and was not paid by a member on account of dues, but was paid to satisfy a debt due the association. Of course, such payment must be made to some one who is either specifically or impliedly authorized to receive it. As all of Beardsley's dealings with the association were had through Belcher, as he received the money from Belcher when he gave the bond and mortgage, and received from Belcher the word as to when he should attend to pay the same off, and, upon going to the Paterson office of the association, found Belcher there with the bond and mortgage, I think the only proper conclusion is that he was justified in believing that Belcher was authorized by the association to receive the debt due upon that bond and mortgage. And to the extent that Baker's rights are involved, certainly he was justified in assuming that this bond and mortgage were being properly paid off when the money therefor was paid to the president of the association who had physical possession of the bond and mortgage. Although it is argued by the complainant that the president was not the proper person to execute or sign the informal certificate of cancellation, there is nothing to support this contention. I know of no law which, of itself, designates what officer of a corporation is the proper one to make such an informal certificate. While it may be true that the treasurer is the indicated person to sign a receipt for money received by the company-or, perhaps, in cases where the secretary is the proper person to receive the money as in this case, he should be held to be the indicated person to sign a receipt the writing in question is not a receipt. It is an indorsement upon a mortgage, certifying that it has been paid and satisfied, and directing or authorizing its cancellation. Such a writing, it seems to me, in the absence of any specific law or by-law upon the subject, should more properly be made by the president than by any other officer, since his are general powers; and this is a writing in the name of the corporation of a general nature. Therefore, I find that the defendants Beardsley and Baker were justified in assuming that Belcher, as president, not only was authorized, as I have previously found, to receive the money, but also to make the certificate of cancellation upon the mortgage which he did make.

There is ample testimony to show that this association intrusted large powers to Belcher, and carried on a large part of its business through him, having its Paterson office as just stated in his private office, where it kept its safe in which its securities were contained. While it is true that the treasurer testifies that he had the Beardsley bond and mortgage at one time, and put them in the safe, and kept the key of the portion of the safe in which these papers were contained, it also appears that numerous other mortgages were paid off to Belcher, and I think it clear that he did have physical possession of them for that purpose. The treasurer swears that he did not give this bond and mortgage to Bel

cher, but there is no explanation as to how Belcher got them; and, if the treasurer's testimony is true, Belcher could not have obtained them. The very fact that he had them shows that he did have access to the securities of the association, or that the treasurer did give them to him. In any event, as against the innocent persons whose moneys were paid in good faith on account of this bond and mortgage, I think it proper to hold, under the proven facts, that the carelessness or negligence of the association and its officers was the proximate cause of the loss. Under such circumstances the authorities are clear that the association should be the one to bear the loss.

Furthermore, there is proof that during the 10 years of Belcher's presidency 84 mortgages were canceled in the clerk's office of Passaic county, of which 28 bore substantially similar indorsements to the one in question; 3 thereof were canceled on a certificate signed by Allee, the secretary; 1 on the signature of Belcher, as president, and Allee, as secretary; 10 on the signatures of Belcher, as president, and Roe, as treasurer; 39 on the signature of Roe, as treasurer; and 3 certificates of discharge signed by the president and secretary under the seal of the association. It thus appears, not only from the oral testimony, but from the records of the county, that Belcher constantly exercised this power, and that he must have exercised it to the knowledge, and with the consent, c the association. Under all the circumstances therefore, I conclude that this mortgage was properly canceled.

