lowed to remove a large part of the machin- | poses, but was wholly diverted therefrom. ery it had delivered. The witness Evans testified as follows: "Q. You say the De La Vergne Company delivered some machinery to plant No. 2? A. Yes, sir. Q. What became of those machines? A. I think some of them were allowed to remove them, as did a number of other contractors after the failure. Q. You are certain they were taken away? A. Certain they were taken away; they are not there now. Q. And you are certain you did not sell them as receiver? A. I think not." And it is further charged that each of said defendants had full notice and knowledge of the purposes for which the fund was deposited and to which it was devoted, and of said mortgage and agreements; that the defendant Ormond Hammond knew that he was not entitled to any payment out of said fund; and that the payment of said checks was a diversion thereof. It is perfectly clear, we think, from the proof that two of the checks, to wit, checks dated November 19 and December 17, 1902, The witnesses Westcott, Jervis, and Car-respectively, for $10.000 each, were given berington testified to the same effect; the lat-fore the "work on the plant" had actually ter stating that the De La Vergne Company begun; and that part of the $90,000 embracsent part of the engines in crates and tooked in the nine checks paid Hammond did not them back again. go into the work of construction of plant No. 2, but was actually diverted and misapplied by him. We do not see any ground upon which the defense relied upon on this branch of the case can be based or be sustained. The application of the special fund to the payment of the old indebtedness due on plant No. 1 was not only unauthorized, but it was an improper and a wrongful diversion of the fund. The book kept by Hammond of his payments and the application of the money or checks was filed, with the testimony, by the defendants as Exhibit H, No. 5; and an examination of this account, in connection with the evidence in the case, plainly shows a number of payments made on account of plant No. 1, and other payments not properly chargeable to plant No. 2. The items in this account book cover over 20 pages of the record, and we shall state the principles upon which an account can be stated when We have discussed the transaction with the case is remanded, charging Hammond this company because of its supposed bear-with all moneys received on account of plant ing upon the liability of the building com- No. 2, and crediting him with all sums that mittee. were properly expended in the construction of that plant. It appears from the record that the De La Vergne Company is a foreign corporation, and no process appears to have been served upon it. There was apparently no appear ance for them in the court below, and it was not represented by counsel in this court. Plant No. 2 was to cost on or about $700,000, and was to have a capacity of 600 tons of ice per day. While the evidence is somewhat conflicting as to how far the work had money had been expended when the work on the plant stopped. The plant sold, in November, 1904, for the sum of $120,000, and, after deducting certain liens and expenses, there was $67,936.14 to be distributed to the bondholders and creditors. After the payment of the dividends, the amount due bondholders and creditors appears to amount to on or about $400,000. A statement of what work was done in tne construction of plant No. 2 was made after the work had stopped, and this statement shows the immovable improvements at that date. It is as follows: (4) The Hammond cases involve nine checks of $10,000 each, and, as they differ but slightly on the main facts, they will be considered together. The averments of the bills, as we have said, are substantially the same, and they charge that on the date nam-progressed, it is certain that large sums of ed in them Ormond Hammond drew checks upon the special fund to the order of himself for the sum of $10.000 each, and the defendants, the building committee (naming them), executed and delivered contemporaneously with the checks an order and certificate, directing the payment thereof out of said special account; and the amount of each check was thereupon actually paid to Hammond. It is further averred that the checks were not given, and the money was not paid or payable, for the construction and equipment of plant No. 2, or for the acquisition of any property therefor, or for the payment of any expenses or indebtedness in connection with construction, equipment, or acquisition; that at that time no progress had been made in acquiring property and constructing the plant, and Ormond Hammond was not entitled to any payment under the contract, marked "Exhibit A," therefor; nor were the checks or money given for any of the purposes to which, by the terms of the mortgage and contracts, the fund or money on deposit in said special account was Plant No. 2. Land Engine foundations Wharf improvements ... 82,000 00 58,000 00 5,037 02 16,400 00 2,208 05 6,329 00 15.238 79 6,000 00 3,471 85 15,000 00 It appears, however, that only $40,000 an account between the parties as herein inhad been paid on the land, and deducting dicated. this amount from the $82,000 charged for the land would leave the value of the land and improvements at the time the work stopped at about $168,000. It is conceded that Hammond drew checks against the special fund amounting to $218,610, and we have held that the three checks, one to Thomas C. Basshor Company for $21,000, one to De La Vergne Company for $20,413, and the other to John A. Sheridan for $5,100, were wrongful diversions of this fund. It seems equally clear from the proof that the $10,000 paid Hammond on the 19th of November, 1902, and the $10,000 paid him on the 17th of December, 1902, were largely used for purposes other than plant No. 2. It appears from the record that from November 12, 1902, to May 4, 1903, the sum of $146,100 was paid out of the special fund upon the following checks, viz.: 1. Nov. 2. Nov. 3. Nov. 4. Nov. 5. Dec. 6. Jan. 7. Feb. 8. Feb. 9. 12, 1902-De La Vergne R. M. Co.. $30,000 19, 1902-Ormond Hammond 17, 1902-Ormond Hammond 17, 1903-Ormond Hammond 20, 1903-Ormond Hammond March 17, 1903-Ormond Hammond 10. March 30, 1903-Ormond Hammond 11. April 16, 1903-Ormond Hammond 12. May 4, 1903-Ormond Hammond This brings us to a consideration of the negligence and liability of the several members of the building committee, under the allegations of the several bills filed herein. As all the bills allege that the members of the building committee who signed the various orders or certificates had knowledge of the purposes for which the fund of $300,063 was devoted, and "either knew that said checks were not given for any of the purposes to which the fund was devoted, or made no inquiry, and recklessly and negligently executed and delivered the certifi cates," we shall dispose of the several contentions together. Without restating the facts, it is sufficient to say that the legal relationship of the building committee in this case to both the ice company and bondholders was that of directors and technical trustees. They were all directors of the Hammond Ice Company, and had been appointed a committee of directors to have charge of the construction of plant No. 2. They were all 5,100 subscribers to the bonds, and Messrs. Evans, 10,000 Martin, and Westcott had subscribed and 10,000 10,000 paid for $34,000 of the bonds. Every one of 10,000, the orders or certificates signed by the build10,000! ing committee shows on its face the way 10.000 ...... 10.000, the money was to be applied by Hammond, 10,000 and it was to be paid on account of work for plant No. 2. The same principles of law applicable to the other cases and cited herein will control in the accounting between Hammond, as contractor, and the special fund here in controversy. He will be charged with the money paid him on account of plant No. 2, and, of course, will be credited with such sums as were properly paid and applied on account of the construction of plant No. 2. The funds that were paid on account of the old indebtedness due on plant No. 1, and those expended by Hammond for his personal benefit, and not applied to plant No. 2, can be recovered by the plaintiffs, for the benefit of the bondholders, under the principles of law cited herein. [2] The law is well settled in this state and elsewhere as to the liability of directors, managers, and technical trustees for negligence and reckless conduct as is sought here to be enforced against this committee. In Booth v. Robinson, 55 Md. 419, Judge Alvey said, in quoting from Overend v. Gurney, L. R. 4 Ch. 701, "that facts which may show imprudence in the exercise of powers clearly conferred upon directors wiH not subject them to personal responsibility; but if the imprudence be so great and manifest as to amount to crassa negligentia, and consequently a breach of trust, personal responsibility will be incurred. deed, all the cases agree that directors are not liable for the consequences of unwise or indiscreet management, if their conduct is entirely due to mere default or mistakes of judgment. And the onus of proof of fraud, combination, or gross negligence, to render the directors personally liable, is upon the party making the charge; and the proof must be clear and manifest.” In There is, to state it plainly, a degree of uncertainty attending many of the credits claimed by Hammond as payments on account of the construction of plant No. 2 which cannot be overlooked by us, and an examination of the record fails to convince us that there is sufficient evidence to entitle them to be allowed. He was a man of small means, largely involved financially by In Reus Loan Co. v. Conrad, 101 Md. 229, reason of the construction of plant No. 1, 60 Atl. 738, Judge Jones adopts the lanand other circumstances, and under the guage as used in 10 Cyc. 830, as a result of proof but little credit can be given to the the authorities, to the following effect: statement filed by him in these cases (Ex-"None of the decisions exact more than a hibit Hammond No. 5), unless supported by other evidence. The decrees in the cases against Hammond will therefore be reversed, and the cases remanded, with direction reasonable business knowledge and skill, strict good faith, and a reasonable measure of care and diligence under the circumstanees of the particular case." And to the same 103 Md. 564, 64 Atl. 26, 8 L. R. A. (N. S.) | committee had every confidence in Hammond, 738, 7 Ann. Cas. 1114; Fisher v. Parr, 92 the president of the company and the general Md. 245, 48 Atl. 621; Murphy v. Penniman, 105 Md. 452, 66 Atl. 282, 121 Am. St. Rep. 583; Foutz v. Miller, 112 Md. 461, 76 Atl. 1111; Briggs v. Spaulding, 141 U. S. 132, 11 Sup. Ct. 924, 35 L. Ed. 662. While there is a distinction between the measure and standard of liability of directors and of technical trustees, the authorities hold that trustees are not personally liable, unless there has been both negligence and resulting loss. In Diffenderffer v. Winder, 3 Gill & J. 341, it was held, where trustees act bona fide and with due diligence, they have always received the favor and protection of courts of equity; their acts have been regarded with the most indulgent consideration. But, on the other hand, where they have betrayed their trust, where they have "grossly violated their duty, where they have been guilty of unreasonable negligence, they forfeit all claims to the favor and protection of the court." Chase v. Locker man, 11 Gill & J. 208, 35 Am. Dec. 277; Gray v. Lynch, 8 Gill, 432; Maennel v. Murdock, 13 Md. 163; McCoy v. Horwitz, 62 Md. 183; 28 A. & E. Enc. L. (2d Ed.) 1059; 31 Cyc. 1469. contractor for the erection of plant No. 2, and had reason to believe that the money was being properly paid out on plant No. 2, as directed by the certificates. As was said by this court, in Foutz v. Miller, supra: "When the acts of the parties are considered in the light of the situation and conditions in which they were placed, while it may be said they were unwise, indiscreet, and inefficient in the management of the association, and were guilty of some negligence, we do not find that they were guilty of such gross or culpable negligence, which must clearly be shown before they can be held to be personally liable." [3] In the case of C. Hazeltine Basshor, however, who not only signed the certificate to O. Hammond, but subsequently actually participated in the diversion by applying the check to the payment of the old indebtedness due on plant No. 1 to his company, the facts are different, and we are compelled to hold upon the evidence in the case, both upon principle and authority, that he committed a breach of trust in applying the funds to plant No. 1, and is clearly liable in this suit. It is a familiar rule of law in this state sonable construction of the agreements filed Nor can we hold, under a proper and reathat directors of a financial enterprise cannot be held liable collectively for the acts of the board, but each may be liable for his own acts, whether of omission or commission; and therefore the respective liability of different members of the enterprise may be entirely different. No one can read the record now before us without being satisfied and coming to the conclusion that the failure of the enterprise or loss to the bondholders was not due to the gross negligence or culpable neglect of the building committee, except as hereinafter stated. The project for plant No. 2 was a large one, and an issue of $1,400,000 of bonds had been underwritten by parties who were supposed to be responsible. The direct cause of loss to the company and the collapse of the enterprise, as shown by the proof, was in consequence of the failure of the City Trust & Banking Company and the failures of the subscribers to take and pay for the bonds. We do not think that the allegations of the plaintiffs' bill (in each case) are sustained by the evidence to the effect that the committee (except C. H. Basshor in the Thomas C. Basshor Company certificate), at the time of the issue of the certificates to Hammond, either knew that the checks were not given for any of the purposes to which the fund was devoted, or recklessly and negligently executed and delivered the certificates. On the contrary, as we have said, very one of the orders signed by the building committee expressly shows on its face that it was drawn on account of work for plant No. 2. The in the case, that the certificates or orders given Hammond by the building committee before the work on the plant actually began under the facts and circumstances of this were such a diversion of the special fund, case, as to constitute gross or culpable negligence and willful neglect on the part of the building committee as to make them liable, except as herein indicated. While it is true that the agreement (Exhibit A) recites that the bonds or proceeds thereof should be delivered to Hammond in installments from time to time as the work on the plant progressed, under orders or certificates of the building committee, yet. as we have held, whenever the payments were properly applied to plant No. 2, the defendants would be exempt from liability, because the bondholders got the benefit of these payments in the progress of the work, and no loss resulted therefrom. Whenever the fund was diverted or misapplied to plant No. 1, or to purposes other than plant No. 2, it has been held that the parties who knowingly participated in the breach were liable for the diversion. So, without extending this opinion to an unreasonable length, it may be said, as a result of a very patient examination of the lengthy record in the case, that, while we find that the building committee were somewhat careless and negligent in many respects, we are unable to hold, except in the case of C. H. Basshor, that they were guilty of such gross and culpable negligence as would justify a court in finding them personally liable. The burden of proof was upon the party making the charge, and, according to all the authorities, the evidence must be both clear and certain. We are not satisfied that the plaintiffs have met the burden of proof in this case as required, and the evidence tending to show liability on the part of all of the committee is both unsatisfactory and conflicting. It would be exceedingly dangerous and against the well-established rules of law in such cases to hold Messrs. Westcott, Martin, Evans, and Dallam, members of this committee, personally liable for the diversion of this special fund on the evidence now before us, and as urged by the plaintiffs in their oral arguments at bar and in their briefs. In Gray v. Lynch, 8 Gill, 403 this court said: "To compel trustees to make up a deficiency not owing to their willful default is the harshest demand that can be made in a court of equity." Of course, we would not be understood as holding the Thomas C. Basshor Company and C. Hazeltine Basshor as both liable for the payment of the $21,000. The payment by either will be a satisfaction of the liability. We have examined the rulings upon the exceptions to the testimony, and find no such error as would affect the conclusions reached by us, so they will not be discussed. Evans, and Dallam, and reversed as to the defendant John A. Sheridan, and that the said cause be remanded to the said circuit court No. 2 without affirming or reversing the said decree as to the said Ormond Hammond; that further proceedings may be there had in accordance with an opinion this day filed. We further hold that one-third of the costs in this court be paid by the said Thomas C. Basshor Company, John A. Sheridan, and Ormond Hammond, and two-thirds of the costs in this court be paid by the receiver of the Hammond Ice Company out of the funds in his hands; and that the costs in each of the cases in the lower court be subject to the order and direction of the said court upon the final disposition of the case. Decrees and costs disposed of as indicated above. 1. APPEAL AND ERROR (§ 1002*)—RevIEW— CONFLICTING EVIDENCE. road to recover for injuries from blows inflictIn an action by a passenger against a railed upon him by the brakeman, judgment for plaintiff will not be set aside where the evidence as to plaintiff's misconduct, and as to whether the brakeman was acting in self-defeuse, was conflicting. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. 1002.*] garding it. It results from the conclusions we have reached that the decree appealed from in appeal No. 1 will be aflirmed as to Messrs. Evans, Martin, and Dallam, and reversed as to the Thomas C. Basshor Company, C. 2. TRIAL (§ 140*)-QUESTIONS FOR JURY. The credibility of witnesses is for the jury: Hazeltine Basshor, and Ormond Hammond, and their manner and their motive and the inand the case remanded that further proceed-herent improbability of their story may disings may be had as indicated in the foregoing credit their story and justify a jury in disreopinion; that the decree appealed from in appeal No. 2 be reversed, in so far as it relates to or affects Ormond Hammond, and affirmed as to the other defendants affected by it, and that the cause be remanded for further proceedings; that the decree appealed from in appeal No. 3 be athrmed as to Messrs. Martin, Evans, and Dallam, and that as to the defendant Ormond Hammond that the cause be remanded, without either affirming or reversing said decree, for the further action of the circuit court No. 2 in accordance with the opinion this day filed; that the decrees appealed from in appeals No. 4, No. 5, No. 6, No. 7, No. 8, and No. 9 be affirmed as far as the said decrees relate to or affect Messrs. Westcott, Basshor,, Martin, Dallam, and Evans, and that as to the defendant Ormond Hammond in each of said appeals that the cause be remanded,, without either affirming or reversing said decrees, for the further action of the circuit | court No. 2 in accordance with the opinion this day filed; that the decree appealed from in appeal No. 10 be affirmed as far as the same relates to or affects Messrs. Martin, Basshor, [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 334, 335; Dec. Dig. § 140.*] 3. NEW TRIAL (§ 140*)-GROUNDS. A new trial will not be granted because of alleged refusal to report a request by the jury there is nothing to show an actual request by to the judge for further instructions, where the jurors to the tipstaff, nor because a juror told the tipstaff that his health would be endangered by remaining out another night, where there is no evidence of such statement, or that the juror was not in good health. Ed. Note.--For other cases, see New Trial. Cent. Dig. §§ 284-289, 302, 306; Dec. Dig. § 140.*] 4. APPEAL AND ERROR (§ 1051*)-ADMISSION [Ed. Note.--For other cases, see Appeal and Error. Cent. Dig. §§ 4161-4170; Dee. Dig. § 1051.*] Appeal from Court of Common Pleas, Brad ford County. Action by Albert L. Kelley against the Le high Valley Railroad Company. Judgment | was required to leave the car at Tunkhanfor plaintiff, and defendant appeals. firmed. The defendant moved for a new trial, assigning, inter alia, the following reasons: "(4) The verdict is against the weight of evidence and charge of the court. Af-nock, but alleges that he was not assaulted nor forcibly ejected; that he was intoxicated, and, as he was descending the steps of the car, was very abusive and turned upon the brakeman, who put his hands on the plaintiff's shoulders, turned him round, and "sent him down the steps." As to what occurred after the plaintiff reached the ground, the defendant claims that the plaintiff went some distance from the car, procured a large chunk of coal, and was in the act of striking "(5) That during the consideration of the above case by the jury, on Sunday, February 27, a request was made by some of the jurors to Charles Daugherty, tipstaff in charge, that they desired to have the testimony of Thomas O'Donnell read to them, and was informed by the tipstaff that 'that could not Argued before BROWN, MESTREZAT, R. W. Barrett, of Philadelphia, and E. H. Boles, of New York City, for appellant. Stephen H. Smith and David E. Kaufman, both of Towanda, for appellee. the brakeman when the latter hit him with the ventilator stick on the hand and, as he turned, struck him on the back. This action was brought by the plaintiff to recover damages for the injuries inflicted by the brakeman on the plaintiff as the latter was leaving the defendant's train. The jury returned a verdict in favor of the plaintiff, and from the judgment entered The first thereon this appeal was taken. and second assignments allege the court erred in refusing to grant a new trial, and this is the principal reason assigned by the defendant for the reversal of the judgment. The case was submitted to the jury in a charge to which no exception was taken, and in which the rights and duties of the passenger and the carrier were accurately and clearly defined. The learned judge charged that, if the plaintiff was unlawfully assaulted by the brakeman while acting within the scope of his authority and in the performance of the duties assigned him, there could be a recovery; but if he was misconducting himself on the train, as alleged by the defendant. and the brakeman did not assault or strike him, and used only such force as was reasonably necessary to get him to leave the train. the plaintiff would have no reason to complain, and would have no action against the company for anything that occurred on the car or in going down the steps. As to what The MESTREZAT, J. On June 14, 1909, Albert L. Kelley, the plaintiff, purchased a ticket at Pittston for Laceyville, a station | occurred after the plaintiff was on the ground on the line of the defendant company's road or platform, the court instructed the jury beyond Tunkhannock, and boarded a train that, if he was unlawfully assaulted by the for his destination. When the conductor ex- brakeman while the latter was acting within amined the ticket, he informed the plaintiff the scope of his authority, and he did not that the train did not stop at Laceyville, and by his own unlawful act precipitate or cause that he must get off at Tunkahannock and the trouble, or by his negligence and contake a later local train for Laceyville. He duct assist in producing it, there could be a punched the ticket, made an indorsement on recovery for the injuries sustained. it, and handed it back to the plaintiff. These jury was also told that if the injuries refacts are not in dispute. The plaintiff claims ceived were the result of the plaintiff's own that as he was leaving the train at Tunkhan- negligence, violent and unlawful acts, if nock he was assaulted and severely injured these contributed as a producing cause, if by the defendant's brakeman while descend- he was guilty of a prior assault and was hit ing the steps to the ground. He alleges that by the brakeman, who had reason to believe he was struck on the back of the head and from his attitude and manner and speech pushed from the train; that his right ankle that he was in danger, and no more force joint was sprained, the outer ligaments of was used than appeared to be reasonably the ankle were ruptured, and that he was necessary to protect himself, or eject the otherwise injured. He further claims that plaintiff from the train, there could be no he was assaulted by the brakeman after he recovery by the plaintiff for the injuries he had passed from the steps of the car to the sustained. ground, and while he was still near the train. The plaintiff's own testimony fully sus |