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and used for municipal purposes, it has aceive no defect of power to carry such agreeright to allow it to be used incidentally for ment into execution, and it ought not in our other purposes, either gratuitously, or for a judgment to be denied upon any mere techcompensation," the court, in the Louisiana nical ground, or any refinement of reasoning, Case above, adds: “We find no reason to dis- however skillful. This is not like the case sent from the views thus expressed, and have of the Veterans' Seventh Regiment v. Field little doubt they were appropriate to the case Officers' Seventh Regiment, 60 Hun, 578, 14 decided. We do not wish to be understood N. Y. Supp. 811, cited by the appellants where as going to the extreme of holding that the the veterans sought to quiet their title to a city authorities may not make such casual part of the armory let to them by the field ofand incidental use of the building in ques- ficers by debarring the latter from repudiattion, not inconsistent with, or prejudicial to, ing their lease and reasserting their former the main purpose of its erection, as they may title. It is certainly immaterial to these deem advisable, nor as holding that changed plaintiffs if the lease to the field officers was conditions in the future may not justify them a valid lease, whether the powers thereby in devoting it to some other purpose."

granted are, or are not, extended by a subseIt having been shown that in making the quent valid agreement. lease now under consideration the city acted But the appellants still further contend as a mere property holder, and entered into that the hiring out of the public property for the contract with reference to the demised such entertainments as the record shows is property as any private proprietor might do, an unconstitutional invasion of the rights it follows that the doctrine of ultra vires of citizens engaging their property in that cannot be invoked, unless it has in some way business, in that it is a deprivation of liberty been imported into the case by the subse- and property without due process of law, and quent concurrent action of the mayor and they have specially requested us to express city council and the field officers, in per- an opinion upon this branch of the argument. mitting the use of the armory for such en- This is not the case of a municipal corporagagements as have been already described, tion perverting the functions of government for the joint financial benefit of the city and by deliberately and indefinitely engaging in the field officers, one-third to the city and the business for profit, and entering into comperesidue to the field officers.

tition with its taxpayers, from whom it exWe have read and considered with care the acts a license which it does not itself pay. elaborate argument of the appellant, cover- It is but the temporary, casual, and incidening 26 pages of their brief, relating to the tal use of unused public property, done in the organization of the militia of the state and practice of a public economy to avoid loss of the powers and rights of the field officers in revenue upon such unused public property, this case, and it is doubtless true, as con- and to lighten thereby the general burden of tended, that they are mere governmental taxation. Such being in our view the case agencies, without corporate organization or before us, we cannot sustain the constitutionpowers; but we cannot perceive that this is at al objections of the appellants. all material to be considered. Indeed it Decree affirmed, with costs to the appellees would seem to follow from that fact that all above and below. power over that property, not capable of ex. ercise by the field officers, remains unimpair

(109 Md. 513) ed in the city. The armory has not ceased to be the unused property of the city because WALTER v. BALTIMORE ELECTRIC CO. the state has appropriated money to fit it up

et al. and maintain it as an armory during its (Court of Appeals of Maryland. Jan. 13, 1909.) occupancy as such under the lease. It may 1. ELECTRICITY (8 14*)—TRANSMISSION ALONG be, though it is not necessary so to decide,

HIGHWAYS-DUTY.

those that the field officers alone, under the lease, maintaining electric wires along highways must

Aside from any contractual relat could not, against the will, or without the use a high degree of care commensurate with consent, of the city, authorize its use in the the danger to protect persons lawfully using the manner now under consideration. But they

highways. certainly control its use as an armory, and Cent. Dig. $ 7; Dec. Dig. $ 14.*]

[Ed. Note.-For other cases, see Electricity, the city as certainly owns the reversion in the property, together with all control over

2. ELECTRICITY (8 19*)-LIGHT WIRES-STREETS

-INJURY TO PEDESTRIAN PRIMA FACIE its use which has not by that lease been vest- NEGLIGENCE. ed in the field officers; and, when the city and

That a wire of an electric lighting company the field officers, together representing the strung over a street fell upon and injured a

pedestrian prima facie shows negligence of the absolute ownership and unqualified control company, placing the burden on it to show that of the property, consent and agree, as the it was not negligent. record shows they have done, to this extended [Ed. Note.-For other cases, see Electricity, use of the property for a further valuable Cent. Dig. $ 11; Dec. Dig. & 19.*] consideration, equitably apportioned between Appeal from Superior Court of Baltimore them by their own agreement, we can per- I City; Henry D. Harlan, Judge.

