(97 Conn. 399) GALVIN V. BIRCH. (Supreme Court of Errors of Connecticut. May 5, 1922.) 1. Dismissal and nonsuit 57-Motion for nonsuit properly granted and permission to file substituted complaint in replevin denied where no complaint accompanied writ of summons. While a motion to erase from the docket for want of process would have been more appropriate than a motion for dismissal and nonsuit, where no complaint accompanied a writ of summons in replevin, as required by Gen. St. 1918, §§ 5628, 5591, 5664, the court properly sustained the latter motion, and denied plaintiff's motion for permission to file a substituted complaint. 2. Appeal and error 890-Supreme Court cannot construct statement of cause of action from implications of writ of summons in replevin unaccompanied by complaint. Section 5664, relating to amendments of complaints, assumes the existence of an original complaint. "The writ, which consists of the mandatory and directory part, with the description of the parties and the court, is to be accompanied with a declaration containing the cause of action. *** The practice with us seems to have been established at the commencement of the government, and was introduced by statute." 1 Swift, Dig. 589. "A complaint as well as a declaration must accompany a writ of summons or attachment. The writ is void if there is no complaint.' Dunnett v. Thornton, 73 Conn. 1, 14, 46 Atl. 158, 162. In Gallup v. Jeffery, 86 Conn. 308, 311, 85 Atl. 374, the attempt to commence an action for breach of the condition of a penal bond by the use of the common counts was described as "in practical effect the institution of an action by the service of a summons alone, and thus an evasion of the requirements of our practice." The Supreme Court of Errors cannot construct a statement of a cause of action out of implications of a writ of summons and affi"When a complaint contains a defective davit in replevin where no complaint accom-statement of a cause of action, that statement panied the writ. may be perfected later by amendment, but the statement of a defective cause of action is not Appeal from City Court of Meriden; the statement of any cause of action at all; Thomas P. Dunne, Judge. Action by Raymond J. Galvin against Fred J. Birch. From From a judgment of nonsuit, plaintiff appeals. No error. Lewis J. Somers, of New Haven, for appellant, Alfred B. Aubrey, of Meriden, for appellee. BEACH, J. The process in this action, which was returnable to the city court of Meriden on the first Tuesday of September, 1920, consisted of a writ of replevin without any complaint, an affidavit, a replevin bond, and the return of the constable. The defendant appeared, and no further proceedings were taken until October, 1921, when the defendant moved for a dismissal and nonsuit because the process did not contain a complaint or set forth any cause of action. The plaintiff then moved for permission to file a substituted complaint. The plaintiff's motion was denied, and the defendant's motion granted, and judgment as of nonsuit entered, on the ground that the court was powerless to grant the motion to file a substituted complaint when no original complaint had been included in the pro cess. and any process which will result in the statement of a good cause of action necessarily involves the introduction of a new cause of action." Vickery v. New London Northern R. R. Co., 87 Conn. 634, 641, 89 Atl. 277, 279. [2] The plaintiff asks us to construct an imperfect statement of a cause of action for him out of the implications of the writ and affidavit; but this is quite beyond our jurisdiction. There is no error. All concur. (97 Conn. 405) BLODGETT, Tax Com'r, v. UNION & NEW HAVEN TRUST CO. (Supreme Court of Errors of Connecticut. May 5, 1922.) 1. Taxation 861-Succession tax statute in effect when trust was established held applicable rather than subsequent statute. Pub. Acts 1913, c. 231, relating to succession taxes, which was in force when a deed and security were delivered to the trustee, held to which came into effect after creation of the apply rather than Pub. Acts 1915, c. 332, trust, the trust deed being irrevocable, the possible contingency on which the fund might revert to the settlor being beyond the settlor's control, she having retained nothing beyond the income thereof during her life. [1] A motion to erase from the docket for want of process would have been more appropriate, and would have served the same purpose as the motion for dismissal and nonsuit, but the result was right. Section 2. Taxation 861-Succession tax on trans5628 requires that the writ shall be accompanied by the plaintiff's complaint. section 5591 no service of a writ of summons Under fer should depend upon terms of statute in force when transfer takes place. An irrevocable grant of a remainder interest is valid unless the complaint accompanies it. is a present transfer to the remainderman, and, (116 A.) since a succession tax is a tax on the transfer, livered to the Union & New Haven Trust and not on the property, the question whether Company a deed of trust whereby she transany particular transfer is or is not taxable ferred to the trust company described securishould logically depend upon the terms of the ties of the par value of $134,000, with the statute in force at the time when the transfer usual powers of sale and reinvestment, upon takes place. trust to pay the income of the fund to the 3. Taxation 861-Succession Tax Act held settlor for life, and at her death to deliver not to lay a retroactive tax. Any legislative intent to lay a retroactive succession tax ought to be manifested by plain and explicit words, and the Succession Tax Act of 1915 contains no expression of such an in tent. 4. Statutes 245-It must be presumed that the variations in the phraseology in different tax laws were intentional and adapted to the state's necessities. Since the taxing power of the General Assembly within its own constitutional limitations is plenary, it must be assumed that variations in the phraseology of the different tax laws were intentional and adapted to the changing financial necessities of the state. 5. Taxation 879(1)-Law providing for tax on "gift to take effect at death" held to apply to gift to take effect in futuro and not gift in præsenti after remainder of life interest; "testamentary gifts." Pub. Acts 1913, c. 231, by the phrase "gift to take effect at death," means a gift in the future to take effect at death of an interest in property possessed by decedent at the time of his death, and does not lay a tax upon a gift in præsenti of the remainder interest in property of which the decedent reserved no more than a life interest, which was extinguished by her death, and section 12 of such act does not enlarge the scope of section 2; for the use of the phrase "testamentary gifts" as synonymous with "gift to take effect at death" emphasizes the intent to confine the tax to gifts in futuro. 6. Taxation 879(1)-Transfer tax law using phrase "testamentary gifts" as synonymous with "to take effect at death" held to exclude irrevocable present conveyances. Under the rule that the enumeration of subjects of taxation excludes what is not enumerated the use of the phrase "testamentary gift" as synonymous with "gift to take effect at death" seems to exclude rather than include irrevocable conveyances which had already taken effect by delivery before grantor's death. Appeal from Superior Court, New Haven County; George E. Hinman, Judge. Proceedings by William H. Blodgett, Tax Commissioner, against the Union & New Haven Trust Company, trustee. From a decree of the probate adjudging no taxes payable on the trust fund, the commissioner appealed to the superior court of New Haven county, which reserved the question for the advice of the Supreme Court on an agreed statement of facts. Superior court advised to render judgment in favor of the trustee. On April 8, 1915, Elizabeth F. King, of New Haven, executed, and on April 12 de the fund to her daughter, Jessie Shuttle- Carlos S. Holcomb, of Hartford, and Frank Edmund L. Mooney, of New York City, and James Dwight Dana, of New Haven, for appellee. BEACH, J. (after stating the facts as above). [1] Chapter 231 of the Public Acts of 1913, which was the succession tax statute in force when the trust deed was executed and delivered, provided in section 2 that "All property within the jurisdiction of this state and any interest therein, tangible or intangible, possessed by any resident of this state at the time of his decease, and all tangible property within this state possessed by a nonresident at the time of his death, which shall pass by gift to take effect at death, by will, or by the inheritance laws of this state, to any person, corporation, voluntary association, or society, in excess of the exemption hereinafter set forth, shall be liable to a tax to the state," etc. The corresponding section of the act of 1915 (Pub. Acts 1915, c. 332), which became effective subsequent to the execution and delivery of the deed of trust, provides that "All property owned by any resident of this state at the time of his decease, and all property within this state owned by a nonresident at the time of his decease, which shall pass by will or by the provisions of the general statutes relating to the distribution of intestate estates, and all property of such decedent which shall pass by deed, grant, or gift, made in contemplation of the death of the grantor or donor, or intended to take effect in possession or For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes enjoyment at the death of such grantor or do- [transfer was taxable under the law of 1913. nor, shall be liable to a tax as hereinafter provided." The phrase "gift to take effect at death," in its context, evidently means a gift in future to take effect at death of an interest in property possessed by the decedent at the time of his death. The gift in question was a gift in præsenti of the remainder interest in property of which the decedent reserved no more than a life interest, which was extinguished by her death. It was a gift inter vivos, and it cannot be brought within the statute of 1913 unless we read into the act the qualifying and enlarging phrase afterwards inserted by the amendment of 1915, "in possession or enjoyment." The question first to be considered in logical sequence is whether the taxing statute applicable to the trust fund is the act of 1913, which was in force when the deed and the securities were delivered to the trustee or the statute of 1915, which came into effect after the establishment of the trust, but before the settlor's death. As to this point As to this point we are of opinion that the probate court was right in holding that the applicable statute was that of 1913, for the reason that the trust deed was absolute and irrevocable. These words mark the difference between One possible contingency, indeed, remained open, on the happening of which the fund a tax on the privilege of succeeding to the might have reverted to the settlor, namely, property of a decedent and a tax on the the death intestate of Jessie Shuttleworth privilege of succeeding to the possession and in Mrs. King's lifetime. That contingency, enjoyment of property which the decedent however, was preventable by Mrs. Shuttle- has conveyed away during his lifetime, reworth, and was entirely beyond Mrs. King's serving only a right to the income during control, so that the settlor cannot be said his own life. Nobody doubts the right of the to have retained any property in or control state to tax the privilege of succeeding to over the fund beyond her reserved right to the possession and enjoyment of property unthe income thereof for life. In that respect der what the Supreme Court has called "arthe instant case differs sharply from the de- tificial and technical estates with limitations cided cases in which the settlor reserved the over" (Keeney v. N. Y. supra); but, on the power to revoke the transfer during his other hand, nobody can doubt that the Genlifetime. In the latter class of cases it is eral Assembly and its financial advisers unnecessarily held that the transfer is am- derstood very well the difference between a bulatory and does not take effect as a trans- gift to take effect at death and a conveyfer of the remainder interest until the gran- ance inter vivos reserving a bare life intertor dies without revoking it. Matter of Dana est. This is all the more certain because our Co., 215 N. Y. 461, 109 N. E. 557; Lines' Es- first collateral inheritance tax act of 1889 tate, 155 Pa. 378, 26 Atl. 728. (Acts 1889, c. 180) recognized the difference by imposing a tax on gifts "intended to take effect in possession or enjoyment after the death of the grantor." In 1897 (Acts 1897, c. 201, § 11) the four words "in possession or enjoyment" were dropped out of the statute, and the tax limited to gifts "to take effect upon the death of the grantor or donor"; and it was not until 1915 that the scope of the act was again enlarged by reinserting the word "In possession or enjoyment." Since the taxing power of the General Assembly, within its constitutional limitations, is plenary, we must assume that these variations in phraseology were intentional and adapted to the changing financial necessities of the state. [2] On the other hand, an irrevocable grant of a remainder interest is a present transfer of it to the remainderman, and, since a succession tax is a tax on the transfer, and not on the property, the question whether any particular transfer is or is not taxable should logically depend on the terms of the statute in force at the time when the transfer takes place. [3] Whether the Legislature might constitutionally lay a succession tax upon a transfer of a remainder interest which had already vested in right before the statute was passed, is a question which we need not discuss any further than to observe that the intent to lay a retroactive tax ought to be manifested by very plain and explicit words, and that we find no expression of that intent in the act of 1915. Our conclusion that the applicable taxing statute is that which was in force when the irrevocable trust deed was delivered agrees with the decisions in other jurisdictions. Matter of Webber, 151 App. Div. 539, 136 N. Y. Supp. 83; In re Craig's Estate, 97 App. Div. 289, 89 N. Y. Supp. 971, affirmed 181 N. Y. 551, 74 N. E. 1116; Executors of Eury v. State, 72 Ohio St. 448, 74 N. E. 650; Keeney v. New York, 222 U. S. 525, 537, 32 Sup. Ct. 105, 56 L. Ed. 299, 38 L. R. A. (N. S.) 1139. We find nothing in section 12 of the act of 1913 which enlarges the scope of section 2. Section 12 declares that all transfers and alienations of real or personal estate by deed, grant, or other conveyance "to take effect upon the death of the grantor or donor shall be testamentary gifts within the meaning of this act for taxation purposes." The use of the phrase "testamentary gifts" as synonomous with gifts "to take effect at death" rather emphasizes the intent to confine the tax to gifts in futuro; and the same intent is further emphasized by the concluding phrase of section 12 forbidding (116 A.) possession of any such conveyance to "de- 6. Negligence 136 (26)-Contributory negli liver the same" until the tax is paid. [6] Under the rule that the enumeration of subjects of taxation excludes what is not enumerated, this latter phrase would seem to exclude rather than to include irrevocable conveyances which had already taken effect by delivery before the death of the grantor. The superior court is advised to render judgment for the appellee. The other Judges concurred, except GAGER, J., who concurred in the result, but died before receiving the opinion. (140 Md. 115) WASHINGTON, B. & A. R. Co. v. STATE, 1. Railroads 327 (2)-Pedestrian crossing Where an approaching train 'could be seen for a distance of 700 feet, and one struck as he was crossing the track could have seen the train in time to avoid the danger if he had looked or heard it if he had listened, he was negligent as a matter of law. 2. Railroads 324(1)-Pedestrian standing near track held negligent. If one struck by a train knew of its approach and stood near enough to the track to be hit, he was guilty of contributory negli gence. 3. Carriers ~247 (2)-One leaving station platform just before arrival of train held not to sustain relation of passenger. Though one waiting at the place provided for passengers might have been a passenger, he no longer sustained that relation, where just before the arrival of his train he abandoned his intention of taking it, or left the station platform and walked across the tracks, where there was no occasion for him to go as a pas senger. 4. Carriers 347 (1)-Rule as to passenger not being negligent as matter of law in crossing tracks inapplicable, where there was no invitation or inducement to cross. gence for jury. The question of contributory negligence should always be submitted to the jury, except where there has been some act of negligence committed by the injured party of such a character as to leave no room for difference of opinion among reasonable men as to its quality. Appeal from Superior Court of Baltimore City; James M. Ambler, Judge. "To be officially reported." Action by the State, to the use of Charles M. Goodwin, father of Charles B. Goodwin, deceased, against the Washington, Baltimore & Annapolis Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, without new trial. See, also, 137 Md. 538, 113 Atl. 338. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ. George Weems Williams, of Baltimore (Marbury, Gosnell & Williams and E. F. A. Morgan, all of Baltimore, on the brief), for appellant. Isaac Lobe Straus, of Baltimore (Harry O. Levin and Foster H. Fanseen, both of Baltimore, on the brief), for appellee. ADKINS, J. This is a suit under Lord Campbell's Act, by a father, Charles M. Goodwin, to recover for alleged negligent killing of his son, Charles B. Goodwin, by the Washington, Baltimore & Annapolis Electric Railway Company. From a judgment in favor of plaintiff the defendant appealed. For the purposes of this opinion the facts' may be stated very briefly. At about 2 o'clock P. m. of the 18th day of November, 1918, Charles B. Goodwin, son of the appellee, after leaving his place of employment at Camp Meade, walked to the crossing known as Kelly's Crossing, being a public highway, at which there was a flag station of the railroad company, for the purpose of going to Baltimore by one of the company's cars. This crossing runs approximately north and south, and the two tracks of the company run approximately east and west, the south track being the east-bound track from Camp Meade to Baltimore and the north track being the west-bound track. The width of each of these tracks was 4 feet 8 inches, and of the space between about 5 feet. The deceased approached these tracks from the north, and crossed over both of them either to or over the south rail of the east-bound track. He inquired of several people about The last clear chance doctrine was inap-trains for Baltimore, and was told one would plicable, where there was no evidence of any be along in about a minute. He was then at opportunity of a railroad company to avoid in- the place where people were accustomed to jury to one struck at a crossing after it had stand while waiting for trains for Baltimore. discovered his peril. For some unexplained reason, almost imme The rule that a passenger is not negligent as a matter of law in crossing a track without looking or listening in passing from the depot to a train, or vice versa, does not apply, when there is no invitation or inducement to cross, as where there was no train discharging passengers, and hence no occasion for the company to look out for their safety. 5. Railroads 338-Last clear chance doctrine held inapplicable. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes diately after getting this information, he retraced his steps, and just before reaching the south rail of the west-bound track he was struck by one of the handholds on the side of the motor of the west-bound train, and died almost instantly. danger, and if he listened he must have heard it. If he knew of the approach of the train and stood near enough to the track to be hit he was equally guilty of contributory negligence. McNab v. United Railways Co., 94 Md. 724, 51 Atl. 421; Glick v. C. & W. Electric Ry. Co., 124 Md. 308, 92 Atl. 778; Cullen v. N. Y. P. & N. R. R. Co., 127 Md. 651, 96 Atl. 809; Siejak v. United Railways & One witness testified that the train of four or five cars which hit Goodwin was, in her estimation, running at the rate of from 25 to 30 miles an hour. There was also testimony | Elec. Co., 135 Md. 367, 109 Atl. 107; B. & O. tending to show that no signal of the approach of the train was given by whistle or bell, or by the flagman; and the speed of the train and the failure to give proper signals are alleged as the acts of negligence on the part of the defendant which caused the accident. There are nine bills of exception, of which eight are to rulings on evidence and one to the ruling on the prayers. In the view we take of this case it will be necessary to consider only the refusal of the court to grant defendant's third prayer, which asked for an instructed verdict in favor of the defendant on the ground of contributory negligence. This prayer should have been granted. It was demonstrated by photographs that from the position of safety in which Charles B. Goodwin was before he came in contact with the motor of defendant's train to the point in the curve in the tracks where a train approaching from the east could first be seen from the position occupied by Goodwin was at least 700 feet. The number of poles appears clearly in the photograph, and there was no dispute about the distance between these poles. It is true several witnesses gave different estimates of this distance, less than 700 feet, but none of them was willing to swear that it might not have been that far, and all of them admitted that the figures they gave were little more than guesses, without any actual measurement. There was no attempt on the part of plaintiff to show that the photographs did not fairly represent conditions at that place, or that the distance between the poles was less than the measured distance proved by the defendant. Indeed the plaintiff failed absolutely to offer any proof of the distance by actual measurement, notwithstanding the length of time that elapsed between the date of the accident and the time of the last trial and the abundant opportunity to obtain the exact distance. And this too after the plaintiff had notice by testimony given at a former trial that defendant's proof showed a greater distance than the estimates given by plaintiff's witnesses. [1, 2] With such a showing there could not be room for a difference of opinion among reasonable men that the decedent was guilty of negligence of the grossest kind, and that such negligence directly contributed to the accident. If he used his eyes he must have R. R. Co. v. Newton, 137 Md. 21, 111 Atl. 481. And many other cases might be cited uniformly to the same effect both here and in other jurisdictions. [3] But it is sought to distinguish this case from cases like those above cited on the ground that the relation of Goodwin to the company was that of a passenger. It might well be held that he sustained that relation while he was on the company's property approaching, and standing at, the place provided for passengers to Baltimore. But it would be stretching the technical relation very far to hold that one who had sustained such a relation merely because of his going to a railway station with the intention of taking a train continued in that relation after he abandoned such intention or left the station platform just before the arrival of his train and walked across the tracks where there was no occasion for him to go as a passenger. 10 Corpus Juris, p. 613, § 1040, b. [4] If he had been leaving a train within a reasonable time after its arrival and by ways provided by the company for that purpose, the case would be different, as under such circumstances the company must provide safe exit for its passengers, and where it is necessary to cross tracks in approaching or leaving a train a passenger"may assume that the railroad company will so operate its other trains, or otherwise perform its duty, as not to put him in peril, and he is not under the same obligation to look out for his own safety by looking and listening as is incumbent in general on a person who approaches a railroad track with intent to cross it; and accordingly it has been held that it is not contributory negligence per se for a passenger from the depot to the train, or vice versa, to attempt to cross an intermediate track without first looking and listening for the purpose of ascertaining whether a train is approaching or not, but the question is ordinarily one for the jury to decide under all the facts But this rule and circumstances of the case. does not apply where there is no invitation or inducement to cross, as where the car or train is not standing at a place appointed by the carrier for the exit or entrance of passengers, or where the passenger alights from the wrong side of a train." 10 C. J. 1112. * Here there was no train discharging passengers, and therefore no occasion for the company to look out for their safety. See 10 C. J. 1109 et seq.; W., B. & A. E. R. R. |