to consist of not less than three nor more relating to the election of town officers, pro- than seven members. A council consisting vides that every town shall annually elect of five members elected by the town, with six freeholders, who, together with the as- the two wardens as members under the charsistants, justices of the peace, and wardens, ter, does not exceed this limit. The statute governor, and deputy-governor, residing in and the charter, therefore, are not, in this the town, shall be the town council. It is to case, even in apparent conflict; and they be observed that a part of this general law may stand and operate together, certainly to was put into the charter of New Shoreham the extent of a total of seven members of the as a special provision. This law continued council, which is all we are now called upon until the digest of 1767, when the members to decide. We think the respondent is legally a member of the town council of New Shoreham, and that the information must be dismissed. (16 R. I. 448) BRODEUR v. VALLEY FALLS CO. (Supreme Court of Rhode Island. Feb. 9, 1889.) FELLOW-SERVANTS. 1. The overseer of the slashing-room in a cotton mill is a fellow-servant with the second foreman of the machine-shop department, whose duty it is to oversee the repairing of machinery in any of the departments on the report of the overseer of that department, subject, however, to the orders of his immediate foreman and the general superintendent, who has the control and direction of all the employes; and the mill-owner is not liable for an injury to the foreman caused by a barrel thrown negligently from a window by the overseer. 2. The throwing of a barrel from a fourth-story window so as to strike and kill a fellow-servant is not such unforeseen and extraordinary act of carelessness as not to come within the risks of employment assumed by the deceased. On demurrer. slashing and dressing-room, and thereby fa- Patrick J. McCarthy, for plaintiff. James Trespass on the case. STINESS, J. The question raised by this This action was brought by Malvina Bro- demurrer is whether the deceased and the deur against the Valley Falls Company to re- foreman of the slashing-room were fellowcover damages for the death of the plaintiff's servants, within the meaning of the rule husband, caused by the alleged negligence of which exempts the master from liability to the defendant. The deceased was killed by his servant for an injury received through a barrel which was thrown out of a door by the negligence of a fellow-servant in the one of the defendant's employes. The de- course of their common service. The plaintiff fendant is a corporation engaged in the man- contends that they were not, because they ufacture of cotton goods in the town of Lin- were not employed in the same department. coln, state of Rhode Island, where it has its The cases cited by the plaintiff, excepting manufactory and a large number of employes. those in Illinois, are plainly distinguishable It has, under the officers of the corporation, from the case at bar. Thus in Railroad Co. a general superintendent, who has immediate v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184, control and direction of all the employes. It it was held that an engineer was not a fellowhas also overseers of the different rooms or servant with a conductor in charge, and to departments, such as the slashing-room, whom the company had given the right to weave-room, spinning-room, machine-shop, command the movements of the train and to blacksmith-shop, boiler-room, etc.; all under control the persons employed on it, upon the the direction and control of the general su- ground that the conductor should be treated, perintendent, who takes his direction from the being so in fact, as the personal representaofficers of the corporation. The deceased was tive of the corporation, for whose negligence employed as second hand, that is, second fore- it was responsible to subordinate servants. man under the regular foreman of the ma- In Moon's Adm'r v. Railroad Co., 78 Va. chine-shop department, and took his orders 745, the company was building a railroad, from his immediate foreman or the general su- and the construction, at the place of injury, perintendent. His duties were, in common was in charge of a section master, who was with others employed in the machine-shop de- held not to be a fellow-servant with a train partment, to assist in keeping defendant's ma- hand, the company having delegated to an chinery in the several rooms or departments agent a duty incumbent upon it. It was also in proper repair or condition, and, in case of held that a conductor, having control and diany breakage of machinery, to oversee and rection, was not a fellow-servant with the assist in its repair, under the direction of his train hand, but his superior. In Ford v. immediate foreman or the general superin- Railroad Co., 110 Mass. 240, the company tendent. In the performance of these duties was held liable for not providing a proper enhe was brought at different times into all the gine, and in Davis v. Railroad Co., 55 Vt. different rooms or departments of defend- 84, for a defective road-bed. These cases ant's mills. On the 2d day of April, 1884, stand upon very different considerations the deceased was crossing an open court or from the one before us. The duty of the yard from the machine-shop to the cast-iron master to furnish suitable machinery and aproom, so called, he being then and there en-pliances, and to keep the same in repair, is gaged about his work in the machine-shop, at defendant's mill, and while passing across said yard was struck upon his head by an empty barrel which was thrown from the fourth story of the building in which the machine-shop is situated by the overseer of the unquestioned. It is also well settled that, when a master delegates to a servant duties which belong to himself, the servant will occupy the place of the master, not that of fellow-servant