Action by Harry B. Walter, infant, by next y deadly power. W. U. Tel. Co. v. State, Use friend, against the Baltimore Electric Com. Nelson, 82 Md. 293, 33 Atl. 763, 31 L R. A. pany and another. From a judgment for de- 572, 51 Am. St. Rep. 464; Brown v. Edison fendants, plaintiff appeals. Reversed and re- Electric Co., 90 Md. 400, 45 Atl. 182, 46 L R. manded for new trial.

A. 745, 78 Am. St. Rep. 442; Newark Elec. Argued before BOYD, C. J., and BRISCOE, Light & P. Co. v. Ruddy, 62 N. J. Law, 505, PEARCE, SCHMUCKER, BUR E, THOM- 41 Atl. 712, 57 L. R. A. 624; Sub. Elec. Ry. AS, WORTHINGTON, and HENRY, JJ. Co. v. Nugent, 58 N. J. Law, 658, 34 Atl. 1069,

Charles F. Stern and Thomas G. Hayes, for 32 L. R. A. 700; Postal Tel. Co. v. Jones, 133 appellant. Vernon Cook, for appellees.

Ala. 217, 32 South. 500; Mangan's Adm'r y.

Louisville Elec, L. Co., 122 Ky. 476, 91 S. W. SCHMUCKER, J. The question presented 703, 6 L. R. A. (N. S.) 459; Wittleder v. Cit. by this appeal is a narrow one. It is whether Elec. & S. Co., 50 App. Div. 478, 64 N. Y. the fact that a wire of an electric lighting Supp. 114. It has been beld in different company strung over the public street of a cases that electric companies are not insurcity, fell upon and injured a person passing ers of the public using the streets over which along the street of itself affords sufficient their wires are strung on poles, and are thereprima facie proof of negligence on the part fore not liable for all injuries resulting from of the company to cast upon it the burden of contact with their wires, irrespective of the overcoming that presumption. There is evi- circumstances under which they occur. What dence in the record which, for the purpose they are liable for is the exercise of that deof this inquiry, must be taken to be true that, gree of care which the law imposes upon as the equitable plaintiff, a boy eight years them in view of the dangerous character of old, was passing along Harford avenue, a pub their wires and the rights of the public in lic street of Baltimore city, he swung bim- the highways over which they are suspended. self around a pole standing in the pavement, in Nelson's Case, supra, we said, in defining when he came in contact with a hanging the measure of responsibility of the defend. wire charged with electricity, and badly ant companies to the plaintiff in the use by burned his head and his hand. The evidence him of a highway over which their es does not show the existence of any sudden were strung: "The privileges so granted (to or unforeseen cause for the falling of the the defendant companies) thus to encumber wire, nor show with certainty whether it the public highway with appliances so likely fell before or at the time of its coming in con. to become dangerous to the public safety untact with the boy. He brought this suit for less properly employed and controlled imdamages for his injury against the appellee posed upon them, and each of them, the duty and two other companies, all of whom were of so managing their affairs as not to injure declared against as owners of the wire, but persons lawfully on the streets. They owed the appellee admitted at the trial below that it to Nelson that his lawful use of the street it was the owner of and controlled the wire, should be substantially as safe as it was be and the case was not pushed against the oth- fore the telegraph and railway plants had so er defendants. At the trial in the court be- occupied it. It was their plain duty, not only low the case was taken from the jury at the to properly erect their plants, but to maintain close of the plaintiff's evidence, by the grant them in such condition as not to endanger ing of the defendant's prayer, for want of the public. It follows from this that if the legally sufficient evidence to warrant a re- property of the defendants was not in propcovery. From the judgment for the defender condition, and by reason thereof Nelson ant resulting from that ruling, the plaintiff was injured, these facts alone, in the absence appealed.

of other evidence to show that the defect The recent wide-spread adoption of over- originated without the fault of the companies, head wires upon public streets for the trans- afford a prima facie presumption of neglimission of high tension electric currents for gence. In such cases the doctrine of res ipsa supplying light and power has been followed loquitur ('a simple question of common sense' by numerous injuries to persons who have (Whittaker's Smith on Neg. 423]) fairly ap come in contact with broken and fallen wires. plies.” The series of damage suits flowing from It is true that in Nelson's Case the wire these accidents have called for frequent con- which did the harm had been hanging down sideration by the courts of the reciprocal for about two weeks, during at least a porrights and duties of the public and the owners tion of which time it had been charged with of those dangerous instrumentalities. The a current of electricity, but in many adjudicourts agree that outside of any contractual cated cases and text-books it has been held relation the very nature of the business of that the mere fact that a live electric wire transmitting such currents along highways | falls down upon a public street over which it imposes upon those engaged in it the legal has been suspended, and injures a person duty to exercise, for the protection of all lawfully there, prima facie evidence of neg. persons lawfully using the highways, the ligence on the part of the owner of the wire. high degree of care commensurate with the Newark E. L. & P. Co. v. Ruddy, supra; Hedanger incident to the proximity thereto of bert v. Lake Chas. I. L. & W. Co., 111 La. St. Rep. 505; Snyder v. Wheeling Elec. Co., , that it has fully discharged Its duty to the 43 W. Va. 661, 28 S. E. 733, 39 L. R. A. 499, public in the erection and maintenance of its 64 Am. St. Rep. 922; Denver Con. Elec. Co. wires, and upon the merits of the case as it v. Simpson, 21 Colo. 371, 41 Pac. 499, 31 L. R. shall then be presented the jury can deA. 566; Boyd v. Portland Gen. Elec. Co., 40 termine. Or. 126, 66 Pac. 576, 57 L. R. A. 619; Thomas The judgment appealed from will be rev. W. U. Tel. Co., 100 Mass. 156; Jaggard on versed, and the cause remanded for a new Torts, 864; 2 Cooley on Torts (30 Ed.) 1426; trial. Joyce on Electric Law, $ 606; Elliott on Judgment reversed, with costs, and case Roads and Streets, § 826. Some of these remanded for new trial. authorities rest the position taken by them upon the familiar doctrine asserted in Scott V. London & St. R. Docks Co., 3 Hurlst. & C.

(109 Md. 277) 596: "There must be reasonable evidence of PLEASANTS V. McKENNEY et al. negligence. But where the thing is shown to (Court of Appeals of Maryland. Jan. 13, 1909.) be under the management of the defendant 1. WILLS (8 432*)–PROBATE-WILL CONTEST or his servants, and the accident is such as JURISDICTION OF ORPHANS' COURT. in the ordinary course of things does not The judgment of the orphans' court in a happen if those who have the management contest of the validity of a will is a judgment

in rem of a court of competent jurisdiction use proper care, it affords reasonable evi- directly upon the subject matter of the controdence, in the absence of explanation by the versy, which conclusively determines the quesdefendants, that the accident arose from tion at issue as to all persons, whether parties

or not. want of care." The same proposition was

[Ed. Note.-For other cases, see Wills, Dec. asserted in the well-known case of Byrne v. Dig. § 432.*] Broadley, 2 Hurlst. & C. 722, which was re- 2. WILLS ( 318*)–PROBATE-WILL CONTEST lied on by us in Nelson's Case, and was rec

HEARING-SUBMISSION OF ISSUES TO JUBYognized by us in cases for injuries caused by EFFECT OF FINDINGS. a brick falling from a house abutting on The purpose of sending issues to a court highway in Murray v. McShane, 52 Md. 217, Code Pub. Gen. Laws 1904, art. 93, $ 254, be

of law for trial in a will contest pursuant to 36 Am. Rep. 367, Decola v. Cowan, 102 Md. ing to advise the orphans” court of the facts, 551, 62 Atl. 1026, Strasburger v. Vogel, 103 while the jury's findings on the issues submitted Md. 85, 63 Atl. 202, and in the case of cross- may not determine the validity of the will, they

are conclusive upon the orphans' court, and, ties falling from a moving railway car on

when they necessarily determine the invalidity which they were being transported in Howser of the will, the judgment must conform thereto. v. C. & P. R. R. CO., 80 Md. 146, 30 Atl. 906, 27 [Ed. Note.-For other cases, see Wills, Cent. L. R. A. 154, 45 Am. St. Rep. 332. The ex- Dig. 88 752, 754; Dec. Dig. $ 318.*] ceedingly dangerous character of live electric 3. WILLS (8 318*)-PROBATE-TRIAL-SUBMIS. wires lends force to the strict application of

BION OF ISSUES TO JUBY-EFFECT OF SUB

MISSION. this rule of law to accidents occurring

When issues are sent to a law court by the through contact with such wires when out of orphans' court in an action to contest the validproper condition or of their proper place. ity of a will, the law court can only submit In view of the exceedingly dangerous char, whether they are properly presented in the or

the issues for determination without regard to acter of electric light and power wires, and phans' court. the peril to which their suspension over the [Ed. Note.-For other cases, see Wills, Cent public streets exposes the public who con- Dig. 8 752; Dec. Dig. 8 318.*] stantly traverse and use the streets, we think 4. WILLS ($ 263*) — PROBATE-CONTEST-PAB: it both just and reasonable to hold that the TIES-EXECUTOR. Injury of a person upon the surface of the proceedings to contest the validity of the will

While the executor was a proper party to street by contact with a banging or fallen before the issuance of letters, he was not a wire of that character, in itself, if unexplain- necessary party thereto, either in his capacity ed, affords sufficient prima facie evidence of of executor or of administrator pendente lite. negligence on the part of the owner of the

[Ed. Note.-For other cases, see Wills, Dec. wire to entitle the plaintiff to go to the jury

Dig. § 263.*] in an action for damages for the injury. In 5. EXECUTORS AND ADMINISTRATORS ($_111*)—

ACTIONS-WILL CONTEST-COSTS OF DEFENDour opinion the evidence offered by the ap

ING WILL pellant as plaintiff in the case before us was While an executor is a proper party to prosufficient to raise such a prima facie pre ceedings to contest the validity of a will, he sumption of negligence against the appellee the contest occurs before the issuance of letters.

must defend the will at his own expense, where company as to call for an explanation from

(Ed. Note.-For other cases, see Executors and it, and therefore sufficient to carry the case Administrators, Cent. Dig. $ 451; Dec. Dig. $ to the jury, and that the learned judge be- 111.*] low erred in granting the defendant's prayer. 6. WILLS ($ 336*)—PROBATE-WILL CONTEST Of course, upon a retrial of the case, the TRIAL-WAIVER OF IRREGULARITIES. company as defendant will be permitted to

Where an executor, though he filed his 9.no

swer to the caveat in a contest of the will, was rebut the presumption of negligence, and dismissed in May, 1907, and made no effort to show by any lawful evidence, if it can do so, I be reinstated as a party, even when the issues

VIT.

were made and submitted to a jury five months | visions of the alleged will, a share of Mrs. thereafter, and objected for the first time after McKenney's property was given to her only verdict in the law court was rendered and renewed his objections in the orphans' court, but daughter, Mrs. Emma Hedian, a legacy of his petition therein, filed in April, 1908, did not $100 to a Mrs. Mary L. Foley, and of the restate that he only recently learned of his dis- sidue one half was given to her son William missal, or that it was obtained by fraud, he 0. McKenney, above named, absolutely, and cannot object to the proceedings after his dismissal even if they were irregular; a mere gen- the other half to Edward I. Hedian, in trust eral allegation that the proceedings were col- for the benefit of her son George J. McKenlusive being insufficient.

ney for life, and after his death to be divid. [Ed. Note.–For other cases, see Wills, Dec. ed amongst his children. On April 10, 1907, Dig. § 336.*]

the appellant, Richard H. Pleasants, as at. 7. APPEAL AND ERBOR (8 799*)—DISMISSAL, torney for the executor, filed his answer to DELAY IN TRANSMITTING RECORD-AFFIDA

the caveat, denying that Ellen McKenney A motion to dismiss an appeal because of died intestate, but averring that she duly delay in transmitting the record will not be con- and properly executed the paper writing pur. sidered, where it does not appear from the atfidavits filed whether the delay was caused by the porting to be her will, dated June 25, 1897, register or by appellant.

when of sound and vigorous mind and body [Ed. Note.-For other cases, see Appeal and and fully capable of executing a valid deed Error, Dec. Dig. & 799.*]

or contract. On May 18, 1907, the attorneys Appeal from Orphans' Court of Baltimore for the caveators filed the following order: City; Myer J. Block and Harry C. Gaither, “Mr. Register: Enter the petition and caveat Judges.

of William 0. McKenney and George J. McPetition by Richard H. Pleasants against Kenney, as against Richard H. Pleasants, William 0. McKenney and others, praying dismissed.” On May 27, 1907, the joint and that the orphans' court refrain from receiv- several answer of Emma Hedian, Mary L. ing or acting upon findings on issues submit. Foley, and Edward I. Hedian, trustee, was ted to a jury in a will contest. From an or- filed, neither admitting nor denying the alle der dismissing the petition, and refusing gations of the caveat, but submitting their probate, pursuant to the findings, petitioner rights to the protection of the court, and conappealed. Affirmed.

senting to the passage of such order in the Argued before BOYD, C. J., and BRISCOE, 15, 1907, issues were framed in the orphans'

premises as should be proper. On October PEARCE, SCHMUCKER, BURKE, WORTH

court of Baltimore city, and sent to the suINGTON, and HENRY, JJ.

perior court of that city for trial before a Richard H. Pleasants and John E. Semmes, jury. By order of the orphans' court, Wilfor appellant. J. Cookman Boyd, for appel- liam 0. McKenney and George J. McKenney lees.

were made plaintiffs at the trial of the is.

sues, and Emma Hedian, Mary L. Foley, and WORTHINGTON, J. Mrs. Ellen McKen- Edward I. Hedian, trustee, defendants at ney, of Baltimore city, died on March 9, 1907, such trial. The issues were six in number, leaving a paper writing, dated June 25, 1897, and of the following purport: purporting to be her last will and testament, (1) Was the paper writing dated the 5th in which paper writing Richard H. Pleasants, day of June, 1897, purporting to be the last the appellant, was named as executor. On will and testament of Ellen McKenney, signMarch 15, 1907, Mr. Pleasants exhibited and ed by her, or some other person in her presfiled this alleged will in the orphans' court of ence, and by her expressed direction, and at. Baltimore city for the purpose of probate. tested and subscribed in the presence of two Three days later-that is, on March 18, 1907, or more creditable witnesses? --before the alleged will had been admitted (2) Was the same read to her or by her, or to probate, a formal caveat was entered there- known to her at or before the time of the to by Mrs. McKenney's two sons, William 0. alleged execution thereof? McKenney and George J. McKenney. The (3) Was the execution thereof procured by caveat alleged, among other things, that the fraud ? paper writing dated June 5, 1897, purporting (4) Was the execution thereof procured by to be the last will and testament of Ellen undue influence? McKenney, was not the last will and testa- (5) Was she then of sound and disposing ment of Ellen McKenney, but that said Ellen mind? McKenney died intestate. There were also (6) Was said paper writing, dated June 5, allegations of fraud, undue influence, want 1897, and purporting to be the last will and of mental capacity, and want of proper ex- testament of Ellen McKenney, revoked by ecution of the alleged will. The appellant her subsequent to the execution thereof? and Mrs. Emma Hedian, the only surviving The issues were submitted to the jury in daughter of Mrs. Ellen McKenney, were the superior court on March 20, 1908, and a made caveatees, and by citation from the verdict rendered in favor of the mental cacourt required to answer the premises. It pacity of Mrs. McKenney and of the due es. may be well here to state that, by the pro-'ecution of the paper writing of June 5, 1897,

also finding no fraud, or undue influence or all sworn to, but, so far as the record diswant of mental capacity, but that said paper closes, no testimony in support of the alwriting purporting to be the last will and tes- legations of either the petition or of the an. tament of Ellen McKenney had been revoked swers thereto was adduced. Subsequently by her subsequent to the execution thereof. on June 29, 1908, all the parties to the caveat The appellant, as will be seen, was not a par- proceedings, to wit, Emma Hedian, Mary L. ty to these proceedings, but on March 23, 1907, Foley, Edward I. Hedian, trustee, George J. three days after the rendition of the verdict, McKenney, and William McKenney, moved he filed a motion in the superior court re- to dismiss the appellant's petition (1) because questing it “not to certify the findings of the petitioner had no interest in the controthe jury to the orphans' court.” Notwith- versy ; (2) because no letters testamentary had standing these objections, the findings of the been granted to the said Richard H. Pleasjury were finally transmitted to the orphans' ants. On the 31st day of July, 1908, the orcourt on April 4, 1908. On the same day, phans' court passed an order dismissing the that is, on April 4, 1908—the appellant filed appellant's petition, and, acting on the finda petition in the orphans' court praying that ings of the jury to the effect that the paper court “not to receive or act upon the findings writing propounded as and for the last will of the jury,” for the following reasons, in and testament of Ellen McKenney had been brief:

revoked by her subsequently to its date, re(1) Because the findings were had in refer- fused probate thereof. From this action of ence to a paper writing dated June 5, 1897, the orphans' court, the petitioner, Richard H. while the paper filed purporting to be the Pleasants, brings this appeal. last will and testament of Ellen McKenney It should be here stated that pending the was dated June 25, 1897.

caveat proceedings the appellant was ap(2) Because the issues sent to the superior pointed administrator pendente lite of the court were not raised by the pleadings. estate of Ellen McKenney, deceased, though

(3) Because the omission of the name of no claim of right to participate in the caveat. Richard H. Pleasants, executor, as a party proceedings seems to have been made on that to the proceedings, at the trial of the issues ground. in the superior court, was a fatal omission. While the briefs of the counsel for the re

(4) Because there was no real contest in spective parties present several questions for the superior court as the answer of the de- our consideration which were elaborately disfendants as caveatees, neither admitting nor cussed at bar, we think we need only considdenying the allegations of the caveat, raised er one of these questions, and that is whethno issues whatever.

er or not the appellant either in his individ(5) Because the appellant had been elim- ual capacity or as administrator pendente inated by a dismissal of the caveat as to lite was a necessary party to the proceedhimself, and all the proceedings thereafter ings connected with the caveat of the alleg. were had without notice to him, and that the ed will. In this connection it should be reentire proceedings were the result of collu- membered that a contest in the orphans' sion.

court, involving the validity of a paper writOn April 20, 1908, the caveators filed their ing purporting to be a will, is a proceeding in answer, denying the right of the appellant rem in which all persons interested may apto be considered a party in the cause, or as pear and be heard upon the question, and being entitled to object to any proceedings that the order of the orphans' court is the had or to be had therein, alleging that the judgment of a court of competent jurisdiction error in the date of the paper passed upon directly upon the subject-matter in controverby the jury was merely a clerical error, and, sy. Worthington v. Gittings, 56 Md. 542. as the paper of date June 25th was offered When a decision is made between opposing in evidence, the findings of the jury were up- parties in such a contest, it is a judgment in on that prayer, that the issues were proper- rem conclusively establishing either the valy framed upon the pleadings in the orphans' lidity or invalidity of the alleged will. Emcourt, and that the parties to the caveat were mert v. Stouffer, 64 Md. 543, 3 Atl. 293, 6 the proper parties, and denying that there Atl. 177. The purpose of sending issues to

no real contest. On April 23, 1908, a court of law for trial under Code Pub. Emma Hedian, Mary L. Foley, and Edward Gen. Laws 1904, section 254 of article 93, I. Hedian, trustee, filed their answer to the is to enable the orphans' court to advise petition of the appellant, denying that he itself of the real facts of the case. These had any standing whatever to be heard in the when found by the jury are conclusive, orphans' court in the premises, averring that and the orphans' court has no discretion, all the necessary and proper parties were par- but must enter the judgment in conformity ties to the proceedings in the superior court, with the finding of the jury. Sumwalt v. admitting that they had been advised that Sumwalt, 52 Md. 338. The proceedings are, upon the undisputable facts of the case however, all the while within the probate the paper writing of date June 25, 1897. powers of the orphans' court. Warford v. had been revoked, and denying all and sin- Calvin, 14 Md. 532. Though the jury may gular the other allegations of the appellant's find affirmatively or negatively on the ques

was

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