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2. FALLING THROUGH ELEVATOR WAY.-P having occasion to carry an advertisement to the defendant for publication in its newspaper late at night, found the counting-room closed. He thereupon proceeded to the editorial rooms on the second floor. At the head of the stairs there was a hall; on the right hand the door leading to the editorial rooms, and on the left an elevator entrance with folding doors. P, being a stranger to the premises, and the hall being dark, in trying to find his way fell down the elevator way, the doors of which had been left open, and was seriously injured. Semble, that his want of care and prudence having caused the injury he could not recover.

3. NEGLIGENCE EVIDENCE OF PRIOR CIRCUMSTANCES IRRELEVANT.-In an action on the case for negligence, the evidence must be confined to the time and place and circumstances of the injury, and the negligence then and there; but what occurred to others, at other times, more or less remote, is collateral and inadmis-ible. Thus, where one is charged with negligence in not sufficiently lighting the hall and passage way to his place of business, and in leaving open the doors to his elevator-way: Held, that evidence, embracing a period of two years, tending to show at different times the condition of the hall and entranceway as to light-whether more or less, or none-the position of the elevator gates and doors, of what had happened to others at different times, and their fortunate escape from peril, was not admissible.

4. ORDINARY CARE AND DILIGENCE must be used to keep business places, and the usual passage-way to them, safe for the access of all persons coming to them at all reasonable hours, by their invitation express or implied, or for any purpose beneficial to them.

5. NO DUTY IS OWED TO A MERE LICENSEE, and he has no cause of action for negligence in the place he is permitted to enter.

Action on the case for negligence. Plea, general issue. Verdict for plaintiff for $4,000. The facts, and so much of the bill of exceptions as are necessary to the understanding of the points decided, appear in the opinion.

S. C. Andrews, A. A. Strout and G. F. Holmes, for the plaintiff; T. B. Reed, for the defendant. APPLETON, C. J., delivered the opinion of the

court:

This is an action on the case for negligence. The defendants had their counting-room on Exchange street, on the lower floor. The editorial and composing rooms were on the second floor. At the head of the stairs is a hall, on the right hand is the door leading to defendants' rooms, and on the left is an elevator-way with folding doors. The plain

tiff, as he alleges, on the 17th of September, 1875, between eleven and twelve o'clock at night, was proceeding to the defendants' rooms on the second floor, the counting-room being closed, for the purpose of procuring the insertion of a notice in the newspaper published by them, when, there being no sufficient light in the hall, and the doors to the elevator-way being left open, he fell down the elevator-way and was seriously injured.

The question for determination was, whether there was negligence on the part of the defendants, at the time when, and the place where, the plaintiff sustained the injury for which he seeks compensation; not whether there was negligence at other times and under different conditions. If the defendants are liable, they are not liable for past neglects, when an injury might have occurred but did not. Nor do previous omissions of duty prove, or tend to prove, the particular neglect of which the plaintiff complains.

Evidence, embracing a period of two years, tending to show at different times the conditions of the hall-way, aud entrance to the press, editorial and composing rooms, as to light-whether more or less, or none-of the position of the elevator gate and doors, of what had happened to other men at other times, and of their fortunate escape from peril, was received, notwithstanding the seasonable and strenuous objections of the defendants.

These facts were all collateral to the main issue, and should have been excluded; "and the reason is, that such evidence tends to draw away the minds of the jury from the point in issue, and to excite, prejudice and mislead them; and, moreover, the adverse party, having no notice of such a course of evidence, is not prepared to rebut it." 1 Greenl. Ev., § 52. "It may be added, that the evidence not being to a material point, the witness could not be indicted for perjury if it were false."

1 Greenl. Ev., § 448. It was immaterial to the issue, whether, on some particular day or night previous to the plaintiff's injury, the gates to the elevator had been closed or not; whether there had been sufficient light in the hall or not, or whether some individual had or had not been exposed to injury and had escaped. If evidence of this character is receivable, contradictory proofs would be admissible, and there would be as many collateral issues as there were collateral facts and witnesses testifying to them.

The entire weight of judicial authority is against the reception of the evidence received subject to objection. The attention of the jury would be diverted from the questions really in dispute, and directed to what is entirely collateral. Hubbard v. A. & K. Railroad Co., 39 Maine, 506; Aldrich v. Pelham, 1 Gray, 510; Kidder v. Dunstable, 11 Gray, 342; Collins v. Dorchester, 6 Cush. 396; Gahagan v. B. & L. R. Co., 1 Allen, 187; Baltimore & Susquehannah R. R. Co. v. Woodruff, 4 Md. 242; Schoonmaker v. Wilbraham, 110 Mass. 134. "The evidence of what had happened at the same place the year before," observes Gray, C. J., in Blair v. Pelham, 118 Mass. 420, "was rightly rejected; because it tended to raise a collateral

issue; because, it being admitted that the highway had been in the same condition for twenty-four hours before the injury now sued for, the previous length of time for which it had existed was immaterial."

The case of Edwards v. Ottawa Riv. Nav. Co., 39 U. C. Q. B. 264, was an action against the defendant for negligence in the construction and management of their steamboat, by which sparks escaped from the funnel at the wharf, and the plaintiff's lumber and mills were burnt. The alleged negligence consisted in leaving the screens of the steamer open; and, on the part of the plaintiff, evidence was received, though objected to, that on other occasions and at different times and places, the screens were open and cinders escaped. The presiding judge ruled that this evidence was admissible. Held, that such evidence was inadmissible to support the plaintiff's case, when it was tendered and received. All the English and American cases bearing on this question were examined and discussed by Harrison, C. J., who, after stating the facts, says: "The declaration charges negligence by the defendants on a particular occasion and at a particular place, whereby, etc., and this the defendants deny. The only issue, therefore, for the determination of the jury, was whether there was the negligence charged, on the occasion and at the place alleged, resulting in damage to some amount to the plaintiff. If, on the day and at the place in question, the screens were open and sparks escaped, one or more of which sparks set fire to the pile of lumber, there was such negligence and such damage as alleged, and the jury should find for the plaintiff. It could not assist the jury in coming to a determination on that issue to show that, on other days and at other places, the screens were open and sparks escaped. Such evidence would, in my opinion, be more likely to mislead than to assist the jury in arriving at a proper determination." So in this case, what was done or omitted to be done, at other times, is immaterial.

As the case is one of grave importance, it may not be inexpedient to consider the various legal questions, which may arise in its different aspects in the trial of the case hereafter.

The defendants are only responsible for neg. lect of duty. They are bound to use ordinary and common care and diligence to keep the premises and the usual passage-way to them safe for the access of all persons coming to them at seasonable hours by their invitation, express or implied, or for any purpose beneficial to them, they exercising ordinary care in so coming. If the premises are in any respect dangerous, they are bound to give such visitors notice, to enable them with ordinary care to avoid the danger. Knight v. P. & S. & P. Railroad Co., 56 Maine, 235; Campbell V. Portland Sugar Co., 62 Maine, 552; Elliot v. Pray, 10 Allen, 378; Sweeny v. Old Colony & Newport Railroad Co., 10 Allen, 369; Chapman v. Rothwell, 96 E. C. L. 168; John v. Bacon, L. R. 5 C. P. 437. Such are the general principles of law applicable to the case.

The counting room of the defendants was on the

lower floor. This was the defendants' place of business. The editorial and composition rooms were in the second story. If there was an implied invitation, or permission merely, as a matter of accommodation, as the defendants' witnesses testified, the question would arise, if an invitation, whether such invitation could be implied after business hours and through the night, when the inhospitable absence of light would seem to nega

tive such invitation.

But it is well settled, if the plaintiff was at the place where the injury was received by license merely, that the defendants would owe him no duty, and that he can not recover. In Holmes v. N. E R. W. Co., L. R. 4 Ex. 257, Bramwell, B., said: "If the plaintiff had gone where he did by mere license of the defendants, he would have gone there subject to all the risks attending his going " In the same case, Channel, B., remarked: "I quite concur in the rule laid down by the cases, that where a person is a mere licensee, he has no cause of action on account of dangers existing in the place he is permitted to enter." In Blackman v. Toronto Street Railway Co., 38 U. C. Q. B. 173, the deceased, a boy selling newspapers, got on a street railway car at the rear end and passed through the car to the front platform, where the driver was standing; he stepped to one side behind the driver and fell off, there being no step on that side, and was killed by the car running over him. The boy had paid no fare. It appeared that newsboys were allowed to enter the cars to sell newspapers without being charged. It was held that no right of action existed against the defendant; that there was no breach of duty to him, and that he must take the cars as he found them. "Assuming," says Burton, J., "for the purposes of this case, that the defendant would be bound by any license or permission given to the deceased by the driver, he was, at best, in the position of a licensee, and, although whilst there the defendants would not be justified in injuring him, by careless driving, any more than they would be by reckless driving over him if on the street, it is clear there was no duty on the part of the defendants, as regards the deceased, to have the steps of the cars in any other condition from that in which he found them when he availed himself of the permission to enter. He acquired no right, and whatever may have been the obligation of the defendants as regards their passengers, they owed no duty to the deceased to keep the car in repair." In the same cas, Moss, J., remarks: "The passengers may have the right to insist that the car shall be free from patent defects, as the Court of Queen's Bench holds, but the licensee must take the vehicle as it is. He cannot claim that it should have been safer or stronger." "If," remarks Hagarty, C. J., "in the hall or office of a large hotel newsboys or others were seen coming in and going out, offering newspapers, etc., for sale, I do not think there would be any implication in the event of an accident that such persons were guests in the hotel, or were there under any contract, express or implied, with the host or owner that the premises should be in any particular order or condition."

The distinction between what is due to one on the premises hy invitation and a mere licensee, was fully considered and discussed in an elaborate opinion of Lord Chief Baron Lefroy, in the case of Sullivan, ex'r, v. Waters, 14 Irish Com. L. 466.

The case came before the court on demurrer to a summons and plaint brought by the widow and administratrix of Patrick Sullivan, claiming damages from the defendants under Lord Campbell's act, on the ground that the death of Patrick Sullivan was occasioned by the negligence of the defendant. The negligence relied on is stated to consist in the permitting an aperture in the loft of the defendant to remain unguarded and neglected, by reason of which the deceased, passing along the floor of the loft, fell through the aperture and received injuries of which he died. The statements in the declaration, observes the Chief Baron, are, in substance, "that the defendant, at the time of the grievances in question, was in the possession of a distillery and loft connected with it; that Patrick Sullivan was employed by him as a laborer to do certain work about the distillery at night; that Patrick Sullivan, as such laborer, had, whilst so employed, access by the license of the defendant to one of the said lofts at night, and by such license used one of said lofts for the purpose of sleeping during the intervals of the night when he was not actually engaged in said employment. The summons and plaint then proceeds (in the form of an assignment of a breach) to assert: Yet the defendant, well knowing the premises, wrongfully and negligently permitted a certain aperture, then being in the floor of said loft, to remain open, without being properly guarded and lighted, by reason whereof the said Patrick Sullivan, whilst passing along the floor of said loft in pursuance of said license, fell through the said aperture, and was thereby wounded and injured; and, by reason of the wounds and injuries thereby occasioned to him as aforesaid, the said Patrick Sullivan, afterwards and within twelve months before this suit, died. The pleading states that the deceased had access to the loft, for the purpose of sleeping, by the license of the defendant; which negatives that he used the loft for that purpose under the contract of his employment. It is, therefore, quite plain that, if any obligation towards the deceased existed in the defendant to guard or light the aperture, such obligation must have arisen from the license to use the loft at night, and from the fact that the deceased used the loft in pursurance to such litense." After an elaborate and exhaustive review of all the authorities, the Chief Baron concludes thus: "The deceased took the permission to sleep at the loft, instead of remaining up at night or sleeping elsewhere, during the intervals when he was not engaged in the business of the defendant. He must, I think, be considered as having taken the permission (to apply the language of Williams, J., in Hansel v. Smith, 7 C. B., N. S. 731) 'with its concomitant conditions, and, it may be, perils.' Under such circumstances he became his own insurer.”

Whatever may be the position of the plain

tiff, whether there by express or implied invitation, or as a mere licensee (his presence being simply permissible), he was bound to exercise common care and caution. He wished to find the press office. He had never been there and did not know where it was. He was ignorant after he got to the head of the stairs as to the location of the door leading from the passage-way into the editorial rooms of the defendants. It was dark and he was a stranger to the premises. The alternative in such a case, as presented by Bramwell, B., in ordering a nonsuit was that, "if it was so dark that the plaintiff could not see, he ought not to have proceeded without a light; if it was sufficiently light for him to see, he might have avoided the staircase, which is a different thing from a hole or trap-door through which a person may fall." Wilkinson v. Fairie, 1 H. & C. 633. "In general," remarks Pollock, C. B., in that case, it is the duty of every person to take care of his own safety, and not to walk along a dark passage without a light to disclose to him any danger." In Forsyth v. Boston and Albany R. R. Co., 103 Mass. 513, it appeared that the plaintiff was a passenger in the defendants' cars at night, at a station of the defendants', on one of two platforms extending along each side of the track to a highway (which, as the plaintiff knew, crossed the railroad), and having a step at the end next the highway; that, instead of walking along the platform, he voluntarily stepped from it, with the intention of going obliquely across the track to the highway, and when he stepped off fell into a cattle guard dug across the track and was injured; that the night was so dark that he felt with his foot to find the edge of the platform; and that he did nothing to ascertain what would be found on stepping from the platform. Held, that be was not in the exercise of due care, and could not recover, because he did not take any precaution to ascertain if he could not make a step with safety. In Pierce v. Whitcomb, 48 Vt. 127, the facts were these: The plaintiff and defendant were farmers. The plaintiff went to the defendant's late in the evening to buy some oats. The defendant kept his granary locked. He obtained the key and went with the plaintiff to the upper floor of the granary where the oats were, and, while the defendant went for a measure, the plaintiff walked about the floor in the dark, fell through an aperture therein, and was injured. Held, that the defendant was not liable for the injury. If the plaintiff's want of common care and prudence was the cause of his injury, he has only himself to blame, and cannot recover.

Exceptions sustained.

WALTON, DANFORTH, PETERS and LIBBY, J. J., concurred. VIRGIN, J., concurred in the result.

THE proper measure of damages in a suit by the purchaser of a safe against the manufacturer, who warranted it "burglar-proof," is the difference between the value of the safe as it was and what it would have been worth if it had been as represented, and not the damages sustained in the loss of valuables taken out of the safe by burglars.-Herring v. Skaggs. Supreme Court of Alabama.

INSURANCE COMPANY-NEGOTIABLE PA

PER-FRAUD.

ALEXANDER v. HORNER.

United States Circuit Court, Eastern District of Arkansas, April Term, 1879.

1. POWERS OF INSURANCE COMPANIES-NEGOTIABLE PAPER.-Insurance companies have the power to take and hold negotiable notes and other securities in the general conduct of their business, and this includes the power to negotiate them.

2. PROMISSORY NOTE-PAYMENT-FRAUD. - The maker of a note, who pays it to an indorsee and holder who obtained it by fraud, is discharged from liability thereon to the payee, unless the maker had notice of such fraud; and the discharge extends as well to the original consideration.

3. PARTIES.-Where, in such a case, the payee files a bill in equity to avoid the assignment and compel the maker to pay the note a second time, upon the ground that he had notice of the fraud, the alleged fraudulent indorsee to whom the payment was made is an indispensable party.

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L. E. Alexander, as receiver of the Columbia Life Insurance Company, and the company, are named as plaintiffs in the bill which alleges that the company is a Missouri corporation; that on the 18th of October, 1877, it was, by decree of the circuit court of St. Louis County, adjudged to be insolvent and enjoined from doing further business, and the plaintiff, Alexander, appointed receiver of its property and assets, with anthority to sue for their recovery, etc.; that pursuant to the terms of the decree, the company executed an assignment of all its property and assets to the receiver, and by the terms of the same decree the corporation was dissolved.

The bill alleges further, that on the 29th of November, 1872, the defendants were "indebted " (it is not alleged this indebtedness was for a stock subscription or how it arose) to the Mound City Mutual Life Insurance Company in the sum of $5,830, for which sum they made their notes, payable to the company, and secured the same by deed of trust on lands in Arkansas; that the name of the last-mentioned corporation was changed successively, to Mound City Life Insurance Company, to St. Louis Life Insurance Company, and lastly to Columbia Life Insurance Company, but the corporation continued the same; that the company was insolvent on the 23d of November, 1875, and for some time prior to that date, and so continued until it was judicially declared to be insolvent; that on the 23d of November, 1875, a combination was entered into between Alfred M. Britton and George J. Davis, both of whom were directors in the Life Insurance Company (the former its vice-president and acting president and

the latter an attorney for the company) and the Life Association of America, to get possession of the assets of the Life Insurance Company by fraudulent means; that in execution of this fraudulent scheme, Britton, Davis, and the Life Association, in December, 1875, obtained pos-session of the notes of the defendants and the deed of trust given to secure the same, and cancelled and delivered them to the defendants; that the Life Insurance Company received no consideration from Britton, Davis, or the Life Association for these notes, and that the defendants paidnothing for their surrender, but only gave in exchange therefor shares of stock in the company, which were worthless, because the same had never been paid for and because the company was insolvent; and that defendants had notice of these alleged facts. Horner and Horner, the makers of the notes and who are citizens of Arkansas, and Britton, the trustee named in the deed of trust and who is a citizen of Texas, are made defendants. Davis and the Life Association of America are not made defendants, because they are, as the bill alleges, beyond the jurisdiction of the court, and cannot be joined without ousting the jurisdic tion, being citizens of the same State as the plain tiff.

Prayer for decree for amount of notes and foreclosure of deed of trust

The defendants answering say, the notes were given by them in payment for $5,000, subscription to the capital stock of the company; that the stock issued to them was full paid stock; they deny all knowledge of the insolvency of the company, or of any conspiracy or fraud on the part of Britton, Davis, and the Life Association of America to obtain possession of their notes; and allege that in the month of November, 1875, they were advised by another stockholder residing in Helena, that Britton, upon whose representations they subscribed for the stock and in whom they had confidence, was about to retire from the directory of the company; that they could then sell their stock for par, or possibly something more, to parties who were buying it up; that after consultation the Helena stockholders reluctantly agreed to sell their stock, because they believed it was actually worth much above par if the true condition of the company could be known, and they only consented to sell for the reason that they could not be on the ground personally to ascertain and look after their interests, and believed if they did not sell, some means would be resorted to, to crowd them out; that thereupon they sent their certificates of shares of stock in the company, indorse d in blank, to Herman & Rainey, their correspondents in St. Louis, and authorized them to sell the same, but in no event for a less sum than would be sufficient to pay off their notes then held by the company; that their correspondents afterwards advised them that they had sold their stock to George J. Davis, and taken in payment their notes due to the company and $176 80 in money, and inclosed a check for that sum, and their notes duly assigned by the company to Davis, and by him cancelled, and also a deed of release of the

deed of trust executed by Britton, the trustee; that they never heard of George J. Davis until they saw he was the a-signee of their notes, and were informed by their correspondents that he had purchased their stock; that they believed the company was solvent, and would not have sold their stock for less than par; that they acted in good faith, and had no suspicion of any fraud, or that fraud was charged upon any one in connection with the transaction until the filing of the bill in February, 1878, more than three years afterwards, and these allegations of the answer are well supported by the evidence.

It is shown by the evidence that on the 23d of November, 1875, the Life Association of America entered into a contract with George J. Davis by which the former agreed to purchase from the latter 9,400 shares of the capital stock of the St. Louis Life Insurance Company, and as much more, up to 10,000 shares (the whole capital stock of the company), as Davis might transfer and deliver within thirty days. Contemporaneously with the delivery of the stock of the Insurance Company, Davis was also to deliver to the Life Association certain other stocks and securities mentioned in the contract, then owned by the Insurance Company.

Davis was to receive for the 9,400 shares and other securities $1,215,000, and par value for all shares delivered in excess of that number. The mode of paying Davis for this stock and securities was prescribed with some detail, the substance of which was, that about ninety per cent. of the sum was to be paid in the draft of Hough, President of the Life Association on the Life Association, and accepted by it, payable at one day's sight, and the remainder in cash, on delivery of the stock and other securities mentioned in the contract.

Having made this contract with the Life Association, Davis resigned as a director of the Insurance Company, and on the 30th of November, 1875, made a proposition to the Life Insurance Company to purchase from it the securities mentioned in his contract with the Life Association at prices stated in his proposition; and at a meeting of the board of directors of the Life Insurance Company on that day, the record shows the following proceedings were had:

"Mr. Davis then submitted a list of securities belonging to the company which he desired to purchase, the price being satisfactory and for payment of which he would give the draft of H. W. Hough, president, on the Life Association to his (Davis') order at one day's sight, and accepted by said Life Association. After an examination of the list and full discussion thereof, the following resolution, offered by Mr. Bogy, was adopted:

"Resolved, That the vice-president be authorized to sell and deliver to Mr. George J. Davis the following securities, or any one or all of said securities, at the price named in the list hereto appended, and that the vice-president be authorized to receive in payment for the securities so sold and delivered the draft of H. W. Hough, president, drawn at one day's sight, to the order of G. J. Davis, and by him indorsed on the Life Association of America, and by said Life Association ac

cepted." Then follows a list of the securities sold (which are the same mentioned in the contract between Davis and the Life Association), with prices annexed to each, amounting in the aggregate to $1,111,898.34. Among the securities thus sold to Davis were the notes of the defendants, which were afterwards duly indorsed by the Insurance Company and delivered to him. Davis having delivered the stock and other securities to the Life Association under the contract of November 3, 1875, received in payment some cash and the draft of the Life Association for $1,111,898.34. This draft Davis indorsed and delivered to the Insurance Company on the 10th December, 1875.

In the proceedings of the board of directors on that day, it is set forth that the president of the company stated to the board for its information "that Mr. G. J. Davis had tendered him this day the draft as specified in the resolution of the board, passed November 30th, in the sum of $1,111,898.34, and that in accordance with the authorization of said resolution he had sold and delivered to Mr. Davis the securities named." At the conclusion of this transaction the directory of the Insurance Company resigned and the Life Association, now the holder of the stock of the former company, elected a directory composed mainly, if not altogether, of the same persons who constituted the directory of the Life Association.

In 1876, by an amendment of its charter approved by the superintendent of the insurance department of the State, the name of the company was changed to the Columbia Life Insurance Company, and it was authorized by a two-thirds vote of its board of directors to reduce the capital stock of the company, then 10,000 shares of the par value of $100 each, to any amount not less than $100,000. To effect this reduction, the surplus assets of the company might be used to purchase in the stock of the company: Under this authority the directory resolved on a reduction of 9,000 shares of the capital stock, and to effect the reduction, set aside $900,000 alleged surplus funds and afterwards purchased that number of shares at par-$900,000— from the Life Association, and paid therefor by cancelling that amount of the draft of the Life Association given by it to Davis, and by him indorsed to the Life Insurance Company under its contract for the purchase of its securities. The balance of that draft, viz.: $211,898.34, was liquidated by cash payments and other transactions between the compinies.

The Life Insurance Company continued to be a going concern until it was adjudged to be insolvent. The evidence is conflicting as to whether it was, in fact, a solvent institution in December, 1875, but it was reputed solvent and to be doing a profitable business, and its stock was then worth par in the market.

The Life Association is still a going concern. The superintendent of the insurance department, in the proceedings in which the company was adjudged insolvent, made no complaint against the reduction of the stock of the company nor the sale of its securities to Davis; nor has the company or any stockholder or creditor, or the receiver had

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