(107 A.) upon the construction it should receive. The Vermont." Courts do not take judicial nostatute makes a person liable for the death tice of foreign laws or the laws of other of another who is not in his employment or states, and when a statute of another state is service, if occasioned by his negligence, or relied upon as establishing a duty or right of by the gross negligence of his agents or serv-action it must be set forth in the complaint ants. Thus by the express terms of the stat- and proved as a fact. A complaint counting ute he is made liable in any case for ordi- upon a statute of another state should set nary negligence when the death is caused by forth the statute and facts so specifically his own act; otherwise there would be no that the court can see that the plaintiff has a occasion for the qualifying word "gross" in right of action against the defendant. Mcfixing liability for the act of his servant or Leod v. Conn. & Pass R. R. Co., 58 Vt. 727, agent. This is the interpretation given the 6 Atl. 648; Peck v. Hibbard, 26 Vt. 698, 706, statute by the Supreme Judicial Court of 22 Am. Dec. 605; Morrisette v. Canadian Massachusetts. It was said in Brennan v. | Pac. R. Co., 74 Vt. 232, 244, 52 Atl. 520. In Standard Oil Co., 187 Mass. 376, 73 N. 472, referring to this statute: E. "The statute upon which the plaintiff relies recognizes or creates a distinction between ordinary negligence and gross negligence. Death caused by the personal negligence of a defendant, without fault of the deceased person, creates a liability. But for a death caused by the negligence of the defendant's servants there is no liability unless the negligence is gross." [9] After verdict and before judgment the defendant moved in arrest on several grounds, two of which are relied upon here. The court overruled the motion pro forma and allowed the defendant an exception. It is now urged that the motion should have been sustained (1) because it is not alleged in the complaint that the action survives under any law or statute of Massachusetts, and (2) because the statute under which plaintiff claims to recover is not set out in the complaint. As to the first ground, defendant misconceives the nature of the action. The statute gives the right of action to the executor or administrator of the deceased for the benefit of the widow and the next of kin, and it accrues only on the death of the kinsman. Respecting such a right of action there can be no question of survivorship. [10, 11] Concerning the further ground of the motion the complaint charges, among other things, in substance, that at the time and place in question plaintiff's intestate was a passenger for hire riding in an automobile owned, controlled, and operated by the defendant; that solely through the negligence of the defendant (which is specially alleged), and while in the exercise of due care upon her part, she was severely injured (in a manner set out in the complaint), resulting in her death; that she left surviving her a husband and two children, named in the complaint; that on a day named plaintiff was appointed administrator upon the estate of the deceased; and that "pursuant to the premises aforesaid and under and by virtue of the laws of the commonwealth of Massachusetts an action has accrued to the plaintiff to have and recover his damages herein stated, which cause of action is prosecuted in accordance with the laws of the state of other words, a party relying upon the law of another state must plead it, though not necessarily in haec verba, and then allege such facts as bring the case within the law. See 8 R. C. L. 816; Gould's Pl. c. III, § 16, n. 3; Jenness v. Simpson, 81 Vt. 109, 69 Atl. 646, 130 Am. St. Rep. 1029. [12, 13] It is clear that this complaint is so far defective in the respect claimed that it would not withstand a demurrer, and it is doubtful, to say the least, whether the defect is cured by the verdict. See Pette's Adm'r v. Old English Slate Co., 90 Vt. 87, 92, 96 Atl. 596. But the case was tried in all respects as it would have been had the statute been pleaded. The statute was proved without any suggestion of the defect in the complaint and all questions thereunder were fully litigated. This being so, we spend no time over the technicality presented by the motion and grant the plaintiff's request for leave to amend in this court. This course has the sanction of the Practice Act (G. L. 1796); besides, it being apparent from the record that the amendment would merely make the allegations conform to the proof and that the course of the trial was not affected by the omission to set out the statute, an amendment should be permitted in this court to avoid a reversal. Chaffee v. Rutland R. R. Co., 71 Vt. 384, 45 Atl. 750; Laker v. Sherman & Miller, 73 Vt. 26, 50 Atl. 633. [14] At the time of rendering judgment the court adjudged that the cause of action arose from the willful and malicious act of the defendant "and for willful and malicious injuries to the person and property of the plaintiff's decedent," and that he ought to be confined in close jail. Defendant objected and was allowed an exception to the finding upon the ground that it was not warranted by the evidence, and upon the further ground that the court had no right, as a matter of law, to make such a finding upon the evidence in the case and the pleadings. The only question presented by this exception about which there can be any room for doubt is whether the evidence warranted the court in making the quoted portion of the finding. Otherwise it is clearly supported in law and fact. far as the pleadings affect the question, it is enough to say that an allegation that the act So of the court was to adapt its finding both to our statute authorizing a close jail certificate and to the provisions of the Bankruptcy Act July 1, 1898, c. 541, 30 Stat. 544 (U. S. Comp. St. §§ 9585–9656), excepting liabilities for willful and malicious injuries to the person or property of another from the operation of a discharge in bankruptcy. As we hold that the finding now under consideration would be material on the question of a discharge in complained of was willful and malicious is [ portion of the finding. The evident intention not essential. See Flanders v. Mullin, 80 Vt. 124, 66 Atl. 789, 12 Ann. Cas. 1010. If the action is founded upon a tort, on proper motion it devolves upon the trial court to say, considering the facts, whether the cause of action arose from the willful and malicious act of the defendant, and whether he ought to be confined in close jail. G. L. 2384. It is so far a question of fact and matter of discretion that it is not reviewable here, if there is any supporting evidence. Larrow v. Mar-bankruptcy (Flanders v. Mullin, 80 Vt. 124, tell, 104 Atl. 826; Mullin v. Flanders, 73 Vt. 95, 101, 50 Atl. 813; Sartwell v. Sowles, 72 Vt. 270, 48 Atl. 11, 82 Am. St. Rep. 943; Sheeran v. Rockwood, 67 Vt. 82, 30 Atl. 689, and cases there cited. 66 Atl. 789, 12 Ann. Cas. 1010), it must be subjected to the test of the meaning of the exception in the Bankruptcy Act. It is there provided: such * "A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except are liabilities for willful and malicious injuries to the person or property of another." as The term "willful and malicious injuries," as there employed, has been construed by the Supreme Court of the United States in Tinker v. Colwell, 193 U. S. 473, 24 Sup. Ct. 505, 48 L. Ed. 754, and McIntyre v. Kavanaugh, 242 U. S. 138, 37 Sup. Ct. 38, 61 L. Ed. 205. The rule there laid down furnishes the test to be applied here. It comes to this: The term does not necessarily involve hatred or ill will as a state of mind, but signifies a wrongful act done intentionally, without just cause or excuse. Peters v. United States, 177 Fed. 885, 101 C. C. A. 99, affirmed without opinion in United States v. Peters, 217 U. S. 606, 30 Sup. Ct. 696, 54 L. Ed. 900. The malice contemplated is involved in the intentional doing of a wrongful act, in disregard of what one knows to be his duty, to the injury of another. [15] The defendant's conception of a willful and malicious act, in contemplation of our statute, is erroneous. A wrong that is purposely done is willfully done, but it is not necessary that injurious results be intended. The force given to the words "willful and malicious," as here used, may be gathered from the following among many illustrative cases: Hill v. Cox, 54 Vt. 627; Boutwell v. Harriman, 58 Vt. 516, 2 Atl. 159; Judd v. Ballard, 66 Vt. 668, 30 Atl. 96; Mullin v. Flanders, 73 Vt. 95, 50 Atl. 813; Pitkin v. Munsell, 90 Vt. 268, 97 Atl. 657; Larrow v. Martell, 104 Atl. 826; In re Cote, 106 Atl. 519. The presiding judge certifies that the finding was based wholly upon the evidence before the jury. The transcript is referred to and made controlling. It discloses that the court had before it evidence, viewed in the light most favorable to the plaintiff, tending to show that the defendant, having sufficient intelligence and experience to