The only other matter relied upon by the complainant is that since the mortgage was recorded in full, and not merely registered in abstract, it cannot be properly discharged excepting by a certificate of discharge duly acknowledged or proved and recorded. The argument is that 2 Gen. St. p. 2107, § 23, pròvides that when a mortgage is registered, and shall be redeemed and paid, it shall be the duty of the clerk, on application of the mortgagor or person paying the same, and producing to him said mortgage canceled, or a receipt thereon signed by the mortgagee, etc., to enter in a margin to be left for that purpose a minute of said redemption, payment and discharge, which minute shall be a full and absolute bar to and discharge of the said entry, registry, and mortgage; while section 25 provides that any mortgage that has been recorded or registered shall be discharged upon presentation of a certificate signed by the mortgagee, his heirs, etc., acknowledged or proved, and certified in the manner prescribed, etc., and that every such certificate shall be recorded and a reference made, etc. Therefore, the complainant claims that, unless the certificate of discharge is acknowledged and recorded as provided by the twenty-fifth section, the alleged discharge is not effective. By going back to the Revision of 1846 (Nixon, Dig. pp. 526, 527), it will be found that in sections 1 and 5 of the act

to register mortgages the words "record" or "recording" are used synonymously with the words "register" or "registering." Since the registry of a mortgage has a limited use for the purposes of evidence, there was in 1858 (P. L. p. 90), enacted a supplement to the act to register mortgages, providing for their being registered or recorded in full, and such record then became receivable in evidence as copies of deeds are. In 1869 the act was passed which is now section 25 of the General Statutes (page 2107), providing for another and fuller discharge of mortgages by the instrument therein provided for. I am of opinion that this is not an exclusive method, and that the other statutory method as contained in section 23 of the same act (page 2107), is equally effective.

The result is that the bill must be dismissed, with costs.

(79 Conn. 498)

GILMORE v. AMERICAN TUBE & STAMPING CO.

(Supreme Court of Errors of Connecticut. March 5, 1907.)

1. MASTER AND SERVANT INJURIES TO SERVANT-NEGLIGENCE-INSPECTION.

Plaintiff was injured while operating a steel drop press by the parting of a belt due to a defective lacing. The work of adjusting the lacings was not easily accomplished by operators of the presses, and had been placed on a superior servant in charge of some 35 of such presses in defendant's factory. Plaintiff was not familiar with the lacing of the belts, and could only have ascertained that the lacing was defective by making a special inspection. Held, that defendant did not perform its entire duty by furnishing suitable material and a competent servant to lace the belts, but was negligent in failing to inspect the lacing.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, 88 235-242.] 2. SAME FELLOW SERVANTS VICE PRINCIPAL.

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Plaintiff's superior servant, whose duty it was to lace the belt, was not plaintiff's fellow servant with reference to such act, but a vice principal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 422, 486-489.] 3. EVIDENCE EXPERT WITNESSES PETENCY.

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Where, in an action for injuries to a servant caused by a defective belt lacing attached to a drop press, an expert on such presses denied knowledge as to belt lacings, he was not competent to testify as to what lacings were suitable, how they should be used, and when they should be inspected and replaced.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 2349-2352.]

4. MASTER AND SERVANT-INJURIES TO SERVANT-ACTIONS-EVIDENCE.

In an action for injuries to a servant caused by the defective lacing of a belt attached to a power press. evidence that defendant for 15 years before the occasion in question had exercised reasonable care in examining the lacings and replacing worn ones did not justify an inference that reasonable care was exercised in lacing the belt in question.

5. EVIDENCE-STATEMENTS TO PHYSICIAN.

In an action for injuries, evidence of complaints by plaintiff to his physician of the

"wound throbbing at night and loss of sleep," made during the actual treatment of the wound, was admissible.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 383-387.]

6. MASTER AND SERVANT-INJURIES TO SERVANT-CONTRIBUTORY NEGLIGENCE.

Where, in the operation of certain machinery, all of plaintiff's fingers on his left hand were injured, and, if he had followed instructions, only his thumb and his first and second fingers would have been injured, plaintiff's failure to comply with the instructions did not constitute negligence contributing to his injuries.

Appeal from Superior Court, Fairfield County; Edwin B. Gager, Judge.

Action by Charles H. Gilmore against the American Tube & Stamping Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Arthur M. Marsh and Henry B. Stoddard, for appellant. Stiles Judson, for appellee.

HALL, J. The finding states substantially these facts: The paintiff sustained a serious injury to his hand by the falling of a heavy hammer of a drop press which he was operating as an employé of the defendant. The cause of the fall of the hammer was the parting in two places of the lacing of a double canvas belt by which the hammer was raised. The parting of the lacing was due to the facts that at the time of the accident it was badly worn so that it was ready to part at certain points; that from previous wear it was unfit for further use when it was last placed in the belt before the accident; and that, owing to the character of the lacing used, it was improperly placed in the belt, in that it was not doubled in drawing it back and forth through the three holes in the four layers of the double belt, where it was turned back to attach it to an iron sling by which it was connected with the hammer. The drop press in question, with many others in the same room, were under the care of a foreman, one Shea, a competent workman selected and assigned for the purpose, without negligence, by the defendant, whose duties, among others, were to watch the condition of the drop presses, replace broken belts, insert belt lacings when necessary, and to operate one of the drop presses when his other duties permitted. For the purpose of cutting belt lacings therefrom to be used in the factory, the defendant kept a stock of lacing hide, which had been carefully inspected by competent persons, in a room adjoining the pressroom and available to said foreman when wanted. The belt lacing at the points where it parted were not observable to an operator of the press, and its condition at these points could only be discerned by a particular examination after separating the double belt. There was no mechanical obstacle to prevent the plaintiff from pulling down the belt on his machine and unlacing it, and examining the lacing, but it was not his duty to do so. He had never been requested to, and he was

not familiar with the use of lacings. He had no knowledge of the condition of the lacing, and paid no attention to it. It was the duty of the men in the pressroom to report the fact to Shea when a belt broke or a machine became out of order. The examination and inspection of the lacings had been confided only to Shea, and he was familiar with these duties and had performed them for several years. The life of the inner belt, of the double belt, which alone comes in contact with the pulley above the purpose of the outer belt being for protection when the inner one breaks-is, in ordinary continuous use, about three months, and of a belt lacing, in ordinary continuous use, about six months. When a lacing was taken out on account of the breaking of an inner belt of a drop press, Shea examined it, and it was his duty, if the lacing was found to be sound, to place it in use again, otherwise to discard it and put in a new one. The defendant did not cause the belt laces to be inspected except as above stated. The belt on the press in question had been in use about three months, and the lacing, when then placed in it, was, from previous wear, unfit for use. Shea knew, or by the use of ordinary care would have known, the defective condition of the lacing. He was negligent in using the worn lacing, in placing it in the belt without doubling it, and failing to inspect and replace the lacing as frequently as was reasonably necessary to prevent accident. The defendant used reasonable care in the selection and supervision of the fellow servants of the plaintiff, and in the furnishing of materials provided for his employment. No belt lacing on a drop press had ever broken before in the factory during the many years the defendant had used them. These facts fall short of establishing what the defendant undertook to prove upon the hearing in damages, that it had fulfilled its duty to the plaintiff to exercise reasonable care to provide for him "reasonably safe appliances and instrumentalities for his work."

Conceding that it appears that the defendant at all times kept suitable material in a proper place ready for use from which sufficient belt lacings could have been cut, the case at bar differs in many important respects from Whittlesey v. New York, N. H. & H. R. Co., 77 Conn. 100, 58 Atl. 459, 107 Am. St. Rep. 21, and from Kelly v. New Haven Steamboat Co., 74 Conn. 343, 50 Atl. 871, 57 L. R. A. 494, 92 Am. St. Rep. 220, and other cases cited by the defendant, in which it was held that the master is not liable when he has provided his workmen with suitable appliances and materials which it is within their capacity to use, and the use and care of which are incidental to their work, or are matters of detail entrusted to operators in the management of safe machinery. It appears in the case before us that the duty of preparing and placing lacings in belts was never imposed upon the

plaintiff, nor upon any other mere operator of a drop press, but upon Shea. It does not appear that the work of preparing and adjusting the lacings were acts easily accomplished by the operators of the drop presses, and which did not require the services of a person of special skill. It does appear that the plaintiff was not familiar with that work, and that upon the 35 drop presses in the defendant's factory that work had been intrusted entirely to Shea for several years. While the duty of inspection is sometimes of such a character that it may properly be imposed upon either the employer or employé (Bergin v. Southern N. E. Telephone Co., 70 Conn. 54-65, 38 Atl. 888, 39 L. R. A. 192), the finding shows very clearly that in this case it was not imposed upon the operator, since it appears that the condition of the lacing was not observable to him; that it could only be discovered by a particular examination, and since, as we have stated, it appears that the duty of watching its condition was imposed upon Shea. In preparing the lacings, placing them in the belts, and inspecting them Shea was not acting as a fellow servant of the plaintiff. The defendant argues that Shea was not a foreman, and did not have control over the other men. Shea is referred to in the finding as a "foreman." Whether he had authority over the other men does not appear. But the relative rank of Shea and the plaintiff in the defendant's business is not as reliable a test of whether they were fellow servants as the "nature and character of the duty violated by the offending servant." Whittlesey v. New York, N. H. & H. R. Co., 77 Conn. 100-102, 58 Atl. 459, 460 (107 Am. St. Rep. 21); Kelly v. New Haven Steamboat Co., 74 Conn. 343-346, 50 Atl. 871, 872 (57 L. R. A. 494, 92 Am. St. Rep. 220). That Shea at times operated a drop press did not render him a fellow servant with the plaintiff as to the other duties of the former, the failure to properly perform which caused the accident. These duties which included the exercise of reasonable care in keeping the belt attached to the iron sling connected with the hammer in such a manner and with such belt lacings that the drop press could be operated safely by the person working upon it, and also in inspecting the lacings to ascertain when they were so worn as to require replacing, were, upon the facts before us, duties of the employer. The employer intrusted these duties to a competent agent, Shea, and furnished him with necessary materials for discharging them. But this did not relieve the defendant from responsibility for the negligent failure of Shea to perform those duties. "The designation of an agent, however fit and competent, does not * relieve the master from further responsibility. Until the agent thus selected and empowered, in fact acts up to the limit of the duty of his master to act, the master's duty is not done." McElligott v. Randolph, 61 Conn. 157-162, 22 Atl. 1094, 1095 (29 Am. St. Rep. 181); Rin

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cicotti v. O'Brien Contracting Co., 77 Conn. 617-620, 60 Atl. 115, 116 (69 L. R. A. 936). During the trial one Stapely, having qualified as to his "expert and practical knowledge of drop presses and their operation," but not of the strength or endurance of leather lacings, was asked by defendant's counsel the following question: "Supposing in the operation of 30 or 40 drop presses over a period of 15 or 16 years the lacings at the point which we have looked at on Exhibit 2 are examined when the under belt is changedthat is, the under belt breaks perhaps every three or four months-when it does a new belt has to be put on, the lacing is taken out, and then examined, and either replaced or a new one put in, and in that time in the experience of that establishment no accident from the breaking of the lacing has occurred, and the lacing which has been used over this period of years has been substantially of uniform quality and size and length, and the lacing has been of the same character over that period-what is your opinion on these assumed facts about the care and prudence that it indicates in the maintenance of those machines?" This inquiry was properly excluded. Apparently the witness had not qualified as an expert upon the question of what belt lacings were suitable; how they should be used; and how often they should be inspected and replaced with new ones, which were the important matters affecting the question of negligence in this case. And, further, the fact that the defendant, for a period of 15 years before this time had, when putting on a new belt, exercised reasonable care in examining the lacings and in replacing those worn out with new ones, did not tend to prove that it did so when this lacing was last put in the belt.

The ruling of the court admitting the complaints of the plaintiff to his physician of the "wound throbbing at night and loss of sleep" was correct. As the complaints were made during the "actual treatment" of the wound, they were, in the absence of evidence to the contrary, presumably made for the purpose of receiving medical treatment and advice, and when made for that purpose were admissible. Martin v. Sherwood, 74 Conn. 475-482, 51 Atl. 526, 528; Wilson v. Granby, 47 Conn. 59-76 (36 Am. Rep. 51). When the plaintiff was injured, he was stamping what is known as a "steel dome," and was in the act of seizing one to remove it from the iron stand of the press, when the hammer with the stamping form attached to it fell upon his left hand, crushing the fingers in a diagonal line, from and including the knuckle of his little finger, to and including the first joint of his first finger, so that it was necessary to amputate the crushed portions of the fingers. He had been adequately instructed by the defendant as to the proper and careful method of inserting and removing the steel domes, by the thumb and the tips of the first and second fingers.

When the hammer fell he had placed under it at least so much of his hand as was injured, and the court finds that in so doing he increased the injury to the extent that, had he followed the proper method, his injury would have been limited to his thumb and his first and second fingers.

Among the reasons of appeal assigned are that the court erred in ruling that the defendant had failed to sustain the burden of proof as to contributory negligence, since the facts showed that the plaintiff placed nearly his whole hand under the hammer in violation of instructions; and in rendering judgment for the full amount of damage suffered by the plaintiff, including that caused by his own misconduct and negligence. These reasons of appeal cannot be sustained. The finding shows that the entire injury sustained by the plaintiff was caused by the fall of the hammer occasioned by the negligent failure of the defendant to place and keep in the belt in a proper manner a suitable lacing, and that the plaintiff's conduct "in no way contributed to cause the falling of the hammer." It does not appear that the plaintiff increased or added to the extent of his injury by any act of misconduct or negligence. The finding does not state that in placing his hand under the hammer the plaintiff was guilty of negligence, but, on the contrary, expressly says that he was "exercising due care when said injury occurred." This finding is conclusive unless the want of such care is a necessary inference from other facts found. It does not necessarily follow that the plaintiff was negligent because he was removing the steel dome in a different manner from what he had been instructed was the proper way, even though it appears that he would have received a less injury, or even no injury, had he followed the directions given him. The court finds that "the injury to the plaintiff was not due to the ordinary danger incident to the use of a press in reasonably safe condition." It was evidently that ordinary and obvious danger only arising from the possibility of injury from a wrong motion of the hand of the operator in inserting or removing the article to be stamped, or of the foot in controlling the motion of the hammer against which it was intended to warn the plaintiff by the instructions given him, and not the danger that the belt might break from the improper use of unsuitable lacing, a source of danger wholly unknown to the plaintiff, and the one from which his injury really resulted. Laving successfully avoided the danger against which he was warned, he was not necessarily negligent in failing to remove the steel dome in a particular way for the purpose of avoiding a danger which he had no reason to anticipate. This question is very fully discussed in the case of Smithwick v. Hall & Upson Co., 59 Conn. 261-268, 21 Atl. 924, 12 L. R. A. 279, 21 Am. St. Rep. 104, where it was held that the plaintiff was not prevented from recovering

the full amount of the damage sustained by him by a fall from the platform upon which he was standing, caused by a danger arising from the defendant's negligence, against which the plaintiff had not been warned, by proof that he would not have fallen if he had obeyed his employer's order not to stand upon that part of the platform. The court properly granted the plaintiff's motion to correct the finding and denied that of the defendant.

There is no error. All concur.

(79 Conn. 535)

In re ANDERSON'S APPEAL. (Supreme Court of Errors of Connecticut. March 6, 1907.)

1. EVIDENCE OPINIONS OF EXPERTS HYPOTHETICAL QUESTIONS.

Where a medical expert testified on crossexamination that his judgment as to testator's capacity was based to some extent on the will which the witness had read, but that his opinion would have been the same if based on the hypothetical question alone, the court properly refused to charge that the opinion of the witness should be disregarded, because not based entirely on the assumed facts.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 2376.]

2. TRIAL-PROVINCE OF JURY-INSTRUCTION.

On an issue of testamentary capacity, a request to charge that the opinions of experts should be disregarded, unless the jury should find that all the facts stated in the hypothetical question propounded to such experts were true, was properly refused; the weight to be given to such opinions being for the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 439-446.]

3. APPEAL-EVIDENCE-PREJUDICE.

Where, in a will contest, if the jury found the facts assumed in a hypothetical question propounded to experts to be true, they should have found the verdict they did irrespective of the evidence of such experts, proponent was not prejudiced by the refusal of the court to sustain an objection to such question.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4229, 4230.] 4. SAME ASSIGNMENTS OF ERROR.

An assignment that the court erred in charging the jury, as stated in appellant's proposed finding of facts, and as stated in the finding of the court, was too general to constitute a proper assignment of error.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3. Appeal and Error, §§ 3013-3016.]

Appeal from Superior Court, Fairfield County; Edwin B. Gager, Judge.

Application for the probate of a writing dated March 4, 1902, as the last will of David Hoyt, deceased. From an order disallowing probate of such instrument, and admitting to probate a writing, dated October 26, 1894, as the last will of said Hoyt, Gertrude M. Anderson appeals. Affirmed.

J. Belden Hurlbutt and Levi Warner, for appellant. John H. Light, for appellees.

HALL, J. The testator, David Hoyt of Norwalk, died March 8, 1902, in the eightieth year of his age. It was admitted upon the

trial in the superior court that an instrument, executed by him on the 26th of October, 1894, was his last will, unless one executed by him on the 4th of March, 1902, was a valid will. The appellees claimed that when the testator signed the second will he was of unsound mind, and was induced to execute it by the undue influence of the appellant, and, in support of this claim, asked of one Dr. Huntington, as an expert witness, the following hypothetical question: "David Hoyt, in the 80th year of his age, after two or three weeks' sickness with a cold, though not confined to the house, was taken down with pneumonia on March 2, 1902, from which he died on Saturday, March 8, 1902. He gradually grew worse from the time he was taken sick, until the time he died. Tuesday morning, March 4th, at 10 o'clock, he was suffering very much, and breathing with great difficulty, and he did not recognize his brother who called and spoke to him. About 2 o'clock in the afternoon of the same day his sister called, and found him lying on his back breathing with great difficulty, and making no effort to move. She spoke to him, but he did not recognize her. Before she left the house an attorney at law called to have him execute a will. Immediately after his sister left the house, Mr. Hoyt went through the form of executing a will. Just after this work was finished, and before the lawyer left the house, Mr. Husted, an old friend of the sick man called, and passed into the sick room, and spoke to Mr. Hoyt, but he did not recognize him; and while he was present Mr. Hoyt talked incoherently. That evening between 6 and 7 o'clock, a nephew of the sick man called upon him, and found him suffering very much, and heard him talk incoherently; and during the same hour Mr. Mayhew, a friend and neighbor of Mr. Hoyt called and found him very sick, and tossing about the bed and mumbling something to himself, and Mr. Mayhew spoke to him, but was not recognized. Assuming the foregoing fact to be true, was the testator, in your opinion, capable of planning and executing such a paper as is here offered as his will?" The attorney for the appellant objected to this question, upon the ground that it required the witness to give an opinion as to the sufficiency of the will, and upon the suggestion of the court it was amended, so that the last sentence of it read as follows: "Assuming the foregoing facts to be true, was or was not the testator, in your opinion, a person of sound mind?" question thus amended was asked by the appellant of said witness, and of several other doctors as expert witnesses, and answered by them without objection.

This

Upon the cross-examination of Dr. Tracey, one of said expert witnesses, as to the facts assumed in the hypothetical question, and the effect of certain of such assumed facts, he was asked, among others, the following questions, and gave the following answers: