ed from the wages of its employés the sum, of $1.50 a month "for the hospital" and had a hospital at its mine. Mr. Chief Justice Bean, after stating the testimony, said: "We are of the opinion it falls short of proving a contract by the defendant to provide the plaintiff with necessary medical and surgical attendance in case of injury. It merely shows that a certain sum each month was contributed by the plaintiff and his fellow employés, or exacted by the company, for the support and maintenance of a hospital for the use of the employés. There is no evidence that any statement or promise was made by the defendant to the plaintiff, or any of its employés, as to the object and purpose of the contribution or the benefit they would receive therefrom, other than it was for hospital purposes. The transaction, therefore, under the testimony, constituted in law nothing more than a subscription by the plaintiff and the other employés for the charitable purpose of maintaining a hospital, where they could obtain such medical attendance and hospital accommodations as the fund thus subscribed would afford." In the case at bar the contract supplies the very element necessary to justify a recovery, which was lacking in the case cited, namely, a promise on the part of the company collecting the money to furnish the services. In Jackson v. Pacific Coast Condensed Milk Co., 61 Or. 158, 120 Pac. 1, 37 L. R. A. (N. S.) 757, the contract of employment was as follows: "George Jackson, No. 54, enters the employ of the Pacific Coast Condensed Milk Co. as gen'l help, to be rated at 15¢ per hour from June 9, 1908; 50¢ per month to be deducted for hospital fund. Payment for each month's labor to be! made on the 12th day of the following month. I agree to the above. "[Signed] George Jackson. "H. H. Steward, Supt.", It was held this created a liability on the part of the defendant to the extent of the fund on hand. This conclusion would seem to follow naturally from the very terms of the agreement. It is useless to discuss further the decisions of courts of other jurisdictions. They vary as the terms of the agreements vary, and are not at all harmonious even where the agreements are the same. We do not wish to be understood as holding that under all circumstances it is obligatory upon the employer to have a physician at hand at the very hour or minute his services are required, or be responsible for the services of some other physician which the employé may secure. The right to apply to another physician must depend upon the circumstances and the urgency of the case. A man with a boil upon his person might reasonably wait for a day for the service of a doctor, while one suffering from a severe attack of appendicitis would be rash to wait a single hour. The "rule of reason" applies here, as in all cases of a similar character. The defendant in effect undertook that it would furnish the services of its physician when needed. It did and could not furnish physician was away and not immediately available. The plaintiff used what the jury found was reasonable diligence to get him, and, failing to do this, employed and paid another physician to do his work. To say that having bought and paid the company for this service in advance, he should be required to pay for it a second time and stand the loss, because the company was not in a position to furnish it, would not be just and would be to apply to this contract a rule not applied to other contracts. A. contracts with B. to deliver to him when he shall require it 100 bushels of wheat, and B. pays for the wheat. When B. requires the wheat it is found that A.'s granary has been destroyed, and he has no wheat on hand with Whereupon, which to fulfill his contract. B.'s demand being urgent, he buys it elsewhere. Shall he not have compensation from A. for this second outlay? Surely. A restaurant keeper contracts to furnish a customer with three meals a day for a week and His employés takes his pay in advance. strike, and he finds himself at the middle of the week unable to furnish the meals. Must the customer go hungry until the strike is settled or the restaurant keeper gets new help under penalty of losing what he has already paid if he eats at some other place? A hundred similar examples of everyday occurrences might be cited to illustrate the argument. [5] While a contract for a consideration to furnish one medical attention in the future is not technically one of insurance, it has many features in common with that species of contracts. Where it holds out a particular person to its employés as its physician, and such employé uses reasonable diligence to secure his services, finds him absent, and after waiting a reasonable length of time for his return employs and pays some other person to perform the services which the employer contracted that the employé should receive at the hands of its surgeon, it is fair and just that such services should be paid for by the party who for a consideration guaranteed that they should be rendered by a person employed by it, and we so hold. [6] Another assignment of error relates to the admission on rebuttal testimony by another employé of defendant which was to the effect that upon several occasions when injured in the course of his employment he had gone to Dr. Starbuck's office and found him absent, and was not directed to apply to any other physician for relief. This testimony was, we think, properly admitted. Dr. Starbuck, as a witness for the defendant, testified that he kept an attendant at his office who in his absence made all arrangements for the proper treatment of patients applying therefor. It would seem clearly competent to show by testimony of the character indicated that such custom had not al 342 3 Allen (Mass.) 418; Hudson v. Houser, 123 | 3. RAILROADS 72(5)-RIGHT OF WAY-COV- [7] Another assignment relates to the ad- In the absence of any evidence in relation mission of certain testimony of Mrs. Crites to whether rights of the grantor of land to a as to what occurred between her and Mrs. railway to have two wagon road crossings mainStarbuck upon the occasions when she in-tained ran with the land, or were anything more than personal covenants, the reference, in the quired for the doctor at the family residence. reservation of his deed, to a county road, might Upon redirect examination counsel for plain- create an inference that the designated highway tiff asked witness the following question: was in esse, a part of the land, so that the railway was required to perform the terms of its "During this conversation to which counsel agreement in favor of the grantor's assigns referred on cross-examination, that you had without express words to that effect. RIGHT OF WAY with some one at Dr. Starbuck's residence, 4. RAILROADS 72(8) LANDOWNERS' RIGHT TO Cross. was there any directions given to you as to what should be done during his absence?" To which the witness answered, "No." Counsel for defendant moved to strike out the answer, but the court overruled the motion, saying that he would admit it as having a bearing upon the diligence used by plaintiff to ascertain the whereabout of Dr. Starbuck. It is difficult to see that it had any such bearing, and it is equally difficult to see, taking into consideration the answer given, how it could possibly have prejudiced defendant's case. If error at all, it was harmless, and the judgment should not be reversed on account thereof. Taken as a whole, we are of the opinion the case was fairly tried, and the verdict and judgment such as should have been rendered. The judgment is affirmed. In suit by a railway against landowners to enjoin interference with its right of way and to quiet title, the trial court properly restricted the right of the landowners to the private crossing of the track to be made and maintained by them at the place designated by them in their latest conveyance to the railway's predecessor, where no right to cross any part of the premises elsewhere could possibly be found in their favor by the most liberal construction of the two grants, when read together. 5. EQUITY 39(3)—DAMAGES. The right to recover damages in a suit or cross-suit in equity must depend on some equity which enables the court to secure and retain jurisdiction of the subject-matter, and, as an incident, to award the damages inflicted. 6. EQUITY 41-FINDING NO EQUITY EXISTS-TRIAL TO ASCERTAIN LEGAL RIGHT. Where it is found at hearing of a cause that the equity on which it was predicated does not exist, the suit is terminated, and cannot be tried to ascertain any legal right existing between the parties. Department 2. Appeal from Circuit Court, BEAN, HARRIS, and BENSON, JJ., con- Multnomah County; Henry E. McGinn, cur. OREGON-WASHINGTON R. & NAV. CO. v. (Supreme Court of Oregon. Dec. 27, 1917.) Suit against husband and wife, commenced against the husband alone July 17th, amended complaint making the wife a party defendant being filed July 31st, was "pending" when the wife's suit against plaintiff was instituted July 28th, so that denial of defendants' plea in abatement on the ground that a prior suit instituted by the wife against plaintiff was pending was proper. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Pending.] 2. ATTORNEY AND CLIENT 86-ADMISSIONS -EFFECT. Judge. Suit by the Oregon-Washington Railroad & Navigation Company, a corporation, against Frank H. Reed and Minnie T. Reed, husband and wife. From a decree for plaintiff, defendants appeal. Decree modified. Rehearing denied 170 Pac. 300. This suit was commenced July 17, 1915. by the Oregon-Washington Railroad & Navigation Company, a corporation, against Frank H. Reed to enjoin interference with a railway right of way and to quiet the title thereto. The defendant on the 28th of that month filed an answer alleging, inter alia. that his wife, Minnie T. Reed, was the owner in fee of the real property over and across which extended that part of the right of way involved. Three days thereafter the plaintiff, by leave of court, filed an amended complaint making Mrs. Reed a party defendant. The defendants on August 3, 1915, interposed a plea in abatement, on the ground that anIn suit by a railroad against landowners, other suit was pending between Mrs. Reed where the landowners claimed they did not un- and the railway company involving the same derstand the effect of a deed of theirs to the Joined with the plea in road, but their previous attorney, who acted subject-matter. for them in the transaction, testified unequivo- abatement was an answer to the merits, and cally that they did understand its effect, and also a cross-bill in equity by Mrs. Reed to their present attorney in court stated that he enjoin the plaintiff, its agents, etc., from incould not contradict such previous attorney's testimony, and would have to abide by it, the terfering with or trespassing upon her land, announcement, approved by the court, forever to recover $3,000 as damages to her real settled the question that the landowners' deed was knowingly executed by them as a substitute for and in lieu of their previous conveyance to the railway. property, and to reform a deed executed by her and her husband to the plaintiff's predecessor in interest. Answers and replies put For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes in issue all the material averments of the pleadings of the respective parties. At the trial of the cause the court, in order to be advised, called a jury, who inspected the premises, and, after hearing the evidence, made written replies to questions submitted to them as follows: "First. What damage, if any, has the water as changed by the railroad company done to Mrs. Reed's land? Answer: None. "Second. Was that damage caused by the construction of the railroad on the revised line,. which construction includes the method of handling the drainage? Answer: No damage. "Third. Did the railroad company excavate from the toe of the slope on the south side of the track at the west portal to tunnel No. 1 more yardage than was reasonably necessary to maintain the safety and efficiency of the railroad? Answer: No. . "Fourth. If the third question is answered in the affirmative, in what sum do you assess the damage? Answer: No damage." lots 1 and 2, section 26, township 1 north, range 4 east, in Multnomah county, Or. Her predecessor in title, Frederick Willer, in consideration of $70, executed on May 28, 1881, to the Oregon Railway & Navigation Company, one of the plaintiff's predecessors in interest, a deed conveying a strip of land 100 feet in width, being 50 feet in width on each side of and parallel with the center line of the grantee's railroad, as the same was staked out and located over and across such lots. That deed contains a clause which reads: "Provided, that said railway company agrees to provide and maintain two wagon road crossings for the use of said Willer, one of which is to be the county road, and to permit said Willer to construct a wood chute under said track and to leave an opening therefor." The lots so described border for a distance of 160 rods upon. the Columbia river, along the left bank of which the railway was originally constructed as surveyed. A mound on this real property, generally known as "Table Rock," extends into the river; the cape of the hill being nearly in line with the division between these lots. A tunnel 614 feet in From these special verdicts and from the evidence received the court made findings of fact and of law and based thereon decreed that the plaintiff was the owner and entitled to the possession of a strip of land conveyed to its predecessor in interest May 28, 1881, by Frederick Willer, the predecessor in title length was cut through the rocky point at an expense of more than $75,000. From a blueof the defendants; that the plaintiff was print received in evidence it is disclosed that also such owner and entitled to the possession the right of way conveyed by Willer was surof a strip of land conveyed to its predecessor veyed as a tangent extending northeasterly in interest by the defendants April 2, 1907, from the west boundary of lot No. 2 about particularly describing each strip, and per600 feet; thence the line slightly curved petually enjoined the defendants, agents, etc., from interfering in any manner southerly a short distance; thence the surwith or trespassing upon the real property vey sharply curved northerly to about halfso conveyed, awarding them the right, how-way through the tunnel; and thence by a ever, to construct and maintain a private tangent southeasterly to the east boundary road or trail over an acre of land particularly described, and also authorizing them to maintain a private crossing with gates over the railway near the west end of the tunnel, but not so to exercise the latter right as actually, imminently, or potentially to injure the plaintiff's property. From this decree the defendants appeal. their Ralph R. Duniway, of Portland, for appellants. A. C. Spencer, of Portland (W. W. Cotton, W. A. Robbins, and C. E. Cochran, all of Portland, on the brief), for respondent. MOORE, J. (after stating the facts as above). [1] It is contended by defendants' counsel that an error was committed in denying their plea in abatement, interposed on the ground that a prior suit instituted by Mrs. Reed against the plaintiff herein was pending. It will be remembered that this suit was commenced against Mr. Reed July 17, 1915, and that on the 31st of that month an amended complaint was filed making Mrs. She instituted a Reed a party defendant. suit against the railroad company as defendant July 28, 1915, or 11 days after this suit was begun, and as this is the prior suit, and was pending when her suit was commenced, no error was committed as alleged. It appears from a transcript of the evidence that Mrs. Reed is the owner in fee of of lot No. 1. The plaintiff's predecessor in interest, desiring to reduce the curvature of its railway which had been constructed and was operated on the line, as originally laid out, caused another survey to be made across these lots, and on July 11, 1906, in consideration of $500, secured from Mrs. Reed and her husband, who had succeeded to the estate of Willer in the premises, a deed conveying: "A strip of land 100 feet wide, being 50 feet in width on each side of and parallel with the revised center line of the main track of the Oregon Railroad & Navigation Company's railroad, as the same is staked out and located over and across the lands of the said grantors," particularly describing the lots.. This deed contains the following clause: "This instrument is intended as a deed of right of way for the construction of the railroad on said revised line, and is conditioned that upon the change of the railroad from the present to the above location all that part of the original right of way not included in the above-granted strip shall revert to and become the property of the grantors. The grantee will construct and maintain for the use of the grantors a private crossing at grade with gates." It further appears from the blueprint mentioned that the north boundary of the right of way last conveyed begins at a point on the west line of lot No. 2, about 30 feet north of the right so granted by Willer, and extends by a long curve to the east line of lot No. 1, at a the old tunnel, took possession thereof without permission of the railway company, built at the west end of the new tunnel a retaining wall of logs, earth, and brush, and their tenant removed from the old tunnel many of the timbers and supports therein. This suit was thereupon commenced and terminated as hereinbefore set forth. point about 70 feet north of the right of way way & Navigation Company and the Oregon originally conveyed. About midway of the Railroad & Navigation Company. Thereaftexcavation of the tunnel mentioned the norther the defendants, asserting that under their boundary of the new right of way coincides deed of July 11, 1906, they were entitled to for about 200 feet with the south boundary of Willer's grant. After the second deed was executed the plaintiff's predecessor in interest began work on the revised line, by starting another tunnel 655 feet in length, the west entrance of which was about 90 feet south of the old tunnel, while the east end of the new cut was only about 30 feet south of the old subterranean passage. While cutting the new tunnel, earth on the south side of and beyond the line of the revised right of way kept falling at the west end of the excavation, whereupon the defendants asserted claims for damages to and trespasses upon their lands, and in order amicably to adjust the matter, and to procure more land, the plaintiff's predecessor in interest, upon the payment of $1,000 to Mrs. and Mr. Reed, secured from them, on April 2, 1907, another deed reconveying the revised right of way as set forth in their deed of July 11, 1906, and also granting about an acre of land on the south side of the revised right of way at the west end of the tunnel where the slides had occurred, particularly describing such premises. Material clauses in the latter conveyance read: "This deed is in lieu of and a substitute for a deed of bargain and sale made by the grantors herein to the grantee herein, dated July 11, 1906, and recorded at page 328 of Book 362 of the Records of Deeds of Multnomah County, Or. The grantee herein shall not excavate more earth from said premises hereby granted (about an acre where the slides had occurred) than is necessary for the proper and safe protection of its railroad. The consideration herein is in full satisfaction for any and all damages that may in any manner result to the adjacent lands of the grantors by virtue of the construction of said railroad on the grantee's revised line through said premises. All crossings and other privileges set forth in the deed of July 11th, above referred to, are hereby waived and held to be null and void, but grantors, their heirs and assigns, or any of them, may construct and maintain one private road or trail over the land secondarily described herein (the acre mentioned), and maintain thereat a private crossing with gates over grantee's railroad at the west end of the tunnel on said premises, together with all and singular the trees, wood, and timber thereon, and the stone, gravel, and material therein, but the trees on top of the tunnels shall not be unnecessarily cut or removed by the grantee herein." At the trial Mrs. Reed as a witness in her own behalf testified that, having secured the services of an attorney to protect her interests in the matter, she relied upon his advice, and, with her husband, executed the conveyance April 2, 1907, without carefully examining the deed or knowing that it purported to deprive her of the rights which were reserved by her conveyance of July 11, 1906. Mrs. Reed sought by such testimony and that of her witnesses a reformation of the latter deed so as to make it conform with the terms of an alleged oral contract, pursuant to which it was claimed the deed was made, so as to convey only the small tract of land at the west end of the new tunnel, and to have restored to her the rights of crossing the railway track as specified in the Willer deed. Mrs. Reed called as her witness George W. Joseph, who, as her attorney, secured the settlement with the railway company pursuant to which she received $1,000 for executing the deed of April 2, 1907. This witness testified that he received from the railway company a writing prepared as a deed to be executed by Mrs. Reed; that he examined the instrument so submitted, and suggested some alterations which were adopted and incorporated in another document that was sent to him; that Mrs. Reed and her husband were in his office at Portland, Or., when the latter writing was received and examined by him and them, in referring to which instrument the witness stated upon oath: what it purports to be, and it was so understood "This deed was understood to be exactly by all the parties interested." In alluding to the settlement which was secured, Mr. Joseph further testified: "You see, the Reeds were getting $1,000 for [referring to the acre at the west end of the a slope, you understand, that came down there new tunnel]. Of course, it took this trail or road, which they talk about [passing over the of what the O. R. & N. [plaintiff's predecessor] one acre], but so far as the commercial value got there, you understand, it was worth very little, and a $1,000 was an immense price to be paid for it, and that is the truth, and I told the Pursuant to the last conveyance so made, the grantee therein named completed the revised line of railway, cut the new tunnel at an expense of more than $100,000, and moved the ties and rails from the old track to the new, finishing the work about September, 1908, when trains were then and thereafter operated through the new tunnel. The plain-Reeds so at that time and advised settlement, tiff herein on December 23, 1910, by mesne conveyances, secured a transfer of all the right, title, interest, and estate in and to the premises so granted by Willer and the defendants to its predecessors, the Oregon Rail of course. I think the railroad company offered a small amount; they offered something like $100 at first, and when we could get $1.000 there was no hesitancy on my part. We held and squeezed until we got the $1,000, and they were at work there, and they had to have this right of way, and that is the way we got it." In adverting to the final adjustment of the matter which was consummated by the deed of April 2, 1907, the witness further testified: "But at this time we were settling differences that had existed between these people for a long time, and it was settled. And when these people say that they didn't understand this instrument, it is too ridiculous for anything." Mr. Joseph, again referring to such settlement and to the defendants herein, also stated upon oath: "Well, when I got $1,000 for them, there wasn't no two happier people in the United States than they were to get the $1,000 under that deed." The witness, further referring to the defendants, also testified: "They understood that they were giving up, that that second deed was wiped out, and that the railroad company got what it had under this old deed, and that acre of ground that had slipped down. That is what they thought they were giving up, and when they got that $1.000 they were getting paid big. And they got the right to construct a road there and have a crossing." In answer to the question, "And, Mr. Joseph, when you approved this deed and had them sign it, you understood that they were conveying to the railroad company what you have just testified, is that right?" The witness replied, "That is right." Thereupon the defendants' counsel, addressing the witness and the court, announced: reason of trespasses alleged to have been committed thereon by the railroad company. The defendants' counsel, referring to the original grant of the right of way and to his clients, remarked: deed run with the land; that they are entitled "We think the crossings reserved in the Willer to them, and, of course, the 1907 deed provides for a crossing for the Reeds." The court replied: "I think there isn't any dispute about that. In fact, the railroad company had admitted here that you are entitled to that, and you certainly are. The Plaintiff's Counsel: There is no doubt about it. The Court: There is no doubt There will be no trouble about it. about it. The Plaintiff's Counsel: Now, if there is any question about the Willer deed, we can offer it in evidence here. The Court: Very well." Thereupon such deed was received in evidence. [3] It will be remembered that by the original conveyance of the right of way the plaintiff's predecessor stipulated to provide and maintain for Willer's use two wagon road crossings, one of which was to be on This reservation having the county road. been restricted to Willer's use only, and not extending to his assigns, it is questionable if the specified rights run with the land, or than personal covewere anything more nants. In the absence of any evidence in relation to the matter, the reference in the "That is all. If your honor please, in view of reservation to a county road might create Mr. Joseph's testimony, it would be uselessly an inference that the highway so designated consuming the time of the court to proceed with was then in esse annexed to and a part of this case. I feel that under his testimony I the land, and for that reason the railway would not be justified in offering any further testimony, because he was their attorney, and, company was required to perform the terms while the clients do not agree with him, he was of its agreement in favor of Willer's assigns, their attorney, and they have offered him as a without express words to that effect. Brown witness, and they cannot contradict him, as Iv. Southern Pacific Co., 36 Or. 128, 58 Pac. understand it, and I will have to abide by it." 1104. From an examination of the blueprint road had been abandoned for a "gate" is indicated upon the print on the line where the highway originally crossed the railway track. But, however this may be, it will be taken for granted, from the observations of the court and counsel for the respective parties, that the rights of crossing provided for in the Willer deed run with the land and became vested in Mrs. Reed. The deed executed by the defendants to the railway company April 2, 1907, made no mention of such reservations, and provided only for a [2] This declaration conceded the final ad-referred to, it would seem that the county judication of one of the issues involved. The announcement, having been approved by the court, forever settled the question that the defendants' deed of April 2, 1907, was knowingly executed by them as a substitute for, and in lieu of, their conveyance of July 11, 1906, as much so as if the latter deed had never been made. As there had been no abandonment by the railway company of any part of its original right of way across the lands of Mrs. Reed, so that they might possibly have been reinvested with the title thereto as granted by their predecessor, Will-private crossing to be made and maintained er, and reserved by their deed of July 11, 1906, the solemn declaration so made by their counsel, and justified from a preponderance of the evidence received, precludes the possibility of his clients securing a reformation of their grant evidenced by the deed of April 2, 1907. Notwithstanding such asseveration, the trial of the cause was continued as to the remaining issues, namely, the right of the defendants to have crossings constructed and maintained by the railway company across its tract for their accommodation, as evideneed by the grant made by Willer, and as to by the grantors. Whether or not the deed executed by Willer and the conveyance made by the defendants July 11, 1906, granted more than an easement it is not necessary now to determine. The deed made by Mr. and Mrs. Reed April 2, 1907, unquestionably transferred the fee to the premises therein described. This conveyance, though permitting the defendants to make and maintain a private crossing over the railroad, cut off and forever extinguished all parts of the crossings specified in the Willer deed that lie north of the south boundary of the right |