comprehend the possible consequences of his act, though practically unacquainted with the road he was traveling, of his own volition and in violation of the statute relating to The question has so recently been before speed, drove his automobile carrying four the court in the Cote Case, cited above, where passengers for hire through a fog so thick the exception in question was under considthat, as the car was lighted, he could not see eration, that an extended review of the aumore than 7 feet ahead, at the rate of 35 to thorities is unnecessary. This and the other 40 miles an hour, over a wet and slippery cases cited above are full authority for holdmacadam road, being fully aware of the dan-ing, as we do, that there was evidence to ger from skidding if the brakes were sudden- support the finding. Its weight and credibilly applied. With evidence of such reckless ity are not for us, but were for the trial and wanton disregard for the safety of his court. passengers before it, it is idle to say that the court was not warranted in granting a close jail certificate. [16] It only remains to consider whether the trial court erred in making the quoted The defendant's exceptions are overruled. The plaintiff may amend his complaint by filing an amendment setting out the Massachusetts statute; and when such amendment is made, the judgment will be affirmed. (107 A.) (93 N. J. Law, 31) (Supreme Court of New Jersey. June 28, 1919.) 2. CORPORATIONS 201— ELECTIONS - DISFRANCHISEMENT OF STOCK UNANIMOUS CONSENT EVIDENCE. Application by Schenck S. Thompson and others against E. Thurston Blaisdell and others, for summary investigation of a corporate election. New election ordered. facts are supposed to require the court to establish the right of the incumbents, pursuant to the injunction of section 42 of the act requiring us to give such relief in the premises as right and justice may require. [1] The facts are that Albert gave the proxy to Theodore on March 24th; that afterwards, on April 5th Theodore determined to buy the stock at Albert's request, and sent Albert a check for the purchase price. Albert signed a transfer, but Theodore did not register the transfer on the books of the company, and the stock still stood in Albert's name on May 13th, the day of the election. His reason seems to have been that there was a real or supposed right of pre-emption in the company, and he desired to avoid any question as to his title to the stock. It is now argued that the proxy was revoked by the sale to Theodore. Stock is often sold while the transfer books are closed, and it would be a manifest injustice to deprive the vendee of the right to vote, which the act is at some pains to secure him, because he has bought within 20 days next preceding the election. Section 36 secures each stock holder the right to vote; it does not disfranchise stock which has been sold within 20 days next preceding the election, but only stock which has been transferred on the Argued June term, 1919, before SWAYZE books. Whether the vendee shall be disand PARKER, JJ. franchised is thus made to depend on his Alston Beekman and Edmund Wilson, both own action or inaction. There is nothing of Red Bank, for petitioners. Robert H. McCarter, Wilbur A. Heisley, and George W. C. McCarter, all of Newark, and Frederick W. Hope, of Red Bank, for defendants. in the language to prevent the vendee. by agreement with the vendor, from securing his right to vote by means of a proxy, although not yet registered as a stockholder. The law was long ago established in New York under similar legislation (People v. Tibbets, SWAYZE, J. This is a summary investi- 4 Cow. [N. Y.] 358), and has more recently gation of a corporate election under section been followed in Re Argus Co., 138 N. Y. 557, 42 of the Corporation Act (Act April 21, 1896 579, 34 N. E. 388. This rule is in harmony [P. L. p. 291]). The controversy turns on the with the principle that requires a trustee in right to vote 242 shares standing in the name case of a dry trust to give a proxy. Ameriof Albert Kumpel. This right was denied by can National Bank v. Oriental Mills, 17 R. I. the inspectors at the election. These shares, 551, 23 Atl. 795. Granting that the sale is if voted, would have changed the result. a technical revocation of the proxy, it would Theodore Kumpel sought to vote them by be idle to require the former owner, now bevirtue of a proxy from Albert. It is not de- come a trustee of a dry trust for the unregnied that Albert appeared as owner on the istered vendee, to execute a new proxy, where books of the company on the day of the elec- both he and his vendee are content with the tion, or that the proxy was in proper form control of the voting power given by the and properly executed. On the face of the title shown on the transfer books accompapapers Theodore was entitled to vote the nied by the proxy. The rule is also in harshares. Under the rule of Downing v. Potts, mony with the policy that entitles every 23 N. J. Law, 66, and the St. Lawrence stockholder to the benefit of the vote of evSteamboat Co. Case, 44 N. J. Law, 529, the ery other stockholder and intrusts the votaction of the inspectors was erroneous, and ing power to the beneficial owner. A disthe election ought to be set aside or the con- tinction is made by the statute as Justice testing party put in office. The incumbents Depue pointed out in the St. Lawrence Steamrely, not on any defect in the record title to boat Co. Case, between the qualification for the stock or in the proxy, but on a situa- voting at the stockholders' meeting, registration disclosed by the facts of the case as es- tion on the transfer books only, and the qualtablished by evidence aliunde and not legal-ification of director, bona fide ownership of ly before the inspectors of election. These stock. A man may vote although not a bona For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes fide owner of stock, and may vote by proxy. We see no reason why a vendor who is still registered as a stockholder cannot vote by proxy. The case is still stronger where the proxy is held by the vendee. We are not now dealing with technical legal rights. Those rights at the time of the election were with Theodore Kumpel. The inspectors could not go outside the face of the papers. We are dealing with a question of right and justice under the mandate of the statute, and the answer to the question depends on the beneficial title to the stock. If there was no right of pre-emption in the corporation, Theodore Kumpel was the beneficial owner of the stock as well as the person entitled to vote it on the face of the books and the proxy. If there was a right of pre-emption, the legal title was still in Albert, the sale had never been perfected, and the proxy had not been revoked. the right of pre-emption seems to be a disputed question, we think we ought not now establish the title of the contestants and oust the incumbents. Instead of that we order a new election which, if necessary, may be conducted under the direction of a Supreme Court Commissioner. As Certiorari by the Erie Railroad Company to review assessments on its property by the Board of Commissioners of the City of Newark and others. Assessments set aside. PARKER and MINTURN, JJ. Cortlandt and Wayne Parker, of Newark, for prosecutor. William J. Kearns, of Newark, for defendants. MINTURN, J. The writ in this case removes an assessment of property of the Erie east corner of Ogden street and Fourth aveRailroad Company, situated at the northnue, in the city of Newark, consisting of a rectangular plot having a frontage of 406.54 feet on Ogden street and 100 feet on Fourth avenue, upon which is located the main tracks, a passenger station, a freight yard and house, and sidings of the railroad. A portion of the yard is paved with block pavement, and the plot is entirely below the surface of the highway, being protected from the embankment by a concrete retaining wall surmounted by an iron fence, practically disconnecting it from use by way of Ogden street. The entrance to the freight yard is on Fourth avenue, at a level of 13 feet below the Ogden street grade, which latter street possessed no entrance to the freight yard. The assessment was made under the provisions of chapter 217, Laws 1895 (1 C. S. 994), as well as under the act entitled "An act to revise and amend the charter of the city of Newark," approved March 11, 1857 (P. L. p. 116). For paving Ogden street the assessment was levied at $2,339, and $199.87 was assessed for a sidewalk thereon, which latter item represents the total cost of that work. The paving of the street was assessed at $9 per front foot for the entire frontage, excepting the corner lot, which was assessed at 65 per centum of that figure. [1, 2] It is contended that, since the property is appropriated entirely to railroad use, an assessment based upon any other theory of beneficial ownership is erroneous. The legal rule thus stated applicable to such a situation has been so frequently reiterated by this court, that the city quite properly concedes its application in this instance, but insists that there is a benefit applicable to a distinct railroad use, which is represented by the assessment. Erie R. R. v. Paterson, 72 N. J. Law, 83, 59 Atl. 1031; N. Y. Bay R. R. Co. v. Newark, 82 N. J. Law, 591, 83 Atl. 962; Lehigh Valley R. R. v. Jersey City, 81 N. J. Law, 290, 80 Atl. 228. The divergence of view in this case arises from the practical applicability of the conceded principle to the actual situation of the locus in quo. (107 A.) STATE v. PALMIERI. (93 N. J. Law, 195) (No. 16.) (Court of Errors and Appeals of New Jersey. June 20, 1919.) (Syllabus by the Court.) 