Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

do not see how it relieves sections 11 and 12 of the objection that their effect is to deprive the persons confined under them of their liberty without due process of law." None of these objections apply to the present law. The function of the writ of habeas corpus was enlarged to apply to such cases by Pub. Laws 1889, p. 156, c. 819, now embodied in section 19, c. 82, Gen. Laws 1896, as amended by Court & Practice Act 1905, § 1112, by making it the duty of the court, upon an application for such writ "to inquire and determine as to the sanity or insanity or the necessity of restraint of the person confined, at the time such application was made." The section as now in force further provides for trying the issue to a jury in the discretion of the court, and enacts that: "If it appears upon the verdict of the jury, or if it is the opinion of the court, if the issue is not submitted to a jury, that the person so confined is not insane, or that he is not dangerous to himself or others and ought not longer to be so confined, he shall be discharged from such confinement."

The right of filing with a justice of the Supreme Court a petition for a commission to determine the question of sanity or insanity is given to the person confined, as well as to any one on his behalf, and he is also given the right to prosecute such petition in person. Gen. Laws 1896, c. 82, §§ 15, 16. In short, the commitment by a parent, guardian, or relative under the law considered in Doyle, Petr., was final and permanent so far as concerns any right in the person confined to have a trial of the question of his sanity, while the present law gives the power to confine him on such a commitment only until he chooses to apply to the court for relief. The argument of the petitioner's counsel goes to the length of demanding that a trial shall in all cases precede the apprehension and restraint of a person suspected to be insane. The opinion in Doyle, Petitioner, supra, does not approve this extreme ground. Judge Tillinghast says (page 541 of 16 R. I., p. 161 of 18 Atl. (5 L. R. A. 359, 27 Am. St. Rep. 759): "Whether they are insane is the very question which ought to be determined before they are so completely confined as not any longer to have power to institute proceedings for their own relief, or to be heard and adduce evidence in their own behalf;" and on page 538 of 16 R. I., p. 160 of 18 Atl. (5 L. R. A. 359, 27 Am. St. Rep. 759): "We are not prepared to say that even so the sections would be void, if they were intended simply for the temporary detention, preliminary to or pending a judicial inquiry. The right of personal liberty is to be reasonably understood, and there are many restraints which are allowed as consistent with it." It seems to us that much popular misapprehension of this subject grows out of the feeling that constraint of a person as insane is analogous to the punishment of a criminal, and carries with it some stigma; and to

this may be added in some minds a repulsion to submitting one's self or one's friend to hospital treatment away from the continued supervision of family and personal friends. But insanity is a disease, and the state has the right to treat one who has the misfortune to suffer from it, as it does one who has a contagious malady. The exercise of this right of self-protection must be regulated by the circumstances of the case. If it is dangerous to the community that a citizen should go at large, whether because he is liable to spread contagion, or to commit some act of violence, public safety demands that he be immediately confined, either with or against his will, and the extent of his personal right can only be to test by judicial process, at a time when it may safely be done, the propriety of his restraint. We are of the opinion that the safeguards of this right provided by the statute are ample and just. The person confined has two methods at his command of invoking the action of the highest judicial authority, and severe penalties are imposed upon the managers and guards of the institution if they fail to bring the remedial provisions of the statute to his notice or impede his access to the remedies provided. In addition to this, careful supervision of such institutions is provided for by citizens of character and standing, and the system of operation is so regulated by law as to prevent abuses, or to insure the correction of them, as far as wise legislation can go. It would serve no useful purpose in this case to compare the systems which have been adopted in other states for securing the restraint of the dangerously insane.

Many of

them are criticised by plaintiff's counsel as liable to the same strictures which he applies to our own. They are all attempts by different minds to protect the community by such measures as may least infringe the personal liberty of the insane person. We think that our own system is a reasonable exercise of the legislative power, and secures to the subject of its restraint all rights which the Constitution of the United States guaranties to him.

This petition must be dismissed.

(28 R. I. 126) NATIONAL & PROVIDENCE WORSTED MILLS v. FRANKFORT MARINE ACCIDENT & PLATE GLASS INS. CO. (Supreme Court of Rhode Island. Jan. 9, 1907.) INSURANCE EMPLOYER'S LIABILITY-AMOUNT OF LOSS-LITIGATION EXPENSES-COSTS.

An employer's liability policy, insuring against loss not exceeding $5,000 in respect to one employé, provided that if any legal proceedings were taken against assured on a claim covered by the policy, the insurer should at its own cost undertake the defense of such proceedings, and should have the entire control of the defense; that assured should not, except at its own cost, settle any claim or incur any expense without the consent of the insurer. On suit for injuries to an employé, the insurer defended, and a judgment was rendered against

R. I.) NATIONAL & PROV. W. MILLS v. FRANKFORT M. ACC. & P. G. INS. CO. 59

the insured for $6,000, with costs, amounting to $161.70, and interest amounting to $326. The insurer paid $5,000 on such liability and refused to pay more. Held, that the insured was entitled to recover from the insurer $75 paid to physicians for services rendered at the request of the insurer in defense of the proceedings, but could not recover either the costs or interest.

Exception from Superior Court, Providence County.

Action by the National & Providence Worsted Mills against the Frankfort Marine Accident & Plate Glass Insurance Company. From a judgment in favor of plaintiff, defendant brings exceptions. Overruled.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Vincent, Boss & Barnefield, for plaintiff. Lewis A. Waterman, for defendant.

PER CURIAM. We have carefully considered the questions involved in this case and the authorities cited by the parties. While the cases are conflicting, we think the correct rule is stated in Munro v. Maryland Casualty Co., 96 N. Y. Supp. 705, 48 Misc. Rep. 183, and the decision of the presiding justice of the superior court is correct. accordingly adopt his decision as the opinion of this court.

"Decision.

We

"Sweetland, P. J. In this case a jury trial has been waived. On April 1, 1898, the defendant issued to the plaintiff an employer's liability policy wherein the defendant agrees to indemnify the plaintiff for one year against loss arising from legal liability for damages, on account of bodily injury or death, suffered by any of the plaintiff's employés, resulting from accident happening in the plaintiff's premises. Said indemnity not to exceed the sum of $5,000 in respect to any one employé suffering bodily injury or death. Under the terms of the policy, if any legal proceedings were taken to enforce against the plaintiff a claim covered by the policy, the defendant should at its cost undertake the defense of such legal proceeding in the name and behalf of the plaintiff, and the said defendant should have the entire control of such defense. And it was further provided by the terms of the policy that the plaintiff should not, except at its own cost, settle any claim or incur any expense without the consent of the defendant thereto previously given in writing.

"During the term of the policy, one Susan McGarr, an employé of the plaintiff, began legal proceedings against the plaintiff to enforce a claim covered by the policy. The defendant undertook the defense of such legal proceedings, and had entire control of such defense. In said proceedings the said Susan McGarr recovered judgment. The plaintiff satisfied the execution issued on said judgment, amounting to $6,000, with costs amounting to $161.70 and interest amounting

to $326. In all, the sum of $6,487.70. Thereafter the defendant paid to the plaintiff the sum of $5,000 on its liability under said pollcy. In this case at bar the plaintiff is suing to recover the sum of $161.70, the costs, and $326, the interest in the execution in case of McGarr against the plaintiff. The plaintiff claims that the defendant is liable for such sum under its agreement that it would defend said legal proceedings at its own cost. The plaintiff also seeks to recover the sum of $75 paid to two physicians, Drs. McCaw and Keene, for services which the plaintiff claims were rendered for, and at the request of, the defendant, in the defense of said legal proceedings. The court finds from the testimony that in the defense of said legal proceedings the defendant employed the late David S. Baker, Esq., that to care for its interests the plaintiff employed Cyrus M. Van Slyck, Esq., and that in said legal proceedings the said Van Slyck did assist the said Baker,. but the entire control of said defense was in the said Baker acting for the defendant; that in the preparation of said case for trial the said Van Slyck, at the request of the said Baker, did cause the two physicians named to be employed; that said employment was for the defendant in the conduct of the defense which it had undertaken in the name of the plaintiff, and that the employment of said physicians was not an expense incurred by the plaintiff. The court finds that the plaintiff is entitled to recover the money which the plaintiff was obliged to expend in payment for the services of these physicians, employed in the plaintiff's name by the defendant. The court is of the opinion that the sum of $161 70, costs, and $326, interest, the plaintiff is not entitled to recover. The policy contemplates that the question of the defense of said legal proceedings, and the extent to which said defense shall be carried, are to be determined entirely by the insurance company.

"When said legal proceedings are terminated, if the insured is found to be liable to the employé, then the amount of loss arising from said legal liability is fixed. In this case it was $6,000, the amount of the verdict; $161.70, costs, which are an allowance made to the successful party as recompense for the expense to which she was subjected; $326, interest, which is an allowance made to the successful party for the delay in obtaining the amount of her verdict during the time that the amount of the verdict was in the hands of the plaintiff and subject to its use. The item of costs and interest are not part of the cost of defense. A reasonable construction of the provisions of the policy that the insurance company should undertake the defense of the legal proceedings at its own cost is that it should be responsible for the employment of counsel, the fees of witnesses called in defense, and such other expenditures as are necessary to conduct the defense. The defense of the legal proceedings

was for the benefit of the plaintiff as well as the defendant, and perhaps could not have been avoided save by the payment of the employé's claim in full. The items of costs and interest are parts of the loss arising from the plaintiff's liability, and when that is fixed the terms of the policy require that the defendant should indemnify the plaintiff to the extent of $5,000. That the defendant has done by the payment to the plaintiff of the sum of $5,000. The plaintiff is entitled to recover $75, paid to the physicians, with interest from the date of the writ in case at bar, amounting to $23.41.

"Decision for the plaintiff $98.41."

(28 R. I. 118, 163)

ARNOLD v. RHODE ISLAND CO. (Supreme Court of Rhode Island. Jan. 9, 1907. On Rehearing, Jan. 23, 1907.)

1. CARRIERS-EJECTION OF PASSENGER.

Where a passenger on a street car line presented a valid transfer, which the conductor refused to honor, and, as the passenger refused to pay fare, ejected him from the car, he was entitled to recover damages for the ejection; it not being necessary for him to pay his fare, and then resort to an action to recover it back.

2. SAME-TRANSFERS.

Where a street car company, according to its rules, issues transfers from and to certain lines, and the passenger presents a transfer which is not honored by the conductor, and the passenger is ejected, it is no defense to an action for the ejection that the statute does not require the issuance of a transfer between the particular lines in question.

3. SAME-RULES OF COMPANY.

In an action by a passenger against a street car company for ejection from a car after presentation of a proper transfer, it appeared that a rule of the company required the giving of transfers between the two lines in question, but that when the rule was made the cars on the two lines ran in such directions that the point of intersection was other than the intersecting point at the time of the ejection, but it appeared that transfers had been habitually given at the new intersection. Held, that a contention that, under the circumstances, the rule was not applicable, and no transfer required, was without merit.

4. SAME-DAMAGES.

Where, in an action for the ejection of a passenger from a street car after he had presented a valid transfer, it appeared that plaintiff had previously had trouble in regard to transfers at the point in question, and had been assured by the officers of the carrier that he was right in his demands, and that transfers should be honored, a verdict for $175 was not excessive.

Exceptions from Superior Court, Providence County.

Action by Allen J. Arnold against the Rhode Island Company Verdict for plaintiff, and defendant brings exceptions from the denial of its motion for a new trial. Exceptions overruled.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

William J. Brown, for plaintiff.

Henry

W. Hayes, Frank T. Easton, Lefferts S. Hoffman, and Alonzo R. Williams, for defendant.

DOUGLAS, C. J. This is an action of trespass on the case, brought by a passenger upon one of the street cars which the defendant operated in the city of Providence, to recover damages for being forcibly ejected from the car by the defendant's servant. The plaintiff presented a transfer which he claimed to be good, but which the conductor refused to accept for his fare, demanding a further cash payment, which the plaintiff refused to pay. The plaintiff recovered a verdict of $175 in the superior court, and the presiding justice refused the defendant's motion for a new trial based on the ground that the verdict was contrary to the evidence, and that the amount was excessive. The exceptions allege error in the denial of the defendant's motion for a new trial, and in certain rulings of the court at the trial, and in the charge.

1. The first question raised by the excep tions is whether the form of action is correctly chosen; the defendant contending that, if the transfer were valid, the plaintiff should have paid the fare demanded and resorted to an action of assumpsit to recover it back. The cases which are cited by counsel, however, do not support this proposition to its full extent. Thus, it is held, in Norton v. Consolidated Ry. Co., 63 Atl. 1087, 79 Conn. 109, that a passenger who is aboard a street car without a proper transfer ticket, due to the negligence of the conductor of the car from which he was transferred, is entitled to sue for breach of contract for failure to furnish a proper ticket and recover the loss necessarily following therefrom, but he cannot refuse to pay his fare, and to forcibly resist being expelled from the car; and where he does so, and no more force is used than necessary to remove him from the car, he can only recover nominal damages. The case is supported by abundant citations from many jurisdictions, but it does not decide the issue presented to us. So, in Bradshaw v. South Boston R. Co., 135 Mass. 407, 46 Am. Rep. 481; Dixon v. N. E. R. Co., 179 Mass. 242, 60 N. E. 581; Kiley v. Chicago City Ry. Co., 189 Ill. 384, 59 N. E. 794, 52 L. R. A. 626, 82 Am. St. Rep. 460; Brown v. Rapid Ry Co., 134 Mich. 591, 96 N. W. 925the passenger did not present a ticket which entitled him to passage in the car in which he was traveling, as the plaintiff in the case at bar claims that he did. In Monnier v. N. Y. C. & H. R. R. Co., 175 N. Y. 281, 67 N. E. 569, 62 L. R. A. 357, 96 Am. St. Rep. 619, and in Crowley v. Fitchburg & L. St. Ry. Co., 185 Mass. 279, 70 N. E. 56, the passenger had no ticket at all. In Western Maryland R. Co. v. Schaun, 97 Md. 563, 55 Atl. 701, the passenger had an invalid ticket, and in McGhee & Fink, Rec'rs, etc., v. Reynolds, 117 Ala. 413, 23 South. 68, the ticket offered was void on its face. In Hufford v. Grand Rapids & Indiana Ry. Co., 53 Mich. 118, 18 N. W. 580, in the opinion, by Chief Justice Cooley, it is said: "If the conductor,

who was manager of the train, informed him that for any reason the ticket was one he could not receive, a contest with him over it must generally be very profitless, and therefore unadvisable. But we are all of the opinion that, if the plaintiff's ticket was apparently good, he had a right to refuse to leave the car."

We have no doubt that this is generally understood to be the law. It would be as reasonable to require the company to carry a man who refuses to pay his fare and sue him for it afterwards as it would be to require a man who presents the proper evidence that he has paid his fare to pay it again and resort to his action of contract to recover it. If the passenger is entitled to his transportation, and presents to the conductor the evidence of his right which the company has established for that purpose, he may lawfully resist expulsion and recover in a suitable action against the company for damage caused by the violence of its servant. In Atchison, etc., R. R. Co. v. Dickerson, 4 Kan. App. 345, 354, 45 Pac. 975, 978, the court treated a similar argument to the one here presented, as follows: "It is also contended that Dickerson could have escaped the humiliation and indignity by paying the excess, and then his measure of damages would be 10 cents; that he had no right to aggravate the damages by not complying with the demand of the conduct

or.

We are not partial to a rule that would require a person to submit to an extortion for the purpose of relieving the extortioner from the natural consequences of his acts." In Jeffersonville R. Co. v. Rogers, 28 Ind. 1, 6, 92 Am. Dec. 276, the court say: "It is argued that the utmost damages recoverable was the difference between the two rates of fare, 15 cents, by paying which all other inconvenience and damage would have been avoided. But no man is bound to submit to even a trifling extortion. If he had a right to be carried for the sum tendered to the conductor, then the expulsion was purely wrongful, and for the consequences thereof the defendant was liable. The plaintiff was under no obligation to purchase even for a trifle the right which was already his own. This principle is elementary." In N. Y., Lake Erie, etc., R. Co. v. Winter's Adm'r, 143 U. S. 60, 73, 2 Sup. Ct. 356, 36 L. Ed. 71, it is held that, where a party is rightfully on a car or train as a passenger, he has a right to refuse to be ejected from it, and to make sufficient resistance to being put off to denote that he was being removed by compulsion and against his will; and the fact that under such circumstances he was put off the car or train is of itself a good cause of action against the company, irrespective of any physical injury which he may have received. See, also, Murdock v. Boston & Albany R. Co., 137 Mass. 293, 50 Am. Rep. 307, and New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, 7 Sup. Ct. 1039, 30 L. Ed. 1049.

2. The next contention is that the statute requiring the defendant corporation to give transfers between its lines does not in terms require a transfer, such as the plaintiff had, to be accepted on the car on which he offered it, and that therefore a rule of the company making such a transfer valid is of no effect. The insufficiency of this argument is apparent. The statute, while requiring certain accommodations from the company, did not forbid it to grant more ample ones to the public. If the transfer offered by the plaintiff was good for passage upon the car where he offered it, according to the rule and practice of the defendant, it is immaterial, as ruled by the court below, whether the statute had compelled it to enact such a rule and establish such a practice. Its obligation to the public had been established by its own course of dealing, and so had become binding upon it by its voluntary act, whether it exceeded the requirement of the statute or not. The statute imposed upon the defendant the duty of giving transfers. The plaintiff had paid for passage along Brook street to Waterman, and thence along Waterman by either line passing that corner going east. The company had adopted a certain voucher to be presented to its conductors by a passenger, like the plaintiff, who claimed the right to ride on the Butler avenue line by transfer from another car. The company was therefore bound to see that its conductor accepted and honored the voucher which it had provided for that purpose. The language or marks on the transfer card were nothing to the plaintiff so long as it was the card which the defendant's rule made good for him to show on the car to which he transferred.

In order to understand the evidence in the case, it is necessary to know that Waterman and Angell streets between Prospect street and Wayland avenue run east and west, substantially parallel to each other, Angell street lying to the north of Waterman; and that Brook street runs north and south, crossing Angell street at right angles. At the time to which the case relates the Dyer avenue line, after crossing Brook street, ran easterly on Waterman street to Wayland avenue, thence northerly to Angell street, thence easterly to Butler avenue, thence northerly to Blackstone boulevard, and along Blackstone boulevard to the entrance of Swan Point Cemetery. The Elmgrove avenue line ran over the same route to Angell street, thence westerly on Angell street to Elmgrove avenue, and thence northerly on Elmgrove avenue to its termination. About half past 6 p. m., June 14, 1905, the plaintiff, who wished to go from his place of business on Brook street to his home on Elmgrove avenue, boarded a Brook street car going north on Brook street. He paid his fare, and asked for and received a transfer to the Elmgrove avenue line. When he reached the corner of Waterman street and Brook, the Elmgrove avenue car had passed

the circumstances to Albert E. Potter, who was then the superintendent of transporta

charge of all conductors and motormen and issued all instructions and rules of government for the lines of the company; that on these occasions his fare was refunded, and he was told by Mr. Potter that, under the rules of the company, an Elmgrove avenue transfer from Brook street was good on a Dyer avenue car. This evidence was corroborated by Mr. Potter, who was called by the plaintiff, and also by Roscoe E. Anderson, chief clerk of the transportation department of the defendant, who also assented to the existence and application of the general rule quoted above. The objections which are made and urged to the admission of evidence during the trial, and the objection to the charge, relate to this testimony. They are not strenuously relied upon before us, and an exhaustive examination of the specific objections does not show us that any substantial error was committed in the admission of the questions to which they relate, or in the comments thereon in the charge.

by, and he boarded the next car going east on Waterman street, which was a Dyer avenue and Swan Point car. When the plain-tion of the defendant company, and who had tiff's fare was demanded by the conductor, he tendered the said transfer, which the conductor refused to accept, upon the ground that it was not good upon that line. After some conversation, in which the plaintiff informed the conductor that he had been assured by Mr. Potter, the general superintendent of transportation, that such transfers were good on that line, and in which he requested the conductor to take from his pocket the printed regulations of the company, which directed him to receive such transfers upon that line, the conductor persisted in refusing the transfer, insisted that the plaintiff must pay his fare, or he would put him off the car; and thereupon, the plaintiff refusing to pay his fare, the conductor stopped the car, and with the assistance of the motorman removed the plaintiff from the car, using such force as was necessary. There was no contradiction of this evidence, the defendant calling no witnesses. The plaintiff accepted the burden of showing that the transfer which he offered was valid. To prove this he introduced a rule of the company for the guidance of its conductors, as follows: "Dyer Avenue and Butler Avenue Line. On east bound trips conductors will honor transfers punched for Butler Ave., Elmgrove Ave., or Red Bridge, E., in accordance with the general rules and time limit, telling the passengers how far you go on Angell street." It appeared also in evidence that, some time previous to the occurrences to which this action relates, a change had been made in the direction in which these lines of cars were run on Waterman and Angell streets. When this rule was printed, it was the custom for the Dyer avenue, Elmgrove avenue, and Red Bridge lines of cars to run easterly on Angell street and to return westerly on Waterman street, instead of running easterly on Waterman street and returning westerly on Angell street, as they did at the time in question. It was seriously urged that this rule could have no application to the state of affairs existing after the change of direction, although the testimony was overwhelming that the rule still continued in force and operation, simply making the transfer point from Brook street the corner of Waterman street, instead of the corner of Angell street, and reversing the change to passengers changing to Brook street. The new point of intersection became, of necessity, the point of transfer, and the rule applied as before.

In further support of the validity of his transfer, the plaintiff testified that on two occasions previous to the 14th day of June, 1905, the last time some six or eight weeks before that date, the Dyer avenue conductor had refused to accept from the plaintiff a transfer from the Brook street line to the Elmgrove avenue line; that on each occasion the plaintiff had paid his fare and reported

3. The final ground of exception is that the damages assessed were excessive. Considering all the facts of the case, we do not think so. The plaintiff had submitted to the impositions practiced upon him by the servants of the defendant until forbearance had ceased to be a virtue. In each preceding case he had been assured by the managing officers of the road that he was right in his demands, and that the rule which he was informed was in operation should be observed. Nothing less than substantial damages would seem likely to compel the company to see that its regulations should be obeyed by its servants. The plaintiff's counsel has cited a number of cases in which larger verdicts have been sustained in no more aggravated cases. Among them are Finch v. No. Pac. R. Co., 47 Minn. 36, 49 N. W. 329; Chicago, etc., R. Co. v. Holdridge, 118 Ind. 281, 20 N. E. 837; Hardenbergh v. St. Paul, etc., Ry. Co., 41 Minn. 200, 42 N. W. 933; Lake Shore, etc., R. Co., v. Teed, 14 Ohio Cir. Ct. 355, 6 O. C. D. 339. Our conclusion, upon the whole case, is that the exceptions must be overruled, and the cause remanded to the superior court for judgment on the verdict, and it is so ordered.

On Rehearing.

PER CURIAM. The opinion of Judge Brayton in Hagan v. Prov. & Wor. R. R. Co., 3 R. I. 88, 62 Am. Dec. 377, approved in Staples v. Schmid, 18 R. I. 232, 26 Atl. 193, 19 L R. A. 824, and in Vogel v. McAuliffe, 18 R. I. 796, 31 Atl. 1, holds that punitive damages are not allowable in a suit based on the tort of a servant, unless the principal participates in or approves the servant's act. In the case at bar, the offense had been twice before threatened by servants of the defendant, and the plaintiff had notified the defendant of

« ΠροηγούμενηΣυνέχεια »