with other employes, and the master will remain as responsible for the 66 those employed. Not only would it be almost impossible, in many cases, to separate the work into distinct departments, and to discern their dividing lines, but incidental duties, changing the relations of workmen to each other, would vary also the master's liability. He would thus be liable for the negligence of a servant at one time or place, and not at another. Without a personal supervision of all his help in all their work, he could not know when he was responsible and when he was not. Moreover, such a negligence of this servant as if he were per- tract of the master does not extend to insonally guilty of it himself. Mulvey v. Lo- demnify the servant against the negligence comotive Works, 14 R. I. 204. In the pres- of any one but himself; and he is not liable ent case the deceased was not under the over-in tort, as for the negligence of his servant, seer of the slashing-room, nor did the latter because the person suffering does not stand stand in the place of the principal with ref- towards him in the relation of a stranger, erence to the deceased. but is one whose rights are regulated by conBut the decisive question in this case is tract, express or implied." The reasons here whether the circumstances set forth amount set forth are a strong answer to the position to fellow-service, as the term is used in law. taken in the Illinois cases. They show an The cases in Illinois are directly in favor of obvious impracticability in trying to gauge the plaintiff's contention. They proceed up- the liability of an employe, in a complex busion the distinct ground that to constitute ness, by the independence of its different workmen, under the same master, fellow-branches, or by the intercommunication of servants, they must directly co-operate with each other, or, by their usual duties, be brought into such habitual association as to have the power of influencing each other to the exercise of constant caution, by example, advice, encouragement, and by reporting delinquencies. In the case of Railroad Co. v. Moranda, 93 Ill. 302, the court reviews and affirms its position at length. It remarks, however: Although the distinction taken by this court between these two classes of co-servants," i. e., those employed in the same department, and those employed in sep-rule would govern the liability of a master arate and disconnected branches of the business, "has not the sanction of the courts of England, nor that of most of the courts of last resort in this country, we think, on principle, it is a distinction which ought to be taken." But this distinction has not been overlooked in the adjudications upon this subject. In the early case of Farwell v. Railroad Corp., 4 Metc. 49, the consideration of a distinction between these two classes of servants was pressed upon the court. Upon this point, SHAW, C. J., says, in the opinion of the court: "When the object to be accomplished is one and the same, when the employers are the same, and the several persons employed derive their authority and their compensation from the same source, it would be extremely difficult to distinguish what constitutes one 'department, and what a distinct department of duty. It would vary with the circumstances of every case. If it were made to depend upon the nearness or distance of the persons from each other, the question would immediately arise, how near or how distant must they be to be in the same or different departments? In a blacksmith's shop, persons working in the same building, at different fires, may be quite independent of each other, though only a few feet distant. In a ropewalk, several may be at work on the same piece of cordage, at the same time, at many hundred feet distant from each other, and beyond the reach of sight and voice, and yet acting together. Besides, it appears to us that the argument rests upon an assumed principle of responsibility which does not exist. The master, in the case supposed, is not exempt from liability because the servant has better means of providing for his safety, when he is employed in immediate connection with those from whose negligence he might suffer, but because the implied con when the groundwork upon which the rule is founded did not exist. For, if the test of liability be that of the separate and independent duties of the servants, they may nevertheless be so near each other as to be able to exert a mutual influence to caution; or, if it be that of association, they may still be in the same department, but unable, from their duties or position, to exert such influence. But, aside from these considerations, we do not think the rule is correct in principle. The principle upon which the determination of Farwell v. Railroad Corp. proceeded is the same that has been generally followed in England and in this country, namely, that the rights and liabilities of both master and servant are those which grow out of their contract relation. The master impliedly agrees to use due care for the safety of his servant, in providing suitable places and appliances for work; and, as is universally conceded, the servant agrees to assume the ordinary risks of his employment. The most common risks of service spring from the negligence of fellow-servants. When one works with others, he knows that his safety depends on the exercise of care by those around him, as their safety depends also upon his own caution. No man can enter into an employment without a thought of this. Negligence, therefore, among workmen, is a breach of the duty which each owes to the others, and not a breach of the master's duty, if he has exercised the care that is required of him. For his own negligence the master must answer; but for that of others, which is a risk incident to every employment, he has not agreed to be responsible, but, on the contrary, the servant has impliedly agreed to assume it upon himself. The contract relation, therefore, puts them outside of the rule which makes a master liable to a stranger for the negligence of his agent, for respond- | Waterman, deceased, against Martin S. Smith, eat superior is based upon considerations of executor, etc., of Harriet Winsor, formerly public policy which are not called for in the administratrix, etc., of said Mary Waterman, relation between master and servant. The upon her bond as such. Judgment for decases cited by the defendant abundantly illus- fendant, and plaintiff excepted. trate and support the generally recognized doctrine that servants under the same master, in a common service, are fellow-servants, although they may be engaged in different. departments of labor. Charles H. Page and Franklin P. Owen, for plaintiff. John F. Lonsdale, for defendant. DURFEE, C. J. This is an action of debt on a bond given by the late Harriet Winsor as administratrix on the estate of Mary Waterman, widow, deceased. The said Mary died, intestate, May 19, 1878, leaving as her next of kin two daughters, the said Harriet being one, and three grandchildren, children of a deceased son. Administration on her estate was granted by the court of probate of Scituate, September 13, 1877, to said Harriet, who qualified as administratrix by giving the bond in suit. She rendered her first and only account, rendering it as a final account, December 13, 1879; and the court, after due notice, allowed it, January 10, 1880. The account, as rendered and allowed, showed a residue of $1,756.50 after the payment of charges and expenses, which residue was cred But the plaintiff further contends, even in this view of the case, it is only the ordinary risks which can be reasonably foreseen and taken into account that the servant assumes; and consequently, since the deceased could not foresee such an act of carelessness as the throwing of the barrel, it is not within the risks assumed. We have already said that the ordinary risks include the carelessness of others. This rule is distinctly recognized in Railroad Co. v. Fort, 17 Wall. 553, one of the cases cited by the plaintiff upon this point. The court say: "The employe, 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 that case a boy of tender years was sent by a suited in the account to said Harriet as the sole perior, whose orders he was required to obey, to adjust a belt in a dangerous place, outside of his regular duties, in ignorance of the danger. There is a wide difference in the application of the rule in such a case and in the case at bar. The argument of the plaintiff here, if followed, would abrogate the rule; for the careless acts of another are just the ones that cannot be foreseen. If they could be, it would be because they were a part of the ordinary way of doing things, and, therefore, presumably not negligent. They are nevertheless a part of the ordinary risks. We think the plaintiff's claim that the deceased and the overseer of the slashing-room are not to be regarded as fellow-servants is untenable, and that the demurrer to the declaration must be sustained. heir of William Dallas Winsor and Harriet Arvillah Winsor, her deceased children; she claiming that the estate was accountable to them, or their estate, therefor, under the will of one Coomer Waterman. Said Harriet died March 19, 1880, leaving a will, by which the defendant was appointed executor. He proved the will, and qualified as executor. In 1887, Daniel H. Remington was appointed administrator de bonis non on the estate of Mary Waterman. This action is brought for his benefit as such. The condition of the bond, as alleged in the declaration, is that said Harriet shall administer the goods, chattels, rights, and credits of the intestate, at the time of her death, which shall come to her hands, or to the hands and possession of any person or persons for her, according to law. The breaches alleged are "that the said Harriet Winsor, in her life-time, did not adCOURT OF PROBATE v. SMITH. minister the estate of said Mary Waterman (Supreme Court of Rhode Island. Feb. 9, 1889.) according to law; and that since her decease EXECUTORS AND ADMINISTRATORS-BONDS. said defendant has refused to pay over to her An administrator de bonis non cannot maintain successors the goods and chattels, rights and an action against the executor of the former ad- credits, of the said Mary Waterman, deministratrix, upon her bond, for maladministration, and failure to pay over to her successor, said ad ceased." The defendant pleads plene adminministrator d. b. n., the moneys, etc., of her intes-istravit. The parties, on the facts as stated, tate, such action being authorized neither by the submit the question whether the action is common law nor by Pub. St. R. I. c. 184, § 27, giv-maintainable. If it is, the case is to be reing an action to an administrator appointed to succeed a personal representative, who has resigned tained on certain questions which are reor been removed, to recover of his predecessor, served; but, if not, judgment is to be entered his heirs, personal representative, or guardian, for the defendant. the effects, books, papers, etc., of the intestate; as the statute only applies to goods, etc., unadministered by the former representative, and only where such former representative has resigned or been removed, and not where he has died in office. (16 R. I. 444) Exceptions from court of common pleas, Providence county. 'Action by the court of probate of the town of Scituate, for the use of Daniel H. Remington, administrator de bonis non of Mary It appears from the facts agreed upon, if we understand them aright, that Harriet Winsor, as administratrix on the Mary Waterman estate, after paying charges and expenses, appropriated the residue to her own use, claiming to be entitled to it, and, crediting herself with the amount in her account, had her account allowed; so that there was afterwards nothing left of the estate to be then been appointed, but to the creditors and next of kin, suing in the name of the court of probate. And as the right and authority of the administrator de bonis non, when appointed, extended only to the unadministered residue, we do not see how upon principle. any more than on authority, he is entitled to sue his predecessor or her legal representative, on the bond, for maladministration. administered, either by herself or her successor. Her successor claims that the appropriation was wrongful, a breach of the bond, and brings this action on the bond, in the name of the probate court of Scituate, for damages or indemnity. The question is whether such an action will lie in his behalf. The counsel for the defendant has referred us to a great many cases to show that it will not. The doctrine of these cases is that an We do not find any statute under which administrator de bonis non is appointed to the action lies. Pub. St. R. I. c. 184, § 27, administer only so much of the estate as re- gives an action to "an administrator, apmains unadministered by the original ad- pointed to succeed an executor or adminisministrator, and that his representative right trator resigning or removed," to recover the or authority extends to such remainder, un- goods and effects of the deceased, etc.; but less it is further extended by statute. There the action given seems to be not an action on can be, it has been said, only one adminis- the bond, but a direct action by the new adtration, the administrator de bonis non tak-ministrator against his predecessor, or against ing it up where his predecessor left off, for the latter's "heirs, executors, or administrathe purpose of completing it; each being re- tors, or guardian," for the goods and effects sponsible to the creditors and next of kin so remaining to be administered, and the books far as he acts, and neither for or to the oth- and papers appertaining thereto. If the purer. Rives v. Patty, 43 Miss. 338. In Beall pose had been to give an action on the bond, v. New Mexico, 16 Wall. 535, 541, Mr. Jus- the action would naturally have been given tice BRADLEY, delivering the opinion of the against the sureties, as well as against the court, said: "To the administrator de bonis principal, and his legal representatives, and non is committed only the administration of would not have been given against his the goods, chattels, and credits of the de- "guardian." Moreover, the action is given ceased which have not been administered. only to "an administrator appointed to sucHe is entitled to all the goods and personal ceed an executor or administrator resigning estate which remain in specie. Money re- or removed," and not to an administrator ceived by the former executor or adminis- appointed to succeed an administrator, who, trator, in his character as such, and kept by as in this case, has deceased. Our concluitself, will be so regarded; but, if mixed with sion is that the action is not maintainable, the administrator's own money, it is consid- and that, according to the agreement, judgered as converted, or, technically speaking, ment must be entered for the defendant for administered. And all assets of the testator costs. or intestate in the hands of third persons, at the death of an administrator or executor intestate, belong to the administrator de bonis * *Of course, debts and choses in action not reduced to possession belong to this category." And in accordance with this opinion it was decided that an administrator de bonis non cannot sue the former administrator or his representative for a decastavit or for delinquencies in office, nor maintain an action on the former administrator's bond for such cause. This decision is abundantly supported by the cases. Potts v. Smith, 3 Rawle, 361, also in 24 Amer. Dec. 359, to which a note collecting and discussing cases is appended; State v. Rottaken, 34 Ark. 144; Rowan v. Kirkpatrick, 14 Ill. 1; Brownlee v. Lockwood, 20 N. J. Eq. 239, 256; Johnson v. Hogan, 37 Tex. 77; Byrd v. Holloway, 6 Smedes & M. 323; Hagthorp v. Hook, 1 Gill & J. 270; Kendall v. Lee, 2 Pen. & W. 482; 1 William, Ex'rs, bottom p. 539, and note b. The cases regard any portion of the estate which the former administrator has appropriated to his own use, ceasing to keep it apart from his individual estate, as administered, whether the appropriation was right or not. In this case, if Harriet Winsor ever became liable on her bond for appropriating the $1,756.50, she becomes liable when she appropriated it, and, of course, not to the administrator de bonis non, who had not non. * (16 R. I. 468) SUPREME COUNCIL CATHOLIC KNIGHTS OF AMERICA v. MORRISON et al. (Supreme Court of Rhode Island. Feb. 16, 1889.) MUTUAL BENEFIT INSURANCE. 1. A mutual benefit certificate provided that it was a contract with the member alone, and not with the beneficiary, and that the member might the laws of the order on the subject, which laws substitute another beneficiary by complying with at the time of issue of the certificate required the beneficiary's consent to such change, but which were afterwards amended so as to dispense with such consent. Held, that the beneficiary took no vested interest in the insurance; that the laws of the order referred to were the laws existing at the time of the substitution, and not at the time of isamendment, without the original beneficiary's sue; and that the substitution of another after the consent, was valid. 2. A gift of a mutual benefit certificate by husband to wife, she being the beneficiary named declarations that he had given the insurance to therein, is not sufficiently shown by the husband's her, and by her possession of it; he having afterwards obtained it, and procured a change in the beneficiary. Bill of interpleader by the Supreme Council Catholic Knights of America against Alexander Morrison and others. Edwin D. McGuinness and John Doran, for complainant. Hugh J. Carroll and Thomas J. McParlin, for executors of Patrick A. Cosgrove. James Tillinghast, for executors of Elizabeth A. Cosgrove. |