1. HOMICIDE 308(2)-MURDER IN THE FIRST DEGREE-CHARGE. robbery being made by statute murder in the Homicide by one engaged in perpetrating a first degree, the jury were properly charged that on such a state of facts the verdict should be murder in the first degree, or defendant was entitled to an acquittal. It is obvious that the paved roadway upon Ogden street supplies no new means of access nor any improved means of access to the railroad property, which can be practically availed of, for railroad purposes. Neither the availability of the sole entrance upon Fourth avenue, nor the utilization of the freight yard, nor the houses, nor the tracks upon the property, was in any wise enhanced or materially benefited by the improvement upon Ogden street, to the extent represented by this assessment. To concede that the traveling public using Ogden street, or the bypaths connecting it by a quasi tacit railroad acquiescence with the freight yard, are convenienced thereby, in no wise implies a benefit to the railroad use. Nor can this supposed public convenience be construed into a practical benefit to the railroad, or an enhancement of the railroad use, so as to present the basis for an assessment, as a distinct benefit to the railroad property. M. & E. R. R. v. Jersey City, 36 | 3. CRIMINAL LAW 806(1) — RECOMMENDAN. J. Law, 56. The special benefit resulting from railroad use, if any, is problematical, and so remote as to be almost entirely the subject of conjecture. It cannot arise from a conceded quasi public convenience, to be measured and computed as a special benefit, upon a basis of lineal measurement, as in the case of special benefits accruing to the property owner, under the ordinary tenure, and presumably resulting in an enhancement of market value, but must arise out of the pe culiar enhancement of the railroad use as a distinct and peculiar quasi public use under the decisions to which we have adverted. Were the situation such as was presented in Erie R. R. Co. v. Passaic, 91 N. J. Law, 504, 103 Atl. 855, where the means of ingress and egress to the locus in quo were distinctly in evidence, as a result of the improvement, the rule there applied would be equally applicable here; but the distinction is so obvious that the case sub judice presents no parallel. It is also apparent, for the reasons stated, that the assessment for the sidewalk is without legal warrant, for in that aspect of the situation the rule of railroad use and benefit must be equally present as the one basis for the assessment. Lehigh Valley R. R. v. Dover, 80 N. J. Law, 63, 76 Atl. 450. Superadded to this objection is the absence of compliance with the statutory requirement (P. L. 1905, p. 407; 1 C. S. 994) of distinct public notice by advertisement of the proposed improvement. Landis v. Vineland, 60 N. J. Law, 264, 37 Atl. 625; Locker v. South Amboy, 62 N. J. Law, 197, 40 Atl. 637. These considerations must result in setting aside both assessments, with costs. 2. HOMICIDE 311-MURDER IN FIRST DE GREE-RECOMMENDATION TO LIFE IMPRISON MENT. An instruction that under Acts 1916, p. 576, the jury in rendering a verdict of murder in the first degree might recommend that the punishment be imprisonment for life, substantially states the effect of that statute. TION-REPETITION OF INSTRUCTION. The jury having asked and having received correct instructions on the propriety of recommending mercy in connection with a verdict of murder in the first degree, the court properly refused to repeat its prior instruction respecting a recommendation of life imprisonment. 4. JURY 131(1)-PEREMPTORY CHALLENGE— BASIS. The defense in a criminal case is not enti tled to ask questions of a juror called to the Whether duress is, under any circumstanc- TO MERCY EVIDENCE. 885-RECOMMENDATION For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |