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R. Co. v. McCormick, 124 Pa. 427, 16 Atl. 848; Bridges v. North London Ry. Co., L. R. 7 H. L. 213; McNulta v. Ensch, 13+ Ill. 46, 24 N. E. 631; Memphis & Little Rock Ry. Co. v. Stringfellow, 44 Ark. 322, 51 Am. Rep. 598; Ellis v. Chicago, M. & St. P. Ry. Co., 120 Wis. 645, 28 N. W. 942.
The present case, however, is not one where the station had been called and the train either stopped short or overran it, so that the passenger alighted in a dangerous place and received injuries. This case is more like that of Mitchell v. Grand Trunk Ry. Co., 51 Mich. 236, 16 N. W. 388, 47 Am. Rep. 566, where the station was announced or called before arriving at a railway crossing or junction, 300 or 100 feet from the station. The train stopped at the crossing, and the plaintiff in attempting to leave the car was hurt. The court said the real cause of the injury was the mistaken supposition of the
passenger that the train had stopped for the station. There was nothing at the spot to indicate a landing place. The stoppage of cars was required by statute, as well as by usage. The judgment below was reversed on the ground that there was nothing to show any negligence on the part of the company. In the case of Ill. Central R. R. Co. v. Warren, 149 Fed. 658, 79 C. C. A. 350, it was held that the announcement of the next station, although made on near approach to the station, was not an invitation to a passenger to leave his seat and attempt to alight before the train actually stopped. Because he did this, the passenger who was injured was held guilty of contributory negligence.
We have given the present case careful consideration. The case of the plaintiffs rests upon the contention that the stoppage of the train on the trestle after the next station had been announced constituted an invitation to the young men to alight. We think that a clear distinction must be made, as we have said before, between the announcement of the next station and the call of the station at which the train is in the act of stopping. We think that in the present case no passenger of ordinary intelligence and in the exercise of ordinary care would regard the stopping of the train on the trestle as an indication that Knoxville had been reached and the time had come for him to alight, and that the idea that such a view would be taken by any passenger was not within the reasonable contemplation of either the conductor or any of the trainmen. Now, if in the actual course of events these three passengers could not be expected to alight merely because the train had stopped on the trestle, then there was no duty imposed upon the trainmen to warn them to keep their seats. Trainmen have a right to credit passengers with ordinary common sense. Passengers must exercise common sense, common care, or answer for the lack of it. In this country passenger trains are not run upon the theory that the passengers must be locked in when the train is in motion, and only released when the station is reached and the trainmen let them out. Passengers are supposed to have knowledge of common railway usages, of the way in which trains are ordinarily run and handled. While the present case excites our sympathy, we are unable to satisfy ourselves that the court below was wrong in directing a verdict for the defendant. Of course, there was a possibility that testimony might have been presented which would have showed or at least have tended to show that the defendant was negligent, but no testimony of this sort was introduced, and it is a well-known rule that negligence can neither be presumed nor guessed
Powers v. Marquette Ry. Co., 143 Mich. 379, 106 N. W. 1117. The judgments of the lower court are affirmed. The joint writ of error in case No. 1,684 is dismissed for want of jurisdiction.
(156 Fed. 569.)
OSIUS V. DAVIS.
(Circuit Court of Appeals, Sixth Circuit. November 6, 1907.) INSURANCE-RIGHT TO PROCEEDS OF LIFE POLIOY-EVIDENCE CONSIDERED.
Evidence considered in a suit of interpleader between the widow and a former partner of a decedent to determine the right to the proceeds of a policy of insurance on his life, which was by its terms payable to his estate, but by an agreement between the partners was to be held for the benefit of the partnership, and held to sustain the claim of the widow that the partnership had been dissolved some months prior to her hus
band's death, and all matters between the partners settled. Appeal from the Circuit Court of the United States for the Eastern District of Michigan.
T. B. Bradfield, for appellant.
RICHARDS, Circuit Judge. This was a bill of interpleader filed by the New York Life Insurance Company against Rudolph Osius and Nellie Belle Davis, who by stipulation have become, respectively, the complainant and defendant in the litigation. The matter in dispute is the amount of a policy of $5,000, written by the New York Life Insurance Company, December 30, 1903, upon the life of William Francis Davis, husband of the defendant, who died September 25, 1904. The policy was payable "to the executors, administrators or assigns of the insured, or to such beneficiary as may have been duly designated.” It also provided that the insured might change the beneficiary by written notice to the company, but that no designation or change of beneficiary should take effect until indorsed on the policy by the company at the home office. The amount due under the policy has been paid into the court below. The bill of interpleader was brought against Mrs. Davis “personally and as executrix of the last will and testament of her husband.” Rudolph Osius was made a defendant “as sole surviving member of the late copartnership duly organized and doing business under the firm name of the American Dental Syndicate," which was composed of William Francis Davis and Rudolph Osius, the latter being general manager, while Davis was the business manager. Rudolph Osius claims the amount of the policy as sole surviving member of the American Dental Syndicate, claiming that this policy and one upon his own life were taken out by the syndicate, the premiums paid by the syndicate, and that there was an agreement that the policy was to be for the benefit of the syndicate and payable to the surviving member. Nellie Belle Davis was the executrix of her husband's will and his sole legatee, and as such she claims the amount of the policy. The court below heard the testimony, and in a considered opinion held that the firm known as the American Dental Syndicate was dissolved, and its assets divided, on May 21, 1904, some four months before Davis died, and therefore the policy, according to its terms, was payable to her as executrix and sole legatee. From this decree there is an appeal to this court.
Prior to March 23, 1903, Rudolph Osius owned and operated dental establishments in the cities of Grand Rapids, Battle Creek, Flint, and Lansing, Mich., under the name of the "American Dental Syndicate." On that date William F. Davis, who was a lawyer living in Lansing, became his partner. Under the agreement Davis was to pay to Osius the sum of $5,000, $1,000 down, and $4,000 from the earnings to which Davis would be entitled less his salary; and it was expressly agreed that the title to one-half of the business was to remain in Osius until the promissory note of $4,000 was paid in accordance with its terms. Osius was to be the general manager and Davis the business manager of the firm, the former to receive $50 per week and the latter $10 per week. While the business of this copartnership was going on, two life insurance policies of $5,000 each were taken out, one by Osius and one by Davis, December 30, 1903. Frederick Cody was the agent of the life insurance company. The premiums on the two policies amounted to $269.20, being $128.75 for the Davis policy, and $140.45 for the Osius policy. Cody paid the premiums, and then settled with the policy holders. The premium on the Davis policy was partly paid by the partnership and partly by Davis himself, the last payment being $46.10, made on July 28, 1901. The receipt from Cody to Davis shows that it was in full settlement of the balance of the premium on his policy, and also in full settlement of his interest in the note given under the agreement dated December 31, 1903. On March 5, 1904, while the firin called the American Dental Syndicate was in existence, an agreement was made between Osius and Davis which provided that the policies should be paid to "the American Dental Syndicate, and not to their personal heirs or assigns,” the reason as stated being “the premiums on these policies being paid out of the funds of the American Dental Syndicate, and the policies were taken out designedly for the protection of the American Dental Syndicate.” While it is not disputed that this agreement was made, no indorsement was made on the policy, nor was there any notice of a change of beneficiary in accordance with its terms. The policy remained payable to the personal representatives of Davis, and was in his possession at the time of his death.
Such being the situation, the question in this case is whether, as alleged by Mrs. Davis, the partnership between her husband and Osius was dissolved on May 20 or 21, 1901. If it was, then the New York Life Insurance policy became payable, according to its terms, to her as executrix and sole legatee of her husband. We have carefully read all there is in the record upon this subject, and are clear in the opinion that the court below very properly held that Mrs. Davis had sustained the burden of proving the affirmative upon the issues of the case, namely, that the partnership had been dissolved by mutual consent and a full settlement and adjustment of its affairs had been made. The court below has referred in some detail to the facts which appear in the record and support its conclusions. It is unnecessary to go over these. The stateinents of Seth Davis and Carmer are quite inconsistent with the theory that the partnership continued to exist after May 21, 1904. After the agreements of May 20 and May 21, 1901, Davis withdrew from the American Dental Syndicate, ceased to be its business manager or have authority to bind it in any way, and restricted himself to the Battle Creek office which he purchased from Rudolph Osius, the other member of the defunct firm. In the agreement of May 20, 1904, made at Grand Rapids, Davis expressly relinquished all his right, title, and interest in the American Dental Syndicate, "ceased to draw salary or have anything to do with the management of the said American Dental Syndicate, the same being turned over to Dr. Rudolph Osius.' On May 21, 1904, the National City Bank was notified that after that date the signature of Dr. Rudolph Osius alone would be necessary on checks of the American Dental Syndicate. On July 10, 1904, Ossius wrote a letter to Davis which practically admits the dissolution and the fact that the insurance policies had been treated as personal assets. Speaking of another agreement, Osius says, “It certainly only applied to you when a partner in this firm”; the inference being that Davis had ceased to be such partner. Then he says:
"But kindly remember that I particularly except the life insurance account which you and I have, but showed a willingness on my part to pay for half of the same.”
Apparently this refers to the statement by Davis that Osius had agreed to pay all bills due from the business, and the exception made of the insurance account was made by Osius, although he says he had shown a willingness to pay for his half of that account. He also asserts that he has not only been extremely square with Davis at all times, but "particularly so at their dissolution."
These and other facts which appear on the record and have been referred to by counsel in the briefs and on the argument satisfy us that the partnership was dissolved months before Davis died, and that there was no thought at that time that the policy on Davis' life was being carried by the partnership or for its benefit. The claim now made by the surviving partner appears to be an afterthought.
The decree is affirmed.
(156 Fed. 571.)
UNITED ZINC COMPANIES V. WRIGHT.
(Circuit Court of Appeals, Eighth Circuit. October 14, 1907.)
1. MASTER AND SERVANT-FELLOW SERVANTS-FOREMAN IN MINE.
A ground foreman in mining operations conducted under a general superintendent or manager is a fellow servant with the gang of miners whose work he directs.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, $ 491.)
2. SAME-INJURY TO SERVANT--ASSUMED RISK.
A drillman in a mine where it was the usual known custom to move the drills by hand up stopes having a practicable grade assumed the risk of injury from such manner of doing the work, and cannot recover from the owner for an injury so received, and he was not relieved from such assumption by a complaint made to the ground foreman of such method and a promise on his part to secure appliances, where he had no authority to do so, either actual or apparent, and whose only duty was to report the complaint to the superintendent, under whose direction all the work was conducted, which he failed to do.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Serv. ant, $$ 639, 640.
Assumption of risk incident to employment, see note to Chesapeake & 0. R. Co. v. Hennessey, 38 C. C. A. 314.] In Error to the Circuit Court of the United States for the Southwestern Division of the District of Missouri.
Edward J. White (Arthur E. Spencer, on the brief), for plaintiff in error.
McPherson & Hilpirt and E. O. Brown, for defendant in error.
ADAMS, Circuit Judge. Wright sued his employer, the zinc company, for damages alleged to have been occasioned by its failure to furnish proper appliances with which to do the work assigned him. Defendant was engaged in lead and zinc mining, and plaintiff, who was an experienced miner, familiar with the operation of the drilling machine commonly used in lead and zinc mining, was employed by defendant as head drillman to take charge of the drilling operations in its mines. He had three helpers. At the time of his injury, he was engaged in moving the drilling machine weighing about 300 pounds up an inclined stope in the defendant's mine. The stope rose at an angle of about 45 degrees. Prior to the time of his injury, when the stope was so steep that miners could not walk up conveniently, defendant had employed a pulley and rope to haul up the machine; but this appliance had been abandoned after the stope became easier. The drillman and his helpers had been for some time, two or three weeks before the time of his injury, carrying the drill up the stope by hand. The evidence tends to show that this method was commonly resorted to in that region when the stopes were not so steep that a man could not walk up and down them. It required the men to lift and move the drill by main force, and, of course, was not so easy as raising it by a pulley; but, when the distance was short and the grade practicable, it was obviously a quicker and more feasible method than stopping to adjust and operate a pulley. When the plaintiff and his three helpers were carrying up the drill on February 14, 1905, he claims that some helper slipped and allowed the weight of the machine to sag back against him, and that the sudden strain injured his back. His counsel recognize that, by entering and remaining in the service of the defendant with full knowledge of its methods of doing business, Wright assumed the usual and ordinary risks of the employment, but place their reliance for recovery of damages upon a complaint alleged to have been made by him that the method of carrying the drill up the stope by hand